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Colorado's Attorney Regulation Counsel
(known here as the Attorney Deregulation Council)
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Articles / surveys regarding Colorado Attorney Discipline
Feb. 10, 2009 - The Gazette gives Colorado's Office of Attorney Deregulation
Council free advert space (at a time when papers are going out of print because of revenue
shortages)
Dennis Huspeni, a reporter I have attempted to establish good rapport with over the last couple
of years and with whom I've discussed the OARC via email on numerous occasions, decided
to finally make good on his promise to
write an article about the OARC.
On 6/13/2007, Dennis wrote me:
As I told Kim [Thorup], I am VERY interested in doing a story on the ARC. I got a copy
of the 2006 report and have been reading over it. It does seem like only a minor number
are actually investigated, then an even smaller number of discipline actions taken. That
concerns me, but I need to let readers know why that's important and why they should care
(other than the obvious - you pay a lot of money for attorneys, they should be above
reproach ethically). Keep the info coming. I really appreciate it.
[emphasis in the orig.]
I don't get around to deleting email often.
Unfortunately, Dennis appears either to have completely lost his initial impression or something
(or someone) has persuaded him to publish a different viewpoint.
In this February 7, 2009 article, Dennis provided John Gleason with a mouthpiece, quoting him
as saying, " Our No. 1 goal is to protect the public; Our No. 2 goal is to serve the public."
Gleason loves the attention and, doubtless,
appreciates the free advertising.
Dennis further quoted from an OARC opinion in one case:
"Purposeful deception by an attorney is intolerable, even when it is undertaken as part of
attempting to achieve what the attorney believes is the greater good."
Whereas the specious opinion states
"Purposeful deception by an attorney is intolerable,"
the reality is that making false statements under oath and
offering material misrepresentations during the course of a disciplinary investigation is tolerable,
as I've fully explicated in detail on this page (click on the
Feb. 2009 link thereon).
Gleason spryly noted that, " Other states cringe when
I tell them here you can make a complaint about a
lawyer by picking up the phone."
Perhaps, Dennis' readers would've cringed if they
realized that this is Gleason's way of eliminating the
paper-trail, because most caller-complainants are told
their complaint has no merit and are turned away.
Under his "model system" he not only can manipulate
the metrics and manage his workload (discretion that
Rule 251.9 does not afford), but he
also can claim that the low prosecution rates indicate that
Colorado attorneys are of extraordinary character.
At the risk of sounding narcissistic, it seems to me that, through these
various consonant interviews, Gleason is laughing at those of us who've
reported dishonest attorneys.
I'm very disappointed that Dennis declined to even concede his knowledge of the
contrary viewpoint on this topic.
Jan. 21, 2008 - Proposed Changes to Rules of Procedure Regarding Attorney Discipline and
Disability Proceedings
Colorado Rules of Civil Procedure Rule 251.8 and Rule 251.31
Hearing to be Held Wednesday, January 21, 2009 at 1:30 P.M.
The Colorado Supreme Court will conduct a hearing on the proposed
changes to C.R.C.P. 251.8, Immediate Suspension, and C.R.C.P.
251.31, Access to Information Concerning Proceedings Under These
Rules, on Wednesday, January 21, 2009 at 1:30 p.m. in the Colorado
Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. The Court
also requests written public comments by any interested person on
these proposed rule changes. An original and eight copies of the
written comments concerning the changes should be submitted to Susan
J. Festag, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO
80203 no later than Friday, January 9, 2009 by 5:00 p.m. Persons
wishing to participate at the hearing should notify Ms. Festag no
later than Friday, January 9, 2009.
By the Court:
Michael L. Bender,
Justice, Colorado Supreme Court
Nathan B. Coats
Justice, Colorado Supreme Court
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Rule 251.8 Immediate Suspension
(a) Immediate Suspension. Immediate suspension is the temporary
suspension by the Supreme Court of an attorney’s license to practice
law for a definite or indefinite period of time while proceedings
conducted pursuant to this Rule and these Rules are pending against
the attorney.
Although an attorney’s license to practice law shall not ordinarily
be suspended during the pendency of such proceedings, the Supreme
Court may order the attorney’s license to practice law immediately
suspended when there is reasonable cause to believe that:
(1) the attorney is causing or has caused immediate and
substantial public or private harm and the attorney:
(A) has been convicted of a serious crime as
defined by C.R.C.P. 251.20(e);
(B) has converted property or funds;
(C) has abandoned clients;
(D) or has engaged in conduct which poses an
immediate threat to the effective administration of
justice.
(b) and (c) [No Change]
Rule 251.31. Access to Information Concerning Proceedings
Under These Rules
(a) [No Change]
(b) Confidentiality. Before the filing and service of a complaint
as provided in C.R.C.P. 251.14, the proceedings are confidential
within the Office of the Regulation Counsel, the committee, the
Presiding Disciplinary Judge, and the Supreme Court, except that
the pendency, subject matter, and status of an investigation under
C.R.C.P 251.10 may be disclosed by the Regulation Counsel if:
(1)–(2) [No Change]
(3) The proceeding is based on allegations that have become
generally known to the public;
(4) There is a need to notify another person or
organization, including the fund for client protection, to
protect the public, the administration of justice, or the
legal profession; or
(5) A petition for immediate suspension has been filed
pursuant to C.R.C.P. 251.8.
(c)–(q) [No Change]
COMMENT
C.R.C.P. 251.31
The confidentiality rule set forth in C.R.C.P. 251.31(b) seeks to
strike a balance between the protection of attorneys against
publicity predicated upon unfounded accusations and the protection
of clients and prospective clients and the effective administration
of justice from harm caused by attorneys who are unwilling or unable
to fulfill their professional obligations. C.R.C.P. 251.31(b) also
recognizes that restrictions on confidentiality no longer serve
their purpose when allegations that would ordinarily be confidential
have become generally known through disclosure in the public record,
publicity or otherwise.
The Regulation Counsel frequently receives inquiries from judges,
clients or prospective clients and the media asking if an attorney
is the subject of a pending disciplinary investigation. Ordinarily,
this rule prohibits the Regulation Counsel from providing
information about a pending investigation or even confirming that
an investigation is pending. C.R.C.P. 251.31(b) sets forth
exceptions when the Regulation Counsel may reveal the pendency,
subject matter, and status of an investigation under C.R.C.P.
251.10.
Certain exceptions are clear. For example, when the attorney has
waived confidentiality or when the proceeding against the attorney
is based on a criminal conviction, discipline imposed on the
attorney in another jurisdiction, or a petition for immediate
suspension filed by the Regulation Counsel against the attorney
under C.R.C.P. 251.8.
Other exceptions require the Regulation Counsel to exercise
discretion. C.R.C.P. 251.31(b)(3) requires the Regulation Counsel
to determine whether otherwise confidential allegations against an
attorney have become generally known. Factors that the Regulation
Counsel should consider in these circumstances include but are not
limited to the nature and extent of media coverage, the nature and
extent of inquiries from the media and the public, the nature and
status of any related judicial proceedings, the number of people
believed to have knowledge of the allegations, and the seriousness
of the allegations.
Another important exception requiring the Regulation Counsel to
exercise discretion is C.R.C.P. 251.31(b)(4), which allows
disclosure when there is a need to notify another person or
organization in order to protect the public, the administration of
justice, or the legal profession. In determining whether a need to
notify exists, the Regulation Counsel should consider factors
including but not limited to the nature and seriousness of the
conduct under investigation, the attorney’s prior disciplinary
history and whether the attorney has previously been disciplined for
conduct similar to the alleged conduct under investigation, and the
potential harm to a client or prospective client, the public or the
judicial system. In those instances in which the Regulation Counsel
determines that disclosure is permitted based on C.R.C.P.
251.31(b)(4) alone, the Regulation Counsel is authorized to disclose
the pendency, subject matter, and status of an investigation in
response to inquiry, but also to disclose this information
affirmatively to those persons having a need to know the information
in order to avoid potential harm.
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Dec. 11, 2008 - Accomplished Colorado trial lawyer persecuted by Attorney Regulation Counsel in
retaliation for prevailing against the the wrong defendant
This fireside chat is about my favorite and your favorite
bureaucracy, the exalted Colorado Supreme Court Office of
Attorney Deregulation Council: our Defender of Truth, Justice and the American Way; our
Protector of vulnerable widows and orphans from incompetent and dishonest attorneys.
But, as I'll explain later, one capable attorney --a modern day Lord Erskine-- doesn't see it that
way at all: he suggests the agency is a complaisant instrument of political retribution.
Lord Erskine for the defense of the Dean of St. Asaph, Sir William Jones, in
a trial for seditious libel for having written a tract on general principles
of government and recommending parliamentary reform. Camp. VIII,
272-279. After a long series of contentious exchanges between Erskine
and Justice Buller over how the language of the jury's verdict should be
recorded, the following occurred (Camp. VIII, 277; small capitals in the
original):
Buller, J.: "Sir, I will not be interrupted."
Erskine: "I stand here as an advocate for a
brother citizen, and I desire that the [record be
complete]."
Buller, J.: "Sit down, Sir;
remember your duty or I shall be obliged to
proceed in another manner [i.e., with
imprisonment for contempt of court].
Erskine: "Your Lordship may proceed in what
manner you think fit; I know my duty as well as
your Lordship knows yours. I shall not
alter my conduct."
Campbell continued: "The learned judge
took no notice of this reply, and, quailing
under the rebuke of his pupil, did not repeat
the menace of commitment. This noble stand
for the independence of the Bar would of itself
have entitled Erskine to the statue which the
profession affectionately erected to his memory
in Lincoln's Inn Hall.... The example had had a
salutary effect in illustrating and establishing
the relative duties of Judge and Advocate in
England."
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The account that follows may elucidate why trepidation and indecisiveness (or else covert
advocacy arrived at by treachery and parlor tricks) has been substituted for the valor of
Lord Erskine's overt championing of the client's cause.
In today's legal profession, a lawyer's first client is the judge, whereas the client by
title simply pays
the bills. And see Monroe H. Freedman, The Threat to Judicial Independence by
Criticism of Judges: A Proposed Solution to the Real Problem, 25 Hofstra L. Rev. 729,
729 (1997) (“The problem is not that too many lawyers are publicly criticizing judges.
Unfortunately, too few lawyers are willing to do so, even when a judge has committed
serious ethical violations and should be held accountable”).
If you're a practitioner who subscribes to The Colorado Lawyer, then you've probably read
the OARC's flattering
self-appraisal or Alex Rothrock's summary description of the
theoretical policy and procedure. If you're an average lawyer of average intelligence, you
may fear the regulation system, but assume that an attorney has nothing to fear from OARC so long
as he or she achieves the best possible result for his or her client.
If you're an average member of the public, you've possibly read reports by The Glenwood Springs Post or
Denver9News,
with interviews of the agency's long-time chief, John Gleason, that attorney dishonesty is not
tolerated in this state.
If you're Dale Kim Thorup, you know better: The OARC won't investigate your
claim that your ex-wife's attorney was sleeping with her during the pendency of your divorce
case, even after the attorney married her a few months after the
divorce.
If you're me, you know better: I was told to go pound sand when I provided direct (as opposed to indirect or
circumstantial) evidence that
a certain
attorney provided substantial aid, encouragement and legal advice in tortiously and
unlawfully concealing the whereabouts of my child; lied about knowing the physical location of the
parent-client hiding the minor child; lied under
oath about giving legal advice to the parent-client living in
another state; lied under oath about being
"assaulted in court"; lied about faxing documents that were never faxed;
lied to disciplinary authorities; repeatedly and
deliberately misled the tribunal; advised the client to light
candles, burn incense and send my spirit away; and fabricated bizarre and exotic claims of death
threats, among other things.
But, I digress.
If you're Mark E. Brennan, a highly capable plaintiff's lawyer in Centennial, you know better: He
seems to have good reason to suspect that OARC is not above allowing itself to be used by those with
friends in very low places to take retribution against their enemies.
Why should readers care? Put bluntly,
"Where law is honored and respected, societies flourish; where legal systems
are trumped by political or economic elites and stifling bureaucracies, the people
live in misery and are impoverished." 1
Brennan's saga is explicated in detail by Alan Prendergast ( The Westword) in his article,
Blackburned, 2 and is a classic fable of
the "little guy" prevailing against "those who have all the wealth and power at their disposal."
3 Alan Prendergast summed it up this way:
The . . . fiasco is only part of a twisted saga of perjury, cover-ups and discrimination
claims that led to [plaintiff] winning a $1.2 million judgment from a federal jury two
years ago. It was one of the largest awards ever entered against the city -- but it was
tossed by Judge Robert E. Blackburn, who declared that [Brennan] must have improperly
inflamed the jury with his sarcastic, confrontational style of litigation.
Brennan selflessly devoted years to representing a 27-year-veteran Denver firefighter in Civil
Service Commission and federal court proceedings challenging the the firefighter’s unlawful
termination on the pretext he shoplifted a cookbook from a Safeway store.
In early 2004, Civil Service Commission Hearing Officer John Criswell found after an extended
hearing that the City failed to prove the firefighter, Bill Cadorna, shoplifted the cookbook. He
found that, as Cadorna contended when first accused of shoplifting the cookbook by a fellow
firefighter, a Safeway clerk had given Cadorna permission to take a copy of the cookbook without
paying for it to make up for one Cadorna had bought, but lost, on a previous visit to the store.
In what some have characterized as an apparent favor to the City, Criswell --the same Civil Service
Commission Hearing Officer who found that Denver cop James Turney deserved no punishment whatever
for his killing of mentally disabled Paul Childs-- complied with the City’s insistence that Cadorna
be denied reinstatement because he was over age 50 and had retired following his termination.
The Denver Civil Service Commission upheld Criswell’s decision, in reliance upon an obvious
misstatement of fact by Criswell in his decision that Cadorna retired “prior to dismissal”. All the
evidence showed Cadorna retired after his dismissal. The Commission’s own records verified that
Cadorna had not retired until after his dismissal. Yet, to avoid reinstating Cadorna, the
Commission concluded that, since Cadorna had retired before he was fired, there was no dismissal to
be appealed. Huh?
Brennan told Cadorna in 2003 he would not litigate Cadorna’s claims in federal court if that became
necessary, as he did not want to become mired in years of federal litigation. However, when
Cadorna was still unable to find other counsel in 2004, Brennan prevented Cadorna from losing his
claims under statutes of limitation by suing the City in federal court for age discrimination and
other civil rights violations. When numerous other expert employment attorneys declined to take
over the case because they regarded it as a “loser”, Brennan did not abandon Cadorna. Brennan
forged ahead.
After federal Judge Robert E. Blackburn, no friend of employment plaintiffs, and normally inclined
to dismiss employment claims, denied summary judgment on Cadorna’s age discrimination and
substantive due process claims, the case went to trial in June, 2006.
At the end of a two-week trial, the jury found the City guilty of willful age discrimination, and
awarded Cadorna $610,571.00 in back pay. Judge Blackburn imposed judgment for liquidated damages
in the same amount because the jury found the City’s discrimination against Cadorna was willful.
The judgment therefore totaled $1.22 million, one of the largest ever against the City of Denver.
Brennan recalls how mystified he was that the City made no effort whatever before trial to settle
the case, even though the evidence against it was very strong. In retrospect, Brennan says he
suspects they had reason to believe even before trial that their “back was covered”, whatever the
outcome.
And, sure enough, Blackburn set aside the jury's verdict. Why? On the basis of Brennan's
alleged misconduct (`though neither the City nor the judge had sought or ordered a mistrial
for alleged misconduct during trial).
I say "alleged," because --if you believe the jurors (discussed below)-- Blackburn's maneuver was,
in all probability, based on an ulterior motive. Additionally, Brennan notes that Blackburn has
developed a reputation for deep-seated hostility to civil rights plaintiffs (quite similar, now
that I think about it, to former judge Edward
Nottingham's reputation concerning employment cases), 4 but adds that Blackburn seemed
at the close of trial to feel that justice had been done.
Brennan says he believes that, although Blackburn did not conceal his hostility to Brennan and his
client during trial, it was only well after trial that Blackburn decided to overturn the verdict,
for reasons unrelated to the truth or the law. “Cui bono?”, Brennan asks.
Obviously, the City has lots of friends in low places. Just after Blackburn ordered a new trial,
OARC Chief John Gleason served Mark Brennan with a Notice of Investigation. 5
What of Brennan's alleged misconduct? In response to Gleason’s demand that he explain why he should
not be disciplined for prevailing against the City, Brennan requested that Investigating Attorney,
Kim Ikeler, interview the jurors. Ikeler and his assistant, Janet Layne, did. Here are
notes from interviews with
seven of the eight jurors (the eighth wasn't interviewed):
- Brennan did a great job . . . Don't think [his behavior was] out of line . . . thinks
City got to Blackburn . . . Don't think it was 100% the judge's decision . . . think
somebody (city) got to him . . . City attorneys not very good. [Asked, "Was Brennan
abusive - answer]: Not at all!
- [Asked, "Was Brennan abusive, obstreperous?" Answer]: Seemed arrogant, interrupted a
lot, judge got upset a couple of times. [Asked, "Was Brennan trying to disrupt [the]
trial?" Answer]: No. [Asked, "Should the Supreme Court [OARC] do anything to Brennan for
the way he acted?" Answer]: No
- though [Brennan's] behavior was normal . . . Didn't believe the reason[s] given for
overturning [the verdict] . . . No intent to disrupt; [Brennan] did not interrupt
proceedings; [Asked, "Should the Supreme Court [OARC] do anything to Brennan for the way
he acted?" Answer]: No
- [Brennan] not abusive or obstreperous. Not belligerent . . . Did not disrupt.
- Brennan - thought he was good. Would hire him . . . pushed limits a couple of times. Not
abusive, belligerent. Behaved professionally . . . Not trying to disrupt. Just trying to
prove his point.
- Brennan - total advocate for client . . . Not abusive. Not disruptive . . . did not
intend to disrupt . . . Never yelled at judge . . . maybe occasionally obstreperous. Very
passionate . . . good advocate . . . Would hire Brennan if needed an attorney . . .
Blackburn: process obsessed . . . Thinks somebody got to judge
- Didn't think disruptive; not intentional at all . . . just trying to win case . . .
appreciated his spark; behaved prof[fessionally]. Did a good job rep[resenting] client.
Not abusive, obstreperous, disrespectful.
On January 31, 2008, Ikeler and Layne met with Brennan to discuss the results of their
investigation. Ikeler, a senior attorney in OARC, explained that, although OARC could not endorse
some of Brennan’s theatrics or methods, neither did its investigation reveal clear and convincing
evidence of misconduct. Ikeler explained that he would recommend dismissal of the matter for lack
of evidence.
So, then, would it surprise you to learn that, on February 15, 2008, Ikeler called Brennan and
informed him that Ikeler’s superiors had ignored the recommendation of dismissal, and directed
Ikeler to issue a March, 2008
Report of Investigation, requesting that the Committee authorize a
complaint against Brennan? 6
Would it surprise you to learn that, in the February 15 Report of Investigation in which he
requested Brennan’s prosecution, Ikeler forgot to mention that, in their January, 2008 interviews,
supra, the jurors all supported Brennan, and that Ikeler failed to state his legal opinion that
there was insufficient evidence to support Brennan’s prosecution?
Would it surprise you to learn that in May of 2008, the OARC served Brennan with a
citation?
Would it also surprise you to learn that Brennan's February 18, 2008 Response to Ikeler’s Report
was stricken (considered not filed), because it was 24 pages in length [supposedly exceeding
"Committee guidelines" that they be limited to five pages, which Brennan says are not
published or written anywhere]? 7 Would it surprise you to learn that OARC did not apply
this alleged rule to its own Report of Investigation (which was over 20 pages in length)?
I called Kim Ikeler, today, to clarify this latter point. His response
was about as clear as mud:
Well, the Attorney Regulation Committee does have a list of practices, and that includes
the five-page limit. It's not published in the Rules. It comes from the Committee. . .
[sound of thumbing through papers and regulations] . . . So, I'm trying to figure out
whether that's confidential. I don't know. Doesn't say. I can't tell you what the list says
or where you can get it. I just don't know.
Well, that's reassuring. Unable to find an answer, Ikeler had to transfer me to Gleason's desk. I
left a voice-message, but am not holding my breath for a call back.
I find Brennan's Answer to this frivolous
prosecution both concise and compelling. He
argues:
This proceeding was initiated and is being pursued as part of a fraudulent and
unlawful conspiracy by the Colorado Supreme Court, "Judge" Robert E. Blackburn, and the
City and County of Denver to deprive Respondent of his
property interest in his professional license, and liberty interest in his career and
reputation, without due process of law, and to violate Respondent's right to equal
protection of the law, in violation of the United States Constitution and the
Colorado Constitution . . . [and] to deprive Respondent of his constitutional and civil
rights, including but not limited to his right to free speech, and to take reprisal against
Respondent for his successful representation of a disadvantaged person in a civil rights
action against the politically and economically powerful City and County of Denver.
Brennan further argues, in his
Motion to Dismiss:
Those who enforce the law in Colorado evidently deem themselves above it. [The]
OARC, the Denver City Attorney, and Judge Blackburn appear to work from the same
playbook, one written not by our Founding Fathers, but by the spiritual and
intellectual descendants of Cardinal Wolsey. It is highly unlikely this tribunal
will take a chance on offending the very powerful Judge Blackburn, before whom its
members or their colleagues may practice frequently, or with whom its members may
for other reasons wish to maintain cordial relations. It is likewise highly
unlikely this tribunal will take a chance on offending the City of Denver or its
many other friends in very high places, who populate the State judiciary or play a
major role in deciding who populates the State judiciary.
. . .
As the outrageous conduct of the City of Denver, Judge Blackburn and OARC proves
beyond any reasonable doubt, ours is a government of men, not of laws.
How many people here think Brennan's going to get a fair "trial?" Anyone?
Well, for starters,
let's look at the fairness of the trial setting on its face. The prosecution in this case is the
OARC, an office/agency of the Colorado Supreme Court. The investigation team is the OARC, an
office/agency of the Colorado Supreme Court. And, according to the OARC's directions for filing pleadings, the, "The office of the
Presiding Disciplinary Judge acts as the 'clerk' for the Supreme Court."
So, in essence, the Colorado Supreme Court is both the titular plaintiff, judge and jury, and it
has so far shown considerable indifference to the facts.
Earlier today, I spoke with Brennan's client, Bill Cadorna. When asked about his attorney's
conduct, he said without hesitation, " Outstanding job. Mark's very passionate. Blackburn tried
to shut him down every time he tried to question anybody. He'd let him get two or three
questions in and then, 'Nope, testimony over.'" Cadorna continued, " He did a good job. And
the jury agreed with him," noting "Even the jurors think there's a fix . . . I think there's a
fix."
So there you have it. The client, who never received his jury award, doesn't feel Brennan
did him any disservice. The jury verdict is in that Blackburn --not Brennan-- was the reason for the waste
of the jurors'
time and efforts. Seems only the City was prejudiced by Brennan's zealous and effective advocacy.
The lesson? If you represent the right people, you are virtually immune to scrutiny by OARC, no
matter how massive your subversion of justice or breach of ethics.
But, if you zealously represent the little guy against a powerful, connected client, and win big,
don’t expect your good deed to go unpunished.
_____________________
1 Arundel & Kanis. (2008, December).
Review of Legal Resources [Review of the book The Bramble Bush: The Classic Lectures on the Law
and Law School]. 37 Colo. Law 12 at 66.
2 I discussed the "Blackburned" article in my Feb. 12 entry
here.
3 Excerpted from Brennan's closing arguments.
4 Nottingham also made certain that jury verdicts were disregarded so that prevailing
plaintiffs would not collect their judgments. See, e.g., Settle v. Nottingham,
92-10-372-07. And see
Affidavits of Stephen Phillips & attorney Jim Carleo (quoting Magistrate Judge Kristin Mix)
("The biggest problem with your case is that Judge Nottingham hates employment cases and there’s
nothing you can do about it. It’s random. Now don’t get me wrong, he’s a fine judge, but he just
hates employment cases. That’s why he will try to find any way in the summary judgment briefs to say
there’s no material issues and grant summary judgment, and if he doesn’t, he will make it tough at
trial, and you won’t win . . . I’m going to look you right in the eye and tell you that you’re
gonna lose").
5 When Brennan inquired of Ass't Regulation Counsel Kim Ikeler who filed it, Ikeler
declined to identify an individual complainant, noting that the OARC is entitled to pursue
complaints of its own volition, without the necessity of a formal complaint. Thus, this would be
one of the very few times --if not the first time-- they've ever done that in a non-criminal
matter. Such selective prosecution is strong circumstantial evidence of a hidden agenda.
6 The Westword also recently reported, "The OAR[C]
investigator [Kim Ikeler] is on record as having told Brennan that, in his opinion, the complaint
didn't amount to much but that higher-ups in the office insisted that it be pursued."
7 See ¶ 14 of OARC's Response to Brennan's
Motion to Dismiss
Dec. 03,
2008 - Rogue employee of the Colorado Supreme Court Attorney Regulation Counsel compromises
judicial computer systems network
On December 1, 2008, Louise Culberson-Smith of the Office of the Attorney Deregulation Council
declined to examine evidence that was submitted with a complaint and, thusly, did not conduct any
investigation despite the mandatory language ("shall") of
Rule 251.9.
The reason cited was because the evidence was provided as URL links to PDF files and, "[We] did
not attempt to access the exhibits cited in your faxes. Due to concerns about computer viruses and
security issues, this office avoids accessing questionable or unsecure websites." Click
here.
However, a review of the server logs for the site ( KnowYourCourts.com) hosting those
documents indicates that someone from the OARC (IP address 165.127.111.130 (judicial.state.co.us))
has clearly violated this policy and risked the entire computing resources of the judicial
department by accessing the "questionable or unsecure" Web site, KnowYourCourts.com:
- 09/23/2008 (1 occurrence)
- 09/11/2008 (1 occurrence)
- 5/07/2008 (1 occurrence)
- 02/25/2008 (5 occurrences)
- 02/13/2008 (1 occurrence)
- 12/28/2007 (1 occurrence)
- 09/26/2007 (1 occurrence)
- 09/23/2007 (1 occurrence)
- 09/21/2007 (10 occurrences)
- 08/08/2007 (9 occurrences)
- 02/15/2007 (2 occurrences)
- 02/05/2007 (5 occurrence)
- 02/02/2007 (12 occurrences)
- 01/19/2007 (4 occurrence)
In fact, just two days after the date of Culberson-Smith's correspondence, a rogue or uninformed
employee of the OARC accessed this site at 9:36 AM.
Of course, as a responsible citizen, I am duty-bound to report this violation of policy and
compromise of state resources to the State Court Administrator's Office.
Oct. 23, 2008 - John Gleason
serving up more of his famous KoolAidTM
Based on a complaint I filed against the former federal chief judge,
Edward
Nottingham, and attributable to intense media scrutiny, it appears that Colorado's
Attorney Deregulation Council must reluctantly undertake an investigation. During a
brief phone
interview with Deborah Sherman (Denver9News), Gleason claimed:
It doesn't make any difference who the lawyer is or where the lawyer works or did
work . . . If they are admitted in Colorado, if there is a public allegation against
any lawyer, it will be investigated . . . The goal is to protect the public from
lawyers who do not follow rules of ethics . . . Colorado is one of the most
progressive states in the country of lawyer regulation. We take it very seriously.
Recalling similar statements that Gleason made to
The Glenwood Springs Post, I hereby characterize Gleason's latest claims a
"crock of shit." And, when
asked if I was pleased with the OARC's decision
to investigate Nottingham, I
told Denver9News, " I
would be pleased if they conducted any and every investigation pursuant to the disciplinary
rules; usually they don't."
Similarly, one lawyer-journalist wrote me via email:
No need . . . to go through chapter and verse about Gleason's statements about
pursuing all valid complaints. He's made the same statements to me over the years,
and I continue to get an earful (from lawyers and clients alike) about how the
system doesn't work, except possibly in slamdunk cases involving theft from
clients.
Another lawyer (non-journalist) emailed
me several months ago:
the attorney regulation system does indeed exist in part to preserve the illusion of
an ethical profession, but certainly does not protect the entire profession, and is,
indeed, sometimes used as a means of punishing those who challenge the established
order. Those who most greatly abuse their authority and power to advance the
interests of the rich and powerful are largely immune from ethics enforcement,
unless (as in the case of Eliot Spitzer) they cross the even more rich and
powerful.
Feb. 6, 2008 - H.A.L.T. gives Colorado a "D-" on its
nation-wide report card for lawyer-client fee
dispute problems.
An overview of the study is
here. Colorado's "report card" is
here.
Dec. 31, 2007 - Federal Judge in Denver decrees that Colorado's Attorney
Regulation Counsel has no basis for directing complainants to first obtain findings from a
court as a condition precedent to initiating an investigation
THE COURT: Well, this started out as
a motion under U.S. Judicial Canon 3B for this court somehow to refer
this to the state disciplinary board, right?PLAINTIFF: Yes, it did.
THE COURT: Well, you can do that. You
can do it. You can file a complaint against any of these gentlemen with
the state regulatory council. And it's my impression that you have. Have
you not? PLAINTIFF: Yes, we
have. THE COURT: Why does this
court need to do it? The regulatory council has all the resources it
needs to make determinations, and does regularly make determinations
concerning whether attorneys have behaved ethically. PLAINTIFF: Well, my first contact with
the attorney regulation council, I was still in Steamboat. They said
that they needed a finding from a court of law before they would act.
That's what Matt Samuelson told me.
THE COURT: Well, I don't know the context in which those words
were spoken, and I don't know what you had asked, and I don't know what
the problem was. But my understanding of the Colorado rules of attorney
conduct is that upon the filing of a complaint, they do whatever
investigation they need to have done, and they make whatever findings
they need to have made, and they issue whatever orders they need. They
don't need a recommendation from this court. You know, if that is what
he said, he's wrong.
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Judge Nottingham got
one issue half right: He would be correct that, under C.R.C.P.
251.9, a complainant need do no more than file a complaint that contains
allegations, which, if proved true, would constitute a rule violation.
That's all it takes. Moreover, in People v. Musick, 960 P.2d 89 (Colo. 1998) the Colorado Supreme Court explained:
[W]e have never held that a complaint must charge a violation of the criminal law before . . . behavior can be found to reflect adversely on a lawyer's fitness to practice law. As we said in
People v. Crossman, 850 P.2d 708 710-11 (Colo. 1993), ‘[w]e agree with the Supreme Court of Florida that “[i]mproprieties that directly and intentionally harm others always are serious offenses in the eyes of this Court.”
Florida Bar v. Samaha, 557 So. 2d 1349, 1350 (Fla. 1990) (emphasis in original).’ In
People v. Brailsford, 933 P.2d 592, 595 (Colo. 1997), we observed that ‘the actual nature of [the attorney's] conduct . . . is more important for disciplinary purposes than the statutory label put on it.’
Yet, our Attorney Deregulation Council has, indeed, been informing complainants contrary to C.R.C.P.
Rule 251.9 that they must first obtain findings from a criminal or civil court,
as these quotations from memoranda of various assistant regulation counsel
(Louise Culberson-Smith, James Coyle and Matthew Samuelson) prove:
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March 22, 2005: "I have repeatedly offered to reconsider this aspect of your complaint if you provide evidence of a court's decision or finding against
Ms. Wilson . . . this particular matter remains dismissed and closed, subject to reconsideration if you supply the previously requested court decision or judicial findings"
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March 24, 2005: "As I have told you many times before, if a civil court specifically finds
Ms. Wilson has somehow acted improperly in your case, you may forward those judicial findings to my office for review on whether such findings provide a basis for regulatory action."
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March 15, 2005: "As I have told you many times before, if a civil court specifically finds
Ms. Wilson has somehow acted improperly in your case, you may forward those judicial findings to my office for review on whether such findings provide a basis for regulatory action . . . you may request reconsideration of this issue by providing us a copy of the court's decision against
Ms. Wilson. To date, you have not provided any court decision or findings against
Ms. Wilson regarding your discovery claims or anything else."
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June 15, 2004 "you may request reconsideration of this issue by providing us a copy of the court's decision against
Ms. Wilson. To date, you have not provided any court decision or findings against
Ms. Wilson regarding your discovery claims or anything else . . . my office's policy remains as I have informed you before: we will not reconsider your complaint again unless you provide the above-mentioned judicial findings. Consequently, we ask that you kindly refrain from contacting us about this particular matter except for providing those court findings."
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August 26, 2003: "We will not reconsider you complaints about
Ms. Wilson unless you provide judicial findings against her from your case or a notice that Ms. Wilson has been convicted of or has pled guilty to a criminal violation."
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August 21, 2003: "As I told you before, if a civil court specifically finds
Ms. Wilson has defrauded you or otherwise acted improperly, you may forward those judicial findings to our office for review on whether such findings provide a basis for regulatory action . . . if the court rules in your favor, you may forward the court's findings to our office for review . . . Please note that we will not reconsider this matter again unless you provide the above-mentioned judicial findings and/or notice of
Ms. Wilson's criminal conviction. Consequently, we ask that you kindly stop contacting us about this particular matter except for providing those court findings or conviction."
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August 21, 2001: "you should first address your concerns with the court in the underlying civil proceeding. If the court determines that the attorney has engaged in any misconduct as you have alleged, then please feel free to resubmit this matter to this office for investigation."
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August 14, 2001: "the allegations that you have made in the civil matter closely parallel those you make in this disciplinary proceeding. You must prove your case in the civil proceeding by a preponderance of the evidence. In disciplinary proceedings, our office must establish the same allegations by a higher, more difficult standard,
i.e. by clear and convincing evidence. Thus it makes sense to defer disciplinary proceedings until you have resolved the civil matter. If the court determines that the attorney has engaged in any misconduct as you have alleged, please feel free to resubmit the matter to this office for investigation."
The part Nottingham did not get right is that it is
the obligation of judges to report misconduct, rather than leave this to the
party aggrieved. According to the ABA Standards for Imposing Lawyer
Sanctions:
It cannot be emphasized strongly enough that
lawyers and judges must report unethical conduct to the appropriate
disciplinary agency. Failure to render such reports is a disservice to the
public and the legal profession. Judges, in particular, should be reminded
of their obligation to report unethical conduct to the disciplinary
agencies.
Under Canon3(D)(1) and (2) of the ABA Model Code of Judicial Conduct, a
judge who receives information indicating a substantial likelihood that
another judge or a lawyer has violated the applicable rules of professional
conduct is obligated to take appropriate action. This action includes making
a report of the violation to the appropriate authority when the violation
raises a substantial question about the judge’s fitness or the lawyer’s
honesty, trustworthiness or fitness.
Frequently, judges take the position that there is no such need and that
errant behavior of lawyers can be remedied solely by use of contempt
proceedings and other alternative means. It must be emphasized that the
goals of lawyer discipline are not properly and fully served if the judge
who observes unethical conduct simply deals with it on an ad hoc basis . . .
the lawyer discipline system is in addition to and serves purposes different
from contempt powers and other mechanisms available to the judge.
Only if all lawyer misconduct is, in fact, reported to the appropriate
disciplinary agency can the legal profession have confidence that consistent
sanctions are imposed for similar misconduct.
Id. at § I (A), p. 5. [internal brackets omitted].
Dec. 8, 2007 - Musings on Reporting Professional Misconduct in Colorado
Our fellow blogger at The Colorado Index has
here prepared a nice write up on the procedure for lawyers reporting
violations of the Rules of Professional Conduct by other lawyers. The only
primary point our fellow blogger appears to have missed is that all Colorado
lawyers know and adhere to the unwritten rule that one does not report his
fellow lawyer, regardless of requirement imposed by Rule 8.3. This unwritten
rule is known simply as, "The Golden Rule." The Golden Rule is violated —and
Rule 8.3 followed— only in rare cases, such as when lawyers are competing with
each other for public office; or when they are personally impacted by the
conduct of an attorney, who has some authority over them; or when there is some
PR element involved. Examples include when Katherine Steers reported Colleen
Truden (click here) or when anonymous attorneys reported Carol Chambers on at least two occasions (click
here) or when anonymous parties (probably attorneys) filed a complaint
against Scott Storey (click
here).
Nov. 21, 2007 - Colorado Attorney Deregulation Council rejects request
to investigate report of former judge and attorney may have knowingly used their
position to adversely possess a neighbor's land.
Big Surprise (Not) - Aside from the fact that this fact
situation "smells," the Rocky Mountain News (RMN) report claims that the
OARC couldn't consider a complaint against . . . [the]. . . former judge .
. .[because] issues with his conduct must be taken up with the state's
Commission on Judicial Discipline." >>
full article text >> However, in this
recent RMN article (concerning Colorado's
Commission for the Abolition of Judicial Discipline), it was reported
that, "[I]n 41 years, the commission has never recommended to the state Supreme
Court that a judge be removed because of misconduct. Instead, judges often
choose to retire or resign when there's an investigation pending against them.
Once judges leave, the commission loses its power to discipline them, and the
record of their misconduct remains private." So which is it? (Easy answer:
Lawyers protecting lawyers and no one's protecting the public).
Oct. 16, 2007 - OARC determines that attorney, who induces her daughter to notarize her attorney fee
affidavits and other legal documents, does not violate the Rules of Professional Conduct, even `though it
violates the Notarial Code of Conduct and even `though it would result in revocation of daughter's notarial
commission by Secretary of State.
Despite its title, this article is actually about
Colorado's attorney regulation counsel. The article was
originally found on John Andrews' site (here)
but, based on the writing style, it appears that this
was written by our fellow blogger at The Colorado Index
Oct. 5, 2007 - The hush-hush world
of attorney-attorney privilege
In this short article, Alan Prendergast ( The
Westword) observes:
The fact is that the state's attorney discipline process is shrouded in more mystery
than a Dionysian cult. Of the 5,000 complaints the ARC receives each year, less than
10 percent are considered worthy of actual investigation, and only a small fraction
of those cases lead to a public hearing . . . The rest are settled behind closed
doors because — well, because lawyers like it that way.
Oct. 5, 2007 - OARC dismisses complaint accusing Arapahoe County District Attorney, Carol Chambers, of
misconduct over an alleged threatening e-mail
Gleason's indictment of Chambers, however, was unmistakable. "We don't clear people of
misconduct," Gleason said. "We decide whether we can prove or not prove a case, and we have an
extremely high burden of proof.">> full
article text >>
Sep. 25, 2007 - Attorney Deregulation Council Now Claims Desire to Eliminate Agency's Secrecy
In this
Sept. 16th Denver Post feature, the OARC's John Gleason claims, "It's time
we eliminate the secrecy around our system." Perhaps, Gleason is preparing to
run for public office in the near future?
Aug. 19, 2007 - Some Commentary Regarding the New Rules of Professional Conduct
The Colorado Supreme Court has approved
substantial amendments to the Colorado Rules of Professional Conduct,
which will result in the repeal of the current rules and reenactment of
the newly-approved rules. These new rules will
took effect on January 1, 2008.
We provided the commentary regarding the new Rules from The Colorado
Lawyer to our fellow blogger over at The
Colorado Index, who reviewed the article and had this to say:
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[The new Rules] appear[] to weaken protections that the public
supposedly has now. It does allow judges at their discretion
to allow lawsuits against attorneys for breaking the rules,
something the current rules prohibit. When one considers the
effort we went through to get an attorney disciplined, and the level
of resistance we met, this provision is simply unethical slight of
hand. No judge will ever allow such a lawsuit and the folks
writing that section know that. Judges protect lawyers,
lawyers protect judges, and no one protects the public. |
Cut-and-pasted, hereinbelow, is the analysis (or propaganda, depending
on your viewpoint) of
Marcy Glenn, which analysis was published in
The Colorado Lawyer. Note that, in addition to the
accreditations given to the author, she is also the chairwoman of the
federal court's little known Committee on Conduct, the body responsible for
processing ethical complaints against attorneys admitted to the federal bar.
Here is an example of a
complaint and the
Committee's
response --pop quiz: Find how many issues are raised in the complaint,
including those cited by case law. Then find how many issue[s] are
addressed and disposed of with the Committee's decision. Note also the
length of time between the complaint filing date and the date of a decision.
, adopted April 12, 2007, eff. Jan. 1, 2008
How Accountable is the Civil Justice
System? - statistical summary prepared by H.A.L.T.
Feb. 15, 2007 - Gleason seeks to amend rules to formalize secrecy of OARC meetings
According to the Attorney Regulation Advisory Committee meeting minutes:
[T]he Attorney Regulation Committee wants to memorialize a long standing practice by adding another sentence
to Item 6. The second sentence in Item 6 would state, “Neither respondents, nor their counsel, may attend
meetings during which the Committee considers reports of investigations or requests for diversions”. Mr.
Gleason stated that the rationale behind this requested modification was that an individual who was told
that he could not attend the meeting wanted to know where that restriction could be found in writing.
Several committee members stated that allowing respondents or their counsel to attend this meeting would
change the nature of the proceedings. They expressed concern that opening up these meetings would turn
what is now a more judicial type of deliberation into a more adversarial process. There also was concern
that opening up the proceedings could lead to unintended consequences in other areas of the process as well
unduly lengthening the meeting. There was general consensus that for all the reasons detailed above the
current practice was appropriate but that it should be set out in writing.
Feb. 2007 article:
Attorney Discipline and Disability Process and Procedure - Part I
By Alec Rothrock; appearing in Vol. 36, No. 2 of The Colorado
Lawyer . (Click
here). Rothrock explains that, "The primary purpose for disciplining lawyers it to "protect the
public, not to punish the offending lawyer." (citing In re Cardwell, 50 P.3d 897, 904 (Colo. 2002)).
The article provides an overview of the Colorado attorney discipline system, including the relevant governing
bodies, the intake process, settlements, purported investigations, and formal proceedings. Click
here for an email from John "Jack" Tanner,
CBA ethics committee member, commenting on what Alec Rothrock really believes about Colorado's attorney regulation
system. Ben Aisenberg, former CBA president, agrees --see his email
here. Note: the inclusion of the two (2)
foregoing emails is not intended to constitute any waiver of attorney-client privilege that exists between the
attorneys and the recipient of the electronic mail. Both memoranda are reproduced herein with the express
permission of the recipient, subject to the aforesaid limitation and reservation of privilege.
Jan. 22, 2007 "Are We Tough Enough: Colorado Gets Praise, but a D-Minus, Too"
By Jennifer Clifford; appearing in Colorado Law Week. This article summarizes the numerous points of contention and
few points of agreement between HALT's analysis of the OARC and John Gleason's misrepresentations of his agency's
agenda and performance. KnowYourCOURTS.com opines that HALT's sparing praise of Colorado's OARC is, itself,
misplaced and overly charitable. >> full article text >>
2006 Lawyer Discipline Report Card
. . . issued by HALT.org, a legal reform group, rating Colorado second in the nation (apparently on a bell
curve), and noting that Colorado, "failed to investigate more than 86 percent of the complaints received against
lawyers, according to the American Bar Association's latest figures." Halt produced the 2006 Lawyer
Discipline Report Card series to assess whether states have taken any meaningful action to improve the lawyer
discipline system since their last Report Card in 2002. "Unfortunately, few states showed any improvement, and
many states' systems actually saw their grades decline! In state after state, the attorney discipline system not
only fails consumers, but ultimately undermines the integrity of the legal profession," explains HALT
Associate Counsel Suzanne Blonder. "We hope this wake-up call will spur more disciplinary officials to join us in
working for meaningful reforms." Click here.
Apr. 2006 Colorado Attorney
Regulation self-appraisal
By Eileen Kiernan-Johnson (counsel to Chief Justice Mullarkey and Justices Bender and Coates, both on the Attorney
Regulation Committee.
Louise Culberson-Smith was responsible for implementing a phone
intake center in 1999 to field calls and to "Concentrate
the system's resources on [only] the most serious
instances of misconduct." "[T]he improvements that
have been made over the last eight years have resulted
in a system that aims to be more fair to
attorneys." Under this paradigm, "[t]he
intake attorney is [now] authorized immediately to
dismiss the matter. . . The changes to the system . .
allow the Office of Attorney Regulation Counsel to
dismiss more cases at any early stage, such as by
granting intake and trial attorneys the authority to
dismiss cases, are designed to dispose of unfounded
complaints and minor violations quickly. . . Perhaps the
most significant benefit of the central intake [phone]
system's quick determination . . .is the psychological
and emotional impact on the aggrieved attorney.
Attorneys against, whom complaints are lodged often find
the investigative period immensely stressful, as their
reputations and livelihoods hang in the balance during
the pendency of the investigation process." >> full article text >>
(compiled from the American Bar Association's S.o.L.D. Web site).
Mar. 2006 - "State Bar programs aim to . . . Smooth Ruffled Feathers, Reduce Formal Complaints"
John Gleason aggrandizes the call-center developed by Louise Culberson-Smith: "Under the old system, somebody
files a complaint with a form and eventually someone gets around to looking at it . . . When someone has a complaint about
a lawyer, it's typically about a failure to communicate. And, what do we do? We fail to communicate."
>> full article text >>. Take a look at
the grievance page and do a search for the phrase, "No
Response." (Apparently, Gleason hasn't yet rectified the failure-to-communicate problem).
May 10, 2005 Glenwood Springs Post
Article, Supreme Court says attorneys must be honest
The section on the rules of misconduct lists multiple ways an attorney can violate the code. "It is professional
misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation," rule 8.3
states. John Gleason noted allegations of dishonesty are always taken seriously:
"There are rules
regarding honesty and the way you deal with the public
or anyone. Lawyers have to be honest 100 percent
of the time . . . If there are issues of honesty, we
investigate those. . . a lawyer's duty of honesty,
those are all of the kinds of cases that we investigate.
. . If someone has a concern about any lawyer, all
they have to do is call this office and we'd be
delighted to conduct an investigation." >> full article text >>
Vincent Carroll characterizes a report by John Gleason as a "whitewash."
Nov. 6, 2002 Denver Post article: Attorney regulators dispute poor grade
According to an ABA year-2000 survey, 4,507 complaints were filed in Colorado, but only 432
investigations were initiated. "The problem in Colorado is that is has one of the worst
investigation rates in the country --it looks into less than 10 percent of the grievances coming in the
door," said HALT, a Washington-based legal reform group. John Gleason, who heads Colorado's Office of
Attorney Regulation, disagreed, saying that Colorado should rank first: "Unfortunately, they don't understand
the nature of the Colorado program," said Gleason, who was "incensed at the claim that Colorado
investigates only a small number of claims." "We never blow them
off," Gleason said. >> full article
text >> "We never say we are not going to look into your
case."
September 1999 Denver Bar Assoc. article, The Attorney Regulation System
By Diane Hartman. John Gleason explains
that he wants attorneys to no longer fear the Attorney
Regulation Counsel: "I can't emphasize it
enough--we're truly trying to help attorneys . . . The
overwhelming majority of complaints result in dismissal
and no discipline--probably 80 percent of the 5,000
calls we get each year. Every person in this office is
committed to the new attorney discipline system and to
helping attorneys stay out of trouble. That's not to say
that an attorney engaging in serious misconduct isn't in
trouble. But most problems are minor and we can correct
them quickly. Our goal is not to have the attorneys
hanging, not knowing what's going to happen. We
usually [dismiss] things within days. "
>> full article text >>.
Protocol for Complaints and Concerns Filed with the Attorney Regulation Advisory Committee
, approved by the Colorado Supreme Court, en banc, May 27, 2004.
Duty of Attorney - Adverse Parties (
abstract from 3 Modern Tort Law: Liability and Litigation
(2d ed.) - § 26:11)
Lawyer Liability to Non-Clients: Realizing the Risk,
by William B. Dunn
next
How the grievance process actually works
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