Alternate Defense Counsel

C.R.S. tit. 21, art. 2

in effect

C.R.S. § 21-2-101 Alternate defense counsel - policy - commission

21-2-101. Alternate defense counsel - policy - commission. (1) The office of alternate defense counsel is hereby created and established as an agency of the judicial department of state government. The general assembly hereby declares that the alternate defense counsel shall provide legal representation in circumstances in which the state public defender has a conflict of interest in providing legal representation. The general assembly hereby declares that the alternate defense counsel at all times shall serve his or her clients independently of any political considerations or private interests, provide to indigent persons accused of crimes legal services that are commensurate with those available to nonindigents, and conduct the office in accordance with the Colorado rules of professional conduct and with the American bar association standards relating to the administration of criminal justice, the defense function. (2) The Colorado supreme court shall appoint a nine-member alternate defense counsel commission, referred to in this article as the "commission". No more than five members of the commission shall be from the same political party. Six members of the commission shall be attorneys admitted to practice law in this state who have experience in the practice of criminal defense, and three members of the commission shall be citizens of Colorado not admitted to practice law in this state. There shall be one member from each of the congressional districts in the state. Members of the commission shall serve for terms of four years; except that, of the members first appointed, five shall serve for terms of two years. Vacancies on the commission shall be filled by the supreme court for the remainder of any unexpired term. In making appointments to the commission, the supreme court shall consider place of residence, sex, race, and ethnic background. No member of the commission shall be at any time a judge, prosecutor, public defender, or employee of a law enforcement agency. The supreme court shall establish procedures for the operation of the commission. (3) The commission shall appoint, and may discharge for cause, a person to serve as alternate defense counsel who shall serve a term of five years and until a successor is appointed and qualified. Such person may be reappointed for one or more subsequent five-year terms. A vacancy in the office shall be filled by the commission for the remainder of the unexpired term. (3.5) No later than September 30, 2007, the commission shall adopt written procedures governing the office of the alternate defense counsel, including but not limited to the hiring, evaluation, and termination of the alternate defense counsel; the resolution of contractual disputes involving the office of the alternate defense counsel; and the processing and resolution of complaints involving the office of the alternate defense counsel. (4) The commission shall serve as an advisory board to the alternate defense counsel and shall meet at least annually. The commission shall advise the alternate defense counsel concerning the development and maintenance of competent and cost-effective representation. (5) Members of the commission shall serve without compensation but shall be reimbursed for actual and reasonable expenses incurred in the performance of their duties. (6) Any expenses incurred for the commission shall be paid from the general operating budget of the office of the alternate defense counsel.

C.R.S. § 21-2-102 Alternate defense counsel - qualifications - employees

21-2-102. Alternate defense counsel - qualifications - employees. (1) The alternate defense counsel shall have been licensed to practice law for at least five years prior to appointment, and either be licensed to practice law in Colorado at the time of appointment or be able to become licensed to practice law in Colorado within six months after appointment, and the alternate defense counsel shall devote the alternate defense counsel's full time to the performance of the alternate defense counsel's duties and shall not engage in the private practice of law. (2) The compensation of the alternate defense counsel shall be fixed by the general assembly and may not be reduced during the term of his or her appointment. (3) The alternate defense counsel shall employ and fix the compensation of any other employees necessary to discharge the functions of the office of alternate defense counsel.

C.R.S. § 21-2-103 Representation of persons who are indigent - definition

21-2-103. Representation of persons who are indigent - definition. (1) The office of alternate defense counsel shall provide legal representation in the following circumstances: (a) In cases involving conflicts of interest for the state public defender as determined pursuant to subsection (1.5) of this section; and (b) (Deleted by amendment, L. 2000, p. 1479, § 2, effective August 2, 2000.) (c) To indigent persons who are charged with municipal code violations for which there is a possible sentence of incarceration, as the alternate defense counsel in his or her discretion may determine, and as available resources allow. The office of alternate defense counsel shall provide such representation only pursuant to a contract between a requesting municipality and the office of alternate defense counsel. Any such contract must require the municipality to be financially responsible for all services rendered and expenses incurred by contractors to defend persons charged with such municipal code violations in the contracting municipality. The office of alternate defense counsel is not required to contract with any municipality unless the office of alternate defense counsel determines that the municipality has sufficient funding and personnel to administer and oversee the contracts for the provision of indigent defense services in that municipality. (1.5) (a) To request withdrawal from a case due to a conflict of interest, the state public defender shall submit to the court having jurisdiction over the case a motion specifically describing the nature of the conflict of interest. If the state public defender determines that ethical obligations prevent a specific description of the nature of the conflict of interest, the state public defender shall cite any applicable legal authority for the determination, and the portion of the motion that specifically describes the nature of the conflict shall be sealed. In the event an issue arises later concerning whether an actual conflict existed, the sealed portion of the motion may be opened and examined by the original judge or by another judge if necessary to prevent the violation of an ethical obligation. (b) Upon review of the motion, the court shall determine whether a conflict of interest exists that would require withdrawal of the state public defender and appointment of the alternate defense counsel. (c) For purposes of this article, a "conflict of interest" may include, but need not be limited to, circumstances in which the state public defender represents a codefendant or a person who is a witness in the case or other circumstances identified in the Colorado rules of professional conduct or other rules of civil procedure as creating a conflict of interest. Case overload, lack of resources, and other similar circumstances shall not constitute a "conflict of interest". eed not be limited to, circumstances in which the state public defender represents a codefendant or a person who is a witness in the case or other circumstances identified in the Colorado rules of professional conduct or other rules of civil procedure as creating a conflict of interest. Case overload, lack of resources, and other similar circumstances shall not constitute a "conflict of interest". (d) If the court allows withdrawal of the state public defender and appoints the alternate defense counsel and it is later determined that no genuine conflict of interest existed, the office of the state public defender shall reimburse the office of the alternate defense counsel for the cost of the representation. (2) In cases involving conflicts of interest for the state public defender, the determination of indigency shall be made by the state public defender in accordance with section 21-1-103. (3) (Deleted by amendment, L. 2000, p. 1479, § 2, effective August 2, 2000.) (4) The office of alternate defense counsel shall provide legal representation for persons who are indigent by contracting with licensed attorneys and other persons necessary to provide legal services commensurate with those available to persons who are not indigent pursuant to section 21-2-105. (5) The office of alternate defense counsel may, but is not required to, evaluate the performance of attorneys providing indigent defense in municipal courts at the request of any municipality, as described in section 13-10-114.5 (3)(c)(II). The office of alternate defense counsel shall not perform any such evaluations without sufficient funding for personnel to perform such evaluations.

C.R.S. § 21-2-104 Duties of alternate defense counsel and contract attorneys - report

21-2-104. Duties of alternate defense counsel and contract attorneys - report. (1) When representing an indigent person, the attorney under contract with the office of alternate defense counsel shall: (a) Counsel and defend such person, whether he or she is held in custody, filed on as a delinquent, or charged with a felony offense, at every stage of the proceedings following arrest, detention, or service of process; and (b) Prosecute any appeals or other remedies before or after conviction that the alternate defense counsel or the contract attorney considers to be in the interest of justice. (2) In no case shall the alternate defense counsel or a contract attorney be required to prosecute any appeal or other remedy unless the alternate defense counsel or contract attorney is satisfied that there is arguable merit to the proceeding. (3) Notwithstanding section 24-1-136 (11)(a)(I), pursuant to section 2-7-203, the office of alternate defense counsel shall report annually to the judiciary committees of the house of representatives and senate, or to any successor committees, information concerning: (a) The number of juvenile delinquency cases for which counsel from the office is appointed; (b) The number of juvenile cases that involve a conflict of interest; (c) The process of selecting, training, and supporting attorneys who represent children in juvenile delinquency court; (d) The average length of time attorneys are assigned to juvenile court; (e) The outcome of efforts to reduce juvenile court rotations and increase opportunities for promotional advancement in salaries for attorneys in juvenile court; and (f) The process of training employees and contractors concerning determinations of competency to proceed for juveniles and adults, competency evaluation reports, services to restore competency, and certification proceedings governed by article 65 of title 27.

C.R.S. § 21-2-105 Contracts with attorneys and other legal services providers

21-2-105. Contracts with attorneys and other legal services providers. (1) On and after January 1, 1997, the office of alternate defense counsel shall contract, where feasible, without prior approval of the court, for the provision of attorney services for cases described in section 21-2-103 (1). To provide for adequate legal representation of persons who are indigent, the office of alternate defense counsel may contract, where feasible, without prior approval of the court, for the provision of necessary legal services commensurate with those available to persons who are not indigent for cases described in section 21-1-103 (1). The office of alternate defense counsel shall establish, where feasible, a list of approved contract attorneys to serve as counsel and a list of approved legal services providers to provide services in such cases. As a condition of placement on the approved list, the contracting attorney or legal services provider shall agree to provide services based on the terms to be established in a contract, at either a fixed fee established by the office of alternate defense counsel or the hourly rate for reimbursement set by the supreme court. Terms of the contract must be negotiated between the alternate defense counsel and the contract attorney or legal services provider. Contracts made pursuant to this section must specify that the services must be provided subject to the Colorado rules of professional conduct. (2) (a) Contracts made pursuant to this section must provide for reasonable compensation and reimbursement for expenses necessarily incurred, to be fixed and paid from state funds appropriated therefor. The office of alternate defense counsel shall review the bills submitted for reimbursement by any contractor and may approve or deny the payment of such bills in whole or in part based on the terms set forth in the contract negotiated between the alternate defense counsel and the contractor. (b) The rate contracted for attorney time pursuant to subsection (2)(a) of this section for fiscal year 2023-24 is one hundred dollars per hour for cases involving a type B felony as referenced in attachment D to chief justice directive 04-04 and as modified by the gradations found in attachment D to chief justice directive 04-04. That hourly rate must be increased annually by no more than five dollars each year until the hourly rate is at least seventy-five percent of the rate set pursuant to the federal "Criminal Justice Act Revision of 1986", 18 U.S.C. sec. 3006A, as amended, for indigent representation in federal court. That hourly rate may be adjusted in subsequent fiscal years to maintain the hourly rate at or above seventy-five percent of the rate set pursuant to the federal "Criminal Justice Act Revision of 1986", 18 U.S.C. sec. 3006A, as amended, for indigent representation in federal court. riminal Justice Act Revision of 1986", 18 U.S.C. sec. 3006A, as amended, for indigent representation in federal court. That hourly rate may be adjusted in subsequent fiscal years to maintain the hourly rate at or above seventy-five percent of the rate set pursuant to the federal "Criminal Justice Act Revision of 1986", 18 U.S.C. sec. 3006A, as amended, for indigent representation in federal court. (3) Colorado relies primarily on an independent contractor model of legal representation for court-appointed adult and youth representation in accordance with this section when the public defender's office has a legal conflict of interest. While the office of the alternate defense counsel provides some legal representation for indigent individuals on some cases through state employees and will continue to explore the use of state employee staff model solutions where feasible, Colorado's need for conflict-free indigent defense counsel cannot be filled or provided statewide by direct employees of the office of the alternate defense counsel. For the purpose of determining eligibility for federal public service loan forgiveness, any independent contractor, including, but not limited to, a resource advocate, an investigator, a case assistant, an attorney, a social worker, a paralegal, or a legal researcher, who is currently providing or has previously provided legal services or services through an interdisciplinary legal team has a conflict in providing these services as a state employee. The director of the office of the alternate defense counsel or the director's designee is authorized to sign a certification for any current or past independent contractor that certifies that the contractor appears to be eligible for federal public service loan forgiveness as allowed by federal law or regulations. With the authorization of an independent contractor, the director of the office of the alternate defense counsel or the director's designee may share information, including the contractor's name, social security number or federal employer identification number, and the total number of hours billed by the contractor by calendar year, with other independent judicial agencies for the purpose of certifying apparent past, current, and future eligibility for public service loan forgiveness allowed by federal law or regulations.

C.R.S. § 21-2-106 Recoupment of fees and costs

21-2-106. Recoupment of fees and costs. In any case when a court determines that a defendant is able to repay all or part of the expense of state-supplied or court-appointed counsel or any ancillary expenses incurred in representing such defendant, the court shall assess such fees or costs against such defendant and shall notify the judicial district's collection investigator.

C.R.S. § 21-2-107 Complaints against contracted attorneys - procedure

21-2-107. Complaints against contracted attorneys - procedure. (1) If a person files a claim for damages arising from professional negligence as a result of an act or omission committed by an attorney during the performance of the attorney's duties pursuant to a contract with the office of alternate defense counsel pursuant to section 21-2-105: (a) The complainant shall file with the court a certificate of review in accordance with the provisions of part 6 of article 20 of title 13, C.R.S.; (b) The attorney shall not be required to file an answer to the complaint until twenty days after the complainant files the accompanying certificate of review; and (c) The office of the attorney general shall represent the attorney from the time of service of the complaint until the certificate of review is filed; except that, if the office of alternate defense counsel determines that the act or omission that is the basis of the claim did not occur during the performance of the attorney's duties pursuant to a contract with the office of alternate defense counsel pursuant to section 21-2-105: (I) The office of alternate defense counsel shall notify the attorney and the office of the attorney general of said determination; and (II) The office of the attorney general shall not represent the attorney. (2) Upon the timely filing of a certificate of review as required in subsection (1) of this section, the court shall: (a) Allow the office of the attorney general to withdraw from representation of the attorney; and (b) If requested, allow the attorney to substitute new counsel to represent him or her. (3) If the office of the attorney general represents an attorney pursuant to paragraph (c) of subsection (1) of this section and the court determines that the act or omission that is the basis of the claim did not occur during the performance of the attorney's duties pursuant to a contract with the office of alternate defense counsel pursuant to section 21-2-105, the office of the attorney general may request, and in response to such a request the court shall order, the attorney to reimburse the office of the attorney general for reasonable costs and reasonable attorney fees incurred by the office of the attorney general during the course of the representation. (4) If a person files a claim for damages that arise from professional negligence as a result of an act or omission committed by an attorney during the performance of the attorney's duties pursuant to a contract with the office of alternate defense counsel pursuant to section 21-2-105 and the attorney's contract for insurance with his or her malpractice insurance carrier requires the attorney to notify the insurance carrier upon the filing of a claim against the attorney, the insurance carrier may not consider the claim in determining the amount of the attorney's future malpractice insurance premiums unless a certificate of review is timely filed pursuant to paragraph (a) of subsection (1) of this section.

C.R.S. § 21-2-108 Conflict-free defense for indigent persons in municipal courts - fund created

21-2-108. Conflict-free defense for indigent persons in municipal courts - fund created. (1) For the purposes of section 21-2-103 (1)(c) and (5), any municipality that wants to utilize the services of the office of alternate defense counsel may request such services as provided in this section. (2) A municipality that wants to utilize the services of the office of alternate defense counsel to evaluate the provision of defense counsel to indigent defendants as described in section 13-10-114.5 (3)(c)(II)(A) during the next calendar year shall request such services on or before September 1, 2018, and on or before September 1 each year thereafter. (3) On or before May 1, 2019, and on or before May 1 each year thereafter, the office of alternate defense counsel shall inform each municipality that requested the evaluation services of the office pursuant to subsection (2) of this section whether the office has sufficient funding to provide the services and whether the office can commit to providing such services during the next calendar year. (4) On or before January 1, 2020, and on or before January 1 each year thereafter, the office of alternate defense counsel shall begin evaluating the provision of defense counsel to indigent defendants in each municipality to which the office committed such services pursuant to subsection (3) of this section. (5) A municipality that wants to utilize the office of alternate defense counsel to provide a list of approved attorneys to be used for indigent defense during the next calendar year shall request such services on or before September 1, 2020, or on or before September 1 each year thereafter. (6) On or before May 1, 2021, and on or before May 1 each year thereafter, the office of alternate defense counsel shall inform each municipality that requested the legal defense services of the office pursuant to subsection (5) of this section whether the office has sufficient funding to provide the services and whether the office can commit to providing such services during the next calendar year. (7) On or before January 1, 2022, and on or before January 1 each year thereafter, the office of alternate defense counsel shall provide a list of approved indigent defense counsel to each municipality to which the office committed such services pursuant to subsection (6) of this section. (8) There is created in the state treasury the conflict-free municipal defense fund, referred to in this subsection (8) as the "fund", which consists of any money collected from municipalities and credited to the fund and any other money that the general assembly may appropriate or transfer to the fund. Money in the fund is continuously appropriated to the office of alternate defense counsel for the purposes described in this section. The state treasurer shall credit all interest derived from the deposit and investment of money in the fund to the fund. Any money not appropriated by the general assembly must remain in the fund and shall not be transferred or revert to the general fund at the end of any fiscal year.

C.R.S. § 21-2-109 Office of alternate defense counsel - gifts, grants, and donations for record sealing

21-2-109. Office of alternate defense counsel - gifts, grants, and donations for record sealing. (1) The office of alternate defense counsel may apply for grants and accept gifts or donations from private or public sources for the purpose of representing indigent clients in matters pursuant to part 7 of article 72 of title 24 when such action is in accordance with the Colorado rules of professional conduct and the American bar association standards relating to criminal justice for the defense function. The office of alternate defense counsel shall not accept a gift, grant, or donation if the gift, grant, or donation is conditioned on its use for sealing records for a specific identified individual or individuals. The office of alternate defense counsel shall transmit all money received through gifts, grants, or donations to the state treasurer, who shall credit the money to the sealing defense fund created in section 21-1-107. (2) The office of alternate defense counsel shall annually report on the receipt and expenditure of gifts, grants, and donations pursuant to subsection (1) of this section at its presentation to its committee of reference at a hearing held pursuant to section 2-7-203 (2)(a) of the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act".

Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://leg.colorado.gov/sites/default/files/images/olls/crs2024-title-21.docxFetched: 10/6/2026