Proposed Amendments to C.r.c.p. 228 and the Cross-border Practice of Law

• Publication year: 2002
• Pages: 21

31 Colo.Law. 21 Colorado Lawyer 2002.

2002, January, Pg. 21. Proposed Amendments to C.R.C.P. 228 And the Cross-Border Practice of Law

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Vol. 31, No. 1, Pg. 21

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 21]

Features

Proposed Amendments to C.R.C.P. 228 And the Cross-Border Practice of Law
by Cynthia Covell, Douglas Foote, Robert R. Keatinge

The Colorado Supreme Court is considering proposed revisions to C.R.C.P. 228 ("Proposal" or "Rule 228")1 that would exclude from the definition of the unauthorized practice of law the temporary practice of law in Colorado by a lawyer licensed in another state and a member of the bar and in good standing in all jurisdictions in which the lawyer is admitted. The Proposal would not regard as "temporary" the practice of a lawyer who has established domicile in Colorado (without being admitted to the bar within a reasonable time thereafter) or who has established a place for the regular practice of law in Colorado from which such lawyer holds himself or herself out to the public as practicing Colorado law or solicits or accepts Colorado clients. The rules requiring pro hac vice admission before courts of record and administrative hearing officers would remain in place

Under the Proposal, every lawyer who practices law in Colorado would be subject to the Colorado Rules of Professional Conduct ("Colorado Rules" or "Colo.RPC") and to the Colorado attorney discipline rules, proceedings, and remedies, regardless of whether that lawyer's practice constitutes the unauthorized practice of law under revised Rule 228

The proposed revisions have been considered and recommended by the joint Multidisciplinary Practice Task Force of the Colorado and Denver Bar Associations ("MDP Task Force"), the Ad Hoc Committee on the Unauthorized Practice of Law of the Colorado Attorney Regulation Counsel ("Ad Hoc Committee"), and the Supreme Court Committee on the Unauthorized Practice of Law ("UPL Committee"), although both the MDP Task Force and the Ad Hoc Committee also would include an exception for in-house counsel domiciled or regularly practicing in Colorado

This article describes the background of the Proposal; the reasons why the authors believe the Proposal should be adopted; an addition to the Proposal, subsection (c); and the viewpoints of other jurisdictions and bars.

Background

The Proposal began as a recommendation of the Ad Hoc Committee, which had been studying the issue of interstate practice by attorneys licensed outside the state of Colorado. As initially proposed by the Ad Hoc Committee, the revisions to Rule 228 defined the unauthorized practice of law to exclude practice by lawyers licensed in other states who (1) established neither a domicile in Colorado nor an office from which they held themselves out as practicing law and (2) lawyers who performed all services for a single client (in-house counsel). The MDP Task Force supported the initial proposal. However, the UPL Committee was concerned with the in-house counsel portion of the Rule. After discussion among the three groups, all three agreed to support a rule providing an exception for temporary practice and agreed to disagree on the question of in-house counsel. The initial Ad Hoc Committee proposal formed the basis for a proposal that has been submitted to the American Bar Association Commission on Multijurisdictional Practice ("ABA Commission") on behalf of a coalition ("Coalition") of groups comprising the National Organization of Bar Counsel, Association of Professional Responsibility Lawyers, and American Corporate Counsel Association.2

Under the Proposal, single-client lawyers (for example, in-house counsel) who become domiciled in Colorado continue to be required to be admitted to the Colorado bar within a reasonable period of time after establishing a Colorado domicile or, in most cases, they would be guilty of the unauthorized practice of law.

Comments with respect to the Proposal are due to the Supreme Court by January 22, 2002, and the court will conduct a hearing on the Proposal on January 31, 2002, at 3:00 p.m.3

The Ad Hoc Committee and MDP Task Force requested that the Colorado Bar Association ("CBA") Board of Governors approve the Proposal, with the addition of a new subsection (c) (and appropriate renumbering), as follows:

(c) The unauthorized practice of law shall not include the practice of law by an attorney who is not licensed in Colorado, but who practices law in Colorado and who is licensed to practice law in any other jurisdiction of the United States, and who is a member of the bar and in good standing in all such courts and jurisdictions where he or she is licensed, if such attorney's practice of law is limited to acting as counsel for a single client, and the attorney has advised such person or entity of the status of his or her license, and the attorney has obtained the informed consent of such client (which consent may be given retroactively).

On November 7, 2001, the Board of Trustees of the Denver Bar Association voted to support both the Proposal and the new subsection (c) (known as the "In-House Modification"). On December 8, 2001, the CBA Board of Governors voted to support the Proposal with the In-House Modifcation and instructed the CBA's delegates to the American Bar Association House of Delegates to urge the ABA to encourage other states to adopt a rule similar to the Proposal with the In-House Modification. A summary of the Board of Governors action may be seen on the CBA home page at www.cobar.org/bog.htm.

Reasons for the Proposal

As noted above, the Ad Hoc Committee, MDP Task Force, and UPL Committee support the Proposal, and the Ad Hoc Committee and MDP Task Force support the In-House Modification. For the reasons below, the authors recommend that both the Proposal and In-House Modification be adopted. This article has not been approved by any of...