Attorney Discipline and Disability Process and Procedure - Part I - February 2007 - Professional Conduct and Legal Ethics
| Publication year | 2007 |
| Pages | 23 |
2007, February, Pg. 23. Attorney Discipline and Disability Process and Procedure - Part I - February 2007 - Professional Conduct and Legal Ethics
February 2007
Vol. 36, No. 2 [Page 23]
Professional Conduct and Legal Ethics
Attorney Discipline and Disability Process and Procedure - Part I
by Alec Rothrock
Professional Conduct and Legal Ethics articles are sponsored by the CBA Ethics Committee.
Article Editor:
Susan Bernhardt, Denver, of Netzorg, McKeever, Koclanes & Bernhardt LLP - (303) 864-1000, sbernhardt@ nmkb.com
Alec Rothrock, Englewood, is a shareholder in the law firm of Burns, Figa & Will, P.C., and a former Chair of the CBA Ethics Committee - (303) 796-2626, arothrock@bfw-law.com.
The primary purpose for disciplining lawyers is to "protect the public, not to punish the offending lawyer."(fn1) This two-part article discusses the procedural rules and standards applicable in attorney discipline and disability proceedings in Colorado, primarily the Colorado Supreme Court's Rules Governing Discipline and Disability, C.R.C.P. 251.1 et seq. Part I provides an overview of the Colorado attorney disciplinary system, including a discussion of the relevant governing bodies, the intake process, diversion, investigations, and proceedings. Part II, which will be published in the March 2007 issue, will discuss summary adjudications, options for avoiding disciplinary proceedings, disability inactive status, and reinstatement and readmission.
This article does not cover nondisciplinary proceedings for suspension for failure to: (1) pay child support;(fn2) (2) pay annual registration fees;(fn3) or (3) maintain compliance with continuing legal education requirements.(fn4) It also does not attempt to address the myriad substantive disciplinary issues that all lawyers face under the Colorado Rules of Professional Conduct, except as they arise from noncompliance with the procedural rules. Finally, this article does not discuss disciplinary procedures in other jurisdictions, such as the Tenth Circuit and the U.S. District Court for the District of Colorado.(fn5)
The Players
The following is a discussion of the various participants in the Colorado attorney regulation process. Each plays an important role in the system the court adopted in 1999.
The Colorado Supreme Court
"The Colorado Supreme Court, as part of its inherent and plenary powers, has exclusive jurisdiction over attorneys and the authority to regulate, govern, and supervise the practice of law in Colorado to protect the public."(fn6) Unlike other professions, which are regulated by legislative acts and administrative rules implementing them, the court's regulation of the practice of law is an important element of its status as an independent branch of state government.
The Supreme Court Advisory Committee
The Supreme Court Advisory Committee (Advisory Committee) is a permanent committee of the court; its general responsibility is to oversee the disciplinary system on behalf of the court. The Advisory Committee handles concerns or complaints about the disciplinary system as a whole; it is not the appropriate body to which to address concerns or complaints about individual cases.
The Advisory Committee comprises:
the Chair and Vice-Chair of the Attorney Regulation Committee (discussed below)
two Justices of the Court (currently, Justices Nathan B. Coats and Michael L. Bender)
eight members of the Bar
one member of the public
one representative of the CBA Ethics Committee
one "Respondent Bar" member of the CBA Attorney Regulation Policy Committee
one member of the hearing board pool (discussed below).
The Advisory Committee supervises a three-person "management committee" to coordinate "administrative matters within all programs of the attorney regulation system."(fn7) The Advisory Committee meets every two to three months, as necessary, in open meetings in the court's conference room.
The Attorney Regulation Committee
The Attorney Regulation Committee is a permanent committee of the court. It has nine members (six lawyers and three members of the public), who are appointed by the court. Its principal function is to consider and act on requests by the Office of Attorney Regulation Counsel (OARC) to file a formal complaint against a lawyer or to "divert" disciplinary matters to the "alternatives to discipline" program.(fn8) As discussed below, the Attorney Regulation Committee is not limited to approving or disapproving the action recommended by the OARC. The Committee also considers conditional admissions of misconduct in which the stipulated sanction is private admonition(fn9) and reviews, in quasi-appellate fashion, matters dismissed by the OARC after investigation.(fn10) The Attorney Regulation Committee is an important check on the exercise of the OARC's discretion.
The Office of Attorney Regulation Counsel
The OARC serves at the pleasure of the court and is subject to its authority.(fn11) Under the Rules Governing Discipline and Disability, the court exercises its police function through the Regulation Counsel, who serves as the head of the OARC. Unless otherwise specified, Regulation Counsel and the OARC are referred to interchangeably as "the OARC."
The principal function of the OARC is to field, investigate, and prosecute, as appropriate, disciplinary complaints against Colorado lawyers.(fn12) The OARC also handles the following:
1) proceedings involving the transfer of lawyers to disability inactive status;(fn13)
2) claims with the Attorneys' Fund for Client Protection, which exists to mitigate losses caused by the dishonest conduct of lawyers arising from a client-lawyer relationship;(fn14)
3) unauthorized practice of law proceedings;(fn15)
4) hearings on the fitness of a Bar applicant for admission to the Colorado Bar;(fn16) and
5) proceedings against magistrates for violation of the Colorado Code of Judicial Conduct.(fn17)
The OARC also acts as special counsel to the Commission on Judicial Discipline.(fn18)
The Office of the Presiding Disciplinary Judge
The Presiding Disciplinary Judge (PDJ) serves at the pleasure of the court.(fn19) The PDJ "presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings."(fn20) The PDJ also decides whether to approve "conditional admissions of misconduct" between the OARC and respondent lawyers when the stipulated form of discipline is disbarment, suspension, or public censure, or a range of discipline that includes any of these forms of discipline.(fn21) The PDJ reviews proposed diversion agreements that the OARC and a respondent lawyer reach after the OARC has filed a formal complaint against the respondent lawyer.(fn22)
The PDJ presides over: (1) contempt proceedings for violation of orders relating to suspended and disbarred lawyers and lawyers on disability inactive status;(fn23) (2) disability inactive proceedings;(fn24) and (3) proceedings for suspension of a lawyer's license for nonpayment of child support, which are not considered disciplinary in nature.(fn25) The PDJ also serves as a hearing master in unauthorized practice of law proceedings.(fn26)
Disciplinary Hearing Boards
Three-member disciplinary hearing boards adjudicate formal disciplinary cases.(fn27) The three members consist of the PDJ and two people selected randomly from a pool of hearing board members drawn from the Bar and the public, who are appointed by the court to serve two-year terms.(fn28) If the PDJ has recused himself or herself in the case, a presiding officer is selected at random from the pool of hearing board members.(fn29) At least one of the hearing board members in addition to the PDJ must be a lawyer.(fn30) Hearing board members are not compensated for their services.
Lawyers Licensed to Practice Law in Colorado
C.R.C.P. 251.1(a) and (b) state:
All members of the Bar of Colorado, having taken an oath to support the Constitution and laws of this state and of the United States, are charged with obedience to those laws at all times.(fn31) Every lawyer licensed to practice law in the State of Colorado is subject to the disciplinary and disability jurisdiction of the Supreme Court in all matters relating to the practice of law.(fn32)
Lawyers licensed to practice law in Colorado fund the attorney regulation system through annual registration fees.
The Pre-Investigation or "Central Intake" Phase
The "central intake" or pre-investigation phase of attorney discipline proceedings begins when a request for investigation is filed. The OARC then conducts an initial review of the allegations against the attorney and determines how to proceed in the matter.
Request for Investigation
Attorney discipline proceedings commence with the filing of a "request for investigation," formerly called a "grievance,"(fn33) with the OARC. Under the Rules Governing Discipline and Disciplinary Proceedings, C.R.C.P. Chapter 20, a request for investigation is the initial accusation of ethical misconduct. It may be made by "any person."(fn34) There is no requirement that the "complaining witness" have "standing" to file a request for investigation. Colo. RPC 8.3 sets forth a lawyer's duty to report certain misconduct of other lawyers.(fn35) That rule does not require lawyers to report their own misconduct,(fn36) unless it results in a...
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