Vol. 27, No. 9
The New Disciplinary System: A Summary
by James P. Hollaway
This article is intended to highlight the larger components of the new attorney discipline system. The fine details can be found throughout the new rules, which are printed in this issue of The Colorado Lawyer at page 137. The complete final rules also can be found by downloading the "pdf" file from the Supreme Court website: http://www.courts.state.co.us/supct/rules/1998_10_.pdf.
The rules are also on the Colorado Bar Association website: http://www.cobar.org/tcl/1998/September/attyrules.htm.
As of January 1, 1999, the work of regulating the attorneys of Colorado will be handled as provided in new rules--C.R.C.P. 251.1 et seq.--by the Attorney Regulation Counsel, the Attorney Regulation Committee, the Presiding Disciplinary Judge, the Appellate Discipline Commission, the Advisory Committee, and the Supreme Court of Colorado. In the meantime, the Supreme Court Grievance Committee will be completing its work on cases that will probably be resolved by conditional admission or hearing on or before December 31, 1998. The Committee expects to finish its review of those cases promptly and then cease operations no later than March 31, 1999.
Starting on January 1, 1999, the new disciplinary system is to begin in earnest, although some steps to make for transition to the new system have already been taken. For example, elements of the new system, such as new intake procedures, diversion, probation, and the immediate suspension of attorneys who have failed to comply with child support orders, took effect on July 1, 1998.
Statute of Limitations
Beginning on January 1, 1999, grievances must be filed within five years of the discovery of the misconduct. However, there are exceptions. For offenses involving fraud or conversion, for conviction of serious crimes, and for offenses that the attorney concealed, there is no statute of limitations.
As of January 1, 1999, grievances against attorneys must be submitted to the Office of the Attorney Regulation Counsel, the successor to the Office of Disciplinary Counsel, either orally or in writing. The Regulation Counsel staff will then dismiss the matter; divert eligible attorneys to alternatives to the discipline program, such as mediation, fee arbitration, ethics school, or a peer assistance program; or they may investigate the grievance as the new rules provide.
If after investigation it is believed that an attorney should be privately admonished or charged with misconduct warranting more serious discipline, an investigator from the Regulation Counsel's office will submit a written report and recommendation to the Attorney Regulation Committee.1 Thereafter, the Attorney Regulation Committee may direct the investigator to conduct further investigation, or the Committee may dismiss the grievance, divert the matter to an alternative program, impose a private admonition, or in particularly serious cases authorize Regulation Counsel to file a complaint against the attorney. Cautionary letters will no longer be used.
In 1999, petitions seeking to have an attorney immediately suspended while disciplinary proceedings are otherwise pending will be filed with the Presiding Disciplinary Judge rather than the Supreme Court, except when the basis for the petition is the attorney's conviction of a serious crime. The Presiding Disciplinary Judge may issue an order to show cause and, after considering the attorney's response, if any, submit findings and a recommendation to the court. Thereafter, the court may suspend the attorney or dissolve the order to show cause.
When a petition for immediate suspension is filed, the attorney may request a hearing, and if such a request is made, the hearing must be held before the Presiding Disciplinary Judge within ten days. Thereafter, the Presiding Disciplinary Judge must submit to the court findings, a recommendation, and the record relating thereto, within five days. The court may then suspend the attorney or dissolve the order to show cause. The underlying disciplinary proceeding will proceed in due course before the Presiding Disciplinary Judge.
The Presiding Disciplinary Judge alone may immediately suspend an attorney who fails to comply with a child support order. Similarly, the underlying disciplinary proceeding that arises out of the attorney's failure to comply with a court order will proceed in due course before the Presiding Disciplinary Judge. In the meantime, such proceedings are being handled by the Grievance Committee.
Except in limited circumstances, a complaining witness will no longer be required to keep confidential the fact that he or she has filed a grievance. The complaining witness and the accused attorney also may disclose documents and correspondence served on or provided to the Presiding Disciplinary Judge, the Appellate Discipline Commission, or the Supreme Court. Moreover, after the Attorney Regulation Committee determines that there is reasonable cause to believe that grounds for discipline exist and a complaint is filed and served, the records in the matter become public, except for work product and internal communications and deliberations.
An attorney who is immediately suspended, transferred to disability inactive status, or notified that Regulation Counsel will file a complaint against him or her must disclose that fact to his or her current law firm or to the firm with which he or she was associated when the alleged misconduct occurred. The attorney must make the disclosure in writing within fifteen days of the date of the order or the date of notice from the Regulation Counsel.
Private admonitions that are imposed in a public proceeding will be public information as follows: the fact that a private admonition was imposed will be public, but the admonition itself will not be disclosed.
Persons who file grievances generally will remain absolutely immune from suit based on communications or testimony given to the Regulation Counsel, mediators and monitors, the Attorney Regulation Committee, the Presiding Disciplinary Judge and hearing boards, the Appellate Discipline Commission, and the Supreme Court. Where the rules provide that a matter is confidential and confidentiality is not maintained, then the person who breaches confidentiality has qualified immunity. An action may lie against him or her if his or her communications, etc., were given in bad faith or with reckless disregard of their truth or falsity.
Formal Complaints and Hearings
When authorized to file a complaint against an attorney, the Regulation Counsel will file it with the Presiding Disciplinary Judge.2 When the attorney is served with the complaint, the case becomes public at that time. Disciplinary proceedings will then continue in many respects as has been the case historically, except that beginning on January 1, 1999, the Presiding Disciplinary Judge will serve as "presiding officer" in all formal cases in which the judge has not been disqualified.
On January 1, 1999, all formal cases that were pending before "presiding officers," i.e., members of the Grievance Committee, will be transferred to the Presiding Disciplinary Judge. Two other persons will, with the Presiding Disciplinary Judge, comprise the hearing board3 to serve as such in the event the case is tried. Thereafter, the board will decide the case and dismiss the complaint or impose private admonition, public censure, suspension, or disbarment. The Presiding Disciplinary Judge alone may order the reinstatement of attorneys who have been suspended for a year or less, but hearing boards must otherwise rule on petitions for reinstatement or readmission.
After a case is tried before a hearing board, either party may seek rehearing as provided in C.R.C.P. 59.
Attorneys seeking a stay of the sanction must ordinarily file their application first with the hearing board before filing such application with the Appellate Discipline Commission. If an application for stay is filed with the Appellate Discipline Commission, the entire commission will normally consider it, unless exceptional circumstances dictate that the matter be considered solely by the Chair of the Appellate Discipline Commission or any single member thereof.
An attorney who is suspended also may be placed on probation. When imposed, probation shall be for a definite period of time in conjunction with the suspension, which in turn may be stayed in whole or in part. The Regulation Counsel will monitor an attorney's compliance with the terms of probation. If an attorney fails to comply with the terms of probation, the Presiding Disciplinary Judge may revoke probation, lift the stay, and activate the sanction, i.e., the period of suspension previously imposed. A breach of the conditions of probation also may give rise to a new disciplinary proceeding against the attorney.
Conditional Admissions of Misconduct
Conditional admissions of misconduct will no longer be presented to the Supreme Court for final action. Historically referred to as stipulations, conditional admissions will now generally be filed with the Presiding Disciplinary Judge, unless the stipulation is for private admonition. In such a case, the stipulation will be filed with the Attorney Regulation Committee. If the conditional admission calls for the imposition of a sanction greater than private admonition, however, then either party may request a hearing before the Presiding Disciplinary Judge to present argument as to the form of discipline that the Presiding Disciplinary Judge may order. When a hearing is held on a stipulation, the complaining witness may appear to submit a statement, orally or in writing, to the Presiding Disciplinary Judge regarding the form of discipline to be imposed.
Intermediate Appellate Review
Final decisions of the Presiding Disciplinary Judge or a hearing board that impose discipline or transfer an attorney to disability inactive status may be appealed within twenty days to the Appellate Discipline Commission.4 The Appellate Discipline Commission is expected to act much like a court of appeals. Following its review of the record below, and the consideration of briefs and oral argument, the Appellate Discipline Commission may dismiss the case; divert the attorney to an alternative program; or impose private admonition, public censure, suspension with or without probation, or disbarment. Generally, however, the Appellate Discipline Commission will affirm the decision of the Presiding Disciplinary Judge or hearing board, unless it finds that the findings of fact made below are clearly erroneous or that the board's sanction bears no relation to the misconduct, is manifestly excessive or insufficient in relation to the needs of the public, or is otherwise unreasonable. The Appellate Discipline Commission may conduct de novo review of conclusions of law.
Petitions for rehearing of the Appellate Discipline Commission's decisions are not permitted.
Supreme Court Review
When the Appellate Discipline Commission publicly censures, suspends, disbars, transfers an attorney to disability inactive status, or denies reinstatement or readmission, a party may appeal the decision to the Supreme Court. A party who wishes to appeal to the court must file notice within thirty days. Following its review of the record, and the consideration of briefs and oral argument, the Supreme Court may dismiss the case; divert the attorney to an alternative program; or impose private admonition, public censure, suspension with or without probation, or disbarment. Generally, however, the court will affirm the decision of the Appellate Discipline Commission, unless it finds that the findings of fact of the hearing board are clearly erroneous or that the Appellate Discipline Commission's sanction bears no relation to the misconduct, is manifestly excessive or insufficient in relation to the needs of the public, or is otherwise unreasonable. The court may conduct de novo review of conclusions of law.
When the court decides the case, it may choose in its discretion to issue its decision by order or by opinion.
Notice of Suspension
Attorneys who are suspended for failing to pay their attorney registration fees or to obtain required CLE credits must notify clients and opposing counsel in cases being litigated of their suspension, unless they have applied for reinstatement and reasonably believe that reinstatement will occur within fifteen days of the order of suspension.
Reinstatement from Suspension On Stipulation
Attorneys who are required to file a petition for reinstatement and whose petition for reinstatement is filed within the times specified in the rule may, in conjunction with regulation counsel, stipulate to reinstatement. The new rule calls for an "appearance before the Presiding Disciplinary Judge," who may then reinstate the attorney on terms and conditions, if any, or reject the stipulation and set the matter for a hearing before a hearing board.
Petitions seeking to have an attorney transferred to disability inactive status will be filed with the Presiding Disciplinary Judge rather than the Supreme Court. An attorney who is transferred to disability inactive status may appeal the Presiding Disciplinary Judge's order to the Appellate Discipline Commission.
The court has established an Advisory Committee5 to oversee the management committee.6 The Advisory Committee also will assist the court in making appointments as described in the rules and review the productivity, effectiveness, and efficiency of the system, including the Presiding Disciplinary Judge and peer assistance programs. It will select an administering entity to distribute funds to selected peer assistance programs, which will constitute one of the alternatives to discipline.
Client Protection Fund
The court has created an attorneys' fund for client protection (C.R.C.P. 252.1 et seq.). The details of the fund and its operation are beyond the scope of this article. However, in short, it can be said that the fund is designed to compensate, in whole or in part, persons who suffer certain monetary losses because of an attorney's dishonest conduct that occurs on or after July 1, 1999. The fund will be generated by apportioning the attorney registration fee.
Trust Account Overdraft Notification
By amendment to the Colorado Rules of Professional Conduct (Colo.RPC) 1.15 that takes effect July 1, 1999, attorneys are required to hold trust funds in financial institutions that have been approved by the Regulation Counsel with policy guidelines by the Board of Trustees of the client protection fund. The institution will be approved if it agrees to report to Regulation Counsel when trust account checks are presented against insufficient funds. The institution must also agree to honor subpoenas from Regulation Counsel for trust and business account records.
Required Accounting Records
By another amendment to Colo.RPC 1.15 that takes effect July 1, 1999, attorneys are required to maintain records relating to trust accounts for seven years, including receipt and disbursement records; an appropriate record-keeping system; all bank statements and pre-numbered canceled checks; and copies of the following: (1) all retainer and compensation agreements; (2) all statements to clients showing disbursement of funds to or on their behalf; (3) all bills issued to clients; (4) records showing payments to persons other than those regularly employed for services rendered; and (5) those portions of each client's files reasonably necessary for a complete understanding of the financial transactions pertaining thereto.
Attorney Registration Fees
Starting on January 1, 1999, the attorney registration fees will increase to $195 for active attorneys who have been admitted for more than three years; $155 for active attorneys who have been admitted for three years or less; and $50 for inactive attorneys. A portion of the active fees will be used to establish the client protection fund. Nine dollars of the active fees will be diverted by court rule to the administering entity selected by the Advisory Committee. In turn, the administering entity will deliver funds to peer assistance programs selected by the Advisory Committee. It is anticipated that peer assistance will serve as an alternative to discipline in a substantial number of cases.
Attorney Registration Late Fees
Attorneys who fail to pay their registration fees on time now face increased late fees of $50 or $150, depending on their degree of tardiness. For instance, an attorney who pays a registration fee in March (after the February 28 deadline) will be late and must pay $50 in addition to the regular fee. An attorney who pays in April or thereafter must pay $150 in addition to the regular fee. The rule implementing these changes took effect July 1, 1998. As a result, attorneys who pay their 1998 registration fee now (long past due) owe a late fee of $150.
1. The Attorney Regulation Committee is composed of six lawyers and three public members appointed by the court. C.R.C.P. Rule 251.2.
2. The court intends to appoint the Presiding Disciplinary Judge by December 1, 1998.
3. The former member of the Grievance Committee will remain on the board, and the third member of the board will be drawn from a "pool"of prospective board members that has been designated by the court and trained to participate in disciplinary proceedings.
4. The Appellate Discipline Commission is composed of five lawyers and two members of the public appointed by the court.
5. The Advisory Committee is composed of the Chair and Vice-Chair of the Attorney Regulation Committee, the Chair of the Appellate Discipline Commission, two members of the Bar, and a member of the public appointed by the court. In addition, two Supreme Court justices who serve as liaison to the system will serve on the Advisory Committee.
6. The management committee is composed of the Clerk of the Supreme Court (its Chair), the Attorney Regulation Counsel, and counsel for the Appellate Discipline Commission. It is to handle administrative matters within the system and to serve as staff for the Advisory Committee.
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