Colorado's Attorney Regulation System: an Update - April 2006
| Publication year | 2006 |
| Pages | 25 |
| Citation | Vol. 35 No. 4 Pg. 25 |
2006, April, Pg. 25. Colorado's Attorney Regulation System: An Update - April 2006
April 2006
Vol. 35, No. 4 [Page 25]
by Eileen Kiernan-Johnson, Michael L. Bender, Nathan B. Coats
Eileen Kiernan-Johnson is Counsel to the Chief Justice, Colorado Supreme Court - (303) 861-1111, eileen.kiernan-johnson@judicial.state.co.us; Hon. Michael L. Bender is a Colorado Supreme Court Justice since 1997; Hon. Nathan B. Coats is a Colorado Supreme Court Justice since 2000.
In 1998, the Colorado Supreme Court overhauled Colorado's attorney regulation system in response to criticism from the public and the Bar, which viewed the old system as ineffective, unacceptably slow, and unresponsive to the needs of attorneys, their clients, and the public. When the newly reorganized system was instituted eight years ago, it set five primary goals, designed to offer increased protection to the public and additional assistance to and appropriate oversight of attorneys:
1. Make the system more efficient and responsive to the public and the Bar;
2. Concentrate the system's resources on the most serious instances of misconduct;
3. Rehabilitate rather than punish attorneys who have mental-health or substance-abuse problems and who commit minor ethical infractions;
4. Provide a measure of financial protection for defrauded clients; and
5. Develop a confidential counseling program.
As a result of the changes that were instituted, Colorado's Attorney Regulation System is beginning to realize some of the goals it set for itself, and many components of the system are now emulated by Colorado's sister jurisdictions. Indeed, the system as a whole is now widely recognized as among the most effective and efficient attorney discipline bodies in the nation. Mary Devlin, Regulation Counsel for the American Bar Association's ("ABA") Center for Professional Responsibility, writes:
[T]he ABA Standing Committee on Professional Discipline conducted a review of the Colorado lawyer regulation system. We are pleased to note that Colorado implemented major changes as a result of the ABA review. The changes resulted in a regulation system that better protects the public while at the same time serving the legal profession. Colorado is now a leader in lawyer regulation."(fn1)
Although some work remains to be done to realize fully all of the goals set for the system, the improvements that have been made over the last eight years have resulted in a system that aims to be more fair to attorneys and more responsive to the public than the old system.
This article describes the genesis and substance of some of the changes of the Colorado Attorney Regulation System, along with the impact of those changes.(fn2) Specifically, this article profiles modifications to the Attorney Regulation System, implementation of programs designed to rehabilitate attorneys, promotion of educational programs to help attorneys avoid misconduct, and institution of a fund to reimburse clients who have been financially victimized by their attorneys.
Background
In May 1997, the Colorado Supreme Court invited the ABA to assess Colorado's attorney discipline system and to make recommendations on how to improve the system. After the ABA's report was received in August 1997, the Court appointed an Attorney Regulation Planning Committee to study the ABA's report and make recommendations on how to implement the proposed changes. The Planning Committee comprised well-respected members of the Bar, members of the Colorado Attorney Grievance Committee, representatives from the respondent's Bar, members of the public, and members of the Colorado Supreme Court. The Planning Committee submitted its report to the Court in December 1997.(fn3) A public hearing was held in February 1998, after which a proposed set of rules were drafted and published. A public hearing was held in June 1998 inviting comments on the proposed rules. The Court adopted the rules, some of which became effective on July 1, 1998 and the remainder of which became effective on January 1, 1999.
Creation of a Central Intake System
One of the most significant changes to the Attorney Regulation System was the implementation of a central intake system that redirects most cases involving minor misconduct to programs outside the attorney regulation process. Under the old system, the process of lodging a complaint was protracted and cumbersome. Every complaint against an attorney had to be reduced to writing. The Office of Attorney Regulation Counsel would, in an average year, mail 5,500 complaint forms to individuals who stated that they wished to file a grievance; however, only approximately 1,500 written complaints in fact were ever returned and filed. Few written complaints relative to inquiries were submitted because the process for filing a complaint was drawn-out. In order to lodge a grievance, potential complainants had to request a written complaint form, wait for it to arrive by regular mail, negotiate the form's complexities, and mail back a completed form. Once the complaint was entered in the intake system, it took, on average, more than three months for the Office of Regulation Counsel to determine whether the matter should be dismissed or investigated further. Aggrieved complainants grew frustrated with the long lag time, while attorneys against whom complaints were made had to wait "below a sword of Damocles" as the initial investigation slowly unfolded. This laggardly process was viewed as unacceptable by the Bar, the public, and the Supreme Court.
To remedy these deficiencies, the Office of Attorney Regulation Counsel set up a new central intake system. This system lets aggrieved individuals call a hotline and discuss their complaints with an experienced attorney. Under Rule 251.9, this initial phone call to the hotline commences proceedings against the attorney. The intake attorney is authorized immediately to dismiss the matter, if it is clear that no misconduct has occurred; can offer the attorney a diversion program that is an alternative to discipline; or can docket the matter for further investigation.
The central intake team now receives approximately 4,000 complaint calls per year, fielding 3,929 calls in 2005 and 4,270 in 2004. The central intake team resolves the bulk of complaints at this stage, and it does so more quickly than it did in the past. In 2005, 92 percent of all complaint calls were resolved at the intake stage; in 2004, 89 percent of complaints were resolved. These complaints are resolved almost ten times more quickly than they were in 1998, when complaints spent thirteen weeks at the initial assessment stage compared to the 1.3 weeks they took in 2004 and 1.6 weeks in 2005.(fn4)
The Office of Attorney Regulation dismissed other de minimis violations at the intake stage, including "educational language" that suggests how the attorney could conform his or her conduct to the rules instead of sending the individuals at issue to diversion. In 2005, 139 complaints were dismissed with educational language, and in the period from October through December 2004, 47 complaints were resolved in this fashion.(fn5)
The changes to the system that allow the Office of Attorney Regulation Counsel to dismiss more cases at an 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 so that the system can turn its attention to more flagrant misconduct. As a result of these changes, the Attorney Regulation Committee ("Committee"), whose role is elucidated below, now reviews 45 percent fewer cases than under the old system, and the cases that it does review involve the most serious allegations of misconduct. Because cases involving insubstantial or no misconduct are resolved far more quickly than in the past, attorneys and complainants are provided earlier closure. Thus, cases requiring...
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