May 23, 2013

Colorado Supreme Court: In Disciplinary Proceeding, PDJ Erred in Determining Issue Preclusion

The Colorado Supreme Court issued its opinion in In re Matter of Greene on Monday, May 20, 2013.

Attorney Discipline—Claim Preclusion—Identity of Claims—Same Criminal Episode.

The Attorney Regulation Counsel sought review of the Presiding Disciplinary Judge’s (PDJ) order granting summary judgment in favor of respondent David Jerome Greene. The PDJ found that all of the claims in the complaint for attorney discipline should have been joined and adjudicated along with the claims raised in a previous complaint. Therefore, they were barred according to the doctrine of claim preclusion.

The Supreme Court held that although the doctrine of claim preclusion applies to complaints for attorney discipline, a single claim in that context is analogous to a single “criminal episode” for the purposes of barring sequential prosecutions of the same defendant. Because none of the claims alleged in the instant complaint was identical with any claim that had already been finally adjudicated, according to that standard, the PDJ erred. The Court therefore vacated the order granting summary judgment in favor of Greene and remanded the case for further proceedings on the claims as to which summary judgment was ordered.

Summary and full case available here.

Colorado Supreme Court: Although Retaining Lien on U.S. Passport Improper, Hearing Board’s Decision Affirmed

The Colorado Supreme Court issued its opinion in In the Matter of Attorney G. on Monday, April 22, 2013.

Attorney Discipline—Retaining Lien.

The People challenged the hearing board’s dismissal of a complaint against an attorney who asserted a retaining lien on a U.S. passport. The Supreme Court held that the retaining lien statute does not authorize an attorney to assert a retaining lien on U.S. passports. Accordingly, although the Court will not disturb the hearing board’s order of dismissal, the Court disapproved of its rationale.

Summary and full case available here.

Citizen Lawyer John T. Baker Heads New CAMP Program

BakerJohnOn February 5, 2013, the Colorado State Judicial Branch named John T. Baker the first director of the newly-developed Colorado Attorney Mentoring Program (CAMP). I had the pleasure of interviewing Mr. Baker about his new role for CBA-CLE Legal Connection; our conversation is here.

Congratulations on being named director of the new Colorado Attorney Mentoring Program! 

Thank you, it’s really an honor. When I first heard about the program, I thought it sounded like something I would like to do, and I was delighted that they selected me as the first director. I am strongly committed to public service and this is my first time working for the public, so it’s a great opportunity.

How long have you been interested in mentoring? What inspired you to become a mentor?

I was mentored myself as a young lawyer. I had several mentors, including the senior attorneys at the firm where I worked and also including opposing counsel on my civil case at times. I spent 40 years as a plaintiff’s personal injury attorney, and I modeled my practice after the good attorneys on both sides of those cases.

From my mentors, I discovered the importance of learning the ropes—the things you don’t learn in law school, the practical aspects of practicing law. For example, when you go into the courthouse, the judges are very important and nearly every attorney is respectful to the judge. However, the clerks and the rest of the staff are important too, and they should all be treated with respect. Another example: when I receive the first pleading from an opposing counsel I don’t know, I arrange a social meeting—we have a cup of coffee together—so that we can get to know each other as people instead of as adversaries. I am hoping that, through CAMP, I can enable some young lawyers to learn these sorts of practical things also.

What is CAMP?

CAMP is a program that will be housed in the Attorney Regulation System, along with the other judicial department offices of Attorney Registration, Attorney Admission, and Continuing Legal & Judicial Education.  In addition to supporting existing mentoring programs, CAMP will  promote development of new mentoring programs where needed in each of Colorado’s 22 judicial districts for young attorneys or attorneys transitioning into private practice. The CAMP office will develop model  curricula for the mentors and mentees, certify  mentor candidates, and oversee the awarding of continuing legal education credits for the mentoring programs. These CAMP programs will be run by bar associations, inns of court, and other legal organizations. CAMP will collaborate where possible with the existing mentoring programs at CU Law and the Sturm COL at DU to avoid duplication of efforts and help provide a continuum of mentoring from law school into practice.

How did CAMP come about?

The CAMP concept has been in development for at least five years. Originally, then-DBA President Mark Fogg and Nancy Cohen, chair of the DBA mentoring committee, crystallized the idea of a state-wide mentoring program. Chief Justice Michael Bender, through his Commission on the Legal Profession, formalized the funding and structure of the statewide CAMP office. During the last two years, the Denver Bar Association, the Minori Yasui Inn of Court, and the 17th Judicial District Attorney’s Office all developed pilot project mentoring programs.

Can you paint a picture of how CAMP will work?

We are still working on the details, but we are planning to develop a curriculum for mentoring that can be utilized by law-related entities in each of Colorado’s 22 judicial districts. The bar associations and other legal organizations in the judicial districts will take charge of recruiting mentors and mentees for their own programs, and the CAMP office will evaluate the mentor candidates and make sure they are appropriate role models for new attorneys. The mentors must meet certain criteria—they must have been in practice for at least five years, have a good knowledge base, and have no history of discipline, for example.

The CAMP role is to provide guidance and structure while allowing the organizations in the individual judicial districts to do the mentor-mentee pairing. The individual organizations will do everything except certify the programs and mentors; that will be CAMP’s role. CAMP will also provide support to the individual organizations.

We would like to include materials for the mentors and mentees so that they will complete tasks together and move beyond a purely social relationship. We have been studying the existing mentoring programs—in fact, my first calls as director were to the mentoring programs at the CU and DU law schools—and we would like to see what has worked for the existing programs, what could be improved, and how we can incorporate mentor/mentee activities involving pro bono work, bar association committee involvement, or other community service activities  to act as the “glue” to cement a lasting mentoring relationship.

What are your goals as director of CAMP?

My primary goal is to have a mentoring opportunity available to all new lawyers or lawyers who are transitioning to private practice from public service in each of Colorado’s 22 judicial districts. I hope to see these programs develop so that the new lawyers can have someone to talk to and from whom they can learn the things they didn’t learn in law school.

In an article you wrote for the September 2009 issue of The Colorado Lawyer, you discuss the “citizen lawyer” concept. Can you explain that and tell us how it fits into the mentoring program?

Citizen lawyers are lawyers who are active and involved in community service and who use their legal skills to help people in their communities. This could be working on boards of directors for nonprofits, doing pro bono work, or even coaching their kids’ teams. The goal is to let the world see the good in lawyers, see lawyers as the compassionate and caring human beings we are.

When I was a new lawyer, I was encouraged and rewarded for such civic service. Today I think that it’s gotten harder for  lawyers to do this. Law practice is more demanding of the professional now. There is not as much time for new lawyers to  be community-oriented. Despite this I would like to instill the “giving back” part of being a lawyer into the new lawyers because it is often the most satisfying part of practicing law.

How will you further the citizen lawyer concept as CAMP director?

I would like to include a pro bono component, perhaps have the mentor and mentee work together on a community service project, and I would like to encourage the citizen lawyers of the community to become mentors.

How can attorneys become involved in CAMP, either as mentors or as mentees?

Anyone interested in becoming a mentor or a mentee can contact the CAMP office, or they can email me directly. Also, the individual judicial districts will publicize their mentoring programs, and it will be publicized by the bar associations and inns of court. We are also working on establishing a web presence—we will soon have our own webpage and blog, and we will also be on social media, such as Facebook, LinkedIn, and Twitter.

John T. Baker is the director of the Colorado Attorney Mentoring Program in the Attorney Regulation System of the Colorado Judicial Department . Prior to that, he served as the Executive Director of NITA, and was an attorney in private practice for 40 years. He is very active in his community and in the Denver and Colorado bar associations, and he received the DBA Award of Merit in 2007 for his outstanding service.

Congratulations to John Gleason, 2013 Recipient of the ABA Michael Franck Professional Responsibility Award

GleasonJohn Gleason, former Chief Regulation Counsel for the Colorado Office of Attorney Regulation Counsel, has been selected to be the 2013 recipient of the ABA Michael Franck Professional Responsibility Award. The award will be presented at the 39th National Conference on Professional Responsibility on May 30-31, 2013.

The Michael Franck Award is given annually to attorneys whose career commitments in areas such as legal ethics, disciplinary enforcement, and lawyer professionalism demonstrate the best accomplishments of lawyers. It is named in honor of Michael Franck, the former director of the State Bar of Michigan who embraced professional responsibility and worked to improve lawyer regulation in the public interest. He strove to turn intellectual honesty, compassion, and uncompromising ethics to every aspect of the practice of law.

Mr. Gleason is active nationally with the National Organization of Bar Counsel, the National Organization of Judicial Counsel, and the American Bar Association, and he is president of the Board of Directors of the National Client Protection Organization. In early 2013, he accepted a position as the Oregon State Bar’s Director of Regulatory Services, where he is now.

While at the Colorado Office of Attorney Regulation, he served as a member of the Colorado Supreme Court’s Judicial Council and Standing Committee on the Rules of Professional Conduct. Additionally, he was an adjunct professor of law at the University of Denver Sturm College of Law and adjunct faculty member at Columbia College-Denver. Mr. Gleason received national recognition recently for his work investigating and prosecuting Maricopa County Attorney Andrew Thomas in Arizona. He spoke about his experience for CLE in July 2012 (click here to order the homestudy). He also was interviewed for The Docket about the Arizona case.

James Coyle to Replace John Gleason as Head of Office of Attorney Regulation Counsel

On Thursday, February 28, 2013, the Colorado Supreme Court announced that James C. “Jim” Coyle will be the new Chief Regulation Counsel at the Colorado Office of Attorney Regulation Counsel, effective March 1, 2013. He will replace John Gleason, who announced in January his retirement from the Colorado OARC and move to Oregon to become the Oregon State Bar’s Director of Regulatory Services.

Jim Coyle has been with the OARC since 1990, and has been Chief Deputy Regulation Counsel since 2010. For the first 10 years with the Office, he prosecuted lawyers in disciplinary, disability and contempt proceedings; represented the Board of Law Examiners in admissions cases; and represented the Unauthorized Practice of Law Committee in investigating and prosecuting injunctive and contempt proceedings against non-lawyers. From 2001 through 2011, Jim supervised the trial division of the office. He has also acted as counsel for the Colorado Commission on Judicial Discipline. He is a frequent presenter for CBA-CLE on topics related to professional responsibility and practice of law.

Mr. Coyle was selected as one of three finalists for the position of Chief Regulation Counsel from a pool of over 100 applicants. The finalists were nominated by the Supreme Court Advisory Committee, and the Colorado Supreme Court made the final selection.

For the full announcement from the Colorado State Judicial Branch, click here.

John T. Baker Named Director of New Colorado Attorney Mentoring Program

BakerJohnOn Tuesday, February 5, 2013, the Colorado State Judicial Branch announced that attorney John T. Baker was named the director of the new Colorado Attorney Mentoring Program (CAMP) in the Office of Attorney Regulation Counsel. The CAMP program is designed to increase training of new lawyers and provide them more support in order to further one of the main goals of the Chief Justice’s Commission on the Legal Profession.

Mr. Baker is currently a sole practitioner in Denver, concentrating his practice on complex litigation and public interest law. Prior to that, he worked at Bragg & Baker, a plaintiff’s personal injury firm, where he specialized in products liability. Mr. Baker is active with the Denver and Colorado bar associations, and he was president of the DBA in 2008-2009. He also teaches frequently on the topics of professionalism and litigation.

As the director of CAMP, Mr. Baker will partner new lawyers in their first three years of practice with experienced attorneys in order to foster pride in the profession, excellence in the courts, and strong relationships between the bench and bar and the public. Mr. Baker will begin as director on February 25, 2013.

John S. Gleason to Receive President’s Award from National Organization of Bar Counsel

GleasonJohn S. Gleason, Chief Regulation Counsel for the Colorado Office of Attorney Regulation, will be honored by the National Organization of Bar Counsel in February. He has been selected to receive that organization’s highest honor, the President’s Award, for his adroit dedication to the legal profession and his many years of contributions in the areas of legal ethics, professional responsibility, and disciplinary enforcement.

Mr. Gleason is active locally and nationally with the National Organization of Bar Counsel, the National Organization of Judicial Counsel, the American Bar Association, and the Colorado Bar Association, and he is president of the Board of Directors of the National Client Protection Organization. He also serves as a member of the Colorado Supreme Court’s Judicial Council and Standing Committee on the Rules of Professional Conduct. Additionally, he is an adjunct professor of law at the University of Denver Sturm College of Law and adjunct faculty member at Columbia College-Denver.

Mr. Gleason received national recognition recently for his work investigating and prosecuting Maricopa County Attorney Andrew Thomas in Arizona. He spoke about his experience for CLE in July 2012 (click here to order the homestudy). He also was interviewed for The Docket about the Arizona case.

The National Organization of Bar Counsel will bestow the President’s Award on Mr. Gleason on February 6, 2013, at its mid-year meeting in Dallas.

Out of State Attorneys and Ethics – Your Questions Answered

In this age of technology, the importance of physical proximity is diminishing. With an electronic device and a wi-fi connection, a law practice can be operated practically anywhere. An attorney from, say, New York could theoretically remotely operate a New York practice out of Colorado. The question, though, is whether this is ethical.

Another scenario is for an out-of-state attorney to work on Colorado cases pro hac vice. Would the out-of-state attorney need co-counsel in Colorado? What if some ethical violation were committed—where would the grievance be filed? Would the co-counsel face discipline as well?

Finally, is it ethical for an out-of-state attorney to live and practice in Colorado if he or she only does federal work? What happens if that attorney violates ethics rules—is there any recourse?

We asked these questions of Amy DeVan from the Colorado Office of Attorney Regulation Counsel. She, along with colleague James Coyle, will present on these issues at a lunch program on Thursday, December 27, 2012 at noon at the CLE offices. It is a perfect opportunity to get your questions answered while fulfilling ethics requirements.

CLE Program: Blurring the Lines: Cross-Border Practice of Law

This CLE presentation will take place on Tuesday, December 27, 2012, at 12:00 p.m. (noon). Click here to register for the live program, or click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

Colorado Supreme Court: Reinstatement of License to Practice Law Inappropriate While Still Serving Parole as Part of Felony Conviction

The Colorado Supreme Court issued its opinion in In the Matter of Miranda on Tuesday, November 27, 2012.

Attorney Discipline—Reinstatement to Practice Law After Suspension for Felony Criminal Conviction—Parole—CRS § 18-1.3-401(3)—CRCP 251.29.

In this appeal, the Supreme Court considered whether the Hearing Board erred in reinstating Michael Miranda to the practice of law. Miranda is currently serving the mandatory parole portion of his felony criminal sentence for vehicular homicide/DUI.

The Hearing Board reinstated Miranda after concluding he had proven by clear and convincing evidence his rehabilitation, fitness to practice law, and compliance with disciplinary orders, as required by CRCP 251.29. However, the Court held that § 18-1.3-401(3) of the Criminal Code bars convicted felons from practicing law while they serve out all components of their sentences, including parole. Therefore, the Court reversed the Hearing Board’s order reinstating Miranda to the practice of law.

Summary and full case available here.

Judicial Ethics Advisory Board Opinion: Judge who Reports Attorney to OARC Must Disclose this When Attorney Before Judge

On Monday, October 15, 2012, the Colorado Judicial Ethics Advisory Board issued Opinion 2012-06.

The Judicial Ethics Advisory Board considered a situation in which a judge had reported an attorney to the police and  Attorney Regulation Counsel. The judge recused from all cases involving the attorney but recently learned that Attorney Regulation Counsel closed the disciplinary proceeding with no action and no police action occurred. The judge feels he can be fair and impartial to the attorney and seeks an opinion regarding whether he is required to disclose his reporting of the attorney, now that the case is closed.

The Judicial Ethics Advisory Board concluded that the judge is only required to disclose his involvement with the attorney’s criminal and disciplinary actions as long as those cases are open. If the cases are closed, the judge has no requirement to disclose his reporting of the attorney. The opinion was based on the Board’s decision in Opinion 2011-01, where the Board determined that a report of misconduct alone is not enough to mandate recusal, unless the facts and circumstances would cause a reasonable person to doubt the judge’s impartiality.

Information about the Colorado Judicial Ethics Advisory Board, as well as all of the Colorado Judicial Ethics Advisory Board Opinions, can be found here,

Colorado Supreme Court: Attorney Sanction Reversed; Board Erroneously Concluded that It Lacked Discretion and Was Compelled to Impose Public Censure

The Colorado Supreme Court issued its opinion in In the Matter of Attorney F on September 10, 2012.

Attorney and Client—Office of Attorney Regulation—Discipline—Public Censure.

The Supreme Court reversed the Hearing Board’s (Board) sanction in this attorney discipline proceeding because the Board erroneously concluded that it lacked discretion in choosing a sanction and was compelled by the Court’s case law to impose a public censure. The Court remanded the case for a redetermination of the appropriate sanction so that the Board may exercise its discretion. The Court affirmed the Presiding Disciplinary Judge’s order denying respondent attorney’s motion to compel removal of the publication of the Board’s disposition posted on the Office of Attorney Regulation Counsel’s website, because the information posted complies with the Court’s rules of procedure regarding attorney discipline proceedings.

Summary and full case available here.

Colorado Court of Appeals: Office of Attorney Regulation Counsel is Part of Judicial Branch and Is Not Subject to the Colorado Open Records Act

The Colorado Court of Appeals issued its opinion in Gleason, Supreme Court Regulation Counsel v. Judicial Watch, Inc. on April 26, 2012.

Colorado Open Records Act—Colorado Judicial Branch.

Both petitioner, the Supreme Court Regulation Counsel, and the Office of Attorney Regulation Counsel (collectively, regulation counsel) and respondent, Judicial Watch, Inc., appealed the trial court’s order granting most of respondent’s request for records and denying the rest. The order was affirmed in part and reversed in part, and the case was remanded.

Judicial Watch requested that regulation counsel grant it access to certain records under the Colorado Open Records Act (CORA). The records pertained to the appointment of regulation counsel by the Chief Justice of the Colorado Supreme Court, at the request of the Chief Justice of the Arizona Supreme Court, to investigate the conduct of lawyers in Arizona. Regulation counsel denied Judicial Watch’s request.

Regulation counsel asserted that the trial court erred in granting any of Judicial Watch’s request for records. Regulation counsel is subject to the direction of the Supreme Court, and participates in the process of regulating attorneys. Thus, regulation counsel is part of Colorado’s Judicial Branch of government. CORA does not include the judiciary within the terms “state” and “state agency.” Because regulation counsel is part of the Judicial Branch, it likewise is not part of the state or a state agency for the purposes of CORA. Therefore, the trial court erred when it concluded that CORA governed Judicial Watch’s request for regulation counsel’s records and that those records must be disclosed under CORA. The case was remanded to the trial court to enter an order denying Judicial Watch’s entire request.

Summary and full case available here.

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