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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Colorado Legal Ethics

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 1.12
Background References: ABA Model Rule 1.12, Other Jurisdictions
Commentary:

1.12:101      Model Rule Comparison

Colo.RPC 1.12 and MR 1.12 are identical with the following exceptions. First, the Colorado Rule substitutes the words "the disclosure" for "consultation" at the end of subsection (a); this change is not explained but appears minor. Second, again inexplicably and without any conceivable significance, Colo.RPC 1.12(b) uses the word "attorney" instead of "lawyer" in one instance. Third, while MR 1.12(d) permits an arbitrator selected as a partisan of a party in a multimember arbitration panel to subsequently represent that party in any matter, Colo.RPC 1.12(d) limits the subsequent representation to "other unrelated matters."

The Colorado and Model Rule Comments are identical.

1.12:102      Model Code Comparison

Colorado Code of Professional Conduct DR 9-101 was identical to the Model Code. Similarly, Colorado Code EC 5-20 was identical to the Model Code Ethical Consideration EC 5-20.

With respect to adjudicative officers, Canon 9 provided: “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” DR 9-10l was entitled “Avoiding Even the Appearance of Impropriety” and provided in Section (A) that “[A] lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.” Colo.RPC 1.12(a) is broader in scope and states more specifically the persons to whom it applies. See discussion infra. Section (B) of DR 9-101 provided that “[A] lawyer shall not accept private employment in a matter in which he has had substantial responsibility while he was a public employee.” Section (C) provided that “[A] lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official.” There was no equivalent in the Code to subsections (b), (c) or (d) of Colo.RPC 1.2.

With respect to Rule 1.12(d), former EC 5-20 provided that after a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved. It expressly provided that a lawyer may serve as an impartial arbitrator or mediator in matters which involve present or former clients if he first discloses such present or former relationships. There does not appear to be an equivalent provision in the Colorado or Model Rules. However, note should be taken of The Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Bar Association/American Arbitration Association.

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

Primary Colorado References: CO Rule 1.12(a)
Background References: ABA Model Rule 1.12(a), Other Jurisdictions
Commentary: ABA/BNA § 91.4501

Colo.RPC 1.12(a) is explicit: a lawyer is prohibited from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such person, unless all parties to the proceeding consent after disclosure. The only exception to this general prohibition is that an arbitrator selected as a partisan of a party in a multimember arbitration panel may subsequently represent that party in other unrelated matters. Colorado courts have not had occasion in a reported decision to consider issues concerning a former judge or arbitrator representing a client in the same matter.

Under DR 9-101(A), the Code predecessor to Rule 1.12(a), a lawyer was prohibited from accepting private employment in a matter upon the merits of which he had acted in a judicial capacity. Canon 9 stated “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” In cases decided under that Canon, Colorado courts considered client representation by former government employees, other than judges, and gave substantial emphasis to the “appearance of impropriety” standard, regardless of whether there was any actual impropriety. E.g., Osborn v. District Court, 619 P.2d 41 (Colo. 1980). This “appearance of impropriety” standard was not carried into the Model Rules. Cf., Colo.RPC 1.11, Successive Government and Private Employment.

1.12:300   Negotiating for Future Employment

Primary Colorado References: CO Rule 1.12(b)
Background References: ABA Model Rule 1.12(b), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 206, Wolfram § 8.10

Neither the Colorado appellate courts nor the CBA Ethics Committee have considered in published opinions conflicts arising out of negotiations for future employment by an attorney who is serving as judge, law clerk, or arbitrator.

1.12:400   Screening to Prevent Imputed Disqualification

Primary Colorado References: CO Rule 1.12(c)
Background References: ABA Model Rule 1.12(c), Other Jurisdictions
Commentary: ABA/BNA § 91:4501, ALI-LGL §§ 203, 204, Wolfram § 7.6.4

Neither the Colorado appellate courts nor the CBA Ethics Committee have considered in published opinions Colo.RPC 1.12(c), concerning screening to avoid disqualification based on a lawyer’s prior service as a judge, arbitrator or law clerk. As to screening to avoid conflicts generally, see Colo.RPC 1.9(b) and 1.10(a) and sections 1.9:100, et seq. and 1.10:300, infra. CBA Formal Op. 88, Use and Misuse of “Confidentiality Walls” (May 18, 199l, amended April 18, 1992).

CRCP 97, Change of Judge, provides:

A judge shall be disqualified in an action in which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related or connected with any party or his attorney as to render it improper for him to sit on the trial, appeal, or other proceeding therein.

Numerous cases have been decided under this Rule. Colorado Code of Judicial Conduct, Canon 2 provides: “A judge should avoid . . . the appearance of impropriety . . . .” Canon 3 provides:

(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might be reasonably questioned . . . .

While Rule 1.12 applies only to former judges and arbitrators, CRS §12-5-110 prohibits sitting district, county and municipal court judges from advising, counseling or providing services in any proceeding, or from performing any services as a lawyer, or being interested in any profits arising out of any practice in any of the courts, except costs in their own courts. However, perhaps in recognition that Colorado has part-time county court judges, the statute provides an exception that county and municipal court judges may practice in higher courts, if the matter has not been before their court. See also, CBA Formal Op. 45, Representation of Client by Part-Time Judge (revised June 16, 1984, addendum 1996).

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

Primary Colorado References: CO Rule 1.12(d)
Background References: ABA Model Rule 1.12(d), Other Jurisdictions
Commentary: ABA/BNA § 51:1501

Neither the Colorado appellate courts nor the CBA Ethics Committee have considered Rule 1.12(d) in published opinions. The Colorado Supreme Court is considering, but has not yet adopted, a code of ethics for arbitrators.