Colorado

Civil Procedure

Rule 251.28 – Required Action After Disbarment, Suspension, or Transfer to Disability

(a) Effective Date of Order – Winding Up Affairs. Orders imposing disbarment or a definite suspension shall become effective 35 days after the date of entry of the decision or order, or at such other time as the Supreme Court, a Hearing Board, or the Presiding Disciplinary Judge may order. Orders imposing immediate suspension, transferring an attorney to disability inactive status, or for failure to comply with rules governing attorney registration or continuing legal education, shall become effective immediately upon the date of entry of the order, unless otherwise ordered by the Supreme Court, a Hearing Board, or the Presiding Disciplinary Judge. After the entry of an order of disbarment, suspension unless fully stayed (see C.R.C.P. 251.7(a)(3) ), or transfer to disability inactive status, the attorney may not accept any new retainer or employment as an attorney in any new case or legal matter; provided, however, that during any period between the date of entry of an order and its effective date the attorney may, with the consent of the client after full disclosure, wind up or complete any matters pending on the date of entry of the order.
(b) Notice to Clients in Pending Matters. An attorney against whom an order of disbarment, suspension unless fully stayed, or transfer to disability inactive status has been entered shall promptly notify in writing by certified mail each client whom the attorney represents in a matter still pending of the order entered against the attorney and of the attorney’s consequent inability to act as an attorney after the effective date of such order, and advising such clients to seek legal services elsewhere. In addition, the attorney shall deliver to each client all papers and property to which the client is entitled. An attorney who has been suspended as provided in the rules governing attorney registration or continuing legal education need not comply with the requirements of this subsection if the attorney has sought reinstatement as provided by the rules governing attorney registration or continuing legal education and reasonably believes that reinstatement will occur within 14 days of the date of the order of suspension. If the attorney is not reinstated within those 14 days, then the attorney must comply with this subsection.
(c) Notice to Parties in Litigation. An attorney against whom an order of disbarment, suspension unless fully stayed, or transfer to disability inactive status is entered and who represents a client in a matter involving litigation or proceedings before an administrative body shall notify that client as required by section (b) of this rule, and shall recommend that the client promptly obtain substitute counsel. In addition, the lawyer must notify in writing by certified mail the opposing counsel of the order entered against the attorney and of the attorney’s consequent inability to act as an attorney after the effective date of the order. The notice to opposing counsel shall state the place of residence of the client of the attorney against whom the order was entered. An attorney who has been suspended as provided in the rules governing attorney registration or continuing legal education need not comply with the requirements of this section if the attorney has sought reinstatement as provided by the rules governing attorney registration or continuing legal education and reasonably believes that reinstatement will occur 14 days of the date of the order of suspension. If the attorney is not reinstated within those 14 days, then the attorney must comply with this section.

If the client of the attorney against whom an order was entered does not obtain substitute counsel before the effective date of such order, the attorney must appear before the court or administrative body in which the proceeding is pending and move for leave to withdraw.

(d) Affidavit Filed With Supreme Court or the Hearing Board. Within 14 days after the effective date of the order of disbarment, suspension, or transfer to disability inactive status, or within such additional time as allowed by the Supreme Court, the Hearing Board, or the Presiding Disciplinary Judge, the attorney shall file with the Supreme Court or the Hearing Board an affidavit setting forth a list of all pending matters in which the attorney served as counsel and showing:

(1) That the attorney has fully complied with the provisions of the order and of this rule;
(2) That the attorney has served on Regulation Counsel, a list of the clients notified pursuant to subsection (b) of this rule and a copy of each notice provided;
(3) That the attorney has notified every other jurisdiction before which the attorney is admitted to practice law of the order entered against attorney; and
(4) That the attorney has served a copy of such affidavit upon the Presiding Disciplinary Judge and the Regulation Counsel. The list and notices described in (d)(2) shall only be attached to the affidavit provided to Regulation Counsel.

Such affidavit shall also set forth the address of the attorney to which communications may thereafter be directed.

In addition, the attorney shall continue to file a registration statement in accordance with C.R.C.P. 227 for a period of five years following the effective date of the order listing the attorney’s residence or other address where communications may thereafter be directed to the attorney; provided, however, that the annual registration fee need not be paid during such five-year period unless and until the attorney is reinstated. Upon reinstatement the attorney shall pay the annual registration fee for the year in which reinstatement occurs.

(e) Public Notice of Order. The clerk of the Supreme Court or the Presiding Disciplinary Judge shall release for publication orders of disbarment, suspension, or transfer to disability inactive status entered against an attorney.
(f) Notice of Order to the Courts. The Presiding Disciplinary Judge or the clerk of the Supreme Court shall promptly transmit notice of the final order of disbarment, suspension, or transfer to disability inactive status to all courts in this state. The chief judge of each judicial district may make such further orders pursuant to C.R.C.P. 251.32(h) or otherwise as the Chief Judge deems necessary to protect the rights of clients of the attorney.
(g) Duty to Maintain Records. An attorney who has been disbarred, suspended, or transferred to disability inactive status shall keep and maintain records of any steps taken by the attorney pursuant to this rule as proof of compliance with this rule and with the order entered against the attorney. Failure to comply with this section without good cause shown shall constitute contempt of the Supreme Court. Proof of compliance with this section shall be a condition precedent to any petition for reinstatement or readmission.

C.R.C.P. 251.28

Source: Amended and adopted June 25, 1998, effective January 1, 1999; entire rule amended and effective September 1, 2000; a, b, c, and d amended and adopted October 6, 2005, effective January 1, 2006; a amended and effective October 2, 2008; a, b, c, and IPd 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 241.21.

Annotation Annotator’s note. The following annotations include cases decided under former provisions similar to this rule. It is not necessary that an attorney give notice pursuant to section (b) if he has not practiced law and has no clients. People v. Culpepper, 645 P.2d 5 (Colo. 1982). Technical violations of the disciplinary orders and rules will not always preclude reinstatement, rather the most important consideration is the nature of the violations. In re Price, 18 P.3d 185 (Colo. 2001). But denial of reinstatement is justified where attorney’s failure to provide required notice of suspension to each client has potential to cause harm and such failure adversely affects the protections afforded the public by the disciplinary orders and rules. In re Price, 18 P.3d 185 (Colo. 2001). Continuing to practice while suspended is conduct justifying disbarment. People v. James, 731 P.2d 698 (Colo. 1987). Total disregard of obligation to protect a client’s rights and interests over an extended period of time in conjunction with the violation of a number of disciplinary rules, the continuation of the practice of law after suspension, and an extended prior record of discipline requires most severe sanction of disbarment. People v. O’Leary, 783 P.2d 843 (Colo. 1989). Suspension of one year and one day imposed for failing to abide by notification procedures of this section in conjunction with violation of other disciplinary rules where attorney who was suspended from practice of law for failure to pay registration fee and subsequently failed to notify client in pending bankruptcy matter, failed to withdraw from bankruptcy matter before trial date, failed to take action to secure substitute counsel, move for continuance, or otherwise protect his client’s interest, and who failed to inform court or opposing counsel. People v. Smith, 828 P.2d 249 (Colo. 1992). Attorney’s continued practice of law while under an order of suspension, with no efforts to wind up the legal practice, and the failure to take action to protect the legal interests of the attorney’s clients warrants disbarment. People v. Wilson, 832 P.2d 943 (Colo. 1992). An attorney who is suspended for failure to comply with CLE requirements is barred from practicing law under this rule and rule 5.5 of the Colorado rules of professional conduct, the same as if the attorney had been suspended following a disciplinary proceeding. Continuing to practice law after such an administrative suspension warranted an additional 18-month suspension. People v. Johnson, 946 P.2d 469 (Colo. 1997). Winding up affairs unnecessary. Where an attorney is presently suspended from the practice of law, it is not necessary that he be granted time to wind up his legal affairs. Disbarment is therefore effective on the date that the opinion was announced. People v. Susman, 787 P.2d 1119 (Colo. 1990). Accepting a retainer while suspended from the practice of law is sufficient, in conjunction with the violation of other disciplinary rules, to justify further suspension. People v. Redman, 819 P.2d 495 (Colo. 1991). A lawyer’s continued practice of law while under an order of suspension, with no efforts to wind up the legal practice, and failure to take action to protect the legal interests of the lawyer’s clients, warrants disbarment. People v. Wilson, 832 P.2d 943 (Colo. 1992). Suspension of one year and one day appropriate for admitted solicitation of sexual favors when extensive mitigating factors were present. The instances of misconduct occurred over a short period of time during which respondent was undergoing emotional and personal problems, respondent voluntarily underwent psychological counseling, the psychologist indicated in writing that a reoccurrence of the offenses was seen as unlikely, and respondent had already received the sanction of a criminal conviction as a result of pleading guilty to harassment. Respondent was also the subject of several newspaper articles that reported his misconduct. People v. Crossman, 850 P.2d 708 (Colo. 1993). An attorney’s appearance as counsel of record in numerous court proceedings following an order of suspension warrants further suspension for one year and one day. People v. Kargol, 854 P.2d 1267 (Colo. 1993). Suspension for one year and one day is warranted where attorney mishandled client funds but where the court found several factors in mitigation such as the absence of a prior record, a reputation for honesty, and a demonstration of remorse. People v. Galindo, 884 P.2d 1109 (Colo. 1994). Suspension for one year and one day appropriate when attorney terminated representation without reasonable notice, failed to provide client with accounting and refund, and failed to meet continuing education requirements. Restitution required as condition of reinstatement. People v. Rivers, 933 P.2d 6 (Colo. 1997). Suspension for three years is warranted where attorney, in conjunction with violating numerous rules of professional conduct, violated this rule by failing to notify client by certified mail of order of suspension and attorney’s inability to represent client. People v. Hohertz, 926 P.2d 560 (Colo. 1996). Disbarment appropriate when attorney took no steps to protect the legal interests of his clients when he was placed under a suspension order. Attorney also had an extensive history of similar discipline. People v. Dolan, 873 P.2d 766 (Colo. 1994). Conduct violating this rule in conjunction with other violations is sufficient to justify disbarment. People v. Ebbert, 925 P.2d 274 (Colo. 1996); People v. Mannix, 936 P.2d 1285 (Colo. 1997); People v. Fager, 938 P.2d 138 (Colo. 1997); People v. Swan, 938 P.2d 1164 (Colo. 1997); People v. Holmes, 955 P.2d 1012 (Colo. 1998); People v. Zimmermann, 960 P.2d 85 (Colo. 1998); People v. Alexander, 281 P.3d 496 (Colo. O.P.D.J. 2012 ). An attorney’s continued practice of law while under suspension is negligent where there is evidence that the attorney incorrectly believed that he had been reinstated and where there is no evidence that misconduct caused any actual harm. People v. Dieters, 883 P.2d 1050 (Colo. 1994). Suspension for 90 days is warranted for attorney’s continued practice of law during a period of suspension in view of prior record and substantial experience in practice of law even if attorney incorrectly believed that he had been reinstated. People v. Dieters, 883 P.2d 1050 (Colo. 1994). Suspension for 18 months is warranted where attorney failed to notify opposing counsel and trial court of suspension and where the attorney had extensive record of previous discipline. People v. Watson, 883 P.2d 1053 (Colo. 1994). Public censure is warranted where, although the attorney failed to notify opposing counsel and appeared in one hearing after imposition of the suspension, the attorney’s involvement was minimal, it occurred only upon request by the client, it did not result in any harm to the client, and the attorney did not receive any benefit from the appearance. People v. Pittam, 917 P.2d 710 (Colo. 1996). Public censure warranted where, although respondent did not notify his clients and opposing counsel of his suspension, he did notify the court early in proceedings and did not go forward with court proceedings while on suspension and no actual harm was demonstrated to any of his clients. People v. Dover, 944 P.2d 80 (Colo. 1997). Conduct violating this rule is sufficient to warrant public censure. People v. Williams, 936 P.2d 1289 (Colo. 1997). Orders affecting disbarment or suspension are effective 30 days after the entry of the order or at such other time as the court may order. People v. Goldstein, 887 P.2d 634 (Colo. 1994). Applied in People ex rel. MacFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716 (1978); People v. Pacheco, 198 Colo. 455, 608 P.2d 333 (1979); People v. Gifford, 199 Colo. 205, 610 P.2d 485 (1980); People v. Dixon, 621 P.2d 322 (Colo. 1981); People v. Southern, 638 P.2d 787 (Colo. 1982); People v. Dwyer, 652 P.2d 1074 (Colo. 1982); People v. Roehl, 655 P.2d 1381 (Colo. 1983).