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TCL > December 2005 Issue > Court Business

The Colorado Lawyer
December 2005
Vol. 34, No. 12 [Page  159]

© 2005 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Court Business
Colorado Supreme Court Rules Committee
Rule Change 2005(11)
Colorado Rules of Evidence
Chapter 33. Rule 405. Methods of Proving Character
Rule 608. Evidence of Character and Conduct of Witness
Amended

Rule 405.
Methods of Proving Character

(a) [No Change.]

(b) Specific instances of conduct. Except as limited by §§ 16-10-301 and 18-3-407, in cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct.

___________________

Rule 608.
Evidence of Character and Conduct of Witness

(a) [No Change.]

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness other than conviction of crime as provided in § 13-90-101, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

Amended by the Court, En Banc, September 29, 2005, effective January 1, 2006.

By the Court:
Justice Nathan B. Coats
Colorado Supreme Court

_____________________________________

Rule Change 2005(12)
Colorado Rules of Civil Procedure
Chapter 20. Rules 251.13, 251.28, and 251.31
Colorado Rules of Procedure Regarding Attorney Discipline
And Disability Proceedings, Colorado Attorney’s Fund for Client Protection,
And Mandatory Continuing Legal Education and Judicial Education
Amended and Adopted

Rule 251.13.
Alternatives to Discipline

(a) through (c) [No Change.]

(d) Costs of the Diversion. The attorney shall pay all the costs incurred in connection with participation in any diversion program. The attorney shall also pay the administrative cost of the proceeding as set by the Supreme Court.

(e) through (i) [No Change.]

___________________

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

(a) Effective Date of Order—Winding Up Affairs. Orders imposing disbarment, a definite suspension, or an administrative suspension for failure to comply with rules governing attorney registration or continuing legal education, shall become effective thirty-one 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 or transferring an attorney to disability inactive status 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 fifteen days of the date of the order of suspension. If the attorney is not reinstated within those fifteen 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 within fifteen days of the date of the order of suspension. If the attorney is not reinstated within those fifteen 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 ten 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) through (g) [No Change.]

___________________

Rule 251.31
Access to Information Concerning
Proceedings Under These Rules

(a) Availability of Information. Except as otherwise provided by these rules, all records, except (i) the work product, deliberations and internal communications of the Regulation Counsel, the committee, the Presiding Disciplinary Judge, the Hearing Boards, and the Supreme Court, and (ii) the lists of clients and copies of client notices referred to in C.R.C.P. 251.28(d)(2), shall be available to the public after the committee determines that reasonable cause to believe grounds for discipline exists and the Regulation Counsel files and serves a complaint as provided in C.R.C.P. 251.14, unless the complainant or the respondent obtains a protective order.

Unless otherwise ordered by the Supreme Court or the Presiding Disciplinary Judge, nothing in these rules shall prohibit the complaining witness, the attorney, or any other witness from disclosing the existence of proceedings under these rules or from disclosing any documents or correspondence served on or provided to those persons.

(b) through (q) [No Change.]

By the Court:

Justice Michael L. Bender
Justice Nathan B. Coats
Colorado Supreme Court

_____________________________________

Rule Change 2005(13)
The Colorado Rules of Civil Procedure
Amended and Adopted

Chapter 1. Scope of Rules, One Form of Action,
Commencement of Action, Service of Process,
Pleadings, Motions, and Orders

Rule 5. Service and Filing of Pleadings
and Other Papers

(a) [No Change.]

(b) Making Service: (1) Service under C.R.C.P. 5(a) on a party represented by an attorney is made upon the attorney unless the court orders personal service upon the party. A resident attorney, on whom pleadings and other papers may be served, shall be associated as attorney of record with any out-of-state attorney practicing in any courts of this state. (2) Service under C.R.C.P. 5(a) is made by:

(A) Delivering a copy to the person served by:

(i) handing it to the person;

(ii) leaving it at the person’s office with a clerk or other person in charge, or if no one is in charge, leaving it in a conspicuous place in the office; or

(iii) if the person has no office or the office is closed, leaving it at the person’s dwelling house or usual place of abode with someone 18 years of age or older residing there;

(B) Mailing a copy to the last known address of the person served. Service by mail is complete on mailing;

(C) If the person served has no known address, leaving a copy with the clerk of the court; or

(D) Delivering a copy by any other means, including E-Service, other electronic means or a designated overnight courier, consented to in writing by the person served. Designation of a facsimile phone number in the pleadings effects consent in writing for such delivery. Parties who have subscribed to E-Filing, pursuant to C.R.C.P. 121 Section 1-26 § 1.(d), have agreed to receive E-Service. Service by other electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service by other electronic means or overnight courier under C.R.C.P. 5(b)(2)(D) is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) [No Change.]

(d) Filing Certificate of Service. All papers after the initial pleading required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service, but disclosures under Rule C.R.C.P. 26(a)(1) or (2) and the following discovery requests and responses shall not be filed until they are used in the proceeding or the court orders otherwise: (i) depositions, (ii) interrogatories, (iii) requests for documents or to permit entry upon land, and (iv) requests for admission.

(e) Filing with Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. A paper filed by E-Filing in compliance with C.R.C.P. 121 Section 1-26 constitutes a written paper for the purpose of this Rule. The clerk shall not refuse to accept any paper presented for filing solely because it is not presented in proper form as required by these rules or any local rules or practices.

(f) [No Change.]

___________________

Rule 6. Time

(a) Computation. In computing any period of time prescribed or allowed by these rules the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Unless otherwise specifically ordered, when the period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this Rule, "Legal holiday" includes the first day of January, observed as New Year’s Day; the third Monday in January, observed as Martin Luther King Day; the third Monday in February, observed as Washington–Lincoln Day; the last Monday in May, observed as Memorial Day; the fourth day of July, observed as Independence Day; the first Monday in September, observed as Labor Day; the second Monday in October, observed as Columbus Day; the 11th day of November, observed as Veteran’s Day; the fourth Thursday in November, observed as Thanksgiving Day; the twenty-fifth day of December, observed as Christmas Day, and any other day except Saturday or Sunday when the court is closed.

(b) through (d) [No Change.]

(e) Additional Time After Service Under C.R.C.P. 5(b)(2)(B), (C), or (D). Unless otherwise specifically ordered, whenever a party must or may act within a prescribed period after service is made under C.R.C.P. 5(b)(2)(B), (C),or (D) three days shall be added after the prescribed period would expire under Section (a) of this Rule.

___________________

Chapter 4. Disclosure and Discovery

Rule 26. General Provisions Governing Discovery;
Duty of Disclosure

(a) through (3) [No Change.]

(4) Form of Disclosures; Filing. All disclosures pursuant to subparagraphs (a)(1) and (a)(2) of this Rule shall be made in writing, in a form pursuant to C.R.C.P. 10, signed pursuant to C.R.C.P. 26(g)(1), and served upon all other parties. Disclosures shall not be filed with the court unless requested by the court or necessary for consideration of a particular issue.

(a)(5) through (g) [No Change.]

___________________

Chapter 5. Trials

Rule 43. Evidence

(a) through (h) [No Change.]

(i) (1) Request for absentee testimony. A party may request that testimony be presented at a trial or hearing by a person absent from the courtroom by means of telephone or some other suitable and equivalent medium of communication. A request for absentee testimony shall be made by written motion or stipulation filed as soon as practicable after the need for absentee testimony becomes known. The motion shall include:

(A) The reason(s) for allowing such testimony.

(B) A detailed description of all testimony which is proposed to be taken by telephone or other medium of communication.

(C) [No Change.]

(2) Response. If any party objects to absentee testimony, said party shall file a written response within 3 days following service of the motion unless the opening of the proceeding occurs first, in which case the objection shall be made orally in open court at the commencement of the proceeding or as soon as practicable thereafter. If no response is filed or objection is made, the motion may be deemed confessed.

(3) Determination. The court shall determine whether in the interest of justice absentee testimony may be allowed. The facts to be considered by the court in determining whether to permit absentee testimony shall include but not be limited to the following:

(A) Whether there is a statutory right to absentee testimony.

(B) The cost savings to the parties of having absentee testimony versus the cost of the witness appearing in person.

(C) The availability of appropriate equipment at the court to permit the presentation of absentee testimony.

(D) through (G) [No Change.]

(H) Whether the presentation of absentee testimony would inhibit the ability to cross examine the witness.

(I) The efforts of the requesting parties to obtain the presence of the witness.

If the court orders absentee testimony to be taken, the court may issue such orders as it deems appropriate to protect the integrity of the proceedings.

___________________

Chapter 17A. Practice Standards and Local Rules

Section 1-1 [Repealed and Readopted]
Entry of Appearance and Withdrawal

1. Entry of Appearance.

No attorney shall appear in any matter before the court unless that attorney has entered an appearance by filing an Entry of Appearance or signing a pleading. An entry of appearance shall state (a) the identity of the party for whom the appearance is made; (b) the attorney’s office address; (c) the attorney’s telephone number; (d) the attorney’s E-Mail address; and (e) the attorney’s registration number.

2. Withdrawal From an Active Case.

(a) An attorney may withdraw from a case, without leave of court where the withdrawing attorney has complied with all outstanding orders of the court and either files a notice of withdrawal where there is active co-counsel for the party represented by the withdrawing attorney, or files a substitution of counsel, signed by both the withdrawing and replacement attorney, containing the information required for an Entry of Appearance under subsection 1 of this Practice Standard as to the replacement attorney.

(b) Otherwise an attorney may withdraw from a case only upon approval of the court. Such approval shall rest in the discretion of the court, but shall not be granted until a motion to withdraw has been filed and served on the client and the other parties of record or their attorneys and either both the client and all counsel for the other parties consent in writing at or after the time of the service of said motion, or at least 15 days have expired after service of said motion. Every motion to withdraw shall contain the following advisements:

(I) the client has the burden of keeping the court and the other parties informed where notices, pleadings or other papers may be served;

(II) if the client fails or refuses to comply with all court rules and orders, the client may suffer possible dismissal, default or other sanctions;

(III) the dates of any proceedings, including trial, which dates will not be delayed, nor the proceedings affected by the withdrawal of counsel;

(IV) the client’s and the other parties’ right to object to the motion to withdraw within 15 days after service of the motion; and

(V) the client’s last known address and telephone number.

(c) The client and the opposing parties shall have 15 days after service of a motion to withdraw within which to file objections to the withdrawal.

(d) If the motion to withdraw is granted, the withdrawing attorney shall promptly notify the client and the other parties of the effective date of the withdrawal.

3. Withdrawal From Completed Cases.

In any civil case which is concluded and in which all related orders have been submitted and entered by the court and complied with by the withdrawing attorney, an attorney may withdraw from the case without leave of court by filing a notice in the form and content of Appendix to Chapters 1 to 17A, Form 36, C.R.C.P. [JDF Form 83], which shall be served upon the client and all other parties of record or their attorneys, pursuant to C.R.C.P. 5. The withdrawal shall automatically become effective 15 days after service upon the client and all other parties of record or their attorneys unless there is an objection filed, in which event the matter shall be assigned to an appropriate judicial officer for determination.

4. Entries of Appearance and Withdrawals by Members or Employees of Law Firms, Professional Corporations or Clinics.

The entry of an appearance or withdrawal by an attorney who is a member or an employee of a law firm, professional corporation or clinic shall relieve other members or employees of the same law firm, professional corporation or clinic from the necessity of filing additional entries of appearance or withdrawal in the same litigation unless otherwise indicated.

Committee Comment

An "active case" is any case other than a "completed case" as described in subsection 3 of the Practice Standard.

___________________

Section 1-2. Special Admission of
Out-of-State Attorneys

Special admission of an out-of-state attorney shall be in accordance with C.R.C.P. Chapter 18, Rules Governing Admission to the Bar 220 and 221.

Section 1-3 through 1-12 [No Change.]

Section 1-13. Deposition by Audio Tape Recording

When a deposition is taken by audio tape recording under C.R.C.P. 30(b)(4), the following procedures shall be followed:

(a) An oath or affirmation shall be administered to the witness by a notary public or other officer authorized to administer oaths.

(b) [No Change.]

(c) Speakers shall identify themselves before each statement except during extended colloquy between examiner and deponent.

(d) through (h) [No Change.]

Committee Comment [No Change.]

Section 1-14. Default Judgments

1. To enter a default judgment under C.R.C.P. 55(b) of the Colorado Rules of Civil Procedure, the following documents in addition to the motion for default judgment are necessary:

(a) [No Change.]

(b) An affidavit stating facts showing that venue of the action is proper. The affidavit may be executed by the attorney for the moving party.

(c) An affidavit or affidavits establishing that the particular defendant is not a minor, an incapacitated person, an officer or agency of the State of Colorado, or in the military service. The affidavit must be executed by the attorney for the moving party on the basis of reasonable inquiry.

(d) An affidavit or affidavits or exhibits establishing the amount of damages and interest, if any, for which judgment is being sought. The affidavit may not be executed by the attorney for the moving party. The affidavit must be executed by a person with knowledge of the damages and the basis therefor.

(e) If attorney fees are requested, an affidavit that the defendant agreed to pay attorney fees or that they are provided by statute; that they have been paid or incurred; and that they are reasonable. The attorney for the moving party may execute the affidavit setting forth those matters listed in or required by Colorado Rule of Professional Conduct 1.5.

(f) through (g) [No Change.]

(1) The name of the party or parties to whom the judgment is to be granted;

(2) The name of the party or the parties against whom judgment is being taken;

(3) Venue has been considered and is proper;

(4) When there are multiple parties against whom judgment is taken, whether the relief is intended to be a joint and several obligation;

(5) Where multiple parties are involved, language to comply with C.R.C.P. 54(b), if final judgment is sought against less than all the defendants;

(6) The principal amount, interest and attorney’s fees, if applicable, and costs which shall be separately stated.

2. [No Change.]

3. If the party against whom default judgment is sought is in the military service, or his status cannot be shown, the court shall require such additional evidence or proceeding as will protect the interests of such party in accordance with the Service Member Civil Relief Act (SCRA), 50 USC § 520, including the appointment of an attorney when necessary. The appointment of an attorney shall be made upon application of the moving party, and expense of such appointment shall be borne by the moving party, but taxable as costs awarded to the moving party as part of the judgment except as prohibited by law.

4. [No Change.]

Committee Comment

This Practice Standard was needed because neither C.R.C.P. 55, nor any local rule specified the elements necessary to obtain a default judgment and each court was left to determine what was necessary. One faced with the task of attempting to obtain a default judgment usually found themselves making several trips to the courthouse, numerous phone calls and redoing needed documents several times. The Practice Standard is designed to minimize both court and attorney time. The Practice Standard sets forth a standardized check list which designates particular items needed for obtaining a default judgment. For guidance on affidavits, see C.R.C.P. 108. See also Section 13-63-101, C.R.S., concerning affidavits and requirements by the court.

Section 1-15. Determination of Motions

1. Briefs; When Required; Time for Serving and Filing —Length. Except motions during trial or where the court deems an oral motion to be appropriate, any motion involving a contested issue of law shall be supported by a recitation of legal authority incorporated into the motion except for a motion pursuant to C.R.C.P. 56. Except for electronic filings made pursuant to Section 1-26 of this Rule, the original and one copy of all motions and briefs shall be filed with the court and a copy served as required by law. The responding party shall have 15 days or such lesser or greater time as the court may allow in which to file a response. The moving party shall have 10 days or such greater or lesser time as the court may allow to file a reply . Motions or briefs in excess of 10 pages in length, exclusive of tables and appendices, are discouraged.

2. through 7. [No Change.]

8. Duty to Confer. Moving counsel shall confer with opposing counsel before filing a motion. The motion shall, at the beginning, contain a certification that the movant in good faith has conferred with opposing counsel about the motion. If the relief sought by the motion has been agreed to by the parties or will not be opposed, the court shall be so advised in the motion. If no conference has occurred, the reason why shall be stated.

9. Unopposed Motions. All unopposed motions shall be so designated in the title of the motion.

Committee Comment [No Change.]

Section 1-16 (Repealed and Readopted)
Preparation of Orders and Objections as to Form

1. When directed by the court, the attorney for the prevailing party or such attorney as the court directs shall file and serve a proposed order within 10 days of such direction or such other time as the court directs. Prior to filing the proposed order, the attorney shall submit it to all other parties for approval as to form. The proposed order shall be timely filed even if all parties have not approved it as to form. A party objecting to the form of the proposed order as filed with court shall have 5 days after service of the proposed order to file and serve objections and suggested modifications to the form of the proposed order.

2. Alternatively, when directed by the court, the attorney for the prevailing party or such attorney as the court directs shall file and serve a stipulated order within 10 days after the ruling, or such other time as the court directs. Any matter upon which the parties cannot agree as to form shall be designated in the proposed order as "disputed." The proposed order shall set forth each party’s specific alternative proposal for each disputed matter.

3. Objecting, proposing modification or agreeing to the form of a proposed order or stipulated order, shall not affect a party’s rights to appeal the substance of the order.

Section 1-17 through 1-19 [No Change.]

Section 1-20. Size and Format of Documents

All court documents shall be prepared in 8-1/2" x 11" format with black type or print and conform to the format, and spacing requirements specified in C.R.C.P. 10(d). Except documents filed by E-Filing or facsimile copy, all court documents shall be on recycled white paper. Any form required by these rules may be reproduced by word processor or other means, provided that the reproduction substantially follows the format of the form and indicates the effective date of the form which it reproduces

Committee Comment

This standard draws attention to the requirements of C.R.C.P. 10(d) pertaining to paper size, paper quality, format and spacing of court documents. Color of paper and print requirements for documents not filed by E-Filing or facsimile copy were made necessary because colors other than black and white create photocopying and microfilming difficulties. Provision is also made to clarify that forms reproduced by word processor are acceptable if they follow the format of the form and state the effective date of the form which it reproduces.

Section 1-21. Court Transcripts

1. A party requesting a transcript shall arrange for preparation of the transcript directly with the reporter, or if the session or proceeding was recorded by mechanical or electronic means, the courtroom clerk. Where a transcript is to be made a part of the record on appeal, a party shall request preparation of the transcript by reference in the Designation of Record and by direct arrangement with the court reporter or courtroom clerk as provided herein.

2. [No Change.]

3. The transcript shall be signed and certified by the person preparing the transcript. A transcript lodged with the court shall not be removed from the court without court order except when transmitted to the appellate court.

Committee Comment [No Change.]

Section 1-22 [No Change.]

Section 1-23 [Repealed and Readopted]
Bonds in Civil Actions

1. Bonds Which Are Automatically Effective Upon Filing With The Court.

The following bonds are automatically effective upon filing with the clerk of the court:

(a) Cash bonds in the amount set by court order, subsection 3 of this rule, or any applicable statute.

(b) Certificates of deposit issued by a bank chartered by either the United States government or the State of Colorado, in the amount set by court order, subsection 3 of this rule, or any applicable statute. The certificate of deposit shall be issued in the name of the clerk of the court and payable to the clerk of the court, and the original of the certificate of deposit must be deposited with the clerk of the court.

(c) Corporate surety bonds issued by corporate sureties presently authorized to do business in the State of Colorado in the amount set by court order, subsection 3 of this rule, or any applicable statute. A power of attorney showing the present or current authority of the agent for the surety signing the bond shall be filed with the bond.

2. Bonds Which Are Effective Only Upon Entry of an Order Approving the Bond.

(a) Letters of credit issued by a bank chartered by either the United States government or the State of Colorado, in the amount set by court order, subsection 3 of this rule, or any applicable statute. The beneficiary of the letter of credit shall be the clerk of the district court. The original of the letter of credit shall be deposited with the clerk of the court.

(b) Any Other Proposed Bond.

3. Amounts of Bond.

(a) Supersedeas Bonds. Unless the court otherwise orders, or any applicable statute directs a higher amount, the amount of a supersedeas bond to stay execution of a money judgment shall be 125% of the total amount of the judgment entered by the court (including any prejudgment interest, costs and attorneys fees awarded by the court). The amount of a supersedeas bond to stay execution of a non-money judgment shall be determined by the court. Nothing in this rule is intended to limit the court’s discretion to deny a stay with respect to non-money judgments. Any interested party may move the trial court (which shall have jurisdiction not withstanding the pendency of an appeal) for an increase in the amount of the bond to reflect the anticipated time for completion of appellate proceedings or any increase in the amount of judgment.

(b) Other Bonds. The amounts of all other bonds shall be determined by the court or by any applicable statute.

4. Service of Bonds Upon All Parties of Record. A copy of all bonds or proposed bonds filed with the court shall be served on all parties of record in accordance with C.R.C.P. 5(b).

5. No Unsecured Bonds. Except as expressly provided by statute, and except with respect to appearance bonds, no unsecured bond shall be accepted by the court.

6. Objections to Bonds. Any party in interest may file an objection to any bond which is automatically effective under subsection 1 of this rule or to any proposed bond subject to subsection 2 of this rule. A bond, which is automatically effective under subsection 1 remains in effect unless the court orders otherwise. Any objections shall be filed not later than 15 days after service of the bond or proposed bond except that objections based upon the entry of any amended or additional judgment shall be made not later than 15 days after entry of any such amended or additional judgment.

Committee Comment

The Committee is aware that issues have arisen regarding the effective date of a bond, and thus the effectiveness of injunction orders and other orders which are conditioned upon the filing of an acceptable bond. Certain types of bonds are almost always acceptable and thus, under this rule, are automatically effective upon filing with the Court subject to the consideration of timely filed objections. Other types of bonds may or may not be acceptable and should not be effective until the Court determines the sufficiency of the bond. The court may permit property bonds upon such conditions as are appropriate to protect the judgment creditor (or other party sought to be protected). Such conditions may include an appraisal by a qualified appraiser, information regarding liens and encumbrances against the property, and title insurance.

This rule also sets the presumptive amount of a supersedeas bond for a money judgment. The amount of a supersedeas bond for a non-money judgment must be determined in the particular case by the court and this rule is not intended to affect the court’s discretion to deny a supersedeas bond in the case of a non-money judgment.

Section 1-24 through 1-25 [No Change.]

Section 1-26 [Repealed and Readopted]
Electronic Filing and Service System

1. Definitions:

(a) Document: A pleading, motion, writing or other paper filed or served under the E-System.

(b) E-Filing/Service System: The E-Filing/Service System ("E-System") approved by the Colorado Supreme Court for filing and service of documents via the Internet through the Court-authorized E-System provider.

(c) Electronic Filing: Electronic filing ("E-Filing") is the transmission of documents to the clerk of the court, and from the court, via the E-System.

(d) Electronic Service: Electronic service ("E-Service") is the transmission of documents to any party in a case via the E-System. Parties who have subscribed to the E-System have agreed to receive service, other than service of a summons, via the E-System.

(e) E-System Provider: The E-Service/E-Filing System Provider authorized by the Colorado Supreme Court.

(f) S/ Name: A symbol representing the signature of the person whose name follows the "S/" on the electronically or otherwise signed form of the E-Filed or E-Served document.

2. Types of Cases Applicable: E-Filing and E-Service may be used for certain cases filed in the courts of Colorado as the service becomes available. The availability of the E-System will be determined by the Colorado Supreme Court and announced through its web site http://www.courts.state.co.us/supct/supct.
htm and through published directives to the clerks of the affected court systems. E-Filing and E-Service may be mandated pursuant to Subsection 13 of this Practice Standard 1-26.

3. To Whom Applicable:

(a) Attorneys licensed to practice law in Colorado may register to use the E-System. Any attorney so registered may enter an appearance pursuant to Rule 121, Section 1-1, through E-Filing. In districts where E-Filing is mandated pursuant to Subsection 13 of this Practice Standard 1-26, attorneys must register and use the E-System.

(b) Where the system and necessary equipment are in place to permit it, pro se parties and government entities and agencies may register to use the E-System.

4. Commencement of Action—Service of Summons: Cases may be commenced under C.R.C.P. 3 by E-Filing the initial pleading. Service of a summons shall be made in accordance with C.R.C.P. 4.

5. E-Filing—Date and Time of Filing: Documents filed in cases on the E-System may be filed under C.R.C.P. 5 through an E-Filing. A document transmitted to the E-System Provider by 11:59 p.m. Colorado time shall be deemed to have been filed with the clerk of the court on that date.

6. E-Service—When Required—Date and Time of Service: Documents submitted to the court through E-Filing shall be served under C.R.C.P. 5 by E-Service. A document transmitted to the E-System Provider for service by 11:59 p.m. Colorado time shall be deemed to have been served on that date. E-Service shall entitle the party being served an additional 3 days as provided by C.R.C.P. 6(e).

7. Filing Party to Maintain the Signed Copy—Paper Document Not to Be Filed–Duration of Maintaining of Document: A printed or printable copy of an E-Filed or E-Served document with original or scanned signatures shall be maintained by the filing party and made available for inspection by other parties or the court upon request, but shall not be filed with the court. When these rules require a party to maintain a document, the filer is required to maintain the document for a period of two years after the final resolution of the action, including the final resolution of all appeals.

8. Documents Requiring E-Filed Signatures: For domestic relations decrees, separation agreements and parenting plans, original signature pages bearing the attorneys’, parties’, and notaries’ signatures must be scanned and E-Filed. For all other E-Filed and E-Served documents, signatures of attorneys, parties, witnesses, notaries and notary stamps may be in S/ Name typed form to satisfy signature requirements, once the necessary signatures have been obtained on a paper form of the document. For probate of a will, the original must be lodged with the court.

9. C.R.C.P. 11 Compliance: Use of the E-System by an attorney constitutes compliance with the signature requirement of C.R.C.P. 11. An attorney using the E-System shall be subject to all other requirements of Rule 11.

10. Documents under Seal: A motion for leave to file documents under seal may be E-Filed. Documents to be filed under seal pursuant to an order of the court may be E-Filed at the direction of the court; however, the filing party may object to this procedure.

11. Transmitting of Orders, Notices and Other Court Entries: Beginning January 1, 2006, courts shall distribute orders, notices, and other court entries using the E-System in cases where E-Filings were received from any party.

12. Form of E-Filed Documents: C.R.C.P. 10 shall apply to E-Filed documents. A document shall not be transmitted to the clerk of the court by any other means unless the court at any later time requests a printed copy.

13. E-Filing May be Mandated: With the permission of the Chief Justice, a chief judge may mandate E-Filing within a county or judicial district for specific case classes or types of cases. A judicial officer may mandate E-Filing and E-Service in that judicial officer’s division for specific cases, for submitting documents to the court and serving documents on case parties. Where E-Filing is mandatory, the court may thereafter accept a document in paper form and the court shall scan the document and upload it to the E-Service Provider. After notice to an attorney that all future documents are to be E-Filed, the court may charge a fee of $50 per document for the service of scanning and uploading a document filed in paper form. Where E-Filing and E-Service are mandatory, the Chief Judge or appropriate judicial officer may exclude pro se parties from mandatory E-Filing requirements.

14. Relief in the Event of Technical Difficulties:

(a) Upon satisfactory proof that E-Filing or E-Service of a document was not completed because of: (1) an error in the transmission of the document to the E-System Provider which was unknown to the sending party; (2) a failure of the E-System Provider to process the E-Filing when received, or (3) other technical problems experienced by the filer or E-System Provider, the court may enter an order permitting the document to be filed nunc pro tunc to the date it was first attempted to be sent electronically.

(b) Upon satisfactory proof that an E-Served document was not received by or unavailable to a party served, the court may enter an order extending the time for responding to that document.

15. Form of Electronic Documents

(a) Electronic document format, size and density: Electronic document format, size, and density shall be as specified by Chief Justice Directive # 05-02, as amended.

(b) Multiple Documents: Multiple documents (including proposed orders) may be filed in a single electronic filing transaction. Each document (including proposed orders) in that filing must bear a separate document title.

(c) Proposed Orders: Proposed orders shall be E-Filed in editable format. Proposed orders that are E-Filed in a non-editable format shall be rejected by the Court Clerk’s office and must be resubmitted.

Committee Comment

The Court authorized service provider for the program is Lexis Nexis File & Serve (www.lexisnexis.com/fileandserve).

"Editable Format" is one which is subject to modification by the court using standard means such as Word or WordPerfect format.

C.R.C.P. 77 provides that courts are always open for business. This Practice Standard is intended to comport with that rule.

Amended and adopted by the Court, En Banc October 20, 2005 effective January 1, 2006.

By the Court:

Justice Nancy E. Rice
Colorado Supreme Court

______________________________________

Rule Change 2005(14)
Appendix to Chapters 1 to 17A
The Colorado Rules of Civil Procedure

Forms
(See Rule 84)

Form 36. C.R.C.P. [JDF Form 83]. Notice of Withdrawal as Attorney of Record
Adopted
Complete form can be accessed on the Court’s website: http://www.courts.state.co.us.

______________________________________________________________________________

United States Bankruptcy Court
For the District of Colorado

In the Matter of Adoption of Interim Bankruptcy Rules
General Procedure Order Number 2005-6

Whereas, on April 20, 2005 the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the Act) was enacted into law; and

Whereas, most provisions of the Act are to be effective on October 17, 2005; and

Whereas, the Advisory Committee on Bankruptcy Rules has prepared Interim Rules designed to implement the substantive and procedural changes mandated by the Act; and

Whereas, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has also approved these Interim Rules and recommends the adoption of the Interim Rules to provide uniform procedures for implementing the Act; and

Whereas, the general effective date of the Act has not provided sufficient time to promulgate rules after appropriate public notice and an opportunity for comment; and

Whereas, the Executive Committee of the Judicial Conference of the United States on August 11, 2005 approved Official Forms;

IT IS THEREFORE ORDERED, pursuant to 28 U.S.C. § 2071, Rule 83 of the Federal Rules of Civil Procedure and Rule 9029 of the Federal Rules of Bankruptcy Procedure, that effective on or after the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,

1. the Interim Rules are adopted in their entirety without change;

2. except for Interim Form 13B, Order on Debtor’s Application for Waiver of the Chapter 7 Filing Fee, the Interim Forms are also adopted in their entirety without change;

3. for cases and proceedings not governed by the Act, the Federal Rules of Bankruptcy Procedure, the Local Bankruptcy Rules and Forms, and General Procedure Orders of the Court, other than the Interim Rules, shall continue to apply; and

4. the Interim Rules shall remain in effect until further notice.

Dated: October 1, 2005

By the Court:

Sidney B. Brooks, Chief Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Howard R. Tallman, Judge
Michael E. Romero, Judge

______________________________________________________________________________

Colorado Judicial Department
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., #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: http://www.courts.state.co.us/supct/directives/supctdirectives.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 due to space restrictions. To obtain a copy of attachments, contact: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203.

___________________

Chief Justice Directive 85-30
Supreme Court of Colorado, Office of the Chief Justice
Order Establishing the Judicial Advisory Council
Amended

In order to expand and enhance the planning capability of the Colorado Judicial system and to develop effective methods of improving and administering that system more effectively, the Chief Justice of the Colorado Supreme Court hereby establishes the Judicial Advisory Council of Colorado.

Purposes

The general purpose of the Judicial Advisory Council shall be:

– to study the needs of the judicial system;

– to develop an intermediate and long-range plan for the judicial system;

– to monitor the evolution of the Vision 2020 recommendations and resulting projects;

– to identify particular problems in the judicial system and to recommend solutions;

– to recommend ways of improving the judicial system and to suggest appropriate measures to achieve the recommended improvements;

– to provide policy guidance to the Chief Justice with respect to the programs and activities that might be appropriately undertaken by the judicial system;

– to coordinate planning efforts among groups and associations and governmental bodies concerned with improving the judicial system.

Responsibilities

In keeping with its general purposes, the Judiciary Advisory Council shall:

– periodically report to the Chief Justice describing needs and problems of the judicial system and suggesting methods for improving the judicial system and its administration;

– serve as an advisory board to the Chief Justice concerning proposals or plans affecting the administration of justice in the state of Colorado

– conduct reviews of Vision 2020 recommendations adopted by the Supreme Court and develop plans for accomplishing the objectives of these recommendations;

– provide periodic reports to the Chief Justice concerning recommendations for improving the judicial system and its administration and any proposed rules or legislative changes the Council recommends;

– advise the Chief Justice on the establishment of the Colorado Center for Justice;

– plan for commemoration of the 40th Anniversary of Colorado’s Judicial Merit Selection System;

– perform such services and functions as may be reasonably implied by the general statement of purposes and responsibilities set forth above.

Organization and Membership

The members of the Judicial Advisory Council shall be appointed by the Chief Justice for staggered terms of one, two and three years. Upon expiration of the initial terms, all terms shall be for three years. The Chief Justice shall determine which members are appointed for initial one and two-year terms. Membership shall include the following:

– one Supreme Court Justice who shall chair the council;

– one Court of Appeals Judge;

– three District Court Judges;

– one Juvenile Court Judge or judge serving in a juvenile division of a District Court;

– two County Judges;

– one member of the State Court Administrator’s Office;

– one Probation Officer;

– one District Court Administrator;

– one Clerk of a County or District Court

– one member of the Colorado State Public Defender’s Office;

– one District Attorney;

– one University of Colorado Law School representative;

– one University of Denver Law School representative;

– one member of Attorney Regulation;

– one member of the Attorney General’s Office;

– one member of the Access to Justice Commission;

– one member of the Colorado Bar Association;

– not less than six nor more than nine members who shall be appointed from the public at large.

In no event shall the total membership of the Commission exceed twenty-nine members.

Officers

The Supreme Court Justice serving as chairperson of the Council shall preside at all meetings and be responsible to the Chief Justice for the Council’s performance of all duties and functions assigned to it. The chairperson shall appoint a vice-chairperson from the membership of the Council. The vice-chairperson shall have the authority of the chairperson when the chairperson is unable to act or when requested to act by the chairperson or the Chief Justice.

General Provisions

The chairperson shall have the power to appoint committees for such purposes and to perform such duties as the chairperson may determine.

Any vacancy in the membership of the Council shall be filled by the appointment of the Chief Justice in accordance with the membership qualifications stated above and for the balance of the unexpired term of the vacant position.

Regular meetings of the Judicial Advisory Council shall be held at least quarterly each year. Special meetings may be held upon the call of the chair.

The Council shall be assisted in its works by the Planning and Analysis Division of the State Court Administrator’s Office, which shall provide such information and services as may be required by the Council. The Council is authorized to adopt rules of procedure for its meetings.

October 6, 2005.

Chief Justice Mary J. Mullarkey,
Colorado Supreme Court

___________________

Chief Justice Directive 04-04
Supreme Court of Colorado, Office of the Chief Justice
Appointment of State-Funded Counsel in
Criminal and Juvenile Delinquency Cases
Amended

I. Statutory Authority

A. The federal and state constitutions provide that an accused person has the right to be represented by counsel in criminal prosecutions. This constitutional right has been interpreted to mean that counsel will be provided at state expense for indigent persons in all cases in which actual incarceration is a likely penalty, unless incarceration is specifically waived as a sentencing option pursuant to § 16-5-501, C.R.S., or Alabama v. Shelton, 535 U.S. 654 (2002), or there is a waiver of the right to counsel at the advisement.

B. State funds are appropriated to the Office of the Public Defender to provide for the representation of indigent persons in criminal and juvenile delinquency cases pursuant to § 21-1-103, C.R.S.

C. State funds are appropriated to the Office of Alternate Defense Counsel to provide for the representation of indigent persons in criminal and juvenile delinquency cases in which the Public Defender declares a conflict of interest pursuant to § 21-2-101, C.R.S.

D. Section 19-2-706(2), C.R.S., provides for the representation of juveniles in delinquency cases in which (1) the parent or legal guardian refuses to retain counsel for the juvenile, or (2) the court finds such representation is necessary to protect the interest of the juvenile or other parties involved in the case. When such an appointment is necessary and the juvenile does not qualify for representation by the Public Defender or the Office of Alternate Defense Counsel, the Judicial Department will pay for the costs of counsel and investigator services. However, reimbursement to the state may be ordered, as outlined in this directive.

II. Indigency Determination

A. A defendant in a criminal case or a juvenile’s parent or legal guardian in a delinquency case must be indigent to be represented by the Public Defender or by Alternate Defense Counsel, in cases of Public Defender conflict, at state expense. Such person(s) must also be indigent or otherwise qualify for court-appointed counsel as described in section III for the court to authorize the payment of certain costs/expenses. Any defendant in a criminal case, or the juvenile’s parent, guardian, or legal custodian in a delinquency case, requesting court-appointed representation on the basis of indigency must complete Form JDF208, Application for Court-Appointed Counsel or Guardian ad Litem, signed under oath.

B. An indigent person is one whose financial circumstances fall within the fiscal standards established by the Supreme Court (Attachments A, B, and C).

C. Pursuant to § 21-1-103 (3), C.R.S., the determination of indigency shall be made by the Public Defender subject to review by the court. Therefore, all persons seeking court-appointed representation shall complete form JDF208 and shall first apply with the Office of the Public Defender. The Public Defender will determine if the defendant, or a juvenile’s parent or legal guardian in a delinquency case, is eligible for representation in accordance with the fiscal standards.

D. If the Public Defender finds the person to be ineligible and denies representation, the court shall determine the following: 1) whether the court disagrees with the Public Defender’s evaluation and determination, and the Public Defender should be appointed; or 2) whether the person is not eligible for state-paid representation. The court may use the judicial district’s collection investigator(s) to provide a recommendation to the court relative to the above determinations, if additional analysis is needed.

III. Guidelines for Appointment of Counsel

A. Appointment of Public Defender

1. Appointments on the Basis of Indigency: To be eligible for representation by the Public Defender (PD), a defendant, or a juvenile’s parent or legal guardian in a delinquency case, must be indigent, as defined above and determined by the PD, subject to review by the court. If such person is indigent, the court shall appoint the PD, except as otherwise provided in paragraph III.B. If the juvenile’s parent or legal guardian is indigent and also are found to have good cause to refuse to retain counsel due to the fact that a family member is a victim or there is another irreconcilable conflict, the court shall appoint the PD, except as otherwise provided in paragraph III.B.

2. Appointments to Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to representation by the public defender to assist in motions under Rule 35 if the court does not deny the motion under Crim. P. 35(C)(3)(IV). If another attorney represents the defendant and withdraws, the PD may be appointed if the defendant is indigent and there is no conflict with such representation.

3. Appointments for Appeals:

a) The court or the PD shall reassess the indigency status of a defendant who requests court-appointed counsel, as described in section II.A., for purposes of appeal.

b) When an indigent person has an Alternate Defense Counsel attorney for the trial of a criminal or delinquency case, the PD shall be appointed to represent the defendant on appeal unless the court determines that the PD has a conflict of interest.

B. Appointment of Alternate Defense Counsel

The Office of Alternate Defense Counsel (OADC) shall maintain a list of qualified attorneys for use by the courts in making appointments. Upon appointment of Alternate Defense Counsel attorney, the clerk shall notify the OADC’s designee. No more than one attorney may be appointed as counsel for an indigent person except in specific exceptional circumstances. Accordingly, upon specific written request by counsel for appointment of an additional attorney to assist in the defense of an indigent person, the OADC may approve appointment of an additional attorney for good cause shown. Such requests should be made in writing and directed to the OADC. Alternate Defense Counsel shall be appointed under the following circumstances:

1. Conflict-of-Interest Appointments: The Public Defender shall file a motion or otherwise notify the court to withdraw in all cases in which a conflict of interest exists. The court shall appoint an Alternate Defense Counsel attorney to represent indigent persons in cases in which the court determines that the Public Defender has a conflict of interest and removes the Public Defender from the case. The OADC is responsible by statue to handle all Public Defender conflict cases. Therefore, the OADC shall establish policies and procedures to cover instances when Alternate Defense Counsel has a conflict.

The court may appoint counsel in a juvenile delinquency case if the parent or guardian refuses to retain counsel, pursuant to § 19-2-706(2)(b), C.R.S. If the juvenile’s parent or legal guardian is indigent and also are found to have good cause to refuse to retain counsel due to the fact that a family member is a victim or there is another irreconcilable conflict, and the person would be eligible for Public Defender representation except that a conflict of interest exists, the court shall enter a written order stating this finding and shall appoint an Alternate Defense Counsel attorney.

2. Appointments to Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to conflict-free counsel to assist in motions under Rule 35 if the court does not deny the motion under Crim. P. 35(C)(3)(IV) and if the PD notifies the court that a conflict of interest exists. The provisions of III.B.1. above shall be followed in appointing an Alternate Defense Counsel attorney.

3. Appointments for Appeals: If the court determines that the Public Defender has a conflict of interest, it shall set forth in a written order the reason for the conflict of interest and the court shall appoint an Alternate Defense Counsel attorney to represent the defendant.

C. Appointment of Other Counsel

The Clerk of Court or the District Administrator shall maintain a list of qualified private attorneys from which appointments shall be made under this section. Upon appointment, the Clerk of Court or the District Administrator shall provide the attorney with a written order of appointment stating the reason for appointment and date of the appointment. Private counsel appointed under the following circumstances will be paid by the Judicial Department as established in this directive:

1. Counsel in Delinquency Cases (non-indigent): The court may appoint counsel in a delinquency case if it deems representation by counsel is necessary to protect the interest of the juvenile or of other parties or if the parent or guardian refuses to retain counsel, pursuant to § 19-2-706(2), C.R.S. If an appointment of counsel is necessary for these reasons and the juvenile does not qualify for representation by the Public Defender or Alternate Defense Counsel as described above, the court may appoint private counsel which will be paid by the Judicial Department. The court shall order the parent or guardian to reimburse the court for the costs of counsel, and if applicable, investigator appointments, unless the court finds there is good cause for the refusal to retain counsel, such as, a family member is a victim.

2. Appointments of Advisory Counsel: There is no constitutional right to the appointment of advisory counsel to assist a pro se defendant. However, pursuant to case law, the court may appoint private advisory counsel either 1) at the request of an indigent pro se defendant, or 2) over the objections of an indigent pro se defendant to ensure orderly proceedings and to provide assistance to the defendant. If the court appoints private advisory counsel for an indigent pro se defendant in a criminal case, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to advise pro se defendants.

3. Appointments of Contempt Counsel: Private counsel may be appointed for an indigent person facing contempt charges in criminal or delinquency cases when punitive sanctions may be imposed, in accordance with Rule 107(d) of the Colorado Rules of Civil Procedure. If the court appoints private counsel to represent an indigent party for contempt charges in a criminal or delinquency case, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent clients for the sole purpose of addressing contempt charges. Costs and reasonable attorney’s fees in connection with the contempt proceeding may be assessed at the discretion of the court.

4. Appointments of Counsel for Grand Jury Witnesses: A witness subpoenaed to appear and testify before a grand jury is entitled to assistance of counsel pursuant to § 16-5-204, C.R.S. For any person financially unable to obtain adequate assistance, counsel may be appointed at state expense. Pursuant to case law, no attorney who provides counsel in the grand jury room may represent more than one witness in a single investigation without grand jury permission. If the court appoints counsel for an indigent witness before a grand jury, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent grand jury witnesses.

5. Appointments of Counsel for Witnesses: An indigent witness subpoenaed to appear and testify in a court hearing may be appointed counsel if the witness requests counsel and the judge determines the appointment of counsel is necessary to assist the witness in asserting his or her privilege against self-incrimination. If the court appoints counsel for an indigent witness for this purpose, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent a witness.

IV. Guidelines for Payment

A. Public Defender Costs

The Public Defender’s Office has attorneys on staff (Deputy Public Defenders) to accept appointments. Court costs and other expenses incurred by the Public Defender shall be billed to the Public Defender’s Office in accordance with that office’s policies and procedures.

B. Office of Alternate Defense Counsel Costs

Claims for payment of counsel and investigator fees and expenses shall be filed with the OADC. A schedule of maximum hourly rates and maximum total fees for OADC state-funded counsel and investigators is shown in Attachment D(1). Court costs incurred by Alternate Defense Counsel attorneys and investigators shall be billed to the OADC in accordance with that office’s policies and procedures.

C. Other Court-Appointee’s Costs

The fees and costs associated with appointments described under section III.C. shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made under contracts developed by the Judicial Department or on an hourly fee basis. A schedule of maximum hourly rates and maximum total fees for state-funded counsel and investigators is shown in Attachment D(2). Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON computer system for payment and tracking purposes. Claims for payment on hourly appointments shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees, JDF207. Claims for payment on contract appointments shall be filed with the State Court Administrator’s Office in the format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel and Investigators Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment E) and shall follow the Court-Appointed Counsel and Investigators Procedures for Payment of Fees and Expenses (Attachment F). All payment requests shall be reviewed by the District Administrator or his/her designee, to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete claims will be returned to the attorney or investigator with instructions regarding the additional information needed to process the payment.

2. Court Costs: Costs incurred by counsel shall be pre-approved, billed to and paid by the appointing court. Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, 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 the Mandated Costs chapter of the Judicial Department’s Fiscal Policies and Procedures manual. Out-of-state investigation travel expenses incurred by the appointee shall be submitted to the court using form JDF207 with the appropriate travel receipts attached.

3. Investigator Appointments: If a private appointed attorney paid by the Judicial Department requires the services of an investigator, he or she shall submit a motion to the court requesting authority to hire an investigator. The court shall authorize such appointments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of investigator fees and expenses that may be incurred, not to exceed the maximum fees set forth in Attachment D (2). The Judicial Department shall pay for investigator services in these instances, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to provide and pay for these services.

D. Court Costs, Expert Witness Fees and Investigator Fees of Indigent Party Not Appointed Counsel

In certain circumstances, a defendant’s court costs, expert witness fees, and investigator fees may be paid by the Judicial Department even though the defendant is not being represented by state-funded counsel (i.e., Public Defender; Alternate Defense Counsel; Judicial-paid counsel). Payment by the local court is appropriate if any of the following statements apply:

a) The defendant is indigent and proceeding pro se;

b) The defendant is indigent and receiving pro bono, private counsel;

c) The defendant is receiving private counsel but becomes indigent during the course of the case, and the court has determined that there are insufficient funds to pay for court costs and that it would be too disruptive to the proceedings to assign the Public Defender or Alternate Defense Counsel to the case.

Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. An investigator appointed by the court under this section shall be paid in accordance with the rates and maximum fees established in Attachment D(2). A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The Court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01.

V. Reimbursement to the State

If the court determines, at any time before or after the appointment of state-funded counsel, that the person has the ability to pay all or a part of the costs for representation or other expenses/costs, the court shall enter a written order that the person reimburse all or a part of said costs. Such order shall constitute a final judgment including costs of collection and may be collected by the state in any manner authorized by law. The court shall review the person’s indigency status at the time of sentencing or case disposition and notify the defendant or responsible party that attorney fees and expenses and other costs are being assessed in an amount to be determined once all bills have been submitted. The financial review may be accomplished with the use of the Collections Investigator. If the defendant is placed on probation, the court may require payment for the costs of representation as one of the conditions of probation.

If the court appoints counsel for a juvenile in a delinquency case because of the refusal of the parent, guardian, or other legal custodian to retain counsel for the juvenile, the court shall order the responsible party(ies) (unless the county department of social services or the Department of Human Services is the responsible party) to reimburse the state for the costs of counsel unless the court finds there is good cause for the refusal to retain counsel pursuant to § 19-2-706(2)(b), C.R.S.

Collection of fees and costs related to court-appointed representation may be referred to the Collections Investigator, a private collector with whom the Judicial Department has contracted, or to the Central Collections Service in the State Department of Personnel and Administration.

Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel contract rate, or at the hourly cost of providing legal representation by the Public Defender or Alternate Defense Counsel for the number of hours reported by counsel to the court. Other costs incurred for the purposes of prosecution of the case may also be assessed, including, for example, costs for transcripts, witness fees and expenses, language interpreter fees, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as hearing interpreter fees, may not be assessed.

VI. Complaints

A. All written complaints and documentation of verbal complaints regarding the performance of any state-paid counsel shall be submitted to the district administrator.

B. All complaints shall be referred by the district administrator to the appropriate agency or person. Public Defender complaints shall be submitted to the Public Defender’s Office. Complaints against an Alternate Defense Counsel attorney shall be submitted to the Alternate Defense Counsel Office. The district administrator will forward all other complaints to the presiding judge or, if appropriate, the chief judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the district administrator will forward the complaint to another judge designated for that purpose.

C. If the complaint involves an attorney and the reviewing judge or district administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or district administrator and the State Court Administrator of the final outcome of the investigation.

D. Copies of all written complaints and documentation of verbal complaints regarding state-paid counsel, shall be forwarded by the district administrator to the State Court Administrator’s Office. The State Court Administer may investigate a complaint and take action he believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include terminating the contract with the attorney.

VII. Sanctions

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring 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. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

October 31, 2005.

 

Chief Justice Mary J. Mullarkey
Colorado Supreme Court

For more information about CJD 04-04 and corresponding Attachments, contact Gaylene Wagoner at (303) 837-3641 or gaylene.wagoner@judicial.state.co.us.

___________________

Chief Justice Directive 04-05
Supreme Court of Colorado, Office of the Chief Justice

Appointment and Payment Procedures for Court-Appointed Counsel for Children and
Indigent Persons in Titles 12, 14, 15, 19 (Dependency and Neglect Only), 22, 25, 27, and Guardians ad Litem, Child and Family Investigators and Court Visitors Paid by the State Court Administrator’s Office
Amended

The following policy is adopted to assist the administration of justice through

• the appointment of counsel for children and adults under Titles 12, 15, 19 (dependency and neglect only), 22, 25, and 27

• the appointment and training of guardians ad litem and court visitors appointed on behalf of wards or impaired adults in all cases and

• the appointment of non-attorney child and family investigators in the best interest of children pursuant to § 14-10-116.5, C.R.S.

This policy does not cover appointments made pursuant to Titles 16 and 18, nor appointments of counsel in juvenile delinquency matters pursuant to Title 19, nor appointments of guardians ad litem for minors, attorney child and family investigators and child’s legal representatives (Office of Child’s Representative (OCR) appointments). For information concerning criminal and juvenile delinquency appointments refer to Chief Justice Directive 04-04, and for state paid attorneys appointed in the best interest of children and paid by the OCR, refer to Chief Justice Directive 04-06.

I. Statutory Authority

A. The federal and state constitutions and various Colorado statutes provide authority for the appointment of counsel, guardians ad litem (GAL), child and family investigators, and court visitors in certain legal actions.

B. State funds are appropriated to the Judicial Department 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. Indigency Determination

A. The person for whom representation is requested or, in the case of children, the responsible party, must be indigent to qualify for court-appointed representation at state expense pursuant to Titles 14, 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.

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. Form JDF 208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27 and guardianship and protective proceeding cases under Title 15 in which the respondent refuses to or is unable to supply the necessary information, and cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to § 12-37.5-107(2)(b), C.R.S.

D. For appointments under Title 15 and some appointments under Title 25 where the court believes that the person needs the assistance of counsel and is unable to obtain counsel, the person for whom representation is requested or, in the case of children, the responsible party, need not be indigent to qualify for court-appointed representation at state expense.

E. 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. Guidelines for Appointment of Counsel, GAL (for Adults), Non-Attorney Child and Family Investigators and Court Visitor:

The Clerk of Court or the District Administrator shall maintain a list of qualified persons from which appointments will be made under this section. Upon appointment, the Clerk of Court or the District Administrator shall provide the appointee with a written order of appointment stating the reason for appointment and date of the appointment. 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 (including indigency status).

See Attachments B (form JDF209) and C (form JDF210).

A. Appointment of Counsel

Appointments may be made under contracts developed by the Judicial Department or on an hourly fee basis. 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. 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.

1.Appointment of Counsel for Respondent in Dependency and Neglect Proceedings: Counsel shall be appointed for an indigent parent or guardian in dependency and neglect proceedings as provided under Title 19, as amended.

2. Appointment of Counsel for Involuntary or Emergency Alcohol/Drug Commitment Proceedings: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 25, Article 1, as amended.

3. Appointment of Counsel for Care and Treatment of Mentally Ill: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 27, Article 10, as amended.

4. Appointment of Counsel for Probate, Trusts, and Fiduciaries: Counsel appointments to provide legal representation to eligible persons shall be in accordance with provisions under Title 15, Article 14, as amended.

5. Appointment of Counsel for a Juvenile:

a. Counsel may be appointed for a child in a truancy matter under Title 22 if adjudication is previously entered and the child is served with a contempt citation or if the court deems representation by counsel necessary to protect the interests of the child or other parties. Parties requesting counsel must complete form JDF 208 and a finding of indigence entered for the appointment of counsel at state expense. If the party is not qualified to have court-appointed representation at state expense, the court may order the responsible party(ies) to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel.

b. Counsel may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to § 12-37.5-107(2)(b), C.R.S. and Chapter 23.5 of the Colorado Rules of Civil Procedure ("Rules of Procedure for Judicial Bypass of Parental Notification Requirements").

6. Appointment of Counsel for Appeals: The trial court shall determine the need and statutory requirement for appointment of counsel on appeal. The court shall be under no obligation to appoint counsel in appeals where the sole issue for determination is the individual allocation of parental responsibilities between and among two parents. Where applicable, determinations of indigency should be in accordance with the procedure described in section II. The maximum total fee allowable on an appeal shall be in accordance with the maximum fees outlined in section IV, D. Requests for payment shall be filed on Form JDF 207 (Colorado Judicial Department Request and Authorization For Payment of Fees) with the appellate court and must contain a copy of the order appointing counsel to represent the indigent person on appeal. An appellate court judge, or designee, shall carefully review all requests for payment submitted to the court for approval.

B. Appointment of Guardians ad Litem (for Adults), and Non-Attorney Child and Family Investigators and Court Visitors.

The court may appoint a qualified person other than an attorney as a child and family investigator or court visitor when the appointment of an attorney is not mandated by statute. The court shall maintain a list of qualified persons to accept appointments as Guardians ad Litem ("GAL") court visitors and non-attorney child and family investigators from which the court will make appointments.

1. Appointment of GAL in Dependency and Neglect Case: 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.

2. Appointment of GAL in Trusts or Estates: In formal proceedings involving trusts or estates of decedents, protected persons, and in judicially supervised settlements pursuant to Title 15, a guardian ad litem may be appointed for an incapacitated person, unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation exists.

3. Appointment of GAL in a Civil Suit: A guardian ad litem may be appointed for an incompetent person who does not have a representative and who is a party to a civil suit.

4. Appointment of GAL for Emergency or Involuntary Commitment of Alcoholics or Drug Abusers: 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.

5. Appointment of Non-Attorney Child and Family Investigator: A non-attorney child and family investigator may be appointed in a domestic relations case pursuant to § 14-10-116.5, C.R.S. For appointment of an attorney child and family investigator, see applicable guidelines implemented through the Office of the Child’s Representative. The court shall enter an order for costs, fees, and disbursements against any or all of the parties. When a responsible party is indigent, the state will pay the non-attorney child and family investigator at the rates established in section IV, C. and IV, D. for the portion of authorized fees and expenses for which the indigent party is responsible.

6. Appointment of Court Visitor: A court visitor shall be appointed for a respondent pursuant to Title 15.

IV. Guidelines for Payment of Counsel, Guardians ad Litem, Non-Attorney Child and Family Investigators, and Court Visitors

A. The fees and costs associated with appointments described under this directive shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made under contracts developed by the Judicial Department or on an hourly fee basis. Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON computer system for payment and tracking purposes. Claims for payment on hourly appointments shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees, JDF207. Claims for payment on contract appointments shall be filed with the State Court Administrator’s Office in the format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel, Guardians ad Litem, Non-Attorney Child and Family Investigators and Court Visitors Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment D) and shall follow the Court Appointees and Investigators Procedures for Payment of Fees and Expenses (Attachment E). All payment requests shall be reviewed by the District Administrator or his/her designee, to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete claims will be returned to the attorney or other appointee with instructions regarding the additional information needed to process the payment.

2. Court Costs, Expert Witness Fees and Investigator Fees: Costs incurred by counsel shall be pre-approved and paid by the appointing court. Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives/Orders, and other policies and procedures of the Judicial Department, including the Mandated Costs chapter of the Judicial Department’s Fiscal Policies and Procedures manual. A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01. Out-of-state investigation travel expenses incurred by the appointee shall be submitted to the court using form JDF207 with the appropriate travel receipts attached.

B. The Department contracts with individual attorneys for court-appointed representation on a state fiscal-year basis (July 1 through June 30) at rates established by the Department. Claims for payment by attorneys 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 in Attachment E.

C. For appointments that are not made under a contractual agreement, the following maximum hourly rates paid are established by Chief Justice Directive and/or Chief Justice Order (no payment shall be authorized for hourly rates in excess of these scheduled rates):

MAXIMUM HOURLY RATE

In court/Out of court

Court-appointed Counsel $55.00/ 45.00 per hour (1/1/01)*
and Guardian ad Litem $50.00/ 40.00 per hour (2/1/03)*

$55.00/ 45.00 per hour (7/1/03)*

Non-Attorney Child and Family Investigator $20 per hour

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

Court-authorized Investigator $25 per hour

Court Visitor $25 per hour

*for work performed on or after date indicated

D. -Maximum total fees, established January 1, 2001, that may be paid by the Department for court-appointed counsel, guardians ad litem, non-attorney child and family investigators, or court visitors are as follows:

MAXIMUM TOTAL FEE PER APPOINTMENT

Title 19—Dependency and Neglect Matters

Respondent Parent Counsel $2,000.00

Non-Attorney Child and Family Investigator $1,000.00

Title 19—Other Matters (i.e. delinquency GAL,

support, adoption, paternity, etc.)

Non-Attorney Child and Family Investigator $ 500.00

Titles 14 and 15

Counsel (probate only) $2,000.00

Guardian ad Litem $2,000.00

Non-Attorney Child and Family Investigator $1,000.00

Court Visitor $ 500.00

Titles 22, 25, and 27

Counsel $ 500.00

Guardian ad Litem $ 500.00

Appeals

Counsel and Guardian ad Litem$2,000.00

Non-Attorney Child and Family Investigator $1,000.00

E. Under no circumstances shall the total 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 (see guidelines in Attachment D, paragraph B). If a court-appointed attorney chooses to use the support of a paralegal, legal assistant, investigator, or law clerk, 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 by the Chief Justice to review the fee schedule established in this CJD and/or Chief justice Order for court-appointed counsel every three years, commencing in the year 2000. The report is due to the Colorado Supreme Court on or before August 1 of that year, and every third year thereafter, with recommended adjustments to the fee schedule, if applicable.

G. Appointees shall 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 any applicable attorney/client privilege.

V. Reimbursement to the State for Court-Appointed Costs

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 respondent 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 before or after appointment of counsel, guardian ad litem, non-attorney child and family investigator or court visitor, that the responsible party(ies) 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(s) or estate reimburse all or part of said costs. Such order shall constitute a final judgment including costs of collection and may be collected by the state in any manner authorized by law.

Collections of fees and costs related to court-appointed representation and other costs may be referred to the Collections Investigator, a private collector with whom the Judicial Department has contracted, or to the Central Collections Service in the State Department of Personnel and Administration.

Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel contract rate, or at the hourly cost of providing legal representation for the number of hours reported by counsel to the court. Other costs incurred may also be assessed, including, for example, costs for transcripts, witness fees and expenses, language interpreter fees, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as sign language interpreter fees, may not be assessed.

SECTIONS VI and VII APPLY ONLY TO GUARDIANS AD LITEM AND COURT VISITORS APPOINTED ON BEHALF OF WARDS OR IMPAIRED ADULTS, AND DO NOT APPLY TO APPOINTMENT OF LEGAL COUNSEL.

VI. Training of Guardians ad Litem and Court Visitors Appointed on Behalf of Wards or Impaired Adults

A. Attorneys appointed as a guardian ad litem 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 guardian ad litem 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 court visitor, 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.

VII. Duties of Guardians ad Litem and Court Visitors Appointed on Behalf of 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 ward or impaired adult, the appointee may request that the court expand the terms of the appointment and scope of the duties.

B. Persons appointed shall perform all duties as directed by the court, which may include some or all of the duties described:

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 and in compliance with applicable statutes, file written or oral report(s) with the court and all other parties.

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

a) Personally meeting with and observing the client as well as proposed custodians when appropriate;

b) Reviewing court files and relevant records, reports, and documents; In cases in which the ward or impaired person 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.

VIII. Duties of Judges and Magistrates

A. 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.

B. Judges and magistrates shall ensure that guardians ad litem and court visitors involved with cases under their jurisdiction are representing the best interests of adult wards or impaired adults and performing the duties specified in this order. 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 and court visitors to learn these areas of the law;

3. Meet with guardians ad litem and court visitors at the first appointment to provide guidance and clarify the expectations of the court;

4. Hold periodic meetings with all practicing guardians ad litem and court visitors, as the court deems necessary to ensure adequate representation of wards or impaired adults.

IX. Complaints

A. All written complaints and documentation of verbal complaints regarding the performance of any state paid counsel, guardian ad litem, non-attorney child and family investigator or court visitors appointed pursuant to this directive shall be submitted to the district administrator. The district administrator will forward the complaint to the presiding judge or, if appropriate, the chief judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the district administrator will forward the complaint to another judge designated for that purpose.

B. If the complaint involves an attorney and the reviewing judge or district administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or district administrator and the State Court Administrator of the final outcome of the investigation.

C. Copies of all written complaints and documentation of verbal complaints regarding state paid counsel, guardians ad litem, non-attorney child and family investigators, and court visitors shall be forwarded by the district administrator to the State Court Administrator’s Office. The State Court Administer may investigate a complaint and take action he believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include terminating the contract with the attorney, GAL, non-attorney child and family investigator or court visitor.

X. Sanctions

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring 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. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

October 31, 2005.

Chief Justice Mary J. Mullarkey
Colorado Supreme Court

For more information about CJD 04-05 and corresponding Procedures and Attachments, contact Gaylene Wagoner at (303) 837-3641 or gaylene.wagoner@judicial.state.co.us.

______________________________________________________________________________

Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Background Information

Effective November 1, 2004, the Colorado Supreme Court amended Chief Justice Directive 94-01, which governs the Colorado Judicial Ethics Advisory Board ("CJEAB"). The CJEAB consists of judges and non-judges who provide advice on ethical issues to judicial officers who request an opinion on prospective conduct. There are seven board members: four judges, one non-lawyer citizen, one attorney, and one law professor with an interest in ethics.

CJEAB Opinions

Any judge, justice, magistrate, or district administrator (asking on behalf of judicial officers) in Colorado is welcome to request an advisory opinion from the CJEAB. Requests are made to any CJEAB member or to the person providing staff support to the CJEAB—Eileen Kiernan-Johnson, Legal Counsel to the Chief Justice of the Colorado Supreme Court.

Once a request is received, the CJEAB will research the question and issue a public opinion regarding the ethical considerations presented. the opinions will be posted online at http://www.courts.state.co.us/supct/committees/judicialethicsadvisoryboard/judethics. htm. The opinions will be published on a space available basis in the "Court Business" section of The Colorado Lawyer. Some attachments, including forms and exhibits, may be omitted due to space restrictions. Opinions also are available at Colorado’s two law schools, the Office of the State Court Administrator, and the Supreme Court Law Library. The opinions also will be provided to the American Judicature Society, which is an organization dedicated to judicial issues and ethics.

The CJEAB opinions are advisory in nature and do not bind the Commission on Judicial Discipline. For complete information about the CJEAB, contact Eileen Kiernan-Johnson, (303) 837-3759; eileen.kiernan-johnson@"judicial."state.co.us.

_____________________________________________________________

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2005-04
(Finalized and Effective October 27, 2005)

Issue Presented

A judge has been nominated to be a member of a municipal commission devoted to crime control and prevention ("the commission"). The enabling ordinance specifies that the purposes of the commission are to: (1) reduce crime, in part by reducing recidivism; (2) facilitate coordination among criminal justice system agencies; (3) support the development of a data-driven criminal justice system that offers a range of evidence-based sanctions and programs; (4) facilitate the development of information technology and data necessary for effective criminal justice policy development, jail population management, and evaluation of sanctions and programs to hold offenders accountable; (5) facilitate efficient use of jail space by encouraging alternatives, where appropriate; and (6) recommend expenditures from a substantial crime control fund. Among other things, the commission is given the power to undertake an evaluation of the capacity and operations of the criminal justice system by analyzing offender flow and bed usage, recommending policies to utilize scarce jail beds for the most serious offenders, and facilitating sanctions and programs that will reduce recidivism. The commission reports to the mayor and city council and is tasked with recommending policy and program changes to reduce victimization and recidivism, generating alternatives to incarceration, and developing a "coordinated criminal justice system sanctioning philosophy and policies." The ordinance creating the commission specifically contemplates that a judge will be one of twelve members drawn from law enforcement and civic milieus.

The judge has asked whether the judge may accept the nomination and join the commission. If so, the judge asks for guidance about the scope of permissible service on the commission and whether the judge would be allowed to cast votes on any issues that come before the commission.

Conclusions

Canon 5G generally prohibits a judge from participating on governmental commissions unless there is a close nexus between the work of the commission and the improvement of the law, the legal system, or the administration of justice. Service on the commission also must not call into question the judge’s impartiality, independence, and effectiveness. Under those standards, the judge’s service on the crime prevention and control commission would be inappropriate. The judge may, however, be able to provide the commission with specific factual information to assist it in its policymaking efforts.

Applicable Canons of the Colorado Code of Judicial Conduct

Canon 4 generally encourages a judge to engage in quasi-judicial activities so long as his or her capacity to decide impartially any issue that may come before the judge is not impaired by participation in those activities. Canon 4A encourages a judge to "participate in other activities concerning the law, the legal system, [and] the administration of justice." Canon 4B authorizes a judge to "consult with, or appear at a public hearing before, an executive or legislative body, or an official thereof, on matters concerning the law, the legal system, [and] the administration of justice." Similarly, Canon 4C encourages a judge to "serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice. . . . A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice."

Canon 5B encourages a judge to participate in civic activities that do not adversely reflect upon the judge’s impartiality or interfere with the performance of judicial duties. Subsection (1) cautions, however, that a judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

Canon 5G provides that a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.

Discussion

As societal problems have become increasingly complex and entrenched, judges have been called upon with greater frequency to share the unique insights gleaned from their judicial experience by participating in governmental commissions directed at finding solutions to these social problems. Judges are encouraged under the various subsections of Canon 4 to participate in activities concerning the law, legal system, or administration of justice where such participation would not impair the judge’s independence or effectiveness. Canon 5G, however, generally constrains judges from accepting an appointment to a governmental commission that addresses policy questions unless the commission is considering matters related to the improvement of the law, the legal system, or the administration of justice. As the commentary to Canon 5G indicates, the general prohibition against participation on a governmental commission is animated by concerns that appointment to a governmental commission could interfere with the judge’s effectiveness and independence. In light of this general prohibition against participation on governmental commissions, the exception for activities designed to improve the law, the legal system, and the administration of justice generally is defined and construed narrowly. See, e.g., Federal Ad. Op. No. 93. Not every issue that has a connection to the law or that arises in court cases can fairly be characterized as related to the improvement of justice. See, e.g., Cindy Gray, "Serving on Governmental Commissions: What Are the Limits for Judges?," Judicature, Vol.86, No.4 (Jan./Feb. 2003); Mass. Ad. Op. 03-13; Mass. Ad. Op. 98-13. Otherwise, the exception in Canon 5G would swallow the rule prohibiting a judge from being a member of most governmental commissions.

Determining the line between appropriate and inappropriate participation in governmental commissions requires an analysis of the link between service on the commission and improvement of the law, legal system, and administration of justice. Like many of our sister jurisdictions, we conclude that for service on a governmental commission to be consistent with Canon 5G, there must be a close nexus between what the commission does and improvement of the law, legal system, or the administration of justice. In other words, there must be a direct link between the commission’s work and how courts go about the business of meeting their statutory or constitutional duties. If the nexus is indirect, incidental, or tangential, or if the permitted subjects are just one aspect of a broader mission or focus, service by a judge is not permitted. Further, even where a close nexus is found to exist, participation on a particular commission is appropriate only where it would not cast reasonable doubt on a judge’s capacity to act impartially. See, e.g., Mass. Ad. Op. 03-13; Mass. Ad. Op. 98-13; Utah Ad. Op. 98-11.

Applying this "direct nexus" standard to the requesting judge’s proposed membership on the crime prevention commission, the Board concludes that there is not a sufficient connection between the work of the commission and improvement of the law, legal system or administration of justice to overcome the general prohibition of Canon 5G. An examination of the commission’s enabling legislation reveals that the commission generally is charged with reducing crime and increasing neighborhood safety and specifically is tasked with generating policy recommendations for the mayor and city council regarding offender sanctions and jail population management. The commission is instructed to facilitate the efficient use of jail space by encouraging alternatives to incarceration; when formulating these recommended alternatives, such as expansion or concentration of community corrections facilities, the commission is directed to consider the impact on residential neighborhoods related to releasing offenders into the community. The commission also is instructed both to make recommendations on how crime prevention monies should be appropriated and to seek federal grants and private sources of funding for innovative criminal justice projects and programs. While the commission’s goals and tasks all broadly implicate the law and the legal system, the work of the commission is not directly linked to improvement of the law qua law, nor is it related to the improvement of the legal system or the administration of justice. There is no doubt that the issues surrounding crime reduction, jail management, and sentencing alternatives are all very important components of a broad criminal justice policy; they do not, however, possess the close nexus that Canon 5G requires.

Even if there were a close nexus between the commission’s work and the improvement of the law, legal system, or administration of justice, the judge’s participation on this particular commission would be inappropriate because it would call into question the judge’s impartiality, effectiveness, and independence. Here, the commission is engaged primarily in a quasi-legislative policymaking function, making recommendations on policy related to offender sanctions, incarceration alternatives, and jail management. Concerns about the judge’s impartiality and independence invariably will arise when a judge sentences a defendant to incarceration or an alternative pursuant to policies that the judge helped to develop. Similarly, a judge’s independence and impartiality will be called into question when the judge makes decisions about jail overcrowding and how to prioritize among inmates if the judge also has been involved in formulating policy on the most efficient use of jail space. In the event that the policy issues addressed by the commission become the subject of litigation, the judge could be called upon not only to apply these policies, but to interpret them as well. A judge’s involvement in recommending policies concerning the operation of the jails and the sanctions an offender could face would likely be seen as an endorsement of the substantive positions and recommendations of the commission, and, thus, would interfere with the fundamental value of judicial independence. Additionally, the commission’s role in soliciting funds for new criminal justice programs and advising how the criminal justice system should spend its money and conduct its operations could give rise to the perception that the judge is aligned with the interests of law enforcement. See Fla. Ad. Op. 97-24; NY Ad. Op. 97-108. This impression could be reinforced by the composition of the board, which, although it does include representation from the public defender, is heavily oriented toward law enforcement and prosecution. See Mass. Ad. Op. 03-16. Service on this particular commission, then, would blur the distinction between the branches of government, simultaneously making the judge legislator, advisor to law enforcement, as well as neutral arbiter, and affecting the public’s perception of the independence of the courts from the executive and legislative branches of government.

In reaching the conclusion that service on this commission would be inappropriate, the Board is mindful that the ordinance establishing the commission specifies that a judge should be one of the members. This legislation, however, does not override the specific rules and general principles embodied in the code of judicial conduct, and it cannot render legitimate service that is otherwise impermissible under the code’s standards. See Gray, "Serving on Governmental Commissions," supra, at 208.

Canon 5G’s focus on assuring the continued independence of the judiciary is not intended, however, to result in the withholding of valuable judicial advice from other branches of government. Accordingly, under Canon 4B, which permits a judge to consult with an executive or legislative body "on matters concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government" the judge may be able to provide specific factual information to the commission, Thus, in the Board’s view, it would be appropriate for the judge to explain to the commission, if requested, what is happening in the courts and what kinds of programs might be helpful in meeting unfilled needs, so that the commission can make informed policy choices. If the judge does consult with the commission in this fashion, the judge should take care to insure that any mention of the judge’s name in commission publications is accompanied by a note clarifying the judge’s limited, consulting role and announcing that the judge takes no position on the commission’s overall recommendations. See Mass. Ad. Op. 03-13; Mass Ad. Op. 03-16.

FORMALLY FINALIZED AND EFFECTIVE this 27th day of October 2005 by the Colorado Judicial Ethics Advisory Board.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)

 

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