|The Colorado Lawyer|
Vol. 42, No. 6 [Page 99]
© 2013 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
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 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 through the Colorado Office of the State Court Administrator, www.courts.state.co.us/Administration/Index.cfm.
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, visit the Court Services Division, Colorado Office of the State Court Administrator, www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.
Income Eligibility Guidelines
Revised March 2013
Procedures for the Determination of Eligibility
for Court-Appointed Counsel and Guardian ad Litem Representation
on the Basis of Indigency
Revised March 2013
Persons requesting court-appointed representation to be paid by the state on the basis of indigency must complete, or have completed on their behalf, application form JDF 208 (“Application for Court-Appointed Counsel or Guardian ad litem”) signed under oath, before such an appointment may be considered by the court. Form JDF 208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27 in which the respondent refuses to or is unable to supply the necessary information and cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to § 12-37.5-107(2)(b), C.R.S.
Procedures for the Determination of Indigency
• Completion of Form JDF 208 by Applicant
Persons applying for state paid counsel or guardian ad litem representation must complete, or have completed on their behalf, the Application for Court-Appointed Counsel, form JDF 208, and submit it to the court.
• Review of Financial rmation by Court Personnel
Court personnel shall review the applicant’s information on form JDF 208 to determine whether or not the applicant is indigent on the basis of three factors:
Criteria for Indigency
An applicant qualifies for court appointed counsel or guardian ad litem on the basis of indigency if his or her financial circumstances meet either set of criteria described below.
1. Income is at or below guidelines/Liquid assets equal $0 to $1,500
• If the applicant’s income is at or below the income eligibility guidelines and he or she has liquid assets of $1,500 or less, as determined on form JDF 208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation at state expense.
2. Income is up to 25% above guidelines/Liquid assets equal $0 to $1,500 / Monthly expenses equal or exceed monthly income
• If the applicant’s income is up to 25% above the income eligibility guidelines; the applicant has assets of $1,500 or less; and the applicant’s monthly expenses equal or exceed monthly income, as determined on form JDF 208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation.
In cases where the criteria above are not met but extraordinary circumstances exist, the court may find the applicant indigent. In such cases, the court shall enter a written order setting forth the reasons for the finding of indigency
1. Income is gross income from all members of the household who contribute monetarily to the common support of the household. Income categories include: wages, including tips, salaries, commissions, payments received as an independent contractor for labor or services, bonuses, dividends, severance pay, pensions, retirement benefits, royalties, interest/investment earnings, trust income, annuities, capital gains, Social Security Disability (), Social Security Supplemental Income (SSI),Workers’ Compensation Benefits, Unemployment Benefits, and alimony. NOTE: Income from roommates should not be considered if such income is not commingled in accounts or otherwise combined with the applicant’s income in a fashion which would allow the applicant proprietary rights to the roommate’s income.
Gross income shall not include income from TANF payments, food stamps, subsidized housing assistance, veteran’ benefits earned from a disability, child support payments or other assistance programs.
2. Liquid assets include cash on hand or in accounts, stocks bonds, certificates of deposit, equity, and personal property or investments which could readily be converted into cash without jeopardizing the applicant’s ability to maintain home and employment.
3. Expenses for nonessential items such as cable television, club memberships, entertainment, dining out, alcohol, cigarettes, etc., shall not be included. Allowable expense categories are listed on form JDF 208.
Court Appointments Through the Office of the Child’s Representative
Revised March 2013
Court Appointments Through the Office of the Child’s Representative
The following policy is adopted to assist the administration of justice through the appointment and training of Guardians ad Litem (GALs), attorney Child and Family Investigators and Child’s Representatives appointed on behalf of minors/children, as well as attorneys appointed as counsel for children subject to dependency and neglect proceedings. Non-attorney Child and Family Investigators, adult GAL appointments, and any other juvenile attorney client appointments fall under the provisions of Chief Justice Directive 04-05.
A. Article 91 of Title 13 established the Office of the Child’s Representative (OCR) and the various statutory requirements of the OCR.
B. The OCR shall be responsible for the following:
Provision of (GAL) services in dependency and neglect proceedings under Title 19.
Provision of GAL services for a respondent parent in dependency and neglect proceedings under Title 19 when that parent is a minor.
Provision of counsel services for children subject to dependency and neglect proceedings.
Provision of GAL services in delinquency matters under Title 19.
Provision of GAL services in adoption proceedings under Title 19 when one or more parties qualify as indigent.
Provision of GAL services for a child charged or prosecuted as an adult pursuant to Section 19-2-517, C.R.S. or Section 19-2-518, C.R.S.
Provision of GAL services in paternity and support matters brought under Title 19 when one or more parties qualify as indigent.
Provision of GAL services to minors in alcohol or drug abuse proceedings under Title 25.
Provision of GAL services to minors in mental health proceedings under Title 27.
Provision of GAL services to minors in probate proceedings under Title 15 when the parties are indigent.
Provision of GAL services to minors involved in truancy proceedings under Titles 19 and 22.
Provision of Child’s Representative services or attorney Child and Family
Investigator services in domestic relations cases under Title 14, when one or more parties qualify as indigent.
Provision of services in any other GAL, Child’s Representative or attorney Child and Family Investigator appointments where authorized, by statute or inherent authority, to act in or in representation of the best interests of a minor.
C. State funds are appropriated to the OCR to fund all statutorily authorized appointments, costs associated therewith and the various responsibilities that fall under the purview of that office pursuant to Section 13-91-102(2), C.R.S.
II. OCR Authority and Responsibilities
A. The OCR’s authority and responsibilities include, but are not limited to: ensure and enhance competent representation of a child’s best interests in a cost-effective manner, which includes training and monitoring of services rendered; the exclusive authority and discretion to select and contract with attorneys to provide state-paid GAL, Child’s Representative, attorney Child and Family Investigator services, and counsel services for children subject to dependency and neglect proceedings, including the authority to reject attorneys for any reason; the authority to terminate, at will, contracts and existing court appointments as determined by the OCR; and the responsibility to provide oversight of and accountability for state-paid GAL, Child’s Representative and attorney Child and Family Investigator services for the benefit of Colorado’s children, as well as attorneys appointed as counsel for children subject to dependency and neglect proceedings, including investigation and resolution of complaints regarding attorneys who contract with the OCR.
B. The OCR shall maintain and provide to the courts, on an ongoing basis, a list of qualified attorneys to whom appointments may be given. The courts shall appoint from this list. It is within the OCR’s sole discretion to determine which attorneys are placed on the appointment list. A court is not required to use all attorneys on the list but only those it chooses to appoint. The OCR will not process payment for services of attorneys with whom the OCR does not have a contract and who are not on the OCR list. Should any unusual, exceptional or emergency circumstances present the need for the appointment of an attorney not listed as an OCR-qualified attorney, the court shall contact the OCR for approval prior to the appointment of that attorney. The OCR shall provide a prompt response to the court’s request.
III. Authority and Requirement for Appointments through the OCR
A. A GAL shall be appointed for a child in a dependency and neglect action pursuant to Title 19. The GAL’s appointment shall continue until the entry of a final decree of adoption or until the jurisdiction of the juvenile court is terminated either by operation of law or by court order.
B. Pursuant to Title 19, an attorney may be appointed as counsel for child subject to a dependency and neglect proceeding in addition to the GAL if the court finds that the appointment is in the best interests and welfare of the child.
C. Pursuant to Title 19, a GAL may be appointed in a delinquency proceeding if: no parent, guardian or other adult set forth in Section 19-1-111(2)(a), C.R.S. appears at the first or subsequent hearing; the Court finds a conflict of interest between the child and the parent, guardian or other adult set forth in Section 19-1- 111(2)(a), C.R.S.; or the court finds that a GAL appointment will serve the best interests of a child. Such appointment shall continue if a case is transferred to adult criminal court under Title 19.
D. Pursuant to Title 19, the court, in its discretion, may appoint a GAL in any direct file of charges against a juvenile in adult criminal court.
E. Pursuant to Title 19, a GAL may be appointed, unless the child is already represented by defense counsel, in truancy proceedings under Title 22. Pursuant to Title 19, a court may appoint both counsel and a GAL for the child if the court finds that such appointment is in the best interests of the child.
F. A Child’s Representative or attorney Child and Family Investigator may be appointed in a domestic relations case pursuant to Title 14.
G. A GAL may be appointed for a minor in formal proceedings involving guardianship or conservatorship of a minor; trusts or estates of decedents, minors and protected persons; and in judicially supervised settlements pursuant to Title 15 if the court determines that a need for such representation exists.
H. A GAL shall be appointed in a mental health proceeding pursuant to Title 27 for any child under age 15 who is a ward of the Department of Human Services or for any minor under 15 who objects to his or her hospitalization.
I. If necessary to serve a child’s best interests, a GAL may be appointed for an infant or other minor who does not have a representative and who is a party to a civil suit.
J. A GAL may be appointed for a child in a paternity action pursuant to Title 19.
K. A GAL may be appointed for a minor upon the filing of a petition for involuntary commitment of alcoholics or drug abusers if the court deems the minor’s presence in court may be injurious to him or her pursuant to Title 25.
L. Pursuant to Title 19, a GAL for a minor may be appointed in an adoption proceeding. Pursuant to Title 19, a GAL for a minor may also be appointed in a proceeding concerning the relinquishment of the minor if the court finds that there is a conflict of interest between the child and the parents, guardian or legal custodian; the court finds that such appointment would be in the best interests of the child; or the court determines that the child is twelve years of age or older and that the welfare of the child mandates the appointment.
M. Pursuant to Title 12, a GAL may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to C.R.S. § 12-37.5-107(2)(b) and Chapter 23.5 of the Colorado Rules of Civil Procedure (“Rules of Procedure for Judicial Bypass of Parental Notification Requirements”).
IV. Allocation of Cost and Guidelines for Payment by the OCR
A. Allocation of Costs—Requirement of Indigency Finding
1. An indigency determination is not required for state payment of GAL services in matters other than these specific cases:
a. The State, through the OCR, shall bear the costs for the services of an attorney Child and Family Investigator or a Child’s Representative appointed pursuant to Section 14-10-116.5, C.R.S. or Section 14-10-116, C.R.S., respectively, only if one or more of the parties responsible for the costs are deemed to be indigent. The State is precluded from paying for services and any costs associated with services for non-indigent parties under either Section 14-10-116.5, C.R.S., or Section 14-10-116, C.R.S., respectively, which specify that the parties are responsible for all costs unless there is a specific finding of indigency.
b. The State, through the OCR, shall bear the costs for GAL services in paternity and support matters under Article 4 of Title 19 only if one or more of the parties responsible for the costs are deemed to be indigent. The State is precluded from paying for services and any costs associated with services for non-indigent parties under Section 19-4-117, C.R.S., which specifies that the court shall order reasonable fees of the GAL to be paid by the parties.
c. The State, through the OCR, shall bear the costs for GAL services in adoption and relinquishment proceedings only when the party(ies) responsible for the costs is deemed to be indigent. The State is precluded from paying for services and any costs associated with GAL services for non-indigent parties under Section 19-5-103, C.R.S., which specifies that the Court shall order reasonable fees to be paid by the relinquishing parent(s).
d. The State, through the OCR, shall bear the costs for GAL services provided to a minor under Title 15 (probate, guardianship and conservatorship) and other civil cases only when the parti(es) ordered to be responsible for the costs or the minor’s estate is deemed to be indigent.
2. When indigency is required for court-appointed representation at state expense, the responsible party(ies) must complete, or have completed on their behalf, application form JDF 208 (“Application for Public Defender, Court-Appointed Counsel, or Guardian ad Litem”) signed under oath, before an appointment may be considered. An indigent person is one whose financial circumstances fall within the fiscal standards set forth by the Supreme Court through Chief Justice Directive (See Attachment A). A court shall not order representation to be at state expense absent the completion of form JDF 208, a finding of indigency and an order of the court. If one party is indigent, the State, through the OCR, will pay half of the state-set hourly rate.
B. Guidelines for Payment by the OCR
1. Claims for payment of appointee fees and expenses shall be submitted by the appointee directly to the OCR, not the appointing court, in accordance with the OCR’s policies and procedures.
2. The maximum total fees per appointment for all OCR appointments and the procedures for approval of excess fees shall be as set forth by the OCR.
3. Attorneys shall maintain records of all work performed relating to court appointments and shall make all such records available to the OCR and/or to the court for inspection, audit and evaluation in such form and manner as the OCR or court may require, subject to the attorney work product doctrine and any other applicable privileges
V. Duties of Attorneys Appointed as GALs, Child’s Representatives, Attorney Child and Family Investigators, and Counsel for Children Subject to Dependency and Neglect Proceedings.
1. Attorneys appointed as GALs, Child’s Representatives, attorney Child and Family Investigators, or counsel for children subject to dependency and neglect proceedings shall possess the knowledge, expertise and training necessary to perform the court appointment.
2. In addition, GALs, Child’s Representatives, attorney Child and Family Investigators, and counsel for children subject to dependency and neglect proceedings shall obtain 10 hours of the required continuing legal education courses or any other modified training requirements established by subsequent Chief Justice Directive practice standards, rule or statute, which are relevant to the appointment and that enhance the attorney’s knowledge of the issues in best interest and child client-directed representation. These requirements should be met prior to attorney’s first appointment and per legal education reporting period. The attorney shall provide the OCR with proof of compliance with this requirement with his/her application to provide attorney services or contract renewal for the OCR.
B. All attorneys appointed as GALs or Child’s Representatives shall be subject to all of the rules and standards of the legal profession. The unique statutory responsibilities of a GAL and a Child’s Representative do not set forth a traditional attorney-client relationship between the appointed attorney and the child; instead, the “client” of a GAL or a Child’s Representative is the best interests of the child. The ethical obligations of the GAL or Child’s Representative, under the Colorado Rules of Professional Conduct, flow from this unique definition of “client.” Because of this unique relationship, an attorney’s obligation not to reveal confidential information provided by the child does not apply if the information must be revealed to ensure the child’s best interests. A determination by the GAL or the Child’s Representative of a child’s best interests must include consultation with the child in a developmentally appropriate manner and consideration of the child’s position regarding the disposition of the matter before the court. A GAL or a Child’s Representative must also explain to the child the limitations on confidentiality.
C. The attorney appointed as a GAL or a Child’s Representative shall diligently take steps that s/he deems necessary to represent and protect the best interests of the child, under the terms and conditions of the order of appointment, including any specific duties set forth in that the appointment order or in any subsequent order. If the appointee finds it necessary and in the best interests of the child, the appointee may request that the court expand the terms of the appointment and scope of the duties. The attorney appointed as counsel for a child subject to a dependency and neglect proceeding shall provide representation to the child client within the scope of the order of appointment and in accordance with the attorney’s professional responsibilities under the Colorado Rules of Professional Conduct.
D. A GAL in a dependency and neglect case shall specifically:
1. Attend all court hearings and provide accurate and current information directly to the court. Commentary: In exceptional circumstances another qualified attorney who has sufficient knowledge of the issues and status of the case may substitute for some hearings, with permission of the court. This shall include a statement of the child’s position, when ascertainable based on the child’s developmental level, regarding the disposition of the matters addressed at the hearing. If a child informs the GAL that s/he does not want the GAL to report his or her position to the court at a specific hearing, the GAL may proceed without directly stating such position.
2. At the court’s direction and in compliance with Section 19-3-606(1), C.R.S., file written or oral report(s) with the court and all other parties.
3. Take actions within the scope of his or her statutory authority and follow the ethical obligations necessary to represent the best interests of the child. Commentary: The GAL has the right to and should actively participate and be included in all aspects of litigation including but not limited to discovery, motions practice, settlement negotiations, court appearances, jury selection, presentation of evidence and appeals, except as limited by applicable law.
4. Conduct an independent investigation in a timely manner which shall include at a minimum:
a. Personally interviewing the child (if appropriate to the child’s developmental level) and meeting with and observing the child in his or her placement as soon as is reasonable, but, in no event, later than 30 days following the GAL’s appointment;
b. Personally meeting with and observe the child’s interaction with the parents, proposed custodians or foster parents including kinship care providers;
Commentary:The GAL shall meet with the parents, proposed custodians, foster parents or kinship care providers who are providing ongoing care for the child and observe the child in that home. This requirement neither mandates nor is fulfilled by a GAL’s meeting with the care providers and observing the child in a temporary intake placement service, respite care or juvenile detention holding facility, unless that is the only opportunity to observe the child.
c. Reviewing court files and relevant records, reports and documents;
d. Interviewing the respondent parents, with the consent of counsel;
e. Interviewing other people involved in the child’s life, including: foster parents; caseworkers; CASA volunteers; relatives; and school personnel, therapists and any other persons or professionals necessary to assess and serve the child’s best interests.
f. Confirm that the county department’s investigation has included a search for any prospective kinship, placement and/or adoption or potential tribal affiliation, or personally conduct such investigation, in the event these attempts to reunify fail. This part of the investigation should be conducted during the initial stages of the case.
g. When appropriate, visiting the home from which the child was removed.
Additional Commentary: The GAL’s initial investigation sets the groundwork for the entire dependency and neglect case, and an effective initial investigation is critical to serving the child’s best interests and advancing permanency for the child. An effective initial investigation allows the GAL to make recommendations early on in a case which will: implement services that will advance the goals of the case and the best interests of the child with the least delay possible; reduce the risk of harm that involvement in the dependency and neglect system may present to the well being of the child; reduce the risk of disruption in the child’s placement and potential harm from the child from such disruption; and preserve relationships significant to the child, such as sibling relationships. Hence, it is expected that the initial duties described in this subsection shall be completed within 45 days of the GAL’s appointment, with the exception of the in-placement interview/observation, which shall occur within 30 days of the appointment. The duties described in sections V.D.4.e and V.D.4.f may be performed by a qualified person other than the appointee under the supervision of the appointed GAL.
5. Continue to perform an ongoing investigation as necessary to represent the best interests of the child for the duration of the case unless relieved of such duty by the court. The GAL’s ongoing investigation shall include, but shall not be limited to:
a. If the child’s placement is changed, the GAL shall personally meet with and observe the child in each new home or placement of the child, as soon as practicable after the child’s entry into the placement.
Commentary:Continuing contact and ongoing investigation constitute important components of the GAL’s role. Additionally, because each disruption in the child’s placement presents new risks of harm and is potentially detrimental to the child’s emotional and psychological well being, it is critical that the GAL meet with and observe the child in each new placement to assess the appropriateness, risks and potential permanency of that placement, as part of the GAL’s ongoing investigation. This in-placement meeting/observation shall ideally occur no later than 30 days after the child’s entry into the new placement. When circumstances make it impracticable for a GAL to visit a child within 30 days of a child’s entry into a new placement, the GAL may send a properly trained representative to visit the child in the placement within 30 days of the placement, but the GAL must follow up with his or her own visit within a reasonable time thereafter.
b. Maintaining contact and ongoing communication with the child, foster parents, caseworker, CASA and any other parties, persons or professionals necessary to ensure that the child’s best interests are continually met;
c. Other applicable duties listed above in section V.C.3.
6. In cases in which the parents or child are living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person or child are waived. However, to the extent possible, the appointee shall endeavor to see the child in his or her extended placement and the OCR will pay reasonable costs associated with meeting these obligations.
7. All GALs in Dependency and Neglect proceedings shall submit a standard affidavit of compliance to the OCR by May 30 of each year for appointments made in the previous contract year. For any cases in which the GAL has not complied with the above requirements, a standard exception form shall be attached to the affidavit. The standard affidavit of compliance and exception form shall be developed by the OCR and made available to all GALs. The current form is shown in Attachment B.
E. An individual appointed as an attorney Child and Family Investigator pursuant to Section 14-10-116.5, C.R.S., is an investigative arm of the court and shall follow the specific terms of the order of appointment, which includes filing a written report with the court, but which does not include the duties described in section V.B. Attorney Child and Family Investigators are also subject to the Rules of Professional Conduct, the Child and Family Investigator standards set forth in Chief Justice Directive 04-08, as well as other existing or subsequent Chief Justice Directives or standards applicable to Child and Family Investigators.
F. An attorney appointed as a GAL or Child’s Representative in all other proceedings, including juvenile delinquency, parental responsibility, paternity, relinquishment, probate, mental health and truancy cases, shall perform all duties as directed by the court, as set forth by statute and as required by the Rules of Professional Conduct as described in section V.B.
VI. Duties of Judges and Magistrates
A. Judges and magistrates shall ensure that GALs, Child’s Representatives and attorney Child and Family Investigators involved with cases under their jurisdiction are representing the best interests of children/minors.
B. In providing this oversight, judges and magistrates shall:
1. Routinely monitor compliance with this directive and promptly notify the OCR of failures of GALs, Child’s Representatives, attorney Child and Family Investigators, and counsel for children subject to dependency and neglect proceedings to comply with this Chief Justice Directive and other Chief Justice Directives in existence or subsequently adopted, including Chief Justice Directive 04-08, which sets forth the standards for Child and Family Investigator.
Commentary: The complaint and notice procedure is set forth in section VII.B, footnote 1. A child whose best interests are being represented by counsel in dependency and neglect and other proceedings is in a particularly vulnerable position s/he will unlikely appear in court regularly and may find it difficult to express concerns or problems that s/he is experiencing with the attorney who has been appointed to represent his or her best interests. For these reasons, judges should take an active role in monitoring the attorneys who represent the best interests of children. Often the judge is the only individual in the position to become aware of less than adequate representation or non-compliance with this Chief Justice Directive. Judges should consider such practices as inquiring at each court date as to the last contact that the GAL or Child’s Representative has had with the child, as well as asking any other questions the judge believes is necessary and appropriate to ensure that the child’s best interests are receiving quality representation. Similarly, children represented by counsel in dependency and neglect proceedings may lack the resources and knowledge to raise concerns about counsel’s representation, and the court should promptly notify the OCR of any inadequacies it has observed with regard to an attorney’s performance as counsel for a child in a dependency and neglect proceeding.
2. Provide guidance and clarify the expectations of the court concerning GALs, Child’s Representatives attorney Child and Family Investigators, and counsel for children subject to dependency and neglect proceedings upon their appointment, throughout the proceedings and through other appropriate mechanisms;
3. Hold periodic meetings with all practicing GALs, Child’s Representatives and attorney Child and Family Investigators the court deems necessary to ensure adequate representation of the best interests of children or minor wards; and
4. As explained in section V.B, hold GALs and Child’s Representatives to the same standards and expectations imposed by the Colorado Rules of Professional Conduct on every attorney who is licensed to practice law in Colorado and report any violations. Any report should also include notice to the OCR of such report or concern so that the OCR may use this information to protect existing or other children’s best interests from inadequate representation.
C. Implement procedures and practices that enable GALs and Child’s Representatives to comply with this Chief Justice Directive.
Commentary:Examples of such procedures and practices include entering orders authorizing GALs and Child’s Representatives to access to all relevant case information and checking the availability of the GAL or Child’s Representative when scheduling hearings.
VII. Procedures for Complaints against GALs, Child’s Representatives, Attorney Child and Family Investigators, and Counsel for Children Subject to Dependency and Neglect Proceedings through Contracts with the Office of the Child’s Representative.
A. For all court-appointed GALs, attorney Child and Family Investigators, Child’s Representatives, and attorneys appointed as counsel for children subject to dependency and neglect proceedings, complaints concerning alleged violations of the Colorado Rules of Professional Conduct shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel and reported, if possible, to the OCR so that OCR may be able to consider this information when deciding whether to continue to contract with the attorney, either at the time of the complaint or in the future.
B. All complaints regarding the performance of any state-paid GAL, attorney Child and Family Investigator, Child’s Representative, or counsel for a child subject to a dependency and neglect proceeding who contracts with the OCR shall be submitted to the OCR in writing, unless the complainant is made by a judicial officer or court staff.1 The OCR shall investigate the matter and take action necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to: placing the attorney on probationary status with regard to his or her contract with the OCR; suspending or terminating the attorney’s contract with the OCR; terminating the attorney’s appointment on an active case;2 and/or taking remedial action to improve the quality of the attorney’s work. At the conclusion of the investigation, the OCR shall issue a written report of its action to the attorney, the complainant and other parties determined by the OCR to be in need of the complaint information, and the OCR may redact the written report to protect the confidentiality of persons when the OCR deems such redaction advisable. This paragraph does not preclude OCR’s authority to terminate a contract at will.
C. The OCR is required to report any violations of the Colorado Rules of Professional Conduct that it becomes aware of during its investigation of a complaint to the Colorado Supreme Court Office of Attorney Regulation Counsel.
A. All contracts with the OCR for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Chief Justice Directive may result in OCR terminating the contract, removing the attorney from the OCR appointment list, and terminating the appointment.
B. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Chief Justice Directive, and that failure to comply will result in timely notification to the OCR and may result in the OCR terminating the contract, removing the attorney from the OCR appointment list, and terminating the appointment as set forth section VIII.A.
Effective May 1, 2004, CJD 97-02 is repealed and replaced this CJD 04-06 and CJD 04-05.* CJD 04-06 is revised and adopted effective July 1, 2006. CJD 04-06 is revised and adopted effective January 1, 2012. CJD 04-06 is revised and adopted effective March 15, 2013.
Done at Denver, Colorado, March 19, 2013.
By the Court:
Michael L. Bender, Chief Justice
Colorado Supreme Court
* Chief Justice Directive 04-05 is titled “Appointing and Payment Procedures for Court Appointed Counsel for Children and Indigent Persons in Titles 14, 15, 19 (Dependency and Neglect Only), 22, 25, 27, and Guardians ad Litem, Non-Attorney Child and Family Investigators and Court Visitors Paid by the State Court Administrator’s Office.”
1. If an issue arises concerning an attorney’s ability to competently or adequately represent a child’s best interest in any particular case, the court shall immediately contact the OCR. The OCR must respond forthwith, giving immediate consideration and resolution regarding the complaint, which may include termination of contract, removal from the case at issue, and/or removal from the OCR approved list. In addressing the complaint, the OCR will give serious consideration to the judicial officer’s recommendations as to how the termination of an appointment or any other action taken by the OCR may impact the best interests of the child in the course of a particular case. This complaint process in no way interferes with the court’s inherent powers to impose sanctions, exercise its powers of contempt, and/or report any violations of the Rules of Professional Conduct to the Supreme Court Attorney Regulation Office.
2. The OCR will remove an attorney from an open case only under extenuating circumstances. With input from the court and only if warranted under the most exceptional circumstances, will the OCR consider removing an attorney from an existing and ongoing appointment. The OCR fully understands and appreciates the serious consequences that may result from removing an attorney from an existing case. It can disrupt the continuity of the case, interrupt and delay the court process, extend the length of the case and ultimately may not be in the best interests of the child. As such, only after serious consideration will the OCR remove an attorney from a case.
CJD 98-06, Amended
Judicial and Magistrate Compensation for
Solemnizing Weddings and Certifying Civil Unions
and the Reporting of Related Income
Effective May 1, 2013
Judicial and Magistrate Compensation for
Solemnizing Weddings and Certifying Civil Unions
and the Reporting of Related Income
Pursuant to sections 14-2-109(1) and 14-15-112(1), C.R.S., a marriage may be solemnized or a civil union may be certified in several ways, including by judges and magistrates. Performing weddings and civil unions are important public services that judges and magistrates may continue to perform at any time so long as it does not interfere with, nor delay any judicial duties. Further, judges and magistrates may charge a fee for weddings and civil unions performed outside of normal business hours. However, compensation of any kind may not be received for performing these services during normal business hours. Other court personnel may not accept any compensation for participation in the performance of a wedding or civil union during normal business hours.
Judges and magistrates who charge a fee for weddings or civil unions performed outside business hours are required to report the extrajudicial activity income pursuant to Canon 3.12 and 3.15 of the Code of Judicial Conduct, and section 24-6-202, C.R.S.
Done at Denver, Colorado, April 3, 2013, effective May 1, 2013.
By the Court:
Michael L. Bender, Chief Justice
Colorado Supreme Court
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions
Colorado Judicial Ethics Advisory Board (CJEAB)
Advisory Opinion 2013-01
Finalized and Effective March 28, 2013
The requesting judge has been asked to join the board of directors for the Colorado Organization for Victim Assistance (COVA). He was a member of COVA’s board and served as the board president before he became a judge, and requested an advisory opinion addressing whether his position as a judge precludes him from accepting COVA’s invitation to re-join its board.
COVA is a nonprofit organization whose membership “includes personnel from the criminal justice system, nonprofit organizations providing assistance to victims of crime, survivors of crime, concerned citizens, and members of allied professions (human services, education, mental health, clergy, etc.).”1 COVA’s website describes its mission as follows:
[COVA] is committed to fairness and healing for crime victims, their families and communities through leadership, education, and advocacy. By operating in an inclusive and compassionate manner, COVA creates solutions and positive change. COVA’s vision is to be recognized as a national leader in building a collaborative environment where crime victims are given the opportunity to heal and restore balance to their lives.2
According to its website, COVA is involved in the following activities: (1) providing training and technical assistance on the Colorado Victims’ Rights Act; (2) providing training to assist member agencies to provide quality services; (3) publishing newsletters and an online statewide directory of victim service providers; (4) monitoring state and federal legislation affecting victims of crime; (5) administering a Victim Services Internship/Mentorship Program to enhance delivery of services to undeserved/underrepresented populations in the Denver metropolitan area; (6) sponsoring the Annual COVA Conference for victim service providers and other interested parties; (7) planning, developing, and hosting a Statewide Victim Assistance Academy to provide base-line training to those new to the field of victim assistance; (8) providing public education to foster a better understanding of victimization; (9) offering a voluntary Victim Advocate Certification Program for Colorado victim advocates; (10) administering a Crime Victim Emergency Fund; and (11) developing a Crisis Response Team available to assist communities statewide.3
The requesting judge indicated that COVA is also “active in shaping state policy and legislation in ways that benefit crime victims.” COVA’s website describes its legislative activities as follows:
COVA strives to raise the understanding of victim issues within the consciousness of policy makers and the general public to a level where all crime victims are viewed with honor and respect and their rights are recognized as an essential element of the criminal justice process. To further these goals, COVA addresses public policy issues both inside and outside the legislative arena. COVA monitors proposed bills and advocates on issues relevant to crime victims and those who serve them on a daily basis. Legislative advocacy involves coalition-building with other victim advocacy groups; assisting members in identifying and implementing ways to educate their communities; and raising legislators’ awareness and knowledge of crime victim issues. COVA also monitors federal initiatives and issues that affect victims’ rights.4
The judge may serve on the board of directors of the Colorado Organization for Victim Assistance, provided doing so would not lead to his frequent disqualification or otherwise interfere with his ability to perform his judicial duties. The judge must ensure that his activities as a board member do not undermine his impartiality, give rise to the appearance of impropriety, or violate other provisions of the Code.
APPLICABLE PROVISIONS OF THE COLORADO CODE OF JUDICIAL CONDUCT
Canon 3 of the Code of Judicial Conduct requires a judge to “conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”
Rule 3.1 provides:
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.
Rule 3.7(A)(6) provides:
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 . . . civic organizations not conducted for profit, including . . . serving as an officer [or] director . . . 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.
Rule 3.7(A)(6) expressly permits judges to serve on boards of civic non-profit organizations that are not engaged in proceedings that would ordinarily come before the judge, the court of which the judge is a member, or any court subject to the appellate jurisdiction of the judge or the court he serves, and provided the judge’s involvement on the board would not violate the limitations on extrajudicial activities set forth in Rule 3.1. Specifically, and as pertinent here, a judge may not serve on an organization’s board of directors if doing so would interfere with the proper performance of the judge’s judicial duties, lead to the judge’s frequent disqualification, undermine the judge’s independence, integrity, or impartiality, or appear to be coercive. C.J.C. Rule 3.1(A) – (D); see C.J.C. Rule 3.1, cmt. 1 (“To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities.”); C.J.C. Rule 3.7, cmt. 2 (“[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.”).
Several of the Board’s previous opinions have recognized that, under Rule 3.7 and similar rules in the pre-2010 Code, judges may ethically serve on boards of civic non-profit organizations. See CJEAB Adv. Op. 2012-01 (judge may serve as the chairman of the board of directors of a non-profit organization benefitting senior citizens); CJEAB Adv. Op. 2007-02 (judge may serve on the board of directors of a public charter school in a neighboring judicial district); CJEAB Adv. Op. 2007-03 (judge may serve on a grant-making committee of a community foundation); CJEAB Adv. Op. 2006-06 (judge may serve on the board of an organization devoted to seeking funds to assist defendants in obtaining court-ordered substance abuse treatment).
The requesting judge did not provide information from which we can determine whether COVA or its representatives appear in or advise parties or non-party participants in matters before the judge, the court he serves, or any court over which he or his court has appellate jurisdiction. We assume for purposes of this opinion that COVA and its representatives do not appear in such matters and that, to the extent COVA advisees do, their appearance would not require the judge’s disqualification pursuant to C.J.C. 2.11. Based on those assumptions and subject to the limitations in Rule 3.1, we conclude based on Rule 3.7(A)(6) and our previous opinions that the judge may ethically serve on COVA’s board of directors. See CJEAB Adv. Ops. 2012-01, 2007-02, 2007-03, and 2006-06; cf. CJEAB Adv. Op. 2005-03 (judge should not serve on board of directors of his or her homeowners’ association where association is large and substantial, operates a sizable budget and maintains significant cash reserves, and is engaged in substantial business-type contacts that might lead to or involve litigation).5
We note, however, that COVA trains victim advocates who may or may not appear in court or work with attorneys, non-attorney representatives, witnesses, or others who do, and it is not clear whether board members take an active role in training victim advocates. We also note that according to COVA’s website, its board of directors includes two district attorneys from the judge’s judicial district and other individuals who could potentially appear in court proceedings, whether as parties, counsel, witnesses, or in another capacity.6 Thus, in deciding whether the disqualification-related limitations in Rules 3.1 and 3.7(A)(6) preclude his ethical participation on the board, the judge should consider whether his involvement on the board might lead to potentially disqualifying relationships, and in particular whether his affiliation with other board members might lead to his frequent disqualification in criminal matters.
Moreover, if the judge decides to serve on COVA’s board of directors, he must ensure that the activities he engages in as a board member are consistent with other provisions of the Code. Because he did not inquire about any specific proposed activities, we cannot determine the ethical parameters of his activities as a board member in this opinion. We encourage the judge to review our previous opinions for guidance in making that determination, especially CJEAB Adv. Op. 2012-05, our most recent opinion regarding the ethical limitations on judicial participation in extrajudicial activities. Although that case involved the permissible scope of a judge’s participation on a governmental board under Rule 3.4, not the ethical parameters of a judge’s membership on a civic organization’s board of directors under Rule 3.7, many of the ethical issues judges must consider in evaluating the propriety of their affiliation with outside organizations, particularly concerns about impartiality and the appearance of impropriety, are the same whether the organizations are governmental or private.
In addition to the considerations highlighted in our previous opinions, the judge should also consider whether COVA’s legislative activities, particularly those that do not concern the law, the legal system, or the administration of justice, would be inconsistent with the independence, integrity, or impartiality of the judiciary, see C.J.C. Rules 3.1(C) and 3.2, Canon 4, or give the impression that, as a board member, he is lending the prestige of his judicial office to support COVA’s legislative objectives. See C.J.C. Rules 1.3, 2.4(C), and 3.2, cmts.  and  (“Judges possess special expertise in matters of law, the legal system, and the administration of justice, and may properly share that expertise with governmental bodies and executive or legislative branch officials,” but “In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code . . . .”); CJEAB Adv. Op. 2007-07 (deciding under pre-2010 Code, that a judge may not accept a voting or non-voting board position on a local community board that combines integrated services and legislative advocacy because such membership would involve legislative advocacy beyond matters to improve the law); CJEAB Adv. Op. 2006-08 (judge should not accept appointment to a panel of public and private leaders charged with “reducing the state’s contribution and vulnerability to a changed climate” by developing a set of recommendations and policy proposals addressing how Colorado can mitigate and adapt to climate change; such work would involve consulting with or providing recommendations to the legislative and executive branches on climate control issues, which are unconnected with the law, the legal system, the administration of justice, or the role of the judiciary, and constitutes prohibited political activity).
Finalized and Effective March 28, 2013.
5. In so concluding, we note that, while COVA engages in various political activities, it is not a “political organization” as that term is defined in the Code, and that the judge’s participation on the board is thus not prohibited by Rule 4.1(A), which provides that judges “shall not . . . act as a leader in, or hold an office in, a political organization.” See C.J.C. Terminology (defining “political organization” as “a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office”).
Colorado Judicial Ethics Advisory Board (CJEAB)
Advisory Opinion 2013-02
Finalized and Effective March 28, 2013
The requesting judge is a juvenile court judge on the Denver District Court. The judge requested an advisory opinion addressing whether judicial involvement in the court’s system for the selection and oversight of attorneys who are eligible for appointment as counsel for indigent respondent parents in dependency and neglect proceedings is consistent with the Code of Judicial Conduct.
As described by the judge, the Denver Juvenile Court’s system is as follows. Attorneys who seek to be appointed as respondent parents’ counsel (RPC) apply annually for contracts. Attorneys who receive contracts are placed on a list kept by the Clerk of Court and are eligible to be appointed as RPC for that fiscal year. The court’s judicial officers select the attorneys who are awarded contracts and appoint attorneys to represent indigent parents exclusively from the list. RPC attorneys may appear before any judge or magistrate on the court, but are primarily assigned to a courtroom presided over by a single judicial officer. While the judicial officers “work together and have candid discussions about the attorneys” in determining who will receive contracts, “traditionally it is the individual judge to whom the attorney is assigned who makes the final decision on who gets a contract.” The judicial officers monitor the performance of RPC attorneys through the contract year, and periodically complete surveys evaluating their performance. The results of the surveys are available to all of the court’s judicial officers.
The judge expressed concern that this system “creates an appearance of impropriety” because, while the judicial officers strive to “select only the best applications for RPC and to do so as objectively as possible, the undisputed fact is that the current system gives the judge the exclusive power to determine who will appear before that judge as [court-appointed] RPC.” The judge commented that judicial officers do “not have the power to select” or “remove” other attorneys who appear before the court, and suggested that the level of control judges have over the selection and oversight of attorneys on the RPC list is particularly problematic because many of the attorneys practice exclusively in that court and therefore “rely and depend on their annual contract” in light of the “substantial commitment of time and effort” the RPC contract requires.
The judge gave two examples of situations that illustrate his concern: (1) an RPC attorney who is “afraid of aggravating a judge, and thereby risk their annual RPC contract, may hesitate to file motions or take other steps he or she legitimately believes need to be taken to represent a parent”; and (2) RPC attorneys “may hesitate to appeal the trial judge because if the judge is reversed on appeal, the attorney fears the trial judge will retaliate and not renew the attorney’s contract.”
As part of their administrative duties, judicial officers may ethically select the attorneys who are eligible for appointment as counsel for respondent parents in dependency and neglect proceedings and monitor appointed attorneys’ performance, provided the exercise of those duties is impartial and based on merit.
APPLICABLE PROVISIONS OF THE COLORADO CODE OF JUDICIAL CONDUCT
Rule 1.2 of the Code of Judicial Conduct requires judges to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” and to “avoid impropriety and the appearance of impropriety.”
Rule 2.2 provides that judges “shall perform all duties of judicial office fairly and impartially.”
The Code recognizes that a judicial officer’s duties include making administrative appointments of “assigned counsel, officials such as referees, commissioners, special masters, receivers, and guardians, and personnel such as clerks, secretaries, and bailiffs.” C.J.C. 2.13, cmt. . Rule 2.13 provides:
(A) In making administrative appointments, a judge:
(1) shall exercise the power of appointment impartially and on the basis of merit; and
(2) shall avoid nepotism, favoritism, and unnecessary appointments.
(B) A judge shall not approve compensation of appointees beyond the fair value of services rendered.
Rule 2.5 requires judges to “perform judicial and administrative duties, competently,” and to “cooperate with other judges and court officials in the administration of court business.”
Parents who are respondents in dependency and neglect proceedings in Colorado have a statutory right to be represented by counsel. If the parent cannot afford counsel, he or she may seek appointment of counsel at state expense. §§ 19-1-105(2), 19-3-202(1), C.R.S. (2012); C.S. v. People, 83 P.3d 627, 636 (Colo. 2004); People in Interest of C.Z., 262 P.3d 895, 900 (Colo. App. 2010). Thus, courts have an administrative duty to appoint counsel for eligible respondent parents.1
Chief Justice Directive 04-05, which establishes appointment and payment procedures for court-appointed counsel in dependency and neglect cases, provides:
Appointments may be made under flat fee or hourly contracts developed by the Judicial Department, or if necessary to meet the jurisdiction’s needs, on a non-contract hourly fee basis. Any attorney not under contract with the Department who requests appointments must submit to the Chief Judge a request with an affidavit of qualifications for such appointments. The Chief Judge, in his or her discretion, may approve additions to the list of non-contract attorneys at any time. . . . The judge or magistrate shall consider the number of an attorney’s active cases, the qualifications of the attorney, and the needs of the party to be represented when making appointments.
In addition to providing guidance regarding factors judges must consider in deciding which attorney to appoint in a given case, the Directive also contemplates judicial oversight over court-appointed attorneys by establishing procedures for handling complaints regarding counsel’s representation, and providing that:
the appointing judge or magistrate shall, to the extent practical and subject to attorney-client privilege, monitor the actions of the appointee to ensure compliance with the duties and scope specified in the order of appointment. . . . [An appointee’s] failure to comply [with this Directive] may result in termination of the current appointment and/or removal from the appointment list.
Thus, the responsibility for selecting which attorneys to appoint and monitoring appointees falls within a judicial officer’s administrative duties.2
The Code of Judicial Conduct expressly acknowledges that judges are required to make administrative appointments as part of their judicial duties, and provides that they may ethically do so if they “exercise the power of appointment impartially and on the basis of merit,” and “avoid nepotism, favoritism, and unnecessary appointments.” C.J.C. Rule 2.13 and cmt. . The specific requirements in Rule 2.13 regarding administrative appointments echo Rules 1.2 and 2.2, which require more broadly that judges “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” “avoid impropriety and the appearance of impropriety,” and “perform all duties of judicial office fairly and impartially.” Because these requirements apply to a judge’s performance of all judicial duties, they apply not only to the act of making appointments, but also to the selection and oversight aspects of a judicial officer’s administrative appointment duties.
With respect to the requesting judge’s concern about judicial involvement in the contracting process, we perceive no meaningful ethical distinction between an individual judge deciding which attorney to appoint in a particular case and judicial involvement in the collaborative selection of attorneys who are awarded RPC contracts and are therefore eligible for appointment by judicial officers in individual cases. In either instance, a judge may ethically participate in the impartial, merit-based selection of court-appointed attorneys. See C.J.C. 2.2, 2.13; see also C.J.C. 2.5 (requiring judges to “perform judicial and administrative duties, competently,” and to “cooperate with other judges and court officials in the administration of court business”).
Thus, we conclude that the requesting judge’s participation in the Denver Juvenile Court’s system for selecting RPC attorneys eligible for appointment is within the scope of his administrative duties as a judge, and raises neither the appearance of impropriety nor any other ethical concern, provided he carries out his duties impartially and on the basis of merit.3 Likewise, in carrying out his administrative duty to oversee the attorneys he appoints, the judge may ethically monitor the appointees and share his impartial, merit-based assessment of their performance with other judicial officers.
We are not persuaded otherwise by the requesting judge’s examples of situations in which an attorney might seek to curry favor with or be afraid zealous advocacy could anger the appointing judge. Those examples raise concerns not about whether judicial participation in the appointment process is ethical, but about whether court-appointed counsel are fulfilling their obligation to represent the best interest of their clients in a manner consistent with the Rules of Professional Conduct.4 See C.J.C. Rule 1.2, cmt. 5 (“the test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge”). Nor does CJEAB Adv. Op. 2010-02 , which the judge cited in his request, require a different conclusion. In that case, the Board opined that a judge who presides over dependency and neglect matters should not serve on an interagency oversight board that determines how to spend certain state funds where a new memorandum of understanding with the state on dispersal of the funds creates a financial incentive for the judge to reduce certain placements in his capacity as a judge in order to provide more funds for the oversight group. That case involved the propriety of the judge’s proposed extrajudicial activities, not the performance of his administrative duties in the courtroom. Moreover, nothing in the Denver Juvenile Court’s system for selecting and appointing RPC attorneys creates a financial incentive for judges to alter how they implement that system.
Finalized and Effective March 28, 2013.
1. A court’s duty to appoint counsel for indigent respondent parents in dependency and neglect cases is just one example of the many administrative appointments of counsel and other representatives judicial officers are authorized or required to make on behalf of parties or non-party participants in proceedings before them. See, e.g.,CJD 08-01 (appointment of decision makers in domestic relations cases); CJD 04-08 (appointment of child and family investigator in domestic relations cases); CJD 04-06 (appointments through the Office of the Child Representative); CJD 04-05 (appointment of counsel pursuant to Titles 12 through 15, 22, and 27, and in dependency and neglect cases, and of GALs, child and family investigators, and court visitors); CJD 04-04 (appointment of counsel in criminal and juvenile delinquency cases and for contempt of court); see also C.J.C. 2.13, cmt. .
2. Several appellate decisions also address a judge’s role in the oversight of court-appointed counsel in dependency and neglect cases when issues arise concerning the attorney’s competence or other aspects of the representation. See, e.g., A.L.L. v. People, 226 P.3d 1054, 1062–63 (Colo. 2010) (while a respondent parent’s right to counsel in a dependency and neglect case is established by statute, not constitutional mandate, once counsel has been appointed in a termination proceeding, constitutional principles developed in criminal cases define the scope of counsel’s obligation to the client and the court’s role in protecting the client’s right to the effective assistance of counsel); People in Interest of M.M., 726 P.2d 1108, 1121 (Colo. 1986) (holding, in dependency and neglect case involving court-appointed counsel, that “[i]f the trial court has a reasonable basis for concluding that the lawyer-client relationship has not deteriorated to the point that counsel is unable to give effective assistance to his client, the court is justified in denying a client’s request to discharge her attorney and a lawyer’s request to withdraw”); C.Z.., 262 P.3d at 902 (recognizing the propriety of judicial oversight of appointed counsel in dependency and neglect cases in holding that the “decision whether to grant an appointed attorney’s motion to withdraw and for appointment of substitute counsel is a matter within the court’s discretion”); People in Interest of A.J., 143 P.3d 1143, 1148 (Colo. App. 2006) (the standard for determining whether an appointed attorney in a dependency and neglect case provided ineffective assistance is the same as the standard for evaluating appointed counsel’s effectiveness in criminal cases).
3. Rule 2.13 specifically permits judicial officers to make judicial appointments, subject to the limitations set forth in that rule. “When two statutes attempt to regulate the same conduct, the more specific statute preempts the general statute.” Crowe v. Tull, 126 P.3d 196, 206 (Colo. 2006); see also People v. Kadazi, 284 P.3d 70, 78 (Colo.App. 2011) (applying rules of statutory construction to interpretation of supreme court rules); In re Haley, 720 N.W.2d 246, 254 (Mich. 2006) (“[t]he ‘appearance of impropriety’ standard is relevant not where there are specific court rules or canons that pertain to a subject ... but where there are no specific court rules or canons that pertain to a subject and that delineate what is permitted and prohibited judicial conduct. Otherwise, such specific rules and canons would be of little consequence if they could always be countermanded by the vagaries of an ‘appearance of impropriety’ standard.”) (citation omitted).
4 See Colo. RPC 1.7(a)(2) (lawyer has concurrent conflict of interest if “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.”); Erica J. Hashimoto, Resurrecting Autonomy: The Criminal Defendant’s Right to Control the Case, 90 B.U. L. Rev. 1147, 1181-82 (June 2010) (when lawyer relies on court appointments for livelihood, lawyer has economic incentive to please judge by, for example, encouraging defendant to accept guilty plea rather than go to trial).
U.S. Bankruptcy Court for the District of Colorado
In the Matter of Chapter 13 Fee
General Procedure Order Number 2013-2
Effective March 27, 2013
THIS MATTER comes before the Court pursuant to L.B.R. 2016-3 wherein the Court is charged with issuing a Chapter 13 Fee GPO to set a presumptively reasonable fee allowance. Accordingly,
IT IS HEREBY ORDERED that the presumptively reasonable fee allowance is set at $3600 (“PRF amount”), as a total fee through confirmation (not including expenses) for the timely rendering of Basic Services, as necessary and appropriate, listed on attached Exhibit A.1 The PRF amount will be applicable to all cases filed on or after April 1, 2013. Cases filed prior to April 1, 2013, remain subject to the PRF amount set in General Procedure Order Number 2009-4.
FURTHER ORDERED that this General Procedure Order is effective commencing April 1, 2013.
Dated: March 27, 2013
By the Court:
Howard R. Tallman, Chief Judge
Sidney B. Brooks, Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Michael E. Romero, Judge
1. As contemplated by L.B.R. 2016-3, the use of the presumptively reasonable fee does not preclude further application for fees and costs incurred for post-confirmation services.
See L.B.R. 2016-3 and L.B.Form 2016-3.1, L.B.Form 2016-3.4, L.B.Form 2016-3.3 and L.B.Form 2016-3.2.
The PRF does not include services required for adversary proceedings.
Basic Services Anticipated in Chapter 13 Cases
The following services are Basic Services common to most Chapter 13 cases. Some cases will not require all of these services, but such services are considered essential to competent and effective representation of most debtors in Chapter 13. By utilizing the Presumptively Reasonable Fee (“PRF”) procedure, the attorney for the debtor(s) agrees to perform these services as part of the chapter 13 case. If providing these services results in a fee in excess of the PRF, counsel must apply for fees in accordance with the Bankruptcy Code and Rules. The PRF procedure is intended to cover pre-confirmation fees. If necessary, counsel may file a fee application for fees incurred post-confirmation.
Meet with the debtor(s) to review and analyze the debtor(s)’ financial situation.
Counsel the debtor(s) on whether the filing of a bankruptcy case is appropriate and necessary and, if so, whether to file a Chapter 7 or Chapter 13 case.
Advise the debtor(s) of their statutory obligations once a bankruptcy is filed, both pre- and post-confirmation.
Evaluate the timing of the filing.
Evaluate conflict of interest issues.
Explain to the debtor(s) the nature and amount of fees and expenses to be charged for the Basic Services. Provide the debtor(s) with a copy of this Exhibit A of Basic Services.
If required to e-file, e-file all documents on debtors behalf.
Analyze eligibility for discharge.
Prepare and file required documents, including, but not limited to, the schedules and statement of affairs and Form B22 C, Statement of Current Monthly Income, and other information required to be filed by section 521(a) of the Code.
Assist the debtor(s) in formulating a budget and Chapter 13 plan.
Respond to creditor inquires.
Timely supply requested information to the Chapter 13 Trustee.
Advise the debtor(s) with regard to the automatic stay.
Take appropriate action with respect to the automatic stay.
Appear at and represent the debtor(s) at the § 341 meeting of creditors.
Review claims filed by the final hearing on confirmation and account for them in the plan.
Represent the debtor(s) in negotiations with the Chapter 13 Trustee.
Prepare and file any necessary amendments to schedules, statements and proposed plans.
Where Debtor(s) own real estate or has lawsuits, obtain a lien search and if applicable, prepare and file motions for avoidance of liens.
Represent the debtor(s) at any Rule 2004 examination.
File or object to proofs of claim, as necessary.
If appropriate, prepare and file responses to motions and appear at any hearings.
Represent debtors in plan confirmation process and attend hearing if necessary on objections to confirmation.
Prepare all proposed orders and give all notices as required.
Comply with T.L.B.R. 1017 and 3015, 11 U.S.C. §§ 521 and 1308.
In the Matter of Adoption of Revisions
To Certain Local Bankruptcy Rules and Forms
Amended General Procedure Order Number 2012-6
Effective March 14, 2013
Pursuant to 28 U.S.C. § 2071, Rule 83 of the Federal Rules of Civil Procedure and Rule 9029 of the Federal Rules of Bankruptcy Procedure, this General Procedure Order is adopted to make revisions to the Local Bankruptcy Form Chapter 13 Plan Form 3015-1.1 pending its formal adoption. The revision is made to allow the plan to be printed two pages to a side of paper, front and back, for mailing purposes for those plans mailed by the Court’s noticing agent.1 The new form plan is available for review at cob.uscourts.gov and the attached exhibit sets forth more detail of the revisions.
IT IS ORDERED that commencing February 1, 2013, the revisions to L.B. Form 3015-1.1 are adopted for use.
Dated March 14, 2013.
By the Court:
Howard R. Tallman, Chief Judge
Sidney B. Brooks, Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Michael E. Romero, Judge
1. Electronic filers are required to use the Chapter 13 Plan (Condensed) event in the Electronic Case Filing system with the plan printing two pages on one side of paper for the Court to process the plan through the Bankruptcy Noticing Center. This requirement modifies L.B.R. 3015-1(c)(1).
L.B.R. Form 3015-1.1 Chapter 13 Plan Including
Valuation of Collateral and Classification of Claims
Page 1, Motions for Valuation of Collateral is revised to combine what had previously been three boxes for real property valuations.
Page 5, IV(C)(2) Secured claims subject to 11 U.S.C. § 506 (Personal Property) subdivisions (a) and (b) are broken out with their own charts using more accurate descriptive language in the chart. Information regarding adequate protection payments is also included in the charts.
Page 6, IV(D)(2) Class Four removes as unnecessary the language about certain non-dischargeable claims sharing pro rata in distribution and their collection being stayed.
© 2013 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=2013.