Supreme Court Adopts New Admissions Rules

By JIM COYLE

Summer 2014

The Colorado Supreme Court has adopted a new set of Rules Governing Admission to the Practice of Law, numbered C.R.C.P. 202-212. These new rules will replace C.R.C.P. 201.1 – 14, 220 – 223, and 226.5. The new set of rules are a comprehensive revision of Chapter 18 of the Colorado Rules of Civil Procedure, and provide:

·        An updated, user-friendly format that includes all rules governing admission in one location;

·        Expanded Supreme Court Advisory Committee jurisdiction to include oversight of the admissions process;

·        Increased Advisory Committee membership to include the Chairs of the Law Committee and Character and Fitness Committee;

·        Admissions staff functions incorporated into the Office of Attorney Regulation Counsel;

·        Updated application and character and fitness procedures, and clear standards in such procedures;

·        The use of the office of the Presiding Disciplinary Judge in the hearing process for admissions cases, and updated procedures for admissions hearings and Supreme Court review; and

·        Procedures for full Colorado licensure as well as limited admissions and other authorizations to practice law.

Full Colorado Licensure

New Rule 203 addresses applications for full licensure. The rule concerning admission by Colorado bar examination has not changed much, but moves the deadline date for bar exam applications up to the first day of November preceding the February bar exam and to the first day of April preceding the July bar exam. In addition, this rule still requires all Colorado bar examination applicants to successfully pass the multistate professional responsibility examination (MPRE) and the course on professionalism.

New Rule 203.3 updates the procedure for admission on motion based upon the Uniform Bar Examination (UBE) score transfer rule. Essentially, an applicant who has taken the UBE in a jurisdiction other than Colorado, who earns a UBE score that is passing in Colorado, and meets all other application requirements including those involving character and fitness, can be admitted to practice law in Colorado based upon the portable UBE score that remains valid for at least three years.

In addition, a qualified out-of-state attorney who is licensed in a jurisdiction that recognizes reciprocal admission, may apply for admission on motion if that attorney has been primarily engaged in the active practice of law in one or more other jurisdictions in the United States for three of the five years immediately preceding the date upon which the application was filed, and meets all other requirements under such rule, including those involving character and fitness.

Certifications to Practice Law

Rule 204 addresses provisional licenses or certifications to practice law. These certifications include:

·        Rule 204.1 (single-client counsel certification). This rule is based in substantial part on previous Rule 222 and gives lawyers who are licensed and in good standing in other jurisdictions the ability to practice law on behalf of a single client as if fully licensed in Colorado. The rule is designed to accommodate in-house counsel who work for national organizations and wish to relocate to Colorado, although this rule is not limited to in-house counsel, as the ABA Model Rule is.

·        Rule 204.2 (foreign legal consultant certification). This rule is based on the ABA Model Rule for the licensing and practice of foreign legal consultants. This rule provides that an applicant who is, and for at least the past five years has been, a member in good standing of a recognized legal profession in a foreign country, may practice as a foreign legal consultant in Colorado. Foreign legal consultants may maintain an office in Colorado or may work for an organization other than a law firm. The rule contains comprehensive disclosure requirements by both the applicant and the organization. And, foreign legal consultants are limited in their ability to practice law in Colorado: They may render legal services in Colorado only with regard to matters authorized by the law of the foreign jurisdiction in which the foreign legal consultant is admitted to practice. This requirement allows foreign legal consultants to practice essentially as they would if they were practicing in their “home” jurisdiction, but generally does not allow them to advise on Colorado or U.S. law. It also avoids thorny questions of whether foreign legal consultants may advise on international law, as the answers depend on what is authorized by the foreign legal consultant’s home jurisdiction.

·        Rule 204.3 (judge advocate certification). This rule expands on current Rule 201.3(3) by providing clear guidelines on how to apply for certification and clearer requirements regarding who is eligible to apply for judge advocate certification. Most importantly, the rule allows certified judge advocates to practice as if licensed in Colorado. Judge advocates will no longer be limited to acting in the scope of their official duties.

·        Rule 204.4 (military spouse certification). This rule allows a simplified process for certification of spouses of members of the U.S. Uniformed Services. The rule grants certified military spouses all the rights and privileges of Colorado attorneys upon a demonstration of permanent presence in Colorado as a spouse or legally recognized domestic partner of a member of the U.S. Uniformed Services, but provides for automatic termination of certification upon the happening of certain events, for example, the service member is no longer a member of the U.S. Uniformed Services or the military spouse is no longer a spouse of the service member.

·        Rule 204.5 (law professor certification). This rule is based upon previous Rule 201.3(4). Like the military spouse rule, this rule expands on current Rule 201.3(4) to better define who is eligible for certification and what an applicant must do to be certified. While the current rule is limited to a full-time (tenured or tenured-track) teacher at Colorado law school, the new rule language applies, for example, to legal writing instructors, who may not be tenured or tenured-track but who are equally qualified to practice law in Colorado. Certified law professors are entitled to the rights and privileges of licensed Colorado lawyers. But as in other rules, certification terminates automatically upon the happening of certain events, such as failure to maintain status as a law professor.

·        Rule 204.6 (pro bono counsel certification). This rule is based upon previous Rule 223 but clarifies who is eligible for pro bono counsel certification. Like the current rule, Rule 204.6 applies to licensed, inactive Colorado attorneys and to attorneys not admitted in Colorado but who are licensed in another U.S. jurisdiction. For attorneys not admitted in Colorado, Rule 204.6 requires that they be domiciled in Colorado. The rule provides that pro bono counsel may provide pro bono legal services under the auspices of an entity described in C.R.C.P. 260.8(2), in accordance with Colo. RPC 6.1.

Other Authorizations to Practice Law

New Rule 205 collects all other authorizations to practice law in one rule location. These other authorizations include temporary practice by out-of-state attorneys, temporary practice by foreign attorneys, pro hac vice authority before state courts and state agencies for out-of-state and foreign attorneys, practice pending admission, and law student practice.

·        Rule 205.1 (temporary practice by out-of-state attorney). This rule is based upon previous Rule 220. The rule is edited for clarity and consistency with other rules, and permits limited practice by out-of-state attorneys. These out-of-state attorneys may not appear before state courts or agencies unless they comply with applicable pro hac vice rules, and can no longer practice if such attorneys become domiciled or have an office in Colorado.

·        Rule 205.2 (temporary practice by foreign attorney). This rule is based upon ABA Model Rule 5.5 but restructured to be consistent with Rule 205.1 (temporary practice by out-of-state attorney). This rule allows a foreign attorney to provide legal services in Colorado in limited circumstances, for example, when the foreign attorney associates with a Colorado attorney or where the legal services are governed primarily by international law or the law of a non-U.S. jurisdiction. The rule makes clear that a foreign attorney who wishes to provide legal services as a foreign legal consultant must comply with the requirements of Rule 204.2. The rule also makes clear that a temporary foreign practice attorney may not appear before a court or agency until such foreign practice attorney complies with pro hac vice requirements contained in Rule 205.5.

·        Rule 205.3 (pro hac vice authority before the state courts – out-of-state attorney). This rule is based upon C.R.C.P. 221 and the ABA Model Rule on pro hac vice admission. The rule maintains the substance of C.R.C.P. 221 but is edited for style and consistency with the other rules. The rule states what is required of an attorney applying for pro hac vice admission, as well as what is required of the associated Colorado attorney. The rule makes clear that the trial court before which pro hac vice admission is sought retains full discretion whether to admit the attorney.

·        Rule 205.4 (pro hac vice authority before state agencies – out-of state attorney). This rule is identical to C.R.C.P. 221.1 with the exception of new references to Rules 205.1 and 205.3.

·        Rule 205.5 (pro hac vice authority – foreign attorney). This rule is based upon the ABA Model Rule on foreign attorney pro hac vice admission and is structured like Rule 205.3. Foreign attorney applicants are required to provide detailed information to the trial court, for example, “any special experience, expertise, or other factor deemed to make it particularly desirable that the applicant be permitted to represent the client(s) the applicant proposes to represent. . . .” Like Rule 205.3, the rule makes clear that the trial court has the ultimate discretion whether to admit an applicant pro hac vice.

·        Rule 205.6 (practice pending admission). This rule is based upon the ABA Model Rule on practice pending admission. The rule allows a lawyer who is licensed in another jurisdiction and who has been actively practicing law for three of the past five years to provide legal services in Colorado for up to one year, pending admission to the Colorado bar. The rule differs from the ABA Model Rule by requiring that the applicant must first have submitted a complete application for admission by qualified out-of-state attorney, on motion based upon UBE score transfer, or by examination. The applicant must reasonably expect to fulfill all of the requirements of admission and must associate with and be supervised by a licensed Colorado attorney. The rule allows foreign legal consultants who are licensed or certified in another jurisdiction, but not yet in Colorado, to practice in Colorado. The rule also makes clear that attorneys authorized under this rule may not appear before state courts or agencies unless admitted pro hac vice.

·        Rule 205.7 (law student practice). This rule is based upon C.R.C.P. 226.5 and C.R.S. §§ 12-5-116. These provisions of the C.R.S. are appropriately incorporated here with the other admissions rules as a function of the Supreme Court’s rule making authority. The language of the statutes is essentially preserved as written by the legislature, with the exception of changes adopted by the Court in June 2011. The only edits are to numbering and style, to ensure consistency with other rules in this section. The term “legal aid dispensaries” has been changed to “legal aid clinics” to better reflect what these clinics are called in practice. In the past, the statutes have functioned well and have served to provide legal services to populations who might not otherwise receive them.

The subcommittee that worked on these new rules includes attorneys Alec Rothrock, Dan Vigil, Rich Nielson, Brian Zall, Christine Markman, Dick Reeve, Todd Wells, Ginette Chapman, Matt Samuelson, Alan Obye, and Jim Coyle. In addition, extern Erika Holmes also participated in work on behalf of the subcommittee. Judge Dan Taubman of the Colorado Court of Appeals; Connie Talmage, Executive Director of the Colorado Lawyers Committee; and Colorado attorney Peter Schwartz also assisted in the drafting of Rule 204.6 (pro bono counsel certification). Thanks also to staff members Jesse Nava and Cheryl Lilburn for their assistance in keeping eighteen months of draft rules typed and organized.

A full copy of Rule Change 2014(09) Chapter 18, Rules Governing Admission to the Practice of Law in Colorado, can be found at: http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/2014/2014(09)%20clean.PDF.

For fees associated with such licensing, go to: http://www.coloradosupremecourt.us/BLE/ble_home.htm.

James C. Coyle is Attorney Regulation Counsel for the Office of Attorney Regulation Counsel, and was chair of the subcommittee that considered revisions to the admissions rules.