2021 Colorado Code
Title 21 - State Public Defender
Article 2 - Alternate Defense Counsel
§ 21-2-103. Representation of Indigent Persons - Definition

1. The office of alternate defense counsel shall provide legal representation in the following circumstances:
   1. In cases involving conflicts of interest for the state public defender as determined pursuant to subsection (1.5) of this section; and
   2. (Deleted by amendment,L. 2000, p. 1479, 2, effective August 2, 2000.)
   3. 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)
      1. 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.
      2. 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.
      3. 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”.
      4. 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 indigent persons by contracting with licensed attorneys and investigators 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.

History. Source: L. 96: Entire article added, p. 1014, § 1, effective May 23. L. 99: (1)(a) and (2) amended and (1.5) added, p. 874, § 1, effective August 4. L. 2000: (1)(b), (3), and (4) amended, p. 1479, § 2, effective August 2 L. 2018 : (1) amended and (5) added,(SB 18-203), ch. 354, p. 2112, § 2, effective August 8.

If defendant wants the state to pay the costs of his attorney and supporting services, his only choice is to be represented by the public defender, or in the case of a conflict, a state-appointed alternate defense counsel. People v. Cardenas, 62 P.3d 621 (Colo. 2002).

Mandatory language in the alternate defense counsel statute limits the district court's authority to appoint counsel for indigent defendants to those attorneys on the “official list” established by the office of alternate defense counsel. The alternate defense counsel statute does not create a statutory right in defendants with regard to its procedural aspects; therefore, representation by counsel not on the “official list” did not violate any cognizable right of the defendant under this statute. Hodge v. People, 158 P.3d 922 (Colo. 2007).

Trial court abused its discretion in disqualifying entire state public defender's office from representing defendant where no direct conflict of interest existed because neither individual public defender representing defendant was involved in prior representation of witnesses, potential conflicts that may have existed with regard to other public defenders within the statewide office could not be imputed under C.R.P.C. 1.11 to individuals representing defendant, and defendant knowingly, intelligently, and voluntarily waived any conflict. People v. Shari, 204 P.3d 453 (Colo. 2009).