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TCL > March 1997 Issue > Court Business

March 1997       Vol. 26, No. 3       Page  123
From the Courts
Court Business

Court Business

Proposed Amendments to the
Colorado Rules of Civil Procedure
Hearing to be held Wednesday, April 30, 1997, at 1:30 p.m.

NOTICE

The Civil Rules Committee has requested the Colorado Supreme Court to adopt proposed amendments to Rule 4 of the Colorado Rules of Civil Procedure and to adopt Form 1.2, as set forth below. The Supreme Court will conduct a hearing on the proposed amendments on Wednesday, April 30, 1997, at 1:30 p.m. in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. Written comments to the court concerning proposals should be submitted to: Mac V. Danford, Clerk of the Supreme Court, no later than Friday, April 18, 1997. Persons wishing to participate in the hearing should so notify Mr. Danford no later than April 18, 1997.

Proposed Rule Change
COLORADO RULES OF CIVIL PROCEDURE
CHAPTER 1. SCOPE OF RULES, ONE FORM OF ACTION, COMMENCEMENT OF ACTION,
SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS

C.R.C.P. 4. Process.

(a) and (b) [No change]

(c) Contents of Summons. The summons shall contain the name of the court, the county in which the action is brought, the names or designation of the parties, shall be directed to the defendant, shall state the time within which the defendant is required to appear and defend against the claims of the complaint, and shall notify him that in case of his failure to do so, judgment by default may be rendered against him. If the summons is served by publication, the summons shall briefly state the sum of money or other relief demanded. The summons shall in the signature element thereof, contain the name, address, and registration number of the plaintiff’s attorney, if any, and if not, the address of the plaintiff. Except in case of service by publication under Rule 4(h)(g) or when otherwise ordered by the court, the complaint shall be served with the summons, and in all other cases service of a summons alone after the effective date of this amended rule shall not constitute service of process. In any case, where by special order personal service of summons is allowed without the complaint, a copy of the order shall be served with the summons.

(d) By Whom Served. Process may be served INSIDE OR OUTSIDE THIS STATE:

(1) Within the state, by the sheriff of the county where the service is made, or by his A deputy, or by any other person over the age of eighteen years, not a party to the action;

(2) At any other place by a sheriff, deputy sheriff, constable, deputy constable, bailiff, deputy bailiff, or other officer having like powers and duties of the political subdivision in which the service is made or an officer authorized by the laws of this state to take acknowledgements in such political subdivision to deeds conveying real estate situate in this state or an attorney, counselor at law, solicitor, advocate, barrister duly qualified to practice law in such political subdivision or a person specially commissioned to serve process by the court in which the action is pending.

(e) Personal Service in State. Personal service within the state shall be as follows:

(1) Upon a natural person over the age of eighteen years by delivering a copy or copies thereof to him personally THE PERSON, or by leaving a copy or copies thereof at his THE PERSON’S dwelling house or usual place of abode, with some ANY PERSON OVER THE AGE OF EIGHTEEN YEARS WHO IS A member of his THE PERSON’S family over the age of eighteen years, or at his THE PERSON’S usual place of business, with his stenographer THE PERSON’S SECRETARY, bookkeeper, or chief clerk; or by delivering a copy to an agent authorized by appointment or by law to receive service of process;

(2) Upon a natural person, between the ages of thirteen years and UNDER THE AGE OF eighteen years, by delivering a copy thereof to such THE person and another copy thereof to his THE PERSON’S father, mother, or guardian, or if there be none in the state, then by delivering a copy thereof to any person in whose care or control he THE PERSON may be; or with whom he THE PERSON resides, or in whose service he THE PERSON is employed; and upon a natural person under the age of thirteen years by delivering a copy to his father, mother, or guardian;

(3) through (10) [No change]

(f) [RESERVED] Personal Service Outside the State. Personal service outside the state may be made:

(1) In any action, upon a natural person over the age of eighteen years who is a resident of this state, or who is a nonresident of this state and who has submitted to or has become subject by law to the jurisdiction of the courts of this state, by delivering a copy of the process, together with a copy of the pleading upon which it was issued, to the person served;

(2) In any action, upon a person other than a natural person, who is either domiciled in this state or is domiciled in another state and who has submitted to or has become subject by law to the jurisdiction of the courts of this state, by delivering a copy of the process, together with a copy of the pleading upon which it was issued, in the manner provided by this Rule for personal service in this state upon such person;

(3) In any action affecting specific property or status or in any other proceeding in rem, upon a natural person of any age, without regard to his residence, or upon any other person, without regard to his domicile, by delivering a copy of the pleading and process thereon, in the manner provided by this Rule for personal service in this state upon such person. Service under this section (3) upon a natural person, between the ages of thirteen years and eighteen years, by delivering a copy of said pleading and process to such person and another copy thereof to his father, mother, or guardian, or if there be none in that state, then by delivering a copy thereof to any person in whose care or control he may be, or with whom he resides, or in whose service he is employed, and upon a natural person under the age of thirteen years by delivering a copy to his father, mother, or guardian, wherever, within or without this state, such person may be found;

(4) No provision of this section (f) shall be construed to limit the right to serve process in any other manner authorized by this Rule.

(g) Other Service. Service by mail or publication shall be allowed only in cases ACTIONS affecting specific property or status or other proceedings in rem.

(1) If the person to be served is without the state of Colorado, the party desiring service by mail shall file a motion verified by the oath of such party or of someone in his behalf for an order for service by mail. Such motion shall state the facts showing why such method of service is advisable, and the address of the person to be served. The court may, after hearing the motion ex parte, direct the clerk to send by registered or certified mail a copy of the process and a copy of the complaint, addressed to such person at such address, requesting a return receipt signed by addressee only. Such service shall be complete on the date of the filing of the clerk’s proof thereof, together with such return receipt attached thereto signed by such addressee.

(2) Service by publication may be had on the following parties:

(A) Unknown persons;

(B) Domestic corporations. When such corporation cannot be served because no person can be found upon whom such service can be made;

(C) Foreign corporations. When such corporation has not appointed a registered agent, or when the registered agent appointed cannot be found at the registered office;

(D) Nonresidents of the state; persons who have departed from the state without intention of returning; persons who conceal themselves to avoid service of process; or persons whose whereabouts are unknown and who cannot be served by personal service in the state.

(h) Publication. The party desiring service of process by publication shall file a motion verified by the oath of such party or of someone in his THE PARTY’S behalf for an order of SERVICE BY MAIL OR publication. It shall state the facts authorizing such service, and shall show the efforts, if any, that have been made to obtain personal service within this state and shall give the address, or last known address, of each person to be served or shall state that his THE address and last known address are unknown. The court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service within this state or that efforts to obtain the same would have been to no avail, shall: order publication of the process in a newspaper published in the county in which the action is pending. Such publication shall be made for four weeks. Within fifteen days after the order the clerk shall mail a copy of the process to each person whose address or last known address has been stated in the motion. Service shall be complete on the day of the last publication. If no newspaper is published in the county, the court shall designate one in some adjoining county.

(1) ORDER THE CLERK TO SEND BY REGISTERED OR CERTIFIED MAIL A COPY OF THE PROCESS ADDRESSED TO SUCH PERSON AT SUCH ADDRESS, REQUESTING A RETURN RECEIPT SIGNED BY THE ADDRESSEE ONLY. SUCH SERVICE SHALL BE COMPLETE ON THE DATE OF THE FILING OF THE CLERK’S PROOF THEREOF, TOGETHER WITH SUCH RETURN RECEIPT ATTACHED THERETO SIGNED BY SUCH ADDRESSEE, OR

(2) ORDER PUBLICATION OF THE PROCESS IN A NEWSPAPER PUBLISHED IN THE COUNTY IN WHICH THE ACTION IS PENDING. SUCH PUBLICATION SHALL BE MADE FOR FOUR WEEKS. WITHIN FIFTEEN DAYS AFTER THE ORDER THE CLERK SHALL MAIL A COPY OF THE PROCESS TO EACH PERSON WHOSE ADDRESS OR LAST KNOWN ADDRESS HAS BEEN STATED IN THE MOTION. SERVICE SHALL BE COMPLETE ON THE DAY OF THE LAST PUBLICATION. IF NO NEWSPAPER IS PUBLISHED IN THE COUNTY, THE COURT SHALL DESIGNATE ONE IN SOME ADJOINING COUNTY.

(h) WAIVER OF SERVICE OF SUMMONS; DUTY TO SAVE COSTS OF SERVICE; REQUEST TO WAIVE.

(1) A DEFENDANT WHO WAIVES SERVICE OF A SUMMONS DOES NOT THEREBY WAIVE ANY OBJECTION TO THE VENUE OR TO THE JURISDICTION OF THE COURT OVER THE PERSON OF THE DEFENDANT.

(2) A PERSON OR ENTITY THAT IS SUBJECT TO SERVICE UNDER THIS RULE AND THAT RECEIVES NOTICE OF AN ACTION IN THE MANNER PROVIDED IN THIS PARAGRAPH HAS A DUTY TO AVOID UNNECESSARY COSTS OF SERVING THE SUMMONS. TO AVOID COSTS, THE PLAINTIFF MAY NOTIFY SUCH A DEFENDANT OF THE COMMENCEMENT OF THE ACTION AND REQUEST THAT THE DEFENDANT WAIVE SERVICE OF THE SUMMONS. THE NOTICE AND WAIVER:

(A) SHALL BE IN THE FORM AND CONTENT OF APPENDIX TO CHAPTER 25, FORM 1.2, C.R.C.P., AND SHALL BE ADDRESSED DIRECTLY TO THE DEFENDANT, IF AN INDIVIDUAL, OR ELSE TO AN OFFICER, PARTNER, OR MANAGING OR GENERAL AGENT (OR OTHER AGENT AUTHORIZED BY APPOINTMENT OR LAW TO RECEIVE SERVICE OF PROCESS) OF ANY OTHER DEFENDANT SUBJECT TO SERVICE UNDER THIS RULE;

(B) SHALL BE DISPATCHED THROUGH FIRST-CLASS MAIL OR OTHER RELIABLE MEANS;

(C) SHALL BE ACCOMPANIED BY A COPY OF THE COMPLAINT;

(D) SHALL PROVIDE THE DEFENDANT WITH AN EXTRA COPY OF THE NOTICE AND WAIVER, AS WELL AS A RETURN ENVELOPE, POSTAGE PREPAID;

IF A DEFENDANT FAILS TO COMPLY WITH A REQUEST TO WAIVE MADE BY A PLAINTIFF, THE COURT SHALL IMPOSE THE COSTS SUBSEQUENTLY INCURRED IN EFFECTING SERVICE ON THE DEFENDANT UNLESS GOOD CAUSE FOR THE FAILURE IS SHOWN.

(3) A DEFENDANT THAT, BEFORE BEING SERVED WITH THE SUMMONS, TIMELY RETURNS THE NOTICE AND WAIVER SO REQUESTED SHALL HAVE 30 DAYS AFTER THE NOTICE IS SENT TO SERVE AN ANSWER OR OTHER RESPONSE TO THE COMPLAINT, OR 45 DAYS AFTER THAT DATE IF THE NOTICE AND WAIVER FORM WAS ADDRESSED TO A LOCATION OUTSIDE THE STATE OF COLORADO.

(4) SERVICE SHALL BE DEEMED TO OCCUR UPON RECEIPT BY THE PLAINTIFF OF THE WAIVER FOR THE PURPOSES OF C.R.C.P. 3. THE FILING OF THE SIGNED WAIVER SHALL ESTABLISH VALID SERVICE FOR PURPOSES OF C.R.C.P. 55 AND 121, SECTION 1-14 (1)(a).

(5) THE COSTS TO BE IMPOSED ON A DEFENDANT UNDER PARAGRAPH (2) FOR FAILURE TO COMPLY WITH A REQUEST TO WAIVE SERVICE OF A SUMMONS SHALL INCLUDE THE COSTS SUBSEQUENTLY INCURRED IN EFFECTING SERVICE UNDER THIS RULE, TOGETHER WITH THE COSTS, INCLUDING REASONABLE ATTORNEY FEES, OF ANY MOTION REQUIRED TO OBTAIN AN ORDER ASSESSING THE COSTS OF SERVICE.

(i) Manner of Proof.

(1) If served in a state or territory of the United States by a sheriff OR UNITED STATES MARSHAL, or his A deputy, by his SUCH PERSON’S certificate with a statement as to date, place, and manner of service;

(2) If by any other person, by his THE PERSON’S affidavit thereof, with the same statement;

(3) If by mail, by the certificate of the clerk showing the date of the mailing, and the date he THE CLERK received the return receipt;

(4) If by publication, by the affidavit of publication, together with the certificate of the clerk as to the mailing of copy of the process where required;

(5) By the written admission or waiver of service by the person or persons to be served, duly acknowledged, OR AS PROVIDED IN SUBSECTION (h)(4) OF THIS RULE.

(j) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process is issued.

(k) Refusal of Copy. If the A person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the same shall state the name of the process and offer to deliver a copy thereof PROCESS KNOWS OR HAS REASON TO IDENTIFY THE PERSON WHO REFUSES TO BE SERVED, IDENTIFIES THE DOCUMENTS BEING SERVED AND OFFERS TO DELIVER A COPY OF THE DOCUMENTS TO THE PERSON WHO REFUSES TO BE SERVED.

Proposed New Form

FORM 1.2

DISTRICT COURT, __________________ COUNTY, COLORADO

CASE NO. _______________

NOTICE OF LAWSUIT AND WAIVER OF SERVICE OF PROCESS

______________________________:

Plaintiff(s)

vs.

______________________________:

Defendant(s)

NOTICE

TO: (name of individual defendant or agent for service) [as (title or relationship) of __________________(name of entity)]

(continued next page)

WARNING: IF YOU FAIL TO SIGN AND RETURN THIS FORM TO THE PLAINTIFF OR PLAINTIFF’S ATTORNEY WITHIN 15 DAYS OF THE DATE SHOWN BELOW AS THE DATE ON WHICH THIS NOTICE WAS SENT, WITHOUT GOOD CAUSE, YOU (OR THE ENTITY ON WHOSE BEHALF YOU ARE RECEIVING THIS NOTICE) MAY BE REQUIRED TO PAY THE COST OF SERVICE OF A SUMMONS AND COMPLAINT ON YOU. IF YOU WAIVE SERVICE OF A SUMMONS AND COMPLAINT, YOU MUST STILL FILE A WRITTEN ANSWER OR OTHER RESPONSE TO THE COMPLAINT ATTACHED HERETO WITHIN THE TIME FRAME STATED BELOW. IF YOU FAIL TO DO SO, A JUDGMENT BY DEFAULT MAY BE ENTERED AGAINST YOU (OR THE ENTITY ON WHOSE BEHALF YOU ARE RECEIVING THIS NOTICE) BY THE COURT FOR THE RELIEF DEMANDED IN THE COMPLAINT WITHOUT FURTHER NOTICE.

A lawsuit has been or will be commenced against you (or the entity on whose behalf you are named above). A copy of the complaint is attached to this notice. It has been or will be filed in the ____________ County District Court, State of Colorado.

This is not a formal summons or notification from the court, but rather a request that you or your attorney sign and return this form to me in order to save the costs of serving you with a judicial summons and an additional copy of the complaint. The costs of service will be avoided if I receive the signed copy within fifteen (15) days after the date stated below as the date on which this Notice and Waiver was sent. I have enclosed a stamped, return envelope for your use. An extra copy of this Notice and Waiver is also attached for your records.

If you or your attorney sign and return this form, it will be filed with the court and no summons will be served on you. The action will then proceed as if you had been served with a summons and complaint, except that the time allowed to answer or otherwise respond to the complaint will be 30 days from the date stated below as the date on which this notice was sent (or 45 days from that date if this notice was addressed to you outside the State of Colorado).

If you or your attorney do not sign and return this form within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Colorado Rules of Civil Procedure and will then, to the extent authorized by those Rules, ask the court to require you (or the entity on whose behalf you are named) to pay the full costs of such service, including attorney fees incurred in seeking such relief from the court.

I affirm that this Notice and Waiver was sent to you on behalf of the plaintiff this ____ day of _______________, _____.

________________________________

Plaintiff’s or Attorney’s Signature

(print name, address and telephone)

 

WAIVER OF SERVICE

I acknowledge receipt of your notice that I am authorized to and do hereby waive service of a summons in the above action. I have also received a copy of the complaint in the action, two copies of this Notice and Waiver, and a stamped, return envelope so that I can return this signed waiver without cost to me.

I agree to save the costs of service of summons and an additional copy of the complaint in this lawsuit by not requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by C.R.C.P. 4.

I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court except for objections based upon a defect in the service of the complaint.

I UNDERSTAND THAT A JUDGMENT MAY BE ENTERED AGAINST ME (OR THE ENTITY ON WHOSE BEHALF I AM ACTING) IF AN ANSWER OR OTHER RESPONSE TO THE COMPLAINT IS NOT FILED WITHIN 30 DAYS OF THE DATE SHOWN ABOVE AS THE DATE ON WHICH THE NOTICE AND WAIVER WAS SENT (OR BEFORE 45 DAYS FROM THAT DATE IF THE NOTICE AND WAIVER WAS ADDRESSED TO ME OUTSIDE THE STATE OF COLORADO).

________________

DATE Defendant’s,

_________________________________________

Agent’s or Attorney’s Signature
(print name, address and telephone)

COMMITTEE COMMENT

The Civil Rules Committee recommends amendments to C.R.C.P. 4 as set forth in the attached proposal.
The amendments to C.R.C.P. 4(c), (d), (e) and (g) would modernize the language and simplify the procedure for service of process similar to reforms made in the 1994 changes to the County Court Rules.
The addition of a new C.R.C.P. 4(h) would add a “waiver of service” procedure very similar to that contained in the Federal Rules [F.R.C.P. 4(d)]. The Federal Waiver of Service Rule works well. Because use of the procedure is voluntary, it has not been controversial. As with the Federal counterpart, there is a mandatory form that would be placed in the Forms Section to the rules to inform the recipient of the request for waiver, the operation of the rule and the means of responding to the request. The proposed new Form 1.2 is attached.
The Civil Rules Committee does not believe that the proposed amendments and new form are particularly controversial. The Committee therefore believes that no advance publication, public hearing or invitation to public comment are necessary. In the Committee’s view, if adopted, the proposed amendments and new form could become effective immediately.
__________

Colorado Rules of County Court Civil Procedure
Rule 301. Scope of Rules: How Known and Cited
Amended
Rule. 385. Title
Repealed

Rule 301. Scope of Rules: How Known and Cited, is amended as follows:
(a) [No change]
(b) Effective Date. These rules shall take effect on April 1, 1970, and thereafter all procedural laws and rules in conflict therewith shall be of no further force or effect.
(b) HOW KNOWN AND CITED. THESE RULES SHALL BE KNOWN AND CITED AS THE COLORADO RULES OF CIVIL PROCEDURE, OR C.R.C.P.
Amended and Adopted by the Court, En Banc, December 5, 1996, effective January 1, 1997.

Rule 385. Title, was repealed by the Court, En Banc, December 5, 1996, effective January 1, 1997.

Appendix to Chapter 25
Form 3. Answer Under Simplified Civil Procedure
Revised

Form 3. Answer Under Simplified Civil Procedure is revised as follows:
The Defendant(s) __________, answer(s) the complaint as follows:
1. The amount of damages claimed to be due to the Plaintiff(s) by the complaint in this action is not due and owing for the following reasons: . . . OR THE PLAINTIFF(S) IS/ARE NOT ENTITLED TO POSSESION OF the personal property claimed by the Plaintiff(s) should not be ordered to be turned over AND THE DEFENDANT(S) IS/ARE ENTITLED TO RETAIN POSSESSION  for the following reasons: . . . [No change to remainder of form]
Revised by the Court, En Banc, December 5, 1996, effective January 1, 1997.

Colorado Rules of Civil Procedure
C.R.C.P. 1. Scope of Rules
Amended
C.R.C.P. 85. Title
Repealed

Rule 1. Scope of Rules: How Known and Cited is amended as follows:
(a)-(b) [No change]
(c) HOW KNOWN AND CITED. THESE RULES SHALL BE KNOWN AND CITED AS THE COLORADO RULES OF CIVIL PROCEDURE, OR C.R.C.P.
Amended and Adopted by the Court, En Banc, December 5, 1996, effective January 1, 1997.

Rule 85. Title, was repealed by the Court, En Banc, December 5, 1996, effective January 1, 1997.

Colorado 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) and (2) [No change]
(3) Conduct investigations and report to the Committee as provided by C.R.C.P. 241.10 241.9(b); OR DISMISS THE ALLEGATIONS AS PROVIDED IN C.R.C.P. 241.10.5;
(4) through (11) [No change]
(d) Disqualification. [No change]
Amended and Adopted by the Court, En Banc, January 9, 1997, effective immediately.

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, a determination is made to proceed, the lawyer in question shall be given written notice by the Disciplinary Counsel of the fact that he THE LAWYER is under investigation by the Committee and of the general nature of the allegations made against him THE LAWYER. The lawyer in question shall file with the Disciplinary Counsel a written response to the allegations made against him THE LAWYER within twenty days after notice of the investigation is given.

Upon receipt of the lawyers response, or at the expiration of the twenty-day period if no response is received, the matter shall be referred ASSIGNED to an inquiry panel INVESTIGATOR for investigation and report.

(b) Procedures for Investigation.

(1) The Investigator. [No change]

(2) Procurement of Evidence During Investigation. [No change]

(3) Investigators Report. The Investigator shall submit to the inquiry panel or a three-person subcommittee thereof as provided in C.R.C.P. 241.11(b) a written report of investigation and recommendation TO:

(i) THE DISCIPLINARY COUNSEL AS PROVIDED IN C.R.C.P. 241.10.5;

(ii) AN INQUIRY PANEL AS PROVIDED IN C.R.C.P. 241.11(a); OR

(iii) A SUBCOMMITTEE OF AN INQUIRY PANEL AS PROVIDED IN C.R.C.P. 241.11(b).

(4) Conditional Admission. [No change]

Amended and Adopted by the Court, En Banc, January 9, 1997, effectively immediately.

C.R.C.P. 241.10.5. Determination by the Disciplinary Counsel is adopted as follows:
IF, AT THE CONCLUSION OF AN INVESTIGATION, THE INVESTIGATOR BELIEVES THAT THE ALLEGATIONS SHOULD BE DISMISSED AS BEING WITHOUT MERIT OR FOR FAILING TO ESTABLISH REASONABLE CAUSE TO BELIEVE GROUNDS FOR DISCIPLINE EXIST, THE INVESTIGATOR SHALL SUBMIT A REPORT TO THE DISCIPLINARY COUNSEL WHO SHALL EITHER DISMISS THE ALLEGATIONS OR SUBMIT THE REPORT TO AN INQUIRY PANEL OR TO A SUBCOMMITTEE THEREOF FOR A DETERMINATION AS PROVIDED IN C.R.C.P. 241.11. IF THE DISCIPLINARY COUNSEL DISMISSES THE ALLEGATIONS AS PROVIDED HEREIN, THE PERSON MAKING THE ALLEGATIONS AGAINST THE LAWYER IN QUESTION MAY REQUEST REVIEW OF THE DISCIPLINARY COUNSEL’S DECISION. IF REVIEW IS REQUESTED, THE VICE-CHAIR OF AN INQUIRY PANEL SHALL REVIEW THE REPORT AND MAY APPROVE OR DISAPPROVE THE DISMISSAL. IF THE DISMISSAL IS APPROVED, THEN THE COMPLAINANT MAY FILE A COMPLAINT IN THE COMPLAINANT’S OWN NAME AS PROVIDED IN C.R.C.P. 241.11. IF THE DISMISSAL IS DISAPPROVED, THE VICE-CHAIR SHALL DIRECT THE DISCIPLINARY COUNSEL TO SUBMIT THE REPORT TO AN INQUIRY PANEL OR TO A SUBCOMMITTEE THEREOF FOR A DETERMINATION AS PROVIDED IN C.R.C.P. 241.11.
Adopted by the Court, En Banc, January 9, 1997, effective immediately.

 

C.R.C.P. 241.11. Proceedings Before the Inquiry Panel is amended as follows:
(a) Determination by an Inquiry Panel. IF, Aat the conclusion of an investigation, THE INVESTIGATOR OR THE DISCIPLINARY COUNSEL BELIEVES THAT THE INQUIRY PANEL SHOULD ISSUE A CAUTIONARY LETTER TO THE LAWYER, ORDER ADMONITION IMPOSED, OR AUTHORIZE THE DISCIPLINARY COUNSEL TO PREPARE AND FILE A COMPLAINT, the Investigator shall submit the investigator’s report to an inquiry panel, which shall determine if there is reasonable cause to believe grounds for discipline exist and shall either:
(1) through (7) [No change]
(b) Determination by a Subcommittee of an Inquiry Panel. Notwithstanding the foregoing, if, at the conclusion of an investigation, the Investigator OR THE DISCIPLINARY COUNSEL believes that the inquiry panel should dismiss the allegations as being without merit or for failure to establish reasonable cause to believe grounds for discipline exist, ISSUE A CAUTIONARY LETTER TO THE LAWYER or believes that the inquiry panel should authorize the Disciplinary Counsel to prepare and file a complaint against the lawyer, the Investigator OR THE DISCIPLINARY COUNSEL may submit the Investigator’s report to a three-person subcommittee of an inquiry panel which shall determine if there is reasonable cause to believe grounds for discipline exist and take action as provided in C.R.C.P. 241.11(a)(1), C.R.C.P. 241.11(a)(2), C.R.C.P. 241.11(a)(3), C.R.C.P. 241.11(a)(4), and C.R.C.P. 241.11(a)(6), or direct the investigator to submit the matter to a full inquiry panel for determination as provided in subsection (a) of this rule. The members of the subcommittee shall be designated from time to time by the Vice-Chairman of the inquiry panel. Three members of the subcommittee shall constitute a quorum. The subcommittee shall act only with the concurrence of at least two. Nothing in subsection (b) of this Rule shall preclude the Investigator or the person making the allegations against the lawyer in question from requesting that a full inquiry panel consider the matter as provided in subsection (a) of this Rule.
(c) Disposition. [No change]
(d) Effect of Cautionary Letter. [No change]
Amended and Adopted by the Court, En Banc, January 9, 1997, effective immediately.

 

C.R.C.P. 241.22. Readmission and Reinstatement After Discipline is amended as follows:

(a) through (c) [No change]

(d) Reinstatement Proceedings. Immediately upon receipt of a petition for reinstatement the Committee Counsel shall refer the matter to the Disciplinary Counsel for any investigation he THE DISCIPLINARY COUNSEL deems necessary. The petitioner shall cooperate in any such investigation.

Promptly after the matter is referred to him THE DISCIPLINARY COUNSEL, the Disciplinary Counsel shall submit an answer to the petition. Thereafter, the petition for reinstatement shall be reviewed in procedures identical to those outlined by these Rules governing hearings of complaints, except that the hearing boards report of findings of fact and recommendation shall be submitted to the entire Committee HEARING PANEL THAT ORIGINALLY RECOMMENDED THAT THE PETITIONER BE DISCIPLINED OR TRANSFERRED TO DISABILITY INACTIVE STATUS for its approval or modification.

The Disciplinary Counsel may present evidence bearing upon the matters in issue, and the petitioner seeking reinstatement shall bear the burden of proving by clear and convincing evidence the averments of his IN THE petition.

(e) through (i) [No change]

Amended and Adopted by the Court, En Banc, January 9, 1997, effective immediately.

Colorado Rules of Probate Procedure
Rule 1. Scope of Rules
Amended
Rule 36. Title
Repealed
Rule 34. Delegation of Powers to
Clerk and Deputy Clerk
Amended and Adopted

C.R.P.P. 1. Scope of Rules: HOW KNOWN AND CITED
(a) PROCEDURE GOVERNED. These rules shall govern the procedure in probate court for the city and county of Denver and district courts when sitting in probate. In case of conflict between these rules and the Colorado Rules of Civil Procedure set forth in Chapter 1, or between these rules and any local rules of probate procedure, these rules shall control.
(b) HOW KNOWN AND CITED. THESE RULES SHALL BE KNOWN AND CITED AS THE COLORADO RULES OF PROBATE PROCEDURE, OR C.R.P.P.
Amended and Adopted by the Court, En Banc, December 5, 1996, effective January 1, 1997.

C.R.P.P. 36. Title and Citation is repealed by the Court, En Banc, December 5, 1996, effective January 1, 1997.

C.R.P.P. 34. Delegation of Powers to Clerk and Deputy Clerk is amended as follows:
(a) through (b) [No change]
(c) Any person in interest affected by an order entered or action taken under the authority of this rule may have the matter heard by the judge by filing a motion for such hearing within ten FIFTEEN days after the entering of the order or the taking of the action. Upon the filing of such motion, the order or action in question shall be vacated and the motion placed on the calendar of the court for as early a hearing as possible, and the matter shall then be heard by the judge. The judge may, within the same ten-day FIFTEEN-DAY period referred to above, vacate the order or action on his THE COURT’S own motion. If a motion for hearing by the judge is not filed within the ten-day FIFTEEN-DAY period, or the order or action is not vacated by the judge on his THE COURT’S own motion within such period, the order or action of the clerk or deputy clerk shall be  final as of its date subject to normal rights of appeal. The acts, records, orders, and judgments of the clerk or deputy clerk not vacated pursuant to the foregoing provision shall have the same force, validity, and effect as if made by the judge.
Amended and Adopted by the Court, En Banc, December 5, 1996, effective January 1, 1997.

Colorado Rules for Magistrates
Rule 9. Denver Probate Court Magistrates
Amended and Adopted


Rule 9. Denver Probate Court Magistrates is amended as follows:
The appointment and conduct of a magistrate in the Denver Probate Court shall be governed by Rule 5 6 of these Rules for Magistrates, the Colorado Rules of Probate Procedure, and any additional rules for probate court magistrates adopted in writing by the presiding judge of that court or established by the provisions of Title 13, Article 5, C.R.S., or Title 15, C.R.S.
By the Court, En Banc, December 5, 1996, effective January 1, 1997.

Colorado Rules of Criminal Procedure
Crim.P. 6.6. Indictment—Presentation
Crim.P. 43. Presence of the Defendant
Crim.P. 44. Assignment of Counsel
Amended and Adopted

Crim.P. 6.6. Indictment—Presentation—SEALING is amended:
(a) Presentation of an indictment in open court by a grand jury may be accomplished by the foreman of the grand jury, the full grand jury, or by the prosecutor acting under instructions of the grand jury.
(b) UPON MOTION BY THE PROSECUTOR, THE COURT SHALL ORDER THE INDICTMENT TO BE SEALED AND NO PERSON MAY DISCLOSE THE EXISTENCE OF THE INDICTMENT UNTIL THE DEFENDANT IS IN CUSTODY OR HAS BEEN ADMITTED TO BAIL, EXCEPT WHEN NECESSARY FOR THE ISSUANCE OF A WARRANT OR SUMMONS.
Amended and Adopted by the Court, En Banc, December 19, 1996, effective March 1, 1997.

Crim.P. 43. Presence of the Defendant is amended as follows:
(a) through (d) [No change]
(e) PRESENCE OF THE DEFENDANT BY INTERACTIVE AUDIOVISUAL DEVICE.
(1) DEFINITIONS. AS USED IN THIS RULE 43:
(I) “INTERACTIVE AUDIOVISUAL DEVICE” MEANS A TELEVISION AUDIOVISUAL SYSTEM CAPABLE OF TWO-WAY TRANSMISSION AND OF SUFFICIENT AUDIO AND VISUAL QUALITY THAT PERSONS USING THE SYSTEM CAN VIEW AND CONVERSE WITH EACH OTHER WITH A MINIMUM OF DISRUPTION.
(2) A DEFENDANT MAY BE PRESENT WITHIN THE MEANING OF THIS RULE 43 BY THE USE OF AN INTERACTIVE AUDIOVISUAL DEVICE, IN LIEU OF THE DEFENDANT’S PHYSICAL PRESENCE, FOR THE FOLLOWING HEARINGS:
(I) FIRST APPEARANCES PURSUANT TO CRIM.P. 5, FOR THE PURPOSE OF ADVISEMENT AND SETTING OF BAIL;
(II) FURTHER APPEARANCES FOR THE FILING OF CHARGES OR FOR SETTING THE PRELIMINARY HEARING;
(III) HEARINGS TO MODIFY BAIL.
(3) MINIMUM STANDARDS. EVERY USE OF AN INTERACTIVE AUDIOVISUAL DEVICE MUST COMPLY WITH THE FOLLOWING MINIMUM STANDARDS IN ADDITION TO THOSE SET FORTH IN CRIM.P. 43(e)(1):
(I) IF DEFENSE COUNSEL APPEARS, SUCH APPEARANCE SHALL BE AT THE SAME PHYSICAL LOCATION AS THE DEFENDANT.
(II) NO DEFENDANT SHALL BE COMPELLED TO APPEAR BY INTERACTIVE VIDEO DEVICE AT A HEARING PURSUANT TO SUBSECTION (e)(2)(III) OF THIS RULE.
(III) INSTALLATION OF THE INTERACTIVE AUDIOVISUAL DEVICE IN THE COURTROOM SHALL BE DONE IN SUCH A MANNER THAT MEMBERS OF THE PUBLIC ARE REASONABLY ABLE TO OBSERVE, AND, WHERE APPROPRIATE, PARTICIPATE IN THE HEARING.
(4) NOTHING IN THIS RULE SHALL REQUIRE A COURT TO USE AN INTERACTIVE AUDIOVISUAL DEVICE.
(5) IN THE EVENT OF INCLEMENT WEATHER OR OTHER EXCEPTIONAL CIRCUMSTANCES, WHICH WOULD OTHERWISE PREVENT A HEARING FROM OCCURRING UNDER CRIM.P. 5, THE COURT MAY CONDUCT THE HEARING BY USE OF AN INTERACTIVE AUDIOVISUAL PROCEDURE WHICH DOES NOT COMPLY WITH THE MINIMUM STANDARDS SET FORTH IN SUBSECTION (3).
Amended and Adopted by the Court, En Banc, December 19, 1996, effective March 1, 1997.

Rule 44. Assignment APPEARANCE of Counsel is amended:
(a) APPOINTMENT OF COUNSEL. [New subheading only] [No other change]
(b) MULTIPLE REPRESENTATION BY COUNSEL [New subheading only] [No other change]
(c) REQUEST FOR WITHDRAWAL OF A LAWYER DURING PROCEEDINGS. EXCEPT AS PROVIDED IN SECTION (e), WITHDRAWAL OF A LAWYER IN A CRIMINAL CASE IS A MATTER WITHIN THE SOUND DISCRETION OF THE COURT. IN EXERCISING SUCH DISCRETION, THE COURT SHALL BALANCE THE NEED FOR ORDERLY ADMINISTRATION OF JUSTICE WITH THE FACTS UNDERLYING THE REQUEST.
(d) PROCEDURE FOR WITHDRAWAL DURING PROCEEDINGS.
(1) A LAWYER MAY WITHDRAW FROM A CASE ONLY UPON ORDER OF THE COURT. IN THE DISCRETION OF THE COURT, A HEARING ON A MOTION TO WITHDRAW MAY BE WAIVED WITH THE CONSENT OF THE PROSECUTION AND IF A WRITTEN SUBSTITUTION OF COUNSEL IS FILED WHICH IS SIGNED BY CURRENT COUNSEL, FUTURE COUNSEL AND THE DEFENDANT. A REQUEST TO WITHDRAW SHALL BE IN WRITING OR MAY BE MADE ORALLY IN THE DISCRETION OF THE COURT AND SHALL STATE THE GROUNDS FOR THE REQUEST. A REQUEST TO WITHDRAW SHALL BE MADE AS SOON AS PRACTICABLE UPON THE LAWYER BECOMING AWARE OF THE GROUNDS FOR WITHDRAWAL. ADVANCE NOTICE OF A REQUEST TO WITHDRAW SHALL BE GIVEN TO THE DEFENDANT BEFORE ANY HEARING, IF PRACATICABLE. SUCH NOTICE TO WITHDRAW SHALL INCLUDE:
(I) THAT THE ATTORNEY WISHES TO WITHDRAW;
(II) THE GROUNDS FOR WITHDRAWAL;
(III) THAT THE DEFENDANT HAS THE RIGHT TO OBJECT TO WITHDRAWAL;
(IV) THAT A HEARING WILL BE HELD AND WITHDRAWAL WILL ONLY BE ALLOWED IF THE COURT APPROVES;
(V) THAT THE DEFENDANT HAS THE OBLIGATION TO APPEAR AT ALL PREVIOUSLY SCHEDULED COURT DATES;
(VI) THAT IF THE REQUEST TO WITHDRAW IS GRANTED, THEN THE DEFENDANT WILL HAVE THE OBLIGATION TO HIRE OTHER COUNSEL, REQUEST THE APPOINTMENT OF COUNSEL BY THE COURT OR ELECT TO REPRESENT HIMSELF OR HERSELF.
(2) UPON SETTING OF A HEARING ON A MOTION TO WITHDRAW, THE LAWYER SHALL MAKE REASONABLE EFFORTS TO GIVE THE DEFENDANT ACTUAL NOTICE OF THE DATE, TIME AND PLACE OF THE HEARING. NO HEARING SHALL BE CONDUCTED WITHOUT THE PRESENCE OF THE DEFENDANT UNLESS THE MOTION IS MADE SUBSEQUENT TO THE FAILURE OF THE DEFENDANT TO APPEAR IN COURT AS SCHEDULED. A HEARING NEED NOT BE HELD AND NOTICE NEED NOT BE GIVEN TO A DEFENDANT WHEN A MOTION TO WITHDRAW IS FILED AFTER A DEFENDANT HAS FAILED TO APPEAR FOR A SCHEDULED COURT APPEARANCE AND HAS NOT REAPPEARED WITHIN SIX MONTHS.
(E) TERMINATION OF REPRESENTATION.
(1) UNLESS OTHERWISE DIRECTED BY THE TRIAL COURT OR EXTENDED BY AN AGREEMENT BETWEEN COUNSEL AND A DEFENDANT, COUNSEL’S REPRESENTATION OF A DEFENDANT, WHETHER RETAINED OR APPOINTED, SHALL TERMINATE AT THE CONCLUSION OF TRIAL COURT PROCEEDINGS. TRIAL COURT PROCEEDINGS SHALL CONCLUDE AT THE POINT IN TIME:
(I) WHEN DISMISSAL IS GRANTED BY THE COURT AND NO TIMELY APPEAL HAS BEEN FILED;
(II) WHEN AN ORDER ENTERS GRANTING A DEFERRED PROSECUTION, DEFERRED SENTENCE, OR PROBATION;
(III) AFTER A SENTENCE TO INCARCERATION IS IMPOSED UPON CONVICTION WHEN NO MOTION HAS BEEN TIMELY FILED PURSUANT TO CRIM.P. 35(b) OR SUCH MOTION SO FILED IS RULED ON; OR
(IV) WHEN A NOTICE OF APPEAL IS FILED BY THE DEFENDANT.
(2) AT THE TIME A DEFERRED PROSECUTION OR DEFERRED SENTENCE IS GRANTED OR AT THE TIME SENTENCE IS IMPOSED UPON CONVICTION, THE COURT SHALL INFORM THE DEFENDANT WHEN REPRESENTATION SHALL TERMINATE.
Amended and Adopted by the Court, En Banc, December 19, 1996, effective March 1, 1997.

By the Court:

Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court
Howard M. Kirshbaum
Justice, Colorado Supreme Court


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