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TCL > September 2010 Issue > Court Business

September 2010       Vol. 39, No. 9       Page  113
From the Courts

Court Business

Visit the related Court’s website for complete text of rule changes or proposed rule changes issued by the Court. Each Court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears as submitted by the Court and has not been edited by the staff of The Colorado Lawyer.


Colorado Supreme Court Rules Committee

Notice of Public Hearing and Request for Comments
Colorado Rules of Professional Conduct 1.5 and 1.8
Deadline for Comments: Wednesday, October 20, 2010, 5:00 p.m.
Hearing: Wednesday, October 27, 2010, 1:30 p.m.

The Colorado Supreme Court will conduct a hearing on proposed amendments to Colorado Rules of Professional Conduct 1.5(b) and Comments [2] and [3A] and Comment [1] to Colorado Rules of Professional Conduct 1.8. The hearing will occur on Wednesday, October 27, 2010 at 1:30 p.m. at the Colorado Supreme Court Courtroom, 101 W. Colfax Ave., First Floor, Denver.

The Court also requests written public comments on the proposed amendments. An original and eight copies of the written comments should be submitted to Susan J. Festag, Clerk of the Colorado Supreme Court, 101 W. Colfax Ave., Ste. 800, Denver, CO 80202-5315, no later than 5:00 p.m. on Wednesday, October 20, 2010. Persons wishing to participate at the hearing should notify the Clerk no later than Wednesday, October 20, 2010.

The proposed amendments can be found on the Court’s website at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm. Written comments will be posted on the Court’s website as they are received.

By the Court:

Michael L. Bender and Nathan B. Coats
Justices, Colorado Supreme Court

___________________________________________________
 

 Colo.RPC 1.5. Fees

(a)(1)–(8) [No change]

(b) When the lawyer has not regularly represented the client, the basis or rate of the fee and expenses shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation. The lawyer also shall communicate in writing to the client any change to the basis or rate of the fee or expenses. Except as provided in a written fee agreementagreed by a lawyer and a client regarding reasonable periodic increases in the fee or expenses, any material changes to the basis or rate of the fee or expenses are subject to the provisions of Rule 1.8(a).

(c)–(g) [No change]

COMMENT

[1] [No change]

Basis or Rate of Fee

[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, the basis or rate of the fee must be promptly communicated in writing to the client. When the lawyer has regularly represented a client, they ordinarily will have reached an understanding concerning the basis or rate of the fee; but, when there has been a change from their previous understanding, the basis or rate of the fee should be promptly communicated in writing. All contingent fee arrangements must be in writing, regardless of whether the client-lawyer relationship is new or established. See C.R.C.P., Ch. 23.3, Rule 1. A written communication must disclose the basis or rate of the lawyer’s fees, but it need not take the form of a formal engagement letter or agreement, and it need not be signed by the client. Moreover, it is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, to identify the factors that may be taken into account in finally fixing the fee, or to furnish the client with a simple memorandum or the lawyer’s customary fee schedule. When developments occur during the representation that render an earlier disclosurecommunication substantially inaccurate, a revised written disclosurecommunication should be provided to the client.

[3] [No change]

[3A] For purposes of Paragraph (b), a material change to the basis or rate of the fee is one that is reasonably likely to increase the amount payable by the client or which otherwise makes more burdensome the original financial obligations of the client.Reasonable periodic increases in the fee or expenses to which the client expressly or impliedly agrees are not subject to Rule 1.8(a). The client’s agreement to such periodic increases may be manifested by a provision for such increases in any written fee agreement, any communication required by the first sentence of Rule 1.5(b) to which the client assents, or a course of dealing between the lawyer and client. The reasonableness requirement of Rule 1.5(a) applies to increases in the fee or expenses. When a change in the basis or the rate of the fee or expenses is reasonably likely to benefit the client, such as a reduction in the hourly rate or a cap on the fees or expenses that did not previously did not exist, the change is not material for these purposes and compliance with Rule 1.8(a) isdoes not requiredapply.

[4]–[18] No change

___________________________________________________
 

Colo.RPC 1.8. Conflict of Interest: Current Clients: Specific Rules

(a)–(k) [No change]

COMMENT

Business Transactions Between Client and Lawyer

[1] A lawyer’s legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer’s legal practice. See Rule 5.7. It also applies to lawyers purchasing property from estates they represent. Subject to the last sentence of Rule 1.5(b), Iit does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client’s business or other nonmonetary property as payment of all or part of a fee. In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities’ services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.

[2]–[20] [No change]

___________________________________________________
 

Rule Change 2010(15)
Appendix C to Chapter 27, Colorado Probate Code Forms
Amended and Adopted

JDF 250 Notice Claims and Summons for Trial

(Forms in this Appendix are available online at www.courts.state.co.us/Forms/Index.cfm.)

Amended and Adopted by the Court, en banc, June 19, 2010, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

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