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TCL > June 2000 Issue > Court Business

The Colorado Lawyer
June 2000
Vol. 29, No. 6 [Page  113]

© 2000 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Colorado Supreme Court Rules Committee

Rule Change #2000(8)
Chapter 29. Colorado Rules of Criminal Procedure
VII. Judgment
Rule 33. New Trial

(a) Motions for New Trial or Other Relief Optional.

The party claiming error in the trial of any case may move the trial court for a new trial or other relief. The party, however, need not raise all the issues it intends to raise on appeal in such motion to preserve them for appellate review. If such a motion is filed, the trial court may dispense with oral argument on the motion after it is filed.

(b) Motions for New Trial or Other Relief Directed by the Court.

The court may direct a party to file a motion for a new trial or other relief on any issue. The failure of the party to file such a motion when so ordered shall preclude appellate review of the issues ordered to be raised in the motion. The party, however, need not raise all the issues it intends to raise on appeal in such motion to preserve them for appellate review.

(c) Motion; Contents; Time.

The court may grant a defendant a new trial if required in the interests of justice. The motion for a new trial shall be in writing and shall point out with particularity the defects and errors complained of. A motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits. A motion for a new trial based upon newly discovered evidence shall be filed as soon after entry of judgment as the facts supporting it become known to the defendant, but if a review is pending the court may grant the motion only on remand of the case. A motion for new trial other than on the ground of newly discovered evidence shall be filed within fifteen days after verdict or finding of guilt or within such additional time as the court may fix during the fifteen-day period.

(d) APPEAL BY PROSECUTION. THE ORDER OF THE TRIAL COURT GRANTING THE MOTION IS A FINAL ORDER REVIEWABLE ON APPEAL.

Amended and Adopted by the Court, En Banc, April 20, 2000, effective July 1, 2000.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court


Rule Change #2000(9)
Colorado Rules of Civil Procedure
Chapter 18. Rules Governing Admission to the Bar
Rule 201

Rule 201.2. Board of Law Examiners

(1)-(4) [No Change]

(5) Persons performing official duties under the provisions of this rule, including members of the Law Committee, members of the Bar Committee, the executive director and staff and members of the Bar working under the direction of the Board, shall be immune from personal liability for all conduct in the course of their official duties. All information provided to the Bar Committee concerning the mental stability or ethical or moral qualifications of an applicant shall be absolutely privileged and no lawsuit may be predicated thereon.

THE BOARD OF LAW EXAMINERS, AND ITS MEMBERS, EMPLOYEES AND AGENTS ARE IMMUNE FROM ALL CIVIL LIABILITY FOR DAMAGES FOR CONDUCT AND COMMUNICATIONS OCCURRING IN THE PERFORMANCE OF AND WITHIN THE SCOPE OF THEIR OFFICIAL DUTIES RELATING TO THE EXAMINATION, CHARACTER AND FITNESS QUALIFICATION, AND LICENSING OF PERSONS SEEKING TO BE ADMITTED TO THE PRACTICE OF LAW. RECORDS, STATEMENTS OF OPINION AND OTHER INFORMATION REGARDING AN APPLICANT FOR ADMISSION TO THE BAR COMMUNICATED BY ANY ENTITY, INCLUDING ANY PERSON, FIRM OR INSTITUTION, WITHOUT MALICE, TO THE BOARD OF LAW EXAMINERS, OR TO ITS MEMBERS, EMPLOYEES OR AGENTS, ARE PRIVILEGED, AND CIVIL SUITS FOR DAMAGES PREDICATED THEREON MAY NOT BE INSTITUTED.

Amended and Adopted by the Court, En Banc, April 6, 2000, effective July 1, 2000.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court


Rule Change #2000(10)
The Colorado Rules of Professional Conduct
Client-Lawyer Relationship
Rule 1.4. Communication
Rule 1.5. Fees

Rule 1.4. Communication

(a)-(b) [No Change]

COMMENT

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. In order to avoid misunderstandings and hence to maintain public confidence in law and lawyers, a lawyer should fully and promptly inform the client of material developments in the matters being handled for the client. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps that permit the client to make a decision regarding a serious offer from another party. A lawyer ought to initiate this decision-making process if the client does not do so. A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Rule 1.2(a). Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter. A lawyer should exert best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations.

Adequacy of communication depends in part on the kind of advice or assistance involved. A lawyer should advise the client of the possible legal effect of each alternative course of action. For example, in negotiations where there is time to explain a proposal, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others. On the other hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer would fulfill reasonable client expectations for information consistent with the duty to act in the client's best interest, and the client's overall requirements as to the character of representation.

Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from mental disability. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Practical exigency may also require a lawyer to act for a client without prior consultation.

INFORMATION PERTAINING TO FEES CHARGED, COSTS, EXPENSES, AND DISBURSEMENTS

INFORMATION PROVIDED TO THE CLIENT UNDER RULE 1.4(A) SHOULD INCLUDE INFORMATION CONCERNING FEES CHARGED, COSTS, EXPENSES, AND DISBURSEMENTS WITH REGARD TO THE CLIENT'S MATTER. ADDITIONALLY, THE LAWYER SHOULD PROMPTLY RESPOND TO THE CLIENT'S REASONABLE REQUESTS CONCERNING SUCH MATTERS. IT IS STRONGLY RECOMMENDED THAT ALL THESE COMMUNICATIONS BE IN WRITING. AS TO THE BASIS OR RATE OF THE FEE, SEE RULE 1.5.

Withholding Information

In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

COMMITTEE COMMENT

[No Change]

Rule 1.5. Fees

(a) [No Change]

(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

(c)-(e) [No Change]

COMMENT

Basis or Rate of Fee

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 evolved 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. In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established. MOREOVER, Iit 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, or 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 estimate DISCLOSURE substantially inaccurate, a revised estimate WRITTEN DISCLOSURE should be provided to the client.

A written statement concerning the fee reduces the possibility of misunderstanding. LAWYERS ARE WELL-ADVISED TO USE WRITTEN DISCLOSURES EVEN WHEN THEY ARE NOT REQUIRED. MOREOVER, IT IS PREFERABLE, ALTHOUGH NOT MANDATORY, TO OBTAIN THE CLIENT'S SIGNATURE ACKNOWLEDGING THE BASIS OR RATE OF THE FEE. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth.

In setting a fee, a lawyer should also consider the inability of the client to pay a reasonable fee. Persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective.

[No Change to Rest of Comment]

Amended and Adopted by the Court, En Banc, April 20, 2000, effective July 1, 2000.

By the Court:

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


United States District Court
For the District of Colorado

In the Matter of
Rules of Professional Conduct
Amended Administrative Order 1999-6

Under D.C.Colo.LR 83.6, the rules of professional conduct, as adopted by the Colorado Supreme Court, are adopted as standards of professional responsibility applicable in this court. On June 17, 1999, the Colorado Supreme Court, en banc, adopted Colo.R.P.C. 1.2, Scope and Objectives or Representation; Colo. R.P.C. 4.2, Communication with Person Represented by Counsel; Colo.R.P.C. 4.3, Dealing with Unrepresented Person, and C.R.C.P. 11, Signing of Pleadings as new rules. Those rules were adopted to permit limited representation by counsel. These changes are not consistent with Fed.R.Civ.P.11, and are also inconsistent with the view of the judges of this court concerning the ethical responsibility of members of the bar of this court.

Accordingly, it is now ORDERED that the above described changes to the Colorado Rules of Professional Responsibility are not applicable:

a) in this court; and

b) in the United States Bankruptcy Court for the District of Colorado in adversary proceedings or matters governed by Fed.R.Bankr.P.9014. In addition, any limitation in the scope of representation of a Debtor, whether in a bankruptcy case or adversary proceeding, shall be disclosed in the statement required by 11 U.S.C. § 329 and Fed.R.Bankr. P.2016(b).

Dated this 10th day of April, 2000, at Denver, Colorado.

By the Court:

Richard P. Matsch, Chief Judge
Daniel B. Sparr, Judge
Lewis T. Babcock, Judge
Wiley Y. Daniel, Judge
Edward W. Nottingham, Judge
Walker D. Miller, Judge

© 2000 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=2000.


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