Vol. 29, No. 3
From the Courts
Proposed Amendments to the Colorado Rules of Professional Conduct
Hearing to be held Thursday, April 13, 2000, at 2:00 p.m.
The Supreme Court will conduct a public hearing on two proposed amendments to the Colorado Rules of Professional Conduct suggested by the Attorney Regulation Advisory Committee. The proposed amendments are (1) changing Colo. RPC 1.5 to require that lawyers must communicate the basis or rate of the fee in writing; and (2) adding a comment to Colo. RPC 1.4 to require lawyers to respond to reasonable requests from clients for information about incurred fees and costs.
The public hearing will be held on Thursday, April 13, 2000, at 2:00 p.m., in the Colorado Supreme Court Courtroom, 2 East 14th Ave., Denver, Colorado. An original and eight copies of written comments to the court concerning the proposals should be submitted to Mac V. Danford, Clerk of the Supreme Court, 2 East 14th Avenue, Denver, Colorado 80203, no later than March 31, 2000. Persons wishing to participate in the hearing should so notify Mr. Danford no later than March 31, 2000.
Proposed Text of Changes to Rule 1.5 and Comment
(new language in caps)
Rule 1.5. Fees
(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.
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 AGREEMENTS MUST BE IN WRITING, REGARDLESS OF WHETHER THE CLIENT-LAWYER RELATIONSHIP IS NEW OR ESTABLISHED. 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, [i]t 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.
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. MOREOVER, IT IS PREFERABLE, ALTHOUGH NOT MANDATORY, TO OBTAIN THE CLIENT'S SIGNATURE ACKNOWLEDGING THE BASIS OR RATE OF THE FEE.
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 the remainder of the Comment]
Proposed Addition to the Comment to Colo. RPC 1.4
The Attorney Regulation Advisory Committee recommends that the following language be added to the comment to Colo. RPC 1.4 by adding a new paragraph before the current paragraph entitled "Withholding Information."
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.
This proposal fills a gap in the rules because there is presently nothing which expressly requires the lawyer to respond to client requests for information about fees and costs. Rule 1.15(b) requires an accounting, but only in regard to funds or property of the client or a third party of which the lawyer has possession. The proposed addition to the comment makes it clear that the lawyer has an obligation to respond to reasonable requests from the client for information about fees and costs. The subcommittee concluded that if a client asks how much the lawyer has billed or how much has been advanced in costs, the lawyer has the duty to provide that information.
There are no states which have similar language.
Colorado Rules of Civil Procedure
Chapter 4. Disclosure and Discovery
Rule 26.3 LIMITED MONETARY CLAIM ACTIONS
New Rule Adopted
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 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.
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.
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.
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.
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 Rule for Reciprocity
Written Comments to be Filed by
Friday April 14, 2000, 5:00 p.m.
The Supreme Court will entertain written comments to the proposed new Rule for Reciprocity. 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 April 14, 2000, 5:00 p.m.
PROPOSED RULE FOR RECIPROCITY
Proposed revision of C.R.C.P. 201.3 Classification of Applicants:
(1) Class A applicants are those applicants as determined by the Bar Committee:
- who have been admitted to the Bar of another state, territory, or district of the United States which allows admission to members of the Colorado Bar on motion without the requirement of taking that jurisdiction's bar examination,
- who have actively and substantially maintained a practice of law in that state, territory or district of the United States which allow admission to members of the Colorado Bar on motion without the requirement of taking that jurisdiction's bar examination immediately preceding application to the admission of the Bar of Colorado, and
- who have actively and substantially engaged in the practice of law for five of the seven years immediately preceding application for admission to the Bar of Colorado.
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