The Colorado Lawyer May 1999 Vol. 28, No. 5 [Page 23]

Features

1998 Annual Report of the Colorado Supreme Court Grievance Committee

This is the twenty-fifth and final annual report of the Grievance Committee. The Committee’s previous reports also have been published in The Colorado Lawyer. The reports published prior to 1990 offer details that are not repeated in this report.

The twenty-five (25) members of the Grievance Committee in 1998 included: Chair John M. Lebsack; Panel Vice-Chairs: J. D. Snodgrass, Marilyn J. David, and Laird T. Milburn; and members Beverly A. Fulton; Michael H. Gendel, M.D.; Donald W. Hoagland; Steven K. Jacobson; Helen C. Shreves; David W. Stark; Clair E. Villano; Deborah R. Adams; Bethiah B. Crane; Edwin S. Kahn; Bruce W. Sattler; Erika Schafer; Mickey W. Smith; David S. Wahl, M.D.; Henry C. Frey; Denise S. Maes; Robert M. Maes; Jeffrey L. Metzner, M.D.; Deena Raffe, Ph.D.; and Hal B. Warren.¹

To: The Chief Justice Of The Colorado Supreme Court

Introduction

This is the final report of the Grievance Committee. The first portion of the report covers matters which were filed and considered in the Office of the Disciplinary Counsel and, in some cases, acted upon by one of the three inquiry panels of the Grievance Committee in 1998. The latter portion covers matters which were presented to hearing boards, reviewed by one of the three hearing panels of the Grievance Committee, and acted upon by the court itself in 1998.

In 1998, the Colorado Supreme Court made extensive changes to the disciplinary system. While some changes took effect on July 1, 1998, the major systemic changes took effect on January 1, 1999. As a result, the roles the Grievance Committee played in the disciplinary system have now been assumed by an Attorney Regulation Committee and a Presiding Disciplinary Judge. The Court also created a new intermediate appellate entity known as the Appellate Discipline Commission, which began operation on January 1, 1999. To implement these changes, the Court made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The revisions to the system and the rules have been described previously in articles published in The Colorado Lawyer.² Hence, they will not be described again in this report.

By the end of 1998, the Grievance Committee had completed most of its work, with only a few cases remaining to be considered in early 1999. In fact, by the time this report reaches the Court, only two matters will remain to be forwarded to the Court for final action. Thereafter, transition to the new system will be complete.

1998 Docket of Inquiry Panels

In 1998, 1,472 grievances were filed with the Office of Disciplinary Counsel. During 1998, 326 grievances were docketed for investigation after the initial review. When the staff is not readily able to determine from a request for investigation whether misconduct might have occurred, a preliminary inquiry is made. Preliminary inquiries were made to lawyers in 496 of the grievances in 1998. After receiving the responses in those cases in which a preliminary inquiry was made, 153 additional grievances, or a total of 479, were docketed for investigation. During 1998, the Office of Disciplinary Counsel determined that 981 grievances did not warrant an investigation.³ Further, two cases were placed immediately into abeyance because the lawyers were already disbarred. In sum, 1,462 cases were acted upon at the intake stage.

Investigative Stage

Cases docketed for investigation are usually closed by completing an investigation. In 1998, counsel in the Office of Disciplinary Counsel conducted 376 investigations in which written reports were submitted to the three inquiry panels of the Grievance Committee. Two (2) of those investigations were conducted by a special investigator. Twenty (20) cases were closed by deferral agreements and twenty-one (21) matters were closed by diversion agreements.⁴ Thus, the inquiry panel acted on 417 investigative cases.

Further, some cases are docketed during the intake stage which are closed without the necessity of action by the inquiry panels. Two (2) cases on the dockets of the inquiry panels were closed by being placed in abeyance. Cases are placed in abeyance when a lawyer is disbarred or is transferred permanently to disability inactive status during the course of an investigation. Another nine (9) were docketed and then sent directly to the trial division without the necessity of action by the inquiry panels; e.g., criminal conviction cases, reciprocal discipline cases, and cases in which an order of immediate suspension has entered at the investigative stage. Thus, eleven (11) cases were closed on the dockets without direct involvement of the inquiry panels.

The inquiry panels also reviewed conditional admissions (hereinafter, "stipulations") negotiated and filed by the Office of Disciplinary Counsel. Forty-nine (49) stipulations were filed by trial counsel, and two (2) stipulations closing three (3) investigative matters were filed by investigative counsel. Additionally, trial counsel filed twenty-one (21) diversion agreements closing trial matters. Thus, the inquiry panels considered a total of seventy (70) trial stipulations and diversion agreements. The inquiry panels closed an additional three (3) trial matters by deferral agreements.

In summary, 387 investigative matters were closed by the inquiry panels; and, additionally, the inquiry panels approved 51 conditional admissions involving 52 matters and 65 deferral or diversion agreements. Therefore, the total number of cases reviewed by the inquiry panels was 504.

The number of cases pending at year end for investigation is referred to as the Disciplinary Counsel’s backlog. At the end of 1998, 307 cases awaited investigation.

Tables A and B and Chart C offer additional perspective and detail about the cases which the inquiry panels considered during 1998. Chart C, for example, shows the overall age of the cases. Our goal is to investigate cases as expeditiously as possible given the available resources. By the end of 1998, only 5 cases of the 307 pending for investigation were over one year old.

Nature of Dispositions by Inquiry Panels

Table D summarizes the dispositions of all investigative matters. Over the past five years, 37 to 48 percent of the cases has been dismissed. An average of 15 percent of the cases has resulted in admonishment over the past 5 years. An average of 27 percent of the grievances over the past 5 years has resulted in a finding of reasonable cause and authorization of the filing of a complaint by the inquiry panels. In those latter cases, the Office of Disciplinary Counsel then files a "formal" complaint. The trial stage is generally referred to as "formal proceedings." The chart reflects that in 1998 the number of cases sent to formal proceedings was near the expected range. Letters of admonition issued were approximately 5 percent under the norm.

The number of grievances filed against lawyers in practice continues to be a relatively stable percentage. Normally, the number of grievances filed ranges between 9 and 12 percent of the number of lawyers registered as active in private practice.⁵ At 8 percent, our experience in 1998 reflects that the number of grievances filed was slightly below the usual.

Docket Analysis of Inquiry Panels

Always of interest to the Grievance Committee is the amount of time it takes to complete an investigation. Chart E provides a comparative look at the time taken in number of weeks in 1998 and earlier years to complete investigations. The time for investigation decreased by 21 percent. The figures shown for "longest duration" include cases which were held in abeyance pending the conclusion of related civil, criminal, or disability proceedings and cases that are extremely complex.

1998 HEARING PANEL DOCKET

After an inquiry panel found reasonable cause and authorized the Disciplinary Counsel to commence "formal proceedings" (see Chart D), Disciplinary Counsel prepared and filed a formal complaint with the Committee Counsel. The complaint was assigned to a hearing board, and the matter proceeded in accordance with the rules and in conformity with the practice in Colorado in the trial of civil cases. The rules of evidence and civil procedure applied. The Disciplinary Counsel was required to prove the allegations in the complaint by clear and convincing evidence.

Hearing Boards

Hearing boards not only heard formal complaints, but also petitions for reinstatement, readmission, or transfer to disability inactive status. Conducting hearings on formal complaints, however, comprised the bulk of their work. Boards usually were composed of three persons, with a member of a hearing panel of the Grievance Committee serving as presiding officer. The other two members of the board, typically referred to as enlistees, usually were lawyers from Colorado who had agreed to serve in the matter, although it was not uncommon for a nonlawyer member of the Grievance Committee to have served on the board in place of one of the enlistees.

Before the Disciplinary Counsel filed a formal complaint, two or more "grievances" or other matters involving the same lawyer often were consolidated into a single formal complaint or "case." As a result, the number of matters leading to formal proceedings (see Table D) usually exceeded the number of formal complaints filed.

Some hearings also involved two or more formal complaints that were consolidated for trial. As noted, the Disciplinary Counsel usually consolidated several grievances against the same lawyer into a single formal complaint or "case." If a second formal complaint was filed later against the same lawyer, it often was consolidated with the first for hearing. One hearing, therefore, may have involved two or more formal complaints that in turn may have contained multiple counts stemming from numerous individual grievances.

Each hearing generated "findings of fact and recommendations" from the hearing board. Moreover, the parties may have filed "objections" to the findings. The findings and any objections thereto would then be reviewed by one of the hearing panels. Sometimes a hearing panel would consolidate the results of two or more hearings involving the same lawyer for the purpose of making a single recommendation to the Court.

A substantial number of cases were resolved through the use of conditional admissions of misconduct or "Stipulations." The use of Stipulations accounted in many instances for part of the discrepancy between the number of formal complaints filed and the number of hearings actually held. Moreover, filing or trying cases in one year and reviewing them in the following year had an additional bearing on the difference between the number of hearings held and corresponding hearing panel action.

Hearing Panels

As noted, the hearing panels reviewed: (1) the findings of fact and recommendations submitted by the hearing boards; and (2) any objections to the boards’ findings or recommendations which either party may have filed. Thereafter, the hearing panels dismissed the complaint or imposed an admonition, or forwarded the case to the Court for disposition.

The hearing panels’ review of forty-eight (48) cases resulted in forty-eight (48) distinct actions taken or recommended. In other words, no cases were consolidated at the hearing panel level, and, while Stipulations are included in the above table entitled "Hearing Panel Action," Stipulations were not acted upon by the hearing panels, but instead were acted upon by the inquiry panels. The Stipulations that are included in the foregoing table are shown to account for additional matters that had been pending before hearing boards [and the hearing panels] before being resolved by an inquiry panel. Stipulations that originally arose with Investigative Counsel and were acted upon by an inquiry panel are not included. See Tables B and D.

The nature of the action taken or recommended by the hearing panels is reported below:

1998 Supreme Court Disciplinary Docket

The Court acted on ninety-four (94) matters in 1998 (as compared to 119 in 1997; 111 in 1996; 104 in 1995; and 75 in 1994).

As shown by the chart below, nine (9) lawyers were privately censured, twenty (20) were publicly censured, and so on.

Funding

The disciplinary process was and is funded entirely by the Attorney Registration Fund, the fund generated when lawyers pay their annual registration fees to the Court. The disciplinary process receives no public funds from the state of Colorado.

For fiscal year 1998-99, the budget for the administration of the Grievance Committee was set at $324,351, with an additional $224,409 earmarked for the attorney registration process. The budget for the Office of Disciplinary Counsel was set at $2,138,549.

Committee Administration

In 1998, the three panels met eighteen times [six meetings each] to address the matters pending on their respective inquiry panel and hearing panel dockets. The entire Committee also met three times: at a special meeting in February; at its Semi-Annual Meeting in June; and at its Annual Meeting in December.

Conclusion

The year 1998 was a year of transition. At the start of the year, the Court was evaluating proposed changes to the disciplinary system. By mid-year, the Court had adopted a framework for a new system. Members of the Grievance Committee worked to ensure a smooth transition from the old to the new system, and by the end of the year, the new system had begun to operate, while the old system was winding down. As of December 31, 1998, only a small number of cases awaited Committee action, and that action was scheduled to take place at final meetings in early 1999. While the Grievance Committee’s duties will be completed at that point, many members of the Committee will have the opportunity to continue to work as volunteers in the new attorney regulation system in the future, and we look forward to that opportunity.

The Committee is proud to have assisted the Court in administering the attorney discipline system. The work of the Committee required countless hours of effort by its members, who included not only attorneys but also members of the public, all of whom cared enough about the legal system to assist the Court in the regulation of the Bar. In addition, members of the Bar were enlisted, as volunteers, to participate in specific aspects of the system. Many, for example, devoted hundreds of hours while serving as members of hearing boards. The Committee is grateful for their hard work and dedication.

As the work of the Grievance Committee ends, we hope that it was seen as striking the right balance between sanction and empathy, between efficiency and due process, aimed at all times toward the objectives of protecting the public and preserving the integrity of the Bar.

Respectfully submitted,

John M. Lebsack, Chair, 1998
James P. Hollaway, Committee Counsel
Linda Donnelly, Disciplinary Counsel

Notes

1. Committee appointments, made by the Colorado Supreme Court, are intended to reflect a wide spectrum of geographical and philosophical perspectives. Geographically, the Committee distribution at the end of 1998 was as follows.

Nonlawyer members have the following backgrounds: Psychiatrist (3); Psychologist (1); Real Estate Professional (1); Consumer Advocate (1). Lawyer members come from a wide variety of professional backgrounds, including some who have served as prosecutors, public defenders, and government lawyers. Currently, one is a government lawyer; one is a public defender; six are sole practitioners; three are with small firms; three are from medium firms; and five are from large firms.

2. See "1997 Report of the Colorado Attorney Regulation System Planning Committee," 27 The Colorado Lawyer 23 (Feb. 1998); Hollaway, "The New Disciplinary System: A Summary," 27 The Colorado Lawyer 47 (Sept. 1998); "Attorney Regulation System: Final Rules," 27 The Colorado Lawyer 173 (Sept. 1998); Donnelly, Kourlis, and Bender, "How the New Attorney Regulation System Will Work," 28 The Colorado Lawyer 57 (Feb. 1999).

3. The numbers of cases not docketed and those docketed do not add up to the number of requests for investigation received each year. The reason is that some cases from the previous year remain pending in intake at the end of the year and are decided in the next year. For example, cases remained pending in intake at the end of 1996 in which a docketing decision was not made until 1997. Likewise, at the end of 1997, cases filed late in the year remained pending in intake for decision in 1998.

4. Effective March 1, 1996, the Colorado Supreme Court amended the Colorado Rules of Professional Conduct to provide for a deferral program. [C.R.C.P. 241.11.5.] This rule permits the parties to enter into a deferral agreement in minor misconduct cases which provides for conditions and monitoring. If the conditions are successfully completed, the grievance is dismissed.

5. The figures shown for 1998 in the table below are in doubt, as work on installing a new attorney registration system continues:

6. Of the 70 matters, 24 were disposed of by Diversion Agreement, rather than by Stipulation.

7. If a lawyer is suspended for more than one year, the lawyer must file a petition for reinstatement and prove his or her rehabilitation, whereas a lawyer suspended for one year or less need only file an affidavit, unless the Court orders otherwise. A lawyer who has been disbarred is eligible for readmission after eight years. Disability proceedings before hearing boards were rare, as transfers to disability inactive status occurred most often following "show cause" proceedings before the Court itself. A lawyer who has been transferred to disability inactive status must file a petition for reinstatement and prove his or her recovery from the condition that prompted the transfer.