Supreme Court: DA Responsible for Ethics Defense Costs

The high court says counties shouldn’t pay for legal defense fees

The Supreme Court has put an end to a former district attorney’s claim for costs of defending ethical violation allegations against him. Using the DA Expense Statute, the court ruled that because former 3rd Judicial District Attorney Frank Ruybalid committed some of the ethical violations recklessly or knowingly, he didn’t incur attorney fees and costs in the course of his official duties, and the counties in the district don’t have an obligation to reimburse him.


Although the Supreme Court’s analysis is fact-specific, the opinion provided a new interpretation of the DA Expense Statute for the context of district attorneys defending against claims of ethical violations.

The statute is short. It directs counties to reimburse district attorneys for “expenses necessarily incurred in the discharge of his official duties for the benefit of [the] county.” The Court of Appeals previously addressed recovering attorney costs for tort claims in Colorado Counties Casualty & Property Pool v. Board of County Commissioners, but no Colorado case before now has addressed the context of ethical violations.

“This distinction reflects the reality that an allegation of an ethical violation can be the byproduct of the adversarial system and is thus beyond the control of the district attorney,” wrote Justice Brian Boatright. “In Ruybalid’s case, however, he committed ethical violations recklessly and knowingly and, therefore, these ethical violations were completely within his control.”

Ruybalid admitted to 26 ethical violations in cases he either prosecuted or supervised as district attorney. In exchange, 138 other allegations were dropped. Since he initially contested the allegations, Ruybalid incurred more than $200,000 in attorney costs during the disciplinary process. Huerfano and Las Animas Counties did not reimburse him for the costs, and Ruybalid filed a claim for the fees. The district court dismissed the claim, and the Court of Appeals affirmed the dismissal.

The Supreme Court’s opinion decided the case on different grounds than the Court of Appeals, which interpreted the case differently than the district court had. The district court determined the Court of Appeals ruling in the Colorado Counties case’s context of a district attorney defending against a tort claim didn’t apply to Ruybalid’s case. The court found Ruybalid’s conduct was not part of his duties as district attorney.

The Court of Appeals used the American Rule to affirm the district court’s decision. Under the rule, each party is presumed responsible for its own fees and costs for litigation unless there is statutory authority that says otherwise. The Supreme Court decided the American Rule didn’t apply to Ruybalid’s case, instead keeping in place its typical application to cases involving requests by the winning party for the losing party to pay the attorney costs.

The opinion didn’t go into iterations of possible circumstances for a district attorney to recover costs from defending ethical violations. Mary Newnam, a former Las Animas County attorney who argued for the county at the Supreme Court, said it’s possible a DA could have a clearer claim for costs if they win their defense than if they do stipulate to ethical violations. 

Also still unclear, Newnam said, is how the court would interpret situations in which the district attorney’s alleged ethical violations are judged by a standard other than reckless and knowing, such as a less serious pure negligence standard. But she said she’s pleased overall with the Supreme Court’s decision since it closes the book on the dispute for the 3rd District’s counties. The case’s significance for the DA community as a whole is evidenced by the chief deputy district attorney in the 1st District, Steven Jensen, representing Ruybalid at oral arguments. Jensen wouldn’t normally get involved in representing private litigants, but he said District Attorney Peter Weir allowed him to take on the case because the case called into question whether the district attorney expense statute has an avenue for DAs to recover costs from their counties in defending grievances against them. 

“There was a much broader issue here than just Frank’s ability to recover,” Jensen said. The Court of Appeals called into question the previous Colorado Counties decision, casting doubt on a district attorney’s ability to recover costs from defending grievances at all.

The Supreme Court didn’t address whether Ruybalid incurred the costs for the counties’ benefit, the third component in the three-part test for whether counties must reimburse a district attorney. “Broken down, the DA Expense Statute contains three elements that must be met before the counties that constitute a district must reimburse its district attorney: (1) there must be fees, (2) that were necessarily incurred in the discharge of the district 9 attorney’s official duties, and (3) for the benefit of the county,” Boatright wrote.In this case, the Supreme Court court stopped after determining the costs were not part of Ruybalid performing his official duties. 

Jensen said although the decision affirming Ruybalid’s responsibility for his attorney costs is a personal blow for Ruybalid, regarding the court’s broader interpretation of the expense statute, “for the DA community, this was a big win.” 

—Julia Cardi

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