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TCL > December 2008 Issue > Court Business

December 2008       Vol. 37, No. 12       Page  105
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 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

Chapter 20
Colorado Rules of Procedure Regarding
Attorney Discipline and Disability Proceedings, Colorado
Attorneys’ Fund for Client Protection, and Mandatory
Continuing Legal Education and Judicial Education

Colorado Rules of Civil Procedure Rule 251.8 and Rule 251.31

Hearing to be Held Wednesday, January 21, 2009 at 1:30 P.M.

The Colorado Supreme Court will conduct a hearing on the proposed changes to C.R.C.P. 251.8, Immediate Suspension, and C.R.C.P. 251.31, Access to Information Concerning Proceedings Under These Rules, on Wednesday, January 21, 2009 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 Friday, January 9, 2009 by 5:00 p.m. Persons wishing to participate at the hearing should notify Ms. Festag no later than Friday, January 9, 2009.

By the Court:

Michael L. Bender,
Justice, Colorado Supreme Court

Nathan B. Coats
Justice, Colorado Supreme Court


Rule 251.8 Immediate Suspension

(a) Immediate Suspension. Immediate suspension is the temporary suspension by the Supreme Court of an attorney’s license to practice law for a definite or indefinite period of time while proceedings conducted pursuant to this Rule and these Rules are pending against the attorney.

Although an attorney’s license to practice law shall not ordinarily be suspended during the pendency of such proceedings, the Supreme Court may order the attorney’s license to practice law immediately suspended when there is reasonable cause to believe that:

(1) the attorney is causing or has caused immediate and substantial public or private harm and the attorney:

(A) has been convicted of a serious crime as defined by C.R.C.P. 251.20(e);

(B) has converted property or funds;

(C) has abandoned clients;

(D) or has engaged in conduct which poses an immediate threat to the effective administration of justice.

(b) and (c) [No Change]

Rule 251.31. Access to Information Concerning
Proceedings Under These Rules

(a) [No Change]

(b) Confidentiality. Before the filing and service of a complaint as provided in C.R.C.P. 251.14, the proceedings are confidential within the Office of the Regulation Counsel, the committee, the Presiding Disciplinary Judge, and the Supreme Court, except that the pendency, subject matter, and status of an investigation under C.R.C.P 251.10 may be disclosed by the Regulation Counsel if:

(1)–(2) [No Change]

(3) The proceeding is based on allegations that have become generally known to the public;

(4) There is a need to notify another person or organization, including the fund for client protection, to protect the public, the administration of justice, or the legal profession; or

(5) A petition for immediate suspension has been filed pursuant to C.R.C.P. 251.8.

(c)(q) [No Change]

COMMENT
C.R.C.P. 251.31

The confidentiality rule set forth in C.R.C.P. 251.31(b) seeks to strike a balance between the protection of attorneys against publicity predicated upon unfounded accusations and the protection of clients and prospective clients and the effective administration of justice from harm caused by attorneys who are unwilling or unable to fulfill their professional obligations. C.R.C.P. 251.31(b) also recognizes that restrictions on confidentiality no longer serve their purpose when allegations that would ordinarily be confidential have become generally known through disclosure in the public record, publicity or otherwise.

The Regulation Counsel frequently receives inquiries from judges, clients or prospective clients and the media asking if an attorney is the subject of a pending disciplinary investigation. Ordinarily, this rule prohibits the Regulation Counsel from providing information about a pending investigation or even confirming that an investigation is pending. C.R.C.P. 251.31(b) sets forth exceptions when the Regulation Counsel may reveal the pendency, subject matter, and status of an investigation under C.R.C.P. 251.10.

Certain exceptions are clear. For example, when the attorney has waived confidentiality or when the proceeding against the attorney is based on a criminal conviction, discipline imposed on the attorney in another jurisdiction, or a petition for immediate suspension filed by the Regulation Counsel against the attorney under C.R.C.P. 251.8.

Other exceptions require the Regulation Counsel to exercise discretion. C.R.C.P. 251.31(b)(3) requires the Regulation Counsel to determine whether otherwise confidential allegations against an attorney have become generally known. Factors that the Regulation Counsel should consider in these circumstances include but are not limited to the nature and extent of media coverage, the nature and extent of inquiries from the media and the public, the nature and status of any related judicial proceedings, the number of people believed to have knowledge of the allegations, and the seriousness of the allegations.

Another important exception requiring the Regulation Counsel to exercise discretion is C.R.C.P. 251.31(b)(4), which allows disclosure when there is a need to notify another person or organization in order to protect the public, the administration of justice, or the legal profession. In determining whether a need to notify exists, the Regulation Counsel should consider factors including but not limited to the nature and seriousness of the conduct under investigation, the attorney’s prior disciplinary history and whether the attorney has previously been disciplined for conduct similar to the alleged conduct under investigation, and the potential harm to a client or prospective client, the public or the judicial system. In those instances in which the Regulation Counsel determines that disclosure is permitted based on C.R.C.P. 251.31(b)(4) alone, the Regulation Counsel is authorized to disclose the pendency, subject matter, and status of an investigation in response to inquiry, but also to disclose this information affirmatively to those persons having a need to know the information in order to avoid potential harm.


Rule Change 2008(15)
Chapter 18
Colorado Rules of Probate Procedure
Appendix A to Chapter 27
Colorado Probate Court Forms

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

The following forms replace current CPC forms.

FORM

REPLACES

JDF 726

Claim

CPC 22

JDF 727

Withdrawal or Satisfaction of Claim and Release

CPC 22-W

JDF 732

Trust Registration Statement

CPC 38

JDF 740

Request for Minor Correction

CPC 44

JDF 821

Affidavit of Acceptance of Appointment by Written Instrument
as Guardian for Minor Pursuant to § 15-14-302, C.R.S.

CPC 36 &
CPC 36-A

JDF 902

Demand for Notice of Filings or Orders

CPC 1

JDF 903

Withdrawal of Demand for Notice of Filings or Orders

CPC 1-A

JDF 911

Acceptance of Appointment

CPC 18

JDF 949

Notice of Hearing to Interested Persons and
Owners by Inheritance

CPC 57-A

JDF 950

Notice of Hearing by Publication to Interested Persons and
Owners by Inheritance

CPC 57-B

JDF 967

Verified Application for Certificate from Registrar

CPC 28-A

JDF 968

Certificate of Registrar

CPC 28-C

JDF 970

Notice of Closure After Three Years

CPC 48-A

JDF 971

Order Closing Estate After Three Years

CPC 48-B

NEW FORMS

(NEW) JDF 781

Provisional Letters Pursuant to § 15-14.5-302, C.R.S.

(NEW) JDF 783

Petition Requesting Colorado to Accept Guardianship and/or
Conservatorship from Sending State

(NEW) JDF 784

Provisional Order to Accept Guardianship and/or
Conservatorship in Colorado from Sending State

(NEW) JDF 785

Final Order Accepting Guardianship and/or
Conservatorship in Colorado from Sending State

(NEW) JDF 787

Petition to Transfer Guardianship and/or Conservatorship
from Colorado to Receiving State

(NEW) JDF 788

Provisional Order re: Petition to Transfer from
Colorado to Receiving State Guardianship and/or
Conservatorship

(NEW) JDF 789

Final Order Confirming Transfer to Receiving State and
Terminating Guardianship and/or Conservatorship in
Colorado

(NEW) JDF 822

Petition for Confirmation of Appointment of Guardian
Pursuant to § 15-14-202(6), C.R.S.

 

AMENDED FORMS

JDF 940

Information of Appointment

Amended and Adopted by the Court, En Banc October 2, 2008, effective immediately.

By the Court:

Nancy E. Rice,
Justice, Colorado Supreme Court


Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2008-05
(Finalized and Effective September 10, 2008)

ISSUE PRESENTED

The requesting judge issued a ruling in the Fall of 2007 that generated a great deal of controversy and attracted significant local media attention as well as some national news coverage. The judge notes that the local newspaper has run in excess of seventy writings on the case, including articles, editorials, letters to the editor, and guest opinions. The judge describes the news coverage as generally being one-sided and critical of his ruling. In addition, at least three articles have been devoted to the subject of the judge standing for retention in November 2008. Although the local Judicial Performance Commission unanimously recommended that he be retained, the judge states that some of the local news coverage "attempted to spin what was a very positive recommendation for retention into a negative." In addition, several hundred anonymous comments have been posted on the newspaper’s website blog in response to the news coverage. The judge notes that some of the anonymous comments have alluded to him as a pedophile while others incite violence against him and his family.

In addition to the facts that the requesting judge provided, the Board has reviewed some of the news articles and some of the comments posted on the newspaper’s website with the news articles. The Board notes that on the same webpage with a recent news article discussing the judge standing for retention this year, there are numerous comments urging voters to vote against retaining the judge. Some of these comments also discuss raising funds and creating an organization to campaign against the judge’s retention.

The judge understands that he is ethically constrained from campaigning for his retention unless there is active opposition to his retention. He believes that such opposition exists, and that the local newspaper, the defendants in the case (through a website they launched about the case), and the defendants’ supporters, are campaigning to defeat his retention. He asks for a determination that there is, in fact, active opposition to his retention, and for permission to engage in a campaign in support of his retention. May the judge campaign to retain his seat on the bench?

CONCLUSION

A great deal of media attention to a judge’s ruling, even if it is critical of the ruling, does not, in itself, constitute active opposition to the judge’s retention. However, if there is an organized campaign in opposition to the judge’s retention or if there are individual comments opposed to the judge’s retention that have been broadcast to a public audience, the judge may safely conclude that there is active opposition to the judge’s retention. Here, the Board concludes that the numerous comments posted on the local newspaper’s website recommending non-retention of the judge amount to active opposition. Nevertheless, the Board cautions the judge that even though he may, ethically, campaign for retention, he should begin a campaign with great care, bearing in mind that our system strongly disfavors judicial campaigns.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 7B(2) provides that a judge who is a candidate for retention should abstain from any campaign activity in connection with the judge’s own candidacy unless there is active opposition to his or her retention in office. If there is active opposition to the retention of a judge, the judge may engage in certain enumerated activities, including speaking at public meetings; using advertising media, provided that the advertising is within the bounds of proper judicial decorum; and requesting that supporters organize a nonpartisan citizens’ committee advocating the judge’s retention.

DISCUSSION

As this Board recently noted in Opinion 2008-04, Colorado has deliberately removed its judicial selection and retention system from the political arena. One of the results of this choice is that Colorado judges are generally prohibited from campaigning to retain their positions as judges. Specifically, Canon 7 of the Code of Judicial Conduct prohibits a judge from any campaign activity in connection with the judge’s own candidacy unless there is active opposition to the judge’s retention in office.

Unfortunately, the Code does not define the term ‘active opposition,’ nor does it provide any guidance to a judge on how to make a determination as to whether such opposition to a judge’s retention exists. This Board has not previously addressed this question1, but committees in other jurisdictions have done so, providing us with instructive analyses on the issue. Other states have concluded that active opposition is that which is organized and/or broadcast to a public audience. See Utah Ad. Op. 00-5 at 2 (collecting opinions). We agree with and adopt this standard. For opposition to be active within the meaning of the Canon, it must either be the result of an orchestrated, organized campaign or, if it consists of statements of one or a few persons in opposition to the judge’s retention, such statements must be communicated to the public through public media or through private publications that reach a large segment of the public.

The requesting judge provided information that the local newspaper and one of the parties in the controversial case are actively campaigning to defeat his retention. In addition, the Board has viewed numerous comments posted on the local newspaper’s website recommending that the judge not be retained. Thus, the Board will consider whether this constitutes active opposition under either prong of the standard: by way of an organized campaign or by way of individual statements in opposition broadcast to a public audience.

As to the first prong, the Board defines ‘organized campaign’ as requiring that a group has registered with the Secretary of State. Although there are indications in this case suggesting that there is an effort to solicit funds to begin an organized campaign, there are no facts submitted to the Board that would establish that any group has, indeed, registered with the Secretary of State. Accordingly, the Board proceeds to the second prong of the active opposition standard, that of active opposition shown by individual statements in opposition broadcast to a public audience.

In this regard, the Board notes that intensive and even critical news coverage concerning one or more of the judge’s decisions would not be sufficient to meet the active opposition standard. Judges are frequently discussed in news articles, and often they are criticized. Generally, judges cannot and should not respond to such stories because the Code prohibits comment on pending cases, even when the story coincides with the judge’s retention election. Id. Coverage of an ongoing, controversial case, even if critical of the judge, rarely will be sufficient to amount to active opposition. Only if such news stories appear timed to a judge’s retention election and raise facts and qualification issues that are not immediately relevant to a news-making case, could such news coverage be classified as active opposition to the judge’s retention.

On the other hand, an editorial, letters to the editor or paid advertisements urging that a judge not be retained would amount to active opposition because they are statements in opposition to the judge’s retention that are published in the public news media. Similarly, "private" publications such as lawn signs advocating the judge’s non-retention or privately published newsletters urging the judge’s defeat would be sufficient to meet the requirement of active opposition if they are broadcast to a large audience of potential voters. Private conversations or watercooler-type discussions in which an individual recommends that a judge not be retained, however, would not meet this standard. See id.

The current request also raises the issue of whether messages in the electronic realm can amount to active opposition to a judge’s retention. Whether posts on a particular website or blog, or comments posted on those sites by individuals other than the website operator or blogger, amount to active opposition must be assessed on a case-by-case basis. When a website is an arm of a public news outlet, such as a newspaper, posts on that website that are accessible to all members of the public would seem to have the same force as letters to the editor. In contrast, when a website is a private publication of an individual, it is more difficult to assess whether a large segment of the public is reviewing the contents of the website. The Board suggests that a judge will have to evaluate such websites on a case-by-case basis to determine whether they amount to active opposition to the judge’s retention.

Finally, before opposition to a judge’s retention can be classified as active opposition, it must coincide with the period of the judge’s candidacy. Critical public commentary calling for the judge’s non-retention, if stale or remote in time to the election, cannot be considered active opposition to the judge’s retention under the Code. The Board believes that the appropriate time period should be measured from the time the judge files his or her declaration to stand for retention with the Secretary of State up to the date of the election.

To determine whether there is ‘active opposition’ under the facts of the current request, the Board has focused its analysis on the public statements and publications made since the judge filed his declaration to stand for retention with the Secretary of State. Within the news articles, letters to the editor, editorials, guest opinions, and other comments that have been published after the judge filed his declaration, the Board has disregarded those that are simply discussions of the controversial case. However, as the Board noted above, quite recently there have been numerous comments posted on the local newspaper’s website, i.e. a public news outlet, that recommend that the judge not be retained. The Board concludes that these Web postings constitute active opposition to the judge’s retention.

Because there is active opposition to his retention, the Code permits the judge to engage in various forms of campaign activity. The Board, however, would caution the judge that just because the judge is permitted to campaign for retention does not mean that the judge should campaign for retention. Our merit selection and retention system strongly disfavors judicial campaigns. Colorado’s judiciary is regarded as a national model in large measure thanks to this state’s decision to elevate and separate judicial selection and retention from the political realm. Recent movements to politicize the judicial branch and choose its judges through a partisan election process have been animated, in part, by the criticism that, at bottom, judges are just as political as their counterparts in the other branches of government. By mounting a retention campaign, a judge may add fuel to this argument. Moreover, a judge should be mindful of the fact that such campaigns often are ill-advised, and frequently serve to focus attention on the bases for the public criticism of the judge.

FINALIZED AND EFFECTIVE this 10th day of September 2008 by the Colorado Judicial Ethics Advisory Board.
__________

1. Several judges on this Board were under the impression that judges in Colorado who believed that they faced active opposition were required to seek such a determination, and permission to campaign, from the Chief Justice. The Board, however, was unable to locate authority for this proposition. Even so, we suggest that it would be good practice for a judge who would like to campaign in support of his or her retention to seek the counsel of experienced judges, including his or her chief judge and the Chief Justice, as part of the process of determining whether to campaign.


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. 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 94-02
Repeal of Chief Justice Directive 94-02
August 2008

I hereby repeal Chief Justice Directive 94-02, dated October 12, 1994, concerning the COLORADO JUDICIAL BRACH CODE OF CONDUCT, as it has been replaced with Chief Justice Directive 08-06, dated August 8, 2008.

Done at Denver, Colorado this 12th day of September 2008.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court


United States Bankruptcy Court for the District of Colorado

In the Matter of Disposition of the
Original Version of a Redacted Transcript
General Procedure Order No. 2008-3

THIS MATTER arises sua sponte upon the need to establish a procedure for the disposition of the original version of a transcript from which a redacted transcript was created and filed pursuant to Judicial Confernce policy. See also, Fed.R.Bankr.P. 9037. Accordingly, it is

ORDERED THAT whenever a redacted transcript is filed, the original transcript from which the redacted transcript was created shall be restricted from public access.

By the Court:

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


Order Permitting Closure of Court Office Facilities
and Granting Excused Absence to Employees
General Procedure Order No. 2008-4

Upon the finding that the legal holidays of Christmas Day and New Year’s Day fall upon a Thursday this year, and that the Friday following each holiday will thus fall between a legal holiday and a weekend, and upon the authority of the chief judge to oversee administration and management of the Clerk’s Office, it is

ORDERED as follows:

1. The clerk of the court is hereby authorized to close the Bankruptcy Clerk’s Office facility in the District of Colorado on Friday, December 26, 2008, and Friday, January 2, 2009. The court will remain open for filing any paper, issuing and returning process, making a motion, or entering an order by means of the electronic filing process; or in the event the electronic filing process is unavailable or inapplicable, by contacting by telephone the U. S. Bankruptcy Court Clerk’s Office at (720) 904-7300 during normal business hours on Friday, December 26, 2008, and Friday, January 2, 2009.

2. The staff of the Bankruptcy Clerk’s Office are authorized an excused absence on Friday, December 26, and/or Friday, January 2.

3. If any judicial officer wishes to or needs to conduct business requiring the presence of any employee of the Bankruptcy Clerk’s Office, Friday, December 26, 2008, or Friday, January 2, 2009, that judicial officer shall promptly notify the Clerk. The Clerk will thereupon arrange for appropriate staffing and is hereby authorized to grant excused absences on an hour for hour service basis to any employee whose presence is required on Friday, December 26 and/or Friday, January 2.

4.The provisions of this order do not pertain to judicial officers and chambers staff. Closing of chambers and granting of excused absences to chambers staff remain matters to be decided by each judicial officer.

Dated at Denver, Colorado this 28th day of October 2008.

By the Court:
Howard R. Tallman, Chief Bankruptcy Judge

© 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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