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TCL > March 2007 Issue > Court Business

March 2007       Vol. 36, No. 3       Page  123
From the Courts
Court Business

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).

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 2007-01
(Finalized and Effective January 9, 2007)


ISSUE PRESENTED

The requesting judge states that approximately one year ago, the judge’s adult daughter was charged with a misdemeanor in one case and traffic offenses in another. The daughter was represented by a local criminal defense attorney who resolved both cases. The judge agreed to pay the attorney directly for his representation, and the judge worked out a reimbursement plan with the judge’s daughter. The judge states that it was clear to all that the attorney represented the daughter and not the judge; the judge did not receive any legal advice from the attorney. The judge recently transferred to a criminal division and the attorney who represented the judge’s daughter will have cases in the judge’s division. The judge asks whether the same disqualification guidelines outlined in our 2006-05 opinion, which addressed situations in which an attorney represents a judge, apply where an attorney represents a family member who is an adult and not living in the same household as the judge.

CONCLUSIONS

The judge need not disqualify herself or himself on a sua sponte basis when the attorney who represented the judge’s adult daughter appears before the judge. The judge should consult the judge’s own conscience to determine whether disqualification is warranted if the judge maintains a disabling prejudice for or against the attorney. If the judge concludes that disqualification is unnecessary, disclosure of the daughter’s representation still may be appropriate 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. In this case, the Board recommends that the judge issue a one-time disclosure letter to the district attorney’s office, whose lawyers always would be opposing counsel in matters involving the private criminal defense attorney who represented the judge’s daughter.

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

As the requesting judge noted, the Board recently considered the circumstances under which a judge who had been represented by an attorney in a dissolution action must disqualify himself or herself or must disclose the representation. In that opinion, 2006-05, the Board concluded 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 because a failure to disqualify would give rise to an appearance of impropriety. Disqualification is not necessary after the representation has ended where the judge has been represented in the judge’s official capacity. However, where the judge has been represented in a personal matter, the Board concluded that the judge should continue to disqualify himself or herself for a period of one year to allow any reasonable inferences of partiality or impropriety to subside. At the end of one year, the judge should consider whether the facts and circumstances make continued disqualification appropriate. Finally, we determined that 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. 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.

In applying the framework we laid out in 2006-05 to this request, we first conclude that under the facts presented here, no sua sponte disqualification by the judge is necessary. Here, the attorney represented the judge’s daughter rather than the judge. This distinction is significant. Although the judge paid for the daughter’s representation (for which the daughter reimbursed the judge), the judge never received any legal advice from the attorney, it was clear to all that the attorney represented the daughter and there was no attorney-client relationship between the judge and the attorney. Under these circumstances, there can be no presumption of any personal relationship between the judge and the attorney. The lawyer had no duty to vigorously represent the judge’s interests, and while some personal interest in the daughter’s welfare can be presumed, the judge’s interest is likely to be significantly attenuated as compared to that of the daughter. See NYSBA Op. 673. Further, because the prior representation is now over, the judge is in no position to confer any benefit upon the daughter through favorable treatment of the lawyer. The mere prospect that the judge may owe the attorney a debt of gratitude for assisting the judge’s daughter is not enough, alone, to require disqualification.

The standard of Canon 3, however, is an objective one, based on the perceptions of a reasonable disinterested observer. The existence of a family connection anywhere in the case could reasonably affect an observer’s calculation of the judge’s impartiality. Therefore, the Board recommends that a judge assess the prior representation of a relative on the same basis as if the judge had been represented by the lawyer, and apply the guidelines to assessing disqualification set forth in 2006-05.

Here, these general principles should be tempered to recognize that the judge’s daughter, rather than the judge, was the client. Thus, although we conclude that the judge is not required to disqualify herself or himself, we recommend that the judge consult the judge’s own emotions and conscience to determine whether, based on the judge’s subjective assessment, disqualification might nonetheless be appropriate because the judge believes that the judge cannot be impartial. See N.Y. Ad. Op. 00-68. Nothing in the facts presented by the judge gives rise to a perception that the judge maintains a disabling prejudice for or against the attorney, but only the judge can determine whether the judge can be impartial.

Finally, we reiterate that, as we determined in 2006-05, the judge should disclose that the criminal defense attorney represented the daughter 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. See also N.Y. Ad. Op. 00-68. In this case, we recommend that the requesting judge write a letter to the district attorney’s office noting that the judge recently has been rotated into the criminal division and disclosing that the particular private criminal defense attorney in question represented the judge’s adult daughter in two criminal matters, and that the judge paid the attorney’s fee. Under the unique circumstances of this case, in which the district attorney’s office will always be the opposing party when the attorney who represented the daughter appears, the judge need make the disclosure only once. In recommending that the judge make this one-time disclosure, however, we emphasize that disclosure of the daughter’s representation is not an admission of bias on the part of the judge.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 9th day of January 2007.

Board member Daniel S. Hoffman does not participate in this opinion.

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 2007-02
(Finalized and Effective February 1, 2007)

ISSUE PRESENTED

The requesting judge serves in a part-time capacity on the county Bench in a rural district. The judge states that she is being recruited to serve on a soon-to-be-formed all-volunteer board of directors for a public charter school in a different county and different judicial district. The school is a nonprofit entity that has been approved for charter status by the state. The only special benefit that the judge would enjoy as a board member would be founding-member status, which would entitle her child to a place in the school. The judge notes that space in the school will be limited and that decisions as to who will be admitted, other than children of founding members, will be decided by a lottery. The school will obtain most of its funding from state and federal government, and it may apply for grants from private foundations and seek private donations. If the judge does serve on the board, however, she will not be expected to do any fundraising. The board plans to retain counsel or work with volunteer attorneys. The judge states that if any such attorney were to appear in her court, she could disclose the fact of the board’s use of the attorney’s services and recuse upon request. Given these parameters, may the judge serve on the board for this public charter school?

CONCLUSION

The judge may serve on the board of directors of a public charter school in a neighboring judicial district.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 5B encourages a judge to participate in civic and charitable activities and specifies that a judge may serve as an officer, director, trustee, or nonlegal advisor of an educational organization if not conducted for the economic or political advantage of its members. Subsection 1 of the Canon also provides that a judge should not serve if the organization likely will be engaged in proceedings that would ordinarily come before the judge or will regularly be engaged in adversary proceedings in any court. Additionally, Canon 5B(2) directs that a judge shall not personally solicit funds for any educational organization and may not permit the use of the prestige of the judge’s office for that purpose. However, a judge may serve and be listed as a director of an educational organization and may assist in the planning and organizing of fund-raising events and attend those events.

Canon 5G states 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

Canon 5B encourages judges to engage in the life of their communities by participating in civic and charitable activities, so long as those activities do not interfere with the judge’s official duties or reflect adversely on his or her impartiality. The Canon expressly permits judges to serve as directors of educational institutions, provided that the organization does not operate for the economic benefit of the board, and that the judge does not personally solicit funds or provide legal advice to the organization. Canon 5G, on the other hand, directs judges not to accept appointment to a governmental committee or commission concerned with matters of fact or policy other than the law, the legal system, or the administration of justice.

The first issue thus becomes whether service on a nonprofit public charter school board of directors is a charitable and educational activity governed by Canon 5B or a governmental appointment controlled by Canon 5G. We conclude that it is the former. Colorado statutes provide that a charter school shall be administered and governed by a governing body in a manner agreed to by the charter school and the local board of education. See § 22-30.5-104(4), C.R.S (2006). The charter school may, as here, organize as a nonprofit organization. Id. Unlike the local board of education of a public school district, members of the board of a charter school do not conduct campaigns and run for election, are not chosen by the qualified electors who reside within the boundaries of the school district, and do not make public policy decisions or answer to their constituents. Moreover, although public charter schools receive government funding, they are not government operated and they retain independence from government control, making them more akin, in terms of governance, to private than public schools. See generally § 22-30.5-104, C.R.S (2006). Thus, we conclude that the board of directors of a nonprofit public charter school is not a governmental organization. It follows, therefore, that the judge’s service on the board is not a governmental position. Hence, Canon 5G does not preclude the judge’s membership on the board. Cf. Ariz. Ad. Op. 96-05; S.C. Ad. Op. 16-02.

In addition, we observe that none of Canon 5B’s limitations on participation in charitable and civic activities poses an impediment to the judge’s service on the board under the facts presented here. The board is a nonprofit entity that is not used for the economic advantage of its members; it does not appear that the school is conducted for the political advantage of its members either. The judge notes that she will not be expected to raise any funds on behalf of the school. Under Canon 5B(2), she may assist in the planning and organizing of fundraising events, and she may attend the same. Although she does not explicitly so state, we presume that, consistent with Canon 5B, the judge will not permit the prestige of her office to be used for fundraising purposes, and we suggest that she be listed on board materials by name only, with no reference to her title. In addition, the judge will not be called on to serve as a legal advisor to the board as the school plans to retain counsel or work with volunteer attorneys. Moreover, it is unlikely that the organization will be engaged in proceedings that would ordinarily come before the judge, particularly because the judge sits on the county Bench in a judicial district outside the county in which the charter school is located. There is no indication that the board of directors or the charter school itself will be regularly engaged in adversary proceedings in any court. Thus, under the facts presented by the requesting judge, nothing in Canon 5B precludes the judge from serving on the board. If any of these conditions change, however, the judge should reassess her participation in light of Canon 5B.

In light of Canon 5B’s clear mandate encouraging participation in charitable and educational activities and Canon 5G’s inapplicability, we conclude that the judge may serve on the board of directors of a public charter school in a neighboring judicial district.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 1st day of February 2007.

Board member James Wallace does not participate in this opinion.

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 2007-03
(Finalized and Effective February 1, 2007)

ISSUE PRESENTED

The requesting judge sits on the district court in a large urban district. He has been invited to join a volunteer grant-making committee of a local community foundation. The foundation disperses more than $10 million per year to community institutions and nonprofit organizations throughout the region in five key program areas, including health care, the focus of the committee on which the judge has been asked to serve. The judge’s role would be limited to determining, along with other committee members, which grant applicants should be awarded foundation funds. He would not engage in any fundraising on behalf of, or provide any investment advice to, the foundation or the committee. May the judge serve on the committee?

CONCLUSION

The judge may serve on a grant-making committee of a community foundation.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 5B encourages a judge to participate in civic and charitable activities. It provides that a judge may serve as an officer, director, trustee, or nonlegal advisor of a charitable, social, or civic organization if not conducted for the economic or political advantage of its members. Subsection 1 of the Canon also provides 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 regularly be engaged in adversary proceedings in any court. Canon 5B2 states that a judge shall not personally solicit funds for any charitable organization and may not permit the use of the prestige of the judge’s office for that purpose. However, a judge may assist in the planning and organizing of fundraising events, and may attend those events.

DISCUSSION

As the Board noted in 2007-02, the companion opinion to this request, Canon 5B broadly encourages judges to participate in civic and charitable activities that do not adversely reflect on the judge’s impartiality or interfere with his ability to carry our his judicial duties. Subject to certain caveats outlined in the Canon and reiterated in that opinion, judges may serve as nonlegal advisors or directors for such organizations.

In the Board’s view, the judge’s proposed activity falls squarely within Canon 5B. Accordingly, we conclude that the judge may serve as a volunteer member of the foundation’s grant-making committee. Cf. N.M. Ad. Op. 99-03; Oh. Ad. Op. 90-16.

Our conclusion is tempered, however, by the limitations described in the Canon. Thus, we reiterate that the judge should not personally solicit funds on behalf of the organization. He may personally make donations to the organization, (which donations could be matched by the foundation), and he is not foreclosed from participating in the planning or organizing of fundraising events, so long as the prestige of his judicial office is not used for fundraising purposes. The judge also must not provide legal or investment advice to the foundation and the committee. Finally, he should review on a regular basis whether the foundation is frequently engaged in adversary proceedings in any court and, if so, reassess the propriety of his continued participation as a committee volunteer.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 1st day of February 2007.

Board member James Wallace does not participate in this opinion.

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 Rules Committee

Rule Change 2007(01)
Chapter 35, Colorado Rules for Magistrates
Amended and Adopted

Rule 6. Functions of District Court Magistrates


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


(d) Functions in Juvenile Cases:
A juvenile court magistrate shall have all of the powers and be subject to the limitations prescribed for juvenile court magistrates by the provisions of Title 19, Article 1, C.R.S. Unless otherwise set forth in Title 19, Article 1, C.R.S., consent in any juvenile matter shall be as set forth in CRM 3(f)(1).


Amended and Adopted by the Court, En Banc, January 11, 2007, effective immediately.

By the Court:


Nancy E. Rice, Justice
Colorado Supreme Court


Rule Change 2007(02)
Chapter 26, Colorado Rules of Procedure for Small Claims Courts
Amended and Adopted

Rule 520. Attorneys

(a) [No Change.]

(b) When Attorneys are Permitted in Small Claims Court. On the written notice of the defendant, that the defendant will be represented by an attorney, pursuant to forms appended to these rules filed not less than seven days before the first scheduled trial date, the defendant may be represented by an attorney. The notice of Representation shall advise the plaintiff of the plaintiff’s right to counsel. Thereupon, plaintiff may also be represented by an attorney. If the notice is not filed at least seven days before the date set for the first scheduled trial date in the small claims court, no attorney shall appear for either party.

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

(e) Small Claims Court Rules to Apply. Any small claims court action in which an attorney appears shall be processed and tried pursuant to the statutes and court rules governing small claims court actions.

Amended and Adopted by the Court, En Banc, January 11, 2007, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court


Rule Change 2007(03)
Appendix to Chapter 26, Small Claims Courts Forms
Amended and Adopted

Introductory Statement.
Forms of captions are to be consistent with Rule 10, C.R.C.P.
An addendum should be used for identifying additional parties or attorneys when the space provided on a pre-printed or computer-generated form is not adequate.

SPECIAL FORM INDEX

JDF-249 Notice of Non-compliance and Order
JDF-250 Notice, Claim and Summons to Appear for Trial (four parts)
Amended and Adopted by the Court, En Banc, January 11, 2007, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court


Rule Change 2007(04)
Chapter 27, Colorado Rules of Probate Procedure
Amended and Adopted

(new) RULE 18—FOREIGN PERSONAL
REPRESENTATIVES AND CONSERVATORS

(a) Estates of Decedents

(1) After the death of a nonresident decedent, copies of the documents evidencing appointment of a domiciliary foreign personal representative may be filed as provided in Section 15-13-204 C.R.S. Such documents must have been certified, exemplified or authenticated by the appointing foreign court not more than sixty days prior to filing with a Colorado court, and shall include copies of all of the following that may have been issued by the foreign court

A. The order appointing the domiciliary foreign personal representative, and

B. The letters or other documents evidencing or affecting the domiciliary foreign personal representative’s authority to act.

(2) Upon filing such documents and a sworn statement by the domiciliary foreign personal representative stating that no administration, or application or petition for administration, is pending in Colorado, the court shall issue its Certificate of Ancillary Filing, substantially conforming in form and content to CPC Form 61.

(b) Conservatorships

(1) After the appointment of a conservator for a person who is not a resident of this state, copies of documents evidencing the appointment of such foreign conservator may be filed as provided in Section 15-14-433 C.R.S. Such documents must have been certified, exemplified or authenticated by the appointing foreign court not more than sixty days prior to filing with a Colorado court, and shall include copies of all of the following:

A. The order appointing the foreign conservator,

B. The letters or other documents evidencing or affecting the foreign conservator’s authority to act, and

C. Any bond of the foreign conservator.

(2) Upon filing such documents and a sworn statement by the foreign conservator stating that a conservator has not been appointed in this state and that no petition in a protective proceeding is pending in this state concerning the person for whom the foreign conservator was appointed, the court shall issue its Certificate of Ancillary Filing, substantially conforming in form and content to CPC Form 61-C.

Adopted by the Court, En Banc, January 11, 2007, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court


Rule Change 2007(05)
Appendix A to Chapter 27, Colorado Probate Code Forms
Amended and Adopted

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

CPC (New) Form 60 DOMICILIARY FOREIGN PERSONAL REPRESENTATIVE’S SWORN STATEMENT
CPC (New) Form 60-C FOREIGN CONSERVATOR’S SWORN STATEMENT
CPC (New) Form 61 CERTIFICATE OF ANCILLARY FILING
CPC (New) Form 61-C CERTIFICATE OF ANCILLARY FILING

Adopted by the Court, En Banc, January 11, 2007, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court


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 85-22
Rate of Interest on Judgments That Are Appealed
Done January 25, 2007

Pursuant to the cited references, the Colorado Secretary of State has certified the following rates of interest on judgments that are appealed:

Effective Date

Rate

 Date Certified

January 1, 1997

7%

January 3, 1997

January 1, 1998

7%

January 1, 1998

January 1, 1999

7%

January 4, 1999

January 1, 2000

7%

January 1, 2000

January 1, 2001

8%

January 1, 2001

January 1, 2002

3%

January 1, 2002

January 1, 2003

3%

January 2, 2003

January 1, 2004

4%

January 2, 2004

January 1, 2005

5%

January 1, 2005

January 1, 2006

7%

January 3, 2006

January 1, 2007

8%

January 2, 2007

APPROVED BY THE CHIEF JUSTICE

Mary J. Mullarkey


United States Bankruptcy Court
For the District of Colorado

In the Matter of Procedures for
Section 1112(b)(1) Motions to Dismiss or Convert Chapter 11 Cases
General Procedure Order 2007-1

Whereas, 11 U.S.C. § 1112(b)(3) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") requires the court to commence a hearing on a motion to dismiss or convert a Chapter 11 case pursuant to section 1112(b)(1)1 ("Motion") not later than 30 days after filing of the motion, and to decide the motion not later than 15 days after commencement of such hearing, unless the movant expressly consents to a continuance for a specific period of time or compelling circumstances prevent the court from meeting the time limits established by section 1112(b).

Whereas, the Court determines that it is necessary to implement a procedure to meet the requirements of section 1112(b)(3) to achieve timely disposition of section 1112(b) motions to dismiss or convert. In furtherance thereof, the following procedures shall apply:

A. Select a Hearing Date. The party intending to file a motion to dismiss or convert under section 1112(b)(3) shall select a date and time for a hearing from the available dates for hearings on motions for relief from stay of the judge to whom the debtor’s case is assigned. Available dates may be found on the Court’s web page at www.cob.uscourts.gov under Calendar/Relief from Stay.

The party intending to file such a Motion shall select the latest hearing date from the relief from stay calendar of the judge to whom the debtor’s case is assigned that is not more than thirty (30) days from the date the motion to dismiss or convert is filed.

B. Service, Form of Notice, and Objection Date. The party filing the motion to dismiss or convert ("Movant") shall serve: (1) the Motion, (2) a Notice in substantial conformity to Exhibit A attached to this General Procedure Order, and (3) a proposed order on all creditors and parties in interest in accordance with applicable rules either before or at the time of filing the Motion.

For purposes of meeting the requirements of F.R.Bankr.P. 2002(a) and 2002(g) to serve all creditors and parties in interest at their address of record, the Movant should use the "Mailing Matrix" as of the date of service of the Notice and Motion in the Court’s electronic data base for the case found on PACER. Movant may access that data base from PACER under "Reports" and "Mailing Matrix" and shall attach the printed copy of that list to the certificate of mailing filed with the Court.

The Notice shall advise that an objection must be filed with the Court no later that five (5) court days prior to the hearing date in the Notice and shall be served on the Movant, the United States Trustee and the Creditors’ Committee (or 20 largest unsecured creditors if no committee has been formed). The Movant shall file a certificate of service with the Court at the time of filing the Motion and Notice.

C. Procedure for Hearing if Objection Filed. If objections to the Motion are filed, the Court will commence the hearing and the following procedures shall apply:

1. No witnesses will be examined and no testimony will be taken. Proffers of evidence will be presented in the manner hereinafter specified.

2. In lieu of testimony, a party intending or desiring to present evidence shall do so by way of counsel’s oral declaration of facts. Such declaration shall be limited to proffers of the evidence, which the party would submit in sufficient detail to enable the court to make specific findings based thereon, and shall include the identity of the witnesses who would be available at an evidentiary hearing to present such testimony. Written summaries of witnesses’ testimony are not required but may be submitted.

3. Prior to the hearing, parties shall exchange all exhibits they intend to use, or may reasonably anticipate using (Movant’s exhibits must be numbered and the objector’s must be lettered). The exhibits shall be tendered to the court at the hearing, together with a statement identifying the witness or witnesses who would be called to identify and lay the foundation for the introduction of such exhibits.

4. Objections to tendered declarations or exhibits shall be made at the conclusion of each party’s declaration. Any objections made shall identify the evidence objected to and specify the legal ground therefor.

5. After considering the declarations, exhibits and arguments presented and if disputed issues of fact require that an evidentiary hearing be held, the court will decide:

(a) whether to set the matter over for further evidentiary hearing within 15 days of the date the hearing was commenced; or

(b) whether compelling circumstances prevent the court from meeting the time limits established by 11 U.S.C. § 1112(b)(3); and/or

(c) whether the Movant expressly consents to a continuance for a specific period of time.

D. Procedure to Obtain an Order when No Objections are Filed.

1. Motion Requests Dismissal or Conversion in the Alternative. If no objections are filed in response to the Motion and the Motion has requested alternative relief, i.e., either dismissal or conversion of the case, the moving party shall appear at the time of the hearing and present proffers of evidence in the manner described above to permit the Court to determine whether conversion or dismissal is in the best interests of the creditors and the estate.

2. Motion Specifically Requests Dismissal or Conversion. If the moving party has specifically requested dismissal of the case or conversion of the case, but not relief in the alternative, and no objections are filed, the hearing may be vacated and the moving party may submit a certificate of noncontested matter three (3) court days after the date on which objections are due.

E. Movant’s Election to Proceed Under § 1112(b) Without Expedited Schedule. Movant may elect to prosecute a motion to dismiss or convert under 11 U.S.C. § 1112(b) without using the expedited procedures established by this General Procedure Order by instead prosecuting the Motion in the manner prescribed by Local Bankruptcy Rule 202. If Movant prosecutes the Motion pursuant to L.B.R. 202, this will be deemed an explicit waiver of the requirements of 11 U. S.C. § 1112(b)(3).

F. Noncompliance with this Procedure. If the Movant has utilized the procedures provided for in this General Procedure Order but fails to comply fully with the procedures established, such failure will be deemed a waiver of the time limits established by 11 U. S.C. § 1112(b)(3).

__________

1. This procedure DOES NOT APPLY to motions to convert filed by debtors under 11 U.S.C. § 1112(a).

Dated: January 29, 2007

By the Court:

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


 In the Matter of Procedures for Fee Applications in Chapter 13 Cases
General Procedure Order 2007-2

Upon the report of representatives of the Chapter 13 Bar, and its own investigation, the Court determines that it is appropriate to update and revise in accordance with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") the system for awarding attorneys fees and costs in Chapter 13 to reflect the additional obligations imposed by the BAPCPA. In furtherance thereof,

IT IS HEREBY ORDERED that:

1. The following presumptively reasonable fee allowance ("PRF") procedures will be applicable in all Chapter 13 cases filed on or after January 1, 2007. This Order shall supersede L.B.R. 216 and Second Amended General Order 2001-1. Cases filed prior to January 1, 2007 remain subject to the Second Amended General Order 2001-1.

2. In order to be eligible to use the PRF Procedure described in ¶4a below, applicants must:

a. provide the "Basic Services" as specified in Exhibit A to this GPO ("Exhibit A"), as necessary and appropriate; and

b. submit an affirmative declaration, in conjunction with filing the Fee Application, that:

(i) they are not excluding any of the Basic Services; and

(ii) that they have provided a copy of Exhibit A to their client with the engagement letter or fee agreement.

3. In the event that any Basic Services are excluded or if the total fees (not including expenses) exceed $3,000, the attorney cannot use the PRF procedure described in ¶4a, but must use that in ¶4b.

4. Applications for allowance of fees and reimbursement of expenses pursuant to the PRF procedure must be made using Exhibit B to this GPO ("Exhibit B"). Applications must be filed no sooner than the date of entry of the Order confirming the Chapter 13 plan and no later than 15 days after the date of entry of the Order confirming the Chapter 13 plan. Applications must be served on the Chapter 13 Trustee, the debtor(s), and all Entries of Appearance with a notice conforming to Exhibit C. The Chapter 13 Trustee, the debtor(s) and all Entries of Appearance must have 20 days notice from the date of service to file an objection.

a. If the total fees charged for representation of debtor(s) up to the date of the entry of the order confirming the Chapter 13 plan do not exceed $3,000, Applicant need not supplement Exhibit B, except upon formal objection, written request of the Chapter 13 Trustee, or express order by the Court.

b. If the Applicant requests allowance of a fee in excess of $3,000 or Basic Services are excluded, the Application must be made by using Exhibit B, and the certificate contained in Exhibit B Supplement, and must be supplemented by

(i) a brief narrative discussing the results obtained or difficulties encountered,

(ii) detailed time records describing all individual services rendered in increments of tenths rendered,

(a) the time spent for each service,1

(b) the charge for each service,

(c) the Applicant’s billing rate (and/or applicants associate’s or paralegal’s billing rate),

(iii) such other and further information as the Applicant believes is necessary to justify allowance of the fee pursuant to 11 U.S.C. § 330(a), and

(iv) if any of the Basic Services on Exhibit A are excluded, a copy of the engagement letter.

Copies of the Application as supplemented must be provided to the Chapter 13 Trustee, the debtor(s), and all Entries of Appearance. Notice of the Application must be mailed to the above parties and all other creditors, claimants, and parties in interest providing 20 days to object.

5. If there is no objection, the Court may allow the fee as requested, order further supplementation or set the Application for hearing. Any Order setting a hearing on an unopposed Application will identify the inadequacies or deficiencies in the Application which may result in reduction or disallowance of the requested fees or expenses. If an objection is filed, the Application and objection will promptly be set for hearing.

6. The Attorney must submit a form of order in substantial conformity with Exhibit D to this GPO except that the form of order shall include the specific amounts of fees and expenses requested and payable from plan payments. The form of order shall not be submitted in blank.

This General Order is effective nunc pro tunc January 1, 2007.

__________

1. No lumping of time entries. Applicant must state specifically the amount of time for each task.

Dated: January 29, 2007

By the Court:

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

Commentary

The PRF does not include services required for adversary proceedings.

When requesting fees using ¶4(a) of the PRF procedure, attorneys are not required to submit their engagement letter or other fee agreement, detailed time slips, or a narrative unless otherwise ordered by the Court, or requested by the Trustee or an objecting party. However, attorneys are advised that if their fees are questioned, it may be difficult, if not impossible, to prevail without the assistance of some or all of those items.

It is expected that the engagement will last through the earlier of consummation of the plan, entry of discharge, conversion or dismissal of the case. The PRF procedure is for requesting fees through the date of plan confirmation and is not intended to limit the scope of Chapter 13 engagements. The PRF process does not and should not limit the ability of debtors’ attorneys to provide services post-confirmation. The court will entertain further fee applications, supported by time records, for post-confirmation work.

© 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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