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TCL > October 2013 Issue > Court Business

The Colorado Lawyer
October 2013
Vol. 42, No. 10 [Page  103]

© 2013 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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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.


U.S. Bankruptcy Court for the District of Colorado

Chief Judge Administrative Order 2013-2
Establishing the Standing Local Rules Revision Committee
Appointed by the U.S. Bankruptcy Court for the District of Colorado

The Judges of the United States Bankruptcy Court for the District of Colorado recognize the need to establish a Standing Local Rules Revision Committee (Committee) to act in an advisory capacity to the Court in considering rules affecting local bankruptcy practice, investigating and drafting proposed rule revisions for consideration by the Court and taking such other action to assist in the implementation of the approved, revised rules. The Committee has been appointed upon the recommendations of the chairs of the Colorado Bankruptcy Bar Bankruptcy Subsection, the leadership of the Faculty of Federal Advocates, and with review by the Judges. The Committee is authorized to act and serve pursuant to the terms of its bylaws.1

ORDERED that the Standing Local Rules Revision Committee is hereby appointed and shall continue to operate under their bylaws pending further Court order.

Effective date: April 4, 2013. Done this 12th day of August 2013.

By the Court:

Howard R. Tallman, Chief Judge

__________

1. A copy of the bylaws and list of current Committee members is posted at www.cob.uscomis.gov under the Court Information tab; Rules, Procedures, and Other Filing Information drop down.


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, contact: Court Services Division, Colorado Office of the State Court Administrator, visit www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

_____________________________________

CJD 04-05
Appointment and Payment Procedures for Court-Appointed Counsel
Amended November 30, 2011

Attachment B (form JDF 209) Modified March 2013
Appointment and Payment Procedures for Court-Appointed Counsel
Pursuant to Titles 12, 13, 14, 15, 19 (Dependency and Neglect only),
22, and 27, and Guardians ad Litem, Child and Family Investigators, and
Court Visitors Paid by the State Court Administrator’s Office

This policy is adopted to assist the administration of justice with respect to the following appointments:

  • Appointment of counsel for children and adults under Titles 12, 13, 15, 19 (dependency and neglect only), 22, and 27;
  • Appointment and training of guardians ad litem and court visitors appointed on behalf of wards or impaired adults in all cases;
  • Appointment of non-attorney child and family investigators in the best interest of children pursuant to § 14-10-116.5, C.R.S. For additional policies addressing guidelines for payment, practice standards, guidelines for appointment, complaint process, eligibility, sanctions and the court’s authority, role, and responsibilities related to all child and family investigators (attorney, non-attorneys, private paid and state paid) refer to Chief Justice Directive 04-08 and Chief Justice Directive 04-06. This Chief Justice Directive 04-05 provides payment policies governing child and family investigators appointed for indigent parties and paid by the state.

This policy does not cover appointments made pursuant to Titles 16 and 18, nor appointments of counsel in juvenile delinquency matters pursuant to Title 19, nor appointments of guardians ad litem for minors, attorney child and family investigators and child’s legal representatives (Office of the Child’s Representative () appointments). For information concerning criminal and juvenile delinquency appointments refer to Chief Justice Directive 04-04, and for state paid attorneys appointed in the best interest of children and paid by the , refer to Chief Justice Directive 04-06.

I. STATUTORY AUTHORITY

A. The federal and state constitutions and various Colorado statutes provide authority for the appointment of counsel, guardians ad litem (GAL), child and family investigators, and court visitors in certain legal actions.

B. State funds are appropriated to the Judicial Department to provide for representation in dependency and neglect cases and in certain other cases in which the party represented, or the party’s parent or legal guardian, is determined to be indigent.

II. ELIGIBILITY DETERMINATION

A. The person for whom representation is requested or, in the case of children, the responsible party, must be indigent to qualify for court-appointed representation at state expense pursuant to Titles 14, 22, and 27 and for representation of respondents in a dependency and neglect action under Title 19. Such person(s) must also be indigent for the court to authorize payment of certain costs and expenses.

B. An indigent person is one whose financial circumstances fall within the fiscal standards set forth in Attachment A.

C. All 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 JDF208 ("Application for Public Defender, Court-Appointed Counsel or Guardian ad litem") signed under oath, before an appointment of counsel at state expense may be considered. Form JDF208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27, guardianship and protective proceeding cases under Title 15 in which the respondent refuses to or is unable to supply the necessary information, cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to § 12-37.5-107(2)(b), C.R.S. Pursuant to §13-90-208, C.R.S. a person who is deaf or hard of hearing may have access to counsel for advice on whether to execute a waiver of state funded interpreter services.

D. For appointments under Title 15 and some appointments under Title 27 where the court believes that the person needs the assistance of counsel and is unable to obtain counsel, the person for whom representation is requested or, in the case of children, the responsible party, need not be indigent to qualify for court-appointed representation at state expense.

E. If, in the interest of justice, a tentative appointment of legal counsel or a guardian ad litem for the party is necessary, such appointment may be made pending a final decision regarding indigency. If a review of a person’s application shows that the person is not indigent and the person is not qualified to have court-appointed representation at state expense, the court may order the person to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel or a guardian ad litem.

F. An attorney or other person appointed by the court on the basis of one or more party’s inability to pay the costs of the appointment shall provide timely notice to the court in the event financial related information is discovered that would reasonably call into question the party’s inability to pay such costs. The court shall have the discretion to reassess indigence, and for purposes of possible reimbursement to the state, the provisions of Section V. of this Chief Justice Directive shall apply. Based upon a reassessment of a party’s financial circumstances, the court may terminate a state-paid appointment, require reimbursement to the State of Colorado of all or part of the costs incurred or to be incurred, or continue the appointment in its current pay status.

III. GUIDELINES FOR APPOINTMENT OF COUNSEL, GAL (FOR ADULTS), NON-ATTORNEY CHILD AND FAMILY INVESTIGATORS, AND COURT VISITORS

The Clerk of Court or the District Administrator shall maintain a list of qualified persons from which appointments will be made under this section. The order of appointment shall specify:

  1. The authority under which the appointment is made;
  2. Reason(s) for the appointment;
  3. Scope of the duties to be performed; and
  4. Terms and method of compensation (including indigency status).

See Attachments B (Form JDF209) and C (Form JDF210). See Chief Justice Directive 04-08 guidelines for the appointment of child and family investigators.

A. Appointments of Counsel

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. An attorney not under contract with the Judicial Department must submit an updated affidavit to the chief judge every three years to ensure that he or she is maintaining his or her qualifications for such appointments. 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.

1. Appointment of Counsel for Respondent in Dependency and Neglect Proceedings: Counsel shall be appointed for an indigent parent or guardian in dependency and neglect proceedings as provided under Title 19.

2. Appointment of Counsel for Involuntary or Emergency Alcohol/Drug Commitment Proceedings: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 27, Articles 81 and 82, as amended.

3. Appointment of Counsel for Care and Treatment of Mentally Ill: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 27, Article 65, as amended.

4. Appointment of Counsel for Probate, Trusts, and Fiduciaries: Counsel appointments to provide legal representation to eligible persons shall be in accordance with provisions under Title 15, Article 14, as amended.

5. Appointment of Counsel for a Juvenile:

a. Counsel may be appointed for a child in a truancy matter under Title 22 if adjudication is previously entered and the child is served with a contempt citation or if the court deems representation by counsel necessary to protect the interests of the child or other parties. Parties requesting counsel must complete form JDF208 and a finding of indigence is required for the appointment of counsel at state expense. If the party is a. not qualified to have court-appointed representation at state expense, the court may order the responsible party(ies) to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel.

b. Counsel may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to § 12-37.5-107(2)(b), C.R.S. and Chapter 23.5 of the Colorado Rules of Civil Procedure ("Rules of Procedure for Judicial Bypass of Parental Notification Requirements").

6. Appointment of Counsel for Appeals: The trial court shall determine the need and statutory requirement for appointment of counsel on appeal. The court shall be under no obligation to appoint counsel in appeals where the sole issue for determination is the individual allocation of parental responsibilities between and among two parents. Where applicable, determinations of indigency should be in accordance with the procedure described in section II. The maximum total fee allowable on an appeal shall be in accordance with the maximum fees outlined in section IV. D. Requests for payment shall be filed on Form JDF207 (Colorado Judicial Department Request and Authorization For Payment of Fees) with the appellate court and must contain a copy of the order appointing counsel to represent the indigent person on appeal. An appellate court judge, or designee, shall carefully review all requests for payment submitted to the court for approval.

7. Appointment of Counsel for a Person who is Deaf or Hard of Hearing: Pursuant to § 13-90-208, C.R.S., the right of a person who is deaf or hard of hearing to a qualified interpreter or auxiliary service may not be waived except in writing by the person who is deaf or hard of hearing. Prior to executing such a waiver, a person who is deaf or hard of hearing may have access to counsel for advice.

8. Appointment of Counsel in Other Cases: Indigent parties may request that the court appoint counsel in other cases for which there is not specific statutory authority. See, In re C.A.O. for the adoption of G.M.R., 192 P.3d. 508 (Colo. App. 2008). The Judicial Department does not budget for non-statutorily required appointments. In an instance where the court finds constitutional authority for the appointment of counsel for an indigent party, a written order of appointment stating the grounds for appointment, citing legal authority, and certifying payment of counsel at the state rate is required.

B. Appointments of Guardians ad litem (for Adults), Non-Attorney Child and Family Investigators and Court Visitors.

The court may appoint a qualified person other than an attorney as a child and family investigator or court visitor when the appointment of an attorney is not mandated by statute. The court shall maintain a list of qualified persons to accept appointments as guardians ad litem, court visitors and non-attorney child and family investigators from which the court will make appointments.

1. Appointment of GAL in Dependency and Neglect Case: A guardian ad litem may be appointed pursuant to Title 19 for a parent or guardian in dependency and neglect proceedings who has been determined to be mentally ill or developmentally disabled, unless a conservator has been appointed.

2. Appointment of GAL in Trusts or Estates: In formal proceedings involving trusts or estates of decedents, protected persons, and in judicially supervised settlements pursuant to Title 15, a guardian ad litem may be appointed for an incapacitated person, unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation exists.

3. Appointment of GAL in a Civil Suit: A guardian ad litem may be appointed for an incompetent person who does not have a representative and who is a party to a civil suit, pursuant to CRCP 17(c).

4. Appointment of GAL for Emergency or Involuntary Commitment of Alcoholics or Drug Abusers: Upon the filing of a petition for involuntary commitment of alcoholics or drug abusers, a guardian ad litem may be appointed for the person if the court deems the person’s presence in court may be injurious to him or her pursuant to Title 27.

5. Appointment of Non-Attorney Child and Family Investigator: A non-attorney child and family investigator may be appointed in a domestic relations case pursuant to § 14-10-116.5, C.R.S. Also see applicable guidelines pursuant to Chief Justice Directive 04-08. For appointment of an attorney child and family investigator, see applicable guidelines implemented through the Office of the Child’s Representative pursuant to Chief Justice Directive 04-06. Pursuant to §14-10-116.5(b), C.R.S., in cases where the appointment is made prior to the entry of a decree of dissolution or legal separation, the court shall consider the combined income and assets of both parties for purposes of determining indigence and whether the state shall bear the costs, fees, or disbursements related to the appointment of a child and family investigator. The court shall enter an order for costs, fees, and disbursements against any or all of the parties and, as provided in § 14-10-116.5(c), C.R.S., shall make every reasonable effort to apportion costs between the parties in a manner that will minimize the costs, fees, and disbursements that shall be borne by the state. When a responsible party is indigent, the state will pay the non-attorney child and family investigator at the rates established in section IV.C. and IV.D. for the portion of authorized fees and expenses for which the indigent party is responsible.

6. Appointment of Court Visitor: A court visitor shall be appointed for a respondent pursuant to Title 15.

IV. GUIDELINES FOR PAYMENT OF COUNSEL, GUARDIANS AD LITEM, NON-ATTORNEY CHILD AND FAMILY INVESTIGATORS, AND COURT VISITORS

A. The fees and costs associated with appointments described under this directive shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made under contracts developed by the Judicial Department or on a non-contract hourly fee basis. Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON/Eclipse computer system and complete the appointment on the system for payment and tracking purposes. Claims for payment on hourly appointments shall be entered in the Department’s Internet-based payment system (); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using , claims for payment shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees (form JDF207). Claims for payment on flat-fee, contract appointments shall be entered in CACS; or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using , such claims for payment shall be filed with the State Court Administrator’s Office using the process and format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel, Guardians ad litem, Non-Attorney Child and Family Investigators and Court Visitors Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment D) and shall follow the Court Appointees and Investigators Procedures for Payment of Fees and Expenses (Attachment E). All hourly payment requests shall be reviewed by the District Administrator or his/her designee to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete or erroneous claims will be returned to the attorney or other appointee with an explanation concerning the issue(s) identified.

2. Court Costs, Expert Witness Fees, and Related Expenses: Costs incurred by counsel shall be pre-approved and paid by the appointing court. Court costs include such items as: expert witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives/Orders, and other policies and procedures of the Judicial Department, including the Judicial Department’s Fiscal Policies and Procedures manual. A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01, as amended.

3. Online Appointee Billing: Appointees shall invoice the Judicial Department using the Department’s Internet-based system () according to the policies and procedures set forth by the State Court Administrator’s Office. An appointee may request an exception to this requirement by contacting the Financial Services Division at the State Court Administrator’s Office. In the request, the appointee shall describe the extenuating circumstances preventing the use of for invoicing. The Director of Financial Services or his/her designee shall review such requests and shall have final decision authority concerning the granting or denial of the request. Failure of an appointee to learn or avail him/herself of training on the use of is not sufficient cause to warrant an exception.

4. To maintain the security and integrity of , appointees shall immediately notify the Director of Financial Services, or his/her designee, in writing, of any changes in appointee’s staffing or practice that may require cancellation or other changes in appointee’s or appointee’s staff’s login authority and credentials.

5. Failure of appointee to appropriately use shall be sufficient grounds for denial of payment and may result in removal from consideration for future appointments.

B. A flat fee contract system is available to the Judicial Districts to use in appointing and compensating attorneys for certain appointment types. The Department contracts with individual attorneys for this purpose on a state fiscal-year basis (July 1 through June 30) at rates established by the Department. Claims for payment by attorneys for appointments made under flat fee contracts shall be submitted by appointees in compliance with the procedures specified in the contract and set forth by the State Court Administrator’s Office. Claims for payment not covered by flat fee contracts with the Department shall be submitted in accordance with the procedures described in this Section IV and Attachment E. Judicial districts shall make every effort to appoint flat fee contractors on the appointment list if that compensation method is selected by the district. For each appointment type in which flat fee or hourly contracts with private counsel may be established, either a flat fee compensation method or an hourly compensation method should be adopted by the district for the given fiscal year, not both.

C. The following maximum hourly rates are established for any hourly invoicing. (No payment shall be authorized for hourly rates that exceed the "maximum hourly rates.")

MAXIMUM HOURLY RATES
(IN AND OUT OF COURT)
Court-appointed Counsel and Guardian ad litem (for adult)   $65 per hour
Non-Attorney Child and Family Investigator   $25 per hour
Paralegal, Legal Assistant, or Law Clerk Time   $25 per hour 
Court-authorized Investigator    $33 per hour
Court Visitor    $25 per hour

D. Maximum total fees that may be paid by the Department for court-appointed counsel, guardians ad litem, non-attorney child and family investigators, or court visitors are as follows:

MAXIMUM TOTAL FEE APPOINTMENT
Title 19—Dependency and Neglect Matters    
     Respondent Parent Counsel   $2,870
     Non-Attorney Child and Family Investigator    $1,250
Title 19—Other Matters (i.e. delinquency GAL, support, adoption, paternity, etc.)    
     Non-Attorney Child and Family Investigator   $ 625
Titles 14 and 15    
     Counsel (probate only)   $2,870
     Guardian ad litem (for adult)   $2,870
     Non-Attorney Child and Family Investigator   $1,250
     Court Visitor   $ 500 
Titles 22 and 27    
     Counsel    $ 750 
     Guardian ad litem (for adult)    $ 750
Appeals    
     Counsel and Guardian ad litem (for adult)   $2,870

E. Under no circumstances shall the total fees exceed the maximums outlined without a detailed written motion and detailed written order showing the specific special circumstances that justify fees in excess of the maximum (see guidelines in Attachment D, paragraph B). If a court-appointed attorney chooses to use the support of a paralegal, legal assistant, investigator, or law clerk, the combined fees, inclusive of expenses, of the attorney or non-attorney appointee and other support staff shall not exceed the total maximum outlined.

F. To maintain effective representation by court-appointed counsel and to provide basic fairness to attorneys and others so appointed, the State Court Administrator is directed by the Chief Justice to periodically review and make recommendations concerning the fee schedule established in this CJD and/or Chief justice Order for court-appointed counsel.

G. Appointees shall maintain records of all work performed relating to court appointments and make all such records available to the Judicial Department for inspection, audit, and evaluation in such form and manner as the Department in its discretion may require, subject to any applicable attorney/client privilege.

H. In instances in which fees for activity such as travel time, waiting time, and mileage expenses were incurred simultaneously for more than one court appointment, appointees shall apportion the fees or expenses across cases, as applicable. (For example, traveling to/from court would be billed 50% on the client A appointment and 50% on the client B appointment if the appointee made one trip to cover both clients’ hearings.)

V. REIMBURSEMENT TO THE STATE FOR COURT-APPOINTED COSTS

A. For all appointments requiring a finding of indigence, the court shall review the indigency status of the responsible party(ies) or estate at the time of appointment, during the course of the appointment (at the court’s discretion if questions concerning indigence arise), and, if feasible, at the time of case closure. In the case of a court visitor appointment, the petitioner and/or the respondent may be ordered to pay all or a portion of the visitor’s fees and expenses if they are not determined to be indigent. If the court determines, at any time before or after appointment of counsel, guardian ad litem, non-attorney child and family investigator or court visitor, that the responsible party(ies) or estate has the ability to pay all or part of the costs for representation or other costs, the court shall enter a written order that the person(s) or estate reimburse all or part of said costs. Such order shall constitute a final judgment including costs of collection and may be collected by the state in any manner authorized by law.

B. Collection of fees and costs related to court-appointed representation and other costs may be referred to the Collections Investigator or a private collector with whom the Judicial Department has contracted.

C. Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel contract rate, or at the hourly cost of providing legal representation for the number of hours reported by counsel to the court. Other costs incurred may also be assessed including, for example, costs for transcripts, witness fees and expenses, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as sign language interpreter fees, may not be assessed.

VI. TRAINING OF GUARDIANS AD LITEM AND COURT VISITORS APPOINTED ON BEHALF OF WARDS OR IMPAIRED ADULTS

A. Attorneys appointed as a guardian ad litem shall possess the knowledge, expertise, and training necessary to perform the court appointment, and shall be subject to all of the rules and standards of the legal profession.

B. In addition, the guardian ad litem shall obtain 10 hours of continuing legal education, or other courses relevant to an appointment that enhance the attorney’s knowledge of the issues in representation, per legal education reporting period. The court shall require that proof of such education, expertise, or experience is on file with the court at the time of appointment.

C. In those cases in which a non-attorney is appointed as a court visitor, the non-attorney shall also demonstrate the knowledge, expertise, and training necessary to fulfill the terms of the appointment. The court may determine whether the person’s knowledge, expertise, and training are adequate for an appointment, and may require the person to demonstrate his or her qualifications.

VII. DUTIES OF GUARDIANS AD LITEM AND COURT VISITORS APPOINTED ON BEHALF OF WARDS OR IMPAIRED ADULTS

A. The person appointed shall diligently take steps that he or she deems necessary to protect the interest of the person for whom he or she was appointed, under the terms and conditions of the order of appointment, including any specific duties set forth in that or any subsequent order. If the appointee finds it necessary and in the best interests of the ward or impaired adult, the appointee may request that the court expand the terms of the appointment and scope of the duties.

B. Persons appointed shall perform all duties as directed by the court, which may include some or all of the duties described below:

1. Attend all court hearings and provide accurate and current information directly to the court. (Although another qualified attorney may substitute for some hearings, this should be the exception.)

2. At the court’s direction and in compliance with applicable statutes, file written or oral report(s) with the court and all other parties.

3. Conduct an independent investigation in a timely manner, which shall include, at a minimum:

(a) Personally meeting with and observing the client, as well as proposed custodians, when appropriate;

(b) Reviewing court files and relevant records, reports, and documents;

In cases in which the ward or impaired person is living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person are waived unless extraordinary circumstances warrant the expenditure of state funds required for such visits. However, the appointee shall endeavor to meet the person if and when that person is within 100 miles of the jurisdiction of the court.

VIII. DUTIES OF JUDGES AND MAGISTRATES

A. For any type of court appointment under this Chief Justice Directive, 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.

B. Judges and magistrates shall ensure that guardians ad litem and court visitors involved with cases under their jurisdiction are representing the best interests of adult wards or impaired adults and performing the duties specified in this order. In providing this oversight, judges and magistrates shall:

1 Routinely monitor compliance with this directive;

2. Encourage local bar associations to develop and implement mentor programs which will enable prospective guardians ad litem and court visitors to learn these areas of the law;

3. Meet with guardians ad litem and court visitors at the first appointment to provide guidance and clarify the expectations of the court;

4. Hold periodic meetings with all practicing guardians ad litem and court visitors as the court deems necessary to ensure adequate representation of wards or impaired adults.

See Chief Justice Directive 04-08 for the court’s authority, role and responsibility related to child and family investigators.

IX. COMPLAINTS

A. Colorado’s "Practice Guidelines for Respondent Parents’ Counsel in Dependency and Neglect Cases" (Attachment F to this directive) may provide helpful guidance in the Court’s investigation of the complaint regarding court-appointed Respondent Parents’ Counsel. All written complaints and documentation of verbal complaints regarding the performance of any state paid counsel, guardian ad litem, or court visitors appointed pursuant to this directive shall be submitted to the District Administrator. The District Administrator shall forward the complaint to the presiding judge or, if appropriate, the chief judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the District Administrator will forward the complaint to another judge designated for that purpose.

B. If the complaint involves an attorney and the reviewing judge or District Administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or District Administrator and the State Court Administrator of the final outcome of the investigation.

C. Copies of all written complaints and documentation of verbal complaints, and the results of the investigation including any action taken with regard to Judicial paid counsel, guardians ad litem, , and court visitors shall be forwarded by the District Administrator to the State Court Administrator’s Office. The State Court Administrator may conduct an additional investigation and take action he believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to, terminating the contract with the attorney, GAL, non-attorney child and family investigator or court visitor.

See Chief Justice Directive 04-08 for the complaint process regarding the performance of child and family investigators.

X. SANCTIONS

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract and/or removal from the appointment list.

B. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

See Chief Justice Directive 04-08 for sanctions regarding child and family investigators.

XI. GRIEVANCES, MALPRACTICE, AND LIABILTY

A. Attorneys appointed shall notify the State Court Administrator, in writing, within five (5) days of any malpractice suit or grievance brought against them.

B. Professional appointees shall maintain adequate professional liability insurance for all work performed. In addition, professional appointees shall notify the State Court Administrator, in writing, within five (5) days if they cease to be covered by said professional liability insurance and shall not accept court appointments until coverage is reinstated.

See Chief Justice Directive 04-08 for grievance, malpractice, and liability regarding child and family investigators.

Effective April 2005. Amended to be made consistent with amendments to Chief Justice Directive 04-08 and made effective November 2011 in Denver, Colorado.

Done at Denver, Colorado this November 30, 2011.

Michael L. Bender, Chief Justice


Colorado Supreme Court
Colorado Judicial Ethics Advisory Board

Colorado Judicial Ethics Advisory Board (CJEAB)
Advisory Opinion 2013-04
Finalized and Effective August 19, 2013

ISSUE PRESENTED:

The requesting judge has been asked to contribute a handcrafted mask to be displayed at a shopping mall and sold in an online auction for The Mask Project, an annual fundraiser for The Denver Hospice. Artists, celebrities, sports figures, and community leaders contribute masks to The Mask Project, and the gallery exhibit and online auction identify who contributed each mask. The judge indicated that her mask would identify her as a judge, but that she would not directly solicit bids or contributions. She requested an opinion addressing whether she may contribute a mask to The Mask Project or whether doing so would violate Rule 3.7 of the Colorado Code of Judicial Conduct (Code).

CONCLUSIONS:

Contributing a mask to be sold at a fundraising event for The Denver Hospice is the equivalent of soliciting a contribution or fundraising for the organization, and is therefore prohibited by Rules 3.7(A)(2) and (4).

APPLICABLE PROVISIONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Rule 1.3 provides that a judge "shall 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."

Rule 3.1(C) and (D) provide that when engaging in extrajudicial activities, a judge shall not "participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality," or "engage in conduct that would appear to a reasonable person to be coercive."

Rule 3.7(A)(2) provides that a judge may solicit contributions on behalf of "educational, religious, charitable, fraternal, or civic organizations not conducted for profit . . ., but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority."

Rule 3.7(A)(4) provides that judges may appear or speak at, receive an award or other recognition at, be featured on the program of, and permit his or her title to be used in connection with an event of a non-profit charitable organization, "but if the event serves a fundraising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice."

DISCUSSION:

The issue raised by the judge’s request is the extent to which a judge may indirectly solicit contributions from the public on behalf of a non-profit organization that is not law-related. We conclude that the clear language of Rules 3.7(A)(2) and (4) prohibits both active and passive participation in fundraising on behalf of such organizations.

Rule 3.7(A)(2) prohibits judges from soliciting contributions for a non-profit organization from individuals other than family members and judges over whom the judge has no supervisory or appellate authority. Based on this clear and specific fundraising restriction, the Board has consistently advised judges against direct personal involvement in fundraising for charitable and civic organizations. See CJEAB Adv. Op. 2012-01 (collecting opinions interpreting the solicitation prohibition in the pre-2010 Code and concluding under the current Code that a judge may not sign grant applications on behalf of a non-profit organization, even if the judge’s title is not used on the application). Indeed, in CJEAB Adv. Op. 2012-01, we concluded that "the Code’s prohibition against a judge engaging in fundraising and soliciting contributions is so clear that the Board must hew to a bright-line rule" prohibiting any solicitation activities other than those specifically permitted by the Rule.

The solicitation prohibition is rooted in concerns about the misuse of the prestige of judicial office and the potentially coercive effect of a judge’s involvement in fundraising. See id.; C.J.C. Rule 3.1, cmt. 4, and Rule 3.7, cmt. 3; see also C.J.C. Rules 3.1(C) and (D) (prohibiting extrajudicial activities that may be perceived as coercive or as compromising a judge’s independence, integrity, and impartiality). Because those concerns are mitigated when the organization involved is law-related, the Code permits judges to participate in fundraising 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, with respect to law-related organizations, the Code distinguishes between active and passive fundraising efforts, strictly prohibiting the former, but permitting some forms of the latter. Compare C.J.C. Rule 3.7(A)(2) (prohibiting solicitation other than from family members and judges over whom the judge has no supervisory or appellate authority), with C.J.C. Rule 3.7(A)(4) (permitting judge to allow organization to use judge’s title in fundraising event but only if the organization "concerns the law, the legal system, or the administration of justice"); see CJEAB Adv. Op. 2-012-03 (a judge involved with a teen offender diversion program run by a law-related non-profit organization may be interviewed for a video concerning the program to be used in both informational and fund-raising situations, provided the judge does not directly solicit funds on behalf of the organization). But Rule 3.7(A)(4) forbids even indirect involvement in fundraising efforts on behalf of non-law-related organizations. Thus, we conclude that the prohibition against soliciting contributions on behalf of non-profit organizations prohibits both active and passive solicitation on behalf of organizations that are not law related.1

In so concluding, we recognize that the line between activities that constitute solicitation and activities that do not may not always be clear. See e.g., C.J.C. Rule 3.7, cmt. 3 ("Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office."); C.J.C. Rule 3.7, cmt. 4 ("Identification of a judge’s position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge’s title or judicial office if comparable designations are used for other persons."). With regard to the current request, however, there is no such uncertainty.

The Mask Project website emphasizes that the masks displayed in the gallery and sold at the auction are created by local celebrities and community leaders, and the apparent success of the fundraiser is due, at least in part, to the influence and prestige of the individuals who contribute the masks. By submitting a mask that identifies her by name and title, the judge would permit The Denver Hospice to use the prestige of her judicial office to encourage members of the public to bid on her mask and thereby contribute to that organization. Accordingly, although the judge would not actively solicit bids on her mask or otherwise directly solicit donations to The Denver Hospice, her contribution of a mask to be sold in the auction would constitute passive solicitation on behalf of the organization, and is therefore prohibited under the Code. See Ariz. Jud. Ethics Adv. Comm. Op. 94-4 (1994) (agreeing to have lunch with successful bidder at charity auction improperly used judicial prestige to advance private interest); Conn. Comm. Jud. Ethics Informal Op. 2012-30 (judge may contribute item for sale at charity auction provided his identity as a donor will not be publicized and that his judicial title will not otherwise be used by the organization for promotional purposes); Fla. Jud. Ethics Adv. Comm. Op. 03-16 (2003) (judge’s artwork or crafts may not be sold or auctioned at bar association fund-raising event); N.Y. Jud. Ethics Op. 10-132 (2010) (a judge may donate a photograph he created to a non-profit organization for use as a prize in the organization’s fundraising auction, but should not permit the organization to identify the judge as the donor or photographer); Wash. Ethics Adv. Comm. Op. 93-10 (1993) (a judge may not participate in solicitation for fundraising, either directly or indirectly, and her name "should not be associated in any way with a charity auction and an item donated by a judicial officer should not be attributed to the judicial officer").

Finalized and Effective as Modified August 19, 2013.

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1. The Code does not define "soliciting" for purposes of Rule 3.7. The term "personally solicit" as used in Rule 4.1, which governs political and campaign activities of a judge, is defined in the Code’s Terminology section as "a direct request made by a judge or judicial candidate for financial support or in kind services, whether made by letter, telephone, or any other means of communication." That definition, however, does not refer to Rule 3.7.

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