A trial judge may testify in misconduct proceedings involving an elected district attorney and their office without automatically needing to recuse from any criminal cases, the Colorado Supreme Court’s ethics panel concluded earlier this month.

The Judicial Ethics Advisory Board, which consists of attorneys, judges and one non-lawyer, confirmed it is a judge’s duty to cooperate with investigators. Therefore, a judge may speak about the lawyers being investigated, even as the judge handles criminal matters from the same district attorney’s office.

“Participation with disciplinary proceedings instills public confidence in the judiciary and, more broadly, in the legal system,” read the Sept. 9 ethics opinion. “Furthermore, cooperating with disciplinary proceedings can be considered part of a judge’s official duties, which are also exempt from the prohibition on public comment concerning pending and impending matters.”

The opinion clarified that if the judge believes they can remain impartial, and if a reasonable observer could not question their impartiality, the judge does not have to recuse from the criminal cases. However, the judge should disclose their participation as a witness in the misconduct investigation.

The ethics advisory board issued its analysis following a question from an unnamed trial judge. The Office of Attorney Regulation Counsel (OARC), which oversees investigations into lawyers’ professional conduct, sought the judge’s testimony as a witness to an elected district attorney’s alleged misconduct and the misconduct of some employees.

The opinion indicated that OARC is investigating four cases the judge has handled, including one “pending review in the Colorado Supreme Court for sanctions the judge imposed against the district attorney’s staff.”

The limited details suggest the misconduct inquiry pertains to District Attorney Linda Stanley of the 11th Judicial District in central Colorado.

Media outlets previously reported that OARC initiated an investigation into Stanley related to, among other things, her office’s handling of evidence. Earlier this year, the Supreme Court elected to review whether District Court Judge Kaitlin B. Turner properly imposed sanctions on Stanley’s office for failing to disclose evidence in a murder case. Other trial judges have also found Stanley’s staff neglected to follow discovery rules.

Jessica E. Yates, who leads OARC, could not confirm whether any of the other 21 elected district attorneys are currently under investigation. However, she told Colorado Politics there were no misconduct allegations “generally known to the public” against any other district attorney, as there are against Stanley.

The unnamed judge asked whether they could participate in OARC’s inquiry and, if so, whether they would be required to recuse from all cases involving the attorneys under investigation. Further, because all criminal cases are filed in the name of the elected district attorney, the judge wondered whether recusal from all such cases would be mandatory going forward.

The ethics panel noted the rules of judicial conduct prohibit judges from making public statements that could affect the outcome or the fairness of a pending case. The rules, however, do not forbid all commentary.

“First, although we do not know exactly what information OARC seeks from the requesting judge, it may relate to the judge’s personal knowledge overseeing the cases as an administrator and not the substance of the criminal cases pending before the judge,” the panel wrote. “Any information the judge provides as a witness in the disciplinary proceeding is not expected to affect the outcome or impair the fairness of the pending criminal proceedings.”

A different rule requires judges to cooperate and be “candid and honest” with disciplinary agencies. Although the advisory board had never addressed that rule before, it determined the judge’s participation in the OARC investigation was mandatory.

As for whether the judge must recuse themselves from current or future cases, the opinion explained the judge should answer two questions for themselves.

“The requesting judge must first consult his or own conscience to determine whether the judge is biased or prejudiced against the attorney or any of the staff attorneys under investigation,” the panel wrote. Then, the judge “must decide whether a disinterested observer, knowing all the facts, would reasonably question the judge’s impartiality.”

Even if the judge believes they can continue handling cases fairly, the advisory board cautioned, the judge should still disclose their participation in the OARC proceedings. The guidance applies even if voters elect a new district attorney or if prosecutors not under investigation appear before the judge.