Dear Fellow Bar Members,
I am here today with Jim Coyle, Regulation Counsel for the Colorado Supreme Court, to gain a better understanding about what the Office of Attorney Regulation (OARC) does, and to debunk some of the myths and concerns about the grievance process.
Thank you, Dan. The OARC regulates the practice of law in Colorado. We handle administration of the bar exam, and all components of the admissions process.
We handle on-motion applications, and the annual registration process for all Colorado attorneys. We handle mandatory continuing legal and judicial education requirements, as well as attorney discipline and diversion, for violations of professional conduct.
We regulate unauthorized practice of law by non-lawyers. We assist the client protection program in the administration of its duties for payments to clients. We also oversee the conduct of attorney inventory counsel functions when an attorney dies or retires.
Before we get into the grievance process, can you tell our readers a little bit about the risk management functions of your office?
Our office has a long-term relationship with Colorado lawyers. We start in the law schools, where we meet with law students beginning the first week of orientation. We also present several programs throughout their law school career.
We administer the Professionalism School, where we explain/present to bar admittees the issues they may face as new lawyers.
We help identify trends, emerging risks, current risks, and potential risks in the practice of law, and try to provide tools that may be helpful to the lawyer in addressing those risks.
Does the OARC monitor changes in the focus of an attorney’s practice? If so, how do you do that and why?
Every attorney registers on an annual basis, and at that time they declare what type of practice they have. When attorneys transfer from public service to a small practice, we identify them as potential risks. When they do a change of address form or their annual registration notifying us of that change, we give them a self-audit check list and a list of things that they should do before they open their new practice for business.
Similarly, when lawyers move from a large firm to a small or solo practice, we identify the risks involved in that transfer, and encourage them to learn more about issues such as trust accounts.
Can you give us a brief overview of the grievance process? Beginning with a complaint against a lawyer, what are the steps the OARC takes from the receipt of a complaint to resolution?
There are approximately 4,000 requests for investigations every year against Colorado attorneys or out-of-state attorneys who practice law in Colorado. (We also have jurisdiction for the latter.) In the initial stages, all a client—or any party who has a grievance against a lawyer—has to do is pick up the phone and call us.
There are two intake clerks who record the complaint information and assign the matters to intake lawyers, who then interview the complaining witness.
In some instances, the attorney may never know that he or she has been grieved. In circumstances where we need more information, we may call the attorney. Or if it appears to be something that may lead to a full investigation, we will ask the complaining witness to document the matter in writing for our review.
We then give the attorney written notice and an opportunity to respond. We try to complete the intake process as quickly as possible and definitely within three weeks, so as to decide whether a full investigation is in order.
Of those 4,000 requests for investigations, typically only 500 need to be processed for full investigation. Then it goes over to the trial division, where we have other lawyers and non-lawyer investigators who work with the cases. They conduct interviews, collect documents, and make conclusions as to whether or not there was a violation of the rules. They file a report within six to eight months, after which the matter can be either dismissed by me or approved for an alternative discipline with conditions and be set for formal proceedings.
For a matter to go to formal proceedings, we need authority from the Attorney Regulation Committee (The Committee). The Committee votes on reasonable cause to believe that the lawyer actually did engage in the misconduct.
Who are the members of the Committee and how does the Committee function?
The Committee comprises six lawyers and three non-lawyers, who meet monthly. If the Committee decides to make it a formal complaint, the OARC files the matter for formal disciplinary proceedings. Last year, we filed forty-seven complaints in matters, and seven disability petitions.
You said there are about 4,000 requests/complaints a year and about 500 of those may go to formal investigation. So are the rest of them dismissed on intake? What about diversions?
Yes, dismissed, or an alternative to discipline. Of the matters that are sent for formal investigation, we have approximately fifteen to twenty contested hearings every year.
A diversion can take place during intake, investigation, trial, or even after a formal hearing if the hearing board concludes that a diversion agreement would be most appropriate.
What would a typical diversion or diversion agreement entail?
Remember that we have a long-term relationship with all Colorado lawyers—we want them to succeed. We also have to protect the public. That’s our primary purpose. If we could protect the public and also help the lawyer, it’s a win-win situation for everybody.
So, a diversion agreement is a matter that does not involve serious misconduct that would result in greater discipline. It does not involve dishonesty or other articulated acts in our guidelines.
Diversion agreements usually involve conditions in monitoring that require a practice audit by experienced counsel. It could require a mental health exam and monitoring, or regular counseling to make sure that the lawyer is doing everything he or she needs to do to become rehabilitated.
Are there any red flags or common errors that lawyers commit which result in discipline?
The matters that result in discipline are the ones in which we have a concern about future clients, meaning that either the lawyer needs to improve his or her practice or discontinue engaging in certain practices to avoid potentially causing greater harm to prospective clients.
As far as your common variety neglect goes, we all make mistakes. We all could do a better job in analyzing a particular claim or in doing a further investigation, and it’s only when there’s a pattern of misconduct and it continues to affect the lawyer’s practice that discipline is needed. Prior to that, the goal is to rehabilitate the lawyers, to get them back on track.
What can a lawyer, who is facing a complaint by a client to OARC, do to mitigate the risk that that grievance will develop into a full investigation or proceed to a hearing?
I always encourage any lawyer in that position to buy at least an hour’s worth of time from a competent, experienced ethics counsel and to get an idea of the seriousness or the gravity of the complaint. This allows the lawyer to get a good night’s sleep. They will better understand their exposure, and the likelihood of discipline, and they will be able to continue to go on with their lives during the entire regulatory process. But it also helps them identify where there are weaknesses. Because, again, if our primary function is protection of the public—those future clients—we want to identify those weaknesses as soon as possible and make sure that there is no continuing injury to either that client or any other client.
If there is an identified issue of failing to meet deadlines, then they should institute a proper calendaring system, and other checks on their practice to ensure meeting deadlines. That goes a long way in the regulatory process.
Similarly, if they have mental health or substance abuse problems, and they start to do what they need to do to address them, that demonstrates an attempt to address the problem. And that is a good sign that the lawyer has a desire to improve and will improve in the future.
Is there anything else that you would like to tell our readers about OARC?
The goal of OARC is to protect the public. And we’re lucky in that we’re a self-regulating profession. To continue to be self-regulating, we have to do a really good job. If we can do that, and rehabilitate the lawyer, and prevent the misconduct in the beginning, then we are all better served.
Thank you Jim.
Daniel R. McCune
President, Denver Bar Association