Could a retiring Colorado judge schedule private mediations while still on the bench?

Plain-English summary

A full-time judge expecting retirement and possible senior-judge service asked when he could schedule private mediation matters. The Board concluded he should not set or hear private mediations until after retirement from full-time judicial service.

The Board treated pre-retirement contracts with attorneys who currently appeared before the judge as financial dealings that could make other litigants perceive preferential treatment. The concern applied even if no advance payment was made and the mediation itself would occur after retirement.

Former Canon 5E independently barred a sitting judge from acting as a private mediator except as provided for senior judges. The Board therefore did not assume the judge planned to conduct mediations while still serving.

Currency note

This 2006 opinion applied Colorado's former judicial Canons before the July 2010 Code revision. Verify the later Code and senior-judge rules before using its historical mediation analysis.

In practice

The Board advised the sitting judge to refrain from setting or hearing private mediations until after retirement.

Common questions

Q: Could the judge schedule mediation for a date after retirement?

A: No. The Board said even setting a future paid mediation before retirement raised perceived favoritism concerns.

Q: Would the absence of advance payment solve the issue?

A: No. The Board found the expected compensated relationship itself could reflect on impartiality.

Q: Did the Board approve conducting private mediations while sitting?

A: No. It read Canon 5E as barring that activity outside its senior-judge exception.

Background and rules framework

The Board applied former Colorado Canon 2 on impropriety, Canon 5C(1) on financial dealings with courtroom participants, Canon 5E on mediation by judges, and Canon 8's senior-judge exception.

Citations and references

• Colorado Code of Judicial Conduct Canons 2, 5C(1), 5E and 8.

See also

• judicial-co Ethics Op. 2007-06

Source

• Landing page: Colorado Judicial Ethics Advisory Board
• Original PDF: Advisory Opinion 2006-09

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative. Colorado Supreme Court Judicial Ethics Advisory Board (C.J.E.A.B.) C.J.E.A.B. ADVISORY OPINION 2006-09 (Finalized and effective December 13, 2006)

ISSUE PRESENTED

The requesting judge is a full-time judge who will be retiring soon. When he retires, he will be asking to be included in the Senior Judge Program. He also will be available for private mediation services. He asks when he may start to schedule private mediation cases. He further asks whether, assuming he may set private mediations before he retires, he should or must inform counsel in a case that currently is before him that he has set a private mediation with opposing counsel on another case after his retirement.

CONCLUSIONS

The judge should refrain from setting or hearing private mediations until after he retires as a judge.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL
CONDUCT

Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all the judge’s activities.

Canon 5C(1) restricts a judge from engaging in financial and business dealings that tend to reflect adversely on the judge’s impartiality, interfere with the proper performance of the judge’s duties, exploit the judge’s judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

Canon 5E specifies that a judge should not act as an arbitrator or mediator, except as provided for in Canon 8, which allows senior judges to serve as mediators and arbitrators.

DISCUSSION

Under Canon 5, a sitting judge may not engage in business and financial dealings that might adversely reflect upon his impartiality or involve the judge in frequent transactions with the attorneys or others who appear before him. Under Canon 2, judges are directed to avoid an appearance of impropriety and partiality. Because of the clear mandate of Canon 5E, the Board does not interpret the judge’s request as contemplating that any mediations would occur before the judge retires.

Nevertheless, in the Board’s view, the judge’s requested course of activity would conflict with both Canons. Here, the requesting judge wishes to schedule private mediations, and

he anticipates that at least some such mediations would involve attorneys who currently appear before him. If the judge were to begin setting such mediations before he steps down, attorneys and parties appearing before him might perceive that other attorneys and parties who had scheduled private mediations with the judge upon his retirement could receive preferential treatment. Even if the judge were not paid in advance for his services, as sometimes occurs in private mediations, for the judge to contract with attorneys who appear in his courtroom to provide private mediation services for which he would later be compensated would involve financial and business dealings that could reflect adversely on the judge’s impartiality. Accordingly, we conclude that the judge should not begin setting private mediations until after he has retired as a full-time judge.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 13th day of December, 2006.