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TCL > December 2012 Issue > Court Business

The Colorado Lawyer
December 2012
Vol. 41, No. 12 [Page  113]

© 2012 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

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 2012(13)
Colorado Rules of Civil Procedure
Rule 120.1. Order Authorizing Expedited Sale Pursuant to Statute
Amended and Adopted

(a) Motion; Contents. An order of the court authorizing an expedited sale pursuant to section 38-38-903, C.R.S. may be sought in conjunction with the order authorizing sale. An eligible holder as defined by statute may file a verified motion, together with a supporting affidavit, in a district court seeking an order authorizing an expedited sale together with the motion for order authorizing sale pursuant to C.R.C.P. Rule 120. The affidavit shall state the following: (1) The moving party is an eligible holder as that term is defined by statute; (2) the subject deed of trust secures an eligible evidence of debt as that term is defined by statute; and (3) the property has been abandoned as defined by statute, or in the alternative, the grantor of the deed of trust requests an order for expedited foreclosure sale. Upon receipt of the motion and supporting affidavit, the clerk shall fix a time and place for a hearing on the motion for order authorizing sale and the motion for an expedited sale. The time fixed for hearing shall be not less than twenty nor more than thirty calendar days after the filing of the motion for expedited sale.

(b) Notice; Contents; Service. The moving party shall issue a combined notice in English and Spanish, which shall include the provisions as specified in C.R.C.P. Rule 120(b) and add a statement that the moving party is seeking in addition to the order authorizing sale, an order for expedited foreclosure sale. The moving party shall additionally state that the property is abandoned, or in the alternative that the grantor of the deed of trust has requested the order for expedited foreclosure sale. At least fifteen calendar days prior to the hearing, the combined notice shall be served by the moving party as required by C.R.C.P. 120, and in addition, shall be either personally served on the grantor of the deed of trust, or posted at the real property as provided in C.R.C.P. Rule 120(b). Such mailing, delivery to the clerk for posting and personal service or property posting shall be evidenced by the certificate of the moving party or the moving party’s agent.

(c) through (e) [No change]

Amended and Adopted by the Court, en banc, September 20, 2012, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_____________________________________

Rule Change 2012(14)
Appendix A to Chapter 27—Colorado Probate Code Forms
Amended and Adopted

Amended Forms

JDF 941 Decedent’s Estate Inventory

JDF 999 Collection of Personal Property by Affidavit

(Forms in this Appendix are available online at www.courts.state.co

Amended and Adopted by the Court, en banc, October 10, 2012, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_____________________________________

Rule Change 2012 (15)
Colorado Appellate Rules
Rule 5. Entry of Appearance and Withdrawal
Adopted

(a) through (d). [No change]

(e) Notice of Limited Representation Entry of Appearance and Withdrawal. An attorney may undertake to provide limited representation to a pro se party involved in a civil appellate proceeding. Upon the request and with the consent of a pro se party, an attorney may make a limited appearance for the pro se party to file a notice of appeal and designation of record in the court of appeals or the supreme court, to file or oppose a petition or cross-petition for a writ of certiorari in the supreme court, to respond to an order to show cause issued by the supreme court or the court of appeals, or to participate in one or more specified motion proceedings in either court, if the attorney files and serves with the court and the other parties and attorneys (if any) a notice of the limited appearance prior to or simultaneous with the proceeding(s) for which the attorney appears. At the conclusion of such proceeding(s), the attorney’s appearance terminates without the necessity of leave of court, upon the attorney filing a notice of completion of limited appearance in the appellate court in which the attorney appeared, a copy of which may be filed in any other court, except that an attorney filing a notice of appeal or petition or cross-petition for writ of certiorari is obligated, absent leave of court, to respond to any issues regarding the appellate court’s jurisdiction. Service on an attorney who makes a limited appearance for a party shall be valid only in connection with the specific proceedings(s) for which the attorney appears. The provisions of this C.A.R. 5(e) shall not apply to an attorney who has filed an opening or answer brief pursuant to C.A.R. 31.

(f) Termination of Representation. When an attorney has entered an appearance, other than a limited appearance pursuant to C.A.R. 5(e), on behalf of a party in an appellate court without having previously represented that party in the matter in any other court, the attorney’s representation of the party shall terminate at the conclusion of the proceedings in the appellate court in which the attorney has appeared, unless otherwise directed by the appellate court or agreed to by the attorney and the party represented. Counsel may file a notice of such termination of representation in any other court.

COMMENT

The purpose of C.A.R. 5(e) is to establish a procedure similar to that set forth in Colorado Rule of Civil Procedure 121 Section 1-1(5). This procedure provides assurance that an attorney who makes a limited appearance for a pro se party in a specified appellate case proceeding(s), at the request of and with the consent of the pro se party, can withdraw from the case upon filing a notice of completion of the limited appearance, without leave of court. The purpose of C.A.R. 5(f) is to make clear that when an attorney appears for a party, whom he or she has not previously represented, in an appellate court and the proceedings in that court have concluded, the attorney is not obligated to represent the party in any other proceeding on remand or in any review of the appellate court’s decision by any other court. Nothing in this provision would prevent the attorney from entering a limited or general appearance on behalf of the party in another court (for example, on a writ of certiorari to the supreme court), if agreed to by the attorney and the party.

Adopted by the Court, En Banc, October 11, 2012, effective immediately.

By the Court:

Gregory J. Hobbs, Jr., Justice
Colorado Supreme Court

____________________________________

Rule Change 2012(16)
Colorado Rules of Civil Procedure
Repeal and Readoption of CRCP 45. Subpoena and JDF 80 Subpoena Forms
Repealed and Readopted 10/18/2012; Effective 01/01/2013

 

Rule 45. SUBPOENA

(a) In General.

(1) Form and Contents.

(A) Requirements—In General. Every subpoena must:

(i) state the court from which it issued;

(ii) state the title of the action, the court in which it is pending and its case number;

(iii) command each person to whom it is directed to do one or both of the following at a specified time and place: attend and testify at a deposition, hearing or trial; or produce designated books, papers and documents, whether in physical or electronic form ("records"), or tangible things, in that person’s possession, custody, or control;

(iv) identify the party and the party’s attorney, if any, who is serving the subpoena;

(v) identify the names, addresses and phone numbers and email addresses where known, of the attorneys for each of the parties and of each party who has appeared in the action without an attorney;

(vi) state the method for recording the testimony if the subpoena commands attendance at a deposition; and

(vii) if production of records or a tangible thing is sought, set out the text of sections (c) and (d) of this Rule verbatim on or as an attachment to the subpoena.

(B) Combining or Separating a Command to Produce. A command to produce records or tangible things may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be contained in a separate subpoena that does not require attendance.

(C) Deposition Subpoena Must Comply With Discovery Rules. A deposition subpoena may require the production of records or tangible things which are within the scope of discovery permitted by C.R.C.P. 26. A subpoena must not be used to avoid the limits on discovery imposed by C.R.C.P. 16.1, 16.2 or 26 or by the Case Management Order applicable to that case.

(D) Subpoenas to Named Parties. A subpoena issued under this Rule may not be utilized to obtain discovery from named parties to the action unless the court orders otherwise for good cause.

(2) Issued by Whom. The clerk of the court in which the case is docketed must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney who has entered an appearance in the case also may issue, complete and sign a subpoena as an officer of the court.

(b) Service.

(1) Time for Service. Unless otherwise ordered by the court for good cause:

(A) Subpoena for Trial or Hearing Testimony. Service of a subpoena only for testimony in a trial or hearing shall be made no later than 48 hours before the time for appearance set out in the subpoena.

(B) Subpoena for Deposition Testimony. Service of a subpoena only for testimony in a deposition shall be made not later than 7 days before compliance is required.

(C) Subpoena for Production of Documents. Service of any subpoena commanding a person to produce records or tangible things in that person’s possession, custody, or control shall be made not later than 14 days before compliance is required. In the case of an expedited hearing pursuant to these rules or any statute, service shall be made as soon as possible before compliance is required.

(2) By Whom Served; How Served. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person or service as otherwise ordered by the court consistent with due process. Service is also valid if the person named in the subpoena has signed a written acknowledgement or waiver of service. Service may be made anywhere within the state of Colorado.

(3) Tender of Payment for Mileage. If the subpoena requires a person’s attendance, the payment for 1 day’s mileage allowed by law must be tendered to the subpoenaed person at the time of service of the subpoena or within a reasonable time after service of the subpoena, but in any event prior to the appearance date. Payment for mileage need not be tendered when the subpoena issues on behalf of the state of Colorado or any of its officers or agencies.

(4) Proof of Service. Proof of service shall be made as provided in C.R.C.P. 4(h). Original subpoenas and returns of service of such subpoenas need not be filed with the court.

(5) Notice to Other Parties.

(A) Service on the Parties. Immediately following service of a subpoena, the party or attorney who issues the subpoena, shall serve a copy of the subpoena on all parties pursuant to C.R.C.P. 5; provided that such service is not required for a subpoena issued pursuant to C.R.C.P. 69.

(B) Notice of Changes. The party or attorney who issues the subpoena must give the other parties reasonable notice of any written modification of the subpoena or any new date and time for the deposition, or production of records and tangible things.

(C) Availability of Produced Records or Tangible Things. The party or attorney who issues the subpoena for production of records or tangible things must make available in a timely fashion for inspection and copying to all other parties the records or tangible things produced by the responding party.

(c) Protecting a Person Subject to a Subpoena.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney’s fees, on a party or attorney who fails to comply.

(2) Command to Produce Records or Tangible Things.

(A) Attendance Not Required. A person commanded to produce records or tangible things need not attend in person at the place of production unless also commanded to attend for a deposition, hearing, or trial.

(B) For Production of Privileged Records.

(i) If a subpoena commands production of records from a person who provides services subject to one of the privileges established by C.R.S. § 13-90-107, or from the records custodian for that person, which records pertain to services performed by or at the direction of that person ("privileged records"), such a subpoena must be accompanied by an authorization signed by the privilege holder or holders or by a court order authorizing production of such records.

(ii) Prior to the entry of an order for a subpoena to obtain the privileged records, the court shall consider the rights of the privilege holder or holders in such privileged records, including an appropriate means of notice to the privilege holder or holders or whether any objection to production may be resolved by redaction.

(iii) If a subpoena for privileged records does not include a signed authorization or court order permitting the privileged records to be produced by means of subpoena, the subpoenaed person shall not appear to testify and shall not disclose any of the privileged records to the party who issued the subpoena.

(C) Objections. Any party or the person subpoenaed to produce records or tangible things may submit to the party issuing the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials. The objection must be submitted before the earlier of the time specified for compliance or 14 days after the subpoena is served. If objection is made, the party issuing the subpoena shall promptly serve a copy of the objection on all other parties. If an objection is made, the party issuing the subpoena is not entitled to inspect, copy, test or sample the materials except pursuant to an order of the court from which the subpoena was issued. If an objection is made, at any time on notice to the subpoenaed person and the other parties, the party issuing the subpoena may move the issuing court for an order compelling production.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On motion made promptly and in any event at or before the time specified in the subpoena for compliance, the issuing court must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a party’s officer to attend a deposition in any county other than where the person resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion made promptly and in any event at or before the time specified in the subpoena for compliance, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information; or

(ii) disclosing an unretained expert’s opinion or information that does not describe specific matters in dispute and results from the expert’s study that was not requested by a party.

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order attendance or production under specified conditions if the issuing party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(d) Duties in Responding to Subpoena.

(1) Producing Records or Tangible Things.

(A) Unless agreed in writing by all parties, the privilege holder or holders and the person subpoenaed, production shall not be made until at least 14 days after service of the subpoena, except that, in the case of an expedited hearing pursuant to these rules or any statute, in the absence of such agreement, production shall be made only at the place, date and time for compliance set forth in the subpoena; and

(B) If not objected to, a person responding to a subpoena to produce records or tangible things must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand and must permit inspection, copying, testing, or sampling of the materials.

(2) Claiming Privilege or Protection.

(A) Information Withheld. Unless the subpoena is subject to subsection (c)(2)(B) of this Rule relating to production of privileged records, a person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) make the claim expressly; and

(ii) describe the nature of the withheld records or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(e) Subpoena for Deposition; Place of Examination.

(1) Residents of This State. A resident of this state may be required by subpoena to attend an examination upon deposition only in the county wherein the witness resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court.

(2) Nonresidents of This State. A nonresident of this state may be required by subpoena to attend only within forty miles from the place of service of the subpoena in the state of Colorado or in the county wherein the nonresident resides or is employed or transacts business in person or at such other convenient place as is fixed by an order of court.

(f) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(e).

Committee Comments: If a subpoena to attend a deposition is sought pursuant to Rule 45(c)(2)(A) in order to produce and authenticate documents, the issuing party should consider establishing admissibility under C.R.E. 902(11) as a means of reducing undue burden and expense upon the subpoenaed person.

For scope of provision contained in Rule 45(c)(3)(B)(ii) relating to "unretained experts", see Official Comments to Federal Rules of Civil Procedure, 1991 Amendment, Clause (c)(3)(B)(ii).

Repealed and Readopted by the Court, en banc, October 18, 2012, effective January 1, 2013.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

Chief Justice Directives (CJDs) are available online at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm. The website lists CJDs by date and allows users to search by topic. Hard copies of the CJDs are available for $.25 per page (approximately $125 for a full set) and may be obtained by contacting the Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203.

Publication in The Colorado Lawyer

CJDs will be published on a space-available basis in this "Court Business" section of The Colorado Lawyer. Attachments may be omitted for space reasons. To obtain a copy of attachments, contact: Court Services Division, Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203; or visit www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

___________________________

CJD 08-02
Assessment of Cost Recovery Fees for
Maintaining the Technical Infrastructure Necessary
to Support Electronic Access to Court Records

Amended October 1, 2012

Whereas, the Judicial Department (hereinafter Department) electronically transmits documents and court records for the efficient operation of the Colorado State Court system, including probation;

Whereas the Department has implemented an Internet based program which gives access to court data to the general public and other governmental entities; and

Whereas the Department has implemented an Internet based program which gives the general public access to the Department’s new e-filing program; and

Whereas, the Department’s budget as approved by the General Assembly assumes the collection and use of cash funds for hardware, software, and staffing for the different programs deployed by the Department;

Now, therefore, it is ordered that these cost recovery fees are set administratively such that the revenue generated from the fees approximates the direct and indirect costs of the equipment and staff time necessary to provide access to the Department’s computer information system by the public and other agencies. Fees described in the paragraphs below are listed in the fee charts which are Attachments A, B, and C to this directive.

I. Access fees for private probation

Private probation providers under contract to provide services to the Colorado Judicial Department to supervise certain offenders sentenced by the court to probation pay a fee in order to access and enter data into the court computerized data management system.

II. Public Access to Court Records

The public can obtain electronic access to certain court records through the internet. The cost for this service to the public varies from vendor to vendor and may depend on volume purchases from the vendor.

III. E-filing of Court Documents

The Department provides for e-filing of court documents in trial court and appellate court cases. The Department charges fees for this e-filing service as identified in Attachments B and C. The Department may charge additional fees for newly developed services as they become available.

IV. Drug Treatment Providers, Municipal Courts, and Other Organizations authorized to access data in the court management system.

Certain treatment providers and governmental agencies have access to the court’s computerized data management system for purposes of data entry, query or for use as a court data management system (e.g., Municipal Courts).

Changes to Attachments A, B, or C of this Directive may be adopted as an order of the Colorado Supreme Court by the Chief Justice or by the Justice appointed as chair of the Public Access Committee.

CJD 08-02 is amended, effective August 6, 2008.

CJD 08-02 is amended, effective August 9, 2011.

CJD 08-02 is amended, effective October 1, 2012

Done at Denver, Colorado, October 1, 2012.

By the Court:

Michael L. Bender, Chief Justice
Colorado Supreme Court

__________________________

CJD 11-01
Statewide Electronic Filing Standards
Amended October 1, 2012

The purposes of this CJD are (1) to make uniform the means by which documents are electronically transmitted and accepted through the State’s E-Filing system, (2) to eliminate potentially conflicting local rules that attempt to define those standards, and (3) to increase access to the courts by reducing the number of reasons for rejecting an e-filing.

I. SCOPE

This CJD applies to all documents that are transmitted and accepted electronically using the E-Filing system.

II. RELATING DOCUMENT(S)

All related documents (motion, proposed order, response and reply) shall be related to each other when electronically filed.

III. DOCUMENT FORMAT STANDARDS

A. Electronic Document Size: The size limit for each document filed electronically shall be set forth on the Colorado Judicial Department’s website located at: www.court.state.co.us/icces. For the purpose of this procedure, each electronically filed pleading, motion, brief, or other paper is a separate document. The electronic filing system shall preclude a filer from submitting a document that exceeds the size limits.

B. Oversize Documents: Any document which exceeds the file size limits shall be separated into smaller electronic files.

C. Color or Graphics: Documents scanned in color, grey scale, or containing graphics result in larger file sizes and take longer to download. Therefore, it is recommended that filers configure scanners to scan documents at an optimal resolution to conform to filing size limits.

IV. DOCUMENT SUBMISSION

All documents relating to a single pleading or paper may be filed electronically as a single transaction—although they must remain as separate documents. For example, a motion, exhibits and related affidavits may be filed under a single transaction. This will enable searching for specific documents.

All documents must be submitted by either (1) directly uploading the document from a word processing format (such as Word or Word Perfect) to the E-Filing system, or (2) electronically converting the document from a word processing format into a PDF format and then directly uploading the PDF document to the E-Filing system. Parties shall not upload documents into the E-Filing system in any manner that prevents the Court from copying/pasting text or employing enhanced search functionality within the document. Except as specifically provided in this directive, parties shall not upload documents into the E-Filing system as scanned or graphic images.

V. SUBMISSION OF EXHIBITS, FORM/PREPRINTED DOCUMENTS AND RETURNS OF SERVICE

All exhibits, form/preprinted documents, and returns of service must be submitted through the E-Filing system. However, they may be submitted as scanned or graphic images but shall be uploaded in their original format. For example, color documents shall be uploaded in color and not as black and white scanned copies.

A. Exhibits. Exhibits shall be filed as one transaction, if possible. Exhibits shall be titled according to the party’s designation in the case, such as Plaintiff’s (Petitioner’s) or Defendant’s (Respondent’s) Proposed Exhibits. If there are too many exhibits to fit within one transaction on the E-Filing system, the exhibits may be filed in sequentially numbered groups titled in the following example format: Plaintiff’s (Petitioner’s) Proposed Exhibits—Group 1—Exhibits 1 – 50, Group 2—Exhibits 51-99. Each exhibit shall be a separate item within the transaction. Accordingly, although there will be one PDF file per exhibit, there may be many PDF files within the transaction. The exhibit designation shall be legible when electronically filed.

B. Exhibits of Large Physical Size and Non-Documentary Exhibits. If a party intends to submit an exhibit or document that cannot be submitted through the E-Filing system because of its physical size or because it is non-documentary in nature, an image of the exhibit or document shall be electronically filed for purposes of the record.

C. Documentary Exhibits that Exceed E-Filing Size Restrictions. A party intending to submit any documentary exhibit that exceeds the megabyte file size limit set forth in III above shall separate the exhibit into electronic files as provided in that Directive. If the document cannot be separated, then the party shall place it on a CD or DVD.

D. Audio and Video Exhibits. Audio or video exhibits cannot be submitted through the E-Filing system at this time. Those exhibits shall be placed on a CD or DVD.

VI. TIMELINES FOR SUBMISSION OF EXHIBITS FOR TRIAL AND HEARINGS

A. Exhibits for Parties with an Attorney. The trial court may enter case management orders governing specifics of requirements for e-filing exhibits. Unless the court orders otherwise, on or before the hearing or trial date, the parties shall submit all of their exhibits, or images as permitted in section III above, through the E-Filing system. Exhibits for expedited hearings shall be submitted as the court directs.

Parties should anticipate that there are exhibits such as negotiable instruments where the original paper document may need to be tendered to the court. Images of these exhibits shall also be filed through the E-Filing system.

B. Exhibits for Pro Se Parties. Provisions for tender and uploading of exhibits from pro se parties will be addressed at a pretrial or prehearing conference.

VII. JURY INSTRUCTIONS

Proposed jury instructions shall be submitted through the E-Filing system in editable format. The set of instructions provided to the jury as well as a party’s tendered instructions that have been rejected by the court shall be uploaded into the E-Filing system as the court directs.

VIII. DOCUMENT EVENTS

When submitting documents using the E-Filing system, the parties shall select a Document Event category that matches the identifiable and specific category of the actual document being submitted. For example, a party filing a Supplemental Disclosure Certificate selects "Supplemental Disclosure Certificate" for electronic filing purposes, because that document event presently exists as an "Event" field. Submitting that document in the category "Filing Other" is not appropriate.

IX. TITLE OF DOCUMENTS

Any document submitted through the E-Filing system must bear a Document Title that is descriptive of the contents of that document. For example, a document titled "XYZ Plaintiff’s Motion for Summary Judgment on Claims 1 and 2 Against Third Party Defendant ABC Corporation" is appropriate. That same document simply bearing the title "Motion" is not appropriate.

X. SIGNATURE REQUIREMENTS

Documents must clearly identify which attorney(s) signed the document.

XI. REJECTION OF E-FILED DOCUMENTS

Attachment A sets forth specific reasons for rejection of electronically filed documents. This Attachment A may be amended by the State Court Administrator or that Administrator’s designee either to remove or to add reasons for rejection. Courts are not required to reject documents that are identified in Attachment A; however, no electronically filed document shall be rejected unless it is for one or more of the reasons specified in Attachment A.

The information contained in CJD 05-02 is incorporated herein; therefore, CJD 05-02 is repealed effective May 17, 2011.

This CJD is amended August, 2011.

This CJD is amended October, 2012.

Done at Denver, Colorado, October 1, 2012.

By the Court:

Michael L. Bender, Chief Justice
Colorado Supreme Court

___________________________

CJD 12-03
Court Compensation of Expert Witnesses and Professionals
Conducting Mental Health Evaluations
Amended October 12, 2012

In an effort to control expenditures of state funds in court cases, the following policy shall apply to expert witnesses and mental health professionals conducting examinations or evaluations (with or without subsequent testimony), who are entitled to compensation paid by the Colorado Judicial Department pursuant to Colorado Revised Statutes section 13-33-102(4), section 15-14-306 when respondent is indigent, section 16-8-103, section 16-8-106, section 16-8-108, section 16-8.5-101 et seq., section 18-1.3-1104, section 19-1-104(3)(a), section 19-2-1302, and section 19-3-607.

This Directive does not apply to other professionals that are appointed and compensated by the court as provided in other Chief Justice Directives, including, but not limited to, court visitors, child and family investigators, and court-appointed counsel, nor does this Directive apply to employees and/or contractors paid by the Colorado Mental Health Institute at Pueblo or other government mental health agencies for work performed at their direction. Certain types of evaluations are also excluded inasmuch as they are governed by other program specific statutes, rules, or policies, including but not limited to, domestic relations evaluations, psychosexual evaluations, substance abuse evaluations, domestic violence evaluations, and alcohol evaluations. If the Court finds that there is not an applicable statute, rule, directive, policy, or similar guidance that governs compensation for an evaluation permitted by statute, and that payment by the Judicial Department is appropriate, the Court shall enter an order requiring the expert to comply with the fee and billing requirements and limitations set forth in this Chief Justice Directive.

The Judicial Department may enter in to agreements to provide for evaluations or examinations when it is determined that said agreements are cost-effective and in the best interest of the Judicial Department.

I. Fees and Expenses

A. Hourly Fee. The hourly fee paid to expert witnesses and mental health professionals under this Directive shall be reasonable and may not exceed $100 per hour (or 50% of the authorized rate as described in section C.2.) without justification from the requesting party that they are unable to obtain the services of an expert witness or mental health professional at a rate of $100 per hour. A motion to exceed the hourly rate shall be filed in advance of engagement of the professional and shall explain why a fee in excess of $100 per hour is both reasonable and necessary. The court may grant, deny, or set a hearing on the motion to exceed the hourly rate. The court’s order shall be in writing or shall be recorded in the court’s case management system.

B. Maximums. No expert witness or mental health professional fees in excess of $1,000 for a case (exclusive of authorized expenses) shall be incurred without prior order of the court, except that a mental health professional who completed the required evaluation of an individual and subsequently testified as an expert witness at a court hearing in the case may be allowed up to $1,500 in total fees (exclusive of authorized expenses). Any motion requesting approval of fees in excess of the above maximums shall include the total anticipated fee amount and an explanation of the extenuating circumstances warranting the amount. The court’s order approving excess fees must accompany any payment request.

C. Compensation for expert witnesses and mental health professionals may be made, at the discretion of the court, pursuant to the following guidelines:

1. Fees for reasonable preparation time and in-court testimony time may be paid at 100% of the authorized hourly rate.

2. Fees for travel time and/or time spent waiting to testify as a result of a delay in the scheduled appearance may be paid at 50% of the authorized hourly rate, not to exceed six hours.

D. Expenses

1. Travel Expenses. Requests for travel expenses must be in accordance with Section 13-33-103, C.R.S., and Judicial Department fiscal rules. Expenses involving out-of-state travel must be approved by order of the court in advance of the actual travel. A copy of the court’s order shall be attached to the request for payment. In addition, reimbursement of authorized travel expenses will be made only if itemized receipts are provided to the district administrator with the reimbursement request.

2. Food and Lodging. In the absence of extraordinary circumstances, expert witnesses or other professionals performing services under this Directive shall not be compensated or reimbursed for food or lodging. To receive reimbursement for food and/or lodging expenses, the court, after considering whether extraordinary circumstances exist based on justification provided by the requesting party, must authorize such expenses in advance of the actual expenditures. The requested expenses must be in compliance with the per diem rates authorized by the Judicial Department fiscal rules. A copy of the court’s authorization, as well as itemized receipts, shall be attached to the request for payment.

3. Other. Expenses and costs other than those detailed in paragraphs 1 and 2 above, including, but not limited to, support or administrative personnel, overhead, and general operating expenses incurred by expert witnesses and other professionals shall not be authorized for payment by the court.

E. Courts shall make every effort to control costs related to the services obtained and provided under this Directive. During court proceedings, expert witnesses should be accommodated, to the extent possible, to minimize waiting time.

II. Guidelines for Payment

A. Payment Requests. After the services are completed, the expert witness or professional who conducted the mental health evaluation shall file with the court a request for payment, using the form in Attachment A, containing an itemized statement of the services performed. The district administrator shall review all such requests to ensure compliance with this Directive, and may require additional supporting documentation from the billing party to clarify and resolve any issues.

B. Discrepancies and Disputes. Unless determined by court order, the district administrator, with the cooperation of the billing party, shall be responsible for resolving any discrepancies or disputes regarding final approval and payment of fees and expenses claimed under this Directive.

This Directive is applicable to all appointments made on or after July 1, 2012.

Chief Justice Directives 87-01 and 93-03 are hereby repealed.

This Directive is amended to correct an incomplete reference in section I, C.

Done at Denver, Colorado, October 12, 2012.

By the Court:

Michael L. Bender, Chief Justice
Colorado Supreme Court


Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinion

Colorado Judicial Ethics Advisory Board (CJEAB)
Advisory Opinion 2012-06
Finalized and Effective October 15, 2012
 

ISSUE PRESENTED:

After reporting an attorney to Attorney Regulation Counsel and law enforcement, the requesting judge has recused from the attorney’s cases based on his conclusion that his disqualification was required under Rule 2.11(A)(1) of the Code of Judicial Conduct and CJEAB Adv. Op. 2011-01. The judge recently learned, however, that Attorney Regulation Counsel has closed the disciplinary proceeding and imposed no public sanction against the reported attorney, and the judge indicated that he has "no personal bias against the lawyer and believe[s] that a disinterested objective observer, knowing all of the facts, would not reasonably question [his] impartiality." There is no report of any law enforcement agency taking any action and the matter is presumed closed. Thus, the judge has concluded that he is no longer required to disqualify himself from, and therefore has a duty to sit on, the attorney’s cases under Rule 2.7.

The judge seeks an opinion regarding whether, when sitting on the attorney’s cases, he must disclose his report against the attorney despite the fact that the disciplinary proceeding has been closed. Specifically, the judge asks the following questions:

1. Does the Board’s interpretation in Opinion 2011-01 of the disclosure obligation extend without time limit and regardless of whether the disciplinary proceeding was closed?

2. If the judge is required to disclose his report of the attorney after the closure of the disciplinary proceeding, must he hear the lawyer’s cases which are assigned to his division, or may he refer the case to other judges to whom the disclosure obligation does not apply?

CONCLUSION:

A judge who reports an attorney to Attorney Regulation Counsel but concludes that disqualification from the attorney’s cases is not required has a duty to sit on the reported attorney’s cases and must disclose the report to the parties and their counsel until the disciplinary proceeding stemming from the report has been closed.

APPLICABLE PROVISIONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Rule 2.7 provides that a judge "shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law."

Rule 2.11(A)(1) provides that a judge should disqualify himself or herself in any proceeding in which the "judge’s impartiality might reasonably be questioned," including but not limited to instances where "[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer…."

Comment [5] to Rule 2.11 states: "A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification."

DISCUSSION:

In Opinion 2011-01, the Board determined that a judge’s report of attorney misconduct, without more, does not require the judge automatically to recuse from the reported attorney’s cases, but that recusal is required if the judge has a personal bias or prejudice against the attorney, or, even absent such subjective bias, "the facts and circumstances surrounding the report would lead a reasonable person having knowledge of those facts and circumstances to question the judge’s impartiality in the case." Id. at 1. The Board further concluded that the reporting judge must "disclose the fact that the judge has made a complaint against the attorney," even if the judge determines that disqualification from the reported attorney’s cases is unnecessary. Id. at 4. The Board now considers the duration of this disclosure requirement.

The duration of the automatic disqualification requirement was partially addressed in Opinion 2011-01. Specifically, the Board recognized that in cases of actual bias or prejudice a judge must recuse as long as the bias or prejudice exists. Id. at 5; see C.J.C. Rule 2.11(A)(1) ("A judge shall disqualify himself or herself in any proceeding in which . . . [t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer. . . ."). When a judge concludes that he or she is disqualified "based solely on the appearance of partiality" stemming from the judge’s report of an attorney, the Board concluded that the judge must continue to recuse sua sponte from the attorney’s later-filed cases "for some period of time" after the report, "because the same concerns that required recusal in the original case would still exist." The Board noted, however, that those concerns "will be mitigated by the passage of time and at some point, typically when the Office of Attorney Regulatory Counsel or law enforcement has completed any action on the complaint, the automatic recusal requirement will cease." Id. at 2, 5. The Board’s use of the word "typically" leaves open the possibility that, under some circumstances, the concerns giving rise to the appearance of partiality could abate such that the disqualification requirement would cease while the attorney discipline proceeding is still pending.

Opinion 2011-01 did not address a specific time period for the duration of disclosure but recognized that the disqualification requirement may end before the disclosure requirement does, and that a judge may thus be required to disclose his or her report of an attorney even after the judge has concluded that disqualification is not necessary. This is so because, while the disqualification and disclosure requirements are both designed to ensure that judges perform the duties of judicial office impartially and conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary, they focus on different aspects of that overarching goal. Specifically, the question whether a judge is automatically disqualified from a reported attorney’s cases focuses on the judge’s perspective: does the judge have a personal bias against the lawyer or believe that a disinterested objective observer would reasonably question the judge’s impartiality? In contrast, the question whether the judge must disclose his or her report of an attorney focuses not on the judge’s perspective, but on the litigants’ perspective: would the parties or their lawyers reasonably consider the report relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification? See C.J.C. Rule 2.11 cmt. [5].1 Because their perspectives might differ, the parties and their lawyers might consider a judge’s unresolved report of an attorney relevant to a possible motion for disqualification even if the judge concludes that the concerns that gave rise to the initial disqualification decision have mitigated such that sua sponte disqualification is no longer required.

Like the concerns that trigger a judge’s decision to recuse to avoid the appearance of partiality, however, the concerns that give rise to the disclosure obligation and the parties’ need to know about a judge’s report of an attorney abate over time. Thus, it would be unreasonable for the disclosure requirement to apply indefinitely, because at some point the judge’s report of the attorney would be sufficiently attenuated that the litigants could no longer reasonably consider it relevant to a possible motion for disqualification. In our view, that occurs when the attorney discipline complaint is closed, because at that point either a sanction that protects the public from any ongoing concerns about the attorney’s continuing licensure has been imposed, or the Office of Attorney Regulation Counsel has concluded that there are no grounds for the reported attorney to be disciplined or that the conduct giving rise to the report has been remedied and/or the attorney has been rehabilitated such that a public sanction is not warranted. See C.R.C.P. 251.1 through 251.34 (establishing the grounds for attorney discipline, forms of discipline, alternatives to discipline, and rules of procedure regarding attorney discipline and disability proceedings).

Thus, in cases in which the reporting judge concludes that disqualification from the attorney’s cases continues to be required until the complaint against the attorney has been resolved, the disqualification requirement and the disclosure requirement will end at the same time. But when the reporting judge determines that disqualification is not required despite the ongoing pendency of the attorney discipline proceeding, the judge will be required to disclose the report until the complaint is resolved. See CJEAB Adv. Op. 2011-01. By requiring disclosure of the still pending report despite the judge’s determination that sua sponte disqualification is unnecessary, the disclosure rule ensures that the parties are given an opportunity to independently evaluate the circumstances and decide whether to file a motion to recuse, thereby requiring the judge to re-evaluate that determination.

Our conclusion that the disclosure obligation ends upon closure of the attorney discipline proceeding is consistent not only with the purpose of the disclosure requirement, but also with the rules governing the confidentiality and expunction of attorney discipline records, which recognize the need to balance the public’s need to know against the reported attorney’s privacy interests. See C.R.C.P. 251.31 and 251.33. So limiting the duration of the disclosure obligation also ensures that the requirement is not a deterrent to a judge’s compliance with the duty to inform appropriate authorities of conduct by an attorney "that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects." C.J.C. Rule 2.15(B); see also C.R.C.P. 251.4 ("A judge has a duty to report unprofessional conduct by an attorney to Regulation Counsel.").

In this case, the requesting judge indicated that the disciplinary proceeding stemming from his report of the attorney has been closed and that, applying the standards established in Opinion 2011-01, he has determined that he is no longer required to disqualify from the reported attorney’s cases because he has no personal bias against the attorney and believes that a disinterested objective observer would not reasonably question his impartiality. That conclusion is sound, as is the judge’s determination that, absent a motion establishing a basis for his recusal, he is required under Rule 2.7 to sit on the reported attorney’s cases. See C.J.C. Rule 2.7 cmt. [1] ("Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally."); Laird v. Tatum, 409 U.S. 824, 837 (1972) (A "judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified."); Wilkerson v. Dist. Court, 925 P.2d 1373, 1376 (Colo. 1996) ("Unless a reasonable person could infer from the facts that the judge would in all probability be prejudiced against the party, the judge must preside over the case.").

And, in light of our determination that a judge’s duty to disclose his or her report of an attorney ends upon closure of the attorney discipline proceeding, we further conclude that the requesting judge is no longer required to disclose the report when sitting on the attorney’s cases. We note, however, that in cases in which a judge who has reported an attorney to Attorney Regulation Counsel concludes that sua sponte disqualification is not required before the complaint has been resolved, the judge will have a duty to sit on the reported attorney’s cases pursuant to Rule 2.7 and must disclose the report to the parties and their counsel from the time the judge resumes sitting on the attorney’s cases until the attorney discipline proceeding is closed. Under those circumstances, it would not be appropriate for the reporting judge to refer the attorney’s case to other judges in order to avoid complying with the obligation to disclose the report. See C.J.C. Rule 2.7 and cmt. [1] ("The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed on the judge’s colleagues requires that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.").

Finalized and Effective October 15, 2012.

__________

1. In CJEAB Adv. Op. 2011-01, the Board cited C.J.C. Rule 2.11 cmt. [5], for its conclusion that "[i]f a judge who has filed a professional conduct complaint against an attorney determines that the judge is not disqualified from hearing a case in which the attorney is counsel, the judge will, nevertheless, be required to disclose the fact that the judge has made a complaint against the attorney." Comment [5] uses the term "should" in reference to the disclosure of information that a judge does not necessarily believe warrants disqualification. See C.J.C. Rule 2.11 cmt. [5] ("A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.") (emphasis added); C.J.C., Scope [2] (referring to "may" and "should" as permissive terms); see also C.J.C., Scope [3] ("Comments neither add to nor subtract from the binding obligations set forth in the Rules."). As written, Comment [5] encourages but does not require disclosure. In CJEAB Adv. Op. 2011-01, however, the Board determined that disclosure was required in the circumstances at issue.


United States Bankruptcy Court
For the District of Colorado

In the Matter of the Master Address For
E-Filing Attorneys on Pleadings
General Procedure Order Number 2012-3

This matter is before the Court sua sponte to establish the address that will be used for notice to attorneys who are registered electronic filers with this Court. The Court and all parties may rely upon the attorney’s Master Address on file with the Case Management/Electronic Case Filing (CM/ECF) Training Department to verify the service address for that attorney (this address automatically populates to any case where the attorney has filed a document). The only exception is for cases where the attorney files an actual change of address in that specific case.1

The Court finds that it is critical for efiling attorneys to keep their address information updated with the CM/ECF Training Department in order to ensure the attorneys receive notice. The mere usage of a different address, email address or phone number on the attorney’s signature block in an electronically filed document will not substitute for filing a formal change of address or result in a change of the Master Address.

ORDERED THAT all documents served on an electronic filing attorney under any Federal Rule, Local Rule or Order requiring that a document be mailed to the electronic filing attorney, shall be sent to the Master Address of the attorney that has been processed through the CM/ECF Training Department, unless the attorney has filed a specific change of address for this particular case.2

FURTHER ORDERED THAT the inclusion of a new address on the signature block of an electronically filed document is not a substitute for filing a formal change of address.

Dated: October 9, 2012

By the Court:

Howard R. Tallman, Chief Judge
Sidney B. Brooks, Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Michael E. Romero, Judge

__________

1. The address found within the party/attorney list on a specific case in PACER or CM/ECF will be either the Master Address or the address that should be used for that case.

2. The Court will continue to mail all notices and orders issued by it to electronic filing attorney’s email address pursuant to Fed.R.Bankr.P. 9036.

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