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Legislation of Interest and Proposed Rules Changes

Rule 2.6 and Comment of proposed Code of Judicial Conduct

Please review the relevant portions of Rule 2.6, Comment 2.  If you have any comments on the position the Government Counsel Section should take, please send your comments to Section Chair Robert Mack at or to CBA Staff Liaison Melissa Nicoletti at BEFORE WEDNESDAY, SEPTEMBER 30, 2009.  Mr. Mack will then evaluate any comments and provide the position of the Section to the CBA staff.

Rule 2.6:  Ensuring the Right to Be Heard

Memorandum to Appellate Practice Subcommittee from Judge Dan Taubman dated August 18, 2009 Supporting the proposed changes to Rule 2.6

Memorandum to Appellate Practice Subcommittee from Judge J.R. Webb dated June 29, 2009, Opposing the proposed changes to Rule 2.6

To:            CBA Sections and Committees

From:        CBA Staff

We write to all sections and committees to vet an issue that unfortunately has a very short fuse. We are asking sections and committees to respond to this email no later than Friday, October 2 at the close of business.

The Litigation Section of the CBA has taken a position on Comment 2 of Rule 2.6 of the proposed Colorado Code of Judicial Conduct. The next step in the CBA process is to take that position to the CBA Executive Council but before that council takes action, we need to hear from you.  Attached you will find the relevant portions of Rule 2.6, Comment 2. This particular rule is one of many found in the 151 page rewrite of the Code of Judicial Conduct; the entire report is available upon request. Also attached are materials that the Litigation Section reviewed as part of their decision making process (the three documents are: 1) Proposed Rule 2.6 “Ensuring the right to be heard,” 2) support for the rule as drafted, and 3) opposition to the rule as drafted.


To help narrow your focus, much of the controversy is around the introductory language found in Comment 2, “Notwithstanding Colorado caselaw to the contrary.” Two Court of Appeals judges, Dan Taubman and John Webb “argued” their respective positions to the Litigation Section. Judge Taubman is in favor of the Rule and Comment 2 as presented while Judge Webb is opposed to the introductory clause of the proposed comment, “Notwithstanding Colorado caselaw to the contrary . . .” If anyone has any questions they should email Judge Taubman and Judge Web so that both judges have an opportunity to respond: Judge Taubman can be reached at and Judge Webb can be reached at

Here is the statement/position from the Litigation Section regarding Comment 2 to Code of Judicial Conduct Rule 2.6. 

“The Litigation Council, representing the Litigation Section, has been asked to review the proposed Comment 2 to Code of Judicial Conduct Rule 2.6.  The Council recommends strongly against adoption of the proposed comment as written and recommends strongly against using a rule or a comment in the Code of Judicial Conduct to overrule or modify Colorado common law.  The Council believes any action by a Colorado judge must be subject to appeal according to applicable rules of procedure.  The Council strongly opposes the language in the proposed comment which states, “Colorado law notwithstanding. . .”  The Council appreciates the need to protect the rights of pro se litigants to be heard, and understands the need for further guidelines for trial judges to achieve this goal.  The Council strongly believes any such guidance to be provided to trial court judges should be provided in the rules of procedure applicable to each practice and not in the Code of Judicial Conduct.  Moved and seconded.  Approved unanimously.”

As stated above, we need your responses no later than Friday, October 2 at the close of business. Staff anticipates an Executive Council meeting in early October to determine a CBA position on this issue.

Please contact Greg Martin 303.824.5317 or Michael Valdez 303.824.5309 if you have any questions.