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TCL > October 1998 Issue > Court Business

The Colorado Lawyer
October 1998
Vol. 27, No. 10 [Page  129]

© 1998 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Chief Justice of the Supreme Court Directives

Notice of Availability

A full set of the Chief Justice Directives may be purchased from the Colorado Judicial Department for $15, which includes copying, handling, and postage costs. Checks should be made payable to Colorado Judicial Department and should be mailed to: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., Suite 300, Denver, CO 80203. Individual Chief Justice Directives will be assessed a $5 charge, pursuant to Chief Justice Directive 96-01, concerning standard research fees. Chief Justice Directives also are available from the Colorado Supreme Court homepage at: www.courts.state.co.us/supct/cjdirect/cjdirectives.htm.

Publication in The Colorado Lawyer

Chief Justice Directives will be published on a space available basis in this "Court Business" section of The Colorado Lawyer. Some attachments may be omitted. To obtain a copy of attachments, contact the Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203.

REVISED CHIEF JUSTICE DIRECTIVE 97-01

Supreme Court of Colorado

Office of the Chief Justice

Appointment of State-Funded Counsel in

Criminal and Juvenile Delinquency Cases

Revised, July 1, 1998

Chief Justice Directive 97-01, Appointment of State- funded Counsel in Criminal and Juvenile Delinquency Cases, printed in the November 1997 issue of The Colorado Lawyer on page 133, has been revised. Beginning on page 135, "Section V. Guidelines for Payment," A.1 and B.1, have been revised to read as follows:

V. Guidelines for Payment

A. Public Defender

1. Court Costs: Costs incurred by the Public Defender shall be billed to the appointing court and, if approved, paid by the court. Court costs include such items as: expert and standard witness fees and expenses, service of process, out-of-state investigation travel, mental health examinations, and transcripts. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including Fiscal Procedure, Chapter 22, "Procedure for Processing Court Cost Bills."

B. Office of Alternate Defense Counsel

  1. Claims for Payment of Fees: Claims for payment of counsel and investigator fees and expenses shall be filed with the Office of Alternate Defense Counsel on Form ADC 97-02. All forms must be in compliance with the Procedures for Payment (Attachment D). All requests for payment shall be reviewed by the Office of Alternate Defense Counsel to ensure compliance with all regulations before payment will be issued. All incomplete claims will be returned to the attorney or investigator with instructions regarding the additional information needed to process the payment.

REVISED CHIEF JUSTICE DIRECTIVE 97-02

Supreme Court of Colorado

Office of the Chief Justice

Revised, July 20, 1998

Directive Concerning Court Appointment of Guardians Ad Litem,
Special Advocates, Court Visitors, and Attorney Representatives and
Of Counsel for Children and Indigent Persons in Titles 14, 15, 19
(Dependency and Neglect Only), 22, 25, and 27

Chief Justice Directive 97-02, printed in the November 1997 issue of The Colorado Lawyer on page 137, has been revised.

The following policy is adopted effective August 1, 1997, to assist the administration of justice through (1) the appointment and training of guardians ad litem, special advocates, court visitors, and attorney representatives appointed on behalf of child(ren), wards, or impaired adults in all cases and (2) the appointment of counsel for children and adults under Titles 14, 15, 19 (dependency and neglect only), 22, 25, and 27. This policy does not cover appointments made pursuant to Titles 16 and 18 or appointments of counsel in juvenile delinquency matters pursuant to Title 19. Appointment of counsel in juvenile delinquency matters is addressed in Chief Justice Directive 97-01.

I. Statutory Authority

A. The federal and state constitutions and various Colorado statutes provide authority for the appointment of guardians ad litem, special advocates, court visitors, attorney representatives and counsel, and counsel for adults for indigent persons in certain civil actions.

B. State funds are appropriated to the Judicial Branch to provide for representation in dependency and neglect cases and in certain other cases in which the party represented, or the party's parent or legal guardian, is determined to be indigent.

II. Determination of Indigency

A. A person must be indigent to qualify for court-appointed representation at state expense pursuant to Titles 14, 15, 22, 25, and 27 and for representation of respondents in a dependency and neglect action under Title 19. Such person(s) must also be indigent for the court to authorize payment of certain costs and expenses. The parent or legal guardian of a child in a dependency and neglect action under Title 19 need not be indigent for the appointment of a guardian ad litem for the child.

B. An indigent person is one whose financial circumstances fall within the fiscal standards set forth in Attachment A.

C. All persons requesting court-appointed representation to be paid by the state on the basis of indigency must complete, or have completed on their behalf, application form JDF 208 ("Application for Court-Appointed Counsel or Guardian ad Litem") signed under oath, before an appointment of counsel at state expense may be considered by the court. Form JDF 208 must be completed for the appointment of a guardian ad litem at state expense in all cases except dependency and neglect cases under Title 19. Form JDF 208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27 in which the respondent refuses to or is unable to supply the necessary information.

D. If, in the best interests of justice, a tentative appointment of legal counsel or a guardian ad litem for the party is necessary, such appointment may be made pending a final decision regarding indigency. If a review of a person's application shows that the person is not indigent and the person is not qualified to have court-appointed representation at state expense, the court may order the person to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel or a guardian ad litem.

III. Appointment of Guardians ad Litem, Special Advocates, and Attorney Representatives

A. A guardian ad litem must be appointed for a child in a dependency and neglect action pursuant to Title 19, regardless of a determination of indigency.

B. A guardian ad litem may be appointed in the child's best interest for a child in a truancy action pursuant to Title 22, a juvenile delinquency action pursuant to Title 19, or for a juvenile charged as an adult in a criminal case, pursuant to Title 19.

C. An attorney representative or special advocate may be appointed in the child's best interest for a child in a domestic relations case pursuant to Title 14. The court shall enter an order for costs, fees, and disbursements against any or all of the parties.

D. A guardian ad litem may be appointed for a parent or guardian in dependency and neglect proceedings who has been determined to be mentally ill or developmentally disabled, unless a conservator has been appointed, pursuant to Title 19.

E. In formal proceedings involving trusts or estates of decedents, minors, protected persons, and in judicially supervised settlements pursuant to Title 15, a guardian ad litem or court visitor may be appointed to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation exists.

F. A guardian ad litem must be appointed for any child under age 15 who is a ward of the Department of Human Services, or for any minor who objects to hospitalization, in a mental health proceeding pursuant to Title 27.

G. A guardian ad litem may be appointed for an infant or incompetent person who does not have a representative and who is a party to a civil suit.

H. A guardian ad litem may be appointed for a child in a paternity action pursuant to Title 19.

I. A court visitor shall be appointed for an allegedly incapacitated person who does not have counsel pursuant to Title 15.

J. Upon the filing of a petition for involuntary commitment of alcoholics or drug abusers, a guardian ad litem may be appointed for the person if the court deems the person's presence in court may be injurious to him or her pursuant to Title 25.

K. Upon the filing of a petition for emergency or involuntary commitment of alcoholics or drug abusers, counsel may be appointed for the person pursuant to Title 25.

IV. Appointment of Counsel for a Juvenile

A. Counsel may be appointed in the child's best interest at state expense for a child in a truancy action pursuant to Title 22 or for any matter under Title 19 if the court deems representation by counsel necessary to protect the interests of the child or other parties. Form JDF 208 must be completed by the parent or legal guardian to determine whether the parent or legal guardian shall reimburse the state for the appointment. The appointment shall be at state expense if the parent(s) or guardian(s) is(are) indigent or if a determination of indigency cannot be made.

V. Reimbursement to the State for Court-Appointed Representation

A. For all appointments described, the court shall review the indigency status of the responsible party or estate at the time of appointment and, if feasible, at the time of case closure. In the case of a court visitor appointment, the petitioner and/or the allegedly incapacitated person may be ordered to pay all or a portion of the visitor's fees and expenses if they are not determined to be indigent. If the court determines, at any time after appointment of counsel, guardian ad litem, special advocate, court visitor, or attorney representative, that the responsible party or estate has the ability to pay all or part of the costs for representation or other costs, the court shall enter a written order that the person or estate reimburse all or part of those costs to the registry of the court for transmittal to the state general fund as a cost recovery. The order of reimbursement may be reduced to judgment and collected by the state.

B) Collections of fees for court-appointed representation may be referred to the Collections Investigator or to the Central Collections Service in the State Division of Central Services. Costs for representation provided to indigent persons may be assessed at the fixed hourly rate for court-appointed counsel for the number of hours reported by counsel to the court. Court costs may also be assessed, including costs for transcripts, witness fees, and costs for service of process.

VI. Guidelines for Appointment of Counsel, Guardians Ad Litem, Special Advocates, Court Visitors, or Attorney Representatives

A. The court shall maintain a list of qualified contract attorneys from which to make appointments of counsel, guardians ad litem, attorney special advocates, and attorney representatives.

B. Any attorney not under contract with the Department who requests appointments must submit to the chief judge a request with an affidavit of qualifications for such appointments. The judge, in his or her discretion, may approve additions to the list at any time. An attorney must submit an updated affidavit every three years to ensure that he or she is maintaining his or her qualifications for such appointments.

C. The judge or magistrate shall consider the number of an attorney's active cases, the qualifications of the attorney as provided, and the needs of the party requesting representation when making appointments.

D. The court may also appoint a qualified person other than an attorney as a special advocate, court visitor, or guardian ad litem when the appointment of an attorney is not mandated by statute. The court shall also maintain a list of qualified persons to accept appointments as special advocates, court visitors, non-attorney guardians ad litem, or investigators from which the judge will make appointments.

E. All appointments shall be made pursuant to a written Order of the Court. The order shall specify the:

1. authority under which the appointment is made;

2. reason(s) for the appointment;

3. scope of the duties to be performed; and

4. terms and method of compensation.

Sample Orders of Appointment are attached as Attachments B and C.

F. The appointing judge or magistrate shall monitor the actions of the appointee to ensure compliance with the duties and scope specified in the order of appointment.

VII. Guidelines for Payment by the Department

A. The fees and expenses for court appointees will be reimbursed either (1) on a monthly basis at the set rate per case established by the Colorado Judicial Department for appointments made under contract, (2) on a case-by-case basis for itemized payment orders detailing the appointee's time spent and expenses for appointments not covered by contracts with the Department, or (3) in accordance with the procedures established by the Department under other contract agreements.

B. Court costs for all state-paid appointments shall be billed to the appointing court and, if approved, paid by the appointing court. Court costs include such items as: witness fees, witness expenses, service of process, out-of-state investigative travel, language interpreters, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including Fiscal Procedure, Chapter 22 ("Procedure for Processing Court Cost Bills").

C. The Department contracts with individual attorneys for court-appointed representation on a state-fiscal-year basis (July 1 through June 30) at rates established annually by the Department. Claims for payment by counsel and guardians ad litem for appointments made under contract shall be made in compliance with the procedures specified in the contract. Claims for payment not covered by contracts with the Department shall follow the procedures described at Attachment D.

D. For appointments that are not made under a contractual agreement, the following maximum hourly rates for reimbursement by the Department and the maximum total fees that may be paid to court-appointed counsel, investigators, special advocates, or attorney representatives paid by the Department, are established:

Maximum Hourly Rate

In court/Out of court

Court-appointed Counsel $50.00/40.00 per hour

Attorney Guardian ad Litem,
Special Advocate, or
Attorney Representative $50.00/40.00 per hour

Non-Attorney Special Advocate or
Guardian ad Litem $20 per hour

Paralegal, Legal Assistant,
or Law Clerk $20 per hour

Court-authorized Investigator $25 per hour

Court Visitor $25 per hour

Maximum Total Fee Per Appointment

(Appointments August 1, 1997, and later)

Title 19 - Dependency and Neglect Matters

Respondent Parent Counsel $1,500.00

Attorney Guardian ad Litem $1,500.00

Non-Attorney Special Advocate $ 750.00

Title 19 - Other Matters
(i.e. delinquency GAL, support, adoption, paternity, etc.)

Attorney Guardian ad Litem or
Special Advocate $ 750.00

Non-Attorney Special Advocate or
Guardian ad Litem $ 375.00

Titles 14 and 15

Counsel (probate only) $1,500.00

Attorney Representative,
Special Advocate, or
Guardian ad Litem $1,500.00

Non-Attorney Guardian ad Litem
or Special Advocate $ 750.00

Court Visitor $ 375.00

Titles 22, 25, and 27

Guardian ad Litem (attorney) $ 200.00

Guardian ad Litem (non-attorney) $ 100.00

Counsel $ 200.00

Appeals

Counsel; Attorney Guardian ad Litem,
Special Advocate, or
Attorney Representative $1,500.00

E. Under no circumstances shall the fees exceed the maximums outlined without a detailed written motion and detailed written order showing the specific special circumstances that justify fees in excess of the maximum. If a court-appointed attorney chooses to use the support of a paralegal, legal assistant, investigator, or law clerk, the fees of the support person shall be added to the fees of the attorney. The combined fees, inclusive of expenses, of the attorney or non-attorney representative and other support staff shall not exceed the total maximum outlined.

F. To maintain effective representation by court-appointed counsel and to provide basic fairness to attorneys and others so appointed, the State Court Administrator is directed to review the fee schedule for court-appointed counsel every three years, commencing in the year 2000, and to submit a report to the Colorado Supreme Court on or before October 1 of that year, and every third year thereafter, with recommended adjustments to the fee schedule.

G. Attorneys must maintain records of all work performed relating to court appointments and make all such records available to the Judicial Department for inspection, audit, and evaluation in such form and manner as the Department in its discretion may require, subject to attorney/client privilege.

VIII. Appeals

A. The trial court shall determine the need and statutory requirement for appointment of private counsel on appeal. Where applicable, determinations of indigency should be made in accordance with the procedure described in section II.

B. Orders for payment shall be filed on Form JDF 207 (Colorado Judicial Department Order For Payment Of Fees) with the appellate court and must contain a copy of the order appointing private counsel to represent the indigent person on appeal. An appellate court judge, or designee, shall carefully review all orders for payment submitted to the court for approval.

C. The maximum total fee allowable on an appeal shall be in accordance with the maximum rates outlined in VII D.

[Sections IX, X, XI, and XII aplly only to attorneys, special advocates, court visitors, and attorney representatives appointed on behalf of children, wards, or impaired adults, and do not apply to appointment of legal counsel.]

IX. Training of Guardians ad Litem, Special Advocates, and Attorney Representatives Appointed on Behalf of Children, Wards, or Impaired Adults

A. Attorneys appointed as guardians ad litem, special advocates, or attorney representatives shall possess the knowledge, expertise, and training necessary to perform the court appointment, and shall be subject to all of the rules and standards of the legal profession.

B. In addition, the attorney guardians ad litem, special advocates, and attorney representatives shall obtain 10 hours of continuing legal education, or other courses relevant to an appointment that enhance the attorney's knowledge of the issues in representation, per legal education reporting period. The court shall require that proof of such education, expertise, or experience be on file with the court at the time of appointment.

C. In those cases in which a non-attorney is appointed as a special advocate, court visitor, or guardian ad litem, the non-attorney shall also demonstrate the knowledge, expertise, and training necessary to fulfill the terms of the appointment. The court may determine whether the individual's knowledge, expertise, and training are adequate for an appointment, and may require the individual to demonstrate his or her qualifications.

X. Duties of Guardians ad Litem, Special Advocates, and Attorney Representatives Appointed on Behalf of Children, Wards, or Impaired Adults

A. The individual appointed shall diligently take steps that he or she deems necessary to protect the interest of the person for whom he or she was appointed, under the terms and conditions of the order of appointment, including any specific duties set forth in that or any subsequent order. If the appointee finds it necessary and in the best interests of the child(ren), ward, or impaired adult, the appointee may request that the court expand the terms of the appointment and scope of the duties.

B. An individual appointed as a special advocate pursuant to Section 14-10-116, C.R.S. shall follow the specific terms of the order of appointment, which will include the filing of a written report with the court, but may not include all of the other duties described in this paragraph. An attorney appointed as a guardian litem in a truancy case shall follow the specific terms of the order of appointment, which may not include all of the duties described in this paragraph. For all other guardian ad litem, special advocate, and attorney representative appointments, the appointee shall specifically:

1. Attend all court hearings and provide accurate and current information directly to the court (Although another qualified attorney may substitute for some hearings, this should be the exception.).

2. At the court's direction, file written or oral report(s) with the court and all other parties, unless appointed as attorney representative pursuant to Section 14-10-116(2), C.R.S.

3. Conduct an independent investigation in a timely manner, which shall include, at a minimum:

a) Personally meeting with and observing the child(ren)'s interaction with the parents or proposed custodians when appropriate;

b) Personally meeting with and observing the child, ward, or impaired adult at home or in placement;

c) Personally interviewing the child (if age-appropriate), ward, or impaired adult;

d) Reviewing court files and relevant records, reports, and documents;

e) Interviewing, with the consent of counsel, respondent parents;

f) Interviewing other people involved in the child's, ward's, or impaired adult's life; and

g) When appropriate, visiting the home from which the child, ward, or impaired adult was removed.

Duties (f) and (g) may be performed, under the supervision of the appointee, by a qualified person other than the appointee.

4. In cases in which the parents, child, ward, or impaired adult is living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person are waived unless extraordinary circumstances warrant the expenditure of state funds required for such visits. However, the appointee shall endeavor to meet the person if and when that person is within 100 miles of the jurisdiction of the court.

5. Continue to perform all duties listed above as necessary to represent the best interest of the child, ward, or impaired adult for the duration of the case unless relieved of such duty by the court.

6. All attorney guardians ad litem, special advocates, and attorney representatives paid by the state shall submit a standard affidavit of compliance (see Attachment F) to the presiding juvenile judge, probate judge, or chief judge by February 1 of each year for appointments made in the previous year. Affidavits shall be submitted in each district in which the attorney is appointed. For any cases in which the attorney has not complied with the above requirements, a standard exception form shall be attached to the affidavit. Copies of the affidavits and attachments shall be submitted to the Office of the State Court Administrator by the attorney. The standard affidavit of compliance and exception form shall be developed by the Office of the State Court Administrator and made available to all guardians ad litem, special advocates, and attorney representatives by the court.

XI. Duties of Judges and Magistrates

A. Judges and magistrates shall ensure that guardians ad litem, special advocates, and attorney representatives involved with cases under their jurisdiction are representing the best interests of children, wards, or impaired adults and performing the duties specified in this order.

B. In providing this oversight, judges and magistrates shall:

1. Routinely monitor compliance with this directive;

2. Encourage local bar associations to develop and implement mentor programs which will enable prospective guardians ad litem, special advocates, and attorney representatives to learn these areas of the law;

3. Encourage local bar associations to establish committees to oversee guardians ad litem, special advocates, and attorney representatives;

4. Meet with guardians ad litem, special advocates, or attorney representatives at the first appointment to provide guidance and clarify the expectations of the court; and

5. Hold periodic meetings with all practicing guardians ad litem, special advocates, or attorney representatives as the court deems necessary to ensure adequate representation of children, wards, or impaired adults.

XII. Complaints

A. For all court-appointed attorneys, including counsel, guardians ad litem, attorney special advocates, and attorney representatives, complaints concerning performance may be addressed to the Grievance Committee.

B. All complaints regarding the performance of any state-paid guardian ad litem, special advocate, court visitor, or attorney representative shall be submitted to the district administrator. The district administrator will forward the complaint to the presiding juvenile judge, probate judge or, if appropriate, chief judge of the district; unless a conflict exists due to the judge's involvement in the case described. If a conflict exists, the district administrator will forward the complaint to another judge designated for that purpose. Upon request by the judge, the State Court Administrator will conduct a review of the guardian ad litem, special advocate, court visitor, or attorney representative, which may include interviews with pertinent parties, court observation, review of attorney records, and court file reviews.

C. Copies of all written complaints and documentation of verbal complaints regarding state-paid guardians ad litem, special advocates, court visitors, or attorney representatives shall be forwarded by the district administrator to the Office of the State Court Administrator. Upon request by the presiding juvenile or probate judge or chief judge, the State Court Administrator will conduct a review as described above.

XIII. Sanctions

A. All contracts with the Colorado Judicial Department for guardian ad litem shall include a provision to ensure compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract and/or removal from the appointment list.

B. Judicial officers shall notify guardians ad litem who are appointed on an hourly basis that acceptance of the appointment requires compliance with this Directive. Failure to comply with this Directive may result in termination of the current appointment and/or removal from the appointment list.

Chief Justice Directives 89-02, 89-03 and CJD 96-02 are repealed and this CJD 97-02 is adopted, effective August 1, 1997.

CJD 92-03 is repealed and this revised CJD 97-02 is adopted, effective July 20, 1998.

Date: __________________________

_______________________________

Anthony F. Vollack, Chief Justice

© 1998 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=1998.


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