Pro se attorney litigant entitled to full First Amendment procedural and substantive rights, undaunted by attorney’s professional duties under the Colorado Rules of Professional Conduct, in zealously advancing his or her litigation.  In Matter of Foster, 10SA89 (Colo. 5-23-11).

In a case of first impression, the Colorado Supreme Court held that a pro se attorney litigant cannot be denied or limited, on the basis of the professional duties imposed on attorneys by the Colorado Rules of Professional Conduct, the First Amendment’s full procedural and substantive protections to litigate his or her pro se case zealously, but that litigation conduct which is both 1) objectively baseless, and 2) pursued for a subjectively improper purpose, is not protected by the First Amendment.

After hearing, attorney Foster was found to have violated Colo. RPC 3.1 (bringing a frivolous action) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) in pursuing, pro se, lengthy and numerous post-dissolution of marriage related litigation and appeals against his ex-wife, Nunn.  Foster’s pre-hearing motion for summary judgment, which asserted that his litigation against Nunn was protected by his First Amendment rights to petition through the courts for legal redress, was denied.  Although finding the vast majority of his actions were either not frivolous or not proven to be frivolous, and in fact in some instances were partially successful, the Board also found that one of his appeals was partially frivolous because it duplicated claims previously litigated and lost, and that in the aggregate his lengthy and numerous actions reflected his desire to “vex and harass” Nunn notwithstanding his genuine belief that his arguments had a legitimate basis to obtain favorable relief.  In so finding, the Board rejected Foster’s First Amendment defense, holding that his rights to freedom of speech and access to the courts do not immunize him from the professional duties imposed on him by the Colorado Rules of Professional Conduct.

On appeal, the Colorado Supreme Court “categorically reject[ed]” the Hearing Board’s intimation that attorneys may be disciplined for engaging in conduct protected by the First Amendment, citing NAACP v. Button, 371 U.S. 415 (1963) [“a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”].  The Court reasoned that the First Amendment, which provides that “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances” cannot be infringed by state government [14^th Amendment to the Constitution], and that access to the courts, i.e., litigation, is one of the “essential mechanisms” by which citizens may exercise their right to petition.  Citing numerous United States Supreme Court decisions, the Court concluded that a “subjectively improper motive” alone is not sufficient to hold that litigation is a misuse of the First Amendment right to petition and thus not within its protections, but that such litigation must also be “objectively baseless,” i.e., “a mere sham,” to constitute such a misuse in the context of a state’s regulation of petitioning activity, and that attorneys are entitled to the same level of First Amendment protections as non-attorneys.

The Supreme Court held that the procedural due process protections it had articulated in Protect Our Mountain Environment v. District Court, 677 P. 2d 1361 (Colo. 1984) (POME) for civil litigants, to ensure the viability of the First Amendment right to petition through the courts against indiscriminate assertions that such litigation is a mere sham and thus not protected, apply as well to attorney disciplinary proceedings involving pro se attorney litigation conduct, and give the litigant a right to file a pre-trial motion to assert a First Amendment defense thereupon shifting the burden to the other side to show a reasonable basis for the trial court (or PDJ) to conclude that the litigant’s conduct in advancing his or her position in the underlying litigation was not protected by the First Amendment.

The Supreme Court concluded that as to Foster’s aggregate conduct throughout the litigation, inasmuch as the Hearing Board determined there was insufficient evidence to conclude it was frivolous, such conduct was not “objectively baseless” and therefore was protected by the First Amendment without consideration of his subjective motivation for the lengthy and bitter course of litigation, and that the board’s findings in any event did not support a conclusion of improper motive.