Vol. 29, No. 10
From the Courts
In the U.S. District Court
For the District of Colorado
In the Matter of the Local Rules of Practice
General Order 2000-2
It has been the custom or practice of attorneys when entering an appearance as counsel to name the firm or other organization with which the attorney is associated. An additional practice has developed to list other lawyers, not necessarily members of the bar of this court, with the description, "Of Counsel." Moreover, some pleadings have been filed with facsimile signatures or those indicating the signature of the attorney was made by a person not a member of the bar of this court such as a secretary or legal assistant. These practices are in violation of the Local Rules of Practice. Pleadings bearing such listings or designations as well as indecipherable signatures or marks shall no longer be filed.
Rule 11 (a) of the Federal Rules of Civil Procedure provides "Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the individual attorney’s name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. . . . An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party." Rule 11 only applies to anyone who signs a pleading, motion or other paper.
D.C.Colo.LR 83.5 A provides "An applicant for admission to the bar of this court must be of good moral character licensed by the highest court of a state, federal territory or the District of Columbia where a written examination was required for admission and be a member of the bar in good standing in all courts and jurisdictions where he or she has been admitted. Each applicant for admission shall complete an approved form provided by the clerk. Each applicant shall pay to the clerk of court such fee as is prescribed by General Order of Court." D.C. Colo.LR 83.5 B provides "An attorney’s entry of appearance by signing a pleading, motion, or other paper does not constitute entry of appearance by that attorney’s firm." D.C.Colo.LR 83.5 C provides "An attorney who applies for admission to the bar of this court: (1) consents to this court’s exercise of disciplinary jurisdiction over any alleged misconduct; and (2) certifies familiarity with the local rules of this court."
D.C.Colo.LR 5.1 K provides "The name, current address, and telephone number of any attorney of record or pro se litigant filing a paper shall be legibly signed and typed on it and on the required copy. The address of a party shall appear on the first paper filed by an attorney on behalf of that party or by the party pro se. A post office box number will be accepted as a mailing address, but a street address must also be provided."
Only members of the bar of this court and pro se litigants may sign pleadings, written motions or other papers. The court takes notice that some members of law firms are not members of the bar of this court and indeed some partners of lawyers in some jurisdictions are not members of any bar. Thus, the attempt to enter the appearance of a law firm or other organization by imputation or vicarious action can constitute an evasion of the foregoing rules. Partnerships, limited liability corporations, professional corporations and other entities cannot practice law or be held vicariously accountable for violations of the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure or the Local Rules of Practice.
IT IS ORDERED that henceforth attorneys shall not file any pleadings, written motions or other papers listing or otherwise identifying as appearing as counsel or of counsel firm names, trade names or the names of lawyers not admitted to the bar of the court who have not previously entered an appearance whether in civil or criminal cases. Such pleadings, motions and other papers already on file or hereafter filed by inadvertence will be disregarded and considered immaterial. As such, in individual cases, a district judge or magistrate judge may order the noncompliant language stricken. Appearances of counsel will only be recognized if made in open court or by the filing of a signed formal entry of appearance or by the individual attorney signing a pleading, motion or other paper filed with the Court. The appearance of an attorney for the United States government shall continue to be regulated by the provisions of 28 U.S.C. § 519 and this Order shall not be applied or construed in any manner inconsistent therewith.
Dated this 26th day of July 2000, at Denver, Colorado.
By the Court:
Lewis T. Babcock
Chief Justice Directive 97-01 Revised
Chief Justice Directive 97-01, Appointment of State Funded Counsel in Criminal and Juvenile Delinquency Cases, has been revised effective August 17, 2000. Most of the changes relate to the Alternate Defense Counsel and the elimination of the partially indigent status. The revised Directive is available on the Colorado Courts website at www.courts.state.co.us (click on Index of Chief Justice Directives under the heading "Today In Your Courts").
Colorado Supreme Court Asks CBA to Help Draft
New Ethics Rules on Advance Fees:
Comments Asked for by November 1, 2000
The Colorado Supreme Court has requested assistance from the Colorado Bar Association in drafting and commenting on proposed new ethics rules to implement its recent Opinion in In re Sather, 3 P.3d 403 (Colo. 2000) [29 Colo.Law. 256 (July 2000)], which concerns the receipt of advance fees by lawyers. In Sather, the Supreme Court held that, subject to specified exceptions, all advance fees, including lump sum fees and flat fees, must be placed into a lawyer’s trust account and withdrawn only as the attorney performs services or confers benefits on the client.
In a May 22, 2000, Opinion authored by Justice Michael Bender, the Supreme Court unanimously ruled in Sather that under Colo. RPC 1.15, an attorney cannot treat advance fees as property of the attorney and must segregate all such fees by placing them into a trust account until such time as the fees are earned. The Court also held that an attorney cannot label advance fees as non-refundable, because such label misleads the client and risks impermissibly burdening the client’s right to discharge his or her attorney, in violation of Colo. RPC 8.4(c) and 1.16(d).
Although the Supreme Court held that advance fees are generally unearned and must be kept in a lawyer’s trust account until earned, it determined that some advance fees, known as a general retainer or engagement retainer, are permissible if they are provided in exchange for a specific service, such as agreeing to give priority to a client’s case or when the attorney agrees to forego other potential employment because of representation of that client.
The Supreme Court also noted that a client may advance funds, in the form of advance fees, special retainers, lump sum fees, or flat fees, to pay for specified legal services to be performed by the attorney and to cover future costs. However, the Court held that unless a fee agreement expressly states that a fee is an engagement retainer and explains how the fee is earned upon receipt, courts will presume that any advance fee is to be deposited in the lawyer’s trust account, from which an attorney will be paid for specified legal services.
In its Opinion, the Court stated as follows:
[W]e also recognize that a substantial number of attorneys in this state engage in conduct that would be affected by our discussion of these issues. . . . Because we acknowledge that our opinion concerning the proper disposition of such a fee has widespread practical implications and because we wish to provide practicing attorneys a full opportunity both to comment on any proposed rules and also to comport their practices to these ethical constraints, we are referring these issues to the Colorado Bar Association. We will request that the CBA solicit widespread comment from practicing attorneys and draft proposed rules that will implement the ethical principles that we today announce.
This is believed to be the first time the Colorado Supreme Court has expressly called on the Colorado Bar Association ("CBA") for assistance of this nature. Additionally, the Court indicated in Sather that it expected the CBA to refer this matter to the CBA Ethics Committee, "an active broad-based committee experienced in professional responsibility issues."
Pursuant to this request for assistance, the CBA and the Ethics Committee, in consultation with Supreme Court Chief Justice Mary Mullarkey and Justice Bender, agreed on a procedure for recommending proposed new ethics rules to the Court. Under that procedure, the Revision of Rules Subcommittee of the Ethics Committee has been meeting throughout the summer to draft a proposed rule and comment, consistent with the Sather Opinion. In August 2000, the full CBA Ethics Committee reviewed the Proposed Rule and Comment and, after considerable discussion, agreed to a "distribution draft" of the Proposed Rule and Comment for review by the entire Colorado Bar. The Proposed Rule and Comment have been posted on the CBA website, www.cobar.org, and will be reviewed in September 2000 by various CBA committees and sections, as well as by local and specialty bar associations.
The CBA and the Ethics Committee welcome your comments, and request that you submit them to the CBA on or before Wednesday, November 1, 2000. The Ethics Committee then will review all comments and consider them at its November and, if necessary, December 2000 meetings. After further discussion by the Ethics Committee, a Proposed Rule and Comment will be submitted to the CBA Board of Governors for its consideration at its January 6, 2001, meeting. The Board of Governors then will consider for approval a Draft Rule and Comment and submit them to the Supreme Court for its consideration.
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