The Colorado Supreme Court’s Civil Rules Committee overwhelmingly rejected a proposal last week to create an enforceable “civility code” for lawyers and legal paraprofessionals, which would allow judges to quickly impose corrective action without a formal complaint and investigation by attorney regulators.

Although several committee members acknowledged poor behavior in the legal profession, there was widespread concern that the proposed code would have no effect on those who already disregard professional expectations. Moreover, attorneys could use the code as a weapon against each other or judges, leading to even more litigation.

At the same time, Jefferson County District Court Judge Christopher Zenisek was troubled that a rule to check bad actors could be weaponized by those same bad actors.

“There is something of an irony that we’re acknowledging there is a need for something like this, but seemingly declining to incorporate it because of the jerks,” he said.

“I don’t know that it is entirely about letting the jerks rule the roost or control what we’re doing,” countered Denver District Court Judge Stephanie L. Scoville. “I think it’s more about us trying to stay in our lane.”

A similar version of the civility code surfaced years ago, but various bar associations in Colorado objected to it. In 2024, a new group of drafters, with the participation of Justice Richard L. Gabriel, revised the proposal and obtained endorsements from the Colorado Bar Association and Denver Bar Association. From there, they sought the rules committee’s approval.

Retired Court of Appeals Judge John R. Webb, in a memo to the committee, explained that Colorado’s civility rule is modeled on Wyoming’s, which is the only state with binding standards.

“According to our research, the judges in Wyoming find the rule helpful and have not found it to be used as a weapon to escalate litigation,” Webb wrote. “The judges in Wyoming report that it is a tool they can use in the courtroom to remind counsel of their duty to be civil and courteous to all parties and to de-escalate situations as they arise.”

However, Webb indicated the six people who screened the proposal on behalf of the Civil Rules Committee were evenly divided about whether to recommend its adoption.

As proposed, the civility code would require courteousness and cooperation, and prohibit “materially misleading statements about the underlying facts” of a case. Punctuality and adherence to courtroom decorum would also be required. One version of the rule would permit judges to impose monetary sanctions for violations, while another version would only allow consequences aimed at “encouraging current and future compliance.” For example, a judge could order a lawyer to take professionalism classes, refile an offending document or give the lawyer a reprimand.

Gabriel, the Supreme Court’s liaison to the Civil Rules Committee, said during the Jan. 23 meeting that he understood Wyoming judges to appreciate their version of the rule for laying out expectations ahead of time.

“I think that was mainly to have something I can point to and not off-the-cuff it,” he said.

Attorney Damon Davis said that he was concerned about allowing monetary sanctions, but believed an enforceable code had merit.

“There is a degree of incivility you need a counter-incentive for. You have the court saying, ‘Hey, this isn’t how we behave’ that can provide that,” he said. “And it does decrease the contentiousness because no one wants the judge to say that to them. ‘I don’t like how you’re behaving.'”

However, other members of the rules committee pushed back strenuously.

“I don’t think Colorado is Wyoming,” said Court of Appeals Judge Jerry N. Jones, who chairs the committee. He added that he was “really disheartened to learn” that incivility is a bigger problem now in the legal profession than when he began practicing.

“I know this might sound a little blunt: I think it’s naive to think that by passing a rule like this, we will change the behavior of those people. We have the rules of professional conduct. We have always had them. And yet, attorneys from time to time behave the way they do,” he said. “I’m a little concerned we have judges who think, ‘Unless I have a rule, I can’t reprimand them for being disrespectful.’ Really? I think they can and they should, and many of them already do.”

Attorney Jose L. Vasquez added that the rule could be used against lawyers who act assertively on behalf of their clients, but nonetheless within the bounds of professionalism. Sanctionable expectations could have a “chilling effect” on those attorneys, he said.

“I have heard of experiences that, for whatever reason, this judge treats this attorney on the other side differently. It’s unfortunate. I don’t think it’s the majority of judges. But it happens,” Vasquez said. “I’m greatly concerned about the power that it gives the judge in that case.”

District Court Judge Gregory R. Werner of El Paso County said, on the flip side, that lawyers could attempt to get judges to recuse themselves from cases after imposing civility sanctions on one side.

“Whether those motions would have merit or not, I don’t know. But I certainly would anticipate that we would get more of them,” he said, adding that attorneys on the receiving end of civility sanctions would potentially submit negative reviews against judges who are up for retention.

Ultimately, no one on the committee voted to approve the version of the civility code with financial sanctions. Davis was the only vote to approve the version with compliance-oriented sanctions.