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TCL > February 2007 Issue > Court Business

The Colorado Lawyer
February 2007
Vol. 36, No. 2 [Page  111]

© 2007 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

From the Courts

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in “Court Business,” and versions with highlights of revisions (deletions and additions).


United States Bankruptcy Court
for the District of Colorado

In the Matter of Modifying the Public Record in Certain Situations
When E-Filers Use Incorrect Events for Pleadings Filed on and After December 11, 2006
General Procedure Order 2006-5

This matter arises pursuant to the Federal Rules of Procedure (Civil Rule 5(e), Bankruptcy Rules 5003 and 5005, 7005, 8008, 9011 and 9029), to address the improper usage of certain events selected by external electronic filers and the Clerk’s need to safeguard the integrity of the court’s docket while timely providing an accurate public record for proper case administration. Accordingly, commencing on and after December 11, 2006, the Clerk of the Court may correct a docket entry at any time in order to preserve the integrity of the Court’s records and meet the requirements of Congress.

Pursuant to the above paragraph, whenever a Deputy Clerk re-enters a document with the correct event that was previously entered incorrectly, a notation will reflect that the improperly entered document is superceded by the re-entered document.

THE COURT ORDERS that commencing December 11, 2006, the Clerk may correct a docket entry at any time in order to preserve the integrity of the Court’s records and meet the requirements of Congress.

Dated: December 12, 2006

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
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 2006-09
(Finalized and Effective December 13, 2006)

ISSUE PRESENTED

The requesting judge is a full-time judge who will be retiring soon. When he retires, he will be asking to be included in the Senior Judge Program. He also will be available for private mediation services. He asks when he may start to schedule private mediation cases. He further asks whether, assuming he may set private mediations before he retires, he should or must inform counsel in a case that currently is before him that he has set a private mediation with opposing counsel on another case after his retirement.

CONCLUSIONS

The judge should refrain from setting or hearing private mediations until after he retires as a judge.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities.

Canon 5C(1) restricts a judge from engaging in financial and business dealings that tend to reflect adversely on the judge’s impartiality, interfere with the proper performance of the judge’s duties, exploit the judge’s judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

Canon 5E specifies that a judge should not act as an arbitrator or mediator, except as provided for in Canon 8, which allows senior judges to serve as mediators and arbitrators.

DISCUSSION

Under Canon 5, a sitting judge may not engage in business and financial dealings that might adversely reflect upon his impartiality or involve the judge in frequent transactions with the attorneys or others who appear before him. Under Canon 2, judges are directed to avoid an appearance of impropriety and partiality. Because of the clear mandate of Canon 5E, the Board does not interpret the judge’s request as contemplating that any mediations would occur before the judge retires.

Nevertheless, in the Board’s view, the judge’s requested course of activity would conflict with both Canons. Here, the requesting judge wishes to schedule private mediations, and he anticipates that at least some such mediations would involve attorneys who currently appear before him. If the judge were to begin setting such mediations before he steps down, attorneys and parties appearing before him might perceive that other attorneys and parties who had scheduled private mediations with the judge upon his retirement could receive preferential treatment. Even if the judge were not paid in advance for his services, as sometimes occurs in private mediations, for the judge to contract with attorneys who appear in his courtroom to provide private mediation services for which he would later be compensated would involve financial and business dealings that could reflect adversely on the judge’s impartiality. Accordingly, we conclude that the judge should not begin setting private mediations until after he has retired as a full-time judge.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 13th day of December 2006.

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 2006-10
(Finalized and Effective December 20, 2006)

ISSUE PRESENTED

The requesting judge asks whether he may attend gubernatorial inaugural events.

CONCLUSION

The judge may attend the inauguration ceremony and related events.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 5 encourages judges to engage in extra-judicial activities. Canon 5A concerns avocational activities and encourages a judge to engage in social activities, so long as those activities do not detract from the dignity of the judge’s office or interfere with the performance of judicial duties. Canon 5B encourages a judge to participate in civic and charitable activities that do not reflect adversely upon the judge’s impartiality or interfere with the performance of judicial duties.

Canon 7 directs a judge to refrain from political activity inappropriate to the judicial office. Canon 7A1(c) prohibits a judge from attending partisan political gatherings or purchasing tickets for political party dinners or similar functions.

DISCUSSION

Under the Canons, a judge is encouraged to participate in social and civic activities, but is prohibited from engaging in political activities. The question here is whether the inauguration ceremony, at which Colorado’s next governor will be sworn in, and attendant events, such as the inauguration dinner, concert, and whistle-stop train tour are political activities or social and civic activities. The website of the governor-elect states that each of these events is open to the public at large, and tickets for any of them may be purchased for a nominal fee by any interested citizen. See www.coloradopromise.org. Fees to attend the inaugural events cover only the cost of the event and no part of the attendance fees will be retained by any political party.

In the Board’s view, these inaugural events qualify as social or civic ceremonial activities in which all citizens, regardless of official position, are permitted to participate. We agree with the analysis of our counterparts in South Carolina, which concluded that "By attending the inauguration ceremonies, including the ball, a judge simply participates as a spectator to a time-honored tradition of government that symbolizes and celebrates the orderly and legal transition of elected officials. Also, by attending as a spectator the judge is merely showing respect, in a dignified manner, for a branch of government other than his own, which thus avoids harming the integrity and impartiality of the judiciary and avoids any appearance of impropriety." See S.C. Ad. Op. 2-95. Therefore, a judge may attend the inauguration ceremony and other inaugural events without violating the Code of Judicial Conduct. See also Fl. Ad. Op. 92-41; N.Y. Ad. Op. 98-12.

There are some caveats to our conclusion that it is appropriate for appropriate for an interested judge to attend the gubernatorial inauguration. First, a judge participating in inaugural activities may not engage in fundraising to pay for his or her attendance. Second, the judge should not use his or her attendance at the inauguration as an opportunity to seek elevation by the governor to a higher Bench. Third, the judge should attend the inauguration ceremony as would any member of the public, and should not be seated on the dais with the governor-elect or position himself in such a way as to suggest a particular allegiance with the governor. This caveat, of course, would not extend to any judge, such as the Chief Justice, who is officiating at the ceremony or playing another formal role in the inauguration ceremony, as contemplated by the constitution or statutes. Fourth, and relatedly, a judge attending inaugural activities should be identified, to the extent possible, by his or her name, without reference to his or her judicial title.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 20th day of December 2006.

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 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.colorado. gov/dpa/doah.

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; or visit http://www.
colorado.gov/dpa/doah.


 Chief Justice Directive 94-01
Creation of, and Procedural Rules for, the Colorado Judicial Ethics Advisory Board
Amended December 19, 2006, Effective January 1, 2007

I. Scope, Purpose and Title

A. The Colorado Judicial Ethics Advisory Board ("the board") provides advisory opinions to state justices, judges, magistrates, judicial employees, and members of the board seeking opinions concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct. Promulgation of this Chief Justice Directive is not intended to prohibit justices, judges, magistrates, judicial employees or members of the board from seeking ethics advice from other sources, such as from the executive director and chief counsel of the Colorado Commission on Judicial Discipline or the legal counsel for the judicial branch, without contacting the board.

II. Composition

A. The board shall be composed of seven members, who shall be appointed by the Chief Justice.

B. Four members shall be state judges. When possible, at least one judge shall be from a rural area court. Judge members may be active or retired.

C. One member shall be a citizen, who is not an attorney or judge, now or in the past.

D. One member shall be an attorney, who is not a justice or judge, now or in the past. The attorney member shall have been admitted to the practice of law in the state of Colorado for at least ten years.

E. One member shall be a law professor, with an interest in ethics.

F. The board members shall elect a chair.

G. The Chief Justice may appoint one or more persons to provide staff assistance to the board.

III. Terms of Office

A. Board members shall serve for three year terms from their date of appointment.

IV. Vacancies

A. The Chief Justice shall fill vacancies on the board for an unexpired term for the remainder of the term.

V. Restrictions on Membership

A. No member shall serve simultaneously on the board and the Colorado Commission on Judicial Discipline.

VI. Meetings

A. Meetings for the transaction of any board business, including the issuance of any advisory opinion may be in person, by telephone conference, video conference, e-mail or by circulated writing.

VII. Expenses

A. Members of the board shall be reimbursed for their actual and necessary expenses incurred in the discharge of their official duties as board members.

VIII. Promulgation of Rules and Procedures

A. The board may promulgate additional rules of procedure not inconsistent with these rules subject to approval of the Colorado Supreme Court.

IX. Requests for Advisory Opinions

A. A request for a judicial ethics advisory opinion shall be directed to any board member. Requests may be received from:

1. Colorado state justices, judges or magistrates who are serving in active status or as members of the Colorado senior judge program, or

2. A district administrator or clerk of court, making a request on behalf of the judicial officers in the district or court served, or

3. The state court administrator or the legal counsel for the judicial branch, or

4. A member of the board.

B. The board on its own motion may adopt advisory opinions issued in other states and reissue them as advisory opinions from the board on issues of general interest without being asked for an opinion by an individual.

X. Contents of Requests for Advisory Opinions

A. Requests for judicial ethics advisory opinions shall relate to prospective conduct only and shall contain a complete statement of all facts pertaining to the intended course of conduct together with a clear, concise question of judicial ethics. The identity of the individual making the request shall be disclosed to the board members and the staff assisting the board. Board members and staff shall not disclose the identity of the person making the request to anyone outside the board unless the requesting person consents.

B. The requesting individual shall state that the opinion is not sought with respect to past or present conduct and that the request is not the subject of a past or pending disciplinary proceeding before the Colorado Commission on Judicial Discipline. Requests shall not be accepted by the board or referred for opinion unless accompanied by this supporting statement.

XI. Content of Advisory Opinions

A. Advisory opinions shall set forth the facts upon which the opinion is based. Unless the requesting person consents to be identified, an opinion shall not include the name of the requesting party or identifying information if such information can reasonably be deleted. Advisory opinions shall address only whether an intended, future course of conduct violates or does not violate the Colorado Code of Judicial Conduct and shall provide an interpretation of the Code only with regard to the factual situation presented. The opinion shall not address other issues of law nor shall it address the ethical propriety of present conduct or past conduct.

B. If the facts, circumstances or questions presented by the requesting individual are unclear, vague or insufficient in detail to enable the board to render an advisory opinion, the board may refuse to consider the matter or may request that the requesting individual provide supplementary information to the board.

C. If the supplementary information is still unclear, vague or insufficient in detail, or is not provided within a reasonable time, the board shall inform the requesting individual that it will not render an advisory opinion.

D. The board may respond to requests for an advisory opinion by referring the requesting individual to any prior advisory opinion and by so doing shall not publish a new advisory opinion.

XII. Distribution of Advisory Opinions

A. The board shall provide a copy of each advisory opinion to the requesting individual, the Chief Justice, the Colorado Commission on Judicial Discipline, the Colorado Supreme Court law library, the University of Colorado law library, the University of Denver law library, the journal entitled The Colorado Lawyer, the Colorado judicial branch website, and the American Judicature Society. The board shall retain the original opinion in a permanent file in the offices of the State Court Administrator.

B. The board may repeal an advisory opinion issued in the past, may issue a cautionary statement concerning a past advisory opinion, or may amend a past advisory opinion in consideration of an opinion from the Colorado Supreme Court, action by the Judicial Discipline Commission, or amendments to the Colorado Code of Judicial Conduct.

XIII. Binding Effect of Advisory Opinions

A. All opinions shall be advisory in nature only. No opinion shall be binding on the Colorado Commission on Judicial Discipline or the Colorado Supreme Court in the exercise of their judicial disciplinary or other responsibilities. However, compliance with a written advisory opinion of the board shall be considered to be evidence of a good faith effort to comply with the Colorado Code of Judicial Conduct.

B. An opinion given to a requesting individual in an oral conversation is neither binding on the board nor evidence of a good faith effort to comply with the Colorado Code of Judicial Conduct.

Amended this 19th day of December 2006, amendments effective the first day of January 2007.

By the Court:

Mary J. Mullarkey, Chief Justice
Colorado Supreme Court


Colorado Supreme Court Rules Committee

Rule Change 2006(20)
Colorado Rules of Civil Procedure
Chapter 19, Unauthorized Practice of Law Rules
Amended and Adopted

Rule 232.5. Investigation; Procedure; Subpoenas

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

(d)(1) and (2) [No Change.]

(3) enter into an informal disposition with the respondent consisting of a written agreement by the respondent to refrain from the conduct in question, to refund any fees collected, to make restitution and/or to pay a fine that may range from $100 to $250 per incident; such informal dispositions are to be encouraged;

(4) and (5) [No Change.]

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

Rule 234. Civil Injunction Proceedings; General

(a) [No Change.]

(b) The petition shall be in writing and shall set forth the facts and charges in plain language and with sufficient particularity to inform the respondent of the acts complained of. The petition shall specify requested relief which may include, without limitation, injunction, refund, restitution, a fine, and assessment of costs of the proceeding.

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

Rule 236. Civil Injunction Proceedings;
Report of Hearing Master; Objections

(a) After the hearing, the hearing master shall report in writing to the Supreme Court in accordance with the order of reference, setting forth findings of fact, conclusions of law, and recommendations for final disposition of the case. If the hearing master makes a finding of unauthorized practice of law in the report, then the hearing master shall also recommend that a fine be imposed for each incident of unauthorized practice of law; the minimum fine for each incident shall be not less than $250 and not more than $1000. A report from the Presiding Disciplinary Judge approving the parties’ stipulation to injunction, may be exempt from a fine. Promptly after the report is filed with the Supreme Court, the Clerk shall mail copies thereof to all parties.

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

Rule 238. Contempt Proceedings; General

(a) and (b) [No Change.]

(c) Upon the filing of a petition, the Supreme Court may issue a citation directing the respondent to show cause why he should not be held in contempt of the Supreme Court for the unauthorized practice of law, or the Supreme Court may, in the alternative, issue a show cause order in civil injunctive proceedings which shall be governed by Rules 234 to 237. If a citation is issued, the citation shall state that a fine of not less than $2000 per incident or imprisonment may be imposed to vindicate the dignity of the Supreme Court.

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

Rule 239. Contempt Determination by
Court Proceedings; Report of Hearing Master;
Objections

(a) After the conclusion of the hearing, the hearing master shall report in writing to the Supreme Court, setting forth the hearing master’s findings of fact, conclusions of law, and, upon a finding of contempt, recommendations for punishment. If the matter proceeds to trial and the hearing master makes a finding of contempt but does not recommend imprisonment, then the hearing master shall recommend that a fine be imposed for each incident of contempt; the minimum fine for each incident shall be not less than $2,000 and not more than $5,000. Promptly after the report is filed with the Supreme Court, the Clerk of the Supreme Court shall mail copies thereof to the parties.

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

Rule 240.2. Expunction of Records

(a) Expunction—Self-Executing. Except for records relating to proceedings that have (1) become public pursuant to C.R.C.P 234, et seq., (2) resulted in a finding of unauthorized practice of law, or (3) resulted in agreements, all records relating to proceedings that were dismissed without a finding of unauthorized practice of law shall be expunged from the files of the committee, the Presiding Disciplinary Judge, and Regulation Counsel three years after the end of the year in which the dismissal occurred.

(b) Definition. The terms "expunge" and "expunction" shall mean the destruction of all records or other evidence of any type, including but not limited to, the request for investigation, the response, the investigator’s notes, and the report of investigation.

(c) Notice to Respondent. If proceedings conducted pursuant to these Rules (or their predecessor) were commenced, the attorney in question shall be given prompt notice of the expunction.

(d) Effect of Expunction. After expunction, the proceedings shall be deemed never to have occurred. Upon either general or specific inquiry concerning the existence of proceedings which have been expunged, the committee or the Regulation Counsel shall respond by stating that no record of the proceedings exists. The respondent in question may properly respond to any general inquiry about proceedings which have been expunged by stating that no record of the proceedings exists. The respondent in question may properly respond to any inquiry requiring reference to a specific proceeding which has been expunged by stating only that the proceeding was dismissed with no finding of unauthorized practice of law and that the record of the proceeding was expunged pursuant to this Rule. After a response is provided and is given to an inquirer, no further response to an inquiry into the nature or scope of the proceedings which have been expunged needs be made.

(e) Retention of Records. Upon written application to the committee, for good cause and with written notice to the respondent in question and opportunity to such respondent to be heard, the Regulation Counsel may request that records which would otherwise be expunged under this Rule be retained for such additional period of time, not to exceed three years, as the committee deems appropriate. The Regulation Counsel may seek further extensions of the period for which retention of the records is authorized whenever a previous application has been granted.

Amended and Adopted by the Court, En Banc, December 14, 2006, effective January 1, 2007.

By the Court:

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

© 2007 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=2007.


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