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TCL > September 2006 Issue > Court Business

The Colorado Lawyer
September 2006
Vol. 35, No. 9 [Page  155]

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts

Court Business

Colorado Supreme Court Rules Committee

Rule Change 2006(10)
Colorado Rules of Civil Procedure
Chapter 18. Rules Governing Admisstion to the Bar
Amended

RULE 221. Out-of-State Attorney—Pro Hac Vice Admission

An out-of-state attorney (as defined in Rule 220) may be permitted to appear on a particular matter in any state court of record under the following circumstances:

(1) through (2) [No Change]

(3) Frequency of Appearances. A separate petition, fee, and order granting permission are required for each action in which an attorney appears in Colorado.

(4) Permission to Provide Information to Trial Court. The Colorado Supreme Court offices may provide information to the trial court that it believes relevant for the trial court’s ruling on the pending motion to appear. The trial court nevertheless retains all authority to rule on the motion as it deems appropriate.

(5) Appellate Matters and Other Forms of Review.

(a) If an attorney wants to appear in a proceeding before a Colorado appellate court, and the attorney obtained permission to appear in a proceeding involving the same action in a Colorado state trial court, the attorney only needs to file an updated affidavit with the Clerk of the Supreme Court at the Attorney Registration Office. No additional filing fee is required.

(b) If an attorney wants to appear in a proceeding before a Colorado appellate court and the attorney did not obtain permission to appear in a proceeding involving the same action in a Colorado state trial court or administrative agency, the attorney shall file motion and affidavit with the Clerk of the Colorado appellate court, with a copy sent to the Clerk of Supreme Court at the Attorney Registration Office requesting permission to appear. The motion, affidavit, and filing fee must be submitted as otherwise provided in subsection (1) of this rule.

(6) Discipline and Disability Jurisdiction. Any attorney who has received pro hac vice admission under this rule shall be subject to all applicable provisions of the Colorado Rules of Professional Conduct, except for the provisions of Colo. RPC 1.15 that require an attorney to have a business account and a trust account in a financial institution doing business in Colorado; and the Colorado Rules of Civil Procedure, except C.R.C.P. 227 (general registration fees) and C.R.C.P. 260 (mandatory continuing legal education).

Source: Entire rule amended and adopted December 4, 2002, effective January 1, 2003.

RULE 222. Single-Client Counsel Certification

(1) through (5) [No Change]

(6) Fees. An attorney approved under this rule shall also be required to pay annual registration fees and comply with all other provisions of C.R.C.P. 227, as well as comply with the mandatory legal education requirements of C.R.C.P. 260.

(7) [No Change]

RULE 227. Registration Fee

A. Registration Fee of Attorneys and Attorney Judges

(1) General Provisions.

(a) through (b) [No Change]

(c) Application of Fees. The fee shall be divided. Nine dollars shall be used to pay the costs of establishing and administering the mandatory continuing legal education requirement. A portion of the fee, to be determined and adjusted periodically by the Supreme Court, shall be used to support designated providers that have been selected by the Advisory Committee to provide assistance to attorneys needing help in dealing with physical, emotional, or psychological problems which may be detrimental to their ability to practice law. The remaining portion of the fee, and the entire fee of those on inactive status, shall be used only to establish and maintain an attorneys’ fund for client protection, and to defray the costs of disciplinary administration and enforcement, the costs incurred with respect to unauthorized practice matters, and the expenses incurred in the administration of this rule.

(d) through (e) [No Change]

(2) through (8) [No Change]

Amended by the Court, En Banc, June 22, 2006, effective immediately.

BY THE COURT:

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

________________________________________________________________________________

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 2006-05
(Finalized and Effective July 12, 2006)

ISSUE PRESENTED

The requesting judge is one of two judges in his district assigned to the domestic division. Four years before his appointment to the bench, he was a party in a dissolution action in the district; the case was settled upon a negotiated agreement. The judge drafted and filed many of the early pleadings, but retained counsel for the final portion of the case involving the drafting and negotiation of the agreement on permanent orders; his attorney performed approximately six hours of work on the judge’s case. The judge’s ex-wife also retained counsel. The firm of the attorney who represented the judge handles many dissolution actions in the district, and the bulk of the firm’s practice is devoted to domestic relations. When either the firm that represented the judge or the firm that represented his ex-wife appears before the judge, he notifies the parties of the prior representation so that they may file a motion to disqualify the judge. The judge asks whether he should continue to disqualify himself when requested to do so in situations where the firm that formerly represented him is representing a party. He also asks whether he should disqualify himself when requested to do so by a party represented by the firm that his ex-wife retained.

CONCLUSIONS

A judge should disqualify himself or herself sua sponte if an attorney or firm currently representing the judge, or representing the j udge’s adversary in a current matter, appears before the judge. A judge should also continue to disqualify himself or herself sua sponte for a reasonable period of time after the representation has ended, typically one year, when the judge’s attorney, other members of that firm, the judge’s adversary’s attorneys, or members of that attorney’s firm appear before the judge. After the expiration of a reasonable period of time, continued disqualification is not required, but may be appropriate under the facts and circumstances of the case in which the judge was represented. Here, although this reasonable period has lapsed, the judge should consider various objective and subjective factors in assessing whether continued disqualification is appropriate, and how the judge should respond to a motion to disqualify. However, the judge should continue to disclose the prior representation for an extended period, at least until the passage of time, the limited consequences of the prior matter, and the nature of his current relationship with his prior attorney have made the prior representation irrelevant.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2 directs that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities. Subsection B of the canon states that a judge should not allow family, social, or other relationships to influence the judge’s judicial conduct or judgment. It also provides that a judge should not convey or permit others to convey the impression that they are in a special position to influence him or her.

Canon 3 generally provides that a judge should perform judicial duties impartially and diligently. Subsection C governs disqualification and specifies that a judge should disqualify himself or herself from a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where a judge has a personal bias or prejudice concerning a party.

DISCUSSION

In general, the question of disqualification is left to the judge’s sound discretion. See Zoline v. Telluride Lodge Ass’n, 732 P.2d 635 (Colo. 1987). However, courts must meticulously avoid any appearance of partiality. See Wood Bros. Homes v. City of Fort Collins, 670 P.2d 9 (Colo.App. 1983). Judges confronted with a motion to disqualify should decide the legal question under C.R.C.P. 97 or Crim.P. 21 and the decisions interpreting those rules. Canon 3 of the Code of Judicial Conduct, however, sets forth a number of specific circumstances under which a judge should disqualify himself or herself sua sponte. At issue here is the provision dealing with disqualification in proceedings in which the judge’s partiality might reasonably be questioned. See Hammons v. Birket, 759 P.2d 783 (Colo. App. 1988) (court erred in denying motion to disqualify based on existing professional relationship with expert witness).

As a preliminary matter, the Board determines that, pursuant to Canons 2 and 3, a judge must disqualify himself or herself if the representation by the judge’s attorney is ongoing because the judge’s impartiality might reasonably be questioned and also in order to avoid an appearance of impropriety. In addition, during the pendency of the representation, that disqualification should be vicarious to the attorney’s whole firm. As the Florida Judicial Ethics Advisory Committee noted, "The attorney-client relationship is among the most revered professional relationships in our society. The very foundation of this relationship is based upon trust and confidentiality. It would be hard to imagine that litigants, even in uncontested matters, would not be distrustful of the impartiality of a judge in a matter in which a law firm presently representing the judge was the firm of record in a matter before that judge." Fla. Ad. Op. 99-13.; see also Jeffrey Shaman et al., Judicial Conduct and Ethics, 3d ed. 2000; Utah Ad. Op. 00-4. The Board also concludes that, while a judge is currently being represented by counsel, the judge must also disqualify himself or herself when the judge’s adversary’s attorney or firm appears before the judge.

The question before the Board—whether disqualification is required after the representation has ended—presents a more difficult issue. After reviewing the authorities, the Board concludes that disqualification is not necessary after the representation has ended where the judge was represented in the judge’s official capacity. See, e.g., Utah Ad. Op. 00-4. Where, however, the judge has been represented in a personal matter, such as the domestic case here, the Board further concludes that the judge should continue to disqualify himself or herself for a period of time in order to allow any reasonable inferences of partiality or impropriety to subside. As other jurisdictions have noted, no standard or basis exists on which to calculate a reasonable time, and any choice of time frame will be somewhat arbitrary. See Utah Ad. Op. 00-4. Nevertheless, some jurisdictions have concluded that a period of six months to one year is a reasonable time. We agree with the lengthier time-frame and determine that a judge should disqualify himself or herself for one year in proceedings involving an attorney who represented the judge in a personal matter. The judge should also disqualify himself or herself for the same length of time in any proceedings involving other members of the judge’s attorney’s law firm, the adversary’s attorney, or the adversary’s attorney’s firm. See id.; see also Ky. Ad. Op. JE-84.

Although in the ordinary case the judge may cease disqualifying himself or herself after one year, the judge should consider whether, at the end of the presumptive period, the facts and circumstances make continued disqualification appropriate. The judge first should consult his or her own emotions and conscience to determine freedom from disabling prejudice. The judge also should consider whether an objective, disinterested person aware of all the circumstances would reasonably question the judge’s partiality because of the past representation. Among the circumstances the judge should take into consideration are the length of time he or she was represented by the attorney, the nature and extent of the representation (e.g., was the subject of the representation a simple transactional matter or did it involve protracted litigation), the amount of money paid to the attorney, and how much time has elapsed since the representation. See Fla. Ad. Op. 2005-05. These factors will similarly illuminate whether disqualification is necessary, after the one-year period, as to the attorney or firm that represented the judge’s adversary, because the judge maintains a particular bias or prejudice against the attorney or firm.

Further, where the judge maintains a special and close relationship with a particular attorney who represented the judge after the representation has ended, and where that relationship is qualitatively different than the judge’s relationship with other attorneys, continued disqualification at the end of the one-year period would be appropriate. See Utah Ad. Op. 004. Disqualification as to the attorney’s entire firm, however, is not necessary unless the judge’s close relationship or bias extends to the firm as a whole.

Finally, even where the judge concludes that disqualification is no longer required because the judge’s impartiality might not reasonably be questioned, disclosure may be appropriate to promote public confidence in the impartiality of the judiciary and to inform the parties of any basis on which disqualification may be sought. It should appear to the attorneys and the parties appearing before the judge that all proceedings will be heard fairly. See Canon 3. The Board notes that when an attorney who previously represented the judge in a personal matter appears before the judge, the better practice is to disclose the prior representation for an extended period of time, at least until the passage of time, the limited consequences of the prior matter and the nature of the judge’s relationship with the attorney have made the prior representation irrelevant. If after the judge has disclosed the past representation, an attorney files a motion to disqualify the judge under C.R.C.P. 97 or Crim.P. 21, the judge can review his or her analysis of whether under all of the circumstances, taking into account the factors set forth in this opinion, an objective, disinterested person would reasonably question the judge’s partiality because of the past representation. Unless some new facts or circumstances have been brought to the judge’s attention that would change the judge’s analysis there would appear to be no reason to grant the motion to disqualify.

In this case, the Board notes that more than four years have elapsed since the representation, the representation was of short duration, and the amount of work the attorney performed for the judge was limited, all of which support the conclusion that the judge need not continue to disqualify himself when his former attorney, the attorney’s firm, his ex-wife’s attorney, or the ex-wife’s attorney’s firm appears before him. However, the judge was represented in connection with the dissolution of his marriage, a deeply personal matter, which may weigh in favor of continued disqualification depending on the circumstances. In addition, only the judge knows whether he continues to harbor a bias or prejudice in favor of his own attorney and firm or against his ex-wife’s attorney and firm, and only the judge possesses other information that would influence whether an objective observer aware of all the facts and circumstances would reasonably question his partiality. Thus, although the Board finds that the objective facts of this case do not require the requesting judge to continue to disqualify himself, it advises the requesting judge to consider the subjective factors discussed above to determine whether he should continue to disqualify.

The Board recommends that even though disqualification is not required, in order to promote public confidence in the impartiality of the judiciary and to inform the parties of any basis on which disqualification may be sought, the judge should continue to disclose the prior representation until the passage of time, the limited consequences of the prior matter, and the nature of the judge’s current relationship with his prior attorney have made the prior representation irrelevant.

FINALIZED AND EFFECTIVE this 12th day of July 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)

_________________________

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.
C.J.E.A.B. Advisory Opinion 2006-06
(Finalized and Effective July 19, 2006)

ISSUE PRESENTED

The requesting judge serves a small, rural county that is being considered for a substance abuse grant by a foundation in Denver. The judge has attended some of the meetings held in connection with the possible grant, and has spoken at the meetings about the financial obstacles faced by many poor defendants in his community who are ordered to attend substance abuse treatment but find that they cannot pay the costs of such treatment. Some of the potential grant money would be used to establish a type of "scholarship" so that defendants ordered to attend treatment could apply for assistance to defray the costs associated therewith. The commissioners of the county in which the judge sits have requested that the judge participate, in his capacity as county judge, in the screening process to determine which individuals should be awarded the scholarship funds. The judge notes, however, that any time he would devote to the screening process would take place outside his court duties. The judge has expressed concern that while the cause is worthy, his involvement in determining which individuals receive access to treatment that was ordered from the court, even if based on recommendations from the alcohol and drug evaluator, could pose an ethical problem. May the requesting judge participate in the screening process to determine which defendants will receive financial assistance in attending court-ordered substance abuse treatment?

CONCLUSIONS

The judge may serve on the board of an organization devoted to seeking funds to assist defendants in obtaining court-ordered substance abuse treatment, and he may make recommendations to a private foundation that it should fund programs to the same end, but it would be inappropriate for the judge to assist in determining which particular defendants receive the scholarship funds.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2 generally directs a judge to avoid impropriety and the appearance of impropriety in all of the judge’s activities.

Canon 3A(4) provides that a judge should neither initiate nor consider information about a pending or impending proceeding that he receives in an ex parte manner.

Canon 4C specifies that a judge is encouraged 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 assist such an organization in its fund-raising efforts, but the judge may not personally solicit funds for the organization. The Canon also provides that 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.

DISCUSSION

As the Board noted in opinion 2005-04, judges have been called upon with increasing frequency to share their unique perspectives in helping to address societal problems. To that end, Canon 4 of the Code of Judicial Conduct encourages judges to participate in activities to improve the law, the legal system, and the administration of justice. Under Canon 4C, judges are expressly permitted to make recommendations to public and private grant-funding agencies on projects and programs concerning the law, the legal system, and the administration of justice. Here, the requesting judge’s participation in the process of recommending that the foundation fund scholarships to assist indigent defendants to receive court-ordered substance abuse treatment falls squarely within the bounds of activity permitted and encouraged by Canon 4. Thus, the judge may continue to assist the county in its efforts to secure funds to defray the costs of such treatment, and he may continue to make recommendations to the foundation on how, in general, such funds should be allocated.

The county’s request that the judge assist in making determinations as to which specific individuals should receive the scholarship funds, however, creates a number of conflicts with the Canons. First, in deliberating whether to award a scholarship to a specific defendant, the judge may learn information about the defendant ex parte, in violation of Canon 3A(4). Second, if the scholarship fund has limited funds and the screening committee must decide who is to receive a scholarship and who is not to receive one, the judge may find himself advocating for a scholarship for one defendant over another, or even simply choosing one defendant over another. Ordering defendants to obtain substance abuse treatment, and then deciding which among various defendants will receive such treatment, creates an appearance of actual bias or partiality, in violation of Canon 2. Third, if the screening committee asked the judge to comment on which one among many defendants is most deserving of a scholarship, the committee might well defer to the judge’s recommendation in light of his familiarity with the defendant’s case, and the judge would be in a position to use his judicial position to aid one defendant over another. Accordingly, it would be inappropriate for the judge to participate in the process of recommending that scholarship funds be awarded to specific defendants.

In concluding that it would be inappropriate for a judge to recommend how scholarship funds should be disbursed to specific individuals, the Board emphasizes that it is not attempting to discourage the judge from serving on the board of an organization that helps to obtain funding for scholarships. Nor is the Board attempting to dissuade the requesting judge from recommending that the foundation provide funding for substance abuse treatment. Similarly, the Board does not wish to discourage judges from serving on other similar boards, such as community corrections boards. As discussed above, participation on such boards is encouraged by the Canons and benefits the legal system as a whole. Rather, the Board’s concern is that judges should not be involved in allocating funds to specific individuals who have in the past or very likely might in the future come before the judge. Thus, the Board concludes that it is entirely consistent with the Canons for the judge to advise the foundation that scholarship funds for substance abuse treatment are needed in his county, and to recommend that the foundation provide such funds for the purpose of defraying the costs of substance abuse treatment for defendants in general. It would not, however, be appropriate for the judge to select the individual defendants who will be the beneficiaries of such scholarship funds.

FINALIZED AND EFFECTIVE this 19th day of July 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)

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2006.


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