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TCL > April 2000 Issue > Court Business

The Colorado Lawyer
April 2000
Vol. 29, No. 4 [Page  99]

© 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
Colorado Rule for Registration and Practice of Foreign Law Consultants

Written Comments to be Filed by
Friday, May 15, 2000, 5:00 p.m.

NOTICE

The Supreme Court will entertain written comments to the proposed new Rule for Registration and Practice of Foreign Law Consultants. An original and eight copies of written comments are to be submitted to Mac V. Danford, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, Colorado 80203-2116 on or before 5:00 p.m., May 15, 2000.

Proposed Rule for Registration and Practice of Foreign Law Consultants

(a) Registration of Foreign Law Consultants. A person who is admitted to practice in a foreign country as an attorney or counselor at law or the equivalent and who complies with the provisions in this rule may be registered by the Supreme Court as a foreign law consultant and, in that capacity, may render legal services within this State to the extent permitted by this rule. This rule shall not be construed as limiting the rights of any person admitted to practice law in this State.

(b) Eligibility. In its discretion the Supreme Court may register as a foreign law consultant an applicant who:

(1) For a period of at least 5 of the 8 years immediately preceding the date of application has been admitted to practice and has been and is still in good standing as an attorney or counselor at law or the equivalent in a foreign country;

(2) For such period has engaged on a full-time basis either (A) in the practice of law of such country; (B) in a profession or occupation which requires as a prerequisite admission to practice and good standing as an attorney or counselor at law of such country; or (C) in the teaching of law in a law school in such country;

(3) Possesses the good moral character customarily required for admission to the practice of law in this State;

(4) Intends to maintain, within this State, a bona fide office for practice as a foreign law consultant on his or her own behalf or in conjunction with other foreign law consultants or attorneys at law admitted to practice in this State; and

(5) is it least 25 years of age.

(c) Applications.

(1) Every applicant for registration as a foreign law consultant shall file with the Clerk of the Supreme Court an application on the form required by the Supreme Court, or, if no such form has been provided, a typewritten application, in duplicate, setting forth, in English: (A) the applicant’s name and age; (B) the applicant’s last place of residence; (C) the character and duration of the applicant’s formal legal education or training; (D) the name of and date of attendance at each university or post graduate level educational institution that the applicant has attended and/or graduated from, and the degree conferred, if any; (E) the names of all courts or other licensing authorities to which the applicant has applied for admission to the practice of law or for registration, certification or licensure as a foreign law consultant; (F) the names of all courts or other licensing authorities under the auspices of which the applicant has taken any bar or equivalent examinations, the dates upon which such examinations were taken and the results thereof; and (G) the names of all courts and other licensing authorities by which the applicant has actually been licensed to practice as an attorney or counselor at law or equivalent or registered, certified or licensed as a foreign law consultant and the dates of each such licensure, registration or certification. The application also shall state whether the applicant has ever been the subject of any investigation or proceeding for criminal behavior or professional misconduct and whether the applicant has ever been rejected upon an application for admission to practice before any court or by any other licensing authority. If the applicant has been the subject of any investigation or proceeding for criminal behavior or professional misconduct or has been rejected for admission to practice, the applicant may set forth a brief explanation of the disposition and any extenuating or mitigating circumstances.

(2) The application shall be accompanied by the following documents, together with duly authenticated English translations of each document that is not in English:

(A) Duly executed certificates and/or documents from the authority having final jurisdiction over professional discipline in the foreign country in which the applicant is admitted to practice attesting to:

(i) the authority’s jurisdiction in such matters;

(ii) the applicant’s admission to practice in such foreign country, the date thereof and the applicant’s current good standing as an attorney or counselor at law or the equivalent therein; and

(iii) whether any charge or complaint has ever been filed against the applicant with such authority, and, if so, the nature and substance of the allegations of each such charge or complaint and the disposition thereof.

(B) Letters of recommendation from at least two attorneys or counselors at law or the equivalent admitted to practice and practicing in such foreign country, setting forth the length of time and circumstances under which they have come to know the applicant, and their appraisal of the applicant’s moral character and professional abilities.

(C) Letters of recommendation from at least two attorneys admitted to the practice of law in this State, setting forth the length of time and circumstances under which they have come to know the applicant, and their appraisal of the applicant’s moral character and professional abilities.

(D) A document setting forth the applicant’s address in this State and designating the Clerk of the Supreme Court as agent upon whom process may be served, with like effect as if served personally upon the applicant, in any action or proceeding thereafter brought against the applicant, arising out of or based upon any legal services rendered or offered to be rendered by the applicant within or to residents of this State.

(E) Evidence of professional liability insurance or other proof of financial responsibility, in such form and in such amounts as the Supreme Court may prescribe, to assure the applicant’s proper professional conduct and responsibility.

(F) A duly certified statement attesting that the applicant will abide by the rules and regulations applicable to foreign law consultants.

(G) A duly certified statement by the applicant in any other country or countries in which the applicant has been admitted or licensed to practice law committing the applicant to notify the Clerk of the Supreme Court of any resignation or revocation of the applicant’s admission to practice in the foreign country of original admission of the applicant, of any censure, suspension or expulsion in respect to such admissions or licenses, or of any change of address within this State.

(H) A nonrefundable filing fee in the amount set by order of the Supreme Court.

(I) Such other relevant documents or information as may be requested by the Supreme Court, including, without limitation, any additional proof of facts stated in the application. In the event of the failure or refusal of the applicant to furnish any such information or proof, or to answer an inquiry of the Supreme Court pertinent to the pending application, the Supreme Court may deny the application.

(3) The statements contained in the application and supporting documents shall be investigated by the Supreme Court or its designee. Prior to registering an applicant as a foreign law consultant, the Supreme Court shall be satisfied that the applicant is of good moral character.

(d) Waiver. Upon a showing that strict compliance with the provisions of section (c) of this rule would cause the applicant unnecessary hardship or, notwithstanding the eligibility provisions of section (b) of this rule, upon a showing of exceptional professional qualifications to practice as a foreign law consultant, the Supreme Court may, in its discretion, waive or vary the applicability of such provisions and permit the applicant to make such other showing as may be satisfactory to the Court.

(e) Scope of Practice. A person registered as a foreign law consultant under this rule may, in that capacity, render and be compensated for the performance of legal services within this State, but specifically shall not:

(1) Appear for another person as attorney in any court or before any other judicial officer or administrative agency in the State, or sign or file in the capacity of a lawyer or legal advisor any pleadings or any other papers in any action or proceeding brought in any such court or before any judicial officer or administrative agency (provided, however, that this subsection shall not preclude a registered foreign law consultant from appearing, on a pro hac vice basis, with a duly licensed and admitted attorney in this State with respect to legal matters arising out of or relating to the laws of the foreign country or countries in which such foreign law consultant has been licensed or admitted to practice);

(2) Prepare any deed, mortgage, assignment, discharge, lease, agreement, or contract of sale or any other instrument that may affect title to real estate located in the United States of America, its territories, districts or possessions;

(3) Prepare:

(A) Any will or trust instrument effecting the disposition of any property located in the United States of America, its territories, districts or possessions and owned by a resident thereof; or

(B) Any instrument relating directly to the primary administration of a decedent’s estate in the United States of America, its territories, districts or possessions;

(4) Prepare any instrument in respect of the marital relations, rights or duties of a resident of the United States of America, its territories, districts or possessions or the custody or care of the children of such a resident;

(5) Render professional legal advice with respect to a personal injury occurring within the United States;

(6) Render professional legal advice with respect to the United States immigration laws, the United States custom laws or United States trade laws;

(7) Render professional legal advice on other laws of this State or the United States of America or any other State, territory, district or possession of the United States of America or any foreign country other than a country to the bar of which the foreign law consultant is admitted as an attorney or counselor at law or the equivalent (whether rendered incident to the preparation of legal instruments or otherwise), except on the basis of advice from a person admitted to the practice of law as an attorney of this State or such other State, territory, district or possession or as an attorney or counselor at law or the equivalent in such other foreign country, who has been consulted by the foreign law consultant in the particular matter at hand and who has been identified to the client by name;

(8) In any way represent that he or she is licensed as an attorney at law of this State, or as an attorney at law or foreign law consultant of another State, territory or district, or as an attorney or counselor at law or the equivalent of a foreign country, unless so licensed; or

(9) Use any title other than "foreign law consultant"; provided that such person’s authorized title and firm name in the foreign country in which such person is admitted to practice as an attorney or counselor at law or the equivalent may be used, provided that the title and firm name are stated together with the name of such foreign country and the title "foreign law consultant" and further provided that such use does not create the impression that the foreign law consultant holds a plenary license to practice law in this State.

(f) Conduct and Discipline.

(1) The professional conduct of foreign law consultants shall be governed in all respects by the Colorado Rules of Procedure Regarding Lawyer Discipline and Disability Proceedings, Rule 251, the Code of Professional Responsibility of the State of Colorado and all other laws and rules governing lawyers admitted to the Bar of this State, excepting Rule 260 concerning continuing legal education. However, nothing in this subsection shall be construed as expanding the scope of practice authorized by section (e) of this rule nor as limiting the right of persons admitted to practice law in this State to engage the services of law clerks or interns in such status who are admitted or licensed to practice law in foreign countries.

(2) Foreign law consultants shall be subject to rights and obligations with respect to attorney-client privilege, work-product privilege and other professional privileges to the same extent as attorneys admitted to practice law in this State.

(g) Continuing Requirements.

(1) The foreign law consultant shall pay to the Supreme Court an annual registration fee in the same amount as required of those persons admitted to the practice of law in this State, together with an affidavit affirming the foreign law consultant’s current good standing as an attorney or counselor at law or the equivalent in the country in which the foreign law consultant is admitted to practice. Except as otherwise provided by this rule or by the Supreme Court, the provisions and procedures of Rule 227 shall apply to foreign law consultants.

(2) Registration as a foreign law consultant is granted at the sufferance of the Supreme Court and may be revoked at any time upon the Court’s own motion, with or without cause, including, but not limited to, failure to comply with the terms of this rule.

Colorado Code of Judicial Conduct
(Appendix to Chapter 24)
Amended and Adopted

CANON 4

A Judge is Encouraged to Engage in Quasi-judicial Activities To Improve the Law, the Legal System, and the Administration of Justice

Subject to the proper performance of his or her judicial duties, a judge is encouraged to engage in quasi-judicial activities, if in so doing, the judge does not compromise his or her capacity to decide impartially any issues that may come before the judge.

A. A judge is encouraged to speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice, including the role of the judiciary as an independent branch within our system of government.

B. A judge may consult with, or appear at a public hearing before, an executive or legislative body, or an official thereof, on matters concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government.

C. A judge is encouraged to serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice. A judge may assist such an organization in its fund-raising efforts; he or she may also participate in its management and investment, but shall not personally solicit funds for such an organization. A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.

COMMENTARY

This canon is clarified in order to encourage judges to engage in quasi-judicial activities. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice. This includes revision of substantive and procedural law, the improvement of civil, criminal, domestic relations, probate and juvenile justice, and the role of the judiciary as an independent branch of government. Support of pro bono legal services by members of the bench is also an activity that relates to the improvement of the administration of justice. Accordingly, a judge may engage in activities intended to encourage attorneys to perform pro bono services, including, but not limited to: participating in events to recognize attorneys who do pro bono work, establishing general procedural or scheduling accommodations for pro bono attorneys as feasible and acting in an advisory capacity to pro bono programs.

Extra-judicial activities are governed by Canon 5 and some of the commentary to Canon 5 may relate to this Canon 4 as well.

CANON 5

A Judge is Encouraged to Participate in Extra-Judicial Activities

A. Avocational Activities. A judge is encouraged to write, lecture, teach, and speak on nonlegal subjects, and to engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of the judge’s office or interfere with the performance of judicial duties.

COMMENTARY

Complete separation of a judge from extra-judicial activities is neither possible nor wise. A judge should not become isolated from the community in which the judge lives. For that reason, judges are encouraged to participate in extra-judicial community activities.

B. Civic and Charitable Activities. A judge is encouraged to participate in civic and charitable activities that do not reflect adversely upon the judge’s impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, social or civic organization if not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

COMMENTARY

The changing nature of some organizations and of their relationship to the law makes it necessary for a judge to reexamine regularly the activities of each organization with which the judge is affiliated in order to determine if it is proper for the judge to continue his or her relationship with it.

(2) A judge shall not personally solicit funds for any educational, religious, charitable, fraternal, social or civic organization, or use or permit the use of the prestige of the judge’s office for that purpose. However, a judge may serve and be listed as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, social or civic organization and may assist in the planning and organizing of fund-raising events and attend those events. However, a judge should not be placed in the position of directly soliciting funds for an organization as the featured speaker at fund-raising events.

COMMENTARY

This canon is clarified in order to encourage judges to participate in extra-judicial activities. A judge is prohibited from selling tickets to fund-raising events. However, a judge is not prohibited from participating in the planning and organizing of fund-raising events through the judge’s role as an officer, director, trustee, or nonlegal advisor of the organization on which the judge serves. The judge also is not prohibited from attending fund-raising events and assisting in those aspects of the events that do not involve the personal solicitation of funds. Personal solicitation of funds for an educational, religious, charitable, fraternal, social or civic organization not conducted for profit involves the danger that the person solicited will feel obligated to respond favorably if the solicitor is a judge. In addition, a judge shall not personally participate in membership solicitation for an organization if the solicitation is essentially a fund-raising mechanism. A judge may be the recipient of an award at a fund-raising event, so long as the giving of the award to that judge is not the featured purpose of the event.

(3) A judge should not give investment advice to any extra-judicial organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

COMMENTARY

A judge’s participation in an organization devoted to quasi-judicial activities is governed by Canon 4.

Please Note: The remainder of Canon 5 remains unchanged.

CANON 7

A Judge Should Refrain from Political Activity Inappropriate to His or Her Judicial Office

A. Political Conduct in general.

(1) A judge shall not:

(a) [no change]

(b) [no change]

(c) [no change]

(d) engage in any other political activity except on behalf of measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government, or except as permitted in subsection B.

Please Note: The remainder of Canon 7 remains unchanged.

Amended and Adopted by the Court, En Banc, February 3, 2000, effective immediately.

By the Court:

Rebecca Love Kourlis
Justice, Colorado Supreme Court

Colorado Rules of Civil Procedure
Chapter 4. Disclosure and Discovery
Rule 26.3. Limited Monetary Claim Actions
New Rule Adopted

Rule 26.3. Limited Monetary Claim Actions

Statement of Purpose

The purpose of this Rule is to provide for disclosure, alternative dispute resolution, discovery and trial procedures for those district court civil actions in which the claimant seeks monetary damages not exceeding $50,000, exclusive of costs and interest. These cases shall be known as limited monetary claim actions, and shall be governed by this Rule.

(a) Definition

A limited monetary claim action is a civil action in which no claimant seeks money damages of more than $50,000, exclusive of costs and interest, from one party. In the event third party claims, cross-claims or counter-claims also seek money damages, the claims of each party must be $50,000 or less for the action to be governed by this Rule. If such a certification is made, then the matter shall be governed by the provisions of this Rule.

(b) Optional Certification

At the time of the filing of the complaint the plaintiff may certify that the money damages being sought by plaintiff are $50,000 or less, exclusive of costs and interest, against any one party. Such certification is not required. This certification shall limit plaintiff’s right to recover money damages to a maximum of $50,000, exclusive of costs and interest. Upon the filing of this certification, the case shall be governed by this Rule unless any party filing a third party claim, cross-claim or counter-claim certifies that any such claim for money damages is in excess of $50,000, exclusive of costs and interest. When such a certification is filed by a party presenting a third party claim, a cross-claim, or a counter-claim, the action shall not be governed by this Rule. Such certification by either party may not be used for any purpose other than to bring the civil action under this Rule. All certifications are subject to C.R.C.P. 11. Certification may only be withdrawn by order of the court upon a showing of changed circumstances.

(c) Disclosures

In a case governed by this Rule the disclosure rules of C.R.C.P. 26(a) shall apply with the following exceptions: the parties shall make their disclosures required by C.R.C.P. 26(a)(1) and 16(b) no later than 21 days after the case is at issue. In personal injury cases, the plaintiff shall disclose all health care providers and employers for the past ten years, and the defendant shall disclose the present claim case file, including any evidence supporting affirmative defenses and provide a copy of all insurance policies including each declaration page.

(d) Discovery Scope and Limits

(1) In General. Discovery in a case governed by this Rule shall be pursuant to the provisions of C.R.C.P. 26(b) subject to the following additional provisions and limitations.

(A) Prior to the ADR required by subsection (e), the only deposition a party may take is that of the adverse party;

(B) All forms of discovery may be had immediately after the case is at issue and without completion of the case management order.

(2) Post-ADR. If a case governed by this Rule has not settled prior to or at the time of the ADR required by subsection (e), discovery shall be as permitted by C.R.C.P. 26(b), and a case management order shall be filed 15 days following the adr session.

(e) ADR

The parties in a case governed by this Rule shall attend a non-binding ADR pursuant to the Colo. Disp. Res. Act, C.R.S. section 13-22-301 et seq., within 120 days of the date the case is at issue. The parties may agree to a binding form of ADR. This time may not be extended except by order of the court, and no extension shall be granted absent extreme hardship. Each party shall bear its own costs for the ADR. The parties shall certify to the court that ADR has occurred.

(f) Costs

No party in a case governed by this Rule may receive an order for costs in excess of $5,000.

(g) Trial Procedures

Use of expert depositions. A deposition of an expert may be used at the trial without a showing of unavailability.

(h) Judgment

A party proceeding in an action governed by this Rule may not recover money damages in excess of $50,000, exclusive of costs and interest, against any one party.

New Rule Adopted by the Court, En Banc, January 20, 2000, effective July 1, 2000.

Justices Hobbs, Bender, and Rice would not adopt the Rule.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

Colorado Rules of Civil Procedure
Chapter 20. Regarding Attorney Discipline and Disability Proceedings,
Colorado Attorneys’ Fund for Client Protection,
And Mandatory CLE and Judicial Education
Amended and Adopted

Rule 251.8.5. Suspension for Nonpayment of Child Support, or for Failure to Comply with Warrants Relating to Paternity or Child Support Proceedings

(a) Application. The provisions of this rule shall apply to an attorney licensed or admitted to practice law in Colorado who is in arrears in payment of child support or who is in arrears under a child support order as defined by section 26-13-123(a), C.R.S., or who fails to comply with a warrant relating to paternity or child support proceedings.

Proceedings commenced against an attorney under the provisions of this rule are not disciplinary proceedings. Suspension of an attorney’s license to practice law under the provisions of this rule is not a form of discipline, and shall not necessarily bar disciplinary action.

(b) Petition for Suspension.

(1) Upon receipt of reliable information that an attorney is in arrears in payment under a child support order, or has failed to comply with subpoenas or warrants relating to paternity or child support proceedings, regulation counsel may file a petition for suspension with the presiding disciplinary judge. The petition shall be supported by an affidavit setting forth sufficient facts to give rise to reasonable cause to believe that the attorney is in arrears on a child support order, or has failed to comply with a subpoena or a warrant relating to paternity or child support proceedings. A copy of the petition shall be served on the attorney pursuant to these rules.

(2) The presiding disciplinary judge shall order the issuance of an order to show cause directing the attorney to show cause why the attorney’s license to practice law should not be immediately suspended, which order shall be returnable within thirty days. After the issuance of an order to show cause, and after the period for response has passed without a response having been filed, or after consideration of any response and reply, the presiding disciplinary judge shall enter an order immediately suspending the attorney from the practice of law, unless within the thirty-day period: the attorney has paid the past-due obligation, negotiated a payment plan approved by the court or the state child support enforcement agency or agency having jurisdiction over the child support order, requested a hearing before the presiding disciplinary judge, or complied with the warrant or subpoena.

(3) If a response to the order to show cause is timely filed and the attorney or the regulation counsel requests a hearing before the presiding disciplinary judge on the petition, the hearing shall be held within ten days of the request, or as soon thereafter as is practicable. At the hearing, the burden is initially on the regulation counsel to prove the allegations in the petition by a preponderance of the evidence. If the presiding disciplinary judge has determined that the regulation counsel has proved the allegations in the petition by a preponderance of the evidence, he or she shall issue an order immediately suspending the attorney, unless the attorney proves by a preponderance of the evidence that: (1) there is a mistake in the identity of the attorney; (2) there is a bona fide disagreement currently before a court or an agency concerning the amount of the child support debt, arrearage balance, retroactive support due, or the amount of the past-due child support when combined with maintenance; (3) all child support payments were made when due; (4) the attorney has complied with the subpoena or warrant; (5) the attorney was not served with the subpoena or warrant; or (6) there was a technical defect with the subpoena or warrant. No evidence with respect to the appropriateness of the underlying child support order or ability of the attorney in arrears to comply with such order shall be received or considered by the presiding disciplinary judge. Upon conclusion of the hearing, the presiding disciplinary judge shall promptly prepare an opinion setting forth his or her findings of facts and decision.

(c) Appeal. For purposes of this rule, the decision of the presiding disciplinary judge shall be final, and an appeal may be commenced as set forth in C.R.C.P. 251.26.

(d) Reinstatement.

(1) If, after an attorney’s license has been suspended, the attorney has paid the past-due obligations, entered into a payment plan approved by the court or the agency having jurisdiction over the child support order, or complied with the warrant or subpoena, the attorney may seek reinstatement by filing a verified petition, with evidence of compliance, with the presiding disciplinary judge.

(2) Immediately upon receipt of a petition for reinstatement, the regulation counsel shall have thirty days or, upon a showing of good cause, such greater time as authorized by the presiding disciplinary judge within which to conduct any investigation deemed necessary. The attorney shall cooperate in any such investigation. At the end of the period of time allowed for the investigation, the regulation counsel shall file an answer. Based on the petition and answer, the presiding disciplinary judge may order reinstatement or hold a hearing to determine whether the attorney shall be reinstated. The attorney shall bear the burden of establishing the right to be reinstated by a preponderance of the evidence.

(3) If the petition for reinstatement is denied by the presiding disciplinary judge, the attorney may proceed pursuant to C.R.C.P. 251.26.

Amended and Adopted by the Court, En Banc, February 17, 2000, effective immediately.

By the Court:

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

© 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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