Vol. 32, No. 2
Report and Recommendations Concerning the Attorney Regulation System in Colorado: 2002
Editor’s Note: This report was made to the Justices of the Colorado Supreme Court from the Attorney Regulation Advisory Committee of the Supreme Court and is printed here to apprise members of the Colorado Bar Association of its contents. The appendices to the report are not included in this printed version. Appendices to this report include the separate annual reports of the ORC (Exhibit 1), the PDJ (Exhibit 2), and the statement of revenues and expenditures of the attorney regulation system for the fiscal year ending June 30, 2002 (Exhibit 3). Copies of the complete report are on file with the Clerk of the Supreme Court.
In 1998, significant changes were made to the system by which Colorado attorneys are regulated. The Office of Presiding Disciplinary Judge, essentially a trial court for disciplinary and related matters, was established. Procedures within the Office of Attorney Regulation Counsel, which performs the investigative and prosecutorial function, were changed to provide far greater emphasis on the prompt disposition of complaints of attorney misconduct. A process was created by which cases of minor misconduct could be diverted to provide professional assistance to the offending attorney while properly protecting the public interest.
Many of these and other changes have been in place for four years, all of them for at least three and one-half years. The Advisory Committee’s report to the Court of June 30, 2000, described in some detail the commencement of the new system. It included a survey of those groups most directly affected by the regulatory process. The results of that survey were very positive, as were the Committee’s overall conclusions regarding the workings of the revised system.
The Supreme Court Advisory Committee was established as a permanent committee of the Court by C.R.C.P. 251.34. Its purpose, generally stated, is to assist the Court with administrative oversight of the attorney regulation system. The members of the committee this past year were Justice Rebecca Love Kourlis, Justice Michael L. Bender, Bethiah Crane, John Lebsack, Bryan Morgan, Arthur S. Nieto, Erika Schafer, Daniel A. Vigil, Steven K. Jaconson, William C. McClearn (Past Chair), and David W. Stark, Chair. Ms. Schafer is a public member. The other members of the committee are judges or lawyers.
The responsibilities assigned to the committee are set forth in Rule 251.34(b) (3, 4 and 5). Those provisions direct the committee to:
(3) Review the productivity, effectiveness and efficiency of the Court’s attorney regulation system including that of the Presiding Disciplinary Judge and peer assistance programs and report its findings to the Supreme Court;
(4) Review the resources of the system for the purpose of making recommendations to the Supreme Court;
(5) Periodically report to the Supreme Court on the operation of the Advisory Committee; . . .
This report is submitted pursuant to those provisions.
II. FISCAL YEAR JULY 1, 2001—JUNE 30, 2002
As the Court will recall from last year’s report, the principal components of the Attorney Regulation System are: (1) the Office of Attorney Regulation Counsel ("ORC"); (2) the Attorney Regulation Committee ("ARC"), which meets monthly and acts upon recommendations from the ORC regarding formal complaints, dismissals after full investigation, diversion recommendations and similar matters; (3) the Office of Presiding Disciplinary Judge ("PDJ"); and (4) the Colorado Attorney Assistance Program ("CAAP"), a peer assistance program for Colorado attorneys.
One major change which occurred this past year was the selection of Mines & Associates, P.C., a Denver-based employee/ member assistance organization, as the CAAP service provider. Mines & Associates has a substantial professionally-qualified staff, an extensive list of clients, including businesses, government agencies, other professional groups and law firms, and a network of treatment providers throughout Colorado. Mines & Associates will provide up to three confidential, in-person or telephone appointments/sessions per year to each attorney on active status with the Supreme Court for assessment, referral and/or short-term therapy. In addition, it will arrange referrals as appropriate to longer-term treatment providers. The cost of this arrangement is approximately $40,000 per year. Mines & Associates has provided an excellent peer assistance program to attorneys throughout the state this past year.
III. OVERALL VIEW OF HOW THE
SYSTEM IS WORKING
A. The Attorney Regulation Committee
The Attorney Regulation Committee is a permanent committee of the Supreme Court. It is composed of nine members, six attorneys and three public members appointed by the Supreme Court with the assistance of the Supreme Court Advisory Committee. The ARC’s primary function is to review reports of investigations submitted to it by Attorney Regulation Counsel and to determine whether there is reasonable cause to believe grounds for discipline exist. The ARC reviews and acts upon recommendations from the ORC for formal complaints, dismissals after investigation, diversion agreements and similar matters.
In 2001, ARC reviewed 194 cases: 117 were sent to formal proceedings, 61 resulted in diversion agreements, 5 in private admonitions, and 1 was dismissed. This data shows a slight decrease in the number of formal proceedings and a slight decrease in the number of diversion agreements. The total number of cases acted upon by ARC decreased by approximately 11% over 2000.
It is our conclusion that the Attorney Regulation Committee continues to perform the function for which it was established in an efficient and effective manner.
B. The Office of Attorney Regulation Counsel
The Office of Attorney Regulation Counsel ("ORC") is the largest entity in the Colorado Attorney Regulation system, both in size and cost. The ORC employs 13 full-time attorneys, including Regulation Counsel and Deputy Regulation Counsel. The office has 5 full-time, non-attorney investigators. The ORC performs a myriad of regulatory and administrative duties including:
1) Field and initially investigate approximately 5,000 complaints filed with the Central Intake Division of the ORC;
2) Investigate and prosecute violations of the Colorado Rules of Professional Conduct under the direction of the Attorney Regulation Committee;
3) Investigate and, if necessary, prosecute violations of the Colorado Rules of Professional Conduct relating to trust account overdraft notification;
4) Investigate and prosecute attorney disability actions;
5) Investigate and prosecute petitions for immediate suspension of attorneys;
6) Investigate and prosecute contempt proceedings for violation of the Colorado Rules of Civil Procedure regarding attorney discipline and disability;
7) Investigate and prosecute violations of the Code of Judicial Conduct by Magistrates;
8) Investigate and prosecute complaints alleging the unauthorized practice of law;
9) Coordinate and investigate the filing of claims with the Colorado Attorneys’ Fund for Client Protection under the direction of the Colorado Attorneys’ Fund for Client Protection Board of Trustees;
10) Represent and counsel the Colorado State Board of Law Examiners in formal hearings regarding applicants denied admission to the Colorado Bar;
11) Serve as special counsel to the Commission on Judicial Discipline;
12) Obtain appointment of inventory counsel in cases where a lawyer has become disabled, disappeared or died;
13) The attorneys within the office provide extensive educational opportunities to the practicing bar and the public on topics related to attorney ethics.
One of the most significant changes in the Colorado Attorney Regulation System was the implementation of a central intake telephone system designed to field attorney discipline complaints. Prior to the implementation of this system, all complaints against attorneys were required to be in writing. Typically, the ORC mailed 5–6,000 complaint forms each year to individuals who inquired about filing a "Grievance." Generally, only 20% of the forms were returned by a complainant. Now, with Central Intake, the ORC can service and speak directly to all those who initially believe attorney misconduct has occurred. In 2000, the ORC received 4,507 intake complaint calls and in 2001 the amount increased slightly to 4,550.
Central Intake has drastically reduced the amount of time required to handle matters at the intake stage. In 1998, before Central Intake, the average time was 31 weeks. In 1999, the average time matters spent at the intake stage was 2 weeks and in 2001, the average time from the original call to Central Intake to an intake resolution was 1.8 weeks.
The number of investigations initiated by ORC increased slightly in 2001, from 432 in 2000 to 500. Of those matters, 194 were acted upon by the Attorney Regulation Committee with 117 being sent to formal proceedings. It took trial counsel in the ORC an average time of 27.7 weeks from the time the case was assigned to complete the report of investigation. This is a slight increase from 2000, because of added office responsibilities with Unauthorized Practice of Law cases and representing the Board of Law Examiners.
The formal complaints filed and those pending from 2000 resulted in 24 trials and 108 additional matters before the PDJ regarding various matters, including reinstatement cases.
In 1998, the Supreme Court Office of Attorney Regulation Counsel designed and implemented Ethics School. The school is presented in conjunction with C.R.C.P. 251.13 (diversion agreements). The classes are taught by senior attorneys from the Office of Attorney Regulation Counsel. The curriculum is designed as a refresher course in basic professionalism and the Rules of Professional Conduct. The subject areas include initial client contact, fee agreements, office management, trust account issues, and professionalism.
The class at this time is restricted to attorneys attending as a part of a diversion agreement, court order, or agreement of the parties. There is a 40-question test at the end of the school that attendees must successfully pass. Ethics School is conducted five or six times annually with the average number of attendees per class at 34. Since the first class on November 6, 1998, a total of 614 attorneys have attended and successfully completed Ethics School.
Each attendee at Ethics School is provided with an Ethics School manual that is updated to the day of each class. The manual is over 300 pages in length and includes suggested forms, case law, ethics opinions, and a complete review of virtually every area of attorney ethics. Although the manual is provided as a part of the cost of attending Ethics School, the manual may be purchased by anyone through the Office of Attorney Regulation Counsel.
On April 23, 1998, the Supreme Court amended and adopted Rule 260.2.(4) requiring all attorneys admitted after January 1, 1995, to complete a required course on professionalism. In cooperation with the Colorado Bar Association and CLE of Colorado, Inc., the Office of Attorney Regulation Counsel designed new curriculum for the course. The course now includes sections on the attorney-client relationship, conflicts, fee agreements, trust and operating accounts, and professionalism. The Office of Attorney Regulation Counsel also designed a new manual for the professionalism course. The manual is provided by CBA-CLE of Colorado in conjunction with attendance at the course. Senior trial lawyers from the Office of Attorney Regulation Counsel teach three of the four segments of the course. Regulation Counsel is preparing a proposed rule change for consideration by the Court that would require attendance at the professionalism course prior to admission. The rule change would be effective for individuals admitted to the Bar beginning in 2003.
It is our conclusion that the ORC is functioning effectively and efficiently, and is recognized across the country as a leader in the Attorney Regulation field. A number of states have visited Mr. Gleason’s office and have chosen to model their system after Colorado.
C. Presiding Disciplinary Judge
The office of the PDJ continues to function in the manner for which it was designed. In addition to Judge Roger Keithley, the office has a Staff Attorney and a Division Clerk/Office Administrator. Its annual budget is approximately $350,000. This office handles a variety of matters in addition to the processing and trial of disciplinary complaints. They include petitions for immediate suspension in specified circumstances including failure to provide child support, attorney disability proceedings, consideration and approval or disapproval of conditional admissions of misconduct, and various matters referred directly from the Supreme Court for evidentiary hearings.
While the PDJ presides at all disciplinary hearings, two additional persons who may be either lawyers or non-lawyers, sit with him as members of the hearing board. During calendar year 2001, 99 cases were concluded by the office of the PDJ and 50 days were spent by the Court in trial or evidentiary hearings. The number of cases filed with the PDJ increased from 107 to 131 compared to the previous year.
One of the significant statistics is the length of time between trial and the issuance of a decision by the Hearing Board. The average time increased from 113 days in 2000 to 126 days in 2001. The PDJ attributes much of the increase in time to decision to a significant increase in motion practice, particularly motions to dismiss, motions for summary judgment and motions in limine. Approximately one-third of the PDJ’s time is devoted to resolving these motions.
In early 2001, the methodology of handling default proceedings was modified to expedite the preparation and issuance of decisions. By mid-August 2001, the backlog was eliminated, and decisions in both default and contested proceedings, on average, were issued within the sixty-day time frame set forth in C.R.C.P. 251.19. Excluding the backlog of cases and computing an average based upon cases tried and decided in 2001, and implementing the modified procedures, the average time from trial to issuance of decision has decreased to twenty-nine (29) days.
The opinions of the PDJ are now available through LexisNexis,™ Westlaw,® Loislaw, and the Colorado Court website, as well as the Colorado Bar Association website.
D. Attorneys’ Fund for Client Protection
Under the supervision of the Colorado Supreme Court and its Board of Trustees, the Colorado Attorneys’ Fund for Client Protection ("the Fund") has paid claims totaling $161,410.65. The Fund is supported entirely by an $18.00 annual assessment on each active Colorado attorney’s registration fee. The Fund considers claims alleging dishonest conduct by an attorney filed with and investigated by the Supreme Court Office of Attorney Regulation Counsel pursuant to C.R.C.P. 252.
Eligible claims must be caused by the dishonest conduct of an attorney and must arise out of and by reason of an attorney-client relationship or a court-appointed fiduciary relationship between the attorney and the claimant.
The Supreme Court established the Fund effective January 1, 1999. Since 1999, the Fund’s Board of Trustees has considered 83 claims against 28 Colorado attorneys, a list of which is available by contacting the Office of Attorney Regulation Counsel. The Trustees authorized payment of $161,410.65 in claims that sought total reimbursement of $409,884.53.
The attorneys against whom claims were paid practiced in various areas of the law. Although claims arose in the areas of criminal law, probate/conservatorship, real property, and collections, over eighty percent of the claims arose in the general civil practice. A typical claim involved an attorney that accepted an advanced fee from a client, abandoned the client, and misrepresented the status of the case to the client.
Many losses are not covered by the Fund. As examples, losses incurred by spouses, children, parties or associates of attorneys causing the losses; losses incurred by any business entity; and losses incurred by a governmental entity.
In cases of extreme hardship or special circumstances, the Board of Trustees may, at its discretion, recognize a claim which would otherwise be excluded under Rule 252.10(e).
The Office of Attorney Regulation Counsel conducts an investigation of the claims and provides a report and recommendation for the Trustees’ consideration. Claims must be filed within three (3) years after the claimant knew or should have known of the dishonest conduct of the attorney. Pursuant to guidelines adopted by the Trustees, consideration of claims is ordinarily denied or delayed until the named attorney is disciplined or disbarred by the Supreme Court.
The Board of Trustees, appointed by the Supreme Court, consists of five attorneys and two public members. The current Trustees are: Charles Goldberg, Chair; Clair Villano, Vice-Chair; Cynthia Bargell; Vance Johnson, Treasurer; the Honorable Alfred C. Harrell, Jr.; Charles Turner; and Dean Dan Vigil.
This past year, the attorney regulation system added a website to provide the public with a readily accessible portal to access information about the attorney regulation system.
The website, www.coloradosupremecourt.com, provides a wealth of information and has separate sections on Attorney Regulation Counsel, attorney registration, Board of Law Examiners, Continuing Legal and Judicial Education ("CLE"), and the Presiding Disciplinary Judge. The public can also access the website for public disciplinary histories. Attorneys can access the CLE portion of the website, with a password, to check their CLE credits.
F. Malpractice Insurance Survey
The Advisory Committee has recommended to the Supreme Court that a malpractice insurance survey be sent with next year’s attorney registration statements in order to gather information about malpractice insurance coverage such as cost, deductibles and availability. The Attorney Regulation Committee raised the subject of malpractice insurance with the Advisory Committee because of numerous cases that the Attorney Regulation Committee has reviewed involving neglect and/or competency issues in which malpractice insurance may mitigate the harm caused by the lawyer’s misconduct. The Client Protection Fund only pays for claims that result from a lawyer’s dishonest conduct, and therefore claims pertaining to neglect and/or competence are not covered under C.R.C.P. 252.
The results of the survey will assist the Advisory Committee in making recommendations as to whether Colorado should require attorneys to carry malpractice insurance or require attorneys to communicate to clients whether they have such insurance.
G. Revenues and Expenditures
Pursuant to C.R.C.P. 227, Colorado’s attorney regulation system is funded by an annual attorney registration fee. The fees collected finance the operation of the Attorney Regulation Counsel, the Presiding Disciplinary Judge, the Attorney Registration Office, the Unauthorized Practice of Law Committee, the Supreme Court’s Attorney Regulation Advisory Committee, the Colorado Attorney Assistance Program, and the Attorneys’ Fund for Client Protection. The fees also support Colorado’s Continuing Legal and Judicial Education Program.
In FY 2001, $4,571,527.98 of income was received. Because of careful oversight by the Supreme Court and the Advisory Committee, expenditures only totaled $3,756,339.36, causing revenues to exceed expenditures by $815,188.62. Because of conservative management practices, no increase in attorney registration fees is contemplated in the near future.
Colorado’s present attorney discipline system represents a vast improvement when compared to the previous grievance system. All phases of the system are more efficient and productive. Complaints and contested hearings are resolved in a shorter period of time. Moreover, the system is reaching thousands more Colorado citizens who were previously too frustrated to file the former cumbersome and laborious citizen complaint. While more complaints have been received, the bulk of these are resolved within ten (10) working days.
While the Advisory Committee will continue in the coming year to closely monitor the amount of time each step of the process takes, we can be proud that our system has been singled out as a model for other jurisdictions to emulate.
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