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TCL > June 2008 Issue > Court Business

The Colorado Lawyer
June 2008
Vol. 37, No. 6 [Page  107]

© 2008 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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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). Material printed in Court Business appears exactly as submitted by the court and has not been edited by the staff of The Colorado Lawyer.


Colorado Supreme Court Rules Committee

Notice of Public Hearing and Request for Comments

C.R.C.P. Chapter 18, Rule 227 (Registration Fee)
Rules Governing Admission to the Bar

Hearing to be Held Tuesday, September 9, 2008, at 1:30 p.m.
Deadline for Comments: August 12, 2008, 5:00 p.m.

The Colorado Supreme Court will conduct a hearing on the proposed changes to C.R.C.P. 227, Registration Fee, on Tuesday, September 9, 2008, at 1:30 p.m. in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. The Court also requests written public comments by any interested person on these proposed rule changes. An original and eight copies of the written comments concerning the changes should be submitted to Susan J. Festag, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203, no later than 5:00 p.m. on Tuesday, August 12, 2008. Persons wishing to participate at the hearing should notify Ms. Festag no later than Tuesday, August 12, 2008. Proposed rule changes are available on the Court’s website at www.courts.state.co.us/supct/proposedrulechanges.htm.

By the Court:

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


Summary of Proposed Changes to C.R.C.P. 227

The Supreme Court is considering proposed changes to Rule 227 (Registration Fee). The proposed changes are as follows:

1. Professional Liability Insurance Disclosure.

The Colorado Supreme Court Advisory Committee proposed a rule change that requires every Colorado attorney engaged in the private practice of law to disclose on their annual attorney registration statement whether the attorney is covered by professional liability insurance. The rule also requires the attorney to affirm their intention to maintain insurance while engaged in the private practice of law. The information provided will be made available to the public through the attorney registration/regulation website.

Prior to recommending the rule, the Advisory Committee studied the issue for several years. The Advisory Committee considered three models of disclosure now in use by several states around the country. The Advisory Committee favored the annual disclosure on the attorney’s registration statement over requiring direct disclosure to clients or mandatory malpractice coverage. The proposed rule closely follows a 2004 ABA model court rule on insurance disclosure. Currently, eighteen states require similar disclosure on registration statements and five states require disclosure directly to clients. Oregon is the only state that requires malpractice insurance.

2. Attorney Registration Fee.

The proposed changes clarify the Supreme Court’s exclusive authority to set the annual registration fee for Colorado attorneys. The rule also sets forth the court’s intention to periodically determine if an increase in the fee is warranted. Additionally, the rule eliminates the requirement that delinquency notices be mailed by certified mail and sets a specific date for administrative suspension. The proposed changes will immediately result in a reduction in the cost incurred in the administration of the rule.

Rule 227. Registration Fee
A. Registration Fee of Attorneys and Attorney Judges

(1) General Provisions.

(a) Fees. On or before February 28 of each year, every attorney admitted to practice in Colorado (including judges, those admitted on a provisional or temporary basis and those admitted as judge advocate) shall annually file a registration statement and pay a fee as set by the Colorado Supreme Court. of $225.00; As of 2008, the fees set by the court are as follows: the fee for active attorneys is $225.00; provided that the fee of any attorney whose first admission to practice is within the preceding three years is shall be $180.00; . Tthe annual fee for an attorneys on inactive status shall be is $95.00. All persons first becoming subject to this rule shall file a statement required by this rule at the time of admission, but no annual fee shall be payable until the first day of January following such admission. As necessary to defray the costs of disciplinary administration and enforcement, the costs incurred with respect to unauthorized practice of law matters, and expenses incurred in the administration of this rule, the Supreme Court will authorize periodic increases to the annual fee for every Colorado attorney.

(b) Collection of Fee. The annual fee shall be collected by the Clerk of the Supreme Court of Colorado, who shall send and receive the notices and statements provided for hereafter.

(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. Forty dollars shall be used to maintain an attorney’s fund for client protection. 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) Initial Registration of Non-Registered Attorneys. Every attorney admitted to practice in Colorado before January 1, 1974 who has not previously complied with the provisions of C.R.C.P. 227 may apply for registration with the cClerk of the Supreme Court of Colorado by filing a registration statement and paying a fee of $100.00.

(2) Statement.

(a) Contents. The annual registration statement shall be on a form prescribed by the Clerk, setting forth:

(1) date of admission to the Bar of the Colorado Supreme Court,;

(2) registration number,;

(3) current residence and office addresses, and, if applicable, a preferred mailing address for the Colorado Courts;

(4) certification as to (a) whether the attorney has been ordered to pay child support and if so, whether the attorney is in compliance with any child support order, (b) whether the attorney or the attorney’s law firm has established one or more interest-bearing accounts for client funds as provided in Colo. RPC 1.15, and if so, the name of the financial institution, account number and location of the financial institution, or, if not, the reason for the exemption, and (c) with respect to attorneys engaged in the private practice of law, whether the attorney is currently covered by professional liability insurance and, if so, whether the attorney intends to maintain insurance during the time the attorney is engaged in the private practice of law; and

(5) such other information as the Clerk may from time to time direct.

(b) Notification of Change. Every attorney shall file a supplemental statement of change in the information previously submitted, including home and business addresses, within 30 days of such change. Such change shall include, without limitation, the lapse or termination of professional liability insurance without continuous coverage.

(c) Availability of Information. The information provided by the lawyer regarding professional liability insurance shall be available to the public through the Supreme Court Office of Attorney Registration and on the Supreme Court Office of Attorney Registration website.

(3) Compliance.

(a) Late Fee. Any attorney who pays the annual fee or files the annual registration statement after February 28 but on or before March 31 shall pay a late fee of $50.00 in addition to the registration fee. Any attorney who pays the annual fee or files the annual registration statement after March 31 shall pay a late fee of $150.00 for each such year, in addition to the registration fee.

(b) Receipt—Demonstration of Compliance. Within 20 30 days of the receipt of each fee and of each statement filed by an attorney in accordance with the provisions of this rule, receipt thereof shall be acknowledged on a form prescribed by the Clerk in order to enable the attorney on request to demonstrate compliance with the requirement of registration pursuant to this rule.

(c) Initial Pleading Must Contain Registration Number. Whenever an initial pleading is signed by an attorney, it shall also include thereon the attorney’s registration number. Whenever an initial appearance is made in court without a written pleading, the attorney shall advise the court of the registration number. The number need not be on any subsequent pleading.

(4) Suspension.

Failure to Pay Fee or File Statement—Notice of Delinquency. Any attorney who fails to timely pay the fee or An attorney shall be summarily suspended if the attorney either fails to pay the fee or fails to file the a complete statement of or supplement thereto as required by this rule prior to May 1 shall be summarily suspended, provided a notice of delinquency has been issued by the Clerk and mailed to the attorney by certified mail addressed to the attorney’s last known mailing address at least 30 days prior to such suspension, unless an excuse has been granted on grounds of financial hardship.

(b) Failure of Judge to Pay Fee or File Statement. Any judge subject to the jurisdiction of the Commission on Judicial Qualifications or the Denver County Court Judicial Qualifications Commission who fails to timely pay the fee or file the a complete statement or supplement thereto as required by this rule shall be reported to the appropriate commission, provided a notice of delinquency has been issued by the Clerk and mailed to the judge by certified mail addressed to the judge’s last known business address at least 30 days prior to such reporting, unless an excuse has been granted on grounds of financial hardship.

(5) Reinstatement.

(a) Application—Reinstatement Fee. Any attorney suspended under the provisions of Ssection (4)(a) above shall not be reinstated until application for reinstatement is made in writing and the Clerk acts favorably on the application. Each application for reinstatement shall be accompanied by a reinstatement fee of $100.00 and payment of all arrearages and late fees to the date of the request for reinstatement.

(b) Report Judge’s Payment. If any judge who is reported to a commission under the provisions of section (4)(b) above subsequently makes payment of all arrearages, such payment shall be reported to the commission by the Clerk.

(6) Inactive Status.

(a) Notice. An attorney who has retired or is not engaged in practice shall file a notice in writing with the Clerk that he or she desires to transfer to inactive status and discontinue the practice of law.

(b) Payment of Fee—Filing of Statement. Upon the filing of the notice to transfer to inactive status, the attorney shall no longer be eligible to practice law but shall continue to pay the fee required under section (1)(a) above and file the statements and supplements thereto required by this rule on an annual basis.

(c) Exemption—Age 65. Any registered inactive attorney over the age of 65 is exempt from payment of the annual fee.

(7) Transfer to Active Status.

Upon the filing of a notice to transfer to inactive status and payment of the fee required under section (1)(a) above and any arrearage, if owed, an attorney shall be removed from the roll of those classified as active until and unless a request for transfer to active status is made and granted. Transfer to active status shall be granted, unless the attorney is subject to an outstanding order of suspension or disbarment, upon the payment of any assessment in effect for the year the request is made and any accumulated arrearage for non-payment of inactive fees.

(8) Resignation.

An attorney may resign from the practice of law in Colorado upon order of the Supreme Court and thereby be excused from paying the annual registration fee provided that no disciplinary or disability matter or order is pending against the attorney. Any attorney who wishes to resign must petition the Supreme Court pursuant to this Rule and tender the attorney’s certificate of admission with the petition. Any attorney who so resigns is not eligible for reinstatement or transfer to active or inactive status and may be admitted to the practice of law in Colorado only by complying with Rule 201 regarding admission to the practice of law. Any attorney who so resigns remains subject to the jurisdiction of the Supreme Court as set forth in Rule 241.1(b) with respect to the attorney’s practice of law in Colorado.

B. Registration Fee of Nonattorney Judges

(1) Every nonattorney judge who is subject to the jurisdiction of the Commission on Judicial Qualifications shall pay an annual fee of $10.00. The annual fee shall be collected by the Clerk of the Supreme Court of Colorado, who shall send and receive, or cause to be sent and received, the notices and fees provided for hereafter. The ten-dollar fee shall be used to pay the costs of establishing and administering the mandatory continuing legal education requirement. On or before March 1 of each year, the Chief Justice shall prepare, certify and file with the Clerk a written report of the receipts and disbursements under this rule during the preceding calendar year. These reports shall be public documents.

(2) Any nonattorney judge who fails to timely pay the fee required under subparagraph (1) above shall be reported to the Commission on Judicial Qualifications, provided a notice of delinquency has been issued by the Clerk and mailed to the nonattorney judge by certified mail addressed to the county court in the respective county seat at least 30 days prior to such reporting, unless an excuse has been granted on grounds of financial hardship.

(3) If any nonattorney judge who is reported to the Commission on Judicial Qualifications under the provisions of subparagraph (2) above subsequently makes payment of arrearages, such payment shall be reported to the Commission by the Clerk.

(4) On or before January 31 of each year, all nonattorney judges shall file any affidavit required by Rule 260.5 and shall pay the annual fee required by this rule.

(5) Within 20 days after the receipt of each fee in accordance with the provisions of subparagraph (4) above, receipt thereof shall be acknowledged on a form prescribed by the Clerk.

____________________

COMMENT

The Supreme Court sets the annual attorney registration fee. The annual attorney registration fee includes both attorneys on active status and attorneys on inactive status. Attorneys admitted under C.R.C.P 222 (Single-Client Certification) annually pay the active attorney fee. The Supreme Court apportions the active attorney fee to the various attorney regulation and registration offices; the continuing legal education office; the Attorney’s Fund for Client Protection; and, the Colorado Attorney Assistance Program.

To cover the operating costs of the various programs the court increased the annual attorney registration fee every six to eight years. In 2006, the court increased the active attorney registration fee fifteen percent. In 1998, to fund major changes to the attorney regulation system the court increased the fee seventy percent. The infrequent increases resulted in a surplus in the attorney registration/regulation fund for a period of years. In an effort to reduce the impact of a substantial fee increase every six to eight years the court adopted a more modest and consistent way of determining attorney registration fees. The court will authorize smaller but more frequent fee increases as necessary to cover operating expenses related to the costs of the attorney’s fund for client protection, attorney regulation, unauthorized practice of law matters, and administration of this rule.


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 2008-02
(Finalized and Effective April 4, 2008)

ISSUE PRESENTED

The requesting judge wished to attend February’s political party caucuses at which record numbers of Coloradoans turned out to help determine the presidential nominees for both of the major political parties. Ultimately, he did not attend the caucuses, but would like to do so in the future. In addition, he wishes to vote in the upcoming primary elections. He asks whether, under Colorado’s Code of Judicial Conduct, a judge may attend a political party caucus or vote in a primary election. If not, he questions whether such a prohibition violates his First Amendment rights.

CONCLUSIONS

A judge may not attend or participate in a precinct caucus; however, a judge may vote in a primary election.

Constitutional questions are beyond the scope of this Board’s authority; consequently, the Board renders no opinion on the First Amendment issue.

APPLICABLE CANONS OF THE CODE OF JUDICIAL CONDUCT

Canon 7A(1)(b) prohibits a judge from making speeches for a political organization or candidate, or publicly endorsing a candidate for public office.

Canon 7A(1)(c) prohibits a judge from attending a partisan political gathering.

Canon 7A(1)(d) prohibits a judge from engaging in any other political activity except on behalf of measures to improve the law, the legal system, the administration of justice or the role of the judiciary as an independent branch of government.

DISCUSSION

Colorado uses a merit-based method to select its judges, deliberately removing the selection process from the partisan political arena. Once a judge is sworn in, Colorado’s Canons of Judicial Conduct require the judge to maintain distance from partisan political activity in order to preserve the judge’s impartiality and independence. As this Board said in an earlier opinion:

The Code sets high standards for judicial conduct, and it proscribes judges from partaking in activities in which the ordinary citizen may freely indulge. The reach of the Code extends beyond judges’ professional obligations and into their nonjudicial lives. Judges must not only be impartial, but they also must conduct themselves in such a way that the public can perceive and continue to rely upon their impartiality. . . . Canon 7A governs political conduct, and generally prohibits a judge from having any involvement in political matters, whether partisan or nonpartisan.

C.J.E.A.B. Advisory Opinion 2005-05 (November 25, 2005).

A judge’s attendance at a precinct caucus would necessarily involve a judge in partisan political activity, in violation of Canon 7A(1)(c), and participation in the caucus would offend Canon 7A(1)(b)’s prohibition against publicly endorsing candidates for office. A "precinct caucus" as defined by the Uniform Election Code of 1992, C.R.S. § 1-1-101 et seq., is a meeting organized by a political party, under the rules and regulations of the party, and at which only those electors affiliated with the political party that organized the meeting may vote. C.R.S. § 1-1-104(34); C.R.S. § 1-3-101. Since, by definition, a caucus is a partisan political gathering, and a judge’s attendance indicates that he or she may be, or quite likely is, an elector, the judge’s attendance at the caucus would violate Canon 7A(1)(c). Furthermore, since the usual manner of conducting business at a precinct caucus is by open forum discussion, the judge’s participation implies public endorsement of a candidate for office in violation of Canon 7A(1)(b).

In contrast, a judge’s participation in a primary election does not involve the judge in partisan political activity in the sense that the judge is seen to be publicly endorsing a candidate. On the contrary, a primary election is not an open political gathering but rather is a secret ballot election organized and run by election officials employed by the state and subject to the requirements of the election code. C.R.S. § 1-1-104(32); C.R.S. § 1-4-101. Notably, the election process is designed to guarantee the anonymity of a voter’s choice of party and preferred candidates. C.R.S.§ 1-4-101(2),(4). As noted in Wash. Ad. Op. 92-04, this process protects a judicial officer who participates in a primary election from the appearance of endorsing either a party or a candidate. Although a participant in a primary election must be affiliated with a political party, the voter’s private registration of the voter’s affiliation does not rise to a public endorsement of the political party. Additionally, all expenses incurred in the preparation or conduct of the primary election are paid out of state or county treasuries. C.R.S. § 1-4-103(5). Thus, it is the Board’s opinion that a judge may participate in a primary election without violating the Code of Judicial Conduct.

The Board is aware that the 2007 A.B.A. Model Code of Judicial Conduct explicitly permits a judge to participate in either a caucus or a primary election. Canon 4.1, Comment 6. Although the Colorado Supreme Court has established a committee to recommend whether Colorado should adopt the new ABA Model Code in whole or in part, it is not currently in force in this state, and thus it does not alter the Board’s analysis of the question under the existing Colorado Code of Judicial Conduct.

We do not render an opinion on the question of a judge’s First Amendment rights as they are affected by the prohibitions found in Canon 7A. The scope of this Board’s authority is set forth in the Chief Justice Directive that created the Board, CJD 94-01 as amended. The Board is to provide "opinions concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct." CJD 94-01, I. The CJD specifically directs that an opinion of the Board shall "not address other issues of law . . ." CJD 94-01, XI(A). Thus, this Board has no authority to issue an opinion concerning the constitutionality of the Code of Judicial Conduct.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 4th day of April 2008.

Hon. Dennis Graham (judge member)
Hon. Christina Habas (judge member)
Prof. Melissa Hart (law professor member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)
Daniel Cordova, 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: 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 www.colorado.gov/dpa/doah.

Chief Justice Directive 00-01
Judical Vancancies
Amended April 2008

Colorado Constitution, Article VI, Section 20 provides that a judicial nominating commission must submit a list of nominees for a judicial vacancy to the governor "not later than thirty days after the death, retirement, tender of resignation, removal under section 23, failure of an incumbent to file a declaration under section 25 or certification of a negative majority vote on the question of retention in office under section 25."

In order to give the supreme court justice who will chair the nominating commission as much time as possible to publish the vacancy, and to permit the nominating commission as much time as possible to interview applicants and to submit nominees to the governor, and to clarify when the 30-day time period begins, the following policies and time frame definitions are adopted:

Policy—Notification to the Chief Justice

When a judge or justice decides to leave judicial office for any reason, he or she should write an informal letter to the chief justice setting forth the date of his or her last day in office. It is this informal letter to the chief justice that will permit the nominating commission to advertise the pending vacancy before the 30-day period begins to run. The chief justice should be given at least 60 days advance notice.

Policy—Notification to the Governor

The press release announcing the judicial vacancy informally notifies the governor that a judge is leaving office. There is no requirement that the judge notify the governor in writing of his or her intention to leave office. If the judge chooses to give such notice, the judge’s letter should be sent to the governor no sooner than seven days before the judge’s last day in office.

Policy—New Judgeships

When the governor signs legislation creating a new judgeship, the 30-day period for submitting names to the governor begins to run from the effective date of the creation of that office.

Time Frames Defined

"Certification of a negative majority vote on the question of retention in office under section 25"Date the secretary of state certifies the election results.

"Death"Date of death or, if death is not immediately known or discovered, date on which chief justice is notified of death.

"Failure of an incumbent to file a declaration under section 25"Date set by secretary of state as final day to file a declaration of intent to run for another term.

"Removal under Section 23"Date the supreme court issues order removing justice or judge.

"Retirement"Actual date of retirement.

"Tender of resignation"—When a judge sends a letter to the governor stating that he or she is resigning on a specific date, the letter will be treated as a "tender of resignation." The letter should use the following or similar language: "I hereby tender my resignation from my judicial office, which resignation is effective as of _________."

It is extremely difficult for a nominating commission to complete its work in 30 days. Informal notice to the chief justice prior to the start of the 30-day deadline will give the nominating commission additional time to fulfill its important responsibilities.Done at Denver, Colorado this 11th day of April 2008.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court

Notice to Readers Regarding CJD 05-03 and CJD 08-03

Attention Readers: Chief Justice Directive (CJD) 05-03 and CJD 08-03 printed in the May 2008 issue of The Colorado Lawyer at page 110 and 116, respectively. The following information was received from the Court after publication of the May issue. Please refer to the Court’s website for the most current versions of these CJDs.

CJD 05-03. Management Plan for Court Reporting and Recording Services
Amended March 2008

  • This directive is amended to clarify language and to reflect changes in the distribution of transcripts by the Appellate Courts.
  • If you have any questions concerning this directive, contact Mindy Masias, Director of Human Resources, at (303) 837-3603 or mindy.masias@judicial.state.co.us.

CJD 08-03. Information Technology Hardware/Software Policy
Amended as of April 2, 2008

  • This directive is amended to clarify an issue of payment for BlackBerry licenses.
  • If you have questions concerning this directive, please contact Carol Haller, Legal Counsel, at (303) 861-1111 or carol.haller@judicial.state.co.us.

© 2008 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=2008.


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