Obligations Of Lawyers & Judges

Upon giving the issue some thought, we think that few members of the public understand the rules that the Supreme Court has publicly published for lawyers and then tries to privately ignore.

The profession recognizes that it has been given a privilege that no other profession enjoys, the privilege to regulate itself.  The profession counts on closed doors and secrecy orders/rules to conceal its failures.  So far the system has served lawyers and judges well, but if the public develops the perception that it's members want the privilege without the responsibility then the game is up.

A few days ago, we announced that we intended to file an ethics complaint against four lawyers who received well documented evidence of ethics violations by a lawyer and a judge and failed to report them.  We think that we might come off as the bad guy if we don't take the time to document the published rules and compare it with the information they had.

We begin where we should begin, with the rules.  We are quoting from the Colorado Rules of Professional Conduct.  In this case, rule 8.3 applies:

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.

(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

Sorry about the font size, but we imported it without change from the CRCP.  The rule appears to be quite plain, doesn't it?  As with all things, what the Supreme Court promises the public in one breath, it takes away in the next.  It has set a very high hurdle in its comments section for such reports in an effort to discourage them:

If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

Again, this was imported without a change in font size, the proverbial "fine print."  Perhaps these lawyer's lawyers, and they will undoubtedly have to hire lawyers, which is punishment enough, will argue that this sentence relieved them of any obligation to report any violation.  If accepted, that argument will nullify the rule, and that is very likely the intent, though no one will admit it.

But wait!  There are more rules, again approved by the State Supreme Court.  This time they are from the rules governing Colorado Judicial Performance Commissions:

RULE 10. DISCLOSURE OF RETENTION EVALUATION DATA TO THIRD PARTIES

In addition to the disclosures authorized under Rule 8, upon a two-thirds majority vote of approval of the members of the state commission, the state and district commissions may release confidential information concerning a justice, judge or magistrate to:

...

(e) The Supreme Court Attorney Regulation Committee, if an allegation is made against a justice, judge or magistrate in the course of the evaluation process which, if true, would constitute a violation of the code of professional responsibility; or

(f) The Commission on Judicial Discipline, if an allegation is made against a justice, judge, or magistrate in the course of the evaluation process, which, if true, would constitute a violation of the code of judicial conduct, or which would constitute extra-judicial conduct that reflects adversely on the judiciary.

Does anyone notice a pattern here?  If there is a bias in this self regulating profession, it is to make it as difficult as possible for its members to report their fellow lawyers for misconduct, even misconduct of the grossest kind.

These performance commissions are supposedly appointed to be agents of the public and to act in the public interest to help it evaluate and eliminate judges who are inefficient, ineffective, and dishonest judges.   Strangely the rules that the Supreme Court has approved seem geared to protect bad judges even when discipline is warranted.

A second defense that the lawyers on this commission would have against an ethics complaint is that at least four members the whole ethics commission voted to refuse to release any report.  Conveniently, there are exactly four lawyers on each commission.  They would presumably lose that shield if they failed to hold any vote at all, or failed to hold it in a timely fashion.

Often the only way to get the rules to work in the public's favor is to exercise them.  Lawyers, as a profession, try to promote litigation that clarifies the law, rules, and obligations.  That is why it is easy to force this issue without the need for personal animosity or having to defend any claim that this author is seeking revenge.  We're just doing what the lawyers say we should be doing.

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The 4th JD performance commission members for 2006 were:  William Herpin, Carolyn Kelly, Alanson Higbie, Marcy Morrison, Robert Moody, Michael Duncan, Kit Roupe, Cheryl Holt, John Newsome, Colleen
Denny.

We have written elsewhere on this issue.  Look in our Legal Ethics category if you are new to the site.