Good Grieve!

Overloaded with complaints about attorneys, the Colorado Supreme Court decides to change the rules.

"A lot of times it's borderline where disciplinary proceedings are warranted," he says. "An investigator doesn't always want to make the hard decision about whether a case goes forward; the inclination is to let someone else decide if there's a serious ethical violation. If an investigator knows that he ultimately has to prosecute this thing, he may do his investigation better."

Dan Post says the changes are encouraging but fail to address what he believes are inherent conflicts in the system. An attorney who has represented colleagues facing disciplinary action, including one ex-lawyer who is challenging his disbarment, Post recently filed his own lawsuit against the ODC and its chief, Linda Donnelly, claiming he'd been targeted for investigation in retaliation for criticizing the office. "I don't like losing cases, but if I feel that I got a fair shake, then I understand it," Post says. "But Colorado's [disciplinary] system, in which the court serves as judge, jury and prosecutor, doesn't have the appearance of fairness."

Post notes that other licensed professionals, such as doctors or chiropractors, can appeal any disciplinary decision by their state regulatory boards to an independent body, the Colorado Supreme Court; for lawyers, however, the court runs the whole show, from appointing prosecutors and hearing officers to deciding appeals. Several states have chosen to place attorney regulation in the hands of the state bar association or some other entity, he notes, but in Colorado "there's been a move to consolidate the power" in the hands of the Supreme Court.

Still, Post believes the diversion programs and other changes are a step in the right direction, away from the "prosecutorial mindset." He recalls one frustrating attempt to contact the court anonymously about a colleague's drinking problem: "I was told that I had an ethical obligation to report this attorney, and if I didn't do that, I could be disciplined for not reporting. I don't see how that helps anybody."

Figa concedes that "there's a lot of fear and loathing out there about the system," but he believes that the effort to streamline disciplinary procedures will help instill greater public confidence in lawyers' ability to police themselves--and maybe get a few client phone calls returned, too.

"Obviously, the disciplinary process is to punish ethical violations, not merely discourtesies," he notes. "But at some point, the failure to return phone calls and so on becomes serious. I don't anticipate that we'll have official nannies for lawyers, but sometimes lawyers don't realize the pain and difficulty they cause by discourtesy.

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