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TCL > July 1997 Issue > C.R.C.P. Chap. 20, Rules of Proc.

July 1997       Vol. 26, No. 7       Page  119
From the Courts
Court Business

C.R.C.P. Chap. 20, Rules of Proc.

Colorado Rules of Civil Procedure
Chapter 20. Rules of Procedure Regarding
Lawyer Discipline and Disability Proceedings
And Mandatory Continuing Legal Education
And Judicial Education
Amended and Adopted

C.R.C.P. 241.4. Disciplinary Counsel is amended as follows:

(a) Disciplinary Counsel. [No change]

(b) Qualifications. [No change]

(c) Powers and Duties. The Disciplinary Counsel shall:

(1) through (10) [No change]

(11) PARTICIPATE IN THE MANAGEMENT AND SUPERVISION OF THE BAR MEDIATION PROCESS ESTABLISHED BY THE SUPREME COURT, IMPLEMENTED BY THE COLORADO BAR ASSOCIATION, AND ADMINISTERED BY THE MEDIATION COMMITTEE OF THE ASSOCIATION IN CONJUNCTION WITH THE GRIEVANCE COMMITTEE.

MEDIATORS SHALL BE APPOINTED BY THE SUPREME COURT. THE MEDIATION COMMITTEE AND THE DISCIPLINARY COUNSEL SHALL JOINTLY RECOMMEND LAWYERS TO THE COURT FOR APPOINTMENT AS MEDIATORS. THE DISCIPLINARY COUNSEL SHALL FORWARD THE NAMES OF THOSE RECOMMENDED TO THE COURT TOGETHER WITH A PROPOSED ORDER MAKING THE APPOINTMENT OF THE MEDIATORS.

(11)(12) Perform such other duties as the Supreme Court may direct.

(d) Disqualification. [No change]

Amended and Adopted by the Court, En Banc, April 17, 1997, effective July 1, 1997.


C.R.C.P. 241.10. Investigation of Allegations is amended as follows:

(a) When Commenced. If, pursuant to C.R.C.P. 241.9, THE DISCIPLINARY COUNSEL MAKES a determination is made to proceed, THE DISCIPLINARY COUNSEL (1) MAY REFER THE REQUEST FOR INVESTIGATION TO A DULY CONSTITUTED MEDIATION COMMITTEE OF THE COLORADO BAR ASSOCIATION, OR (2) SHALL GIVE the lawyer in question shall be given written notice by the Disciplinary Counsel of the fact that the lawyer is under investigation by the GRIEVANCE Committee and of the general nature of the allegations made against the lawyer. The lawyer in question shall file with the Disciplinary Counsel a written response to the allegations made against the lawyer within twenty days after notice of the investigation is given.

Upon receipt of the lawyer's response, or the expiration of the twenty-day period if no response is received, the matter shall be assigned to an Investigator for investigation and report.

Amended and Adopted by the Court, En Banc, April 17, 1997, effective July 1, 1997.


C.R.C.P. 241.14. Hearings Before the Hearing Board is amended as follows:

(a) Notice. [No change]

(b) Designation of a Hearing Board. All hearings on complaints seeking disciplinary action against a respondent shall be conducted by a hearing board designated by the Chairman or a Vice-Chairman. A hearing board shall consist of at least three persons UNLESS THE PARTIES AGREE TO PROCEED WITH THE HEARING BEFORE A HEARING BOARD CONSISTING OF FEWER THAN THREE PERSONS. At least one member of every hearing board NOT ONLY shall be a member of the hearing panel or a former member of the Committee BUT ALSO SHALL BE A MEMBER OF THE BAR OF COLORADO, and at least two members of every THREE-PERSON hearing board shall be members of the Bar of Colorado.

(c) Prehearing Conference. [No change]

(d) Procedure and Proof. EXCEPT AS OTHERWISE PROVIDED IN THESE RULES, hearings shall be conducted in conformity with the Colorado Rules of Civil Procedure, the Colorado Rules of Evidence, and the practice in this state in the trial of civil cases; provided, however, that proof shall be by clear and convincing evidence, and provided further that the respondent may not be required to testify or to produce records over THE RESPONDENT'S his objection if to do so would be in violation of THE RESPONDENT'S his constitutional privilege against self-incrimination.

In the course of proceedings conducted pursuant to this Rule, the Chairman, the Vice Chairmen, and the presiding officer of the hearing board, acting pursuant to and in conformity with these Rules, shall have the power to administer oaths and affirmations.

A complete record shall be made of all depositions and of all testimony taken at hearings before a hearing board.

(f) (e) Order for Examination. When the mental or physical condition of the lawyer in question has become an issue in the proceeding, the presiding officer of the hearing board or the Vice-Chair of the hearing panel, on motion of the Disciplinary Counsel, may order the lawyer to submit to a physical or mental examination by a suitable licensed or certified examiner. The order may be made only upon a determination that reasonable cause exists and after notice to the lawyer. The lawyer will be provided the opportunity to respond to the motion of THE Disciplinary Counsel, and the lawyer may request a hearing before the presiding officer. The hearing shall be held within thirty days of the date of the lawyer's request, and shall be limited to the issue of whether reasonable cause exists for such an order.

(e) (f) Procurement of EvidenceDuring Hearing.

(1) Subpoena. [No change]

(2) Contents of Subpoena. [No change]

(3) Quashing a Subpoena. [No change]

(4) Contempt. [No change]

(5) Depositions. Depositions may be taken by any party to a proceeding conducted pursuant to these Rules and used in the same manner and to the same extent as in any civil action. Subpoenas for attendance at depositions may be issued by the Chairman or the Committee Counsel on behalf of any party and subject to the provisions of C.R.C.P. 45 and subsection (c) of this Rule.

(5) DISCOVERY.

(A) PURPOSE AND SCOPE. RULES 16 AND 26 OF THE COLORADO RULES OF CIVIL PROCEDURE SHALL NOT APPLY TO PROCEEDINGS CONDUCTED PURSUANT TO THESE RULES. THIS RULE SHALL GOVERN DISCOVERY IN LAWYER DISCIPLINE AND DISABILITY PROCEEDINGS.

(B) MEETING. A MEETING OF THE PARTIES MUST BE HELD NO LATER THAN 15 DAYS AFTER THE CASE IS AT ISSUE TO CONFER WITH EACH OTHER ABOUT THE NATURE AND BASIS OF THE CLAIMS AND DEFENSES AND DISCUSS THE MATTERS TO BE DISCLOSED.

(C) DISCLOSURES. NO LATER THAN 30 DAYS AFTER THE CASE IS AT ISSUE, THE PARTIES SHALL DISCLOSE:

(i) THE NAME AND, IF KNOWN, THE ADDRESS, AND TELEPHONE NUMBER OF EACH INDIVIDUAL LIKELY TO HAVE DISCOVERABLE INFORMATION RELEVANT TO DISPUTED FACTS ALLEGED IN THE PLEADINGS, IDENTIFYING WHO THE PERSON IS AND THE SUBJECTS OF THE INFORMATION;

(ii) A LISTING, TOGETHER WITH A COPY OF, OR A DESCRIPTION OF, ALL DOCUMENTS, DATA COMPILATIONS, AND TANGIBLE THINGS IN THE POSSESSION, CUSTODY, OR CONTROL OF THE PARTIES THAT ARE RELEVANT TO THE DISPUTED FACTS IN THE PLEADINGS;

(iii) A STATEMENT OF WHETHER THE PARTIES ANTICIPATE USE OF EXPERT WITNESSES, IDENTIFYING THE SUBJECT AREAS OF THE PROPOSED EXPERTS.

(D) TRIAL MANAGEMENT ORDER. UPON THE REQUEST OF ONE OF THE PARTIES OR UPON ORDER OF THE PRESIDING OFFICER OF THE HEARING BOARD, NO LATER THAN 45 DAYS PRIOR TO THE TRIAL DATE, THE PARTIES SHALL DISCLOSE TO THE OTHER PARTY AND FILE A TRIAL MANAGEMENT ORDER CONTAINING THE FOLLOWING MATTERS UNDER THE FOLLOWING CAPTIONS AND IN THE FOLLOWING ORDER:

(I) STATEMENT OF CLAIMS AND DEFENSES TO BE PURSUED OR WITHDRAWN. THE PARTIES SHALL SET FORTH A LISTING OF THE CLAIMS AND DEFENSES REMAINING FOR TRIAL. ANY CLAIMS OR DEFENSES SET FORTH IN THE PLEADINGS WHICH WILL NOT BE AT ISSUE AT TRIAL SHALL BE DESIGNATED AS "WITHDRAWN."

(II) STIPULATED FACTS. THE PARTIES SHALL SET FORTH A PLAIN, CONCISE STATEMENT OF ALL FACTS WHICH THE TRIER OF FACT SHALL ACCEPT AS UNDISPUTED.

(III) PRETRIAL MOTIONS. THE PARTIES SHALL LIST MOTIONS, IF ANY, WHICH ARE ANTICIPATED TO BE FILED BEFORE TRIAL AS WELL AS MOTIONS, IF ANY, WHICH ARE PENDING BEFORE THE HEARING BOARD. THE PARTIES SHALL INDICATE A DEADLINE FOR THE FILING OF SUCH MOTIONS WHICH SHALL BE NO LATER THAN 14 DAYS PRIOR TO THE DATE SET FOR TRIAL.

(IV) LEGAL ISSUES. THE PARTIES SHALL SET FORTH A LIST OF LEGAL ISSUES THAT ARE CONTROVERTED, INCLUDING APPROPRIATE CITATION OF STATUTORY, CASE OR OTHER AUTHORITY. IN ADDITION, THE PARTIES SHALL INDICATE WHETHER TRIAL BRIEFS WILL BE FILED, INCLUDING A SCHEDULE FOR THEIR FILING. TRIAL BRIEFS SHALL BE FILED NO LATER THAN 7 DAYS BEFORE THE COMMENCEMENT OF THE TRIAL.

(V) IDENTIFICATION OF WITNESSES AND EXHIBITS. EACH PARTY SHALL PROVIDE THE FOLLOWING INFORMATION:(a) LAY WITNESSES. EACH PARTY SHALL INCLUDE A LIST CONTAINING THE NAME, ADDRESS, AND TELEPHONE NUMBER OF ANY PERSON WHOM THE PARTY WILL CALL AND OF ANY PERSON WHOM THE PARTY MAY CALL AS A WITNESS AT TRIAL.

(b) EXHIBITS. EACH PARTY SHALL ATTACH A LIST DESCRIBING ANY PHYSICAL OR DOCUMENTARY EVIDENCE WHICH THE PARTY INTENDS TO INTRODUCE AT TRIAL. COMPLAINANT SHALL ASSIGN A NUMBER AND RESPONDENT SHALL ASSIGN A LETTER DESIGNATION FOR EACH EXHIBIT. IF ANY PARTY WISHES TO OBJECT TO THE AUTHENTICITY OR ADMISSIBILITY OF ANY EXHIBIT, SUCH OBJECTION SHALL BE NOTED, TOGETHER WITH THE GROUNDS THEREFOR.

(c) EXPERT WITNESSES. EACH PARTY SHALL ATTACH TO THE TRIAL MANAGEMENT ORDER A LIST OF THE NAME, ADDRESS, AND TELEPHONE NUMBER OF EACH PERSON WHOM THE PARTY WILL CALL AND ANY PERSON WHOM THE PARTY MAY CALL AS AN EXPERT WITNESS AT TRIAL, INDICATING THE ANTICIPATED LENGTH OF TESTIMONY, INCLUDING CROSS-EXAMINATION. THE LIST SHALL INDICATE WHETHER THE OPPOSING PARTY ACCEPTS OR CHALLENGES THE QUALIFICATIONS OF A WITNESS TO TESTIFY AS AN EXPERT AS TO THE OPINIONS EXPRESSED. IF THERE IS A CHALLENGE, THE LIST SHALL BE ACCOMPANIED BY A RESUME SETTING FORTH THE BASIS FOR THE EXPERTISE OF THE CHALLENGED WITNESS. COPIES OF ANY EXPERT REPORTS SHALL BE PROVIDED TO THE OTHER PARTY AT THIS TIME.

(d) PRESENTATION OF TESTIMONY. IF THE TESTIMONY OF ANY WITNESS IS TO BE PRESENTED BY DEPOSITION OR THROUGH ANY OTHER ACCEPTABLE MEANS IN LIEU OF LIVE TESTIMONY, A COPY SHALL BE SUBMITTED TO THE HEARING BOARD AND INCLUDE THE PROPONENT'S AND OPPONENT'S ANTICIPATED DESIGNATIONS OF THE PERTINENT PORTIONS OF SUCH TESTIMONY OR A STATEMENT WHY DESIGNATION IS NOT FEASIBLE PRIOR TO TRIAL. IF ANY PARTY WISHES TO OBJECT TO THE ADMISSIBILITY OF THE TESTIMONY OR TO ANY TENDERED QUESTION OR ANSWER THEREIN, IT SHALL BE NOTED, SETTING FORTH THE GROUNDS THEREFOR.

(VI) TRIAL EFFICIENCIES. IF THE ANTICIPATED LENGTH OF THE TRIAL HAS CHANGED, THE PARTIES SHALL SO INDICATE.

(E) LIMITATIONS. EXCEPT UPON ORDER BY THE PRESIDING OFFICER OF THE HEARING BOARD FOR GOOD CAUSE SHOWN, DISCOVERY SHALL BE LIMITED AS FOLLOWS:

(i) THE OFFICE OF DISCIPLINARY COUNSEL MAY TAKE ONE DEPOSITION OF THE RESPONDENT AND TWO OTHER PERSONS. THE RESPONDENT MAY TAKE ONE DEPOSITION OF THE COMPLAINING WITNESS AND TWO OTHER PERSONS. THE SCOPE AND MANNER OF PROCEEDING BY WAY OF DEPOSITION AND THE USE THEREOF SHALL OTHERWISE BE GOVERNED BY C.R.C.P. RULES 26, 28, 29, 30, 31, 32, AND 45.

(ii) A PARTY MAY SERVE ON THE ADVERSE PARTY 30 WRITTEN INTERROGATORIES, EACH OF WHICH SHALL CONSIST OF A SINGLE QUESTION. THE SCOPE AND MANNER OF PROCEEDING BY MEANS OF WRITTEN INTERROGATORIES AND THE USE THEREOF SHALL OTHERWISE BE GOVERNED BY C.R.C.P. RULES 26 AND 33.

(iii) THE OFFICE OF DISCIPLINARY COUNSEL MAY OBTAIN A PHYSICAL OR MENTAL EXAMINATION OF THE RESPONDENT PURSUANT TO C.R.C.P. 241.14(e).

(iv) A PARTY MAY SERVE THE ADVERSE PARTY REQUESTS FOR PRODUCTION OF DOCUMENTS PURSUANT TO C.R.C.P. 34, EXCEPT SUCH REQUESTS FOR PRODUCTION SHALL BE LIMITED TO 20 IN NUMBER, EACH OF WHICH SHALL CONSIST OF A SINGLE REQUEST.

(v) A PARTY MAY SERVE ON THE ADVERSE PARTY 20 REQUESTS FOR ADMISSION, EACH OF WHICH SHALL CONSIST OF A SINGLE REQUEST. THE SCOPE AND MANNER OF PROCEEDING BY MEANS OF REQUESTS FOR ADMISSION AND THE USE THEREOF SHALL OTHERWISE BE GOVERNED BY C.R.C.P. 36.

(F) IN DETERMINING GOOD CAUSE PURSUANT TO 241.14(f)(5)(E), THE PRESIDING OFFICER OF THE HEARING BOARD SHALL CONSIDER THE FOLLOWING:

(i) WHETHER THE DISCOVERY SOUGHT IS UNREASONABLY CUMULATIVE OR DUPLICATIVE, OR IS OBTAINABLE FROM SOME OTHER SOURCE THAT IS MORE CONVENIENT, LESS BURDENSOME, OR LESS EXPENSIVE;

(ii) WHETHER THE PARTY SEEKING DISCOVERY HAS HAD AMPLE OPPORTUNITY BY DISCLOSURE OR DISCOVERY IN THE ACTION TO OBTAIN THE INFORMATION SOUGHT;

(iii) WHETHER THE BURDEN OR EXPENSE OF THE PROPOSED DISCOVERY OUTWEIGHS ITS LIKELY BENEFIT, TAKING INTO ACCOUNT THE NEEDS OF THE CASE, THE PARTIES' RESOURCES, THE IMPORTANCE OF THE ISSUES IN THE LITIGATION, AND THE IMPORTANCE OF THE PROPOSED DISCOVERY IN RESOLVING THE ISSUES; AND

(iv) WHETHER, BECAUSE OF THE NUMBER OF PARTIES AND THEIR ALIGNMENT WITH RESPECT TO THE UNDERLYING CLAIMS AND DEFENSES, THE PROPOSED DISCOVERY IS REASONABLE.

(G) SUPPLEMENTATION OF DISCLOSURES AND DISCOVERY RESPONSES. A PARTY IS UNDER A DUTY TO SUPPLEMENT ITS DISCLOSURES UNDER SECTION (f)(5)(C) OF THIS RULE WHEN THE PARTY LEARNS THAT IN SOME MATERIAL RESPECT THE INFORMATION DISCLOSED IS INCOMPLETE OR INCORRECT AND IF THE ADDITIONAL OR CORRECTIVE INFORMATION HAS NOT OTHERWISE BEEN MADE KNOWN TO THE OTHER PARTIES DURING THE DISCLOSURE OR DISCOVERY PROCESS. A PARTY IS UNDER A DUTY TO AMEND A PRIOR RESPONSE TO AN INTERROGATORY, REQUEST FOR PRODUCTION OR REQUEST FOR ADMISSION WHEN THE PARTY LEARNS THAT THE PRIOR RESPONSE IS IN SOME MATERIAL RESPECT INCOMPLETE OR INCORRECT AND IF THE ADDITIONAL OR CORRECTIVE INFORMATION HAS NOT OTHERWISE BEEN MADE KNOWN TO THE OTHER PARTIES DURING THE DISCOVERY PROCESS. WITH RESPECT TO EXPERTS, THE DUTY TO SUPPLEMENT OR CORRECT EXTENDS BOTH TO INFORMATION CONTAINED IN THE EXPERT'S REPORT OR SUMMARY DISCLOSED PURSUANT TO SECTION (f)(5)(D)(V)(c) OF THIS RULE AND TO INFORMATION PROVIDED THROUGH ANY DEPOSITION OF OR INTERROGATORY RESPONSES BY THE EXPERT. SUPPLEMENTATION SHALL BE PERFORMED IN A TIMELY MANNER.

Amended and Adopted by the Court, En Banc, April 17, 1997, effective July 1, 1997.


C.R.C.P. 241.24. Access to Information Concerning Proceedings Under These Rules is amended as follows:

(a) Confidentiality. [No change to the first two paragraphs]

Upon final determination of any proceedings conducted pursuant to these Rules, notice of the disposition of the matter shall be given by the Clerk of the Supreme Court to the lawyer, the complainant, their counsel of record, and the Committee Counsel. Any person having received notice that an admonition or A private censure has been imposed shall treat such information as confidential and shall not disclose such information to anyone, except by order to the Supreme Court. Any person who makes a disclosure other than as permitted by these Rules or by order of the Supreme Court may be subject to punishment for contempt of the Supreme Court. ALL PROCEEDINGS CONDUCTED WITHIN THE BAR MEDIATION PROCESS ADMINISTERED BY A DULY CONSTITUTED MEDIATION COMMITTEE OF THE COLORADO BAR ASSOCIATION AND THE FILES AND RECORDS OF THE MEDIATION COMMITTEE SHALL BE CONFIDENTIAL AND SHALL NOT BE MADE PUBLIC EXCEPT BY ORDER OF THE SUPREME COURT; PROVIDED, HOWEVER, ANY LAWYER MEDIATOR SHALL COMPLY WITH RULE 8.3 OF THE COLORADO RULES OF PROFESSIONAL CONDUCT AS TO MATTERS NOT WITHIN THE SCOPE OF THE REQUEST FOR INVESTIGATION. THE MEDIATION COMMITTEE SHALL INFORM THE DISCIPLINARY COUNSEL OF THE RESULTS OF THE MEDIATION, AND IF A MEDIATION AGREEMENT IS ENTERED, THE MEDIATION COMMITTEE SHALL FURNISH A COPY OF THE AGREEMENT TO THE DISCIPLINARY COUNSEL.

Amended and Adopted by the Court, En Banc, April 17, 1997, effective July 1, 1997.


C.R.C.P. 241.25. General Provisions is amended as follows:

(e) Immunity. All requests for investigation submitted to the Supreme Court, the Committee, the Committee Counsel, or the Disciplinary Counsel, and all complaints filed with the Committee, shall be absolutely privileged and no lawsuit may be predicated thereon. Persons performing official duties under the provisions of this Chapter, including but not limited to members of the Committee and its staff; the Committee Counsel and his staff; the Disciplinary Counsel and his staff; MEDIATORS APPOINTED BY THE COURT PURSUANT TO C.R.C.P. 241.4(c)(11); and members of the Bar working under the direction of the Committee, shall be immune from suit for all conduct in the course of their official duties.

Amended and Adopted by the Court, En Banc, April 17, 1997, effective July 1, 1997.

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