Colorado Supreme Court Colorado Judicial Ethics Advisory Board (cjeab)

• Jurisdiction: Colorado,United States
• Citation: Vol. 51 No. 8 Pg. 60
• Pages: 60
• Publication year: 2022

Colorado Supreme Court Colorado Judicial Ethics Advisory Board (CJEAB) Vol. 51, No. 8 [Page 60] Colorado Lawyer September, 2022

August, 2022.

FROM THE COURTS COURT BUSINESS

C.J.E.A.B. Advisory Opinion 2022-04 (Finalized and effective June 29, 2022)

Background

The requesting judge was recently appointed as a part-time county court judge. The judge's docket mostly consists of criminal cases.' Prior to being appointed, the judge represented a defendant in two proceedings for which the defendant is serving a 64-year habitual criminal sentence. The defendant filed a clemency application several years ago, but the executive branch has yet to act on it. Before the judge was appointed to the bench, the judge offered to help the defendant amend his clemency application (on a pro bono basis) to include the argument that, based on recent controlling case law, the defendant's sentence is disproportionate and unconstitutional because the predicate offenses for imposing the habitual criminal sentence were not grave and serious. Given the judge's familiarity with the defendant's case and the legal argument, the judge could amend the defendant's clemency application quickly and with a minimal amount of work.

The judge has not helped or advised the defendant since being appointed to the bench but would like to know if it is possible to help the defendant present a compelling legal argument without violating the Code of Judicial Conduct ("Code") if the defendant submits his amended clemency application pro se and the judge does not appear at any clemency-related proceedings.

Issues Presented

1. Whether a part-time judge may assist a defendant, who was a former client of the judge, to supplement or amend a clemency application that the defendant will submit pro se.

2. If so, whether the judge should include his or her name, bar number, and identify that the judge helped prepare the clemency application.

Summary

The Code does not preclude the requesting judge from helping the defendant amend his clemency application to include a new legal argument. If the judge chooses to help amend the clemency application, the judge should not identify as a judge.

Applicable Provisions of the Code

The Code applies differently to part-time judges; unlike a full-time judge, apart-time judge is not required to comply with certain portions of the Code, including Rule 3.10, which provides, in relevant part, that" [a] judge shall not practice law except...