Vol. 30, No. 12
Report and Recommendations Concerning the Attorney Regulation System in Colorado: 2001
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 the members of the Colorado Bar Association of its contents. The appendices to the report are not included in this printed version. 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 Disciplinary Judge, essentially a trial court for disciplinary and related matters, was established. Procedures within the Office of Regulatory 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 three years, all of them for at least two 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 are Justice Rebecca Love Kourlis, Justice Michael L. Bender, Bethiah Crane, John Lebsack, Bryan Morgan, Arthur S. Nieto, Erika Schafer, David W. Stark, and William C. McClearn, Chair. Erika 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 C.R.C.P. 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.
- FISCAL YEAR JULY 1, 2000—
JUNE 30, 2001
As the Court will recall from last year’s report, the principal components of the Attorney Regulation System were (1) the Office of Regulatory 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"); (4) the Appellate Discipline Commission ("ADC"); and (5) the Colorado Lawyers Health Program ("CLHP"), a § 501 (c)(3) organization that provided, pursuant to contract with the Advisory Committee, a peer assistance program for Colorado attorneys. The CLHP also monitored the performance of some diversion agreements involving attorneys referred to it by the ORC. During the past year, there have been significant changes affecting two of these entities:
In its report of June 30, 2000, the Advisory Committee recommended, and the Supreme Court agreed, that the function of the Appellate Discipline Committee be discontinued and that the appeals from the PDJ it otherwise would have handled be taken directly to the Supreme Court. The reason for this action was that there were not sufficient appeals from the office of the PDJ, either pending or anticipated, to justify the expense of maintaining a separate internal appellate review function. Accordingly, the ADC was discontinued effective September 1, 2000.
The other major change involved the CLHP. This program historically had dealt with attorneys who voluntarily sought its services, which primarily involved support group participation. The ORC needed, however, a more intensive evaluation, treatment and monitoring program for attorneys who were referred through the regulatory system. The CLHP, due in part to its own personnel problems, was not equipped to provide such an expanded program. After numerous discussions with representatives of CLHP, it was concluded that the two parts of the peer assistance program should be recognized and handled in a different way. Accordingly, three actions were taken:
- The contract between the Advisory Committee and CLHP was terminated effective December 31, 2000.
- The evaluation, referral for treatment, and monitoring of attorneys whose diversion agreements require such a program will be handled internally by the ORC. The ORC has hired, as a treatment coordinator, a licensed and experienced mental health and addiction counselor.
- The Advisory Committee took steps to insure there will continue to be available to all Colorado attorneys who voluntarily seek help an experienced and qualified assistance program.
After receiving proposals from and evaluating a number of existing assistance programs, the Advisory Committee entered into a Service Agreement for a period of one year, effective July 1, 2001, with Mines & Associates, P.C., a Denver-based employee/member assistance organization. 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. Under the agreement, 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. It will, in addition, arrange referrals as appropriate to longer-term treatment providers. The cost of this arrangement will be approximately $40,000 per year. We are hopeful Mines & Associates will provide an excellent peer assistance program to attorneys throughout the state.
There are attached to this report the separate annual reports of the ARC (Exhibit 1), the ORC (Exhibit 2), and the PDJ (Exhibit 3). [Not in this printed version.] Also attached is the statement of revenues and expenditures of the attorney regulation system for the fiscal year ending June 30, 2001 (Exhibit 4). [Not in this printed version.]
- OVERALL VIEW OF HOW THE SYSTEM IS WORKING
- 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 exists. The ARC reviews and acts upon recommendations from the ORC for formal complaints, dismissals after investigation, diversion agreements and similar matters.
In 2000, ARC reviewed 244 cases: 140 were sent to formal proceedings, 83 resulted in diversion agreements, 15 in private admonitions and 6 were dismissed. This data shows a slight increase 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 increased by approximately 5% over 1999.
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.
- 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 6 full-time, non-attorney investigators. The ORC performs a myriad of regulatory and administrative duties including:
- Field and initially investigate approximately 5,000 complaints filed with the Central Intake Division of the ORC;
- Investigate and prosecute violations of the Colorado Rules of Professional Conduct under the direction of the Attorney Regulation Committee;
- Investigate and, if necessary, prosecute violations of the Colorado Rules of Professional Conduct relating to trust account overdraft notification;
- Investigate and prosecute attorney disability actions;
- Investigate and prosecute petitions for immediate suspension of attorneys;
- Investigate and prosecute contempt proceedings for violation of the Colorado Rules of Civil Procedure regarding attorney discipline and disability;
- Investigate and prosecute violations of the Code of Judicial Conduct by Magistrates;
- Investigate and prosecute complaints alleging the unauthorized practice of law;
- 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;
- Represent and counsel the Colorado State Board of Law Examiners in formal hearings regarding applicants denied admission to the Colorado Bar;
- Serve as special counsel to the Commission on Judicial Discipline;
- Obtain appointment of inventory counsel in cases where a lawyer has become disabled, disappeared or died; and
- 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 from 5,000 to 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 1999, the ORC received 4,961 intake complaint calls and in 2000 the amount dropped slightly to 4,507.
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 2000, 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 dropped slightly in 2000, from 485 in 1999 to 432. Of those matters, 244 were acted upon by the Attorney Regulation Committee, with 140 being sent to formal proceedings. It took trial counsel in the ORC an average time of 25.6 weeks from the time the case was assigned, to complete the report of investigation. This is a slight decrease from 1999, even though ORC was not at full strength because of administrative leaves and vacancies.
The formal complaints filed and those pending from 1999, resulted in 29 trials and 34 other hearings regarding various matters, including reinstatement cases.
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 Regulation Counsel John Gleason’s office and have chosen to model their system after Colorado.
- 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 $300,000. 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 2000, 164 cases were concluded by the office of the PDJ and 63 days were spent by the Court in trial or evidentiary hearings. Interestingly, the number of cases filed with the Court in its second year of operation decreased to 107 from 149 in the first year.
One of the significant statistics is the length of time between trial and the issuance of a decision by the PDJ. The average time increased from 46 days in 1999 to 113 days in 2000. The PDJ attributes much of the increase in time to decision to a significant increase in motion practice in that Court, particularly motions for summary judgment and motions in limine. Acknowledging that a backlog of opinions began to develop during 2000, Judge Keithley’s report describes certain procedural changes, particularly in the handling of default proceedings that will make available more time for the preparation of decisions.
It should be noted that the opinions of the PDJ are now available through the LEXIS/NEXIS service as well as the Colorado Bar Association website and the PDJ’s office is coordinating efforts to place those opinions on the Colorado Court’s website.
- 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 totaled only $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 amounts 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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