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TCL > March 2006 Issue > Court Business

March 2006       Vol. 35, No. 3       Page  123
From the Courts
Court Business

Court Business

Supreme Court Rules Committee

The Colorado Rules of Criminal Procedure
Notice of Public Hearing re Proposed Amendment to Chapter 29
Hearing to be Held May 4, 2006 at 3:30 p.m.

The Colorado Supreme Court will conduct a hearing on a proposed amendment to The Colorado Rules Of Criminal Procedure For All Courts Of Record In Colorado—VIII. Supplementary And Special Proceedings: May 4 2006, from 3:30 p.m. to 4:30 p.m., in the Colorado Supreme Court Courtroom, 2 East 14th Ave., Denver, Colorado. The Court also requests written public comments by any interested person on this proposed rule change. An original and eight copies of the written comments concerning the proposal should be submitted to Susan J. Festag, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, Colorado 80203, no later than April 21, 2006, by 5:00 p.m. Persons wishing to participate in the hearing should so notify the Clerk no later than April 21, 2006.

By the Court:

Alex J. Martinez, Justice
Colorado Supreme Court

_________________________________

Proposed Amendment to
Chapter 29
The Colorado Rules of Criminal Procedure
For All Courts of Record in Colorado

VIII. Supplementary and Special Proceedings:
Rule 43. Presence of the Defendant

(a) Through (d) [No Change.]

(e) Presence of the Defendant by Interactive Audio visual Device.

(III) Hearings to modify bail;

(IV) Plea discussions, entry of pleas, pursuant to Crim.P. 11, and associated sentencing hearings in misdemeanor, petty offence, and traffic cases where the offense charged is not included within those offenses listed in C.R.S. 24-4.1-302(1).

(3) [No Change.]

(I) If defense counsel appears, such appearance shall be at the same physical location as the defendant if so requested by the defendant. If defense counsel does not appear in the same location as the defendant, a separate confidential communication line, such as a phone line, shall be provided to allow for communication between the defendant and counsel.

(IV) Any hearing held pursuant to Crim.P. 43(e)(2)(IV) shall be conducted with the written consent of the defendant. The court shall advise a defendant of the following prior to obtaining a defendant’s written consent and prior to any plea discussion being conducted:

A. The rights enumerated in Crim.P. 5(2).

B. The defendant has the right to appear in person and will not be prejudiced if he chooses to do so.

C. The defendant has the right to have his or her counsel appear with him or her at the same physical location.

D. The defendant’s decision to appear by use of an interactive audiovisual device is voluntary on the defendant’s part and is not the result of undue influence or coercion on the part of anyone.

E. If the defendant is pro se, the identity and role of all individuals with whom the defendant may have contact with through the interactive audiovisual device.

(V) An interactive audiovisual system used for hearings pursuant to Crim.P. 43(e)(2)(IV) shall include the ability to electronically transfer documents between the defendant and the court and such transferred documents shall be considered the same as originals.

Comment

The court recommends that defendants be informed of their rights pursuant to this rule by showing such defendants a pre-recorded video containing the judicial advisement contained in this rule. The video should be shown prior to any jail authorities asking whether a defendant planned to elect to participate by audiovisual device. The court recognizes that such audiovisual devices will be used to conduct plea discussions. Accordingly, the pre-recorded video should also explain the plea discussion process.

________________________________________________________________________________

Rule Change 2006(01)
Chapter 32
Colorado Appellate Rules
General Provisions
Rule 26. Computation and Extension of Time
Amended and Adopted

(a) Computation of Time. 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 these Rules, "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.

COMMITTEE COMMENT

The rule as amended conforms to C.R.C.P. 6(a).

Amended and Adopted by the Court, En Banc, January 12, 2006, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_________________________________

Rule Change 2006(02)
The Colorado Rules of Probate Procedure
Appendix A to Chapter 27
Colorado Probate Code Forms
Amended and Adopted

(Forms in this Appendix are available from the Colorado courts web page at http://www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm.)

(New) CPC Form 18-AO. ACCEPTANCE OF OFFICE

CPC Form 18. ACCEPTANCE OF APPOINTMENT

CPC Form 49. PETITION FOR TERMINATION OF CONSERVATORSHIP

and Adopted by the Court, En Banc, January 12, 2006, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

________________________________________________________________________________

Notice of Hearing Regarding Proposed Changes to
The Colorado Rules of Professional Conduct
Hearing Scheduled for June 15, 2006, 1:30 p.m.
Comments Requested by May 25, 2006

The Colorado Supreme Court will hear comments to its proposed changes to the Colorado Rules of Professional Conduct. An original and eight copies of the written comments on the proposed changes should be filed with Susan J. Festag, Clerk of the Colorado Supreme Court, at 2 E. 14th Ave., Denver, CO 80203, not later than 5:00 p.m., Thursday, May 25, 2006.

The proposed changes marked to show changes from exsiting rules are accessible online from the Court’s website. Visit: http://www.courts.state.co.us/supct/committees/profconductdocs/
sc-appendixb-1205.pdf.

By the Court:

Michael L. Bender, Justice
Colorado Supreme Cou
rt

________________________________________________________________________________

Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2006-01
(Finalized and Effective January 19, 2006)

ISSUE PRESENTED

The requesting judge is often asked by friends or family members to recommend a lawyer. The judge is concerned that if he does make a recommendation, the judge might violate Canon 2 or be perceived as holding a bias in favor of a particular lawyer. The judge notes that he would recuse himself in a particular case if he was familiar with the facts of the case because of his earlier conversation with the friend or family member seeking advice. With this caveat in mind, may the judge recommend to friends and family members either a single lawyer or a group of two or three lawyers?

CONCLUSIONS

The judge may recommend a lawyer or lawyers only in circumstances where the judge has a sufficiently close relationship with the requesting party that he would automatically recuse himself from the case due to the closeness of that relationship, regardless of whether the judge had been asked to make a recommendation.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2B states, in pertinent part, that "A judge should not lend the prestige of his or her office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position to influence him or her."

Canon 2A(9) directs a judge to perform all judicial duties without bias or prejudice.

Canon 3C(1)(a) provides that a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including where a judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. Under subsection (d), the judge also must disqualify himself or herself where the judge or the judge’s spouse or relatives within the third degree of either of them participate in the case in certain capacities.

DISCUSSION

The Code of Judicial Conduct requires judges to adhere to the very highest standards of professional conduct both on and off the bench. At the same time, judges must live and operate in the real world where they maintain relationships with friends and family members who, on occasion, require legal representation. Before hiring a lawyer to handle their case, these individuals may seek out the expertise of their judge friend or family member who, by virtue of the judge’s position, is familiar with many members of the local bar and their varying degrees of skill, experience, and expertise.

Although one in need of a lawyer understandably would desire to retain an attorney who has made a favorable impression on a judge before whom the lawyer practices, as a general rule, the Canons constrain a judge from freely responding to requests for a recommendation of a lawyer. Canon 2 generally directs a judge to avoid impropriety or the appearance of impropriety in his or her activities, and Canon 2B provides that a judge should not lend the prestige of his or her office to advance the private interests of another. It also states that judges should not convey or allow others to convey the impression that they are in a special position to influence the judge. Canon 3A(9) directs a judge to perform his or her duties without bias or prejudice. If a judge were routinely to recommend legal counsel to all who asked, the judge would be violating these provisions. Regularly referring potential clients to particular lawyers could create the perception that the judge is biased in favor of the attorneys recommended, could be seen as using the prestige of the office to advance the private interests of the lawyers recommended, and could lead the attorneys recommended to believe that they are in a special position to influence the judge.

As noted above, however, judges do not relinquish their friends or family members upon taking the bench, and requiring them to refrain from providing advice to such close friends and relatives about whom to retain would be unrealistic. Thus, it is the opinion of the Board that the Code does not extend this far. Accordingly, the Board concludes that where the family members or friends enjoy a sufficiently close relationship with the judge that the judge would automatically recuse from the case under Canon 3C, irrespective of whether he was asked to recommend a lawyer, the judge may share with those family members or friends the names of as many or as few lawyers as the judge wishes to recommend.

FORMALLY FINALIZED AND EFFECTIVE this 19th day of January, 2006 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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