Vol. 28, No. 10
The Operating Procedures of the Appellate Discipline Commission
by James P. Hollaway
The Appellate Discipline Commission ("ADC") is a newly created agency of the Colorado Supreme Court (C.R.C.P. 251.24). As such, it constitutes one of several entities or offices in the revamped attorney regulation network. Composed of five lawyers and two public members, the ADC hears appeals from decisions made by the Presiding Disciplinary Judge ("PDJ") and Hearing Boards. Its decisions might then be appealed to the Supreme Court. This year’s Chair is John M. Lebsack. Beverly A. Fulton is Vice-Chair, and the remaining members of the ADC include Jeffrey A. Chase, Michael H. Gendel, M.D., Elissa S. Guralnick, Ph.D., Denise S. Maes, and Patricia W. Robb. The ADC’s counsel is James P. Hollaway; Mary McGuire is the clerk.
This article is intended to highlight the operating procedures of the ADC, which have now been approved by the Colorado Supreme Court. Before turning to the procedures themselves, however, it might be useful for the reader to keep in mind the new standard of review that the court has set forth in the rules governing the disciplinary process.
Standard of Review
The ADC must affirm the decision of the Presiding Disciplinary Judge or the Hearing Board, unless it determines that, based on the record, the findings of fact are clearly erroneous or the form of discipline imposed: (1) bears no relation to the conduct; (2) is manifestly excessive or insufficient in relation to the needs of the public; or (3) is otherwise unreasonable. C.R.C.P. 251.26(a).
To commence an appeal, an original and five copies must be filed with the ADC, with an advisory copy served on the PDJ, within twenty days of the date the PDJ mails the decision to the parties. C.R.C.P. 251.26(e). A notice of appeal may be filed by fax but not by e-mail, provided that the original and five copies are subsequently filed. If a notice of appeal is timely filed, the other party also may file a notice within fourteen days of the date when the first notice was filed. The running of these times is terminated if a party files certain motions with the PDJ. C.R.C.P. 251.26(f). The times run anew after the judge rules. While the motions are pending, all proceedings in the ADC are stayed.
A notice of appeal that is postmarked on or before the notice of appeal must otherwise be "filed" with the clerk and will be regarded as timely, no matter when, within reason, it is actually received in the ADC’s office. The same is true for motions and briefs.
Motions that do not exceed ten pages in length also may be filed by fax, but not by e-mail. An original and three copies must be filed in due course as well. C.R.C.P. 251.32(c). With regard to briefs, an original and eight copies must be filed. Briefs may not be filed by fax.
Routine procedural motions, listed below, ordinarily shall be handled by Counsel or, in his absence, by the Chair or Vice-Chair, whichever of the two is readily available.
Substantive motions, listed below, ordinarily shall be handled by the entire Commission, preferably at a regularly scheduled meeting. When the entire Commission acts on a motion, those members who would grant or deny the motion may be shown in the order, as the members desire. However, some substantive motions, listed below, ordinarily shall be handled by the Chair or Vice-Chair.
Record "check-out" policy: All parties, including pro se parties, and their counsel of record, may review the record, including exhibits, at the ADC’s office, as may members of the public. Any party whose brief is due may request that the pleadings and the transcript or a portion thereof be mailed or made available to them. Parties or persons who request copies must pay in advance the cost of preparing and mailing the copies.
Oral argument must be requested in a separate document or it may be ordered at the discretion of the Commission. C.A.R. 34(b). If a party asks for oral argument in a brief but forgets to file a separate request, the clerk or Counsel will telephone the party to remind him or her of the need for a separate request. Oral argument will be recorded on audiotape. If there is no oral argument, the case will be determined on the briefs. There will be no oral argument on motions.
The following lists of motions, showing who will act on various motions, are not all-inclusive, and the Commission may amend them from time to time.
Motions Acted on by Counsel
a. Motion to enlarge time to file the record. C.R.C.P. 251.26 (j)(4).
b. Motion to enlarge time to file Opening Brief, Answer Brief, or Reply Brief. Orders granting such a motion usually will allow no more than thirty, twenty, and fourteen days, respectively. Orders granting a second request may allow no more than fifteen days, with no further extensions, absent a showing of good cause. A second request to extend the time to file a Reply Brief ordinarily will be denied, provided the order granting the first request informs the movant that no further extensions will be granted. Questions regarding good cause will be resolved by the Chair or Vice-Chair. Note: When a party fails to file a brief on time, the clerk or Counsel will contact the delinquent party by telephone to remind him or her of what is due and when.
c. Motion to enlarge time, as above, that exceeds guidelines.
d. Motion to exceed page limitations.
e. Routine procedural motions: usually will be acted on without waiting for the time to respond to pass.
f. Stipulated motions, including stipulated motions to dismiss and motions to dismiss to which no objection has been filed.
g. Motion to supplement the record: ruled on in consultation with the Chair or Vice-Chair.
h. Motion to supplement the briefs.
i. Motion for withdrawal of counsel; will be "trailed" for fifteen days and then granted if the requirements of C.A.R. 5 are met. If appointed counsel is seeking to withdraw, Counsel will remand the matter to the PDJ.
j. Motion to continue oral argument: will be granted if timely filed and good cause has been shown.
Motions Acted on by the Chair or Vice-Chair
a. Motion for an extension of time to file a notice of appeal: if the motion is filed before the time for filing a notice of appeal has run. Note: If the motion is filed after the time has run, the ADC must rule on it. C.R.C.P. 251.26(f) provides in part that such a motion may be granted for not more than thirty days from the expiration of the time otherwise prescribed in the rule on a showing of excusable neglect.
b. Motion to reconsider rulings made by Counsel.
c. Motion to strike the record or briefs.
d. Motion to expedite the appeal.
e. Contested substantive motions.
Motions Acted on by the Appellate Discipline Commission as a Whole
a. Motion for stay. C.R.C.P. 251.26(g) provides in part that application for stay ordinarily must be made first to the Hearing Board. The rule provides that the application should be granted except when immediate suspension has been ordered or when no conditions of probation and supervision while the appeal is pending will protect the public.
Such a motion may be filed with the ADC, provided the requirements of C.R.C.P. 251.26(g) are met.
Normally, the entire Commission must consider the motion for stay, but, in exceptional cases where such procedure would be impractical due to the requirements of time, the application or motion for stay may be made to and considered by the Chair or, in the Chair’s absence, by any available member of the ADC. C.R.C.P. 251.26(g).
b. Motion to dismiss the appeal.
c. Motion to remand to the Hearing Board or the Presiding Disciplinary Judge.
d. Motion for an extension of time to file a notice of appeal, if the motion is filed after the time for filing a notice of appeal has run. Moreover, a notice of filing such a motion must be given to the Regulation Counsel and the PDJ. C.R.C.P. 251.26(f).
e. Motion to reconsider ruling made by the Chair or Vice-Chair.
f. Motion for sanctions or for attorney fees.
Steps in the Appeal of a Case to the Commission
1. A notice of appeal must be filed by the appellant with the ADC, with a copy to the PDJ. The appellant must file the notice of appeal within twenty days of the date the PDJ mails his decision to the parties. C.R.C.P. 251.26(f). The clerk will enter the case on the ADC’s docket. C.R.C.P. 251.26(k). If a party files other documents related to a case before filing the notice of appeal, the clerk will enter the case on the docket as well. The clerk will send to the parties the ADC’s Notice of Filing Notice of Appeal and a copy of the ADC’s operating procedures with bio-sketches. The clerk also will attach the ADC’s form regarding the Statement or Designation of Record to the Notice of Filing Notice of Appeal. The record on appeal is due sixty days from the date the notice of appeal is filed. C.R.C.P. 251.26(j).
a. The appellee also may file a notice of appeal. The appellee must file his or her notice of appeal within fourteen days of the date on which the appellant filed a notice of appeal. C.R.C.P. 251.26(f).
2. The appellant must file a statement or designation of record with the ADC within ten days of filing a notice of appeal. The appellant must send a copy to the court reporter. C.R.C.P. 251.26(i).
a. The appellee may file a designation of record within ten days after service of the appellant’s statement or designation. The appellee must send a copy to the court reporter. C.R.C.P. 251.26(i).
3. Transcript: Fourteen days after being served with a party’s statement or designation of record, the court reporter must provide estimates to the party or party’s counsel. C.R.C.P. 251.26(i). The party ordering the transcript must deposit funds with the reporter to pay the estimated cost of the transcript within twenty days after receiving the estimate.
4. Record: The record on appeal generally is due in the ADC’s office within sixty days after the appellant files the notice of appeal. C.R.C.P. 251.26(j). The clerk will send to the parties the ADC’s Notice of Filing Record and Briefing Schedule.
5. Briefs: The appellant’s brief generally must be postmarked or filed within forty days from the date of filing the record. The appellee’s brief generally must be postmarked or filed within thirty days from the date of service of the appellant’s brief. The appellant may file a reply brief generally within fourteen days after service of the appellee’s brief. C.R.C.P. 251.26(l) and C.A.R. 31(a).
In cases involving cross-appeals, the cross-appellant’s opening-answer brief must be postmarked or filed within thirty days after service of the appellant’s brief. The appellant’s answer-reply brief must be postmarked or filed within thirty days after service of the cross-appellant’s opening-answer brief. The cross-appellant may file and serve a reply brief within fourteen days after service of the appellant’s answer-reply brief.
6. Oral Argument: Oral argument must be requested in a separate document. C.R.C.P. 251.26(l) and C.A.R. 34(b). If either party requests oral argument, the clerk will send to the parties the ADC’s Notice of Oral Argument. The date set for oral argument will depend on the ADC’s schedule and the size of its docket. Thirty days prior to oral argument, the clerk will send copies of the briefs to the commissioners.
Handling and Deciding Cases
Once the case is at issue, i.e., when all briefs have been filed, Counsel, after reviewing the briefs, sets the matter for oral argument. Counsel determines the length of time to be allotted to each party. Fifteen minutes per side will be the general rule, but exceptional cases may require more time.
Counsel or the clerk slots cases into the schedule for oral argument (no more than three in a morning, no more than three in an afternoon, and no more than three in one day). The clerk then sends Notice of Oral Argument to counsel of record. Generally, at least thirty days’ notice will be given to the parties. The clerk will prepare a schedule of cases to be heard at any particular session for the commissioners, parties, and other interested persons.
Thirty days prior to oral argument, the clerk sends copies of the briefs to the commissioners, together with a schedule of oral argument and a copy of the judge’s or hearing board’s opinion. Any commissioner may examine the record prior to oral argument by visiting the Commission’s office. If time constraints are an issue, then Counsel might prepare a draft of the ADC’s opinion prior to oral argument.
Oral argument is held. Thereafter, the commissioners convene to deliberate and vote preliminarily on the outcome of the case. Next, the Chair or the acting Chair assigns the case to a member of the Commission, who is in the majority, to write the opinion, with the assistance of Counsel. The clerk will keep a list of which cases the Chair has assigned to each member of the Commission. Commissioners will write their dissenting opinions, if any, after the majority opinion is drafted and circulated to the Commission.
The assigned commissioner prepares an opinion and circulates it by e-mail to the other commissioners. The clerk places the case on the agenda for the next meeting. Dissenting opinions are to be prepared for the next meeting as well if time permits. Commissioners may call each other to discuss the draft as it is being prepared or circulated. At a scheduled meeting, final opinions are reviewed, voted upon, and then issued by the staff.
Opinions will be prepared even when the Appellate Discipline Commission agrees completely with the Presiding Disciplinary Judge or the hearing board.
After the ADC reaches a decision, the clerk will send a copy the Commission’s opinion to the PDJ, the parties, and to the Clerk of the Supreme Court; and the clerk of the ADC will arrange for publication of the opinion.
The procedures of the ADC are, for the most part, established by rule or by the practices usually followed by the appellate courts of Colorado. However, it is anticipated that minor revisions will be made as experience dictates.
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