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TCL > April 2010 Issue > Court Business

April 2010       Vol. 39, No. 4       Page  99
From the Courts

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). 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
Regarding
Proposed Amendments to Colo. RPC 1.15 and 3.8, and
Proposed New Colo. RPC 1.16A
Deadline for Comments: Thursday, June 3, 2010, 5:00 p.m.
Hearing to be held on Thursday, June 10, 2010, 3:00 p.m.

The Colorado Supreme Court will conduct a hearing on proposed amendments to Colorado Rules of Professional Conduct 1.15 and 3.8 and on proposed new rule, Colorado Rule of Professional Conduct 1.16A. The hearing will occur on Thursday, June 10, 2010, at 3:00 p.m., in the Colorado Supreme Court Courtroom, 101 W. Colfax Ave., First Fl., Denver, CO 80202.

Printed below are versions of the proposed amendments that show proposed deletions and proposed new text, as well as the complete text of the proposed new rule. Proposed deletions appear as strikethough text; proposed additions appear in bold text. These proposed rules can be found on the Court’s website at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm.

The Court requests written public comments by any interested person on the proposed amendments and the new rule. An original and eight copies of the written comments should be submitted to Susan J. Festag, Clerk of the Colorado Supreme Court, 101 W. Colfax Ave., Ste. 800, Denver, CO 80202-5315, no later than 5:00 p.m. on Thursday, June 3, 2010. Persons wishing to participate at the hearing should notify the Clerk no later than Thursday, June 3, 2010. Written comments will be posted as they are received on the Colorado Supreme Court’s website.

By the Court:

Michael L. Bender and Nathan B. Coats
Justices, Colorado Supreme Court

________________________________________________

Proposed Amendments to
Colo. RPC 1.15. Safekeeping Property

General Duties of Lawyers Regarding Property of Clients and Third Parties

(a)–(c) [No change]

Required Bank Accounts

(d)–(e) [No change]

Trust Account Requirements and Management; COLTAF Accounts

(f)–(i) [No change]

Required Accounting Records; Retention of Records; Availability of Records

(j)(1)–(j)(5) [No change]

(6) Copies of all records showing payments to any persons, not in the lawyer’s regular employ, for services rendered or performed; and

(7) All bank statements and photo static copies or electronic copies of all canceled checks.; and,

(8) Copies of those portions of each client’s case file reasonably necessary for a complete understanding of the financial transactions pertaining thereto.

(k) [No change]

(l) Dissolutions and Departures. Upon the dissolution of a law firm, the lawyers in the law firm shall make any partnership of lawyers or of any professional corporation or limited liability corporation, the former partners or shareholders shall make appropriate arrangements for the maintenance or disposition of records and client files in accordance with by one of them or by a successor firm of the records specified in subsection (j) of this Rule and Rule 1.16A. Upon the departure of a lawyer from a law firm, the departing lawyer and the lawyers in the law firm shall make appropriate arrangements for the maintenance or disposition of records and client files in accordance with subsection (j) of this Rule and Rule 1.16A.

(m) [No change]

Source: [No change]

____________________

COMMENT

[1] A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box except when some other form of safekeeping is warranted by special circumstances. "Property" generally refers to jewelry and other valuables entrusted to the lawyer by the client, as well as documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills. All property that is the property of clients or third persons should be kept separate from the lawyer’s business and personal property and, if monies, in one or more trust accounts.

[2]–[8] [No change]

____________________

ANNOTATION

[No change]

____________________

Proposed Amendments to

Colo. RPC 3.8. Special Responsibilities of a Prosecutor

(a)–(f) [No change]

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable probability that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:

(1) disclose that evidence to an appropriate court or prosecutorial authority, and

(2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority

(A) disclose the evidence to the defendant, and

(B) if the defendant is not represented, move the court in which the defendant was convicted to appoint counsel to assist the defendant concerning the evidence.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted in a court in which the prosecutor exercises prosecutorial authority, of an offense that the defendant did not commit, the prosecutor shall take steps in the appropriate court, consistent with applicable law, to set aside the conviction.

____________________

COMMENT

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, and that guilt is decided upon the basis of sufficient evidence and that special precautions are taken to prevent and to address the conviction of innocent persons. The extent of mandated remedial action . Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereign may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

[2] and [3] [No change]

[3A] A prosecutor’s duties following conviction are set forth in sections (g) and (h) of this rule.

[4]–[6] [No change]

[7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (g) requires disclosure to the court or other prosecutorial authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, the prosecutor must take the affirmative step of making a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.

[7A] What constitutes "within a reasonable time" will vary according to the circumstances presented. When considering the timing of a disclosure, a prosecutor should consider all of the circumstances, including whether the defendant is subject to the death penalty, is presently incarcerated, or is under court supervision. The prosecutor should also consider what investigative resources are available to the prosecutor, whether the trial prosecutor who prosecuted the case is still reasonably available, what new investigation or testing is appropriate, and the prejudice to an on-going investigation.

[8] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of either an offense that the defendant did not commit or of an offense that involves conduct of others for which the defendant is legally accountable (see C.R.S. §18-1-601 et seq. and 18 U.S.C. §2), but which those others did not commit, then the prosecutor must take steps in the appropriate court. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.

[8A] Evidence is considered new when it was unknown to a trial prosecutor at the time the conviction was entered or, if known to a trial prosecutor, was not disclosed to the defense, either deliberately or inadvertently. The reasons for the evidence being unknown (and therefore new) are varied. It may be new because: the information was not available to a trial prosecutor or the prosecution team at the time of trial; the police department investigating the case or other agency involved in the prosecution did not provide the evidence to a trial prosecutor; or recent testing was performed which was not available at the time of trial. There may be other circumstances when information would be deemed new evidence.

[9] A prosecutor’s reasonable judgment made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), although subsequently determined to have been erroneous, does not constitute a violation of this Rule.

[9A] Factors probative of the prosecutor’s reasonable judgment that the evidence casts serious doubt on the reliability of the judgment of conviction include: whether the evidence was essential to a principal issue in the trial that produced the conviction; whether the evidence goes beyond the credibility of a witness; whether the evidence is subject to serious dispute; or whether the defendant waived the establishment of a factual basis pursuant to criminal procedural rules.

____________________

ANNOTATION

[No change]

____________________

Proposed New Rule
Colo. RPC 1.16A. Client File Retention

Except as provided in a written agreement signed by a client, the lawyer shall retain a client’s files respecting a matter for a period of not less than two years following the termination of representation in the matter, unless the lawyer previously delivered the files to the client or disposed of the files in accordance with the client’s instructions. Notwithstanding any agreement to the contrary, a lawyer shall not destroy a client’s files after termination of the lawyer’s representation in the matter unless (1) after such termination, the lawyer has given written notice to the client of the lawyer’s intention to do so on or after a date stated in the notice, which date shall not be less than thirty days after the date the notice was given, and (2) there are no pending or threatened legal proceedings known to the lawyer that relate to the matter. At any time following the expiration of a period of ten years following the termination of representation in a matter, a lawyer may destroy a client’s files respecting the matter without notice to the client, provided there are no pending or threatened legal proceedings known to the lawyer that relate to the matter and the lawyer has not agreed to the contrary. This Rule does not supersede or limit a lawyer’s obligations to retain a file that are imposed by law, court order, or rules of a tribunal.

____________________

COMMENT

[1] Rule 1.16A provides definitive standards regarding the recurring question of how long a lawyer must maintain a client’s files before destroying them. Rule 1.16A is not intended to impose an obligation on a lawyer to preserve documents that the lawyer would not normally preserve, such as multiple copies or drafts of the same document. A client’s files, within the meaning of Rule 1.16A, consist of those things, such as papers and electronic data, relating to a matter that the lawyer would usually maintain in the ordinary course of practice. A lawyer’s obligations with respect to client "property" are distinct. Those obligations are addressed in Rules 1.16(d), 1.15(a) and 1.15(b). "Property" generally refers to jewelry and other valuables entrusted to the lawyer by the client, as well as documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills. The maintenance of law firm financial and accounting records covered by Rule 1.15(a) and 1.15(j) is governed exclusively by those rules. Similarly, Rule 1.16A does not supersede specific retention requirements imposed by other rules, such as Rule 5.5(d)(2) (two-year retention of written notification to client of utilization of services of suspended or disbarred lawyer), Rule 4, Chapter 23.3 C.R.C.P. (six-year retention of contingent fee agreement and proof of mailing following completion or settlement of the case) and C.R.C.P. 121, §1-26(7) (two year retention of signed originals of e-filed documents). A document may be subject to more than one retention requirement, in which case the lawyer should retain the document for the longest applicable period.

[2] A lawyer may comply with Rule 1.16A by maintaining a client’s file in, or converting it to, a purely electronic form, provided the lawyer is capable of producing a paper version if necessary. Rule 1.16A does not require multiple lawyers in the same law firm to retain duplicate client files or to retain a unitary file located in one place. "Law firm" is defined in Rule 1.0 to include lawyers employed in a legal services organization or the legal department of a corporation or other organization. Rule 5.1(a) addresses the responsibility of a partner in a law firm to "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct." Generally, lawyers employed by a private corporation or other entity as in-house counsel represent such corporation or entity as employees and the client’s files are considered to be in the possession of the client and not the lawyer, such that Rule 1.16A would be inapplicable. Where lawyers are employed by a legal services organization or government agency to represent third parties under circumstances where the third party client’s files are considered to be files and records of the organization or agency, the lawyer must take reasonable measures to ensure that the client’s files are maintained by the organization or agency in accordance with this rule.

[3] The two-year period under Rule 1.16A begins upon termination of a representation in a matter, even if the lawyer continues to represent the client in other matters. The rule does not prohibit a lawyer from maintaining a client’s files beyond the two-year and ten-year periods in the Rule. For example, in a matter resulting in a felony criminal conviction, a lawyer may retain a client’s file for longer than the two-year and ten-year periods because of Crim.P. 35(c) considerations. The Rule does not supersede obligations imposed by other law, court order or rules of a tribunal. A lawyer may not destroy a file when the lawyer has knowledge of pending or threatened proceedings relating to the matter. The Rule does not affect a lawyer’s obligations under Rule 1.16(d) with respect to the surrender of papers and property to which the client is entitled upon termination of the representation. A client’s receipt of papers forwarded from time to time by the lawyer during the course of the representation does not alleviate the lawyer’s obligations under Rule 1.16A.

[4] Except with respect to files maintained by a lawyer for ten or more years, there are three preconditions to the lawyer’s actual destruction of the client’s files. First, the two-year retention period, or such shorter period as the client may have agreed to in a signed written agreement, must have expired. Second, sometime after the termination of representation in the matter, the lawyer must have given written notice to the client of the lawyer’s intention to destroy the files on or after a date certain, which date is not less than thirty days after the date the notice was given. The purpose of the timing of the notice is to give the client a meaningful opportunity to recover the file. A lawyer should make reasonable efforts to locate a client for purposes of giving written notice. If the lawyer is unable to locate the client, written notice sent to the client’s last known address is sufficient under Rule 1.16A. Third, the lawyer may not destroy the files if the lawyer knows that there are legal proceedings pending or threatened that relate to the matter for which the lawyer created the files, or if the lawyer has agreed otherwise. If these three preconditions are satisfied, the lawyer may destroy the files in a manner consistent with the lawyer’s continuing obligation to maintain the confidentiality of information relating to the representation under Rules 1.6 and 1.9. Nothing in this Rule is intended to mandate that a lawyer destroy a file in the absence of a client’s instruction to do so. Notwithstanding a client’s instruction to destroy or return a file, a lawyer may retain a copy of the file or any document in the file.


Rule Change 2009(21)
Chapter 17A. Colorado Rules of Civil Procedure
Rule 121, § 1-15. Determination of Motions
Amended

(1)–(7) [No change]

(8) Duty to Confer. Unless a statute or rule governing the motion provides that it may be filed without notice, moving counsel shall confer with opposing counsel before filing a motion. The motion shall, at the beginning, contain a certification that the movant in good faith has conferred with opposing counsel about the motion. If the relief sought by the motion has been agreed to by the parties or will not be opposed, the court shall be so advised in the motion. If no conference has occurred, the reason why shall be stated.

(9) [No change]

____________________

Committee Comment

Paragraph 1 [No change]

This standard specifies contemporaneous recitation of legal authority either in the motion itself for all motions except those under C.R.C.P. Rule 56. Moving counsel should confer with opposing counsel before filing a motion to attempt to work out the difference prompting the motion. Every motion must, at the beginning, contain a certification that the movant, in good faith, has conferred with opposing counsel about the motion. If there has been no conference, the reason why must be stated. To assist the court, if the relief sought by the motion has been agreed to or will not be opposed, the court is to be so advised in the motion.

Paragraph 3 [No change]

Amended by the Court, En Banc, October 12, 2009, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court


Rule Change 2009(22)
Chapter 30. Colorado Municipal Court Rules of Procedure

Rule 223. Trial by Jury or by the Court|Amended

(a) Trial by Jury. Trial shall be to the court, unless the defendant is entitled to a jury trial under the constitution, ordinance, charter, or general laws of the state, in which case the defendant shall have a jury, if, within twenty days after arraignment or entry of a plea, the defendant files with the court a written jury demand and at the same time tenders to that court a jury fee of $25, unless the fee is waived by the judge because of the indigence of the defendant. If the action is dismissed or the defendant is acquitted of the charge, or if the defendant, having paid the jury fee, files with the court at least ten days before the scheduled trial date a written waiver of jury trial, the jury fee shall be refunded. A defendant who fails to file with the court the written jury demand as provided above waives the right to a jury trial.

(b) [No change]

(c) [No change]

Amended by the Court, En Banc, October 12, 2009, 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 2010-01
Finalized and Effective February 9, 2010

ISSUE PRESENTED

The requesting judge states that in light of various budget cuts concerning judicial education and the cancellation of programs such as the annual state judicial conference, the Judicial Education Subcommittee of the Judicial Liaison Section of the Colorado Bar Association (CBA) is considering approaching providers of continuing legal education (CLE) programs to inquire as to whether such providers would provide discounts to judges who attend their programs, or whether such providers would allow judges to attend their programs free of charge. The Subcommittee, of which the requesting judge is a member, requests guidance on four related questions: (1) May a judicial officer make such a request? (2) May the Judicial Liaison Section of the CBA make such a request on behalf of those of its members who are judges? (3) If discounted or no-cost CLE programs are made available only to judges, must judges disclose the value of the benefit provided? (4) If the discounted or no-cost CLE programs are made available both to judges and certain nonjudicial officers, must judges disclose the value of the benefit provided?

CONCLUSIONS

A judge may not request that CLE providers offer programs to judges on a discounted or no-cost basis, and a committee on which judges serve may not make the request on behalf of its judge members. Judges should disclose the benefit of discounted or no-cost programs if they are made available only to judges, but need not do so if the programs are available to similarly situated persons who are not judges.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 4C encourages judges to serve organizations devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, but prohibits a judge from personally soliciting funds for the organization.

Canon 5B(2) directs that a judge shall not personally solicit funds for any educational, religious, charitable, fraternal, social or civic organization, or use or permit the use of the prestige of the judge’s office for that purpose.

Canon 5C(4)(a) provides that a judge may accept an invitation to attend a Bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice.

Canon 5(C)(4)(b) allows a judge to accept a scholarship awarded on the same terms applied to other applicants.

DISCUSSION

Comprised of both judges and non-judges, the Judicial Education Subcommittee was formed to address issues concerning continuing education for judges in Colorado. The Code of Judicial Conduct by its terms applies only to judges; thus, while the committee itself is not subject to the Code, the judge members of the committee are bound by it.

Approaching the requesting judge’s questions seriatim, we conclude as to the first question that a judicial officer may not request that a provider of CLE programs allow judges to attend at a discounted rate or free of charge. To make such a request would amount to a fund-raising activity and, under Canons 4 and 5 of the existing Code of Conduct, judges are not permitted to solicit funds (or, by extension, to solicit discounts, which is in essence requesting that judges be given a special financial break). The result would be the same under the proposed code of conduct currently being considered by our supreme court.1 Proposed Rule 3.7(a)(2)2 only allows a judge to solicit contributions from "the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority," none of which is applicable here.

The answer to the requesting judge’s second question—whether the Judicial Liaison Section may make such a request on behalf of its judge members—is no different. Although, as noted above, the committee itself is not subject to the Code of Judicial Conduct, its judge members are. Under the Code, judges may not authorize or allow someone to do something on their behalf that judges cannot do themselves. A request by the committee on behalf of its judges, even if the request is not made directly by one of the judge members, implicates all of the judges on the committee. Even if a judge member did not participate in a particular request, the action would be made on behalf of the committee as a whole, including the judge members. Thus, because judges may not themselves request that CLE providers offer discounted or free programs to them, a committee comprised in part of judges similarly cannot make such a request.

Next we consider whether judges must disclose the value of the benefit provided if discounted or no-cost CLE programs are made available only to judges. We previously considered gifts and the reporting of gifts in the area of ordinary social hospitality in CJEAB 2009-01. The analysis of the instant question differs under the existing and proposed codes. Colorado’s current code provides in Canon 5C(4) that a judge may accept an invitation to the judge to attend a Bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice. The Canon does not require the judge to report the gift. If these discounted or no-cost CLE programs are not considered Bar-related functions or activities and if the value of the reduced tuition is greater than $100, the judge must report it pursuant to Canon 5C(4)(c).

Alternately, under Rule 3.143 of the proposed code, a judge may accept a waiver of fees or charges for registration or tuition if the expenses are associated with the judge’s participation in permissible extrajudicial activities. In deciding whether it is appropriate to accept the fee waiver in the first instance, comment 3 to the proposed Rule cautions a judge to assess whether such acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality, and sets forth a host of factors for a judge to consider. Our opinion in CJEAB 2008-03, in which we discussed whether it was appropriate for a judge to teach at a CLE aimed at a group of attorneys that only represented one side in dependency and neglect cases addressed some analogous concerns. Assuming that the judge concludes that it is appropriate to accept the waiver, Rule 3.154 of the proposed Code governs the reporting of gifts and benefits and requires the reporting of fee waivers described in Rule 3.14. Comment [3][d] to the rule clarifies that the statutory reporting requirements, which the proposed rule is designed to track, mandate reporting waiver or partial waiver of CLE costs that exceed $50. See also § 24-6-203(3)(e), C.R.S.

Although the Code currently in force does not prescribe reporting of a CLE waiver in the event a discounted or free program is made available only to judges, the Board concludes that, given that the proposed code so clearly requires reporting in this circumstance, and given that such a requirement is consistent with the statute governing reporting by all public officials including judges, judges should report such discounts or waivers.

Finally, turning to the judge’s fourth request, we consider whether judges must disclose the value of the benefit provided if discounted or no-cost CLE programs are made available both to judges and to "certain nonjudicial officers." Although it is unclear who such persons would be, if the tuition reduction is offered to all members of the public on the same terms as the judge, the judge need not report the tuition waiver or scholarship under the existing code. CurrentCanon 5C(4)(b) provides that a judge may accept such a scholarship if it is awarded to the judge "on the same terms applied to other applicants"—i.e., if the judge didn’t receive the scholarship because the judge is a judge. Under the current Canon, the judge need not report the gift. Similarly, under proposed Rule 3.13(B)(6) , a judge may accept a scholarship or similar benefit if it is available to similarly situated persons who are not judges, based upon the same terms and criteria, without the judge having to report receiving the benefit. Thus, if any member of the bar could apply for the tuition reduction and receive it on the same terms that a judge would receive it, then a judge who did receive the tuition reduction would not have to report it.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 9th day of February 2010.

Judge Pattie Swift, Chair
Judge Dennis Graham
Judge Charles Greenacre
Judge Tina Habas
Prof. Melissa Hart
William J. Martinez

__________

1. A committee of the supreme court recommended that it adopt a revised version of the code based on the ABA’s Model Code, which was approved in 2007. As of the date of this opinion’s publication, the proposed code, which can be found at www.courts.state.co.us/userfiles/File/JudicialCodeReport.pdf remains under consideration.

2. As currently drafted, proposed Rule 3.7 reads:

Rule 3.7: Participation in Educational, Religious, Charitable,
Fraternal, or Civic Organizations and Activities

(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities:

(1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization’s or entity’s funds;

(2) soliciting* contributions* for such an organization or entity, but only from members of the judge’s family,* or from judges over whom the judge does not exercise supervisory or appellate authority;

(3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice;

(4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice;

(5) making recommendations to such a public or private fund-granting an organization or entity concerning in connection with its fund granting programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and

(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity:

(a) will be engaged in proceedings that would ordinarily come before the judge; or(b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(B) A judge may encourage lawyers to provide pro bono publico legal services.

Comment

[1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations.

[2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely upon a judge’s independence, integrity, and impartiality.

[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office.

[4] Identification of a judge’s position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge’s title or judicial office if comparable designations are used for other persons.

[5] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

3. As currently drafted, proposed Rule 3.14 reads:

Rule 3.14: Reimbursement of
Expenses and Waivers of Fees or Charges

(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge’s employing entity, if the expenses or charges are associated with the judge’s participation in extrajudicial activities permitted by this Code.

(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judge’s spouse, domestic partner,* or guest.

(C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on behalf of the judge or the judge’s spouse, domestic partner, or guest shall publicly report such acceptance as required by Rule 3.15.

Comment

[1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Participation in a variety of other extrajudicial activity is also permitted and encouraged by this Code.

[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge’s decision whether to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code.

[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. The factors that a judge should consider when deciding whether to accept reimbursement or a fee waiver for attendance at a particular activity include:

(a) whether the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity;

(b) whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content;

(c) whether the content is related or unrelated to the subject matter of litigation pending or impending before the judge, or to matters that are likely to come before the judge;

(d) whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary, bar associations, or similar groups;

(e) whether information concerning the activity and its funding sources is available upon inquiry;

(f) whether the sponsor or source of funding is generally associated with particular parties or interests currently appearing or likely to appear in the judge’s court, thus possibly requiring disqualification of the judge under Rule 2.11;

(g) whether differing viewpoints are presented; and

(h) whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for judges.

4. As currently drafted, proposed Rule 3.15 reads:

Rule 3.15: Reporting Requirements

(A) A judge shall publicly report the source and amount or value of:

(1) compensation received for extrajudicial activities as permitted by Rule 3.12;

(2) gifts and other things of value as permitted by Rule 3.13(C), unless the value of such items does not exceed the statutory amount specified in Title 24, Article VI of the Colorado Revised Statutes; and

(3) reimbursement of expenses and waiver of fees or charges permitted by Rule 3.14(A).

(B) When public reporting is required by paragraph (A), a judge shall report the date, place, and nature of the activity for which the judge received any compensation; and the description of any gift, loan, bequest, benefit, or other thing of value accepted; and the source of reimbursement of expenses or waiver or partial waiver of fees or charges.

(C) The public report required by paragraph (A)(1) shall be made at least annually. Public reports required by paragraph (A)(2) and (3) shall be made quarterly.

(D) Reports made in compliance with this Rule shall be filed as public documents in the office of the clerk of the court on which the judge serves or other office designated by law*.

(E) Full time magistrates shall file reports required by paragraph A in the office of the clerk of the court on which the magistrate serves annually on or before January 15.

Comment

[1] In Colorado, judges’ public reporting requirements are governed both by this Code and by statute. See § 24-6-202 and -203, C.R.S.

[2] Pursuant to section 24-6-202, all judges are required to file an annual disclosure with the secretary of state.

[3] Pursuant to section 24-6-203, judges are required to file quarterly disclosures reporting gifts, loans, tickets to events, and reimbursement for travel and lodging expenses.

[a] Money, including a loan, pledge, or advance of money or a guarantee of a loan of money with a value of $25 or more must be reported. § 24-6-203(3)(a), C.R.S.

[b] Any gift of any item of real or personal property, other than money, with a value of $50 or more must be reported. § 24-6-203(3)(b).

[c] Any loan of any item of real or personal property, other than money, if the value of the loan is $50 or more. § 24-6-203(3)(c).

[d] Waiver or partial waiver of the cost of attending CLEs or other educational conferences or seminars is included within the statutory requirement that judges report tickets to sporting, recreational, educational or cultural events with a value of $50 or more, or a series of tickets with a value of $100 or more, must be reported. § 24-6-203(3)(e), C.R.S.

[e] Payment of or reimbursement for actual and necessary expenditures for travel and lodging at a convention or meeting at which the judge is scheduled to participate must be reported unless the payment or reimbursement is made from public funds, a joint governmental agency, an association of judges, or the judicial branch. § 24-6-203(3)(f), C.R.S.

[4] The disclosure reports filed with the secretary of state’s office may be posted electronically on its website when technically feasible.

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Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2010-02|
Finalized and Effective February 17, 2010

ISSUE PRESENTED

The requesting judge is a magistrate with primary responsibility for the dependency and neglect (D&N) docket for his district. The county in which his district is located has an interagency oversight board which determines how to spend certain funds received by the state to foster collaboration among county agencies dealing with children and families. The Department of Human Services (DHS), which oversees distribution of these funds, recently sought to amend the Memorandum of Understanding (MOU) governing their dispersal to include language providing that if certain residential placements are decreased, DHS would pay for a portion of the oversight agency’s programs through state funding, thereby allowing the oversight group to conserve its funds. Reduction in those residential placements, then, is a potential funding source for the board. The judge believes that the new MOU language creates a direct relationship between the number of placements and funding for the oversight agency, and that it creates a conflict for him if he sits as a member of the board and also hears cases where he could potentially order such a placement. He asks whether he must resign his position on the board because it impinges on his independent judgment as a judicial officer. Alternately, may he remain on the board but simply abstain from voting?

CONCLUSION

In light of the amended MOU, continued service on the interagency oversight board would reflect adversely on the judge’s impartiality and could create an appearance of impropriety, and thus he should resign.

APPLICABLE CANONS OF THE COLROADO CODE OF JUDICIAL CONDUCT

Canon 2 generally provides that a judge should avoid impropriety and the appearance of impropriety in all the judge’s activities. Subsection A more specifically states that a judge should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Canon 4 encourages judges to engage in quasi-judicial activities provided that in so doing the judge does not compromise his or her capacity to decide impartially any issues that may come before the judge.

DISCUSSION

Maintaining public confidence in our legal system is one of the core principles of the Code of Judicial Conduct as a whole, and this theme animates Canons 2 and 4 in particular. Those Canons urge a judge to conduct himself in a manner that promotes confidence in the integrity and impartiality of the judiciary, and to refrain from quasi-judicial service if such service compromises the judge’s capacity to impartially decide issues that come before the judge.

As the requesting judge here recognizes, the recently modified MOU that governs how his local interagency oversight board disperses certain child welfare funds calls into question his ability to decide juvenile placements impartially, independently, and effectively. The MOU of which he would be a signatory in his capacity as a board member creates a financial incentive for the judge to refrain from ordering certain placements that, in his capacity as a judge, he might deem most appropriate for the juvenile in a particular case. The direct link between reduced residential placements and increased funding for the board creates a conflict of interest for the judge, making continued service on the board inappropriate. Even if the judge’s determinations in particular D&N cases were not in fact informed by the financial implications for the board, service on the board would create an appearance of impropriety and reflect adversely upon the judge’s impartiality, thereby undermining public confidence in the judiciary.

In our view, it would not alleviate the conflict of interest or appearance of impropriety for the judge to remain on the board and simply abstain from voting on this matter. If the judge remained on the board, he would still have an incentive, as a board member, to raise funds for the board by decreasing the number of residential placements ordered. Thus, it would be in his daily acts as a judicial officer that the conflict and appearance of impropriety would be renewed with each case he is called upon to resolve. Accordingly, the board concludes that the judge should resign from the board.

Our analysis would be the same under the proposed new Code of Judicial Conduct, which is currently being considered for adoption by our supreme court.1 Under proposed Rule 3.1(c), a judge may engage in extrajudicial activities except, as relevant here, where such participation would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.2

We recognize that the enabling legislation requires a representative from the "local judicial district" to serve on the board. There is nothing in the statute, however, that requires this particular judge, or a judge with responsibility for the D&N docket, to participate on the board. A different representative from the district whose service on the board would create neither a conflict of interest nor an appearance of impropriety would be a more appropriate choice.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 17th day of February 2010.

Judge Pattie Swift, Chair
Judge Dennis Graham
Judge Charles Greenacre
Judge Tina Habas
Prof. Melissa Hart
William J. Martinez

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1. The proposed code can be found at www.courts.state.co.us/userfiles/File/JudicialCodeReport.pdf.

2. Proposed new Rule 3.1, as currently drafted, reads:

Rule 3.1: Extrajudicial Activities in General

A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not:

(A) participate in activities that will interfere with the proper performance of the judge’s judicial duties;

(B) participate in activities that will lead to frequent disqualification of the judge;

(C) participate in activities that would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality;*

(D) engage in conduct that would appear to a reasonable person to be coercive; or

(E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law.

Comment

[1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7.

[2] Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.

[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.

[4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge’s solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge.


Colorado Supreme Court Rules Committee

Notice of Public Hearing and Request for Comments
Regarding C.R.Civ.P. 47
Deadline for Comments: Friday, April 2, 2010, 5:00 p.m.
Hearing to be held on Wednesday, April 28, 2010 at 1:30 p.m.

The Colorado Supreme Court will conduct a hearing on a proposed amendment to Colorado Rules of Civil Procedure 47(a)(5) and (u). The hearing will occur on Wednesday, April 28, 2010, at 1:30 p.m. in the Colorado Supreme Court Courtroom, 101 W. Colfax Ave., First Floor, Denver, Colorado 80203.

The Court also requests written public comments by any interested person on the proposed amendments. An original and eight copies of the written comments should be submitted to Susan J. Festag, Clerk of the Supreme Court, 2 East 14th Ave., Denver CO 80203, no later than 5:00 p.m. on Friday, April 2, 2010. Persons wishing to participate at the hearing should notify Ms. Festag no later than Friday, April 2, 2010. The Clerk will post written comments, as they are received, on the Colorado Supreme Court’s website.

The proposed amendments to C.R.C.P. 47(a)(5) and (u) are available on the court’s website at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm. The proposed amendments are based on a recommendation by the Supreme Court Jury System Committee, following a pilot program conducted from March 1998 to February 2000 and a follow-up study in December 2008.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

 

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