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TCL > September 2012 Issue > Court Business

The Colorado Lawyer
September 2012
Vol. 41, No. 9 [Page  121]

© 2012 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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

From the Courts

Court Business

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

Rule Change 2012(10)
Colorado Rules of Civil Procedure
Rule 4. Process; Rule 5. Service and Filing of Pleadings and Other Papers;
Rule 121. Local Rules—Statewide Practice Standards, Section 1-26,
Electronic Filing and Service System
and
Colorado Rules of County Court Civil Procedure
Rule 304. Service of Process; Rule 305.5. Electronic Filing and Serving
Amended and Adopted

Rule 4. Process

(a) through (d) [No change]

(e) Personal Service. Personal service shall be as follows:

(1) Upon a natural person whose age is eighteen years or older by delivering a copy thereof to the person, or by leaving a copy thereof at the person’s usual place of abode, with any person whose age is eighteen years or older and who is a member of the person’s family, or at the person’s usual workplace, with the person’s supervisor, secretary, administrative assistant, bookkeeper, human resources representative or managing agent; or by delivering a copy to a person authorized by appointment or by law to receive service of process.

(2) and (3) [No change]

(4) Upon any form of corporation, partnership, association, cooperative, limited liability company, limited partnership association, trust, organization, or other form of entity that is recognized under the laws of this state or of any other jurisdiction, (including any such organization, association or entity serving as an agent for service of process for itself or for another entity) by delivering a copy thereof to the registered agent for service as set forth in the most recently filed document in the records of the secretary of state of this state or of any other jurisdiction, or that agent’s secretary or assistant, or one of the following:

(A) An officer of any form of entity having officers, or that officer’s secretary or assistant;

(B) A general partner of any form of partnership, or that general partner’s secretary or assistant;

(C) A manager of a limited liability company or limited partnership association in which management is vested in managers rather than members, or that manager’s secretary or assistant;

(D) A member of a limited liability company or limited partnership association in which management is vested in the members or in which management is vested in managers and there are no managers, or that member’s secretary or assistant;

(E) A trustee of a trust, or that trustee’s secretary or assistant;

(F) The functional equivalent of any person described in paragraphs (A) through (E) of this subsection (4), regardless of such person’s title, under:

(I) the articles of incorporation, articles of organization, certificate of limited partnership, articles of association, statement of registration, or other documents of similar import duly filed or recorded by which the entity or any or all of its owners obtains status as an entity or the attribute of limited liability, or

(II) the law pursuant to which the entity is formed or which governs the operation of the entity;

(G) If no person listed in subsection (4) of this rule can be found in this state, upon any person serving as a shareholder, member, partner, or other person having an ownership or similar interest in, or any director, agent, or principal employee of such entity, who can be found in this state, or service as otherwise provided by law.

(5) through (12) and (f) through (k) [No change]

_________________

Rule 5. Service and Filing of Pleadings
and Other Papers

(a) [No change]

(b) Making Service. (1) Service under C.R.C.P. 5(a) on a party represented by an attorney is made upon the attorney unless the court orders personal service upon the party. A resident attorney, on whom pleadings and other papers may be served, shall be associated as attorney of record with any out-of-state attorney practicing in any courts of this state. (2) Service under C.R.C.P. 5(a) is made by:

(A) through (C) [No change]

(D) Delivering a copy by any other means, including E-Service, other electronic means or a designated overnight courier, consented to in writing by the person served. Designation of a facsimile phone number or an email address in the filing effects consent in writing for such delivery. Parties who have subscribed to E-Filing, pursuant to C.R.C.P. 121 Section 126 § 1.(d), have agreed to receive E-Service. Service by other electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service by other electronic means or overnight courier under C.R.C.P. 5(b)(2)(D) is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) through (f) [No change]

_________________

Rule 121. Local Rules—Statewide Practice Standards
Section 1-26
Electronic Filing and Service System

1. Definitions:

(a) through (e) [No change]

(f) Signatures:

(I) Electronic Signature: an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by the person with the intent to sign the E-filed or E-served document.

(II) Scanned Signature: A graphic image of a handwritten signature.

2. through 3. [No change]

4. Commencement of Action—Service of Summons: Cases may be commenced under C.R.C.P. 3 by E-Filing the initial pleading. Service of a summons shall be made in accordance with C.R.C.P. 4. The serving party or the party’s attorney shall enter into the e-system the best known address for each served party as that party is served.

5. [No change]

6. E-Service—When Required—Date and Time of Service: Documents submitted to the court through E-Filing shall be served under C.R.C.P. 5 by E-Service. Parties shall keep their address and contact information updated in the e-system. A filing party shall enter or confirm the served party’s last known address in the e-system. A document transmitted to the E-System Provider for service by 11:59 p.m. Colorado time shall be deemed to have been served on that date.

7. Filing Party to Maintain the Signed Copy—Paper Document Not to Be Filed—Duration of Maintaining of Document: A printed or printable copy of an E-Filed or E-Served document with original, electronic, or scanned signatures shall be maintained by the filing party and made available for inspection by other parties or the court upon request, but shall not be filed with the court. When these rules require a party to maintain a document, the filer is required to maintain the document for a period of two years after the final resolution of the action, including the final resolution of all appeals. For domestic relations decrees, separation agreements and parenting plans, original signature pages bearing the attorneys, parties’, and notaries’ signatures must be scanned and E-filed. For probate of a will, the original must be lodged with the court.

8. Documents Requiring E-Filed Signatures: For E-Filed and E-Served documents, signatures of attorneys, parties, witnesses, notaries and notary stamps may be affixed electronically or documents with signatures obtained on a paper form scanned.

9. C.R.C.P. 11 Compliance: An e-signature is a signature for the purposes of C.R.C.P. 11.

10. through 14. [No change]

15. Form of Electronic Documents

(a) Electronic document format, size and density. Electronic document format, size, and density shall be as specified by Chief Justice Directive # 11-02.

(b) and (c) [No change]

_________________

Colorado Rules of County Court Civil Procedure
Rule 304. Service of Process

(a) through (c) [No change]

(d) Personal Service. Personal service shall be as follows:

(1) Upon a natural person whose age is eighteen years or older by delivering a copy thereof to the person, or by leaving a copy thereof at the person’s usual place of abode, with any person whose age is eighteen years or older and who is a member of the person’s family, or at the person’s usual workplace, with the person’s supervisor, secretary, administrative assistant, bookkeeper, human resources representative or managing agent; or by delivering a copy to a person authorized by appointment or by law to receive service of process.

(2) and (3) [No change]

(4) Upon any form of corporation, partnership, association, cooperative, limited liability company, limited partnership association, trust, organization, or other form of entity that is recognized under the laws of this state or of any other jurisdiction, (including any such organization, association or entity serving as an agent for service of process for itself or for another entity) by delivering a copy thereof to the registered agent for service as set forth in the most recently filed document in the records of the secretary of state of this state or of any other jurisdiction, or that agent’s secretary or assistant, or one of the following:

(A) An officer of any form of entity having officers, or that officer’s secretary or assistant;

(B) A general partner of any form of partnership, or that general partner’s secretary or assistant;

(C) A manager of a limited liability company or limited partnership association in which management is vested in managers rather than members, or that manager’s secretary or assistant;

(D) A member of a limited liability company or limited partnership association in which management is vested in the members or in which management is vested in managers and there are no managers, or that member’s secretary or assistant;

(E) A trustee of a trust, or that trustee’s secretary or assistant;

(F) The functional equivalent of any person described in paragraphs (A) through (E) of this subsection (4), regardless of such person’s title, under:

(I) the articles of incorporation, articles of organization, certificate of limited partnership, articles of association, statement of registration, or other documents of similar import duly filed or recorded by which the entity or any or all of its owners obtains status as an entity or the attribute of limited liability, or

(II) the law pursuant to which the entity is formed or which governs the operation of the entity;

(G) If no person listed in subsection (4) of this rule can be found in this state, upon any person serving as a shareholder, member, partner, or other person having an ownership or similar interest in, or any director, agent, or principal employee of such entity, who can be found in this state, or service as otherwise provided by law.

(5) through (12) and (e) through (j) [No change]

_________________

Rule 305.5. Electronic Filing and Serving

(a) Definitions:

(1) Through (5) [No change]

(6) Signatures:

I. Electronic Signature: an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by the person with the intent to sign the E-filed or E-served document.

II. Scanned Signature: A graphic image of a handwritten signature.

(b) Types of Cases Applicable: E-Filing and E-Service may be used for all cases filed in county court as the service becomes available. The availability of the E-System will be determined by the Colorado Supreme Court and announced through its website: www.courts.state.co.us and through published directives. E-Filing and E-Service may be mandated pursuant to Section (o) of this Rule 305.5.

(c) [No change]

(d) Commencement of Action-Service of Summons: Cases may be commenced under C.R.C.P. 303 through an E-Filing. Cases commenced under C.R.C.P. 303 through an E-Filing must be E-Filed to the court no later than seven (7) days before the set return date, if any. Service of a summons shall be made in accordance with C.R.C.P. 304.

(e) [No change]

(f) E-Service—When Required—Date and Time of Service: Documents submitted to the court through E-Filing shall be served under C.R.C.P. 5 by EService. Parties shall keep their address and contact information updated in the e-system. A filing party shall enter or confirm the served party’s last known address in the e-system. A document transmitted to the E-System Provider for service by 11:59 p.m. Colorado time shall be deemed to have been served on that date.

(g) Filing Party To Maintain the Signed Copy, Paper Document Not To Be Filed, Duration of Maintaining of Document: A printed or printable copy of an E-Filed or E-Served document with original, electronic, or scanned signatures shall be maintained by the filing party and made available for inspection by other parties or the court upon request, but shall not be filed with the court. When these rules require a party to maintain a document, the filer is required to maintain the document for a period of two years after the final resolution of the action, including the final resolution of all appeals.

(h) Default Judgments and Original Documents:

(1) and (2) [No change]

(3) When the return of service is required for entry of default, the return of service may be scanned and E-Filed. In accordance with paragraph (i) of this Rule, signatures of attorneys, parties, witnesses, notaries and notary stamps may be electronically affixed or documents with signatures obtained on a paper form may be scanned into the system to satisfy signature requirements.

(i) Documents Requiring E-Filed Signatures: E-Filed and E-Served documents, signatures of attorneys, parties, witnesses, notaries and notary stamps may be electronically affixed or documents with signatures obtained on a paper form may be scanned into the system to satisfy signature requirements.

(j) through (m) [No change]

(o) through (p) [No change]

(q) Form of Electronic Documents

(1) Electronic Document Format, Size, and Density: Electronic document format, size, and density shall be as specified by Chief Justice Directive # 11-02.

(2) through (3) [No change]

Amended and Adopted by the Court, en banc, June 21, 2012 effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

______________________________________

Rule Change 2012(11)
Appendix A to Chapter 27—Colorado Probate Code Forms, Amended Forms
Amended and Adopted
Amended Forms

JDF: 714, 716, 785, 807, 821, 823, 840, 844, 860, 875, 882, 887, 945, 949, 950

(Forms in this Appendix are available online at www.courts.state.co.us/Forms/Index.cfm.)

Amended and Adopted by the Court, en banc, June 29, 2012, effective July 1, 2012.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_______________________________________

Rule Change 2012(12)
Colorado Rules of Professional Conduct
Rule 1.12. Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
Amended and Adopted

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) the personally disqualified lawyer gives prompt written notice (which shall contain a general description of the personally disqualified lawyer’s prior participation in the matter and the screening procedures to be employed), to the parties and any appropriate tribunal, to enable the parties and the tribunal to ascertain compliance with the provisions of this Rule; and

(3) the personally disqualified lawyer and the partners of the firm with which the personally disqualified lawyer is now associated, reasonably believe that the steps taken to accomplish the screening of material information are likely to be effective in preventing material information from being disclosed to the firm and its client.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

Source: Comment [1] amended and adopted, effective July 11, 2012; entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008.

COMMENT

[1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Paragraph III(B) of the Application Section of the Colorado Code of Judicial Conduct provides that a part-time judge "shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto." Rule 2.11(A)(5)(a) of the Colorado Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge served as a lawyer in the matter in controversy, or the judge was associated with a lawyer who participated substantially as a lawyer in the matter during such association. Although phrased differently from this Rule, those Rules correspond in meaning.

[2] Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Rule 1.0(b) and (e). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 2.4.

[3] Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of this paragraph are met.

[4] Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (c)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[5] Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

* * *

Rule 3.5. Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order, or unless a judge initiates such a communication and the lawyer reasonably believes that the subject matter of the communication is within the scope of the judge’s authority under a rule of judicial conduct;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(I) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate;

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(4) the communication is intended to or is reasonably likely to demean, embarrass, or criticize the jurors or their verdicts; or

(d) engage in conduct intended to disrupt a tribunal.

Source: (b) and comment [2] amended and adopted, effective July 11, 2012; entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008.

COMMENT

[1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the Colorado Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.

[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, subject to two exceptions: (1) when a law or court order authorizes the lawyer to engage in the communication, and (2) when a judge initiates an ex parte communication with the lawyer and the lawyer reasonably believes that the subject matter of the communication is within the scope of the judge’s authority to engage in the communication under a rule of judicial conduct. Examples of ex parte communications authorized under the first exception are restraining orders, submissions made in camera by order of the judge, and applications for search warrants and wiretaps. See also Cmt. [5]. Colo. RPC 4.2 (discussing communications authorized by law or court order with persons represented by counsel in a matter). With respect to the second exception, Rule 2.9(A)(1) of the Colorado Code of Judicial Conduct, for example, permits judges to engage in ex parte communications for scheduling, administrative, or emergency purposes not involving substantive matters, but only if "circumstances require it," "the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication," and "the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond." Code of Jud. Conduct, Rule 2.9(A)(1). See also Code of Judicial Conduct for United States Judges, Canon 3(A)(4)(b)("A judge may. . . (b) when circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication[.]"). The second exception does not authorize the lawyer to initiate such a communication. However, a judge will be deemed to have initiated a communication for purposes of this Rule if the judge or the court maintains a regular practice of allowing or requiring lawyers to contact the judge for administrative matters such as scheduling a hearing and the lawyer communicates in compliance with that practice. When a judge initiates a communication, the lawyer must discontinue the communication if it exceeds the judge’s authority under the applicable rule of judicial conduct. For example, if a judge properly communicates ex parte with a lawyer about the scheduling of a hearing, pursuant to Rule 2.9(A)(1) of the Colorado Code of Judicial Conduct, but proceeds to discuss substantive matters, the lawyer has an obligation to discontinue the communication.

[3] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.

[4] The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

[5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 1.0(m).

Amended and Adopted by the Court, en banc, July 11, 2012, effective immediately.

By the Court:

Nathan B. Coats, Justice
Colorado Supreme Court


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

Chief Justice Directives (CJDs) are available online at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm. The website lists CJDs by date and allows users to search by topic. Hard copies of the CJDs are available for $.25 per page (approximately $125 for a full set) and may be obtained by contacting the Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203.

Publication in The Colorado Lawyer

CJDs will be published on a space-available basis in this "Court Business" section of The Colorado Lawyer. Attachments may be omitted for space reasons. To obtain a copy of attachments, contact: Court Services Division, Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203; or visit www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

_____________________________________

CJD 04-08, Attachment A
Concerning Order Appointing Child and Family Investigators
Pursuant to CRS § 14-10-116.5
Revised

CJD 04-08 is concerning Court Appointments of Child and Family Investigators (CFI) Pursuant to CRS § 14-10-116.5. Attachment A is concerning an Order Appointing Child and Family Investigator Pursuant to CRS § 14-10-116.5. Attachment A of CJD 04-08 was revised to reflect the new law requiring the court-appointed CFI to affirmatively disclose any relationships that could create a conflict in the court appointed role. Questions concerning this revision may be directed to Bill Delisio, Family Law Program Manager, at (303) 837-3623 or bill.delisio@judicial.state.co.us.

Revised July 2012.


Colorado Supreme Court
Judicial Ethics Advisory Board Opinion

Colorado Judicial Ethics Advisory Board (CJEAB)
Advisory Opinion 2012-03
Finalized and Effective July 10, 2012

ISSUE PRESENTED:

The requesting judge is a district court judge who is the liaison between the court and a non-profit organization that runs a diversion program for teen offenders based on principles of restorative justice and peer influence. One of the organization’s programs is to conduct "trials" at which a jury of teen peers decides on the sentence for a first-time offender under a deferred sentence agreement. Local judges volunteer to preside over these trials, and the requesting judge coordinates the scheduling of the judges for the trials.

The organization is preparing an informational video that will be used for both educational and fund-raising purposes, and asked the judge to be interviewed on the video. The interviewer would identify the judge as a judge and ask him to provide factual information about the trials and to comment on the value and effectiveness of that portion of the organization’s program. The judge "would not be asked to solicit funds," but because the video would be used for fund-raising, the judge requested an advisory opinion addressing whether his participation in the interview would violate the fund-raising prohibition of Rule 3.7 of the Colorado Code of Judicial Conduct (Code).

CONCLUSION:

Because the organization and the event are law-related, the judge may be interviewed on the video without running afoul of Rule 3.7, provided he does not directly solicit funds on behalf of the organization.

APPLICABLE PROVISIONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 3 of the Code provides that "A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office."

Rule 3. 1 lists restrictions on a judge’s extrajudicial activities and provides in pertinent part that:

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:

* * *

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

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

Rule 3. 7 lists extrajudicial activities a judge is permitted to engage in on behalf of non-profit educational, religious, charitable, fraternal, or civic organizations.

(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations . . . 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:

* * *

(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;

* * *

(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.

DISCUSSION:

Both the current Code and the pre-2010 Code encourage judges to participate in extrajudicial activities including educational, religious, charitable, fraternal and civic activities not conducted for profit. See C.J.C. Rule 3.1 and cmts. [1] and [2]; C.J.C. Rule 3. 7(A); Canon 5A of the pre-2010 Code and related commentary. In addition, the current Code, like the old Code, recognizes that judges are uniquely qualified to engage in extrajudicial activities concerning "the law, the legal system, and the administration of justice," and that participation in law-related extrajudicial activities helps integrate judges into their communities and "furthers public understanding of and respect for courts and the judicial system." C.J.C. Rule 3. 1, cmts. 1 and 2; see Canon 4A of the pre-2010 Code and related commentary.

While judges are encouraged to participate in extrajudicial activities for non-profit organizations, the current Code, like the former Code, strictly limits the fund-raising efforts judges may engage in on behalf of such organizations. Specifically, Canons 4C and 5B(2) of the old Code provided that "[a] judge shall not personally solicit funds" or "permit the use of the prestige of the judge’s office for that purpose," and Rule 3. 7(A)(2) of the current Code similarly prohibits judges from soliciting contributions (other than from family members or other judges over whom the judge does not exercise supervisory or appellate authority) or directly engaging in fund-raising for any organization. Following the clear command of these provisions, the Board has consistently advised judges against direct personal involvement in fundraising for charitable and civic organizations. See CJEAB Adv. Op. No. 2012-01 and earlier opinions cited therein.

The 2010 Code, however, significantly changes the rules for a judge’s involvement in fund-raising on behalf of law-related organizations. See Ray McKoski, Charitable Fund-Raising by Judges: The Give and Take of the 2007 ABA Model Code of Conduct, 2008 Mich. St. L.Rev. 769, 816. "From both a theoretical and practical standpoint, the new Code’s greatest impact on fund-raising is its retreat from the rule absolutely forbidding judicial participation as a speaker or honored guest at a fund-raising event." Id; see also Charles E. Geyh & W. William Hodes, Reporters’ Notes to the Model Code of Judicial Conduct 68-71 (2009). Under the old Code, although judges were permitted to assist law-related organizations in their fundraising efforts, they were prohibited from being "placed in the position of directly soliciting funds" by serving as the "featured speaker" at any fundraising events, including law-related events. Canons 4C and 5B(2) of the pre-2010 Code. In contrast, the current Code expressly permits judges to participate in fund-raising events of law-related organizations if the participation is limited to "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 [the] event." C.J.C. Rule 3. 7(A)(4). .

Thus, the 2010 Code permits the requesting judge to be interviewed for a video concerning the diversion program for teen offenders to be used in both informational and fund-raising situations. The diversion program for teen offenders is a law-related activity and the judge is doing no more than he would if he spoke at a fund-raising event sponsored by the organization that runs the program. In fact, by being interviewed on video the judge is further removed from any actual fund-raising than he would be if he spoke at a live fund-raising event, because, presumably, he will not be present when the video is played for the potential donors.

In reaching this conclusion, the Board is mindful that Rule 1.3 provides that judges should not "abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so." Although this rule seems to prohibit the conduct which the Board approves, the Board believes that the general prohibition in Rule 1.3 should not be read to invalidate the more specific permission granted in Rule 3.7(A)(4).

Similarly, the Board has reviewed judicial ethics advisory opinions from other jurisdictions which have advised judges against being interviewed in videos that will be used by non-profit organizations for fundraising purposes. See, e. g., Fla. Jud. Ethics Adv. Comm. Op. No. 2006-14 (a judge may not be interviewed in a documentary film about a reading instruction program when the film will be marketed commercially and used to raise money for the program). Those opinions, however, were written under the pre-2010 Code and frequently concerned organizations that were not law-related. Accordingly, the Board does not find them persuasive in resolving the current request.

Finally, although it is appropriate for the requesting judge to participate in the video interview, the judge should avoid making any statements that would be or would appear to be a solicitation of funds on behalf of the organization. The judge should only provide information about the workings of the program and the benefits of which he has knowledge. The judge should also be mindful that such indirect participation in fund-raising events of law-related organizations is subject to the requirements of Rule 3.1(D), which prohibits a judge from engaging in any conduct "that would appear to a reasonable person to be coercive." Furthermore, the judge should exercise caution if it appears that the organization actively advocates positions or files amicus briefs on disputed legal issues before his court, and should avoid giving the appearance that he is lending the prestige of his judicial office to support a position that would impair his impartiality or give rise to the appearance of impropriety. See C.J.C. Rule 3.7, cmt. 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.").

Finalized and effective July 10, 2012.

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