Colorado

Civil Procedure

Civil Procedure

Rule 251.8.5 – Suspension for Nonpayment of Child Support, or for Failure to Comply with Warrants Relating to Paternity or Child Support Proceedings

(a) Application. The provisions of this rule shall apply to an attorney licensed or admitted to practice law in Colorado who is in arrears in payment of child support or who is in arrears under a child support order as defined by section 26-13-123(a), C.R.S., or who fails to comply with a warrant relating to paternity or child support proceedings.

Proceedings commenced against an attorney under the provisions of this rule are not disciplinary proceedings. Suspension of an attorney’s license to practice law under the provisions of this rule is not a form of discipline, and shall not necessarily bar disciplinary action.

(b) Petition for Suspension.

(1) Upon receipt of reliable information that an attorney is in arrears in payment under a child support order, or has failed to comply with subpoenas or warrants relating to paternity or child support proceedings, regulation counsel may file a petition for suspension with the presiding disciplinary judge. The petition shall be supported by an affidavit setting forth sufficient facts to give rise to reasonable cause to believe that the attorney is in arrears on a child support order, or has failed to comply with a subpoena or a warrant relating to paternity or child support proceedings. A copy of the petition shall be served on the attorney pursuant to these rules.
(2) The presiding disciplinary judge shall order the issuance of an order to show cause directing the attorney to show cause why the attorney’s license to practice law should not be immediately suspended, which order shall be returnable within 28 days. After the issuance of an order to show cause, and after the period for response has passed without a response having been filed, or after consideration of any response and reply, the presiding disciplinary judge shall enter an order immediately suspending the attorney from the practice of law, unless within the 28-day period: the attorney has paid the past-due obligation, negotiated a payment plan approved by the court or the state child support enforcement agency or agency having jurisdiction over the child support order, requested a hearing before the presiding disciplinary judge, or complied with the warrant or subpoena.
(3) If a response to the order to show cause is timely filed and the attorney or the regulation counsel requests a hearing before the presiding disciplinary judge on the petition, the hearing shall be held within 14 days of the request, or as soon thereafter as is practicable. At the hearing, the burden is initially on the regulation counsel to prove the allegations in the petition by a preponderance of the evidence. If the presiding disciplinary judge has determined that the regulation counsel has proved the allegations in the petition by a preponderance of the evidence, he or she shall issue an order immediately suspending the attorney, unless the attorney proves by a preponderance of the evidence that:
(1) there is a mistake in the identity of the attorney;
(2) there is a bona fide disagreement currently before a court or an agency concerning the amount of the child support debt, arrearage balance, retroactive support due, or the amount of the past-due child support when combined with maintenance;
(3) all child support payments were made when due;
(4) the attorney has complied with the subpoena or warrant;
(5) the attorney was not served with the subpoena or warrant; or
(6) there was a technical defect with the subpoena or warrant. No evidence with respect to the appropriateness of the underlying child support order or ability of the attorney in arrears to comply with such order shall be received or considered by the presiding disciplinary judge. Upon conclusion of the hearing, the presiding disciplinary judge shall promptly prepare an opinion setting forth his or her findings of facts and decision.
(c) Appeal. For purposes of this rule, the decision of the presiding disciplinary judge shall be final, and an appeal may be commenced as set forth in C.R.C.P. 251.26.
(d) Reinstatement.

(1) If, after an attorney’s license has been suspended, the attorney has paid the past-due obligations, entered into a payment plan approved by the court or the agency having jurisdiction over the child support order, or complied with the warrant or subpoena, the attorney may seek reinstatement by filing a verified petition, with evidence of compliance, with the presiding disciplinary judge.
(2) Immediately upon receipt of a petition for reinstatement, the regulation counsel shall have 28 days or, upon a showing of good cause, such greater time as authorized by the presiding disciplinary judge within which to conduct any investigation deemed necessary. The attorney shall cooperate in any such investigation. At the end of the period of time allowed for the investigation, the regulation counsel shall file an answer. Based on the petition and answer, the presiding disciplinary judge may order reinstatement or hold a hearing to determine whether the attorney shall be reinstated. The attorney shall bear the burden of establishing the right to be reinstated by a preponderance of the evidence.
(3) If the petition for reinstatement is denied by the presiding disciplinary judge, the attorney may proceed pursuant to C.R.C.P. 251.26.

C.R.C.P. 251.8.5

Source: Entire rule added and adopted October 29, 1998, effective January 1, 1999; entire rule amended and effective February 17, 2000; b2, b3, and d2 amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1 b.

Prior the January 1, 1999, this rule was contained in paragraph (c) of Rule 251.8.

Annotation Law reviews. For article, “The Duty of Loyalty and Preparations to Compete”, see 34 Colo. Law. 67 (November 2005).