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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Colorado Legal Ethics

INTRODUCTION

0.1:100   Sources of Law and Guidance

This section 0.1:100 is current through January 1, 1999.

0.1:101      Professional Codes

History of Colorado Ethical Rules.

The Colorado Rules of Professional Conduct codify the standards of professional conduct for Colorado-licensed lawyers. The Colorado Supreme Court adopted the Colorado Rules on May 7, 1992, effective January 1, 1993.

The Colorado Rules, although based on the ABA Model Rules, were the result of an extensive process of study described in Section 0.1:103, which resulted in a number of variances from the Model Rules. These differences are explained under the caption “Model Rule Comparison” in the discussion of each pertinent rule below. Colorado adopted the Comments to the Model Rules with certain revisions. The published versions of the Colorado Rules also include Committee Comments, which are comments of the committee appointed by the Colorado Supreme Court that recommended adoption of the Colorado Rules.

Prior to 1953, Colorado had not officially adopted any formal ethical rules or standards. Disciplinary proceedings were based upon a general sense of proper professional conduct, as well as the ABA Canons of Professional Ethics, adopted by the ABA in 1908, and amended from time to time thereafter. See, e.g., People ex rel. Maupin v. Keegan, 18 Colo. 237, 239, 32 P. 424 (1893) (good moral character or conduct unworthy of his office); People ex rel. Maupin v. MacCabe, 32 P. 280, 18 Colo. 186, 190 (1893) (practices as could not fail to bring discredit upon the lawyer and the courts) People ex rel. Rogers v. Green, 9 Colo. 506, 13 P. 514 (1887). See also People v. Ginsberg, infra.

As early as 1924 it appears that the Colorado Supreme Court was by its rules “recommending” the ABA Canons to the members of the bar. In People ex rel. Colorado Bar Ass’n v. Ginsberg, 87 Colo. 115, 121, 285 P. 758 (1930), the Court said:

Before discussing the several charges, we shall mention the general standards applicable to the case as a whole, by which we are governed in our conclusions. It is a splendid tribute to the legal profession that it is looked to by the better element of society for qualities of leadership, and disappointments are the exception. An elevated conception of professional obligation is essential. Canons of Professional Ethics were long ago adopted by the American Bar Association . . . . As there said, they do not deny the existence of others equally imperative, though not specifically mentioned [standards]. They have been widely followed in other states and by our [Supreme Court] Rule 83e, they are recommended as a standard of professional conduct. This court has considered them of such great importance as to have been printed as an appendix to the 1924 and 1929 editions of our rules. We deem it highly essential to refer to these canons of ethics, at least by general reference. We supply the clerks of district courts with a sufficient number of these rules for distribution to all attorneys in the several districts. They are printed for their use and guidance, and the committee on grievances of the Colorado Bar Association has fearlessly and unselfishly undertaken to assist in the promotion of our canons of ethics, without hope of pecuniary award.

The 1935 Supreme Court Rule 82e, Colorado Statutes Annotated (1935), provided:

Canons of Ethics. The court recommends the Canons of Ethics set out in the appendix to these rules as a standard of professional conduct.

The Preamble to the Canons stated:

The following Canons of ethics are adopted by the court as a general guide, yet the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned.

Rule 222 of the Rules of Civil Procedure for Courts of Record in Colorado, which the Colorado Supreme Court adopted, effective April 16, 1941, required every applicant to take a prescribed oath before admission to the bar. Rule 223 provided that “[a]ny conduct inconsistent with, or in violation of, said oath shall be considered cause for discipline.” Rules 241 through 250 defined the procedures for the discipline of attorneys.

On July 30, 1953, however, Colorado officially adopted the ABA Canons as the standard for Colorado lawyers. See CRS 1953, Rules of Civil Procedure 228. See also Keegan, Canons of Professional Ethics and Canons of Judicial Ethics Adopted by The Supreme Court of Colorado, 30 Dicta 317 (Sept. 1953); Note, Standard of Discipline for Attorneys in Colorado and the Significance of the Code of Professional Responsibility, 50 Den. L.J. 207, 221 n.84 (1973);

The Canons were replaced by the Colorado Code of Professional Responsibility, which the Colorado Supreme Court adopted effective August 20, 1970 and amended from time to time thereafter. Effective January 1, 1993, the Court adopted the Colorado Rules of Professional Conduct which are in effect today, with amendments.

Other professional codes and rules adopted by the Colorado Supreme Court and now in effect include:

Rules Governing Admission to the Bar, CRCP 201, et seq.
Unauthorized Practice of Law Rules, CRCP 228, et seq.
Professional Service Companies, CRCP 265
Rules Governing Contingent Fees, CRCP, Ch. 23.3
Rules of Judicial Discipline
Rules Governing the Commissions on Judicial Performance
Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys' Fund for Client Protection, and Mandatory Continuing Legal Education and Judicial Education, CRCP 251.1, et seq.

CRCP 251.5 defines as non-inclusive grounds for discipline: (a) violations of the Colorado Code (presumably limited to acts or omissions prior to January 1, 1993) or the Colorado Rules (presumably limited to acts or omissions after January 1, 1993); (b) violation of the criminal laws of any state or of the United States; (c) violation of the disciplinary rules or an order of discipline or disability; and (d) failure to respond without good cause to requests of the (i) Attorney Regulation Committee created by CRCP 251.2, (ii) the Attorney Regulation Counsel created by CRCP 251.3, or (iii) the Board of Trustees of the Colorado Attorneys’ Fund for Client Protection created by CRCP 252, or obstruction of those entities’ performance of their duties. CRCP 251.5 further states that “[t]his enumeration of acts and omissions constituting grounds for discipline is not exclusive, and other acts or omissions amounting to unprofessional conduct may constitute grounds for discipline.”

In addition, an Interprofessional Code has been adopted by the Colorado Bar Association, the Denver Bar Association, the Colorado Medical Society, and the Denver Medical Society.

The Denver Bar Association Board of Trustees adopted Principles of Professionalism on April 18, 1996. Other local bar associations and courts may have adopted similar principles.

0.1:102      "Other" Law and Moral Obligation

The Colorado Rules have been interpreted and clarified in decisions of the Colorado Supreme Court, the Colorado Court of Appeals, and certain federal courts. In addition, the Colorado Bar Association Ethics Committee has issued formal and informal opinions on ethics issues, which include discussion of the Colorado Rules. While these CBA Opinions are not binding on the courts, disciplinary personnel or lawyers, they often constitute persuasive authority.

In addition, each lawyer admitted to the Bar of the State of Colorado takes an oath that might be deemed to impose certain obligations not expressly covered in the Colorado Rules. The oath is not merely ceremonial, but is instead a fundamental and integral part of the licensing process. Wilson v. People, 652 P.2d 595, 596 n.1 (Colo. 1982), cert. denied, 459 U.S. 1218 (1983).

Colo.RPC 8.4 includes broadly-worded standards that prohibit lawyers from engaging in conduct that is "prejudicial to the administration of justice," "which violates accepted standards of legal ethics," or "that adversely reflects on the lawyer’s fitness to practice law." While a part of the Rules, this provision in essence incorporates the common law or community standards as ethical standards.

CRCP 251.5 defines as non-inclusive grounds for discipline: (a) violations of the Colorado Code (presumably limited to acts or omissions prior to January 1, 1993) or the Colorado Rules (presumably limited to acts or omissions after January 1, 1993); (b) violation of the criminal laws of any state or of the United States; (c) violation of the disciplinary rules or an order of discipline or disability; and (d) failure to respond without good cause to requests of the (i) Attorney Regulation Committee created by CRCP 251.2, (ii) the Attorney Regulation Counsel created by CRCP 251.3, or (iii) the Board of Trustees of the Colorado Attorneys' Fund for Client Protection created by CRCP 252, or obstruction of those entities' performance of their duties. CRCP 251.5 further states that "[t]his enumeration of acts and omissions constituting grounds for discipline is not exclusive, and other acts or omissions amounting to unprofessional conduct may constitute grounds for discipline."

0.1:103      Background of the Colorado Rules of Professional Conduct

In 1987 the Colorado Supreme Court and the Colorado Bar Association jointly appointed a Rules of Professional Conduct Committee (the "Rules Committee" or the "Colorado Committee") to consider the Model Rules adopted by the ABA in 1983. The Supreme Court appointed the Honorable Kenneth E. Barnhill as Chair of the Rules Committee. The Rules Committee’s report was submitted March 15, 1990 and published for comment. The Colorado Supreme Court received written comments as well as oral comments presented at a public hearing held on June 26, 1991.

After extensive deliberation, including review of the Rules Committee’s proposal and the numerous written and oral comments regarding the proposed rules, the Colorado Supreme Court adopted the Colorado Rules on May 7, 1992, effective January 1, 1993. For further historical background, see the Preface to the Colorado Rules.

Since the adoption of the Colorado Rules, the Court has adopted the following amendments to the Rules and to the Comments and Committee Comments to the Rules:

• Definitions. Amended, effective January 1, 1997.

• 1.7 Committee Comment only amended, effective January 1, 1997.

• 1.9 Rule amended, effective July 1, 1994.

• 1.15 Rule amended, effective January 1, 1999; July 1, 1999.

• 1.17 Rule adopted, effective July 1, 1997.

• 3.6 Rule replaced and adopted, effective January 1, 1998.

• 3.8 Rule and Comment amended, effective February 19, 1997.

• 4.5 Rule and Comment amended, effective July 1, 1997.

• 5.4 Rule amended, effective July 1, 1997.

• 5.6 Rule and Comment amended, effective July 1, 1997.

• 7.1 Rule, Comment and Committee Comment amended, effective July 1, 1997, January 1, 1998.

• 7.2 Rule, Comment and Committee Comment amended, effective July 1, 1997, January 1, 1998.

• 7.3 Rule, Comment and Committee Comment amended, effective January 1, 1998.

• 7.4 Rule, Comment and Committee Comment amended, effective July 1, 1997, January 1, 1998.

• 7.5 Rule amended, effective January 1, 1997.

• 8.4 Committee Comment amended, effective January 1, 1997.

• 9 Rule adopted, effective July 1, 1997.

0.1:104      Unusual Aspects of the Colorado Ethics Rules

The Colorado Rules vary in a number of respects from the Model Rules. Many of the differences appear to be matters of language rather than substance, but there are variations in substance as well. Each of these is discussed in the “Model Rules Comparison” portion of the treatment of each rule below, but the following are among the more important substantive differences:

• The Colorado Supreme Court added a subparagraph (f) to MR 1.2, Scope of Representation in the practice of law expressly providing that in the practice of law a lawyer shall not engage in conduct that exhibits or is intended to appeal to or engender bias against a person on account of that person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status.

• The Court added a sentence to MR 1.3 providing that a lawyer shall not neglect a legal matter entrusted to that lawyer. This was done to track DR 6-101(A)(3), which established an enforceable standard as well as an affirmative obligation to act with reasonable diligence and promptness.

• The Court added provisions to Rule 1.5, as amended effective January 1, 1999, concerning safekeeping of property of clients and of third parties, and COLTAF trust accounts. The rule also prohibits all referral fees.

• The Court extensively revised MR 1.6, Confidentiality of Information, to broaden the scope of permissive disclosure.

• The Court added a subsection (c) to MR 1.7, Conflict of Interest, providing that a client’s consent cannot be validly obtained under that rule if a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances of the particular situation.

• The Court revised MR 1.8, Conflict of Interest: Prohibited Transactions, in several respects. Colo.RPC 1.8(a)(2) requires the lawyer to advise the client that “the use of independent counsel may be advisable” before the lawyer enters into a business transaction with the client. Subsection (i) was amended to include “a cohabitating relationship” to the list of familial relationships for which disclosure and consent are needed prior to representation.

• The Court added a section to MR 1.14, Client Under a Disability, which became subsection (b), providing that the fact that the client is impaired does not relieve the lawyer of the obligation to obtain information from the client to the extent possible.

• The Court substantially revised MR 1.16, Declining or Terminating Representation, to track more closely analogous terms of the Colorado Code. Most importantly, the Court deleted the Model Rule provision permitting withdrawal where “other good cause for withdrawal exists.”

• In 1997, the Court added Colo. RPC 1.17, Sale of Law Practice, setting forth conditions for the sale or purchase of a private law practice, including good will. This rule is substantially different from MR 1.17.

• The Court added a provision to MR 2.1, Advisor, providing that in matters involving or expected to involve litigation, a lawyer should advise the client of alternative forms of dispute resolution that might reasonably be pursued.

• The Court added to MR 2.2, Intermediary, the requirement that the attorney provide “full disclosure in writing” and receive the client’s consent “in writing.”

• The Court modified MR 4.1, Truthfulness in Statements to Others, so that the prohibition on false or misleading statements is not limited to "material" statements of fact or law.

• The Court included a safe harbor provision in MR 4.5, Threatening Prosecution, that a lawyer may notify another person in a civil matter that the lawyer reasonably believes that the other’s conduct may violate criminal, administrative or disciplinary rules or statutes.

• The Court has not adopted MR 5.7, Responsibilities Regarding Law Related Services, or any rule related to ancillary business activities.

• The Court substantially modified MR 7.2, Advertising, to impose more restrictions and onerous requirements than those under the Model Rule.

• The Court departed from MR 7.5, Firm Names and Letterheads, by prohibiting lawyers from practicing under a trade name.

• The Court revised MR 8.4, Misconduct, to provide that it is professional misconduct for a lawyer to engage in conduct that violates accepted standards of legal ethics, or that adversely reflects on the lawyer’s fitness to practice law.

0.2:200   Forms of Lawyer Regulation in Colorado

Primary Colorado References: CRCP 251
Background References:
Colorado Commentary: “How the New Attorney Regulation System Will Work,” 28 Colo. Lawyer 57 (1999) ABA/BNA § 101.101, et seq.; 201.101, et seq.

This section is current as of January 1, 1999.

Court Rules:

The rules for the regulation of attorneys and judges are promulgated by the Colorado Supreme Court as part of the Colorado Rules of Civil Procedure (CRCP). The attorney regulation rules are:

Chapter 18 (CRCP 201.1-227), Rules Governing Admission to the Bar.

Chapter 19 (CRCP 228-240.1), Unauthorized Practice of Law Rules.

Chapter 20 (CRCP 251.1-260.7), Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal and Judicial Education.

Appendix to Chapters 18-20, Rules of Professional Conduct.

Chapter 22 (CRCP 265), Professional Services Companies.

Chapter 23.3, Rules Governing Contingent Fees.

Chapter 24, Colorado Rules of Judicial Discipline.

Appendix to Chapter 24, Colorado Code of Judicial Conduct.

Most of these materials can be found on the Web, accessed:

From the Colorado Bar Association website.<http://www.cobar.org/comms/ethics/>

Directly from the Supreme Court website. <http://www.courts.state.co.us/supct/supct.htm>

Statutes:

Statutes regulating the practice of law are found at CRS Chapter 12, article 5. These include:

§§ 101 & 112      License to practice law is required, and contempt penalties
                       (pursuant to which unauthorized practice of law issues are
                        usually determined).
§ 102                Race or sex cannot be a basis for denying a license.
§ 103                License fee to be prescribed by the Supreme court.
§ 107                Clerk of the Supreme court maintains roll of persons admitted
                        to practice law.
§ 108 & 114        Supreme Court power to strike attorneys from rolls for
                        malconduct in office, and procedures (disciplinary power of
                        Supreme Court).
§ 109                 Persons forbidden to practice law in certain courts.
§ 110-111           Limitations on judges acting as attorneys, and penalties.
§ 113                 Admission of out-of-state lawyers for special appearances in
                         court.
§ 115                 Recovery of fees collected by unlicensed person practicing
                         law.
§ 115.5              Limitation on solicitation of employment, or releases, with
                        respect to personal injury claims.
§§ 116-116.5      Legal aid dispensers and practice of law by students.
§ 117                 Limitation on attorneys serving as sureties.
§ 118                 Prohibition on judge having a partner who appears in any
                        court in judge’s judicial district, county or precinct.
§§ 119-120         Attorney’s lien

General Discussion.

Regulation of the legal profession in Colorado is exclusively by the Colorado Supreme Court. See Olsen and Brown v. City of Englewood, 889 P.2d 673 (Colo. 1995). In order to practice as an attorney in Colorado, including to represent a party (other than himself or herself) in a court of record, the person must be licensed by the Colorado Supreme Court. CRS §12-5-101. Being licensed by another state does not authorize an attorney to practice law in Colorado without a Colorado license or authorization. Unauthorized Practice of Law Comm. v. Bodhaine, 738 P.2d 376, 377 (Colo. 1987).

The Supreme Court has jurisdiction to regulate the unauthorized practice of law. Unauthorized Practice of Law Comm. v. Prog, 761 P.2d 1111, 1115 (Colo. 1988). See CRCP 228. In carrying out that responsibility, the Supreme Court promulgated Chapter 19 of the Colorado Rules of Civil Procedure, Unauthorized Practice of Law Rules, CRCP 228-240.1.

The Supreme Court has authority to promulgate rules governing the admission and regulation of lawyers. CRS §12-1-101; Unauthorized Practice of Law Comm. v. Bodhaine, 738 P.2d 376, 377 (Colo. 1987).

The Supreme Court’s exclusive authority extends not only to the admission of applicants to the bar, but also to prescribing rules for the discipline of lawyers, and to assessment of penalties in disciplinary proceedings for acts in violation of the rules of professional conduct. Mulei v. Jet Courier Service, Inc., 860 P.2d 569, 572 (Colo. App. 1993), cert. denied Oct. 18, 1993. See also People v. Susman, 587 P.2d 782 (Colo. 1978); Colorado Supreme Court Grievance Comm. v. District Court, 850 P.2d 150, 152 (Colo. 1993); and CRCP 251.1(b).

The Supreme Court has adopted “Rules governing Admission to the Bar” as a part of the Rules of Civil Procedure. CRCP 201. The Supreme Court exercises its jurisdiction over matters involving licensing of persons to practice law through two committees appointed by it, the Law Committee and the Bar Committee (together constituting the “Colorado State Board of Law Examiners”). These committees are located at 600 17th Street, Suite 520-S, Denver, Colorado 80202, telephone 303-893-8096, fax 303-893-0541.

Attorneys must register annually, and pay required fees. CRS §12-5-103 and CRCP 227(1)(a). CRS §26-13-126(3) and CRCP 227(2) require a registering attorney to answer whether he/she is currently under an order to pay child support, and, if so, whether the attorney is current on ordered payments. CRCP 251.8.5 provides for suspension of the license of an attorney who is in arrears in payment of child support or who is in arrears under a child support order as defined by CRS §26-13-123(a). That Rule sets forth the procedures (see section 0.2:240), commencing with the filing of a petition for suspension, and the issuance of an order to show cause directing the attorney to show why he should not be immediately suspended. If a response is not timely made, or after consideration of any response and reply, the attorney may be immediately suspended from the practice of law if the attorney fails to pay the past due obligation, negotiate a payment plan approved by a court, or file a motion to modify the court ordered support obligation within the thirty day period for filing a response. CRCP 251.8.5(b)(2).

If a response to the order to show cause is timely filed and if the attorney requests a hearing, procedures are set forth for the hearing. The hearing is held solely for the purpose of determining whether there exists, as of the date of the hearing, proof that full payment of all arrears of support established by the order of court owed by the attorney has been paid; that there is a mistake in the identity of the attorney; that the attorney has entered into a court approved payment plan; or that the attorney has filed a motion to modify the court ordered child support obligation. Evidence with respect to the appropriateness of the underlying court order or the ability of the attorney in arrears to comply with such order shall not be received or considered. Appeals are pursuant to CRCP 251.26. There are provisions for reinstatement. See also CRS § 26-13-127. These Rules are in accordance with CRS § 26-13-126(3) as well as probably to fulfill the requirements of 42 U.S.C. § 666(17) (requirement of statutorily prescribed procedures to improve effectiveness of child support enforcement).

Prior to the adoption of these statutes and rules in 1997-1998, failure to pay child support, standing alone, did not subject an attorney to discipline for professional conduct, unless accompanied by aggravating circumstances. See People v. Kane, 385 P.2d 390, 392 (Colo. 1982).

The Colorado Supreme Court has promulgated the Colorado Rules of Procedure Regarding Lawyer Discipline and Disability Proceedings, and Regarding Mandatory Continuing Legal and Judicial Education. These Colorado Rules of Civil Procedure discussed hereafter (including amendments prior to effective date) were effective as of July 1, 1998 (in part) and January 1, 1999. The discussion under Section 0.2:200 and Subsections is based upon these rules, but includes case law decided under prior rules which were similar in principle. The new rules correspond to the old rules as follows:

CONVERSION CHART

Published as 27 The Colorado Lawyer 139 (1998)

Colorado Rules of Procedure Regarding

Attorney Discipline and Disability Proceedings

              New Rule          Old Rule

         251.1               241.1
         251.2               241.2
         251.3               241.4
         251.4               241.5
         251.5               241.6
         251.6               241.7
         251.7               New Rule
         251.8(a)           241.8
         251.8(b)           New Rule
         251.9               241.9
         251.10             241.10
         251.11             241.10.5
         251.12             241.11
         251.13             241.11.5
         251.14             241.12
         251.15             241.13
         251.16             New Rule
         251.17             New Rule
         251.18             241.14
         251.19             241.15
         251.20             241.16
         251.21             241.17
         251.22             241.18
         251.23             241.19
         251.24             New Rule
         251.25             New Rule
         251.26             New Rule
         251.27             241.20
         251.28             241.21
         251.29             241.22
         251.30             241.23
         251.31             241.24
         251.32             241.25
         251.33             241.26
         251.34             New Rule

Attorney’s Fund for Client Protection

         251.1 to 252.16 New Rule   

CRCP 251.1(b) provides that every lawyer licensed to practice law in the State of Colorado is subject to the disciplinary and disability jurisdiction of the Supreme Court in all matters relating to the practice of law. This regulation by the Colorado Supreme Court extends to conduct of a Colorado licensed attorney in other states. People v. Schindelar, 845 P.2d 1146, 1147 (Colo. 1993). In addition, every lawyer specially admitted to practice law in Colorado is subject to the disciplinary and disability jurisdiction of the Supreme Court for conduct relating to that proceeding. Rule 251.1(b). See Section 8.5.

The Rules Regarding Lawyer Discipline and Disability Proceedings define the procedures for handling allegations that a lawyer has violated ethical rules or is otherwise unable to discharge his/her professional responsibilities. The Rules Regarding Mandatory Continuing Legal and Judicial Education impose continuing legal or judicial education upon every attorney and judge, and prescribe procedures for defining what fulfills that obligation.

CRCP 251.4 allows a trial court to impose sanctions for violation of the Rules of Professional Conduct but only in the context of contempt proceedings. That provision also requires that all judges of courts of record report to the Supreme Court any act or failure to act of a lawyer which constitutes reasonable cause for the commencement of disciplinary or disability proceedings. However, the reporting of such matters to the Supreme Court cannot be used in lieu of contempt proceedings. See Mulei v. Jet Courier Service, Inc., 860 P.2d 569, 572 (Colo. App. 1993), cert. denied, Oct. 18, 1993.

0.2:210      Judicial Regulation

The Supreme Court has adopted the Colorado Code of Judicial Conduct (Appendix to Chapter 24, CRCP). This Code generally tracks the ABA Model Code of Judicial Conduct, but with revisions.

The Colorado Supreme Court has also promulgated the Colorado Rules Of Judicial Discipline, governing the discipline of judges. (CRCP Ch. 24). Those rules apply to all of the functions, responsibilities and proceedings of the Commission on Judicial Discipline involving the removal, retirement, suspension, censure, remand or other discipline of judges pursuant to Article 6 of the Colorado Constitution. Rule of Judicial Discipline Rule 1(a)

The United States District Court for the District of Colorado is under the jurisdiction of the Tenth Circuit Court of Appeals. The Rules of the Judicial Council of the Tenth Circuit Governing Complaints Of Judicial Misconduct or Disability, effective August 1, 1994, apply to judges within the Tenth Circuit Court of Appeals who are judges in the United States Court of Appeals, judges of the United States District Courts, judges of the United States Bankruptcy Courts and United States Magistrate Judges. Rules of the Judicial Council, Rule 1(c). Those rules provide a complete procedure for the filing, review, investigation, and disposition of complaints.

0.2:220      Bar Organizations

Colorado does not have an integrated bar; membership in the bar associations is voluntary. See CRS § 12-5-101.

The Colorado Bar Association has the following committees relating to professional conduct or ethics but they have no function in the formal disciplinary process: Ethics Committee, Grievance Policy Committee and Professionalism Committee. The Ethics Committee from time to time issues formal, informal and letter opinions on ethical issues. They are not binding upon the courts or in the disciplinary procedure discussed in 0.2:240, but carry persuasive weight.

0.2:230      Disciplinary Agency

The sole disciplinary agency in the State of Colorado is the Colorado Supreme Court. It operates through the committees created by it and the personnel appointed by it. The Supreme Court has plenary power. See CRCP 251.1, et seq. See Section 0.2:240.

0.2:240      Disciplinary Process

The Colorado Supreme Court has original and exclusive jurisdiction regarding discipline of lawyers in Colorado. See CRCP 251.1 et seq. and CRS §12-5-101, et seq. “Each lawyer licensed to practice law in the State of Colorado is subject to the disciplinary and disability jurisdiction of the Supreme Court in all matters relating to the practice of law. Every lawyer specially admitted to practice law in this state . . . is subject to the disciplinary and disability jurisdiction of the Supreme Court for conduct related to that proceeding.” CRCP 251.1(b). See also Olsen and Brown v. City of Englewood, 889 P.2d 673 (Colo. 1995).

Organization of Grievance, Disciplinary and Disability Authority

To assist it in carrying out the grievance, disciplinary and disability process, the Colorado Supreme Court created an administrative framework consisting of the Attorney Regulation Committee, the Attorney Regulation Counsel, the Presiding Disciplinary Judge, the Appellate Discipline Commission, and the Advisory Committee. However, the Supreme Court specifically reserves the authority to review any determination made in the course of disciplinary proceedings and to enter any order with respect thereto, including an order directing that further proceedings be conducted as provided by the Disciplinary Rules. CRCP 251.1(d).

The Attorney Regulation Counsel is appointed by the Supreme Court, and serves as the administrator of the grievance, disciplinary and disability process. In essence, the Counsel is the prosecutor. The Counsel conducts investigations, prosecutes disciplinary and disability actions, prosecutes contempt charges, and related activities. CRCP 251.3. The office of the Counsel is at 600 17th Street, Suite 200-S, Denver, Colorado 80202, telephone 303-893-8121, fax 303-893-5302.

The Attorney Regulation Committee is a permanent committee of the Supreme Court, and consists of six lawyers and three public members, appointed for two year staggered terms. CRCP 251.2(a). The office of the committee is located at 600 17th Street, Suite 200-S, Denver, Colorado 80202, telephone 303-893-8121, fax 303-893-5302. Its function includes consideration of the reports and recommendations of the Regulation Counsel that private admonition be imposed or that a complaint be filed. Specifically, the Committee determines whether there is reasonable cause to believe grounds for discipline exist. Upon consideration of the Regulation Counsel’s report, the Committee may (a) direct the Regulation Counsel or an appointed investigator to conduct further investigation, (b) dismiss the allegations, (c) divert the matter to alternatives to discipline, (d) order private admonition, or (e) authorize the Regulation Counsel to file a complaint against the attorney. CRCP 251.12.

The Presiding Disciplinary Judge is appointed by the Supreme Court. CRCP 251.16. His office is located at 600 17th Street, Suite 570-S, Denver, CO 80202-5435, telephone (303) 825-2797. His function is to preside at hearings of the Hearing Board.

Hearing Boards are from time to time selected at random from a pool of lawyers and nonlawyers appointed by the Supreme Court. CRCP 251.17. Their primary role is to hear complaints seeking disciplinary action. The Presiding Disciplinary Judge is a member of each appointed Board, and conducts the hearing. CRCP 251.18.

The Appellate Discipline Commission is appointed by the Supreme Court and consists of both lawyers and nonlawyers. It hears appeals from decisions of Hearing Boards. CRCP 251.19 and 251.26. The office of the Commission is located at 600 17th Street, Suite 300-S, Denver, Colorado 80202, telephone 303-893-2436, fax 303-893-2443.

The Counsel for the Appellate Discipline Commission is appointed by the Supreme Court, and provides the administrative and legal support for the Appellate Discipline Committee. CRCP 251.25. His office is located at 600 17th Street, Suite 300-S, Denver, Colorado 80202, telephone 303-893-2436, fax 303-893-2443.

The Advisory Committee is made up of Supreme Court members, various persons in the disciplinary process, and members appointed by the Supreme Court. This Committee assists the Supreme Court in broad areas with respect to the attorney regulation system.

Grounds for Discipline. Rule 251.5

CRCP 251.5 sets forth the grounds for discipline, but specifically notes that the enumeration of acts and omissions constituting grounds for discipline is not exclusive, and other acts and omissions amounting to “unprofessional conduct” may constitute grounds for discipline. Moreover, the rule specifically provides that misconduct by an attorney, individually or in concert with others, shall constitute grounds for discipline, “whether or not the act or omission occurred in the course of an attorney-client relationship.”

The enumerated grounds for discipline are:

(a) Any violation of the Code of Professional Responsibility or the Rules of Professional Conduct. (Presumably, the reference to a violation of the Code of Professional Conduct refers only to acts or omissions occurring prior to the adoption of the Rules of Professional Conduct.) See CRCP 251.1(c)).

(b) Any violation of state or federal criminal laws.

(c) Any violation of the Disciplinary Rules or an order of discipline or disability.

(d) Failure to respond without good cause to a request by the Attorney Regulation Committee, the Regulation Counsel, or the Board of Trustees of the Colorado Attorneys’ Fund for Client Protection or obstruction of the Attorneys Regulation Committee, the Regulation Counsel, or the Board of Trustees of the Colorado Attorneys’ Fund for Client Protection in the performance of their duties.

In addition, CRCP 251.1(a) provides:

(a) Statement of Policy. All members of the Bar of Colorado, having taken an oath to support the Constitution and laws of this state and of the United States, are charged with obedience to those laws at all times.

(b) In order to maintain the highest standards of professional conduct, attorneys who have demonstrated that they are unable, or are likely to be unable, to discharge their professional responsibilities shall be subject to appropriate disciplinary or disability proceedings.

Duty to Report Misconduct or Disability. Rule 251.4

CRCP 251.4 provides that a judge has a duty to report unprofessional conduct by an attorney pursuant to Canon 3(B)(3) of the Colorado Code of Judicial Conduct. However, such action does not limit the power of the reporting judge to exercise the power of contempt against an attorney, and such reporting should not be used in lieu of contempt proceedings. These latter provisions of this Rule follow the holding in Mulei v. Jet Courier Service, Inc., 860 P.2d 569, 572 (Colo. App. 1993), cert. denied Oct. 18, 1993.

Colo.RPC 8.3 provides for a lawyer to report violations of the Rules of Professional Conduct and Rules of Judicial Conduct in certain circumstances.

See Section 8.3, Reporting Professional Misconduct, and CBA Formal Ethics Opinion 64 (April 23, 1983, amended June 15, 1996).

CRCP 251.20 requires a lawyer to report certain convictions of himself of a crime.

Forms of Discipline. Rule 251.6 and 251.7

The forms of discipline which may be imposed by the regulatory authority are prescribed in CRCP 251.6:

(a) Disbarment - revocation of attorney’s license to practice law in this state, subject to readmission. Disbarment shall be for at least eight years.

(b) Suspension - a temporary suspension of attorney’s license to practice law, subject to reinstatement. Suspension may be stayed in whole or in part but shall be for a definite period not to exceed three years.

(c) Public Censure - reproach published with other grievance decisions and made available to the public.

(d) Private Admonition - unpublished reproach. Procedures are defined for an admonished attorney to challenge the order of admonition.

In addition, an attorney may be placed on probation pursuant to CRCP 251.7.

Immediate Suspension. Rule 251.8

CRCP 251.8, Immediate Suspension, provides for temporary suspension by the Supreme Court of an attorney’s license to practice law for a definite or indefinite period of time while proceedings conducted pursuant to the Disciplinary Rules are pending against the attorney. Immediate suspension may occur only when there is reasonable cause to believe that an attorney is causing or has caused immediate and substantial public or private harm because the attorney has been convicted of a serious crime (defined by CRCP 251.20(e)), or has converted property or funds, or because the attorney has been engaged in conduct which poses an immediate threat to the effective administration of justice. Specific procedures for an immediate suspension are defined.

Consent Discipline. Rule 251.3

Consent discipline is carried out pursuant to CRCP 251.3, Alternatives to Discipline. In addition, CRCP 251.22 provides for discipline based upon admitted misconduct. Thus, at any stage of the proceedings prior to final action by a hearing board, the lawyer may tender a conditional admission of misconduct constituting grounds for discipline in exchange for a stipulated form of discipline. Various reviews and approval process are provided for by that Rule.

Reciprocal Discipline (“Discipline Imposed by Foreign Jurisdiction”). Rule 251.21

Generally, a final adjudication in another jurisdiction of misconduct constituting grounds for discipline of an attorney conclusively establishes such misconduct for purposes of proceedings in Colorado. A lawyer subject to the Colorado Rules against whom any form of public discipline has been imposed by authorities of another jurisdiction, or who voluntarily surrenders his/her license to practice law in conjunction with disciplinary proceedings in another jurisdiction, is required to notify the Regulation Counsel of that action in writing within ten days. Upon receiving notice that an attorney has voluntarily surrendered his license in another jurisdiction, the Regulation Counsel, following investigation, then refers the matter to the Regulation Committee for further proceedings pursuant to CRCP 251.12. Upon receiving notice that an attorney has been publicly disciplined in another jurisdiction, the Regulation Counsel files a complaint against the attorney. Procedures are defined.

Initiation of the Disciplinary Proceeding. Rule 251.9

Disciplinary proceedings are “commenced” in four ways:

1. Upon a request for investigation made by any person to the Regulation Counsel; or

2. Upon a report made by a judge of any court of record and directed to the Regulation Counsel pursuant to CRCP 251.4; or

3. By the Attorney Regulation Committee upon its own motion; or

4. By the Regulation Counsel with the concurrence of the Chairman or a Vice Chairman of the Attorney Regulation Committee.

CRCP 251.9(a).

Under Colo.RPC 8.3(a) a lawyer having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.

CRCP 251.20(b) requires that an attorney, upon being convicted of a crime except misdemeanor traffic offenses or traffic ordinance violations not including the use of alcohol or drugs, notify the Regulation Counsel in writing of the conviction within ten days. The Regulation Counsel then, after investigation, proceeds generally as if a complaint had been made. Conviction of a serious crime is cause for immediate suspension under CRCP 251.8.

Similarly, CRCP 251.21(b) requires that an attorney against whom public discipline has been imposed by authorities of another jurisdiction, or who voluntarily surrenders his license to practice law in connection with disciplinary proceedings in another jurisdiction, “notify the Regulation Counsel” of such action in writing within ten days. Such notifications in and of themselves do not constitute an initiation of the grievance proceeding, but require the Regulation Counsel to pursue further proceedings.

Preliminary Consideration of Allegations. Rule 251.9(b)

Upon “commencement” of proceedings other than by the Regulation Counsel, the matter is referred to the Regulation Counsel to determine whether the attorney is subject to the disciplinary jurisdiction of the Supreme Court, whether there is an allegation made against the attorney which, if proved, would constitute grounds for discipline, and whether the matter should be investigated or addressed by means of an alternative to discipline. In making the determination, the Regulation Counsel may make inquiry regarding the underlying facts and consult with the Chair of the Attorney Regulation Committee. This preinvestigation decision of the Regulation Counsel is final and is not subject to any appeal by the complainant. CRCP 251.10.

Investigation of Allegations. Rule 251.10

If the Regulation Counsel determines under CRCP 251.9 to proceed with an investigation, the Regulation Counsel gives written notice to the attorney, who must file a written response. Thereafter, the matter is assigned to an Investigator. The investigation is conducted, with either a report submitted or a conditional admission of the attorney being filed. CRCP 251.10.

The Investigator may be a member of the Attorney Regulation Committee, the Regulation Attorney or a member of his staff, or a lawyer enlisted pursuant to CRCP 251.2(b)(1). The function of the Investigator is to investigate the allegations made against the attorney. The Investigator has the power to administer oaths and affirmations.

The Chair of the Regulation Committee or the Regulation Counsel may issue subpoenas to compel the attendance of witnesses, including the accused attorney, and for the production of pertinent books, papers and documents or other evidence. Subpoenas are subject to the Rules of Civil Procedure relating to subpoenas and subpoenas duces tecum in civil litigation (CRCP 45) as well as to Rules relating to procurement of evidence during a hearing. CRCP 241.14(e)(1), (2) and (4)

Upon completion of the investigation, the Investigator submits a written report of the investigation and his recommendations to the Regulation Counsel.

At any time prior to final action by a Hearing Board, the attorney in question may tender a conditional admission of misconduct constituting grounds for discipline in exchange for a stipulated form of judgment. CRCP 251.22. The conditional admission must be in the form of a written affidavit.

Determination by the Regulation Counsel. Rule 251.11

At any time prior to or at the conclusion of an investigation, the Regulation Counsel may determine the matter should be diverted to the disciplinary alternatives. See discussion of CRCP 251.13, infra.

At the conclusion of an investigation that has not been diverted to alternatives to discipline, the Regulation Counsel either dismisses the allegations or reports to the Attorney Regulation Committee for a determination as provided in CRCP 251.12. However, the person making the allegations against the attorney may request a review of any post investigation decision of the Regulation Counsel to dismiss the allegations. In that event, the Attorney Regulation Committee reviews the dismissal decision under an abuse of discretion standard. When the Committee sustains a dismissal, it must furnish the person making the allegations against the attorney with a written explanation of its determination.

Determination by the Attorney Regulation Committee. Rule 251.12

At the conclusion of the investigation, if the Regulation Counsel believes that the Attorney Regulation Committee should order a private admonition imposed or authorize the Regulation Counsel file a complaint, the Regulation Counsel submits a report of investigation and recommendation to the Committee, which then determines whether there is reasonable cause to believe grounds for discipline exist. The Committee either (a) directs further investigation, (b) dismisses the allegations and furnishes the person making the allegations with a written explanation of its determination, (c) diverts the matter to alternatives to discipline program, (d) orders private admonition imposed, or (e) authorizes the Regulation Counsel to file a complaint against the attorney. CRCP 251.12.

Alternatives to Discipline. Rule 251.13

Under CRCP 251.13, Alternatives to Discipline, the accused lawyer may be offered alternatives to the discipline program. These “diversion programs” are in lieu of discipline and emphasize the rehabilitative approach of these rules when practical. These alternatives include, but are not limited to:

a. Mediation

b. Fee arbitration

c. Law office management assistance

d. Evaluation and treatment through the attorneys’ peer assistance program.

e. Evaluation and treatment for substance abuse.

f. Psychological evaluation and treatment.

g. Medical evaluation and treatment.

h. Monitoring of the attorney’s practice or accounting procedures.

i. Continuing legal education.

j. Ethics school

k. Multistate professional responsibility examination.

If an alternative is agreed to, the attorney must enter into a formal written diversion agreement setting forth the terms.

Examples of alternatives available include programs of the Colorado Lawyers Health Program, located at 600 17th Street, Suite 507-S, Denver, Colorado 80202-5435, a not for profit corporation formed to assist attorneys and their families with substance abuse and/or mental health problems. CLHP may be reached by telephone at 303-825-7076 or 800-432-0977. Its confidential fax line is 303-825-7079.

An attorney may participate in a diversion program only in cases where there is little likelihood that the attorney will harm the public during the period of participation, where the Regulation Counsel can adequately supervise the conditions of diversion, and where participation in the program is likely to benefit the attorney and accomplish the goals of the program. Generally, a matter will not be diverted to alternatives when: (1) the presumptive form of discipline in the matter is likely to be greater than a public censure; (2) when the misconduct involves misappropriation of funds or property, a serious crime, family violence, or resulted in or is likely to result in actual economic injury to another person (unless restitution is made a condition of the diversion); (3) the attorney has been publicly disciplined in the last three years; (4) the misconduct is of the same nature as that for which the attorney was disciplined within the last five years or is a pattern of similar misconduct; or (5) the misconduct involves dishonesty, deceit, fraud or misrepresentation.

If diversion is entered before a determination to proceed with disciplinary proceedings is made pursuant to CRCP 251.9(b)(3), and if the attorney successfully completes all the requirements of the diversion program, the matter is then closed. If the diversion was in a matter that was determined to warrant investigation or other proceedings, the matter is then dismissed and expunged.

Complaints. Rule 251.14

Formal complaints prepared by the Regulation Counsel asserting grounds for discipline of an attorney are filed with the Presiding Disciplinary Judge. A complaint must set forth “clearly and with particularity” the grounds for discipline and the conduct of the respondent which gave rise to those charges. The citation and complaint must be served personally or by certified mail. See CRCP 251.32(b).

Answer: Filing, Failing to Answer, Default Rule 251.15

The respondent attorney must submit an answer within twenty days after service or within such time as approved by the Presiding Disciplinary Judge. CRCP 251.15(a)

The answer must admit or deny each material allegation or request greater particularity. In addition, affirmative defenses must be set forth. The respondent may object to the complaint, for example, for failure to state a ground for discipline. CRCP 251.15(a)

If the respondent attorney fails to timely answer, the Regulation Counsel must file a motion for entry of default. The Disciplinary Judge must enter a default and the complaint is deemed admitted. Notwithstanding the entry of a default, the respondent is entitled to notice of and the right to present arguments to the Hearing Board as to the discipline to be imposed. CRCP 251.15 (b)

Proceedings Before the Hearing Board. Rule 251.18

All hearings on complaints seeking disciplinary action are conducted by a Hearing Board consisting of the Presiding Disciplinary Judge and two members drawn from the pool of Hearing Board members. With certain exceptions, hearings are conducted in accordance with the Colorado Rules of Civil Procedure, the Colorado Rules of Evidence and the practice in civil cases. Subpoenas may be issued and limited discovery is allowed. If the mental or physical condition of the attorney is in issue, the presiding Disciplinary Judge may order the attorney to submit to a physical or mental examination, upon a determination that reasonable cause exists and after notice to the attorney. In general, the proceeding is conducted in the form of a trial. The standard of proof is clear and convincing evidence, and the respondent retains his privilege against self incrimination. Extensive provisions governing the conduct of the hearing are set forth in CRCP 251.18.

Decision of the Hearing Board. Rule 251.19

Decisions of the Hearing Board are by majority vote. The Hearing Board either (1) determines that the complaint is not proved and enters an order dismissing the complaint, (2) enters an order imposing private admonition, public censure, a definite period of suspension or disbarment, or (3) enters an order conditioned on the agreement of the attorney diverting the case to the alternatives to discipline program. CRCP 251.19.

Appeal to Appellate Discipline Commission Proceedings. Rule 251.26

CRCP 251.26 provides for an appeal from a hearing board to an Appellate Discipline Commission. Procedures are analogous to those of an appeal in a civil proceeding. The Appellate Discipline Commission may conduct a de novo review of the conclusions of law.

Decisions of the Hearing Board must be affirmed unless the Appellate Discipline Commission determines, based on the record, (a) that the findings of fact of the Hearing Board are clearly erroneous, or (b) that the form of discipline imposed by the Hearing Board: (1) bears no relation to the conduct; (2) is manifestly excessive or insufficient in relation to the needs of the public, or (3) is otherwise unreasonable. While not expressly stated, the Commission presumably may modify the decision if it finds error in the legal conclusions. Detailed procedures for the appeal are defined, including applications for stay. CRCP 251.26(l).

The Appellate Discipline Commission must either (1) determine that the complaint is not proved and enter an order dismissing the complaint; or (2) enter an order imposing private admonition, public censure, a defined suspension, or disbarment, or transferring the attorney to disability inactive status. CRCP 251.26(m). There is no provision for remand to the Hearing Board.

In addition, the Commission may also enter other appropriate orders, such as probation, and orders requiring the respondent to pay the costs of the disciplinary proceeding, to make restitution, or to refund money paid to the respondent. CRCP 251.26(m).

Review by the Colorado Supreme Court. Rule 251.27

Appellate review by the Supreme Court is allowed of every final decision of the Appellate Discipline Commission in which public censure, suspension, disbarment or transfer to disability inactive status is ordered or in which reinstatement or readmission is denied. The standard of review is whether the findings of fact of the Hearing Board are clearly erroneous or that the form of discipline imposed by the Appellate Discipline Commission (1) bears no relation to the conduct, (2) is manifestly excessive or insufficient in relation to the needs of the public, or (3) is otherwise unreasonable. The Supreme Court may conduct a de novo review of the conclusions of law. The procedures are defined. CRCP 251.27.

Required Action After Disbarment, Suspension or Transfer. Rule 251.28

CRCP 251.28 defines the effective date of orders, and the limitations upon the disciplined attorney upon entry of the order. With the consent of the client after full disclosure, the attorney may wind up or complete any matters pending on the date of entry of the order, until the effective date of the order.

The Rule also defines procedures for notice to clients and to opposing parties in litigation, publication of certain discipline, monitoring of compliance, and administration of the discipline.

Reinstatement. Rules 251.29 and 251.30

CRCP 251.29 provides procedures for readmission after disbarment and reinstatement after suspension. Reinstatement after transfer to disability inactive status is provided for in CRCP 251.30.

Disability Inactive Status. Rule 251.23

CRCP 251.23 provides for transfer of attorneys to disability inactive status if the attorney is unable to fulfill professional responsibilities competently because of physical, mental, or emotional infirmity or illness, including addiction to drugs or intoxicants. The attorney may not practice law while in this status. Detailed procedures are set forth in the rule.

Access to Information Concerning Disciplinary/Disability Proceedings. Rule 251.31

Generally, with noted exceptions, after the Attorney Regulation Committee determines reasonable grounds for discipline exists and the Regulation Counsel files and serves a complaint, the records - except those of work product, deliberations and internal communications - are available to the public. However, a protective order may be obtained. CRCP 251.31.

Unless otherwise ordered, the complaining witness, the attorney and all other witnesses may disclose the “existence of proceedings” and “any documents or correspondence served on or provided to those persons.” However, there are also extensive provisions as to confidentiality.

General Provisions. Rule 251.32

CRCP 251.32 defines housekeeping rules relating to quorums, notice and service of process, number of copies, imposition of costs, stays. This rule also provides for immunity as to certain testimony given. There is a five year statute of limitations for a request for investigation after the time the complainant discovers or reasonably should have discovered the misconduct, except there is no limitation period for misconduct consisting of fraud, conversion, or conviction of a serious crime, or if discovery has been prevented by concealment by the attorney.

Expunction of Records. Rule 251.33

CRCP 251.33 provides for expunction of records, defined as destruction of all records or other evidence of any type, relating to proceedings not made public under CRCP 251.31 which were dismissed, three years after the end of the year in which the dismissal occurred. At that point, “the proceeding shall be deemed never to have occurred.”

0.2:245      Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude

Colorado does not have a statute or rule requiring disbarment of a lawyer upon conviction of a crime involving moral turpitude. CRCP 251.5 simply makes any act or omission which violates the criminal laws of any state or of the United States a ground for discipline.

Prior to 1972, a Colorado statute (1963 CRS § 39-10-17) provided that a person convicted of a felony was disqualified from practicing as an attorney in the courts of this state. The constitutionality of this statute was upheld in People v. Buckles, 453 P.2d 404 (Colo. 1969). The statute was repealed in 1972. CRS § 18-1-105(3) provides that any person convicted of a felony is disqualified from practicing as an attorney in any Colorado court while imprisoned, committed to imprisonment or on probation.

0.2:250      Sanctions in Judicial Proceedings

CRCP 241.5 allows a trial court to impose sanctions for violation of the Rules of Professional Conduct solely in the context of contempt proceedings. That provision also requires that all judges of courts of record report to the Supreme Court any act or failure to act of a lawyer which constitutes reasonable cause for the commencement of disciplinary or disability proceedings. However, the reporting of such matters to the Supreme Court cannot be used in lieu of contempt proceedings. Mulei v. Jet Courier Service, Inc., 860 P.2d 569, 572 (Colo. App. 1993), cert. denied, Oct. 18, 1993.

0.2:260      Criminal and Civil Liability

Civil liability of lawyers toward clients and others is afforded under common law tort and contract remedies.

A lawyer (and also others such as arbitrators) commits a felony if he solicits, accepts or agrees to accept any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he is subject. CRS §18-5-401(1)(c).

0.2:270      Federal Courts and Agencies

Federal District Court.

There is a single federal district in the State of Colorado - the District of Colorado. 28 U.S.C. § 85. The District of Colorado is a part of the Tenth Judicial Circuit.

The federal courts have inherent power to regulate admission, practice and discipline of lawyers with respect to practice in the federal courts. This power includes the establishment of their own standards for admission to the practice of law, consistent with the rules of the United States Supreme Court. See Galahad v. Weinshienk, 555 F.Supp. 1201 (D.Colo. 1983), rev’d on other grds, Mattox v. Disciplinary Panel, 758 F.2d 1362 (10th Cir. 1985), after remand, affirmed, 862 F.2d 876 (10th Cir. 1988).

The United States District Court for the District of Colorado requires for admission to practice before it that the applicant be of good moral character, be licensed by the highest court of a state, federal territory or the District of Columbia where a written examination was required for admission and be a member of the bar in good standing in all courts and jurisdictions where he or she has been admitted. D.C.COLO. LR 83.5A. There is no requirement that out-of-state lawyers be affiliated with local counsel. The United States District Court also has established its own procedures for proceedings involving disbarment, suspension, censure or other lawyer discipline applicable to attorneys who are members of the bar of that court. D.C.Colo. LR 83.6.

Federal Court of Appeals.

Fed.R.App. P. 46 provides procedures for admission to the bar of a Court of Appeals, for suspension or disbarment of any member of the bar of a Court of Appeals, and for the disciplinary power of a Court of Appeals over any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with the Federal Rules of Appellate Procedure or any rules of the court. Tenth Circuit Rule 46.2 provides for admission to the Tenth Circuit bar and Rule 46.6 provides for discipline of counsel or parties.

Addendum III of the Rules of the United States Court of Appeals for the Tenth Circuit is entitled “Plan for Attorney Disciplinary Enforcement” (Plan”). Section 2 of this Plan defines the grounds for attorney discipline: (a) conviction in another court of a serious crime, (b) disbarment or suspension or reprimand by another court, or the resignation from the bar of another court while an investigation into allegations of misconduct is pending, (c) any act or omission which violates federal laws or federal statutes or Federal Rules of Appellate Procedure, the rules of the court, orders or other instructions of the court, or the Code of Professional Responsibility adopted by the highest court of any state to which the attorney is admitted to practice.

The Tenth Circuit Rules provide for disciplinary sanctions consisting of (a) disbarment, (b) suspension from practice before the court for a definite or indefinite period, (c) reprimand, (d) monetary sanction, (e) removal from the roster of attorneys eligible for appointment as court-appointed counsel, or (f) “any other sanction that the court may deem appropriate”. There are specific provisions relating to discipline imposed by another court, and monetary sanctions. Proceedings for the award of damages, costs and expenses or attorneys fees under 28 U.S.C. § 1923, Fed.R.App.P. 38 or 10th Cir. R. 46.5.1 are not covered by the Plan. Plan, Section 3.

A panel of the Tenth Circuit may impose any sanction other than suspension or disbarment in cases pending before it. The panel must notify the attorney of the alleged misconduct and afford the attorney an opportunity to be heard. Plan, Sections 4.1 and 4.2.

All disciplinary matters in which suspension or disbarment may be considered an appropriate sanction are referred to a disciplinary panel, or in the case of an uncontested matter, to the Chief Judge or her designee. The disciplinary panel consists of three active circuit judges who are randomly selected for the particular proceeding. Plan, Section 4.3.

The disciplinary panel may appoint counsel to investigate or to prosecute a disciplinary matter. Generally, this appointment is of the disciplinary agency of the highest court of the state in which the attorney maintains his or her principal office. Plan, Section 4.4. In Colorado, that is the Attorney Regulation Counsel. See Section 0.2:240.

The disciplinary panel may designate a special master for purposes of conducting an evidentiary hearing. The master establishes appropriate procedural and evidentiary rules and makes a report of findings. There are provisions for initiation of disciplinary proceedings, uncontested proceedings, contested proceedings and interim suspension, reinstatement and other procedural requirements. Plan, Section 4.5.

Addendum IV of the Tenth Circuit Rules sets forth rules of the Tenth Circuit Judicial Council governing complaints of judicial misconduct and disability within the Circuit.

0.2:280      Ethics Rules Applied in Federal Courts in Colorado

Federal District Court.

The Colorado Rules of Professional Conduct, as adopted by the Colorado Supreme Court, have been adopted by the United States District Court for the District of Colorado as its standards of professional responsibility. D.C. COLO LR 83.6.

That rule also creates a Disciplinary Panel having jurisdiction over all judicial proceedings involving disbarment, suspension, censure or other lawyer discipline; and a Committee on Conduct. It also defines the duties of the Committee on Conduct, regarding as processing of complaints against any member of the court’s bar, hearings thereon, and related matters.

Prior to the adoption of Local Rule 83.6, the Colorado Federal District Court noted that there was no statutory obligation upon the federal courts to apply rules of professional conduct as enacted by any state, or as adopted by the American Bar Association. Greenebaum - Mountain Mortgage Co. v. Pioneer National Title Insurance Co., 421 F.Supp. 1348, 1351 (D. Colo. 1976). However, the Court noted that the Colorado rules do set guidelines for the professional conduct of attorneys appearing before the federal bar, and that application of those rules was part of the court’s general supervisory authority to ensure fairness to all who bring their cases to the judiciary for resolution. “We shall apply the Code in that spirit of fairness.” Id.

Federal Court of Appeals.

The Tenth Circuit Plan For Attorney Discipline Enforcement, Section 2.3 prescribes as one of the grounds for discipline the violation of the Code of Professional Responsibility adopted by the highest court of any state to which the attorney is admitted to practice. Fed.R.App.P. 46(a) requires attorneys admitted to practice to execute an oath to conduct him/herself as an attorney “uprightly and according to law.”

0.3:300   Organization of This Library and the Model Rules

This Library follows the outline of the State Legal Ethics Project, which, in turn, relies heavily on the MR outline. However, the State Legal Ethics Project goes beyond the MR, to include other precepts and standards governing lawyer conduct generally.

0.4:400   Abbreviations, References and Terminology

The following abbreviations are used throughout the narrative:

The American Bar Association is referred to as “ABA”

The current Colorado Rules of Professional Conduct are referred to as the “Colorado Rules” or “Colo.RPC”

The official, adopted comments to the Colorado Rules are referred to as the “Colorado Comment” or “Comm.” and the comments of the committee that recommended adoption of the Colorado Rules are referred to as the “Committee Comment” or “Cmtee. Comm.”

The old Colorado Code of Professional Responsibility is referred to as the “Colorado Code” or “Colo. Code”

The ABA Model Rules of Professional Conduct are referred to as “MR.”

The ABA Model Code of Professional Responsibility is referred to as “ABA Code”

The Canons of the ABA Code are referred to as “ABA Code Canon” and the Canons of the Colorado Code are referred to as “Colorado Code Canon” or simply “Canon”

Disciplinary Rules under the ABA Code are referred to as “ABA DR” and Disciplinary Rules under the Colorado Code are referred to as “Colorado DR” or simply “DR”

Ethical Considerations under the ABA Code are referred to as “ABA Code EC” and Ethical Considerations under the Colorado Code are referred to as “Colorado Code EC” or simply “EC”

The Colorado Bar Association is referred to as “CBA.” CBA Ethics Committee opinions are referred to as “CBA Ethics Opinion” and are cited as “CBA Formal Op.” or “CBA Informal Op.”

Abstracts of CBA Ethics Committee responses to private letter inquiries are referred to as “CBA Abstracts”

Colorado Jury Instructions – Civil are cited as “CJI-Civ.3d.”

Colorado Revised Statutes are referred to as “CRS.”

Colorado Rules of Civil Procedure are referred to as “CRCP.”

0.4:410      "Belief" or "Believe"

The Colorado Rules define these terms identically to the Model Rules.

0.4:420      "Consults" or "Consultation"

The Colorado Rules define these terms identically to the Model Rules.

0.4:430      "Firm" or "Law Firm"

The Colorado Rules define these terms identically to the Model Rules.

0.4:440      "Fraud"

The Colorado Rules define these terms identically to the Model Rules.

0.4:450      "Knowingly," "Known," or "Knows"

The Colorado Rules define these terms identically to the Model Rules.

0.4:460      "Partner"

The Colorado Rules expand the definition of a partner to include a member of a limited liability partnership or a limited liability company, pursuant to CRCP 265, in addition to a member of a partnership and a shareholder in a law firm organized as a professional corporation.

0.4:470      "Reasonable" or "Reasonably"

The Colorado Rules define these terms identically to the Model Rules.

0.4:480      "Reasonable belief" or "Reasonably believes"

The Colorado Rules define these terms identically to the Model Rules.

0.4:490      "Substantial"

The Colorado Rules define this term identically to the Model Rules.

0.4:500   Additional Definitions in Colorado

The Colorado Rules do not include any additional definitions.