Colorado Supreme Court: Colorado Judicial Ethics Advisory Board (CJEAB)

C.J.E.A.B. Advisory Opinion 2025-02 (Finalized and Effective July 1, 2025)

July 1, 2025

Background

The requesting judge is the presiding judge of a municipal court. The requesting judge is in the process of hiring a part-time relief judge for her court, and among the applicants is a part-time prosecutor in the office of the district attorney of the same judicial district.

The requesting judge has asked if a prosecutor in a state district attorney’s office may work part-time as a relief judge in a municipal court in the same judicial district.

Issue Presented

Whether a part-time municipal judge can also work as a part-time attorney in the office of the district attorney in the same judicial district.

Summary

Under the Colorado Code of Judicial Conduct (“Code”), a part-time judge in municipal court may simultaneously appear in the district and county courts on criminal matters because she does not practice law in the municipal court or in a “comparable level” court in the same judicial district, and the municipal court does not have appellate jurisdiction over the district and county courts where the part-time judge would be practicing.1

Applicable Provisions of the Code

Section III of the “Application” section of the Code provides, in relevant part, as follows:

[a] judge who serves on a part-time basis . . .

(B) shall not practice law in the court on which the judge serves or in any comparable level court in the same judicial district on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto;

(C) shall not practice law with respect to any controversies which will or appear likely to come before the court on which the judge serves or any court of the same or comparable jurisdiction within the same judicial district on which the judge serves.

As explained in Comment [1], the “[c]anon limits a part-time judge from practicing law in any comparable level court in the same judicial district as the judge serves.”

Rule 1.2 provides that “[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

Analysis

Pursuant to the Code, a part-time judge “shall not practice law in the court on which the judge serves or in any comparable level court in the same judicial district on which the judge serves or in any court subject to the appellate jurisdiction on which the judge serves.” (Emphasis added.) The prospective part-time municipal judge would not practice law in that court for the office of the district attorney. The prohibition does not extend to courts that are not of “comparable level.” Therefore, the part-time judge may serve as a part-time prosecutor in the same judicial district as long as the court in which they practice is not of comparable level.

The provision at issue here, regarding a court at a “comparable level,” was added to the Code in 1989. There is no case law or other legislative history interpreting the precise meaning of “comparable level.” In this case, however, the distinction is clear. A municipal court, which is part of a city’s government, is plainly not of a “comparable level” to a district or county court, both of which are part of the state’s government.

The Board has not considered the issue presented here, but in C.J.E.A.B. Advisory Opinion 2007-06, we addressed a related issue.2 The Board analyzed whether a part-time judge could preside over a criminal docket while making appearances in civil cases within the same judicial district. We determined that part-time judges were barred from practicing law in the same district court on which the judge served. Other jurisdictions have also concluded that judges may not serve on, and appear as attorneys in, the same court. See, e.g., KS Jud. Eth. Adv. Comm. Op. JE-57 (attorney serving as a part-time judge may not practice law before the court on which the attorney serves); SC Bar Eth. Adv. Comm. Ad. Op. 94-02 (part-time municipal judge prohibited from serving as part-time city attorney in same city because part-time judges may not act as lawyers in the court on which they serve).

In Advisory Opinion 2007-06 we reasoned that “allow[ing] a judge to preside over cases while practicing in the same court would erode public confidence in the integrity and impartiality of the judiciary,” because “a part-time judge’s status as a lawyer practicing in the same court may create the perception that the lawyer has a special stature in the court, or that special advantages or preferential treatment may be conferred upon that lawyer by court employees and judicial staff.”

Applying the same reasoning, we reached the opposite conclusion in C.J.E.A.B. Advisory Opinion 2023-01, in which we addressed another related issue. In that Opinion, the Board analyzed whether a part-time county court judge could also act as a part-time prosecutor in an adjoining judicial district. The Board concluded that the Code expressly prohibited the judge from practicing law in the same judicial district in which the judge served. Because “the prohibition does not extend to other judicial districts—only the judicial district on which the judge serves . . . . the part-time judge may serve as a part-time prosecutor in a different judicial district.” We noted that “[t]he concern with preferential treatment given to judges appearing as attorneys in the same judicial district does not exist when a judge serves in one district and appears as an attorney in another.”

We reach the same conclusion here. When a part-time municipal court judge also serves as a part-time prosecutor in the district and county courts in the same district, the concerns regarding preferential treatment do not exist because those are not the same court on which the judge sits, nor are they courts of a comparable level.

Additionally, municipal courts don’t exercise appellate jurisdiction over district or county courts. See § 13-4-102(1), C.R.S. 2024 (providing that the court of appeals has initial jurisdiction over appeals from final judgments and interlocutory appeals from the district courts); § 13-6-310(1), C.R.S. 2024 (specifying that appeals from final judgments and decrees of the county courts shall be taken in the district court of the same judicial district). Thus, the Code’s prohibition does not apply to a part-time municipal court judge who also wishes to practice part-time in the district and county courts of the same judicial district.

Conclusion

The Code does not prevent a part-time municipal judge from practicing law in a different level court in the same judicial district as the one in which the judge serves. Accordingly, the part-time municipal judge may act as a part-time prosecutor in the state district and county courts.

FINALIZED AND EFFECTIVE this 1st day of July, 2025.

1. The Board is only authorized to provide advisory opinions “concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct.” Amended C.J.D. 94-01, sec. I. This opinion discusses only the part-time judge’s obligation to comply with the Code and does not discuss any ethical obligations the judge has as a prosecutor to comply with the Colorado Rules of Professional Conduct. Compare, with CBA Formal Eth. Op. 45 (addendum 1996) (discussing client representation by a part-time judge).

2. Although C.J.E.A.B. Advisory Opinion 2007-06 was decided under a prior version of the Code, the provision at issue is unchanged in pertinent part.