Rule 242.38 - Reinstatement on Affidavit(a) Overview. A lawyer who has been suspended from the practice of law for a period of one year or less may be reinstated by order of the Presiding Disciplinary Judge, without following the procedures set forth in C.R.C.P. 242.39, unless the lawyer's order of suspension provides otherwise. A suspension does not terminate until the Presiding Disciplinary Judge enters an order of reinstatement.(b) Procedure. (1) Motion and Affidavit by Respondent. To seek reinstatement, a respondent must, no earlier than 28 days before the period of suspension is set to terminate, file a motion and an affidavit with the Presiding Disciplinary Judge under the case number used in the underlying disciplinary proceeding. The affidavit must state whether and how the respondent has fully complied with the order of suspension and with all applicable provisions of Chapter 20, including the Colorado Rules of Professional Conduct, during the period of suspension. The respondent must submit a copy of the motion and affidavit to the Regulation Counsel.(2) Procedure Where Regulation Counsel Does Not Oppose Reinstatement. If the Regulation Counsel does not oppose the respondent's reinstatement, the Regulation Counsel must so notify the Presiding Disciplinary Judge within 14 days after the respondent files the motion and affidavit. The Presiding Disciplinary Judge will then reinstate the respondent.(3) Procedure Where Regulation Counsel Opposes Reinstatement. (A) Requested Relief. If the Regulation Counsel has reason to believe that the respondent failed to comply with the order of suspension or an applicable provision of Chapter 20, the Regulation Counsel may oppose reinstatement by filing a response with the Presiding Disciplinary Judge within 14 days after the respondent files the motion and affidavit, requesting either: (i) That the respondent's motion for reinstatement be denied with leave to refile on a showing that the respondent has cured the noncompliance; or(ii) That the respondent's current order of suspension be continued pending a final decision in a new disciplinary proceeding.(B) Reply. If the respondent opposes the requested relief, the respondent must file a reply within 7 days.(C) Decision by the Presiding Disciplinary Judge. As soon as practicable after considering the parties' filings, and after holding any hearing the Presiding Disciplinary Judge deems necessary, the Presiding Disciplinary Judge will issue a decision, determining whether the Regulation Counsel has justified the relief requested. (i) Denial with Leave to Refile. If the Regulation Counsel shows by a preponderance of the evidence that during the period of suspension the respondent failed to comply with the order of suspension or with any applicable provisions of Chapter 20, including the Colorado Rules of Professional Conduct, it is within the Presiding Disciplinary Judge's discretion to deny the respondent's motion with leave to refile on a showing that the respondent has cured the noncompliance. The respondent may file a renewed motion and affidavit under subsection (b)(1) above.(ii) Continuation of Suspension. (a) If the Regulation Counsel shows by a preponderance of the evidence that during the period of suspension the respondent failed to comply with the order of suspension or with any applicable provisions of Chapter 20, including the Colorado Rules of Professional Conduct, the Presiding Disciplinary Judge may continue the respondent's current order of suspension pending a final decision in a new disciplinary proceeding brought to address that conduct if: (1) The respondent is causing or has caused substantial public or private harm; and(2) The respondent has, during the period of suspension:(A) Been convicted of a serious crime based on conduct that occurred during the period of suspension, regardless of whether the respondent is appealing the conviction;(B) Knowingly converted property or funds;(C) Engaged in conduct that poses a substantial threat to the administration of justice; or(D) Practiced law in violation of the order of suspension.(b) If the Presiding Disciplinary Judge continues the respondent's current order of suspension, the respondent may request an accelerated disposition of the new disciplinary proceeding. The proceeding then must proceed without appreciable delay.(c) Independent Charges. Regardless of the relief requested or granted under this rule, the Regulation Counsel may file independent disciplinary charges based on conduct that occurred during the period of the respondent's suspension.(d) Failure to Timely File. A respondent who files an untimely motion and affidavit but whose suspension has been in effect for one year or less may be reinstated under the procedures outlined in subsection (b) above. A respondent who remains suspended for more than one year as a result of an untimely filing or a denial of reinstatement under subsection (b)(3)(C) above must seek reinstatement, if at all, under C.R.C.P. 242.39, unless on a showing of good cause the Presiding Disciplinary Judge grants a motion for extension of time to seek reinstatement under this section 242.38.(e) Running of Time. If a respondent files a motion and affidavit under this section 242.38 within one year of the effective date of the respondent's suspension, the one-year period addressed in this section stops running until the Presiding Disciplinary Judge rules on the motion under subsection (b)(3)(C) above.Adopted by the Court, En Banc, May 20, 2021, effective 7/1/2021.