Vol. 32, No. 2
Colorado Adopts Rules Governing Out-of-State Attorneys
by Robert R. Keatinge, Douglas Foote, Cynthia Covell
Robert Keatinge is Of Counsel with Holland & Hart, LLP, in Denver and co-chair of the Multijurisdictional Practice Committee of the CBA/DBA MDP Task Force. Keatinge also is a former member of the ABA House of Delegates, former Chair of the Editorial Board of the ABA/BNA Lawyer’s Manual on Professional Conduct, and a member of the CBA Ethics Committee. Douglas Foote is a solo practitioner in Lafayette, co-chair of the joint CBA/DBA MDP Task Force, and a member and former chair of the CBA Ethics Committee. Cynthia Covell is a member of the Denver firm of Alperstein & Covell, P.C., chair of the Ad Hoc Committee of Multijurisdictional Practice, and a member and former chair of the CBA Ethics Committee.
On December 4, 2002, the Colorado Supreme Court issued Rule Change #2002(13) ("Rule Change"),1 dealing with the practice of law in Colorado by attorneys who are not licensed in Colorado. It provides rules for practice in Colorado by such attorneys in three different areas: temporary practice other than before a Colorado court or governmental agency; special admission before a Colorado court or governmental agency; and practice by an attorney licensed in another state who has become domiciled in Colorado and who provides legal services in Colorado for a single Colorado client (the typical in-house-counsel scenario).
The Supreme Court’s action represents the culmination of its study of practice by out-of-state attorneys that began with the study of the issue by three committees of lawyers2 and the issuance by the Supreme Court of a proposed rule change (the "Proposal") based on that study.3 The Rule Change modifies the Proposal and moves the rules from Chapter 19 of the Colorado Rules of Civil Procedure ("C.R.C.P.") (dealing with unauthorized practice of law) to Chapter 18 (dealing with admission to the bar). However, it generally carries forward the concepts embodied in the Proposal; that is, that an out-of-state attorney who has not established a domicile in Colorado or a regular place of business in Colorado from which the attorney holds himself or herself out as representing Colorado clients may practice law in Colorado and will be subject to the Colorado Rules of Professional Conduct ("Colorado Rules" or "Colo.RPC"). The Rule Change makes several revisions to the language of the Proposal with respect to out-of-state attorneys, but follows the Proposal’s basic approach. In addition, the Rule Change adds rules governing in-house counsel and pro hac vice practice.
The Rule Change will have a significant impact on in-house counsel and attorneys appearing pro hac vice beginning on January 1, 2003. It also will enable clients to have more flexibility in their choice of counsel, and will protect Colorado licensed lawyers from inadvertently assisting out-of-state attorneys in the unauthorized practice of law.
C.R.C.P. 220: Temporary Practice
By Out-of-State Lawyers
The Rule Change adds a new C.R.C.P. 220, which provides that an "out-of-state attorney" may practice law in Colorado provided, in the case of an out-of-state attorney appearing before a Colorado court or state agency, that the attorney complies with the pro hac vice rules of C.R.C.P. 221 and 221.1, described below. The Rule Change defines an "out-of-state attorney" as one who:
1) is licensed to practice law and is on active status in another jurisdiction in the United States;
2) is a member in good standing of the bar of all courts and jurisdictions in which he or she is admitted to practice;
3) has not established domicile in Colorado; and
4) has not established a place for the regular practice of law in Colorado from which he or she holds himself or herself out to the public as practicing Colorado law or solicits or accepts Colorado clients.4
Thus, to qualify for the protection of C.R.C.P. 220, an attorney must be on active status in at least one other state and must be eligible to be active in all other states in which the attorney is licensed. An attorney who is disbarred or under suspension in any state would not qualify as an out-of-state attorney. However, an attorney who is on inactive status in one or more states but in active status in at least one state should be an out-of-state attorney entitled to the benefits of C.R.C.P. 220, so long as that attorney continues in active status in at least one other state and is not subject to disbarment or suspension in any state. Under C.R.C.P. 220, most attorneys in good standing in other states will be permitted to provide transactional counseling or other out-of-court legal services in Colorado without fear of violating the proscription on unauthorized practice of law. (C.R.C.P. 221 and 221.1 dealing with out-of-state attorneys appearing pro hac vice, discussed below, address court appearances by out-of-state attorneys.)
It is of note that the definition of "out-of-state attorney" does not encompass attorneys licensed in foreign jurisdictions, leaving the question of the appropriate treatment of foreign lawyers and foreign legal consultants an open issue. When the American Bar Association took up the issue of foreign legal consultants, it urged the adoption of the proposed Model Rule for Temporary Practice by Foreign Lawyers, dated August 2002.5
C.R.C.P. 220 requires an out-of-state attorney practicing in Colorado to comply with the Colorado Rules and the rules applicable to attorney regulation in Colorado, including attorney discipline and disability proceedings in Colorado.6 This protects the Colorado public from misconduct by out-of-state lawyers because Colorado Regulation Counsel can now prosecute ethical violations here, rather than referring them to the out-of-state lawyer’s home jurisdiction or simply prosecuting them in Colorado for the unauthorized practice of law, approaches that have proved unsatisfactory in the past.
C.R.C.P. 221 expressly provides that out-of-state attorneys admitted pro hac vice are subject to the Colorado Rules of Civil Procedure, but specifically exempts them from the provisions of C.R.C.P. 227, regarding general registration fees, and C.R.C.P. 260, regarding continuing legal education ("CLE"). C.R.C.P. 220 does not expressly subject out-of-state attorneys to the Colorado Rules of Civil Procedure. Thus, the authors believe that out-of-state attorneys practicing under Rule 220 are likewise exempt from the requirements of C.R.C.P. 227 and 260.
C.R.C.P. 220, unlike the Proposal, addresses the issue of the entitlement of out-of-state attorneys to recover legal fees for services performed. CRS §§ 12-5-101, -112, and -115 prohibit a person who is not licensed to practice law in Colorado from recovering fees for legal services. The Supreme Court addressed this concern by providing that an out-of-state attorney practicing in compliance with the Rule Change will be treated as licensed for the purpose of the temporary practice described in the Rule Change and therefore will not be in violation of the above-cited statutes. In the same manner, as noted below, in-house counsel also is treated as licensed for purposes of these statutes.
In contrast to the Proposal, it appears that under C.R.C.P. 220, an attorney practicing in Colorado who is licensed in another state but who does not qualify under C.R.C.P. 220—either because the attorney does not comply with the pro hac vice rules or because the attorney otherwise does not qualify under C.R.C.P. 220—will not be subject to the Colorado Rules and may be prosecuted only for unauthorized practice of law.7 However, as part of the continuing process of evaluating the issues raised by multijurisdictional practice, the CBA Ethics Committee is evaluating a proposal to amend Colo.RPC 5.5 to make it a violation of that Rule for an out-of-state attorney to engage in the unauthorized practice of law in this state.
C.R.C.P. 221 and 221.1:
Pro Hac Vice Practice
The Rule Change provides extensive rules for out-of-state lawyers appearing before courts and state agencies on a pro hac vice basis. The Proposal contained no separate rules for pro hac vice practice on the assumption that such practice had not been considered the unauthorized practice of law under the existing rules and that the Proposal would subject such lawyers to regulation. The Rule Change replaces C.R.C.P. 221 (dealing with practice before courts) and 221.1 (dealing with practice before state agencies) in their entirety, in both cases imposing new requirements on attorneys practicing on a pro hac vice basis. Before the adoption of the Rule Change, C.R.C.P. 221 and 221.1 provided that an attorney could be admitted pro hac vice in the discretion of the court or state agency before which the attorney would be permitted to appear and, in the case of admission to court, the attorney was required to associate with an attorney licensed in Colorado at all stages of the proceeding.
Under the Rule Change, an out-of-state attorney appearing in a Colorado court or before a governmental agency in Colorado will be subject to both the expanded requirements of C.R.C.P. 221 and 221.1 and to C.R.C.P. 220 governing out-of-state attorneys practicing temporarily in Colorado. Under the revised C.R.C.P. 221, in addition to the designation of an associate attorney licensed to practice in Colorado and obtaining permission from the trial court, an out-of-state attorney who wishes to practice in a state court must file a verified motion with the trial court and file a copy with the Clerk of the Supreme Court, along with a payment of $250. (These fees must be used to fund the attorney regulation system).8 The verified motion must be filed for each matter in which the out-of-state attorney wishes to appear,9 although a new verified motion does not need to be filed on the appeal of a matter for which a verified motion has already been filed.10 As part of the verification process, the out-of-state attorney needs to confirm that his or her clients have been notified of the verified motion requesting permission to appear, presumably by giving the clients a copy of the motion.11 The verified motion requesting permission to appear must include:
1) A statement identifying all jurisdictions in which the out-of-state attorney has been licensed;
2) A statement identifying by date, case name, and case number all other matters in Colorado in which pro hac vice admission has been sought in the preceding five years, and whether such admission was granted or denied;
3) A statement identifying all jurisdictions in which the out-of-state attorney has been publicly disciplined, or in which the attorney has any pending disciplinary proceeding, including the date of the disciplinary action, the nature of the violation, and the penalty imposed;
4) A statement identifying the party or parties represented and specifying that the out-of-state attorney has notified the party or parties represented of the verified motion requesting permission to appear;
5) A statement that the out-of-state attorney acknowledges he or she is subject to all applicable provisions of the Colorado Rules of Professional Conduct and the Colorado Rules of Civil Procedure, that such rules have been read and will be followed throughout the pro hac vice admission, and that the verified motion complies with those rules;
6) The name, address, and membership status of the licensed Colorado attorney associated for purposes of the representation;
7) A certificate indicating service of the verified motion on all counsel of record and the attorney’s client in the matter in which leave to appear pro hac vice is sought; and
8) The signature of the licensed Colorado associate attorney, verifying that attorney’s association on the matter.12
C.R.C.P. 221(7) suggests the use for the information to be gathered in the verified motion. It permits the Colorado Supreme Court to "provide information to the trial court that it believes relevant for the trial court’s ruling on the pending motion to appear." The Rule notes, however, that the ultimate authority with respect to admission pro hac vice is retained by the trial court.
As revised, C.R.C.P. 221 is more explicit about the identification and participation of the Colorado attorney associated with the out-of-state attorney. The name and address of the Colorado attorney must be shown on all papers served and filed, presumably subjecting the Colorado attorney to sanctions under C.R.C.P. 11 and other sanctions with respect to the pleadings. In addition, the Colorado attorney must appear personally at all court proceedings and, unless excused, remain in attendance for the duration of the proceedings.13
C.R.C.P. 221 provides that an out-of-state attorney admitted pro hac vice is subject to all applicable provisions of the Colorado Rules, other than Colo.RPC 1.15, dealing with the requirement of having a business and trust account in a financial institution doing business in Colorado, and the Colorado Rules of Civil Procedure, other than those dealing with registration fees and mandatory CLE.14
Under C.R.C.P. 221.1, an out-of-state attorney may be permitted by an administrative officer to appear on a particular matter before any state agency in the hearings or arguments of any particular cause, provided that the out-of-state attorney files a verified motion for admission with the agency and the Supreme Court containing the same information as required by C.R.C.P. 221(1). There is an exception in that the requirement that the out-of-state attorney associate a Colorado attorney does not apply to administrative hearings. Although C.R.C.P. 221.1 only refers to the filing requirement of C.R.C.P. 221, presumably an out-of-state attorney will be required to file a verified motion for each administrative matter for which the out-of-state attorney appears and pay a registration fee for each such matter. In addition, presumably the Supreme Court could communicate information to the hearing officer with respect to the out-of-state attorney in the same manner as is provided in C.R.C.P. 221.
C.R.C.P. 222: In-House Counsel
Although the Proposal did not provide rules for a lawyer domiciled in Colorado and representing a single client ("in-house counsel"), two of the committees15 recommending the Proposal requested an exception for in-house counsel to the proscription on unauthorized practice. These committees recommended an exception for an attorney "if such attorney’s practice of law is limited to acting as counsel for a single client, and the attorney has advised such person or entity of the status of his or her license, and the attorney has obtained the informed consent of such client (which consent may be given retroactively)."16 The committees’ recommended exception for in-house counsel domiciled in Colorado would have allowed these lawyers to practice without further action. The Rule Change takes a different approach, allowing in-house counsel to apply for a special admission, which, if granted, gives in-house counsel all of the rights and duties of an admitted Colorado attorney for so long (but only for so long) as the attorney represents the single client in Colorado.
The Rule Change adds a new C.R.C.P. 222, providing special certification for in-house counsel who register with the Supreme Court. An out-of-state attorney17 may be certified to represent a single client (which may include a business entity or an organization and its organizational affiliates).18 To receive this certification, the attorney must file an application with the Colorado Supreme Court and pay a $725 certification fee.19 The in-house attorney also will be required to pay the same annual registration fee as an attorney licensed in Colorado and comply with the mandatory CLE requirements of C.R.C.P. 260.20 The in-house counsel’s application must contain the following:
1) a certification that the attorney’s practice is limited to representing a single client;
2) a certification that the attorney has advised such single client that the attorney is not licensed in Colorado;
3) a certification by the client that the client is aware the attorney is not a licensed Colorado attorney and that the attorney will be exclusively employed by that client; and
4) a certificate of good standing from all courts and jurisdictions in which the lawyer is admitted to practice.
Once the Supreme Court approves the registration, an in-house attorney will be given a certification number, which will be used on pleadings in the same manner as a Colorado attorney’s registration number.21 An in-house attorney has the authority to act on behalf of the single client for all purposes as if licensed in Colorado and will be treated as licensed with respect to the legal services provided for the single client.22 Therefore, the attorney need not seek pro hac vice admission to appear in court, and will not be prohibited from receiving payment for legal services rendered.
As noted above, the attorney may not act as counsel for the single client under C.R.C.P. 222 until the application is accepted and approved. In this regard, it may be useful to remember that C.R.C.P. 220 will govern the attorney until the attorney establishes domicile or a permanent law office in Colorado. Moreover, an in-house attorney is subject to the Colorado Rules and Colorado attorney discipline and disability procedures.23
The Rule Change was adopted on December 4, 2002, and became effective on January 1, 2003. The Supreme Court is in the process of developing forms for the certifications required by C.R.C.P. 222. No changes were made to any of the Colorado Rules to take into account the Rule Change, so Colo.RPC 5.5 and 8.5 should continue to apply to attorneys licensed in Colorado and to attorneys practicing in accordance with the new C.R.C.P. 220, 221, 221.1, and 222.
Because C.R.C.P. 221, 221.1, and 222 require certification at the commencement of the representation, it is unclear whether out-of-state attorneys currently engaged in pro hac vice representation need to file a certification on those engagements. Before January 1, 2003, attorneys appearing pro hac vice and their Colorado associate counsel were subject to the more limited provisions of old C.R.C.P. 221 and 221.1 and, presumably, not subject to sanctions for unauthorized practice of law. If revised C.R.C.P. 221 and 221.1 apply to existing pro hac vice admissions, the out-of-state attorneys must comply with the new Rules or risk engaging in the unauthorized practice of law.
Under C.R.C.P. 222, an in-house attorney is required to file a certification with the Supreme Court before commencing work for his or her client. Unlike pro hac vice attorneys, there was no pre-existing exemption for in-house attorneys. Thus, some in-house attorneys may have a concern with informing the Supreme Court that they have been engaged in what might constitute unauthorized practice of law. Attorney Regulation Counsel has informally indicated that they recognize that some in-house attorneys have been practicing while not authorized, but they do not intend to pursue claims, provided that the in-house counsel register in a timely manner under C.R.C.P. 222, now that it is effective.
1. The Rule Change appears in the "Court Business" section in this issue at page 103.
2. Covell, Foote, and Keatinge, "Proposed Amendments to C.R.C.P. 228 and the Cross-Border Practice of Law," 31 The Colorado Lawyer 21 (Jan. 2002).
3. See "Court Business," 30 The Colorado Lawyer 197 (Dec. 2001).
4. C.R.C.P. 220(1).
5. See Report of the ABA Commission on Multijurisdictional Practice at http://www.abanet.org/cpr/mjp-home.html, particularly Report 201J, available at http://www.abanet.org/cpr/mjp/201j.doc (recommending adoption of the proposed Model Rule for Temporary Practice by Foreign Lawyers). See also Keatinge, "ABA Delegates’ Report: ABA Finalizes Work on Multijurisdictional Practice and Strategic Alliances," 31 The Colorado Lawyer 70 (Oct. 2002).
6. C.R.C.P. 220(3).
7. C.R.C.P. 228(e), as set forth in the Proposal: "Any attorney who engages in the practice of law as authorized by C.R.C.P. 228(c)-(d), or who practices law in violation of C.R.C.P. 228(c)-(d), shall be subject to the Colorado Rules of Professional Conduct and the Colorado Rules of Civil Procedure regarding attorney discipline and disability proceedings as set forth in C.R.C.P. 251.1, et seq., and those remedies set forth in C.R.C.P. 234(a)."
8. C.R.C.P. 221(1)(a),
9. C.R.C.P. 221(4).
10. C.R.C.P. 221(6)(a). On appeal, the out-of-state attorney is required to update the "affidavit" (presumably the verified motion), but is not required to pay a new fee. In the case of a first appearance on appeal, the out-of-state attorney must satisfy the same requirements as an out-of-state attorney at the trial level. C.R.C.P. 221(6)(b).
11. C.R.C.P. 221(1)(b)(iv)
12. C.R.C.P. 221(1)(b).
13. C.R.C.P. 221(2).
14. C.R.C.P. 221(7).
15. See Covell, Foote, and Keatinge, supra, note 2.
17. C.R.C.P. 222(1)(b) and (c) uses the same standards to define an attorney eligible for the single-client exception as those applicable to an out-of-state attorney defined under C.R.C.P. 220(1)(a) and (b).
18. C.R.C.P. 222(1)(d).
19. C.R.C.P. 222(2).
20. C.R.C.P. 222(6).
21. C.R.C.P. 222(7).
22. C.R.C.P. 222(4).
23. C.R.C.P. 222(5).
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