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TCL > July 2001 Issue > Court Business

The Colorado Lawyer
July 2001
Vol. 30, No. 7 [Page  155]

© 2001 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

Court Business

Colorado Supreme Court Rules Committee

Change #2001(3)
Chapter 29. Colorado Rules of Criminal Procedure
IV. Arraignment and Preparation for Trial
Rule 16. Discovery and Procedure Before Trial
Amended and Adopted

Rule 16. Discovery and Procedure Before Trial

Part I. Disclosure to Defendant
(a) Prosecutor’s Obligations.

(1) [No Change]
(I) [No Change]
(II) [No Change]
(III) [No Change]
(IV) [No Change]
(V) [No Change]
(VI) [No Change]
(VII) [No Change]
(VIII) Any written or recorded statements of the accused or of a codefendant, and the substance of any oral statements made to the police or prosecution by the accused or by a codefendant, if the trial is to be a joint one.
(2) [No Change]
(3) [No Change]
(b) Prosecutor’s Performance of Obligations.

(1) The prosecuting attorney shall perform his or her obligations under subsections (a)(1)(I), (IV), (VII), and with regard to written or recorded statements of the accused or a codefendant under (VIII) as soon as practicable but not later than twenty calendar days after the defendant’s first appearance at the time of or following the filing of charges, except that portions of such reports claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under Part III but defense counsel must be notified in writing that information has not been disclosed.
(2) [No Change]
(3) [No Change]
(4) [No Change]
(c) [No Change]
(d) [No Change]
(e) [No Change]

Amended and Adopted by the Court, En Banc, May 17, 2001, effective July 1, 2001.


Change #2001(4)
Chapter 29. Colorado Rules of Criminal Procedure
V. Venue
Amended and Adopted

Rule 18. Venue

Except as otherwise provided by the state or federal constitution, criminal actions shall be tried in the county or district where the offense was committed or in any other county or district where an act in furtherance of offense occurred, as set forth in § 18-1-202 or any other applicable statute.

Amended and Adopted by the Court, En Banc, May 17, 2001, effective July 1, 2001.


Change #2001(5)
Chapter 29. Colorado Rules of Criminal Procedure
VIII. Supplementary and Special Proceedings
Amended and Adopted

Rule 45. Time

(a) [No Change]
(b) [No Change]
(c) [No Change]
(d) [No Change]
(e) [No Change]
(f) Inmate Filings.
A document filed by an inmate confined in an institution is timely filed with the court if deposited in the institution’s internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.

Amended and Adopted by the Court, En Banc, May 17, 2001, effective July 1, 2001.


Change #2001(6)
Colorado Rules of Civil Procedure
Chapter 1. Scope of Rules, One Form of Action, Commencement of Action,
Service of Process, Pleadings, Motions and Orders
Amended and Adopted

Rule 5. Service and Filing of Pleadings and Other Papers

(a) [No Change]
(b) [No Change]
(c) [No Change]
(d) [No Change]
(e) [No Change]
(f) Inmate Filing and Service.
Except where personal service is required, a pleading or paper filed or served by an inmate confined to an institution is timely filed or served if deposited in the institution’s internal mailing system on or before the last day for filing or serving. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.

Amended and Adopted by the Court, En Banc, May 17, 2001, effective July 1, 2001.


Change #2001(7)
Chapter 32. Colorado Appellate Rules
Appeals From Judgments and Orders of the Trial Court and Agencies
Amended and Adopted

 

Rule 4. Appeal as of Right—When Taken

(a) Appeals in Civil Cases (Other than Appeals or Appellate Review Within C.A.R. 3.1). Except as provided in Rule 4(e), in a civil case in which an appeal is permitted by law as of right from a trial court to the appellate court, the notice of appeal required by C.A.R. 3 shall be filed with the appellate court with an advisory copy served on the clerk of the trial court within forty-five days of the date of the entry of the judgment, decree, or order from which the party appeals. In appeals from district court review of agency actions, such notice of appeal shall be in addition to the statutory forty-five-day notice of intent to seek appellate review filed with the district court required by C.R.S. § 24-4-106(9). If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen days of the date on which the first notice of appeal is filed, or within the time otherwise prescribed by this section (a), whichever period last expires.

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the Colorado Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this section (a) commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) Granting or denying a motion under C.R.C.P. 59 for judgment notwithstanding verdict; (2) granting or denying a motion under C.R.C.P. 52 or 59, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under C.R.C.P. 59, to alter or amend the judgment; (4) denying a motion for a new trial under C.R.C.P. 59; (5) expiration of a court granted extension of time to file motion(s) for post-trial relief under C.R.C.P. 59, where no motion is filed. The trial court shall continue to have jurisdiction to hear and decide a motion under C.R.C.P. 59 regardless of the filing of a notice of appeal, provided the C.R.C.P. 59 motion is timely filed under C.R.C.P. 59(a) and determined within the time specified in C.R.C.P. 59(j). During such time, all proceedings in the appellate court shall be stayed. A judgment or order is entered within the meaning of this section (a) when it is entered pursuant to C.R.C.P. 58. If notice of the entry of judgment, decree, or order is transmitted to the parties by mail, the time for the filing of the notice of appeal shall commence from the date of the mailing of the notice.

Upon a showing of excusable neglect, the appellate court may extend the time for filing the notice of appeal by a party for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this section (a). Such an extension may be granted before or after the time otherwise prescribed by this section (a) has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
(b) Appeals in Criminal Cases.

(1) Except as provided in Rule 4(c), in a criminal case the notice of appeal by a defendant shall be filed in the appellate court and an advisory copy served on the clerk of the trial court within forty-five days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order shall be treated as filed on the date of such entry. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within forty-five days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made within ten days after entry of the judgment. A judgment or order is entered within the meaning of this section (b) when it is entered in the criminal docket. Upon a showing of excusable neglect the appellate court may, before or at any time after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this section (b).

(2) [No Change]
(c) [No Change]
(d) [No Change]
(e) Appeal by an Inmate Confined in an Institution.
If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.

Amended and Adopted by the Court, En Banc, May 17, 2001, effective July 1, 2001.


Change #2001(8)
Chapter 32. Colorado Appellate Rules—General Provisions
Amended and Adopted

Rule 25. Filing and Service

(a) Filing. Papers required or permitted to be filed in the appellate court shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that (1) briefs shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized; and (2) a paper filed by an inmate confined to an institution shall be deemed filed when filed in accordance with C.A.R. 25(b). If a motion requests relief, which may be granted by a single judge or justice, the judge or justice may permit the motion to be filed with him or her, in which event the judge or justice shall note thereon the date of filing and shall thereafter transmit it to the clerk.
(b) Inmate Filings.
A document filed by an inmate confined in an institution is timely filed with the court if deposited in the institution’s internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.
(c) Service of all Papers Required.
Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for that party on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel.
(d) Manner of Service.
Service may be personal or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing.
(e) Proof of Service.
Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the person served, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter.

Amended and Adopted by the Court, En Banc, May 17, 2001, effective July 1, 2001.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

A full set of the Chief Justice Directives may be purchased from the Colorado Judicial Department for $15, which includes copying, handling, and postage costs. Checks should be made payable to Colorado Judicial Department and should be mailed to: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203. Individual Chief Justice Directives will be assessed a $5 charge, pursuant to Chief Justice Directive 96-01, concerning standard research fees. Chief Justice Directives also are available from the Colorado Supreme Court homepage at: www.courts.state. co.us/supct/cjdirect/cjdirectives.htm.

Publication in The Colorado Lawyer

Chief Justice Directives will be published on a space available basis in this "Court Business" section of The Colorado Lawyer. Some attachments may be omitted. To obtain a copy of attachments, contact the Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203.


Chief Justice Directive 98-01
Costs for Indigent Persons in Civil Matters
Notice of Revision to Attachment A, May 2, 2001

Chief Justice Directive ("CDJ") 98-01, Attachment A, was revised on May 2, 2001. There were no changes to the CDJ itself. Revisions were made to: "Procedures for the Waiver of Court Costs in Civil Cases on the Basis of Indigency"; "Motion to File Without Payment and Supporting Financial Affidavit"; and "Finding and Order Concerning Payment of Fees." To view the revised Attachment A to CDJ 98-01, visit the Colorado Supreme Court homepage at: www.courts.state.co.us/supct/cjdirect/
cjdirectives.htm.


Proposed Amendments to C.R.C.P. 26(b)(1) and 30(d)
And Colo.RPC 1.5(f) & (g), Including Proposed Comment
Written Comments Due by August 31, 2001, 5:00 p.m.

NOTICE

The Colorado Supreme Court will entertain written comments to the Proposed Amendments to C.R.C.P. 26(b)(1) and 30(d) and Colo.RPC 1.5(f) & (g) and Proposed Comment. An original and eight copies of written comments should be submitted to: Mac V. Danford, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203-2115, by 5:00 p.m., Friday, August 31, 2001.

 

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

 

(a) [No Change]
(b) Discovery Scope and Limits.
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General.
Subject to the limitations and considerations contained in subsection (b)(2) of this Rule, parties may obtain discovery regarding any matter, not privileged, which that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. TheRelevant information sought need not be admissible at the trial if the discovery information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(2)
[No Change]
(3)
[No Change]
(4)
[No Change]
(c)
[No Change]
(d)
[No Change]
(e)
[No Change]
(f)
[No Change]
(g)
[No Change]

COMMITTEE COMMENT

SCOPE [No Change]

COLORADO DIFFERENCES [No Change]

FEDERAL COMMITTEE NOTES [No Change]

NOTES TO CHANGES ADOPTED 2001

The May 2001 amendment of C.R.C.P. 26(b)(1) is patterned after the December 2000 amendment of the corresponding federal rule. The amendment should not prevent a party from conducting discovery to seek impeachment evidence or evidence concerning prior acts.

Subsection (a)(2)(C)(II) is intended to prevent a plaintiff, who may have had a year or more to prepare his or her case, from filing an expert report early in the case in order to force a defendant to prepare a virtually immediate response. This section provides that the defendant’s expert report will not be due until 90 days prior to trial.

Subsection (b)(2)(A) has been changed to clarify that the deposition limitation does not apply to persons expected to give expert testimony disclosed pursuant to subsection 26(a)(2).

The special and limited form of request for admission in subsection (b)(2)(E) allows a party to seek admissions as to authenticity of documents to be offered at trial without having to wait until preparation of the Trial Management Order to discover whether the opponent challenges the foundation of certain documents. Thus, a party can be prepared to call witnesses to authenticate documents if the other party refuses to admit their authenticity.


Rule 30. Depositions Upon Oral Examination

(a) [No Change]
(b)
[No Change]
(c)
[No Change]
(d) Schedule and Duration; Motion to Terminate or Limit Examination.
(1) Any objection to evidence during a deposition shall be stated concisely and in a non- argumentative and non-suggestive manner. An instruction not to answer may be made during a deposition only when necessary to preserve a privilege, to enforce a limitation on evidencedirected by the court, or to present a motion pursuant to subsection (d)(4) (3) of this Rule.
(2) Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours. By order, the court may limit the time permitted for the conduct of a deposition to less than seven hours, orbut may allow additional time if needed for a fair examination of the deponent and consistent with C.R.C.P. 26(b)(2)(1), or if the deponent or another party person impedes or delays the examination, or if other circumstances warrant.
(3)
If the court finds such an impediment, delay, or other conduct that frustrates the fair examination of the deponent, it may impose upon the person responsible therefor an appropriate sanction, including the reasonable costs and attorney fees incurred by any parties as a result thereof.
(4)
(3) At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in C.R.C.P. 26(c). If the order made terminates the examination, it shall may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of C.R.C.P. 37(a)(4) apply to the award of expenses incurred in relation to the motion.
(e)
[No Change]
(f)
[No Change]
(g)
[No Change]


Colorado Rules of Professional Conduct
Rule 1.5. Fees

[For related information, see "Colorado Supreme Court Asks CBA to Help Draft New Ethics Rules on Advance Fees," 29 The Colorado Lawyer 148 (Oct. 2000).]

(a) [No Change]
(b) [No Change]
(c) [No Change]
(d) [No Change]
(e) [No Change]
(f)(1) Fees are not earned until the lawyer confers a benefit on the client or performs a legal service for the client. Advances of unearned fees are the property of the client pursuant to Rule 1.5(a) and shall be deposited in the lawyer’s trust account pursuant to Rule 1.15(f)(1). If advances of unearned fees are in the form of property other than funds, the lawyer shall hold such property separate from the attorney’s own property pursuant to Rule 1.15(a).
(2) The client and the lawyer may agree that the lawyer earns a fee upon receipt by providing an immediate benefit to the client ("earned retainer"), whether it is labeled as an engagement retainer, lump sum fee, flat fee, or other type of advance fee, only if the following conditions are met:
(a) The lawyer must first consult with the client and inform the client that the attorney will treat the earned retainer as the attorney’s property upon receipt.
(b) The fee agreement must be in writing, must comply with Rule 1.5(a), and must include at least the following:
(i) the amount of the earned retainer;
(ii) an explanation of the service or benefit that justifies the earned retainer.
(g) Nonrefundable fees or nonrefundable retainers are prohibited.


Comment to Rule Implementing Sather Decision
Advances of Unearned Fees

Rule 1.5(f) gives effect to the principles of disclosure and communication with the client in the context of advances of unearned fees and earned retainers. A lawyer and client may agree to such arrangements in connection with single or multiple, and actual or prospective, matters. The lawyer’s responsibilities under this provision apply regardless of the precise terms used in the fee agreement to characterize the arrangement.

The analysis of the ethical propriety of advances of unearned fees and earned retainers must begin with the principle that all fees paid before the work is performed must be held in trust until there is a basis on which to conclude that the attorney has earned the fee; otherwise the funds must remain as the client’s property in the attorney’s trust account. There is a presumption that any advance fee is a deposit from which the attorney will be paid for specific legal services, unless the fee agreement expressly states otherwise. The attorney should also communicate the fact that the client may discharge the lawyer at any time and receive a refund of any unearned funds, without being penalized by "non-refundable" fees or retainers.

Advances of unearned fees, including "lump-sum" fees and "flat fees," are those funds paid by the client for specified legal services to be performed by the attorney in the future. Colo. RPC 1.5 (f) does not prohibit lump sum fees or flat fees. It is presumed, pursuant to Rule 1.15, that an advanced fee shall be deposited in the lawyer’s trust account and the funds may be withdrawn only as the attorney performs specified legal services or confers benefits on the client. However, subject to the requirements of Rule 1.5 (f), the lawyer and the client may agree that an advance fee may be treated as an earned retainer, in which case the lawyer must place the funds into the lawyer’s operating account. See Restatement (Third) of the Law Governing Lawyers §§ 34 cmts. c, illus. 1 (flat fees), d (lump sum fees) & 38 cmt. g (advance payment, lump-sum fee) (1998); Rule 1.15(f)(2). Rule 1.5(f)does not prevent the lawyer from entering into these types of arrangements. Lawyers and clients are free to negotiate a broad range of compensation terms. For example, subject to the requirements of Rule 1.5(f), a lawyer and client may agree that a portion of a client’s advance payment is earned upon receipt by the lawyer, with the remaining portion deposited into the trust account and withdrawn by the lawyer as additional benefit to the client or legal services are provided.

To make a determination of when the fees become "earned," the written fee agreement must specify the terms of the benefits which the attorney will confer upon the client. Whether a sufficient benefit has been conferred by the lawyer to retain or to "earn" a portion of the advance fee depends on the circumstances of the particular case. See Restatement (Third) of the Law Governing Lawyers §§ 34 cmt. e (engagement retainer fees) & 38 cmt. g (engagement retainer fees). The circumstances should be judged under an objective standard of reasonableness.

For example, the lawyer and the client may agree that the lawyer earns advances of unearned fees at an hourly rate as the lawyer actually performs legal services for the client. The advances of unearned fees are deemed earned at the lawyer’s hourly rate as he or she performs the work. As a contrasting illustration, the lawyer and client may agree that the advance of unearned fees is a flat fee, which will be earned based upon the lawyer’s completion of specific tasks, regardless of the precise amount of the lawyer’s time involved. The advances of unearned fees are deemed earned when specific events in the representation occur. For example, in a criminal defense context, a lawyer may be deemed to earn fees upon entry of appearance, initial advisement, review of discovery, preliminary hearing, disposition hearing, motions hearing, trial, and sentencing. Similarly, in a trusts and estates context, a lawyer may be deemed to earn fees upon client consultation, legal research, completing the initial draft of testamentary documents, further client consultation, and completing the final documents. The portion of the flat fee attributed to each event need not be in equal amounts. However, the attribution should reflect a reasonable estimate of the proportion of the lawyer’s legal services provided in completing each designated phrase to the anticipated legal services to be provided on the entire matter. See Rule 1.5(a); Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1252 – 53 (Colo. 1996) (client’s sophistication is relevant factor).

An earned retainer, also called an engagement retainer or general retainer, typically compensates an attorney for agreeing to represent the client. With an earned retainer, the lawyer provides an immediate benefit to the client in various ways, including foregoing other business opportunities, whether by making the lawyer’s services available for a given period of time to the exclusion of other clients or potential clients or by giving priority to the client’s work over other matters. So long as such fees are reasonable and comply with Rule 1.5(f), these arrangements are permissible. For example, an earned retainer will satisfy these requirements if it is reasonably related to the income the lawyer sacrifices or expense the lawyer incurs by accepting it, including costs such as turning away clients due to time constraints or conflicts of interest, hiring additional personnel to allow taking on the client’s matter, monitoring and keeping abreast of the relevant field, and the like.

A lawyer cannot treat a fee as "earned" simply by labeling the fee as "earned on receipt" or by calling it an earned retainer. "Rather, the attorney must explain in detail the nature of the benefit being conferred on the client, whether it is the attorney’s guarantee of availability, prioritization of the client’s work, or some other appropriate consideration." In re Sather, 3 P.3d 403, 412 (Colo. 2000). The requirement of a written fee agreement under Rule 1.5(f)(2) applies even to clients the lawyer has regularly represented, notwithstanding Rule 1.5(b). A lawyer is not required to obtain the client’s signature on a written fee agreement for purposes of an earned retainer, although it is advisable for the lawyer to do so in order to reduce the possibility of any misunderstanding. The lawyer’s explanation of the benefit being conferred will depend on the particular situation. The lawyer shall not provide the client with any such explanation that is unsupported by the facts. For example, a lawyer who purports to give all clients "high priority," so as to justify charging all of them an earned retainer, does so disingenuously in violation of Rule 1.5(f).

Prohibition on Non-refundable Fees or Retainers. It is unethical for a lawyer to fail to return unearned fees, to charge an excessive fee, or to characterize a fee or retainer as non-refundable. Attorney fees are always subject to refund if either excessive or unearned. If all or some portion of an earned retainer becomes subject to refund, the amount to be refunded should either be paid directly to the client (if there is no further legal work to be performed or if the lawyer’s employment is terminated) or may be deposited in the lawyer’s trust account (if there is still an ongoing attorney-client relationship and there is further work to be done, the fees for which work may be withdrawn from the trust account as they are earned).

© 2001 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=2001.


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