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TCL > April 2011 Issue > Court Business

The Colorado Lawyer
April 2011
Vol. 40, No. 4 [Page  97]

© 2011 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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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

Rule Change 2011(3)
C.R.Crim.P. 4.2. Arrest Warrant Without Information,
Felony Complaint, or Complaint
C.R.Crim.P. 41. Search, Seizure, and Confession
Amended

Rule 4.2. Arrest Warrant Without Information,
Felony Complaint, or Complaint

If a warrant for arrest is sought prior to the filing of an information, felony complaint, or complaint, such warrant shall issue only on affidavit sworn to or affirmed before the judge, or a notary public and determined by a judge to relate facts sufficient to establish probable cause that an offense has been committed and probable cause that a particular person committed that offense. A warrant may be obtained by facsimile transmission (FAX) or electronic transmission pursuant to procedures set forth in Rule 41, in which event the procedure in Rule 41 shall be followed. The court shall issue a warrant for the arrest of such person commanding any peace officer to arrest the person so named and to take the person without unnecessary delay before the nearest judge of a court of record.

_______________

Rule 41. Search, Seizure, and Confession

(a) through (b) [No Change]

(c) Application for Search Warrant

(1) through (2.5) [No Change]

(3) Application and Issuance of a Warrant by Facsimile or Electronic Transmission. A warrant, signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the judge, who may act upon the transmitted documents as if they were originals. A warrant affidavit may be sworn to or affirmed by administration of the oath over the telephone by the judge. Upon receipt of an affidavit by electronic transfer with an electronic signature, a judge or magistrate shall mark the affidavit as "original." A warrant approved by the judge or magistrate, signed with electronic signature, shall be marked as "original." The judge or magistrate shall facilitate the filing of the original affidavit and original warrant in an un-editable format with the clerk of the court. The issuing judge or magistrate shall also forward a copy of the warrant and affidavit, with electronic signatures, to the affiant. This subsection (c)(3) does not authorize the court to issue warrants without having in its possession either a faxed copy of the signed affidavit and warrant or an electronic copy of the affidavit and warrant with electronic signatures.

(d) through (e) [No Change]

(f) Return of Papers to Clerk. The judge who has issued a warrant shall attach to the warrant a copy of the return, inventory, and all other documents in connection therewith, including any affidavit in application for the warrant, and shall file them with the clerk of the district court for the county of origin. If a case has been filed in the district court after issuance of the warrant, the clerk of the district court shall notify the clerk of the county court which issued it that the warrant has been filed in the district court. When the warrant has been issued by the county judge and there is no subsequent filing in the district court, after the issuance of the warrant, the documents shall remain in the county court. Any documents transmitted by fax or electronic transmission to the judge to obtain the warrant and the documents transmitted by the judge to the applicant shall be filed with the clerk of the court.

(g) through (h) [No Change]

Rule 41.1. Court Order for Nontestimonal Identification

(a) through (b) [ No Change]

(c) Basis for order. An order shall issue only on an affidavit or affidavits sworn to or affirmed before the judge, or by the procedures set forth in Crim. P. 41(c)(3), and establishing the following grounds for the order:

(1) through (3) [No Change]

(d) through (i) [No Change]

Amended by the Court, en banc, February 10, 2011, effective immediately.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

______________________________________________

Rule Change 2011(4)
Colo. RPC 1.15, 1.16A, 3.6, and 3.8

Amended

Rule 1.15. Safekeeping Property

General Duties of Lawyers Regarding Property of Clients and Third Parties

(a) through (c) [No Changes]

Required Bank Accounts

(d) through (e) [No Changes]

Trust Account Requirements and Management; COLTAF Accounts

(f) through (i) [No Changes]

Required Accounting Records; Retention of Records; Availability of Records

(j) (1) through (5) [No Changes]

(6) Copies of all records showing payments to any persons, not in the lawyer’s regular employ, for services rendered or performed; and

(7) All bank statements and photo static copies or electronic copies of all canceled checks.

(k) [No Changes]

(l) Dissolutions and Departures. Upon the dissolution of a law firm, the lawyers in the law firm shall make arrangements for the maintenance or disposition of records and client files in accordance with subsection (j) of this Rule and Rule 1.16A. Upon the departure of a lawyer from a law firm, the departing lawyer and the lawyers in the law firm shall make appropriate arrangements for the maintenance or disposition of records and client files in accordance with subsection (j) of this Rule and Rule 1.16A.

(m) [No Changes]

COMMENT

[1] A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box except when some other form of safekeeping is warranted by special circumstances. "Property" generally refers to jewelry and other valuables entrusted to the lawyer by the client, as well as documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills. All property that is the property of clients or third persons should be kept separate from the lawyer’s business and personal property and, if monies, in one or more trust accounts.

[2] through [8] [No Changes]

ANNOTATION

[No Changes]

_______________

Rule 1.16A. Client File Retention

(a) A lawyer in private practice shall retain a client’s files respecting a matter unless:

(1) the lawyer delivers the file to the client or the client authorizes destruction of the file in a writing signed by the client and there are no pending or threatened legal proceedings known to the lawyer that relate to the matter; or

(2) the lawyer has given written notice to the client of the lawyer’s intention to destroy the file on or after a date stated in the notice, which date shall not be less than thirty days after the date of the notice, and there are no pending or threatened legal proceedings known to the lawyer that relate to the matter.

(b) At any time following the expiration of a period of ten years following the termination of the representation in a matter, a lawyer may destroy a client’s files respecting the matter without notice to the client, provided there are no pending or threatened legal proceedings known to the lawyer that relate to the matter and the lawyer has not agreed to the contrary.

(c) Notwithstanding paragraphs (a) and (b) above, a lawyer in a criminal matter shall retain a client’s file for the following time periods:

(1) for the life of the client, if the matter resulted in a conviction and a sentence of death, life without parole, or an indeterminate sentence, including a sentence pursuant to the Colorado Sex Offender Lifetime Supervision Act of 1998, 18-1.3-1001 et seq., C.R.S.

(2) for eight years from the date of sentencing, if the matter resulted in a conviction for any other felony and the conviction and/or sentence was appealed;

(3) for five years from the date of sentencing, if the matter resulted in a conviction for any other felony and neither the conviction nor the sentence was appealed.

(d) A lawyer may satisfy the notice requirements of paragraph (a)(2) of this Rule by establishing a written file retention policy consistent with this Rule and by providing a notice of the file retention policy to the client in a fee agreement or in writing delivered to the client not later than thirty days before destruction of the client’s file or incorporated into a fee agreement.

(e) This Rule does not supersede or limit a lawyer’s obligations to retain a client’s file that are imposed by law, court order, or rules of a tribunal.

COMMENT

[1] Rule 1.16A is not intended to impose an obligation on a lawyer to preserve documents that the lawyer would not normally preserve, such as multiple copies or drafts of the same document. A client’s files, within the meaning of Rule 1.16A, consist of those things, such as papers and electronic data, relating to a matter that the lawyer would usually maintain in the ordinary course of practice. A lawyer’s obligations with respect to client "property" are distinct. Those obligations are addressed in Rules 1.16(d), 1.15(a) and 1.15(b). "Property" generally refers to jewelry and other valuables entrusted to the lawyer by the client, as well as documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills.

[2] A lawyer may comply with Rule 1.16A by maintaining a client’s files in, or converting the file to, electronic form, provided the lawyer is capable of producing a paper version if necessary. Rule 1.16A does not require multiple lawyers in the same law firm to retain duplicate client files or to retain a unitary file located in one place. "Law firm" is defined in Rule 1.0 to include lawyers employed in a legal services organization or the legal department of a corporation or other organization. Rule 5.1(a) addresses the responsibility of a partner in a law firm to "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct." Generally, lawyers employed by a private corporation or other entity as in-house counsel represent such corporation or entity as employees and the client’s files are considered to be in the possession of the client and not the lawyer, such that Rule 1.16A would be inapplicable. Where lawyers are employed as public defenders or by a legal services organization or a government agency to represent third parties under circumstances where the third-party client’s files are considered to be files and records of the organization or agency, the lawyer must take reasonable measures to ensure that the client’s files are maintained by the organization or agency in accordance with this rule.

[3] Rule 1.16A does not supersede obligations imposed by other law, court order or rules of a tribunal. The maintenance of law firm financial and accounting records covered by Rule 1.15(a) and 1.15(j) is governed exclusively by those rules. Similarly, Rule 1.16A does not supersede specific retention requirements imposed by other rules, such as Rule 5.5(d)(2) (two-year retention of written notification to client of utilization of services of suspended or disbarred lawyer), Rule 4, Chapter 23.3 C.R.C.P. (six-year retention of contingent fee agreement and proof of mailing following completion or settlement of the case) and C.R.C.P. 121, § 1-26(7) (two-year retention of signed originals of e-filed documents). A document may be subject to more than one retention requirement, in which case the lawyer should retain the document for the longest applicable period. Rule 1.16A does not prohibit a lawyer from maintaining a client’s files beyond the periods specified in the Rule.

[4] A lawyer may not destroy a client’s file when the lawyer has knowledge of pending or threatened proceedings relating to the matter. The Rule does not affect a lawyer’s obligations under Rule 1.16(d) with respect to the surrender of papers and property to which the client is entitled upon termination of the representation. A client’s receipt of papers forwarded from time to time by the lawyer during the course of the representation does not alleviate the lawyer’s obligations under Rule 1.16A.

[5] The destruction of a client’s files under paragraph (a) of Rule 16A is subject to two sets of preconditions. First, the lawyer must have given written notice to the client of the lawyer’s intention to destroy the files on or after a date certain, which date is not less than thirty days after the date the notice was given or the client has authorized the destruction of the files in a writing signed by the client. As provided in paragraph (d), the notice requirement in paragraph (a) can be satisfied by timely giving the client a written statement of the applicable file retention policy; for example, that policy could be contained in a written fee agreement. A lawyer should make reasonable efforts to locate a client for purposes of giving written notice when such notice was not provided during the representation. If the lawyer is unable to locate the client, written notice sent to the client’s last known address is sufficient under paragraph (a) Rule 1.16A. Second, the lawyer may not destroy the files if the lawyer knows that there are legal proceedings pending or threatened that relate to the matter for which the lawyer created the files, if the file is subject to paragraph (c) of this Rule, or if the lawyer has agreed otherwise. If these preconditions are satisfied, the lawyer may destroy the files in a manner consistent with the lawyer’s continuing obligation to maintain the confidentiality of information relating to the representation under Rules 1.6 and 1.9. Nothing in this Rule is intended to mandate that a lawyer destroy a file in the absence of a client’s instruction to do so. Notwithstanding a client’s instruction to destroy or return a file, a lawyer may retain a copy of the file or any document in the file.

_______________

Rule 3.6. Trial Publicity

(a) [No Changes]

(b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state:

(1) through (7) [No Changes]

(c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) [No Changes]

COMMENT

[1] through [8] [No Changes]

_______________

Rule 3.8. Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) through (e) [No changes]

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused unless such comments are permitted under Rule 3.6(b) or 3.6(c), and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

(g) through (h) [No Changes]

COMMENT

[1] through [4] [No Changes]

[5] Paragraph (f) supplements—the prohibition in Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding, but does not limit the protection of Rule 3.6(b) or Rule 3.6(c). In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public condemnation of the accused. Nevertheless, a prosecutor shall not be subject to disciplinary action on the basis that the prosecutor’s statement violated paragraph (f), if the statement was permitted by Rule 3.6(b) or Rule 3.6(c).

[6] through [9A] [No Changes]

ANNOTATION

[No Changes]

Amended by the Court, en banc, February 10, 2011, effective immediately.

By the Court:

Nathan B. Coats
Justice, Colorado Supreme Court

© 2011 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=2011.


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