Colorado

Civil Procedure

Rule 6.5 – Confidentiality and Privilege

(a) Confidentiality. The proceedings of the Commission and special masters, including all papers, investigative notes and reports, pleadings, and other written or electronic records, shall be confidential unless and until the Commission files a recommendation with the Supreme Court under Rule 37. The recommendation and the record of the proceedings shall thereupon become public, subject to the limitations provided in Rule 37. The Supreme Court may enter a protective order requiring that certain portions of the record remain confidential upon a showing of good cause by the Commission, special counsel, special masters, or the Judge.

(b) Privilege. Papers or pleadings filed with the Commission, the work product of investigations, testimony given in proceedings, minutes and decisions of the Commission, records of special counsel, hearings conducted by the special masters, and the report of the special masters are privileged and, therefore, cannot be the subject of any legal action against a participant, including a claim for defamation.

(c) Disability Proceedings. In disability proceedings, all orders transferring a Judge to or from disability inactive status shall be matters of public record; otherwise, disability proceedings shall remain confidential and shall not be made public, except by order of the Supreme Court.

(d) Disclosures. Subject to certification, when required by subsection (e)(2) of this Rule, confidentiality does not apply to (i) the disclosure of the records and proceedings reasonably necessary for the Commission or the executive director to fulfill the Commission’s Constitutional mandate under Rule 1(b) or (ii) disclosures in the interest of justice or public safety, including the following:

(1) Disclosure of the allegations in a complaint and related materials reasonably necessary to conduct the investigation of the complaint;

(2) When the Commission has determined that there is a demonstrated need to notify another person in order to protect that person; or to notify an appropriate government agency, including law enforcement or Attorney Regulation, in order to protect the public or the judiciary or to further the administration of justice;

(3) In response to an inquiry by the Supreme Court or SCAO concerning the qualifications of a Judge for appointment or reappointment to other judicial responsibilities (including the senior judge program), by an agency or official authorized to evaluate the qualifications of a Judge who has applied for or has been nominated for another judicial position, or by the Governor with respect to the qualifications of a Judge recommended by a nominating commission for appointment to another judicial position, the Commission shall disclose disciplinary dispositions under Rule 35 (other than complaints resulting in dismissals) and sanctions under Rule 36, together with the status of any pending complaints directed at the Judge which the Commission, as of the date of such request, is investigating under Rule 14;

(4) In response to an inquiry by the Office of Judicial Performance Evaluation (“Judicial Performance”) if the Commission determines, in its discretion, that disclosure to Judicial Performance is consistent with its Constitutional mandate under Rule 1(b) and on the condition that Judicial Performance will not publicly disclose such information or its source without independent verification by Judicial Performance;

(5) When a Judge has been convicted of a crime or has become subject to disciplinary measures taken by Attorney Regulation or a similar agency in another jurisdiction;

(6) Upon request of an agency authorized to investigate the qualifications of persons for admission to practice law;

(7) Upon request of any attorney discipline enforcement agency;

(8) Upon request of any law enforcement agency;

(9) Upon a Judge’s written waiver of confidentiality and consent to disclosure; or

(10) When the Commission or the executive director has knowledge of potential grounds for misconduct under state or federal law, a chief justice directive, or other rule applicable to the conduct of an employee of the state judicial branch (other than a judge) and provides such information to the SCAO.

(e) When Certification Required.

(1) The Commission is permitted to disclose nonpublic information pursuant to subsections (d)(1) through (d)(5) of this Rule without prior notice to, or waiver and consent by, the Judge.

(2) The Commission is permitted to provide nonpublic information requested pursuant to subsections (d)(6) through (d)(8) of this Rule without prior notice to, or waiver and consent by, the Judge, only if a senior official of the requesting agency provides a verified certificate to the Commission on the agency’s letterhead in support of its request, which addresses:

(i) Whether there is an ongoing investigation of (A) alleged misconduct by the Judge, (B) an alleged violation of federal or state law, or (C) the Judge’s qualifications to practice law;

(ii) The reasons the information is essential to that investigation;

(iii) Whether the agency has attempted to obtain the Judge’s waiver of confidentiality and consent to disclosure or why a request for waiver and consent would be inappropriate or impractical;

(iv) Why disclosure of the existence of the investigation to the Judge would significantly prejudice the investigation; and

(v) Other factors relevant to the request.

(3) If an agency authorized to request disclosure by subsections (d)(6) through (d)(8) of this Rule has not obtained a waiver and consent from the Judge or provided the certification required in subsection (e)(2), then the Commission may decline the request or may notify the Judge in writing of the request which identifies the requesting agency and describes the information proposed to be released. The notice shall advise the Judge that the Commission will release the information, unless the Judge objects to the disclosure within fourteen days after mailing of the notice. If the Judge objects to the disclosure, then the information shall remain confidential unless, upon motion by the requesting agency or the Commission with notice to the Judge, the Supreme Court enters an order requiring release.

(f)Prior Discipline. In investigating a complaint, determining a disposition under Rule 35, or in recommending a sanction under Rule 36, the Commission and special masters may consider the record of any discipline previously imposed on the Judge by the Commission or the Supreme Court.

(g) Public Knowledge. The Commission or the Judge, by motion filed with the Supreme Court, may assert that allegations of misconduct, the commencement of informal or formal proceedings, and/or the disposition of such proceedings have become generally known to the public and, in the interest of justice, should be publicly disclosed. The Judge or the Commission shall have 14 days to object to or request modifications to the proposed disclosure. The Supreme Court, in its discretion, may deny such motion or order the disclosure as proposed or with such modifications as it deems necessary. Notwithstanding the disclosure of the nature, status, and result of the proceedings, the Commission’s records, including but not limited to investigative reports, correspondence, and pleadings, shall remain confidential unless and until the Commission files a recommendation for sanctions in formal proceedings to the Supreme Court under Rule 37(c) or the Commission and the Judge stipulate to the resolution of formal proceedings under Rule 37(e).

(h) Summaries. In the annual report required by Rule 3(d)(10), the Commission may publish summaries of proceedings which have resulted in disciplinary dispositions or sanctions. A summary may include a brief statement of facts, references to the applicable Canons or Canon Rules, and a description of the disciplinary action taken, but shall not disclose the date or location of the factual basis for the disciplinary measures or the identity of the Judge, the complainant, witnesses, or other parties to the proceedings.

(i) Duty of Officials and Employees. All officials and employees within the Commission, the executive director’s office, special counsel’s office, special masters’ offices, and the Supreme Court shall conduct themselves in a manner that maintains the confidentiality mandated by these Rules.

C.R.C.P. 6.5

Amended and Adopted by the Court, En Banc, April 20, 2017, effective July 1, 2017.

This rule was previously numbered as Rule 6.

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