Colorado

Civil Procedure

Rule 251.27 – Proceedings Before the Supreme Court

(a) Appellate Jurisdiction. Appellate review by the Supreme Court of every final decision of the Hearing Board in which public censure, a period of suspension, disbarment, or transfer to disability inactive status is ordered or in which reinstatement or readmission is denied shall be allowed as provided by these rules.
(b) Standard of Review. All disciplinary and disability proceedings filed in the Supreme Court as herein provided shall be conducted in the name of the People of the State of Colorado titled “IN THE MATTER OF [the name of the ATTORNEY-RESPONDENT]” and shall be prosecuted by the Regulation Counsel.

When proceedings are conducted before the Supreme Court as herein provided, the Supreme Court shall affirm the decision of the Hearing Board unless it determines that, based on the record, the findings of fact of the Hearing Board are clearly erroneous or 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. The Supreme Court may conduct a de novo review of the conclusions of law.

The matter shall be docketed by the clerk of the Supreme Court as:
SUPREME COURT, STATE OF COLORADO
Case No.
ORIGINAL PROCEEDING IN DISCIPLINE OR DISABILITY

IN THE MATTER OF the name of the ATTORNEY-RESPONDENT

(c) Appeal-How Taken. An appeal from a Hearing Board to the Supreme Court shall be taken by filing a notice of appeal with the Supreme Court within the time set forth in this Rule. Upon the filing of the notice of appeal, the Supreme Court shall have the exclusive jurisdiction over the appeal and procedures concerning the appeal unless otherwise specified by these Rules. An advisory copy of the notice of appeal shall be served on the Presiding Disciplinary Judge within the time for its filing in the Supreme Court. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is a ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. Content of the notice of appeal shall not be deemed jurisdictional.
(d) Contents of Notice of Appeal. Except as otherwise provided by these rules, and to the extent practicable, the notice of appeal shall conform to the requirements set forth in C.A.R. 3(e).
(e) Contents of Any Notice of Cross-Appeal. A notice of cross-appeal shall set forth the same information required for a notice of appeal and shall set forth the party initiating the cross-appeal and designate all cross-appellees.
(f) Number of Copies to be Filed. Five copies of the notice of appeal or cross-appeal shall be filed with the original.
(g) Appeal-When Taken. The notice of appeal required by this rule shall be filed with the Supreme Court with an advisory copy served on the Presiding Disciplinary Judge within 21 days of the date of mailing the decision from which the party appeals. If a timely notice of appeal is filed by a party, the other party may file a notice of appeal within 14 days of the date on which the first notice of appeal is filed, or within the time otherwise prescribed by this section (g), whichever period last expires.

The running of the time for filing a notice of appeal is terminated as to both parties by a timely motion filed with the Presiding Disciplinary Judge by either party pursuant to the Colorado Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this section (g) commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules:

(1) granting or denying a motion under C.R.C.P. 52 or 59, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted;
(2) granting or denying a motion under C.R.C.P. 59, to alter or amend the judgment;
(3) denying a motion for a new hearing under C.R.C.P. 59;
(4) expiration of an extension of time granted by the Presiding Disciplinary Judge to file motion(s) for post-hearing relief under C.R.C.P. 59, where no motion is filed. The Hearing Board shall continue to have jurisdiction to hear and decide a motion under C.R.C.P. 59 regardless of the filing of a notice of appeal, provided the C.R.C.P. 59 motion is timely filed under C.R.C.P. 59(a) and determined within the time specified in C.R.C.P. 59(j). During such time, all proceedings in the Supreme Court shall be stayed. If the decision is transmitted to the parties by mail, the time for the filing of the notice of appeal shall commence from the date of the mailing of the decision.

Upon a showing of excusable neglect, the Supreme Court may extend the time for filing the notice of appeal by a party for a period not to exceed 28 days from the expiration of the time otherwise prescribed by this section (g). Such an extension may be granted before or after the time otherwise prescribed by this section (g) has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the Supreme Court shall deem appropriate.

(h) Stay Pending Appeal. Application for a stay of the decision of a Hearing Board pending appeal must ordinarily be made in the first instance to the Hearing Board. The application for stay pending appeal should be granted except when an immediate suspension has been ordered, or when no conditions of probation and supervision while the appeal is pending will protect the public. A motion for such relief may be made to the Supreme Court, but the motion shall show that application to the Hearing Board for the relief sought is not practicable, or that the Hearing Board has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the Hearing Board for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties.
(i) Record on Appeal-Composition.

(1) The final pleadings which frame the issues before the Hearing Board; the findings of fact, conclusions of law and decision; motions for new trial and other post-trial motions, if any, and the Hearing Board’s ruling; together with any other documents which by designation of either party or by stipulation are directed to be included shall constitute the record on appeal in all cases.
(2) The reporter’s transcript, or such parts thereof as provided under section (j) of this rule, relevant depositions and exhibits may be made a part of the record.
(3) The records and files of the Hearing Board shall be certified by the clerk of the Presiding Disciplinary Judge.
(4) The original papers in all instances shall be in the record submitted. Except on written request by a party, the Presiding Disciplinary Judge need not duplicate or retain a copy of the papers or exhibits included in the record. The party requesting that a duplicate be retained shall advance the cost of preparing the copies.
(5) The record shall be properly paginated and fully indexed and shall be prepared and bound under the direction of the Presiding Disciplinary Judge.
(j) Record of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Record is Ordered; Costs. Within 14 days after filing the notice of appeal, the appellant shall file with the Presiding Disciplinary Judge and with the clerk of the Supreme Court either:

(1) a statement that no portions of the record other than those numerated in section (i) are desiredor
(2) a detailed designation of record, setting forth specifically those portions of the record to be included and all dates of proceedings for which transcripts are requested and the name(s) of the court reporter(s) who reported the proceedings that the appellant directs to be included in the record. The appellant shall serve a copy of the designation of record on each court reporter listed therein. If the appellant contends that a finding or conclusion is not supported by the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant shall include in the designation of record a description of the part of the transcript that the appellant intends to include in the record and a statement of the issues to be presented on appeal. If the appellee deems it necessary to include a transcript of other proceedings or other parts of the record, the appellee shall, within 14 days after the service of the statement or the appellant’s designation of the record, file with the Presiding Disciplinary Judge and the Supreme Court, and serve on the appellant and on any court reporter who reported proceedings of which the appellee desires an additional transcript, a designation of the additional items to be included. Service on any court reporter of the appellant’s designation of record or the appellee’s additional designation of record shall constitute a request for transcription of the specified proceedings. Within 14 days after service of any such designation of record, each such court reporter shall provide in writing to all counsel in the appeal:
(1) the estimated number of pages to be transcribed;
(2) the estimated completion date; and
(3) the estimated cost of transcription. Within 21 days after receiving the reporter’s estimate, the designating party shall deposit the full amount of such estimate with the court reporter. For good cause shown, within said 21 days and upon the agreement of the court reporter, the Presiding Disciplinary Judge may order a payment schedule extending the time for payment. When the cost of the transcription will be paid by public funds, the public entity shall make arrangements with the court reporter for payment of the transcription costs. Within 28 days of the transmittal of the court reporter’s cost estimate to the pro se party or counsel, the court reporter shall file with the Presiding Disciplinary Judge and Supreme Court a statement of:
(1) the date the court reporter’s estimate was provided and the date on which the reporter received full payment of the estimate; or
(2) the schedule of payments approved by the Presiding Disciplinary Judge under a good cause extension; or
(3) that the cost of the transcript will be paid from public funds. Each party shall advance the cost of preparing that part of the record designated by such party except as otherwise ordered by the Presiding Disciplinary Judge for good cause shown.
(k) Transmission of the Record.

(1) Time. The record on appeal, including the transcript and exhibits necessary for the determination of the appeal, shall be transmitted to the Supreme Court within 56 days (8 weeks) after the filing of the notice of appeal unless the time is shortened or extended by an order entered as provided in this rule. After filing the notice of appeal the appellant shall comply with the provisions of this rule and shall take any other action necessary to enable the Presiding Disciplinary Judge to assemble and transmit the record.
(2) Duty Of Presiding Disciplinary Judge To Transmit The Record. When the record, including any designated transcript, is complete for purposes of the appeal, the clerk of the Presiding Disciplinary Judge shall transmit it to the clerk of the Supreme Court. The clerk of the Presiding Disciplinary Judge shall number the documents comprising the entire designated record and shall transmit with the record a list of the documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted unless a party or the Supreme Court directs the Presiding Disciplinary Judge to do so. A party must make advance arrangements for the transportation and receipt of exhibits of unusual bulk or weight.

Transmission of the record is effected when the clerk of the Presiding Disciplinary Judge mails or otherwise forwards the record to the clerk of the Supreme Court. The clerk of the Presiding Disciplinary Judge shall indicate, by endorsement on the face of the record or otherwise, the date upon which it is transmitted to the Supreme Court.

(3) Temporary Retention of Record by the Presiding Disciplinary Judge For Use In Preparing Appellate Papers. Notwithstanding the provisions of this rule, the parties may stipulate, or the Presiding Disciplinary Judge on motion of any party may order, that the record shall temporarily be retained by the Presiding Disciplinary Judge for use by the parties in preparing appellate papers. In that event, the appellant shall nevertheless cause the appeal to be docketed and the record to be filed within the time fixed or allowed for transmission of the record by complying with the provisions of this Rule and by presenting to the Supreme Court a partial record in the form of a copy of the docket entries, accompanied by a certificate of counsel for the appellant, or of the appellant if the appellant is without counsel, reciting that the record, including the transcript or parts thereof designated for inclusion and all necessary exhibits, is complete for purposes of the appeal. Upon receipt of the brief of the appellee, or at such earlier time as the parties may agree or the Supreme Court may order, the appellant shall request the Presiding Disciplinary Judge to transmit the record.
(4) Extension Of Time For Transmission Of The Record; Reduction Of Time. The Supreme Court for good cause shown may extend the time for transmitting the record. A request for extension must be made within the time originally prescribed or within an extension previously granted. Any request for extension of the period of time based upon the reporter’s inability to complete the transcript shall be supported by an affidavit of the reporter specifying why the transcript has not yet been prepared, and the date by which the transcript can be completed and a statement by the court reporter that all payments due have been made. Failure to pay for the transcript in accordance with C.R.C.P. 251.27(j) is grounds for denial of a motion for extension. The Supreme Court may direct the Presiding Disciplinary Judge to expedite the preparation and transmittal of the record on appeal and, upon motion or sua sponte, take other appropriate action regarding preparation and completion of the record.
(5) Stipulation Of Parties That Parts of the Record Be Retained By the Presiding Disciplinary Judge. The parties may agree by written stipulation filed with the Presiding Disciplinary Judge that designated parts of the record shall be retained by the Presiding Disciplinary Judge unless thereafter the Supreme Court shall order or any party shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes.
(6) Preliminary Record Transmitted to the Supreme Court. If prior to the time the record is transmitted, a party desires to make to the Supreme Court a motion for dismissal, for a stay pending appeal, or for any intermediate order, the Presiding Disciplinary Judge at the request of any party shall transmit to the Supreme Court such parts of the original record as any party shall designate.
(l) Docketing the Appeal.

(1) Filing. At the time of the filing of the notice of appeal or the time of filing any documents with the Supreme Court before the filing of the notice of appeal, the Appellant shall pay to the clerk of the Supreme Court a docket fee of $150 and the clerk shall enter the appeal upon the docket. The party appealing shall docket the case as provided in section (b) of this Rule.
(2) Leave to Proceed On Appeal In Forma Pauperis From Hearing Board to Supreme Court. A party to an action before a Hearing Board who desires to proceed on appeal in forma pauperis shall file with the Presiding Disciplinary Judge a motion for leave so to proceed, together with an affidavit showing an inability to pay costs, a belief that the party is entitled to redress, and a statement of the issues which the party intends to present on appeal. If the motion is granted, the party may proceed without further application to the Supreme Court and without prepayment of costs. If the motion is denied, the Presiding Disciplinary Judge shall state in writing the reasons for the denial.

Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action before the Presiding Disciplinary Judge in forma pauperis may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the Presiding Disciplinary Judge shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the Presiding Disciplinary Judge shall state in writing the reasons for such certification or finding. A party proceeding under this subsection shall attach a copy of the Presiding Disciplinary Judge’s order granting or denying leave to proceed in forma pauperis before the Hearing Board with the appendix to the notice of appeal.

(3) Filing Of The Record. Upon receipt of the record or papers authorized to be filed in lieu of the record under the provisions of subsections (k)(3) and (k)(6) of this rule following timely transmittal, the clerk of the Supreme Court shall file the record. The clerk shall immediately give notice to all parties of the date on which the record was filed.
(4) The appellant shall have 28 days after the filing with the clerk of the Supreme Court of the record on appeal within which to file an opening brief. The appellee shall have 28 days after the filing of the appellant’s opening brief within which to file an answer brief. The appellant shall have 14 days after the filing of the answer brief within which to file a reply brief.
(m) General Provisions. Except as otherwise provided in these Rules, and to the extent practicable, appeals shall be conducted in conformity with the general provisions found in C.A.R. 25, 26, 27, 28, 29, 31, 32, 34, 36, 38, 39, 42, and 45.
(n) Oral Argument. Oral argument may be allowed at the discretion of the court in accordance with C.A.R. 34.
(o) Disposition. When proceedings are conducted before the Supreme Court as herein provided, the Supreme Court may resolve the matter by opinion or by order without opinion, as the court shall determine in its discretion.

C.R.C.P. 251.27

Source: Amended and adopted June 25, 1998, effective January 1, 1999; b amended and adopted October 29, 1998, effective January 1, 1999; entire rule amended and effective September 1, 2000; g 1supst/sup and last paragraphs, j, k1, and l4 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.

This rule was previously numbered as 241.20.

Annotation Law reviews. For article, “Constitutional Law”, which discusses Tenth Circuit decisions dealing with questions of due process in attorney disciplinary hearings, see 63 Den. U. L. Rev. 247 (1986). Annotator’s note. The following annotations include cases decided under former provisions similar to this rule. This rule does not constitute a denial of due process even though the final arbiters of fact, the justices of the Colorado supreme court, do not personally hear the testimony of the accused attorney or other witnesses. Razatos v. Colo. Supreme Court, 549 F. Supp. 798 (D. Colo.), appeal dismissed, 455 U.S. 930, 102 S. Ct. 1415, 71 L. Ed. 2d 639 (1982). Recommendation of grievance committee’s hearing panel is advisory only, and it is incumbent upon the supreme court to exercise its independent judgment, taking into consideration the facts, circumstances, and background of the lawyer, to increase or decrease the recommended sanction. People v. Mattox, 639 P.2d 397 (Colo. 1982). While the supreme court has always given the recommendation for discipline by the grievance committee great weight, the court reserves the right to exercise our independent judgment in arriving at the proper level of discipline. People v. Brown, 726 P.2d 638 (Colo. 1986). Under this rule, the supreme court may accept the recommendation of the grievance committee or may impose such other discipline as may be proper under the circumstances. People v. Radinsky, 176 Colo. 357, 490 P.2d 951 (1971). The selection of discipline to be imposed is ultimately a decision to be made by the supreme court after considering the appropriate factors and the purposes to be served by disciplinary sanctions. People v. Vigil, 779 P.2d 372 (Colo. 1989). As part of its constitutional and inherent powers, the supreme court has exclusive jurisdiction over lawyers, and possesses the plenary authority to regulate and supervise the practice of law in Colorado. In re Caldwell, 50 P.3d 897 (Colo. 2002); Matter of Greene, 2013 CO 29, 302 P.3d 690. This rule does not specifically authorize the appellate review of an order granting summary judgment, but that authority is reserved in C.R.C.P. 251.1(d). Matter of Greene, 2013 CO 29, 302 P.3d 690. Suspension of a license to practice law is not criminal punishment for purposes of the double jeopardy clause of the fifth amendment. In re Cardwell, 50 P.3d 897 (Colo. 2002). The primary purpose of lawyer regulation proceedings is to protect the public, not to punish the offending lawyer. In re Caldwell, 50 P.3d 897 (Colo. 2002). Factual findings of grievance committee are binding on the supreme court, unless the supreme court, after considering the record as a whole, concludes that the findings are clearly erroneous and unsupported by substantial evidence. People v. Garnett, 725 P.2d 1149 (Colo. 1986) (apparently overruling People v. Mattox, 639 P.2d 397 (Colo. 1982)). Supreme court is bound by the factual findings of the hearing board unless those findings are clearly erroneous and not supported by substantial evidence in the record. Court reviews questions of law de novo as in any appeal. In re Quiat, 979 P.2d 1029 (Colo. 1999); In re Rosen, 198 P.3d 116 (Colo. 2008). Where hearing board determined that an allegation of the complaint was not proven by clear and convincing evidence because it believed respondent’s explanation of his actions rather than attorney regulation counsel’s allegations, supreme court could not conclude, as a matter of law, that no reasonable fact finder could have made that determination. In re Rosen, 198 P.3d 116 (Colo. 2008). An attorney may file exceptions to the findings of the grievance committee. People v. Wilson, 176 Colo. 389, 490 P.2d 954 (1971). Exceptions to the report of the grievance committee will be ordered stricken where the attorney fails to support them by a reporter’s transcript or such portions thereof as would be necessary to enable the court to pass upon the exceptions. People v. Van Nocker, 176 Colo. 354, 490 P.2d 697 (1971). If an attorney files exceptions, he should also provide a reporter’s transcript to enable the supreme court to pass on the exceptions. People v. Murphy, 174 Colo. 182, 483 P.2d 224 (1971). Respondent’s exceptions stricken for failure to designate record as required by subsection (b)(4) of this rule. People v. Lutz, 897 P.2d 807 (Colo. 1995). There is no evaluation of evidence on review. In determining whether the board’s findings are supported by substantial evidence, it is not within the province of the supreme court to measure the weight of the evidence or to resolve the credibility of witnesses. People v. Distel, 759 P.2d 654 (Colo. 1988). Applied in People v. King, 191 Colo. 120, 550 P.2d 848 (1976); People v. Kane, 655 P.2d 390 (Colo. 1982).