Behaving Badly - Elizabeth A Starrs

One of the dirty little secrets of the legal profession is that some of its members are without any sense of morality and the profession could care less; They will happily go into a courtroom and argue that the opposing litigant should have anticipated even the remotest of events; or had a duty to do thus and such; or maliciously acted against the interest of their client; or behaved unethically; or intentionally committed a dastardly deed; Whatever the situation, justice and accountability demand that jurors reward them and their clients handsomely

One of the questions that these “advocates” are never asked is whether when they live their own lives, run their own businesses, and participate in the community, they live up to the standards they demand of others

The short answer is that they do not. Some of them don't even come close.

There is a fear among members of the legal community that jurors will google them while a trial is ongoing. While a judge can order a juror not to do such a thing, the legal community has noted that such an order is almost unenforceable, especially if the juror doesn't tell anyone of this particular misdeed.

While we would never encourage this kind of juror misconduct, we too recognize that it might happen. We want potential clients to recognize that it might happen, and that if it did, they would never know why they lost their lawsuit, only that they had substantial legal bills and whatever penalty the jury might feel appropriate.

We don't choose Behaving Badly subjects lightly. We do our best to ensure that what we write is true, and to make certain, we normally send the subject a set of questions and give him/her adequate time to answer them. We began writing this series when it became obvious that the legal system willingly damages the public and considers itself unanswerable to citizens. It seeks to acquire its invulnerability from the courts and is thus very interested in making judges and justices as free from accountability as they can manage.

Today's behaving badly subject is the President of the Colorado Bar Association, Elizabeth A, Starrs She claims to be “one of the most experienced and respected civil trial lawyers in Colorado.”

Under the leadership of Ms. Starrs and her predecessors, the Colorado Bar Association has become a rogue institution which acts in every way possible to damage the public. As with any less than honest trial lawyer, the Bar Association always cloaks its arguments in the high minded claims that it is protecting judicial independence and that it wants to avoid politicizing the judiciary. One of its best sounding arguments is the one that claims that anyone who is dissatisfied with the justice they received is only a disgruntled loser and thus any observations about the fairness of the process are to be discounted.

Any good trial lawyer will tell you that if you can catch someone in a lie, you are well on the way to winning. Ms. Starrs' wrote, and helpfully has posted some very curious statements in her message to Colorado Bar Association members, titled Protect Colorado Courts II (pdf) which we are linking through her own site.

In Colorado, the attacks on our courts seem to be escalating. For example, in June 2006, an editorial in The Denver Post called a ruling by the Court of Appeals “ridiculous.” That same month, Dick Lamm, former Colorado Governor, characterized a decision handed down by the Colorado Supreme Court “outrageous judicial activism . . . raw, naked politics.

So, what set Dick Lamm off ? Simply that it took the Colorado Supreme Court five months-150 days-to decide whether a 40 word proposed initiative contained one, or two subjects. The legislature had set a limit of only 90 days for District Court judges to make decisions, but the Supreme Court couldn't meet this deadline on so simple a matter. Did Lamm suspect that the Court withheld its decision until it was too late to get replacement wording on the ballot? You be the judge of the wording he used.

In Elizabeth Starrs' warped little world, the courts are not to be criticized even when they deserve it:

Failing to defend the judicial system when this harsh rhetoric occurs encourages extremists to push for laws that undermine the court’s ability to protect individual citizens through the evenhanded application of the law to the facts.

This is a sentence that is rich in irony. Some years ago, the legislature passed a law which required 90 day decisions at the District Court level. The Supreme Court published a set of ethics rules for judges that require much the same thing. In 2000, the legislature passed a new law allowing citizens who were damaged by decisions that took more than 90 days to produce be allowed to complain and ask that 90 days of the judge's pay be forfeit. Since the Supreme Court would be required to report such an event, it is clear that it ignores this law. Furthermore, its own actions indicate that it is not alarmed in any way when a District Court takes two years or more to issue decisions.

Very recently, the staff, and perhaps the Chief Justice of the Colorado Supreme Court, appears to be involved in a scheme to ensure that the maximum penalty a former judge received for an apparent felony theft of a $1500 computer was a secret reprimand. When we asked ms. Starrs if she was calling for an investigation, she declined to answer. That is the even handed application of the law to the facts that she wants to defend.

What word does Ms. Starrs reserve for those who even consider laws that might make the Supreme Court obey the law and the ethics rules it publishes but does not enforce? Why, we are the extremists who push for laws. Does the 2000 legislature also qualify as extremists when it was trying to put teeth in a law the Supreme Court would not honor, and still will not honor.

If there is one consolation on this fine Easter Sunday, it is that she did not claim that those who want a system put in place that creates real penalties when ethics rules are not enforced deserve a special place in Hell as Mike Merrifield said of his enemies. No, we are merely extremists, a well measured word from one of the most experienced and respected civil trial lawyers in Colorado.

Underlying many criticisms of the judiciary is a demand for greater accountability.

Doh! Let's put the dollars on the table. As long as the Colorado judiciary remains unaccountable, the legal profession has absolutely no fear that it will ever be held to the plain language of its own ethics rules. This past week, it was announced that the liability fund to which individual lawyers pay the princely sum of $20/year was running out of money. There was fear that the Supreme Court might order the lawyers to pay more.

At the same time, another lawyer was at the Colorado legislature testifying that home builders should be forced to pay $100,000 a year for the same level of protection that the Supreme Court provides for lawyers.  That is the even handed application of the law she seeks.

In 2006, she led the CBA in a fight against an "extremist" proposal that would have required individual Supreme Court justices to come before the voters once every four years, rather than once every ten.  What was she willing to spend?  Again, we use her own words, this time from another message to the Bar Association "Coloradans are committed to an independent judiciary." 

The Vote No 40 campaign cost nearly $1.3 million to prevail against an insidious attempt to politicize the judiciary.  The amount is more than the Colorado Legal Aid Foundation's annual budget for this past year.  That is money that could have been spent on so many other things that are important to us, such as providing legal services to the economically disadvantaged, educating the public about the legal system, or expanding our legal research capabilities.

The CBA has neither the time nor the money at our disposal to repeatedly engage in such demanding effort. 

For the continued privilege of paying $20/year into a liability fund, this woman was willing to spend any amount she could raise from any source she could find to beat an "insidious" attempt to make the justices accountable enough that they might be forced to create a legal ethics system that actually protected the public.

Going back to the first message we were quoting:

Colorado's system of accountability for judicial officers includes bipartisan Judicial Performance Commissions...judicial performance commissions work just as performance evaluations in any job do,

The thrust of Amendment 40 is that Colorado voters cannot be trusted to decide which judges to retain.

The fact is that the voters CAN be trusted, and that is what she fears.  In February, she sent the CBA lobbyist to the legislature to ensure that the voters NEVER get an unbiased performance evaluation.  She likes the current system just fine, where the Chief Justice appoints three of the state commission members directly and where six of the ten members either owe their appointment or their livelihood to the Chief Justice.  Nothing in the law requires that these commissions be bipartisan, and all four appointing authorities are currently Democrats. 

There are so many lawyers on the district judicial performance commissions (4 of 10) that they control the discussion in a way that prevents the non lawyer members from making a decision that results in a fully informed voting public.  For example, this author provided a detailed case for the non retention of a judge who wouldn't allow an unethical lawyer to be disciplined and wouldn't stop the misconduct.  The public was told nothing of the controversy.  Any lawyer who states that performance commissions always works is not even a good liar.

As for the Commission on Judicial Discipline, the story of the former judge who appears to have stolen a laptop should tell a lot about its operation.  Its membership is ten members, four judges, two lawyers, and four non lawyers.  Not one of those people would even consider questioning the actions of the Chief Justice or her staff over the issue.  And yet, Ms. Starrs lists that commission as another protection for the public. 

This is the fraudulent unaccountable system that “one of the most experienced and respected civil trial lawyers in Colorado” is passing off on the public.

We asked her eight questions, which she declined to answer for this piece.  One of the questions involved her law practice.  "Have any of your law partners, or any other lawyers in your law firm objected to the CBA position on judicial independence / accountability or anything else covered in these questions, and if so, who and how?"

Based on her failure to answer, we assume that the following lawyers from Starrs Mihm and Cashette, LLP fully endorse her positions and actions:  Elizabeth A Starrs (founding partner),  Michael T. Mihm (founding partner),  Rich Cashette (founding partner)  Ross Pulkrabek (partner)  Elizabeth J Hyatt (associate)  Elizabeth Smith (associate)  Anna N. Martinez (associate) Anna N. Martinez

Additional notes:  For those who wonder what is going on, the author was involved in a lawsuit where he found it impossible to stop plainly unethical practices by the opposing attorney.  No part of the legal ethics enforcement system worked (Attorney Regulation, Judicial Discipline, or the Judicial Performance Commission) and there is no evidence that anyone has any interest in fixing any part of it.  This week, we learned that Attorney Regulation was content to allow that same attorney to damage someone else.  The attorney has now had his license suspended, but has not answered, and will never answer for the damage he did to us.  That tidbit leaves us to believe that the judicial performance commission gave the judge a total pass when it declared him "an asset to the community." That should alert the public as to just how fraudulent the systems are.

As the months go by, hardly a week passes without our learning more about the game and the players, none of it positive news for the people who believe that the lawyers should protect judges, judges should protect lawyers, and that no one should protect the public.

Until this week, we had thought that the legal profession had spent $500,000 to beat Amendment 40, term limits for appellate judges.  It took us some time to find the second document we quoted here, and until we did, we hadn't realized that the Colorado Bar Association alone had spent $1.3 million.  In the first six years that the $20/year fund existed, it didn't spend $1.3 million total and has never spent a cent to make a litigant who was damaged by an opposing litigant whole.

We are not into blackmail, and we are especially not into being accused of being into blackmail.  Consequently, "the moving finger writes and having writ moves on" philosophy applies.  Once written, these essays will stay up even if the legal ethics system is eventually fixed.  The ONLY exception is if someone mentioned writes us an email explaining that they do not support the current ethics situation and were not given an opportunity to object when we sent our questions.  It would be very unfair for us not to take their name down in those circumstances. 

Comments

[Dale Kim Thorup]

The Colorado Supreme Court Attorney Regulation Counsel and Colorado Commission on Judicial Discipline do not serve to protect the public from corrupt attorneys, magistrates, and judges. Instead they serve to screen these corrupt individuals from the formal complaints of an otherwise defenseless public. Obviously, they seek to hold these individuals to a lower standard than that prescribed by law and to which they would hold the citizenry, they purport to serve, accountable. Corruption continues in Colorado courts every day due to the impunity granted court officials by the aforementioned (non)regulating agencies.

One new line of defense being asserted by citizens in the war against the impunity of court officials are websites such as "The Colorado Index." The next time you read comments from individuals condemning websites like "The Colorado Index", you will know that the individual is advocating support for corrupt court officials through continued impunity.