Tcl - Attorney Discipline and Disability Process and Procedure - Part Ii - March 2007 - Professional Conduct and Legal Ethics

• Publication year: 2007
• Pages: 41

36 Colo.Law. 41 Colorado Lawyer 2007.

2007, March, Pg. 41. TCL - Attorney Discipline and Disability Process and Procedure - Part II - March 2007 - Professional Conduct and Legal Ethics

The Colorado Lawyer
March 2007
Vol. 36, No. 3 [Page 41]

Articles
Professional Conduct and Legal Ethics
Attorney Discipline and Disability Process and Procedure - Part II
by Alec Rothrock

Professional Conduct and Legal Ethics articles are sponsored by the CBA Ethics Committee. Articles published here do not necessarily reflect the views of the Committee and may be those only of the authors.

Article Editor:

Susan Bernhardt, Denver, of Netzorg, McKeever, Koclanes & Bernhardt LLP - (303) 864-1000, sbernhardt@ nmkb.com

About the Author:

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.

Part II of this article continues the overview of the Colorado attorney disciplinary system. It discusses summary proceedings, options for avoiding disciplinary proceedings disability inactive status, and reinstatement and readmission. A version of this article appeared in Essays on Legal Ethics and Professional Conduct and Lawyers' Professional Liability in Colorado: Preventing Legal Malpractice & Disciplinary Actions, published by CBA-CLE.

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 of this article, which was published in the February 2007 issue, provided 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 discusses summary adjudications, options for avoiding disciplinary proceedings, disability inactive status, and reinstatement and readmission.

Summary Adjudications

There are two circumstances in which disciplinary issues are adjudicated summarily. These are when a respondent lawyer defaults in the disciplinary process and when there is reason to believe that the respondent lawyer has caused immediate and substantial harm warranting immediate suspension.

Default

If a respondent lawyer fails to answer a complaint and a default is entered, the complaint is "deemed admitted" unless the respondent lawyer shows that the failure to answer was the result of "mistake, inadvertence, surprise, or excusable neglect."(fn1) On the theory that C.R.C.P. 251.5(d) imposes an obligation on lawyers to cooperate in disciplinary proceedings, the court has warned that defaults are "not subject to being set aside easily."(fn2)

Respondent lawyers who default are not entitled to have a three-member hearing board determine the appropriate sanction, unless they request a hearing within thirty days after notice of the order of default. Frequently, respondent lawyers who defaulted once may default a second time by not appearing at the sanctions hearing, which results in a waste of time for hearing board members, some of whom may have traveled to Denver from elsewhere in the state.

If the respondent lawyer does not request a hearing - and barring the unlikely event that the Office of Attorney Regulation Counsel (OARC) does - the Presiding Disciplinary Judge (PDJ) will hold a hearing to determine the appropriate sanction.(fn3) The PDJ may enter an order imposing any authorized form of discipline, namely private admonition, public censure, suspension, or disbarment.(fn4) The PDJ also may order diversion, subject to the respondent lawyer's agreement. In addition, the PDJ may order the respondent lawyer to make restitution or a refund(fn5) and to pay the costs of a disciplinary proceeding.(fn6)

Immediate Suspension

Petitions for immediate suspension of a respondentARC, supported by an affidavit. The affidavit must set forth "sufficient facts to give rise to reasonable cause that the alleged conduct has in fact occurred."(fn7) Facts supporting immediate suspension consist of those showing that a lawyer is "causing or has caused immediate and substantial public or private harm."(fn8) This phrase includes three discrete types of misconduct: the lawyer has (1) "been convicted of a serious crime as defined by C.R.C.P. 251.20(e)"; (2) "converted property or funds"; or (3) "engaged in conduct which poses an immediate threat to the effective administration of justice."(fn9) Conversion of client funds, whether by negligence or outright theft,(fn10) is the most common basis for immediate suspension.

Under C.R.C.P. 251.8(a), only the court may enter an order of immediate suspension. However, two aspects of the procedure for obtaining an order of immediate suspension may be somewhat confusing.

First, under C.R.C.P. 251.8(b)(1), the Attorney Regulation Committee, in addition to the OARC, has the authority to file a petition seeking an order of immediate suspension. How, when, and why the Attorney Regulation Committee would do so is unclear.

Second, C.R.C.P. 251.8(b)(1) states that a petition for immediate suspension is to be filed with the PDJ. This, indeed, is the usual procedure.

Conviction of a serious crime: However, when the basis of a petition for immediate suspension is a lawyer's conviction of a serious crime, the OARC bypasses the PDJ altogether and files the petition directly with the court. This is because C.R.C.P. 251.20(d) requires the OARC to "report" to the court any attorney convicted of a serious crime. A "serious crime" includes any felony and

[a]ny lesser crime a necessary element of which . . . involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful extortion, misappropriation, or theft; or an attempt or conspiracy to commit such crime; or solicitation of another to commit such crime.(fn11)

If the PDJ - or, in the case of a lawyer convicted of a serious crime, the court - agrees that the petition is sufficient, the PDJ or the court will issue an order to the respondent lawyer to "show cause why the attorney should not be immediately suspended."(fn12) The order is returnable within ten days.(fn13) If the respondent lawyer does not respond in writing within ten days, or responds by admitting the allegations, the PDJ is required to submit a report to the court, setting forth findings of fact and a recommendation. If the respondent lawyer files a response within ten days and requests a hearing, the PDJ must hold a hearing within a second ten-day period. In this situation, the PDJ submits the hearing transcript along with the report.

Based on the report and hearing transcript (if any), the court will enter an order of immediate suspension or dissolve the order to show cause and deny the petition. If the court orders immediate suspension, the respondent lawyer has fifteen days from the order of suspension to notify his or her law firm, or the firm he or she was with at the time of the misconduct, of the order.(fn14) The respondent lawyer also must comply with the requirements of C.R.C.P. 251.28, which are applicable to lawyers who are disbarred or suspended from the practice of law without probation. These requirements are set forth below.

Accelerated disposition: The respondent lawyer has a right - exercised by notice to the OARC, which then notifies the PDJ - to accelerated disposition of the allegations forming the basis for the immediate suspension. These allegations should be included in the OARC's formal complaint pursuant to C.R.C.P. 251.14, which may include other charges and may not be filed until after the immediate suspension proceedings have concluded. In a 1996 case,(fn15) the court upheld this procedure against a due process challenge.

Several lawyers who ultimately were suspended or disbarred in an underlying disciplinary case have sought to have the commencement date of the suspension or disbarment made retroactively effective to the date of the order of immediate suspension.(fn16) Retroactive discipline in this context appears to be appropriate only if (1) there has been an unreasonable delay in the disciplinary proceedings; and (2) there is not a direct relation between the misconduct supporting the immediate suspension and the practice of law.(fn17) No one yet seems to have succeeded with this argument.

Options to Avoid Disciplinary Proceedings

The options available to avoid disciplinary proceedings are few and limited. They are described below.

Offers to Resign

Some Colorado lawyers facing the disciplinary process try to resign from the practice of law to avoid disciplinary proceedings. There was a time when resignation to avoid disciplinary charges was possible under limited circumstances,(fn18) and in some states it is routine and codified in procedure.(fn19) However, in Colorado, C.R.C.P. 227(A)(8) prohibits a lawyer from resigning if there are disciplinary or disability proceedings pending against that lawyer.(fn20)

Collateral Attack in Federal Court

Similarly, suing in federal court to enjoin a disciplinary proceeding or to vacate a final adjudication in a disciplinary case on constitutional grounds is not a viable option. In a 1982 U.S. Supreme Court case, Middlesex County Ethics Committee v. Garden State Bar Association,(fn21) a New Jersey attorney sued the New Jersey attorney discipline authorities to enjoin disciplinary proceedings brought against him. The U.S. Supreme Court held based on the abstention principles set forth in its 1971 decision in Younger v. Harris,(fn22) that federal courts should abstain...