Two attorneys can live in a town where one cannot," proverb collector V.S. Lean noted a century ago.
Colorado's booming economy has brought a corresponding surge in the number of practicing attorneys in the state--now estimated at around 20,000, with actual attorney registration pushing 28,000. And with the disputatious tide of lawyers comes a much-argued-over problem: how best to protect the public from the least scrupulous members of the profession.
Alarmed by the increasing complexities, delays and workload involved in the state's current system of investigating complaints against attorneys, the Colorado Supreme Court has ordered the first major overhaul in twenty years. Many attorneys say the changes in the disciplinary process will make it more efficient and more accessible to the public and less painful for attorneys accused of minor misconduct. But others say the reforms--some of which went into effect last week, with other changes to be implemented next year--won't magically fix a system they regard as capricious, intimidating, overly secretive and unduly convoluted, even by lawyers' standards.
"Overall, this is some real substantial change," says Phil Figa, a former president of the Colorado Bar Association who has frequently represented attorneys in disciplinary proceedings. "It's fairly radical. My hope is that it will result in a more responsive practicing bar."
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"I think the changes are positive, but they don't go far enough," says Greeley attorney Dan Post, a critic of the old disciplinary process. "It's still essentially a closed system from beginning to end."
Under the old system, anyone who wanted to complain about an attorney's professional conduct had to file a form with the Colorado Supreme Court Office of Disciplinary Counsel (ODC), which boasts a full-time staff of trial lawyers supervised by the court. Actual hearings of disciplinary matters were conducted by yet another entity, the Grievance Committee, a court-appointed body of 25 members, including 18 lawyers, who served as investigators and hearing officers. Minor transgressions could result in an attorney receiving a private letter of reprimand; more serious offenses could lead to public censure, suspension of a lawyer's license or disbarment.
In recent years the staffing and budget for disciplinary matters have grown dramatically--last year the combined budget for the ODC and the Grievance Committee topped $2 million--but the increase has failed to keep pace with the rise in the number of cases. In 1997, 1,557 grievances were filed with the ODC. A study by the American Bar Association found that it was taking ODC investigators four to six months to even begin to tackle new cases because of the existing backlog; on average, serious cases were taking close to two years to resolve, because the process involved extensive review by the hearing panels and the Supreme Court itself. Yet 80 percent of the cases clogging up the system were minor in nature, including many fee disputes, and resulted in little or no action against the attorney involved.
The ABA recommended replacing the complexly structured Grievance Committee with a smaller, more manageable body and streamlining both the range of disciplinary options and the appeals process. Other suggestions poured in at hearings the Supreme Court held earlier this year.
Perhaps the most startling change that the court adopted comes at the front end: Complainants can now phone in their grievances to a central intake office, which will attempt to speedily resolve minor issues before they get out of hand--by, say, contacting an attorney who hasn't returned client phone calls and requesting an immediate conference with the complainant. Some attorneys fear that the phone-in plan will merely encourage more frivolous grievances, particularly from prisoners, but others argue that the informal screening process will benefit both parties.
"We think this is going to shorten the process and make it more timely," says Chuck Turner, executive director of the Colorado Bar Association. "Legitimate grievances are dropping out of the system because it's perceived as too burdensome."
Dan Schendzielos, chair of the CBA's grievance policy committee, says the new system should help attorneys as well, because fewer of them will wind up having relatively minor cases hanging over their heads for months or years. "The bar wants the public to have confidence in our ability to ferret out those members who are a danger to the public," he says, "but attorneys will benefit, too, because there will be a quicker resolution to most complaints."
In an effort to further whittle the caseload, the new system also allows minor offenders to be placed on "probation" or sent into diversion programs ranging from substance-abuse counseling to continuing legal education, classes in office management, or even a proposed "ethics school." CBA's Turner acknowledges that the diversion programs could be viewed as a way for attorneys to hide their dirty laundry--an attorney who successfully completes the program can have his file expunged so that no outside party ever learns of the complaint or its outcome--but he argues that it makes sense to address the underlying problem rather than simply focus on punishment. "This way," Turner says, "you're trying to fix the problem instead of imposing some private letter of admonition. How much satisfaction does the client get out of that?"
Other significant changes include the establishment of a special fund to reimburse clients who've been victimized by attorneys raiding their trust accounts, greater public access to disciplinary files, the hiring of an administrative law judge to preside over disciplinary hearings, and a move toward "vertical integration": Instead of splitting up the processing of a complaint among a bewildering array of investigators and trial prosecutors, one lead counsel would be responsible for developing a case from start to finish. Figa believes that vertical integration will take some of the unpredictability out of the system.
"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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