COLORADO SUPREME COURT’S MESSAGE TO LAWYERS ABOUT PRO BONO SERVICE
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The Court has released a letter to members of the Colorado Legal Community about pro bono service, including the 2022 pledge and the Succession to Service portal featuring volunteer opportunities. Please click here to read the Court’s important message about pro bono service.
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WHAT YOU NEED TO KNOW
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In this month’s What You Need to Know, we profile proposed rule amendments, current planning for a licensed legal paraprofessional program and a recent ethics opinion.
Proposed Changes to Colo. RPC 3.8(d) Regarding Prosecutors’ Duties
The Colorado Supreme Court is considering changes to Colorado Rule of Professional Conduct 3.8(d) concerning the special duties of prosecutors to disclose exculpatory evidence. A subcommittee of the Standing Committee on the Rules of Professional Conduct was formed to facilitate a constructive discussion between prosecutors and private and public criminal defense attorneys. The resulting proposal includes the following:
- Prosecutors would be required to timely disclose to the defense all information, regardless of admissibility, that the prosecutor knows or reasonably should know could negate the guilt of the accused, mitigate the offense, or affect a defendant’s critical decisions in the case. This information would include all unprivileged and unprotected mitigation information the prosecutor knows or reasonably should know could affect the sentence.
- An exception to this duty would exist when the prosecutor is relieved of this responsibility by statute, rule or protective order of the tribunal.
- A prosecutor would not be allowed to condition plea negotiations on postponing disclosure of information known to the prosecutor that negates the guilt of the accused.
- The prosecutor would be required to make diligent efforts to obtain information subject to this rule that the prosecutor knows or reasonably should know exists, including by making disclosure requests to agencies known to the prosecutor to be involved in the case, and alerting the defense to the information if the prosecution is unable to obtain it.
The proposal can be reviewed here. The deadline for comments, addressed to supremecourtrules@judicial.state.co.us, is: January 18, 2022 at 4 p.m. If submitting a public comment by email, the Clerk’s office requests that you attach your submission as a separate document to your email in Word or PDF format. Requests to speak at the public hearing also should be addressed to supremecourtrules@judicial.state.co.us, and the deadline for such requests is January 31, 2022 at 4 p.m. The public hearing is set for February 8, 2022 at 3:30 p.m.
Proposed Changes to Rule Regarding Admission of Foreign-Educated Applicants
The Colorado Supreme Court has proposed changes to C.R.C.P. 203.4 to offer options to foreign-educated attorneys who wish to take the bar exam in Colorado. Under the proposal, obtaining an L.L.M. could allow some of these attorneys to sit for the bar exam. The proposal can be found here. The deadline for comments, addressed to supremecourtrules@judicial.state.co.us, is: November 15, 2021 at 4 p.m. If submitting a public comment by email, the Clerk’s office requests that you attach your submission as a separate document to your email in Word or PDF format. Requests to speak at the public hearing also should be addressed to supremecourtrules@judicial.state.co.us, and the deadline for such requests is November 17, 2021 at 4 p.m. The public hearing is set for December 7, 2021 at 3:30 p.m.
Update on Effort to Develop a Licensed Legal Paraprofessional Program
Volunteer judges, attorneys, paralegals, family court facilitators, and other court staff have been busy developing an implementation plan to license legal paraprofessionals for certain types of domestic relations matters, pursuant to an order by the Colorado Supreme Court. The plan will address education and qualifications, licensure requirements, ethics rules, procedural rules, training and systems requirements.
This project is described on a new webpage, which links to the Supreme Court’s authorization orders as well as the preliminary report sent to the Court from the Advisory Committee.
The project anticipates that licensing legal paraprofessionals for non-complex, lower-asset domestic relations cases may make legal services more widely available to the many litigants who otherwise would appear in family court without a lawyer. Specifically, the preliminary report – which formed the basis of the Court’s order to develop a follow-up implementation plan – provides that licensed legal paraprofessionals would be allowed to undertake certain matters where net marital assets are below a threshold amount, such as $200,000. The report provides that licensed legal paraprofessionals would be allowed to accompany their clients to court, and would be allowed to answer factual questions of the court but could not orally advocate for them. There would be a licensure exam and an ethics exam specific to this new group of licensed professionals.
The Colorado Supreme Court would need to approve a more detailed implementation plan and draft rules. The Advisory Committee anticipates that the Court will provide a public comment period and public hearing.
Please refer to the project webpage and report for more information. Questions can be directed to paraprofessionals@csc.state.co.us.
ABA Formal Ethics Opinion 500
In October, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 500 Language Access in the Client-Lawyer Relationship. The Opinion discusses a lawyer’s ethical obligations when communication with a client is impeded because the lawyer and client do not share a common language or due to a client’s non-cognitive physical condition, such as hearing, speech, or vision disability. The Opinion explains that to comply with the lawyer’s duties of communication and competence, the lawyer “may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged.” The Opinion also explains that to establish a reasonably effective mode of communication, “the lawyer must evaluate whether engagement of an interpreter, translator, and/or the use of other assistive or language-translation technologies is needed to satisfy the lawyer’s professional responsibilities.” The Opinion discusses considerations for assessing the qualifications of an interpreter or translator, and also the lawyer’s duty of supervision. The Opinion also discusses the importance of understanding social and cultural differences and how those differences may impact the lawyer-client relationship. The Opinion concludes with guidance for navigating these differences. ABA Formal Opinion 500.
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COLORADO SUPREME COURT TASK FORCE ON LAWYER WELL-BEING
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OARC’s Professional Development Counsel Jonathan White profiles the work of the Colorado Task Force on Lawyer Well-Being, including the Task Force’s recent report.
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COLORADO LAWYER SELF-ASSESSMENT
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The Colorado Lawyer Self-Assessment is a great way to assess your practice and earn three ethics and three general CLE credits. To learn more about the assessment and recent updates to it, click here. |
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PLAN FOR SUCCESS: STRATEGIES FOR ENJOYING THE HOLIDAY SEASON
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REMINDERS & UPCOMING CLEs
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Attorney Registration
Our office is preparing to send out annual registration statements. The online registration system will be available at coloradosupremecourt.com starting on December 1, 2021. Postcard reminders will be mailed the last week of November.
Important CLE compliance reminder
All active Colorado attorneys under age 72 must earn 45 credits, including 7 professional responsibility (also known as ethics) credits, every three years by the end of the third year. That means roughly one-third of active Colorado attorneys have a compliance deadline coming up in less than two months -- by December 31, 2021. That is quickly approaching! Be sure to check here to confirm you have met or are on your way to meeting this requirement. Programs that already have been accredited can be found here. As noted above, OARC also offers a free on-line self-assessment that qualifies for CLE credit, which can be accessed here.
NOVEMBER
Nov. 16 The Ethics Revue: Starring the Law Club, Clocktower Cabaret, Denver (Jessica Yates)
Nov. 17 The Solo Lawyer’s Guide to Communication, Reasonable Fees, and Diligence, LawBank (Michele Melnick)
Nov. 17 New Rules and Guidance Regarding Fees and Fee Agreements, Adams/Broomfield Bar Association (Justin P. Moore)
Nov. 19 Succession Planning: Five Easy Steps and One Hard One, Ethics 7.0, CBA-CLE (Jonathan White, with Erika Holmes and Gerald Pratt)
Nov. 19 Ethical Foundations of a Fee Agreement, Ethics 7.0, CBA-CLE (April McMurrey)
Nov. 19 OARC: Tips for Avoiding (and Addressing) Complaints, Ethics 7.0, CBA-CLE (Jane Cox)
DECEMBER
Dec. 1 Late application filing deadline for February 2022 bar exam
Dec. 3 Keeping Up with Ethical Obligations in a Changing World, Weld County Bar Association (Jane Cox)
Dec. 8 Working with Attorneys, New Judge Orientation, Ralph Carr Building (Jessica Yates)
Dec. 13 Practicing with Professionalism, CBA-CLE webinar
Dec. 31 The deadline for completing CLEs for attorneys with a compliance period ending on December 31, 2021. CLE credits completed by December 31, 2021 can be entered into the online system until January 31, 2022.
JANUARY
Jan. 10 Practicing with Professionalism, CBA-CLE webinar
Jan. 12. Lozada Panel Discussion, American Immigration Lawyers Association (E. James Wilder)
Jan. 12 Legal Entrepreneurs for Justice 2022 Boot Camp: Trust Accounts (Justin P. Moore)
Jan. 31 This is the last day to report CLE credits without penalty for the three-year compliance period ending December 31, 2021.
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