Court Business

• Publication year: 2011
• Pages: 127
• Citation: Vol. 40 No. 11 Pg. 127

40 Colo.Law. 127 Colorado Bar Journal 2011.

2011, November, Pg. 127. Court Business

The Colorado Lawyer
November 2011
Vol. 40, No. 11 [Page 127]

From the Courts

Court Business

Visit the related court's website for complete text of rule changes or proposed rule changes issued by the court. Each court's website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears as submitted by the court and has not been edited by the staff of The Colorado Lawyer.

Colorado Supreme Court

Judicial Ethics Advisory Board Opinion

Colorado Supreme Court

Colorado Judicial Ethics Advisory Board (C.J.E.A.B.)

C.J.E.A.B. Advisory Opinion 2011-01

Finalized and Effective September 27, 2011

ISSUE PRESENTED:

The requesting judge has reported a lawyer's conduct to both Attorney Regulation Counsel, per his obligation under Rule 2.15(B) of the Colorado Code of Judicial Conduct, and a law enforcement agency. The judge notes that he has no personal bias or prejudice concerning the attorney as a result of this report or otherwise. The attorney is senior counsel in a small law firm of fewer than five attorneys. At the time of the judge's report, the attorney's law firm had eleven cases assigned to the judge's division. In the past, the lawyer and one or more of the other attorneys in the firm have each listed their names on court filings, although the lawyer has not necessarily electronically signed every court filing or appeared for pre-trial hearings. Given these facts, the requesting judge poses four questions:

1) Do the conclusions of Opinion 2004-01 (which addresses a judge's recusal during and after he reports a lawyer) remain valid in light of the July 2010 amendments to the Code of Judicial Conduct?

2) Is recusal required in pending cases which have been filed by the attorney's law firm if the attorney's own signature does not appear on any filings?

3) Is recusal required in pending cases filed by the attorney's law firm where the reported attorney's name is printed on a filing, regardless of whether the attorney is personally working on the case?

4) In cases filed by the attorney's law firm after the judge's report, may the judge postpone the recusal decision until it is determined whether the reported attorney will personally handle the case?

CONCLUSIONS:

The amendments to the Code of Judicial Conduct do not affect the conclusions of Opinion 2004-01. The Board determines, however, that Opinion 2004-01 should be withdrawn and a new opinion issued which provides better guidance to judges who file a grievance with Attorney Regulation Counsel. The Board concludes that a judge's report of attorney misconduct, without more, does not require the judge automatically to recuse from the attorney's cases. Rather, the judge must consider first whether the judge has a personal bias or prejudice against the attorney, and, if he does, he should recuse. If he does not, the judge must then consider whether the judge's impartiality might reasonably be questioned if he did not recuse, i.e. whether the facts and circumstances surrounding the report would lead a reasonable person having knowledge of those facts and circumstances to question the judge's impartiality in the case. If the answer to that question is "yes," the judge should recuse.

Given the unique circumstance present in this request, that the requesting judge also reported the attorney to law enforcement, the requesting judge may determine that his impartiality might reasonably be questioned if he did not recuse from the reported attorney's cases. Therefore, the Board answers the requesting judge's remaining questions. As to the second question, even if he decides he must recuse from the attorney's cases, recusal is not mandated in pending cases filed generally by the attorney's law firm but not including the entry of appearance by the attorney. As to the third question, if the judge determines that he must recuse from the reported attorney's cases, recusal is also required in pending cases where the attorney's name is on a pleading. Finally, as to the fourth question, in cases filed following the judge's decision to recuse, the judge should not postpone the recusal decision until it has been determined which lawyers will be working on the case; if the attorney's name is on the pleadings then the judge should recuse. To the extent that the decision to recuse is based solely on the appearance of impartiality, the judge should continue to recuse on cases filed after the judge's decision to recuse until the attorney regulatory complaint and the complaint to law enforcement have been resolved.

APPLICABLE PROVISIONS OF THE

COLORADO CODE OF JUDICIAL CONDUCT

Rule 1.2 states that "[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

Rule 2.11(A)(1) provides that a judge should disqualify himself or herself in any proceeding in which the "judge's...