|The Colorado Lawyer|
Vol. 33, No. 7 [Page 147]
© 2004 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.
All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.
From the Courts
Colorado Supreme Court Family Issues Committee
Colorado Rules of Civil Procedure
Proposed New Rule
Hearing to be Held Friday, September 17, 2004, in Denver
NOTICE OF HEARING
The Supreme Court will conduct a hearing on proposed amendments to the Colorado Rules of Civil Procedure on Friday, September 17, 2004, at 3:00 p.m. in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. An original and eight copies of any written comments to the court concerning the proposals should be submitted to the Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203, no later than Thursday, September 2, 2004, by 5:00 p.m. Persons wishing to participate in the hearing should so notify the Clerk of the Court no later than September 2, 2004.
The forms associated with this rule are posted at: http://www.courts.state.co.us/supct/committees/famissuesdocs/rule16_2.htm.
The current Rules 16.2 and 26.2 will be repealed and replaced with this Rule 16.2.
The current Rule 121, § 1-17, will be amended.
Colorado Rules of Civil Procedure
Chapter 2. Pleadings and Motions
Rule 16.2 Case Management (Domestic Relations)
Rule 16.2 AMENDED: Court Facilitated Management of Domestic Relations Cases and General Provisions Governing Duty of Disclosure
(a) Purpose and Scope. Family members stand in a special relationship to one another and to the court system. It is the purpose of Rule 16.2 to provide a uniform procedure for resolution of all issues in domestic relations cases that reduces the negative impact of adversarial litigation wherever possible. To that end, this Rule contemplates management and facilitation of the case by the court, with the disclosure requirements, discovery and hearings tailored to the needs of the case. This Rule shall govern case management in all district court actions under Articles 10, 11, and 13 of Title 14 of the Colorado Revised Statutes, including post-decree matters. The Child Support Enforcement Unit ("CSEU") shall be exempted under this Rule unless the CSEU enters an appearance in an ongoing case. Upon the motion of any party or the court’s own motion, the court may order that this Rule shall govern juvenile, paternity, or probate cases involving allocation of parental responsibilities (decision-making and parenting time), child support, and related matters. Any notice or service of process referenced in this Rule shall be governed by the Colorado Rules of Civil Procedure.
(b) Active Case Management. The court shall provide active case management from filing to resolution or hearing on all pending issues. The parties, counsel, and the court shall evaluate each case at all stages to determine the scheduling of that individual case, as well as the resources, disclosures/discovery, and experts necessary to prepare the case for resolution or hearing. The intent of this Rule is to provide the parties with a timely, cost effective process. The court shall consider the needs of each case and may modify the Standard Case Management Order accordingly. Each judicial district may adopt a Standard Case Management Order that is consistent with this Rule and takes into account the specific needs and resources of the judicial district.
(c) Scheduling and Case Management for New Filings.
(1) Initial status conferences/Stipulated Case Management Plans.
(A) Petitioner shall be responsible for scheduling the initial status conference and shall provide notice of the conference to all parties. Each judicial district shall establish a procedure for setting the initial status conference. Scheduling of the initial status conference shall not be delayed in order to accomplish service.
(B) All parties and counsel, if any, shall attend the initial status conference, except as provided in subsection (c)(1)(C) or (c)(1)(D). At that conference, the parties and counsel shall be prepared to discuss the issues requiring resolution and any special circumstances of the case. The court may permit the parties and/or counsel to attend the initial conference and any subsequent conferences by telephone.
(C) If both parties are represented by counsel, counsel may submit a Stipulated Case Management Plan signed by counsel and the parties. Counsel shall also exchange Mandatory Disclosures and file a Certificate of Compliance. The filing of such a plan, the Mandatory Disclosures and Certificate of Compliance shall exempt the parties and counsel from attendance at the initial status conference. The court shall retain discretion to require a status conference after review of the Stipulated Case Management Plan.
(D) Parties who file an affidavit for entry of decree without appearance with all required documents before the initial status conference shall be excused from that conference.
(E) The initial status conference shall take place, or the Stipulated Case Management Plan shall be filed with the court, as soon as practicable but no later than 40 days from the filing of the petition.
(F) At the initial status conference, the court shall set the date for the next court appearance. The court may direct one of the parties to send written notice for the next court appearance or may dispense with written notice.
(2) Status conference procedures.
(A) At each conference the parties shall be prepared to discuss what needs to be done and determine a timeline for completion. The parties shall confer in advance on any unresolved issues.
(B) The conferences shall be informal.
(C) Family Court Facilitators may conduct conferences. Family Court Facilitators shall not enter orders but may confirm the agreements of the parties in writing. Agreements which the parties wish to have entered as orders shall be submitted to the judge or magistrate for approval.
(D) The judge or magistrate may enter interim orders at any status conference either upon the stipulation of the parties or to address emergency circumstances.
(E) A record of any part of the proceedings set forth in this section shall be made if requested by a party or by order of the court.
(F) The court shall either enter minute orders, direct counsel to prepare a written order, or place any agreements or orders on the record.
(3) Emergency matters/evidentiary hearings/temporary orders.
(A) Emergency matters may be brought to the attention of the clerk or the Family Court Facilitator for presentation to the court. Issues related to children shall be given priority on the court’s calendar.
(B) At the request of either party or on its own motion, the court shall conduct an evidentiary hearing, subject to the Colorado Rules of Evidence, to resolve disputed questions of fact or law. The parties shall be given notice of any evidentiary hearing. Only a judge or magistrate may determine disputed questions of fact or law or enter orders.
(C) Hearings on temporary orders shall be held as soon as possible. The parties shall certify on the record at the time of the temporary orders hearing that they have conferred and attempted in good faith to resolve temporary orders issues. If the parties do not comply with this requirement, the court may vacate the hearing unless an emergency exists that requires immediate court attention.
(A) Motions related to the jurisdiction of the court, change of venue, service and consolidation, protection orders, contempt, motions to amend the petition or response, withdrawal or substitution of counsel, motions to seal the court file or limit access to the court file, motions in limine related to evidentiary hearings, motions for review of an order by a magistrate, and post decree motions may be filed with the court at any time.
(B) All other motions shall only be filed and scheduled as determined at a status conference or in an emergency upon order of court.
(d) Scheduling and Case Management for post-decree/modification matters. Within 45 days of the date a post decree motion or motion to modify is filed, the court shall review the matter and determine whether the case will be scheduled and resolved under the provisions of (c) or will be handled on the pleadings or otherwise.
(1) Parties to domestic relations cases owe each other and the court a duty of full and honest disclosure of all facts that materially affect their rights and interests and those of the children involved in the case. The court requires that, in the discharge of this duty, a party must affirmatively disclose all information that is material to the resolution of the case without awaiting inquiry from the other party. This disclosure shall be conducted in accord with the duty of candor owing among those whose domestic issues are to be resolved under this Rule 16.2.
(2) A party shall, without a formal discovery request, provide the Mandatory Disclosures, as set forth in the form and content of Appendix to Chapters 1 to 17A, Form ____, C.R.C.P., and shall provide a completed financial affidavit in the form and content of Appendix to Chapters 1 to 17A, Form ____, C.R.C.P , to the other party within 40 days after service of a petition or a post decree motion involving financial issues. The parties shall exchange the required Mandatory Disclosures and the financial affidavit by the time of the initial status conference to the extent reasonably possible.
(3) A party shall, without a formal discovery request, also provide a list of expert and lay witnesses whom the party intends to call at a contested hearing or final orders. This disclosure shall include the address, phone number and a brief description of the testimony of each witness. This disclosure shall be made no later than 60 days prior to the date of the contested hearing or final orders, unless the time for such disclosure is modified by the court.
Unless otherwise stipulated or ordered by the court and subject to the provisions of subsection (g) of this Rule, the disclosure of expert testimony shall be governed by the provisions of C.R.C.P. 26(a)(2)(B). The time for the disclosure of expert or lay witnesses whom a party intends to call at a temporary orders hearing or other emergency hearing shall be determined by the court.
(4) A party is under a continuing duty to supplement or amend any disclosure in a timely manner. This duty shall be governed by the provisions of C.R.C.P. 26(e).
(5) If a party does not timely provide the Mandatory Disclosure, the court may impose sanctions pursuant to subsection (j) of this Rule.
(6) Financial affidavits and child support worksheets shall be filed with the court. Other mandatory disclosure documents shall not be filed with the court.
(7) A Certificate of Compliance shall accompany the Mandatory Disclosures and shall be filed with the court. A party’s signature on the Certificate constitutes certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the Mandatory Disclosure is complete and correct as of the time it is made, except as noted with particularity in the Certificate of Compliance.
(8) Signing of all disclosures, discovery requests, responses and objections shall be governed by C.R.C.P. 26(g).
(9) A Court Authorization For Financial Disclosure shall be issued at the initial status conference if requested, or may be executed by those parties who submit a Stipulated Case Management Plan pursuant to (c)(1)(C), identifying the persons authorized to receive such information.
(10) As set forth in this section, it is the duty of parties to an action for decree of dissolution of marriage, legal separation, or invalidity of marriage, to provide full disclosure of all material assets and liabilities. If the disclosure contains misstatements or omissions, the court shall retain jurisdiction after the entry of a final decree or judgment for a period of 5 years to allocate material assets or liabilities, the omission or non-disclosure of which materially affects the division of assets and liabilities. The provisions of C.R.C.P. 60 shall not bar a motion by either party to allocate such assets or liabilities pursuant to this paragraph. This paragraph shall not limit other remedies that may be available to a party by law.
(f) Discovery. Discovery shall be subject to active case management by the court consistent with this Rule.
(1) Depositions of parties are permitted.
(2) Depositions of non-parties upon oral or written examination for the purpose of obtaining or authenticating documents not accessible to a party are permitted.
(3) After an initial status conference or as agreed to in a Stipulated Case Management Plan filed pursuant to (c)(1)(E), a party may serve on each adverse party any of the pattern interrogatories and requests for production of documents contained in the Appendix to Chapters 1 to 17A Form 20.2 and Form 21.2, C.R.C.P. A party may also serve on each adverse party 10 additional written interrogatories and 10 additional requests for production of documents, each of which shall consist of a single question or request.
(4) The parties shall not undertake additional formal discovery except as authorized by the court or as agreed in a Stipulated Case Management Plan filed pursuant to (c)(1)(C). The court shall grant all reasonable requests for additional discovery for good cause as defined in C.R.C.P. 26 (b)(2)(F). Unless otherwise governed by the provisions of this Rule additional discovery shall be governed by C.R.C.P. Rules 26 through 37 and C.R.C.P. 121 section 1-12. Methods to discover additional matters shall be governed by C.R.C.P. 26(a)(5). Additional discovery for trial preparation relating to documents and tangible things shall be governed by C.R.C.P. 26(b)(3).
(5) All discovery shall be initiated so as to be completed not later than 30 days before hearing, except that the court shall extend the time upon good cause shown or to prevent manifest injustice.
(6) Claims of privilege or protection of trial preparation materials shall be governed by C.R.C.P. 26(b)(5).
(7) Protective orders sought by a party relating to discovery shall be governed by C.R.C.P. 26(c).
(g) Use of Experts. If the matter before the court requires the use of an expert or more than one expert, the parties shall attempt to select one expert per issue. If they are unable to agree, the court shall act in accordance with CRE 706, or other applicable rule or statute.
(1) Expert reports shall be filed with the court only if required by the applicable rule or statute.
(2) If the court appoints or the parties jointly select an expert, then the following shall apply:
(A) Compensation for any expert shall be governed by the provisions of CRE 706.
(B) The expert shall communicate with and submit a draft report to each party in a timely manner or within the period of time set by the court. The parties may confer with the expert to comment on and make objections to the draft report before a final report is submitted.
(C) The court shall receive the expert reports into evidence without further foundation, unless a party notes an objection in the Trial Management Certificate. However, this shall not preclude either side from calling an expert for cross-examination, and voir dire on qualifications. A reasonable witness fee associated with the expert’s court appearance shall be tendered before the hearing by the party disputing the expert’s findings.
(3) Nothing in this rule limits the right of a party to retain a qualified expert at that party’s expense, subject to judicial allocation if appropriate. The expert shall consider the report and documents or information used by the court appointed or jointly selected expert and any other documents provided by a party, and may testify at a hearing. Any additional documents or information provided to the expert shall be provided to the court appointed or jointly selected expert by the time the expert’s report is submitted.
(4) The parties have a duty to cooperate with and supply documents and other information requested by any expert. The parties also have a duty to supplement or correct information in the expert’s report or summary.
(5) Unless otherwise ordered by the court, expert reports shall be provided to the parties 60 days prior to hearing. Rebuttal reports shall be provided 20 days thereafter.
(6) Unless otherwise ordered by the court, parental responsibility evaluations and special advocate reports shall be provided to the parties pursuant to the applicable statute.
(7) The court shall not give presumptive weight to the report of a court appointed or jointly selected expert when such report is disputed by one or both parties.
(8) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Such trial preparation relating to experts shall be governed by C.R.C.P. 26 (b)(4).
(h) Trial Management Certificates.
(1) If both parties are not represented by counsel, then each party shall file with the court a brief statement identifying the disputed issues and that party’s witnesses and exhibits including updated financial affidavits, together with copies thereof, mailed to the opposing party at least 10 days prior to the hearing date or at such other time as ordered by the court.
(2) If at least one party is represented by counsel, the parties shall file a joint Trial Management Certificate 10 days prior to the hearing date or at such other time as ordered by the court. Petitioner’s counsel (or respondent’s counsel if petitioner is pro se) shall be responsible for scheduling meetings among counsel and parties and preparing and filing the Trial Management Certificate. The joint Trial Management Certificate shall set forth stipulations and undisputed facts, any requests for attorney fees, disputed issues and specific points of law, lists of lay witnesses and expert witnesses the parties intend to call at hearing, and a list of exhibits, including updated financial affidavits and proposed child support work sheets. The parties shall exchange copies of exhibits at least 10 days prior to hearing.
(i) Alternative Dispute Resolution.
(1) Nothing in this Rule shall preclude, upon request of both parties, a judge or magistrate from conducting the conferences as a form of alternative dispute resolution pursuant to section 13-22-301, C.R.S. (2002), provided that both parties consent in writing to this process. Consent may only be withdrawn jointly.
(2) The provisions of this Rule shall not preclude the parties from jointly consenting to the use of dispute resolution services by third parties, or the court from referring the parties to mediation or other forms of alternative dispute resolution by third parties pursuant to sections 13-22-311 and 313, C.R.S. (2002).
(j) Sanctions. If a party fails to comply with any of the provisions of this rule, the court may impose appropriate sanctions, which shall not prejudice the party who did comply. If a party attempts to call a witness or introduce an exhibit that the party has not disclosed under subsection (h) of this Rule, the court may exclude that witness or exhibit absent good cause for the omission.
Disclosures: This Rule is premised upon an expectation that regular status conferences will be conducted informally, that the parties will provide all necessary disclosures and that formal discovery, if authorized, will be tailored to the specific issues of the case. Disclosure of expert testimony and the signing of disclosures and discovery responses will be governed by C.R.C.P. 26 as specifically incorporated into section (e) of new Rule 16.2.
Rule 26.2: The current Rule 26.2 will be repealed. Disclosure of expert testimony and the signing of disclosures and discovery responses will be governed by C.R.C.P. 26 as specifically incorporated into section (e) of new Rule 16.2. Relevant provisions of C.R.C.P. 26 that relate to any additional discovery authorized by the court or stipulated to by the parties under sections (f) and (g) of the new Rule have been incorporated into new Rule 16.2. It is the intent of the committee that relevant caselaw under Rule 26.2 or Rule 26 will have precedential value. The pattern interrogatories and pattern requests for production of documents will also be modified to be consistent with new Rule 16.2.
Appendices and Forms: The committee requests Supreme Court approval of the mandatory disclosures and financial affidavit forms referenced in 16.2(e)(2), and inclusion of both forms in the Appendix to Chapters 1 to 17A of the Colorado Rules of Civil Procedure. Rule 16.2 requires compliance with the mandatory disclosures, and completion of the financial affidavit form submitted with this Rule to achieve the disclosure intended by the Rule. The committee also requests approval of the amended pattern interrogatories (Form 20.2) and pattern requests for production (Form 21.2). The committee also submits a form stipulated case management plan and order, referenced in 16.2(c)(1)(C), and a form Court Authorization for Financial Disclosure, referenced in 16.2(e)(9), and requests approval of the three forms, and assignment of JDF numbers by the judicial department prior to the final adoption of this Rule.
Settlement Conferences: The Committee recommends that Rule 121, Section 1-17 be amended to permit a judge or magistrate to conduct a settlement conference or utilize other alternative dispute resolution techniques under Rule 16.2(i).
Appendix A (Form _____)
(1) Mandatory Disclosures. (Complete and accurate copies may replace originals. Children refers to minor children of both parties.)
(a) Financial Affidavit. Each party shall provide a complete and signed Financial Affidavit in the Supreme Court approved form. See Appendix to Chapters 1 to 17A, Form ____, C.R.C.P.
(b) Income Tax Returns (Most Recent 3 Years). Provide the personal and business federal income tax returns for the three years before filing of the petition or post decree motion. The business returns shall be for any business for which a party has an interest entitling the party to a copy of such returns. Provide all schedules and attachments including W-2s, 1099s and K-1. If a return is not completed at the time of disclosure, provide the documents necessary to prepare the return including W-2s, 1099s and K-1s, copies of extension requests and estimated tax payments.
(c) Personal Financial Statements (Last 3 Years). Provide all personal financial statements, statements of assets or liabilities, and credit and loan applications prepared during the last three years.
(d)Business Financial Statement (Last 3 Years). For every business for which a party has access to financial statements, provide the last three fiscal years’ financial statements, all year-to-date financial statements, and the same periodic financial statements for the prior year.
(e) Real Estate Documents. Provide the title documents and all documents stating value of all real property in which a party has a personal or business interest. This section shall not apply to post decree motions unless so ordered by the court.
(f) Personal Debt. Provide all documents creating debt, and the most recent debt statements showing the balance and payment terms.
(g) Investments. Provide most recent documents identifying each investment, and stating the current value.
(h) Employment benefits. Provide most recent documents identifying each employment benefit, and stating the current value.
(i) Retirement Plans. Provide most recent documents identifying each retirement plan, and stating the current value, and all Plan Summary Descriptions.
(j) Bank/Financial Institution Accounts. Provide most recent documents identifying each account at banks and other financial institutions, and stating the current value.
(k) Income Documentation. For each income source in the current and prior calendar year, including income from employment, investment, government programs, gifts, trust distributions, prizes, and income from every other source provide pay stubs, a current income statement and the final income statement for the prior year. Each self-employed party shall provide a sworn statement of gross income, business expenses necessary to produce income, and net income for the three months before filing of the petition or post decree motion.
(l) Employment and Education-Related Child Care Documentation. Provide documents that show average monthly employment-related child care expense including child care expense related to parents' education and job search.
(m) Insurance Documentation. Provide life, health and property insurance policies and current documents that show beneficiaries, coverage, cost including the portion payable to provide health insurance for children, and payment schedule.
(n) Extraordinary Children’s Expense Documentation. Provide documents that show average monthly expense for all recurring extraordinary children’s expenses.
Colorado Rules of Civil Procedure
Rule 121. Section 1-17. COURT SETTLEMENT CONFERENCES
1. At any time after the filing of Disclosure Certificates as required by C.R.C.P. 16, any party may file with the courtroom clerk and serve a request for a court settlement conference, together with a notice for setting of such request. The court settlement conference shall, if the request is granted, be conducted by any available judge other than the assigned judge. In all instances, the assigned judge shall arrange for the availability of a different judge to conduct the court settlement conference.
2. All discussions at the settlement conference shall remain confidential and shall not be disclosed to the judge who presides at trial. Statements at the settlement conference shall not be admissible evidence for any purpose in any other proceeding.
3. This Rule shall not apply to proceedings conducted pursuant to Rule 16.2(i).
Colorado Supreme Court Rules Committee
Colorado Rules of Civil Procedure
Chapter 20. Colorado Rules of Procedure Regarding
Attorney Discipline and Disability Proceedings
Notice of Public Hearing
Hearing to be Held Friday, September 17, 2004, in Denver
NOTICE OF PUBLIC HEARING
The Colorado Supreme Court will conduct a hearing on proposed amendments to Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Rules 251.15, 251.16, 251.18, 251.19, 251.21, 251.32, and 251.34, on Friday, September 17, 2004, at 1:30 p.m., in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, CO 80203. The Court also requests written public comments by any interested person on these proposed rule changes. An original and eight copies of the written comments concerning the proposals should be submitted to the Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203, no later than August 31, 2004. Persons wishing to participate in the hearing should so notify the Clerk of the Supreme Court no later than August 31, 2004.
Colorado Rules of Civil ProcedureRule 251.15.
Chapter 20. Colorado Rules of Procedure Regarding
Attorney Discipline and Disability Proceedings
Answer —Filing, Failure to Answer, Default
(a) [No Change]
(b) Failure to Answer, and Default.
If the respondent fails to file an answer within the period provided by subsection (a) of this Rule, the Regulation Counsel shall file a motion for default with the Presiding Disciplinary Judge. Thereafter, the Presiding Disciplinary Judge shall enter a default and the complaint shall be deemed admitted; provided, however, that a respondent who fails to file a timely answer may, upon a showing that the failure to answer was the result of mistake, inadvertence, surprise, or excusable neglect, obtain leave of the Presiding Disciplinary Judge to file an answer.
Notwithstanding the entry of a default, the Regulation Counsel shall give the respondent notice of the final hearing, at which the respondent may appear and present arguments to the Hearing Board regarding the form of discipline to be imposed.
Thereafter, the Hearing Board shall review all pleadings, arguments, and the report of investigation and shall prepare a report setting forth its findings of fact and its decision as provided in C.R.C.P. 251.19.
If, however, after the entry of default neither the respondent nor Regulation Counsel timely request a hearing before the Hearing Board, then the sanctions hearing shall be held solely before the Presiding Disciplinary Judge.
Rule 251.16. Presiding Disciplinary Judge
(a) through (b) [No Changes]
(c) Powers and Duties of the Presiding Disciplinary Judge.
The Presiding Disciplinary Judge shall be authorized and empowered to act in accordance with these Rules and to:
(1) through (8) [No Changes]
(9) Preside over sanctions hearings pursuant to C.R.C.P. 251.15(b) and C.R.C.P. 251.19(c).
(d) through (e) [No Changes]
Rule 251.18. Hearings Before the Hearing Board
(a) [No Change]
(b) Designation of a Hearing Board.
(1) All hearings on complaints seeking disciplinary action against a respondent shall be conducted by a Hearing Board except as provided in subsection(b)(3). A Hearing Board shall consist of the Presiding Disciplinary Judge and two other members, one of whom shall be an attorney, who are to be selected at random from the pool of Hearing Board Members by the clerk for the Presiding Disciplinary Judge. If the Presiding Disciplinary Judge has been disqualified, then a presiding officer shall be selected at random from among the attorneys on the list of Hearing Board members. The presiding officer shall, in all respects, act in accordance with these Rules.
(2) The Presiding Disciplinary Judge or the presiding officer shall rule on all motions, objections, and other matters presented after a complaint is filed and in the course of a hearing.
(3) Once a default has been entered against a respondent the respondent or Regulation Counsel has thirty (30) days after notice of the default order to request a sanctions hearing before a three-person Hearing Board. The respondent or Regulation Counsel shall send notice of such request, in writing, to the Presiding Disciplinary Judge and Regulation Counsel/Respondent. If neither party requests a sanctions hearing before a three-person Hearing Board, the sanction shall be decided by the Presiding Disciplinary Judge.
(c) through (e) [No Changes]
(f) Procurement of Evidence During Hearing.
(vi) 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 or the Presiding Disciplinary Judge if there is no 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.
Rule 251.19. Findings of Fact and Decision
(a) through (b) [No Changes]
(c) Decision of the Presiding Disciplinary Judge. When the Presiding Disciplinary Judge renders a decision without a Hearing Board as provided in these rules, the Presiding Disciplinary Judge shall:
(1) Enter an order imposing private admonition, public censure, a definite period of suspension, or disbarment; or
(2) Enter an order conditioned on the agreement of the attorney diverting the case to the alternatives to discipline program.
The Presiding Disciplinary Judge may also enter other appropriate orders including, without limitation, probation, and orders requiring the respondent to pay the costs of the disciplinary proceeding, to make restitution, or to refund money paid to the respondent.
(3) Within fifteen (15) days of entry of an order as provided in this Rule or such greater time as the Presiding Disciplinary Judge may allow, a party may move for post-hearing relief as provided in C.R.C.P. 59.
(4) For purposes of this Rule, the decision of the Presiding Disciplinary Judge shall be final and time for filing notice of appeal shall commence as set forth in C.R.C.P. 251.26.
Discipline Imposed by Foreign Jurisdiction
(a) through(d) [No Changes]
(e) If Regulation Counsel does not seek substantially different discipline and if the respondent does not challenge the order based on any of the grounds set forth in (d)(1)(4) above, then the Presiding Disciplinary Judge may, without a hearing or a Hearing Board, issue a decision imposing the same discipline as imposed by the foreign jurisdiction.
Rule 251.32. General Provisions
(a) through (h) [No Changes]
(i) Statute of Limitations.
A request for investigation against an attorney shall be filed within five years of the time that the complaining witness discovers or reasonably should have discovered the misconduct. There shall be no statute of limitations for misconduct alleging fraud, conversion, or conviction of a serious crime, or for an offense the discovery of which has been prevented by concealment by the attorney.
(1) Any report of misconduct by an attorney pursuant to C.R.C.P. 251.4 or 251.9 must be presented to Regulation Counsel within five years from the date of the acts or omissions that constitute misconduct by the attorney, except as provided in subparagraph(3).
(2) The five year period shall commence when every element of the alleged violation has occurred, except, however the five year terms shall be tolled in the following circumstances:
(i) If there is a continuing course of conduct, until the conclusion of that course of conduct;
(ii) For misconduct involving a juvenile until the juvenile reaches the age of eighteen unless (3)(iv) applies;
(iii) Misconduct the discovery of which has been prevented or concealed by the attorney;
(iv) Conduct under investigation by a law enforcement agency or other governmental agency, about the alleged misconduct of the lawyer that has not been made public, until such time as it is made public;
(3) Exceptions. The five year statute of limitations in subsection (1) shall not apply to:
(ii) Conviction of a serious crime as defined by C.R.C.P. 251.20;
(iv) Misconduct against an at-risk adult or at-risk juvenile as defined by C.R.S. 18-6.5-102 or successor statute.
Rule 251.34. Advisory Committee
(a) Advisory Committee. The Supreme Court Advisory Committee is hereby established. The Advisory Committee shall serve as a permanent committee of the Supreme Court.
(1) Members. The Advisory Committee shall be composed of the chair and vice-chair of the Attorney Regulation Committee. Two Supreme Court justices who serve as liaison to the attorney regulation system, foureight members of the Bar, and a member of the public shall also serve as members of the Advisory Committee. The membership shall include one member from the Colorado Bar Association’s Ethics Committee, one Respondent Bar member of the Colorado Bar Association’s Attorney Regulation Policy Committee, and one member of the Hearing Board pool. Diversity shall be a consideration in making the appointments.
The members of the Advisory Committee shall serve at the pleasure of the Supreme Court and may be dismissed from the Advisory Committee at any time by order of the Supreme Court. A member of the Advisory Committee may resign at any time.
(b) [No Change.]
Corrective Order to Rule Change 2004(2)
The Colorado Rules of Criminal Procedure
For All Courts of Record in Colorado
Rule 35. Postconviction Remedies.
(a)–(b) [No Change]
(c)(1)–(c)(2) ([No Change]
(c)(3)(I)–(c)(3)(VII) [No Change]
(c)(3)(VIII) Notwithstanding (VII) above, the court shall not deny a postconviction claim of ineffective assistance of trial counsel on the ground that all or part of the claim could have been raised on direct appeal.
(c)(3)(IX) [No Change]
Form: Petition for Postconviction Relief Pursuant to Crim.P. 35(c) [No Change]
This Corrective Order is Adopted on May 25, 2004, nunc pro tunc January 29, 2004, effective July 1, 2004.
Justices Martinez and Bender would have included an exception for actual innocence in sections 35(a)(2) and 35(c)(3)(VII).
By the Court:
Alex J. Martinez
Justice, Colorado Supreme Court
United States Bankruptcy Court for the District of Colorado
In the Matter of Waiver of Requirement to File Exhibit B
To the Chapter 13 Fee Application
General Order 2004-1
Pursuant to Second Amended General Procedure Order Number 2001-1, the Court has ordered that all applications for allowance of fees in excess of $1,700 shall be supplemented by a detailed description of the services rendered as necessary to justify allowance of the fee pursuant to 11 U.S.C. § 330(a).
The Court now determines that the amount of the fee established in Second Amended General Procedure Order Number 2001-1 as the basis for determining whether or not chapter 13 fee applications require the automatic supplementation of a detailed description of services rendered should be periodically adjusted. Accordingly,
IT IS HEREBY ORDERED that:
1. -If the total fees charged for representation through confirmation of a plan and so requested in the chapter 13 fee application do not exceed $1,800.00, Applicant need not supplement Exhibit B, except upon express order by the Court. If the Applicant requests allowance of a fee in excess of $1,800.00, the Application shall be supplemented by a detailed description of all services rendered, the time spent for each service, the charge for each service, and such other and further information as the Applicant believes is necessary to justify allowance of the fee pursuant to 11 U.S.C. § 330(a).
2. -This General Order shall become effective for all cases filed on and after July 1, 2004.
Dated: May 27, 2004
By the Court:
Sidney B. Brooks, Chief Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Howard R. Tallman, Judge
Michael E. Romero, Judge
© 2004 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2004.