“In the performance of their official duties or in the presence of the judge”

In 2020, the Colorado Judicial Ethics Advisory Board issued an advisory opinion stating that judges should instruct staff under their direction and control to conform to the same constraints as the judge and, therefore, to refrain from making political or divisive statements, to refrain from participating in marches or rallies such as those in support of the Black Lives Matter or Blue Lives Matter movements, and to be very cautious in their use of social media.  Colorado Advisory Opinion 2020-2.  That opinion had been based on the requirement in Rule 2.12(A) of the Colorado code that judges “shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.”  Comment 1 to that rule explains that a judge is responsible “for the conduct of others, such as staff, when those persons are acting at the judge’s direction or control.”  (The Colorado code provisions were the identical to those in the 2007 American Bar Association Model Code of Judicial Conduct.)

The committee noted that the language of the rule “appears at odds” with that comment because the rule seems to apply to employee activities both “during and outside of working hours if those employees are subject to the judge’s direction and control,” while the comment seems limited to the conduct of staff only when they “are acting at the judge’s direction or control, which could be interpreted as during working hours only, or pursuant to a judge’s direct command.”  Stating that “when the language of the rule and its comment conflict, the language of the rule governs,” the committee concluded that the “language of Rule 2.12 seems clear — ‘consistent with the judge’s obligations’ means a judge must require staff under his or her direction and control to act as a judge would under the Code” at all times.

In 2021, the Colorado Supreme Court revised Rule 2.12 to provide:  “A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code in the performance of their official duties or in the presence of the judge.”  The comment was not amended.

Based on that amendment, the advisory committee has withdrawn Colorado Advisory Opinion 2020-2 and issued a new opinion.  Colorado Advisory Opinion 2021-3.  In the new opinion, the committee notes that the amended rule narrows and limits the judge’s obligations and is now consistent with the comment.  Thus, the new opinion advises that “judges are not responsible under the Code for comments made by law clerks and externs on political issues or for their participation in political demonstrations, rallies, or marches, as long as the law clerks and externs do not engage in such conduct in the performance of official staff duties or in the presence of the judge.”

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