Articles / surveys regarding Colorado Attorney Discipline

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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.

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:

• 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"

• 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."

• 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."

• 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."

• 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."

• 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."

• 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."

• 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.

• Complaint.

• OARC acknowledgment.

• Response of respondent attorney, Madeline Wilson.

• Reply in support of Complaint.

• OARC decision.

October 9, 2007 - Ten Reasons Why Judicial Term Limits Don't Go Far Enough

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

October 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 >>

Sept. 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?

August 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:

[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.

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The New Colorado Rules of Professional Conduct: A Survey of the Most Important Changes by Marcy G. Glenn, Michael H. Berger

Colorado Rules of Professional Conduct, adopted April 12, 2007, eff. Jan. 1, 2008

 

How Accountable is the Civil Justice System? - statistical summary prepared by H.A.L.T.

 

2005 Results, Survey on Lawyer Discipline Systems (compiled from the American Bar Association's S.o.L.D. Web site).

article: 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 >>

February 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.

 

7/30/2006 Snapshot of Colorado Supreme Court's Attorney Regulation Counsel Home Page, stating that "Attorneys must meet high professional standards," and discussing, "Ethics and Discipline." 

 

American Bar Association Standards for Imposing Lawyer Sanctions, as amended February 1992

11/06/2002 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."

05/10/2005 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 >>

April 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 >>

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.

Article: State Bar programs aim to "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).

 

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

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.

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