C.R.C.P. 242.31

History

Source: Entire rule and comment added and adopted May 20, 2021, effective for cases filed with the Presiding Disciplinary Judge or the Supreme Court on or after July 1, 2021, and, as to all other matters covered by these rules, effective July 1, 2021. COMMENT Disciplinary sanctions are based on consider- ation of the American Bar Association Stan- dards for Imposing Lawyer Sanctions. Opinions issued under section 242.31 do not serve as binding precedent but may have persuasive value and provide guidance in future decisions. ANNOTATION Annotator’s note. The following annotations include cases decided under former provisions similar to this rule. A disciplinary proceeding is an investiga- tion by the court into the conduct of one of its officers and is neither a civil action nor a criminal proceeding, but a proceeding ‘‘sui ge- neris’’, the object of which is not to punish the offender but to protect the court. People v. Howard, 147 Colo. 501, 364 P.2d 380 (1961), cert. denied, 369 U.S. 819, 82 S. Ct. 830, 7 L. Ed. 2d 784 (1962). The grievance committee of the supreme court conducts the formal hearing on a com- plaint and makes a report, which sets forth its findings, conclusions, and recommendations. People v. V an Nocker, 176 Colo. 354, 490 P.2d 697 (1971). Report and recommendation of grievance committee in disciplinary proceedings against lawyers is advisory, and the supreme court has the duty to review the recommenda- tions and to increase or decrease the sanction imposed by the committee in a proper case. People v. Susman, 196 Colo. 458, 587 P.2d 782 (1978); People v. Morley, 725 P.2d 510 (Colo. 1986); People v. Jacobson, 747 P.2d 654 (Colo. 1987); People v. Shipp, 793 P.2d 574 (Colo. 1990); People v. Abelman, 804 P.2d 859 (Colo. 1991); People v. Larsen, 808 P.2d 1265 (Colo. 1991); People v. Gaimara, 810 P.2d 1076 (Colo. 1991); People v. Raubolt, 831 P.2d 462 (Colo. 1992). While supreme court has always given the recommendation for discipline by the grievance committee great weight, the court reserves the right to exercise our independent judgment in arriving at the proper level of discipline. People v. Brown, 726 P.2d 638 (Colo. 1986); People v. Anderson, 817 P.2d 1035 (Colo. 1991); Colo. Supreme Ct. v. District Court, 850 P.2d 150 (Colo. 1993). The supreme court’s rule is to make an inde- pendent decision regarding the appropriate form of discipline, suited to the facts and circum- stances of the particular case. People v. Grenemyer, 745 P.2d 1027 (Colo. 1987). To warrant a finding of misconduct, the charges must be established by substantial, clear, convincing, and satisfactory evidence. People v. Howard, 147 Colo. 501, 364 P.2d 380 (1961), cert. denied, 369 U.S. 819, 82 S. Ct. 830, 7 L. Ed. 2d 784 (1962). Proof of all elements of a criminal offense is necessary to establish misconduct on the basis of commission of a criminal act. Where one element of attempted theft was not proven by clear and convincing evidence, the attorney was not subject to sanction under C.R.P .C. 8.4(b). People v. Rosen, 199 P.3d 1241 (Colo. O.P .D.J. 2007). This does not mean that strict rules of evidence apply in disbarment proceedings, al- though they are frequently invoked to insure a fair hearing. People v. Howard, 147 Colo. 501, 364 P.2d 380 (1961), cert. denied, 369 U.S. 819, 82 S. Ct. 830, 7 L. Ed. 2d 784 (1962). Evidence taken at civil action that an at- torney has been guilty of conduct justifying disbarment is admissible in disbarment pro- ceeding. People v. Howard, 147 Colo. 501, 364 P.2d 380 (1961), cert. denied, 369 U.S. 819, 82 S. Ct. 830, 7 L. Ed. 2d 784 (1962). The finding is not conclusive on the same question. The finding in a civil action that an attorney at law has been guilty of conduct jus- tifying disbarment is not conclusive on the same question when presented for determina- tion in an action for disbarment. Notwithstand- ing the finding in the civil action, the culpability of the attorney must be established in the dis- barment action by a clear preponderance of the evidence. People v. Howard, 147 Colo. 501, 364 P.2d 380 (1961), cert. denied, 369 U.S. 819, 82 S. Ct. 830, 7 L. Ed. 2d 784 (1962). Factual findings of grievance committee are binding on the supreme court, unless the supreme court, after considering the record as a whole, concludes that the findings are clearly erroneous and unsupported by substantial evi- dence. People v. Garnett, 725 P.2d 1149 (Colo. 1986) (apparently overruling People v. Mattox, 639 P.2d 397 (Colo. 1982)); People v. Susman, 747 P.2d 667 (Colo. 1987). Letter of admonition concerning conduct which occurred after the events giving rise to the complaint in the instant case, but received prior to the time the hearing board held its hearing in the instant case, is part of the prior disciplinary record and may be properly consid- ered. People v. Wolfe, 748 P.2d 789 (Colo. 1988). Where an attorney fails to comply with condition pertaining to private censure, such failure provides basis for withdrawal of private censure and issuance of public censure. People v. Moore, 681 P.2d 480 (Colo. 1984). Conduct found to violate disciplinary rules. People v. Razatos, 636 P.2d 666 (Colo. 1981), appeal dismissed, 455 U.S. 930, 102 S. Ct. 1415, 71 L. Ed. 2d 639 (1982). Hearing panel may modify recommenda- tions of hearing board. People v. Shields, 905 P.2d 608 (Colo. 1995). Modification by hearing panel of board’s recommendation of discipline after it concluded a six-month suspension was insufficient in light of the attorney’s prior discipline complied with this rule. People v. Brenner, 852 P.2d 456 (Colo. 1993). Form of discipline imposed by hearing board for respondent’s proven violations not unreasonable. Following ABA standards for imposing lawyer sanctions, violation of duty owed the public, even one involving dishonesty, fraud, deceit, or misrepresentation, as long as it is short of actual criminality, should generally be sanctioned by reprimand or censure. When dishonesty relates to practice of law, ABA stan- dards recognize appropriateness of probation as a sanction if it will adequately protect the pub- lic. In re Rosen, 198 P.3d 116 (Colo. 2008). The assessment of the entire amount of the complainant’s expert witness fees against a respondent is appropriate even where the complainant’s expert testified to matters other than the injury the respondent’s misconduct caused if such testimony was relevant. In re Cimino, 3 P.3d 398 (Colo. 2000).