Articles / surveys regarding Colorado Attorney Discipline
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Aug 18, 2010 - A frightened John Gleason, Colorado's attorney regulation Czar, runs to the feds with complaint that private investigators have been monitoring his activities in Arizona

According to The Arizona Republic, John Gleason, Czar of the Colorado Attorney Regulation Counsel has apparently complained that he was "tailed" during his trips to Phoenix to investigate the former Maricopa County Attorney. The law firm of Wilenchik & Bartness, P.C., retained to defend the Deputy District Attorney, hired private investigators "to find out what [Gleason] was doing here, who he was meeting with while staying at the Biltmore, and if he was conducting an official investigation."

I can confirm that this Web site has received numerous visits from the Maricopa County offices. If they are concerned that Gleason is not conducting an official investigation, or that his techniques, practices, or motives are of dubious providence, their suspicions may have been justifiably raised after reading the articles and viewing the documents maintained on this site.

In a 2005 interview by the Glenwood Springs Post, John Gleason once proudly quipped, "This is an office of the Supreme Court. We do anything we need to do." Perhaps not in Arizona.

Aug 2, 2010 - University of Denver Law Professor observes, “The past practices of discipline in the State of Colorado would suggest to me that the likelihood that [one who engages in a pattern of plagiarism] would be disbarred from the practice of law is quite slim.”

The quote from Eli Wald, an associate law professor, is reported by Channel 7 (here) concerning the Scott McInnis scandal.

The professor's observation is in stark contrast to the numerous statements over the years by John Gleason (OARC Czar) --statements, which are found below-- that attorney dishonesty is taken seriously in Colorado.

July 7, 2010 - Arizona adopts Colorado's utopian model attorney regulation system

The decision is not well received by all, as Arizona attorney Mo Hernandez explains here.

Mo cites Mark Brennan's blog, which in turn cites 5280's "Power Broken" exposé (discussed infra).

June 01, 2010 - 5280 ("Denver's Magazine") exposes Colorado attorney regulation as a sham

From the June, 2010 5280 article, "Power Broken":

Citing attorney regulation protocol, Gleason said he was not able to disclose the nature of [the accused's mediation with OARC], but this much is certain: On the other side of that meeting, the OARC imposed the sort of punishment that the investigators, according to their report, did not think would be sufficient. The OARC . . . allowed [the accused] to maintain his law license and practice in Colorado . . . In a recent interview, Gleason said that all of what his office did in its investigation was by the book. He told me, "Our presumption is that people tell us the truth." . . . So on whom did Gleason and the OARC rely for the "truth"?

Many of the sources I spoke with were terrified of [the accused]'s character. Two of his former employees broke down in tears during my interviews with them. At least three said they had gone for counseling, in no small part because of working for [the accused]. They asked for anonymity because they feared what might happen if they ran into [him] in town after this story. Other sources did not want to go on the record because they were concerned that [the firm partners], and their nexus of relationships in the legal community would make it difficult for them to keep their current jobs or prevent them from getting new ones in the small fishpond of the Denver legal community. This was why some of my sources who were not contacted by the OARC did not reach out to investigators. Gleason scoffed at the notion that witnesses and potential witnesses were reticent to speak because they feared such things. He said it was "baloney."

When I informed [one of my sources] of the OARC's decision in [this] case, the source's reaction was, "It's a sham." . . . I asked Gleason who was advocating for the public; I said [the accused] was publicly censured, but he is still practicing law. "Yes. I 100 percent agree with you. People make mistakes. The discipline rules have various levels of mental intent. We discipline lawyers who engage in minor mistakes with private discipline. Lawyers like [the accused] who lie are disciplined publicly. And sometimes lawyers are more severely disciplined than [the accused] because their facts are more aggravated than [the accused's]. That doesn't make you or the public feel any better about it. I understand that."

Maximillian Potter must've struck a nerve with Gleason: According to Law Week Colorado, Gleason "took issue with several points of Potter’s article," and said, “Unlike Mr. Potter, this office has to rely on the law and the facts.”

Apr. 12, 2010 - KnowYourCOurts.com exclusive - “I Treat This As An Honorable Profession”: OARC v. Maynard

By Ken Smith, J.D.

As part of our continuing (and for the most part, exclusive) coverage of the Colorado Office of Attorney Regulatory Counsel (“OARC”), KnowYourCOurts.com was granted the privilege of videotaping the trial of Alison Maynard before Presiding Disciplinary Judge William R. Lucero. And in this story, context is everything.¹

A “trial” in attorney discipline isn’t a traditional trial. The rules of evidence are relaxed, and decision-makers are hand-picked by and serve at the pleasure of the Colorado Supreme Court.² Thus, judicial independence is noticeable only by its absence. And, while Judge Lucero looked and acted every bit the part of the typical trial court judge, the other two “judges” were not even practicing attorneys. One was a layperson and the other, a teacher. Although members of the tribunal could ask questions, they rarely exercised that prerogative, thereby giving the all appearance of it being a bench trial. This wouldn’t be so constitutionally problematic, except that the judge, jury, and executioner all work at the pleasure of the Colorado Supreme Court.


The OARC: Your Tax Dollars At Work

Despite the fact that expanded media coverage was unopposed in a previous case, the OARC objected to KnowYourCOurts’ request, asserting that “the PDJ courtroom has very limited space, and is not large enough to sustain such an additional presence.”³ But in reality, it wouldn’t have been the slightest bit problematic, if not for the fact that a phalanx of OARC employees watched the trial for hours on end.

As Coloradans, we are paying these people a hundred large a year to sit around on their duffs and watch trials? When Judge Lucero was asked about this on a break, he sort-of chuckled and said, “I have no control over that.”

Judge Lucero is right out of Central Casting: a distinguished, affable, and eminently gracious fifty- something gentleman: the antithesis of Ed Nottingham. He appeared to enjoy his work, and showed uncommon patience at times when the combatants were attempting to develop antidotes to No-Doz. Prosecutor April McMurrey is a long, lean, short-haired terrier who displayed all the organization of an attorney who had access to unlimited resources. Respondent Alison Maynard is a fifty-something sprite of a brunette: a beleaguered solo practitioner, who could not expect to match her opponents resources. Though Maynard’s knowledge of the subject matter was vastly superior to that of the inexperienced McMurrey, the resource disparity and limited access to discovery, coupled with illness, led at times to a weak and disjointed cross-examination.


“You Can’t Talk To a Man With a LAWYER In His Hand”

It was an episode of Billionaires Behaving Badly. The instigator of this unfortunate chain of events was Denver-based billionaire Gary Magness, who isn’t known for much of anything aside from winning the pre-birth lottery.⁴ He subdivided a ranch and ostensibly, got tired of having the little people drive by his barns.⁵ Hence, he bought a lot in an adjacent subdivision on the end of a cul-de-sac, with the intent of building a road from his subdivision into it.

Billionaires can be persuasive -- just because. Magness somehow persuaded the Park County Commissioners to authorize this proposed road, which just happened to cross George and Patty Barilla’s property. Understandably, both the Barillas and the homeowners’ association objected . . . which is where Alison “Sunny” Maynard stepped in.

To make this tortuous tale short, Magness acted with the Tiger Woods-class sense of entitlement one comes to expect from a billionaire.⁶ Rather than let legal proceedings take their natural course, Magness bulldozed a road across the Barillas’ property, destroying any and all trees in his path.⁷ According to representations at trial, Magness lawyer Jack Levine told the Barillas he had the money to outlast them, but on account of Maynard’s herculean efforts, the Barillas ended up outlasting Magness. Bottom line, after four lost civil appeals and eleven years of acrimonious litigation, he couldn’t build his road.⁸ The final score: about $100,000 in damages, and well over $1,000,000 in legal fees.

For most of us real people, the art of the deal is working out an arrangement where everyone gets something, and everyone walks away as happy as possible. But at the end of the day, in this case, Gary Magness appears to have been the victim of bad lawyering. Common sense asks you, “Should we?” To which, the lawyer declares, “Yes, we can!”

To paraphrase James Carville, when you drag a million dollars through a Seventeenth Street law firm, you know what you’ll find.⁹ When you have a client like Gary Magness, you are under enormous pressure to keep him happy enough to pay your $435 hourly bill,¹⁰ and billionaires don’t like to lose. So, what do you do as a lawyer? You do the only thing you can do: serve a healthy dose of revenge on the bastard who done ya.

Welcome to the world of dueling grievances … the lawyers’ version of foreplay.

“I Treat This As an Honorable Profession”

The Maynard trial certainly would have brought tears to Stalin-era Soviet prosecutor Andrei Vyshinsky’s eyes. From the outset, everyone in the room -- including Maynard -- appeared as though they knew the outcome was a foregone conclusion. But when Judge Lucero spent roughly a half-hour cross-examining Maynard, while prosecutor McMurrey essentially sat there knitting and the other members of the Hearing Board performed their best upholstery impressions, any pretense of judicial neutrality or collective decision-making evaporated.

In essence, a disciplinary trial consists of an attorney’s opponents coming into the hearing and dumping as much “dirt” as possible on you. Sure, your opponents are under oath, but that counts for naught. The one grieving her, Baker, Hostetler partner Rebecca Alexander, ¹¹ had her Richard Nixon Moment.¹² When Maynard inquired as to who was paying her to testify at the hearing, she claimed that she “didn’t know”; this bore the distinct odor of a tacit admission that she intended to bill her time to Magness, as the only ethical answer was that it is non-billable.¹³ Still, the most intriguing witness was Michael Schaefer.

A bulbous man in his mid-sixties, Schaefer nonchalantly held a roll of documents in his hand as he talked to McMurrey before being called to testify. As he held his right hand up to be sworn, he held the stack in his left in full view of the tribunal, being seemingly careful not to reveal them to Maynard. He covertly shifted them to his right as he approached the witness chair, referring to them at least twice during the testimony. At the end of the testimony, waiting for Maynard to put her head down, he deftly slipped his notes in the inside-left jacket pocket of his suit. It was clear from his actions that it was not the first time he had done this.¹⁴

A practicing lawyer for thirty-eight years, Schaefer knew well that it was improper for him to testify via notes, and the way he shifted those papers, they were in plain view of both the panel members and prosecutor McMurrey. As the witness chair was just to the left of Judge Barbara Laff (a teacher and semi-retired attorney), what he was doing had to be painfully obvious to her. And, it is equally obvious to see why Judge Lucero did not want witnesses to be videotaped.

This wouldn’t have been a problem in a traditional court proceeding, as the presiding judge doesn’t normally get a chance to examine witnesses. As a general rule, it is up to the parties to figure out whether a witness is testifying from notes, but in a tribunal where the Hearing Board members have the prerogative to question witnesses, a lapse like that is inexcusable. The Board is on notice that the testimony they were being given was hearsay, and the Office of Disciplinary Counsel is presumed to be the guardian of truth and justice in the Colorado legal universe.

During cross-examination, Schaefer had the distinct sound of a man close to a nervous breakdown, if not insanity. He dropped a bombshell, in declaring that he had turned in his license, on account of Maynard.¹⁵ When she asked why, he responded in a meager and broken voice:

Part of the reason is standing in front of you. Thirty-eight years. [unintelligible] part of the system. [unintelligible] I don’t want to continue. I treat this as an honorable profession. I don’t want to continue with you still holding a license. ¹⁶

Let’s put this in perspective: Here is a veteran attorney, who snuck crib notes onto the witness stand when he knew that it was unethical to do so, in front of a tribunal that should have known that it was inappropriate for him to do so, declaring under oath that he treated the practice of law as “an honorable profession?” We can’t make this stuff up.


“Do As We Say, Not As We Do!”

But without question, the star of this show was prosecutor April McMurrey. The last time that room service was delivered with this level of enthusiasm, Kobe Bryant was indicted:

Judge Lucero: “My question to you is, [inaudible] all dishonesty warrant the discipline of disbarment?”

Ms. McMurrey: “[M]y recollection was that, in part, the Hearing Board and the Supreme Court had distinguished between lying to a court or to a client, versus lying to a third person . . . Going back to the case you talked about, when Ms. Maynard made a misrepresentation to the Colorado Supreme Court, my recollection of that matter was that the Hearing Board began with the standard of disbarment, and said that making a misrepresentation to a tribunal is-- a knowing misrepresentation -- is disbarment. ¹⁷

Let this sink in for a minute: an officer of the court who knowingly makes a misrepresentation to a tribunal is asking for disbarment, according to the OARC. And presumably, this applies to every lawyer in the state, as opposed to just Alison Maynard. And if anything, the standard of ethics is even higher with regard to the conduct of the disciplinary counsel, who assumes an even greater responsibility.¹⁸ But not unlike the cop who shatters the entire Colorado Vehicle Code in his mad dash to get to the donut shop for a coffee break, from top to bottom, Colorado’s enforcement agencies are infected with the attitude that law is for the little people.

My own personal experience with state bar officials is illustrative of this point. A pioneer in Internet journalism, I was primarily responsible for what might be described as the first case of “road-kill on the information superhighway: the expose of Colorado-based radio evangelist Bob Larson. Working closely with celebrated televangelist-buster Ole Anthony and a cast of dozens, our communal efforts resulted in investigative reports airing nationally on NBC, Inside Edition, and numerous local and print outlets. Our Bob Larson Fan Club website won a Rabble Rouser Award from Mother Jones, and attracted hundreds of thousands of visits. The scandal involved adultery, ghost-writing, mail and wire fraud, and staged ‘exorcisms’; after all was said and done, Larson lost his radio ministry, and was relegated to exorcising demons of heartburn out of suburban housewives in Deer Tick, Alberta. (He is now the head of a cult in Arizona.)

But the mail-order minister had money --the kind of money that buys influence in this town-- and an unquenchable thirst for revenge. As such, I was targeted for professional destruction, in much the same way Alison Maynard was.

The OARC’s modus operandi is stolen from the Soviet Union¹⁹: Dissidents are deliberately diagnosed as mentally ill, even when they are as sane as the Pope. To make matters worse, they are forced to pay for their own “diagnosis” -- conducted by a corrupt stable of psychiatrists who exchange patently dishonest, Board-friendly opinions for a steady stream of referral business at exorbitant rates. It is, in essence, the plot of Kangaroo Jack: the “bag- men” are expected to pay for their own execution. As this pattern is established not only in the matter of Alison Maynard, but of Mark Brennan and myself, I am reluctantly compelled to become part of the story.

With that foundation laid, let us turn to Colo. R. Civ. P. 201.10(4), which stated in pertinent part:

On motion of the disciplinary counsel, and upon a showing of good cause, the hearing panel may require the applicant to submit to a mental status examination conducted by a psychiatrist or psychologist, or to submit to a substance abuse evaluation conducted by a qualified professional of the disciplinary counsel's choosing, the cost of which shall be borne by the applicant.²⁰

Like most statutes, Rule 201.10(4) was written carefully, and with an eye toward compliance with federal law. Specifically, the federal Americans With Disabilities Act (the ADA) prohibits discrimination against qualified individuals (those being treated as though they have a disability, regardless of whether they do or not) and therefore, to require a qualified individual to pay for a mental status examination violates federal law.²¹

As the Wyoming Supreme Court reminds us, “half the truth is often a lie in effect.”²² And with that observation in mind, consider this statement -- offered to a tribunal by none other than Deputy Regulation Counsel James Coyle, third-in-command at the OARC.²³

The undersigned requests that the hearing panel require applicant to “submit to a mental status examination conducted by a psychiatrist or a psychologist … of the Disciplinary Counsel’s choosing, the cost of which shall be borne by the applicant.” The psychiatrists [names elided] are all acceptable to the Office of Disciplinary Counsel, and applicant may choose from any of these four psychiatrists.²⁴

According to prosecutor April McMurrey, speaking on behalf of the OARC, any officer of the Court who knowingly makes a misrepresentation to a tribunal presumptively deserves disbarment (mitigating factors notwithstanding). When he made the above-referenced statement, Coyle was not only an attorney and officer of the Court, but an authorized representative of the very agency charged with ensuring that attorneys were honest. Moreover, Coyle didn’t just create a potential for harm; his actions effected a criminal deprivation of a state bar applicant’s federal rights. ²⁵ On account of his misrepresentation to a tribunal, Coyle fraudulently persuaded it to issue an illegal order requiring an applicant to submit to a psychiatric examination that he would have to pay for (in violation of the federal ADA), further dictating which of the thousands of qualified and duly licensed psychiatrists and psychologists in the state could perform the proposed examination (in violation of the statute itself).

The only remaining question is whether Coyle’s misrepresentation of his agency’s enabling statute was intentional, and the only plausible answer was that it was. The cost of such an examination runs well into the thousands of dollars, and that would have come right out of his agency’s budget. Moreover, there is no accepted definition of the level of ‘mental fitness’ required for one to become a lawyer, as even an applicant who “has been declared mentally ill or incompetent by a court having jurisdiction” can be admitted to practice, even if that declaration is still in force.²⁶ To even ask a C.P.A. who has been married to the same woman for twenty years to undergo such an examination, solely on the grounds that someone in the Board of Law Examiners did not like his whistle-blowing activities, is therefore risible on its face.

So here, we have our absurdity: Alison Maynard is being pursued by OARC for presumptively ethical conduct (threatening a civil suit) and pursuing a remedy that she believes in good faith to have substantial authority for²⁷ (attempting to collect attorneys’ fees from Magness’ entities), by an agency managed by a man who is, under its own rules, ethically unfit to be a lawyer.


A Peculiar Sense Of “Honor”

It could be described as the defining moment of the trial. Trial work is about preparation, and it is said that the good attorney never asks a question on cross-examination that she doesn’t know the answer to. In a shining moment on the second day, in the cross of Schaefer, Maynard showed a flash of the brilliance that has made her the bane of Denver’s power elite:

Maynard: Do you see on number three of page two of the subpoena requires you to bring all e-mails created or received, from any person, at any time, concerning Alison Maynard. Do you remember that?

Witness: I see that.

Maynard: And you produced instead e-mails you had concerning me between June 26 . . . to the date of the deposition, which was August 19th. … That’s how you interpreted the subpoena, is from the date you were served with the subpoena until the date of the deposition, and those were all the e-mails you produced, wasn’t it?

Witness: My recollection is, I produced all e-mails from the time I was first contacted by Attorney Regulation Counsel’s office through the date of the deposition. I provided all of them to which you objected at the deposition and again, threatened to sue me and hold me in contempt if I didn’t provide more.

In that one brief exchange, everything becomes pellucid. As “from any person, at any time” is not subject to an abundance of interpretation, and it defies conception that he would not have had discussions with Rebecca Alexander regarding Maynard before that date, it logically follows that there was something hiding in the bowels in his computer that the veteran attorney knew it would not profit him for Maynard to know. And it had to be something serious --for instance, evidence of a possible criminal conspiracy between him and Alexander involving a sale of his testimony-- for him to so dramatically surrender his law license.

For this reason, April McMurrey became Maynard’s ‘star witness’ -- or, she would have been, but for Judge Lucero’s inexplicable refusal to let her examine the smoking gun. McMurrey had to almost be in the throes of brain-death to not hear the klaxons on the starship Enterprise, telling her that the warp-core of her prosecution had been breached in that deposition. The fundamental question is, therefore, downright Nixonian: What did April know, and when did she know it?

“Please the court, I suggest the members be dismissed, so that we can move to an immediate article 39A session. The witness has rights.”²⁸

This isn’t Hollywood --and April McMurrey is no Lieutenant Kaffee-- but McMurrey would have had to have been phenomenally dull not to find the pork entrails in the Manischewitz. Your star witness is in contempt of court, confessing to conduct prejudicial to the administration of justice which arguably warrants discipline.²⁹ The circumstances of his act are such that they cast a pall over the credibility of your other main witness.

Nonetheless, McMurrey soldiered on. She even sent Alexander a copy of the complaint against Maynard, candidly admitting that “I usually don’t provide a copy to my witnesses, as I don’t want there to be any suggestion that I tried to influence them.”³⁰ If so, one must wonder as to what that action implies.


Honor Among Thieves

In theory, the Rules of Civil Procedure are intended to facilitate settlement and reduce the cost of litigation, by forcing parties to place all their cards on the table prior to trial. In practice, it has had precisely the opposite effect, as pre-trial discovery has become a delicate dance of deliberate deception. Apparently, the “honor” of which Michael Schaefer speaks is accurately described as honor among thieves, as all are expected to participate in this expensive and arduous farce called pre-trial discovery. Another amusing anecdote from personal experience ought to illustrate this nicely:

I sued mail-order minister Bob Larson for libel in connection with personal accusations he made in response to our exposes. Larson is and was an inveterate sociopath, who lied about everything in his life, but I knew from one of his former romantic interests that he kept a personal diary. While he had no reservations about lying under oath, what kind of man would lie to his diary?

During discovery, I asked Larson to produce any and all diary entries pertinent to my lawsuit; to my surprise and shock -- I was, after all, a law student, and operating under the facile delusion that our legal system was essentially honest -- his attorney denied the very existence of the diary. Of course, I responded by submitting seven pages from the Larson diary and complaining about his perjury. In addition to asking the Court for sanctions, I asked the OARC to initiate a disciplinary inquiry, having been encouraged to do so by my legal ethics professor, who just happened to be chief disciplinary counsel for the OARC.

Larson’s diary entries betrayed an extramarital relationship with one of his stunning stable of staffers, including a junket with her and her three kids to the Disney Yacht Club Hotel. When she was mad at him, it was, in his words, the worst day of his life. He kept track of his times for his morning runs and generally, made the kind of remarks you make in personal diaries.³¹ On its face, it bore the fragrance of perjury and subornation. But that’s not how the game is played in Colorado, as one can only learn the hard way.

I learned later that my opponent, a veteran trial attorney with more than two decades of experience at bar, had attended an entry-level ‘trial tactics’ seminar taught by the judge in the case (Judge Christopher J. Munch, of Jefferson County), and that he billed his time at that seminar to Larson, asserting on the bill that “this is our judge.” At that moment, all of the judge’s bizarre court decisions suddenly made sense, if you make the very reasonable supposition that an envelope stuffed with Benjamins changed hands in the mens’ room during one of the breaks.

Of course, the OARC did what it always does with citizen complaints: look the other way. You are told in law school that the only way you can really get in trouble with state disciplinary authorities is to either steal a client’s money, or sleep with her. In Colorado, even that last stricture is now presumptively gone.³²

Judicial corruption is ubiquitous, and has been as long as there have been judges. King Hammurabi adopted a one-strike rule in dealing with corrupt judges.³³ Herodotus related the story of a Persian vassal lord who executed a corrupt judge and used his skin to upholster the new judge’s chair; for good measure, the new judge was the executed one’s son.³⁴ It is better to live under the rule of a benign king than to endure a corrupt republic. And while the American judiciary works diligently to hide its myriad scandals from public view, even in the back woods of Arkansas, this kind of chicanery is intolerable to bench and bar.³⁵ But in Colorado, it is standard operating procedure, facilitated by a regulation system designed to look the other way.


“She Don’t Lie, She Don’t Hide, She Don’t Mind, COCAINE!”

Judging from her record, Chief Justice Mary Mullarkey of the Colorado Supreme Court is the most cocaine-and pedophile-friendly judge in the Intermountain West. If you are cooking meth in your trailer or have a thing for underage children, the Mullarkey wing of the Court will protect your rights with unbridled zeal.³⁶ She has made the state bench safe for cocaine abusers, taking decisive action against former District Judge Jesse Manzanares for reporting suspicions regarding a colleague’s alleged cocaine abuse to authorities -- replacing the accuser with the accused as the chief judge of that circuit.³⁷ If you’re accused of keeping pornography on a stolen state computer, you can count on her protection, provided of course that you are a fellow Harvard Law grad and a Democrat.³⁸ Whereas Mullarkey displays almost no concern for protecting the public from harm at the hand of potentially dangerous attorneys, ³⁹ her minions protect our judges from scandal with vigor.⁴⁰ But Her Majesty’s munificence appears only to extend to Democrats; Republican district attorneys such as Carol Chambers and Scott Storey walk around with proverbial targets on their backs.⁴¹

While the skids for political prosecutions at OARC are always well-greased, real people with compelling grievances are politely advised to “pound sand,” in a delicate dance of absurdity that would bring tears to Joseph “Catch-22” Heller’s eyes. On the one hand, the OARC tells ordinary complainants that they won’t touch a grievance unless a court finds that there is a problem . . . but on the other, judges tell them that they should refer their complaints to OARC. Sean Harrington reports, quoting a letter from Assistant Regulation Counsel Matt Samuelson which states:

The documentation provided in support of this request for investigation demonstrates that many issues in your divorce case have been vigorously contested. In cases of that nature, the judicial officer or officers presiding over the case are in the best position to assess whether the conduct of the parties or the conduct of the lawyers has been improper or in violation of orders entered in the underlying case. We believe the court presiding over your case should determine whether any of the issues you raise here lead to a situation where [attorney Michael Luchetta] or his client have acted improperly. If the court makes a specific finding that [he] acted improperly in any way, you may bring that specific finding to this office for review.⁴²

But as Harrington reports, and anyone who has complained to OARC already knows, judges are in the habit of passing the buck back to them:

But alas, the learned and esteemed Jack W. Berryhill, district judge for the First Judicial District, disagreed, when confronted with Samuelson's pronouncement: In an Order he issued today, he decreed:

This court lacks jurisdiction to entertain attorney misconduct complaints. The Colorado Supreme Court retains exclusive jurisdiction over lawyer misconduct involving attorneys licensed to practice in Colorado . . . If Mr. Harrington wishes to file an attorney misconduct complaint, he must do so through the Office of Attorney Regulation Counsel.

The problem is, Berryhill also disagrees with himself: In the same case, he issued an Order in February, 2009, in which he decreed, “I presumably have some authority over ... lawyers, by virtue of the Colorado Rules of Professional Conduct applicable to attorneys as officers of the court.”⁴³

At the end of the day, with the exception of cases involving the theft of client funds, the main determinant of whether a grievance will be pursued by OARC is who the person doing the grieving is. If you are a federal judge with a personal score to settle, you will be placed at the front of the line.⁴⁴ If you are a partner in a Seventeenth Street law firm with strong political connections, you are likely to get preferential consideration.⁴⁵ If you’re a federal judge caught in the maw of a prostitution scandal, and have no chance of giving a credible explanation as to where you got the money to bang high-class hookers on a weekly basis, you are safe.⁴⁶ And if you are the husband of a Colorado supreme court justice, you pretty much have to get caught in bed with a live boy or a dead girl to face sanction. ⁴⁷

Even when Colorado’s power elite have to eat one of their own, they are generally inclined to gum them softly. By way of example, prosecutors Terry Gilmore and Jolene Blair, subsequently named to the bench, were only given public censure for withholding exculpatory evidence in the case of Tim Masters, wrongfully convicted of murder in 1999.⁴⁸ Masters’ life was destroyed as a direct result of their misconduct, and the well-connected Gilmore and Blair only got slaps on the wrist, whereas Mark Brennan was suspended for a year for wounding Judge Robert Blackburn’s pride. ⁴⁹ And Alison Maynard faces disbarment for unpardonable sin of depriving Gary Magness of his road.

As Maynard testified, KnowYourCourts.com proved useful in her selective prosecution defense, in submitting admissions by employees of the OARC:

"You should first address your concerns with the court in the underlying proceeding. If the court determines that the attorney has engaged in any misconduct, as you have alleged, then please feel free to resubmit the matter to this office." [James Coyle]

“Rule 4.5 does not preclude attorneys from threatening to bring a civil action” [Louise Culbertson-Smith]

“As for any claims of a civil nature such as fraud, slander, civil conspiracy, or violation of constitutional rights, you may pursue those issues in an appropriate civil court forum. This office does not have jurisdiction to review or determine civil claims.” [Culbertson- Smith]⁵⁰

Apparently sensing a problem, Judge Lucero sprung into action, cross-examining Maynard on his own motion, attempting to attribute these admissions to “prosecutorial discretion.” Of course, the fact that the very agency charged with keeping attorneys honest was lying to the public somehow managed to evade his notice. When Judge Lucero came to the defense of his agency, Maynard slapped him around like an over-aggressive date. As he struggled mightily to recover, he hoisted it on its own petard:

Maynard: But what we see here is a statement of policy for the office . . . that fraud, for instance, they won’t take that up unless a civil court has made a determination. They have abrogated that policy in my case.

Lucero: Let me-- let me ask you something else. We’re not going to be able to look behind each of these letters and determine what-- whether or not the decision was right or not, right? I, well, let me just ask it this way, and in deciding whether or not you would prosecute a case -- take it to court -- subject someone to criminal sanction, which could include incarceration, one of the things that you would look at, would you not, is the credibility of the people involved, and you’d have to make that determination. You’d be expected to make that determination, wouldn’t you?

[When you’re in a hole, Judge Lucero, stop digging! Your agency’s star witness has admitted under oath that he defied a subpoena, and the prosecutor knew it. Your prosecutor was expected to make that determination, and she failed. Moreover, the agency prosecuted her for acts that it refuses to prosecute as a matter of policy.]

Maynard: Well, your Honor, if my office had a policy that certain things must be decided by a civil court first, before we would proceed, there isn’t discretion.”⁵¹

Distilled to essentials, Alison Maynard is being prosecuted for what the OARC has warranted time and again that they don’t even investigate, as a matter of office policy. And even though the OARC only investigates fifty claims a year, she has been the subject of eight separate investigations. While they steadfastly refused to investigate Madeline Wilson for having Sean Harrington involuntarily confined to a mental institution to gain advantage in a divorce case, or James Rollin Miller for apparently suborning perjury in a civil case, they pursued Maynard with all the tenacity of a pack of velociraptors. And the balance of her testimony gives us a first approximation as to why:

Maynard: Three million acres of [state] trust land have been sold at bargain rates to developers. What I’ve seen is the pattern of the transfer of public wealth and also taxpayer funds into the pockets of a select group of elites. What we’re not seeing is enforcement.⁵²

Maynard proffered a long list of names -- a list wielding an abundance of power in this town. Even if one of them got mad at her, they could make her life miserable. And as for the what, the former deputy district attorney and Green Party candidate for state Attorney General alleges that:

The rackets can be characterized as "asset-stripping enabled by judges." Persons or entities like nonprofit corporations who own property are being targeted by developers and other unscrupulous interests, and hauled into court for trumped-up reasons. The judge then orders the wrongful transfer of the property from the true owner to the developer. I have litigated against this scenario multiple times in this state and criticized the judges. I believe this is the reason I have been targeted by OARC.⁵³

If what she claims is true -- it is a story far beyond our ability to research -- it would go a long way toward explaining what seems to be the OARC’s maniacal fixation on her.


“Abandon All Hope, Ye Who Enter Here.”

Attorney licensure and regulation is a land due process has forsaken. It is a kingdom bereft of even the most perfunctory standards, where well-connected felons and drug-dealers are embraced with open arms, and political opponents need not apply.⁵⁴ Sure, the money can be decent, but you enter at the price of your soul: Many courts hold that an attorney’s voluntary entrance to the bar acts as a voluntary waiver of the right to criticize the judiciary.⁵⁵ And, should you venture through these gates of earthly Hell, you exist in a state of permanent terror, for in Colorado, your license can be taken away from you for barely more than the act of breathing. Colorado Supreme Court Justice Nathan Coats concedes:

In large part because the ethical standards governing the profession are necessarily vague (at times even approaching the aspirational), I believe excessive deference by this court to any subordinate body we create implicates fundamental, due process concerns. Disbarment or suspension from the practice of law amounts to far more than exclusion from a voluntary group or association. It deprives a lawyer of the means to earn a living, and perhaps even of participating in public life, in a way that unquestionably affects substantial property rights and expectations. Although ostensibly not intended as punishment, this official deprivation of property necessarily entitles attorneys to reasonable notice of the standards to which they must conform their conduct and reasonable consistency in the application of those standards.⁵⁶

In the case of Susan Haines, Justice Coats confessed that he couldn’t even figure out what she had done that was sanctionable, to say nothing of what the appropriate sanction should have been for the alleged offense.⁵⁷ And if he doesn’t know, it is tough to assert with a straight face that the attorney in question was on reasonable notice that she was violating the rules of professional conduct.

But this is the state of affairs in Colorado’s shipwreck of a disciplinary system, where ‘facts’ materialize from thin air, the Mullarkey Court scours its underlings’ decisions for grounds justifying predetermined conclusions, and judicial review is noticeable only by its absence.⁵⁸

The egregious due process violations begin even before your case is slated for trial. The Presiding Disciplinary Judge and OARC share the same office space -- OARC employees appear to have the run of the place -- which makes ex parte communication inevitable and the appearance of impropriety, overwhelming. Suspended attorney Mark Brennan related a story where he spotted OARC's Jim Coyle talking privately with a clerk of the judge's chambers in the hallway during his hearing. “Brennan confronted him, ‘Why, Mr. Coyle! You're having an ex parte communication with the judge's chambers. How do you explain this’ Coyle contended, ‘We were just going over a procedural matter’.”⁵⁹ Sure, Jim.

If the Brennan and Maynard cases are representative, the one certainty an attorney in the dock will face is that he or she will lose all but the most routine pre- trial motions, whereas the OARC will get everything they wanted and more. As we have seen, on numerous occasions, the former Assistant U.S. Attorney crossed the line between judge and prosecutor in the Maynard trial. On four occasions in the Brennan case, Judge Lucero summarily disposed of pre-trial motions with a handwritten notation on the motion that a written order (presumably, explaining the decisions in question) would follow, but none ever did; Brennan was never even permitted to depose his main accuser, a federal judge.⁶⁰ And despite the fact that she faced six witnesses, Alison Maynard was only allowed to conduct four depositions.⁶¹

The next thing the attorney can expect is that the OARC will attempt to cast aspersions upon the attorney’s mental state. It is a time-worn Soviet tactic: paint dissenters as crazy, and the public will shun them. The attorney who sees through this corrupt tactic will refuse, resulting in his being removed from the bar, in any event. Mark Brennan was just one conscientious objector. Alan Prendergast reports:

When a state disciplinary judge suspended Mark Brennan's license to practice law for a year, finding that he intentionally engaged in "obstreperous behavior" in winning a $1.2 million federal verdict against the City of Denver, one requirement for reinstatement was that Brennan submit to an independent medical evaluation.

The combative Brennan thinks that condition is illegal. And he's even more incensed that disciplinary judge William Lucero is asking him to see a psychiatrist -- and share the results of that exam with opposing counsel -- before his motion for a stay of execution will be considered.

"To be plain, Sir," Brennan wrote in a recent letter to Lucero, "Hell will most assuredly freeze over before I see my most private medical and personal information and history disseminated to my worst enemies on the face of the Earth, who have to date demonstrated only the most complete disregard for the truth and the law imaginable."⁶²

For the record, I was another.


Control the Bar, and You Control the Town

It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, "I don’t care if my opponent knows the law, as long as I know the judge." . . . I have seen it with my own eyes in the courts of Boston, New York, and elsewhere.⁶³

Judicial corruption is ubiquitous, from Albania to Zaire; to deny the facts is illogical. And, as notable human rights activist Geoffrey Robertson observes, it is easy to spot if you know what to look for:

Bribes are facilitated by lawyers, court clerks and police, who take their cut on behalf of clients who do not complain when they win their case, are acquitted or released on bail as a result. Judges who are political lickspittles, ruling in favour of the state, police or army because they wish for favours, promotion or post-retirement appointments, can usually dress up their wrong decisions with bogus legal arguments or manipulate the facts to support their findings.⁶⁴

Both at the state and federal level, Colorado judges routinely fabricate facts and take indecent liberties with the law, because they know they can. Denver has been without a functional newspaper for the better part of a decade; as Post editor Greg Moore admits: “You seem to know a lot about the courts and that's an area we have largely abandoned and we shouldn't.”⁶⁵ Local television stations only seem to get excited if judges are literally caught with their pants down (as in the Nottingham scandal) and often, reporters have attention spans shorter than their stories. The only hope for justice lies with the state bar -- which translates into no hope. Those who have the capacity to know no longer have the capacity to speak.

Chief Justice Mullarkey’s reign of terror has had the desired effect of pacifying the Colorado bar, as none dare oppose her. As a result, Colorado’s bar consists almost exclusively of geldings. Prominent Republican lawyer and maven of morality Dan Caplis hosts a local radio show on one of our extremely fascist-wing Clear Channel outlets, and as to be expected, he went ballistic on Eliot Spitzer. But when a caller confronted him regarding Judge Nottingham during the Denver Players scandal,⁶⁶ his spine collapsed like magic:

First and foremost, I'm a trial lawyer, and my obligation is to my clients. And that's why there are going to be times when a judge -- a local judge -- deserves criticism and I won't offer it on-air, because I don't want to compromise my clients' interests. ⁶⁷

His radio partner, former Denver district attorney, obsequious weasel, and nominal Democrat Craig Silverman, agreed:

[B]ut we're also attorneys, and we don't know when a case bars, or one of our partners is going to be in front of Judge Nottingham, so if you perceive a little hesitancy on my part, that it accurate. ... For me personally, it is sort of dicey for me to be talking about Judge Nottingham -- it's a delicate situation for Denver lawyers. ⁶⁸

Realistically, Denver Players is the one story that will never be told. Federal judges make less than two hundred large, and their state counterparts, about a hundred. You can’t really afford a $1,000/night hooker on a state judge’s salary. So, why were judges --in the plural-- mentioned in the news reports? And if you ‘gave’ one of those girls to a judge for the night, wouldn’t he be eternally grateful? Those who are in the know, know enough to be silent.

Judicial systems debased by bribery undermine confidence in governance by facilitating corruption across all sectors of government, starting at the helm of power. In so doing they send a blunt message to the people: in this country corruption is tolerated. ⁶⁹

As Counsellor Robertson notes, “It is no coincidence that corruption thrives most in countries where judges are corrupt.”⁷⁰ Uhh, welcome to the Third World, Colorado.

_______________________________
¹ The Court entered a sequestration order, initiated by Ms. Maynard. While we were not technically bound by the Order itself, we chose to abide by its spirit, inasmuch as this sort of media coverage is at the discretion of the judge, and we wanted to help ensure that our presence did not infringe upon the right of the accused to what is supposed to pass for a fair trial.
² Colo. R. Civ. P. 251.16(a) and 251.17(a)(1).
³ April M. McMurrey, Complainant’s Obj. to Sean Harrington’s and Suzanne Shell’s Requests for Expanded Media Coverage, People v. Maynard, No. 09PDJ028 (Colo. filed Mar. 31, 2010).
⁴ Gabriel J. Adams, Gary Magness: Not Your Typical "Rich Guy," e-zine, http://ezinearticles.com/?Gary-Magness:-Not-Your-Typical-Rich-Guy&id=427460.
⁵ Neighbors’ Property Dispute Bulldozes Its Way Into Court, Rocky Mountain News (AP), Nov. 9, 1997, at 46-A, InfoWeb link
⁶ Magness’ entities are presumed to be controlled by him for purposes of this admitted simplification.
⁷ Of course, he didn’t do it himself. Billionaires don’t work, they play.
⁸ Magness Loses Long Court Fight Over Access Road, Denver Business Journal, Jul. 5, 2007, http://denver.bizjournals.com/denver/stories/2007/07/02/daily30.html
⁹ See e.g., Transcript, Shields & Gigot, PBS (May 30, 1997), at http://www.pbs.org/ newshour/shields&gigot/may97/s&g_5-30.html (reference to the famous quote).
¹⁰ Testimony of Rebecca Alexander, People v. Maynard, supra (taken Apr. 7, 2010; copy of video on file).
¹¹ Profile at http://www.bakerlaw.com/rebeccacalexander/
¹² “You can say I don't remember. You can say I don't recall.” Richard M. Nixon, WATERGATE: The Most Critical Nixon Conversations, Time, May 13, 1974, at http: //www.time.com/time/magazine/article/0,9171,908615-8,00.html.
¹³ See, Testimony of Rebecca Alexander, People v. Maynard, supra. (10:55 A.M., Apr. 7, 2010) (she stated that she did not know, asserting that it would be the Magness billing partner’s call. There is one and only one ethical answer to that question, and she did not give it.)
¹⁴ The author also saw him in the outside lobby, with the same stack of documents in his hand.
¹⁵ Testimony of Michael Schaefer, People v. Maynard, supra (~2:20 P.M., Apr. 7, 2010).
¹⁶ Id. (~2:20 P.M., Apr. 7, 2010) (other speakers’ comments elided for brevity).
¹⁷ OARC Closing Argument, People v. Maynard, supra (~4:03 P.M., Apr. 8, 2010).
¹⁸ See People v. Brown, 726 P.2d 638 (Colo. 1986) (being district attorney is an extreme aggravating factor).
¹⁹ See generally, e.g., Richard J. Bonnie, Political Abuse of Psychiatry in the Soviet Union and in China: Complexities and Controversies, J Am Acad Psychiatry Law 30:136 (2002) (explaining the Soviet Way).
²⁰ Colo. R. Civ. P. 201.10(4) (Bradford 1994; emphasis added) (“disciplinary counsel” is now called “attorney regulation counsel” but substantively, the current statute is identical).
²¹ In 1990, Congress enacted the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), establishing additional civil rights protections for persons with disabilities. As of Jan. 26, 1992, the effective date of the Act, all public entities, including state licensing boards, see e.g., Ware v. Wyoming Bd. of Law Examiners, 973 F.Supp. 1139 (D.Wyo. 1997); Clark v. Virginia Bd. of Law Examiners, 880 F.Supp. 430, 441 (E.D.Va. 1995), are legally required to comply with its provisions. § 12132 (1999), defining such an individual as one “who meets the essential eligibility requirements . . . for the receipt of services or participation in programs” provided by a public entity, Id. § 12131; an “individual with a disability” includes those who are not legally disabled but nonetheless, are being “treated by a covered [public] entity as having a substantially limiting impairment.” 29 C.F.R. § 1630.2(1); Richards v. City of Topeka, 173 F.3d 1247 (10th Cir. 1999). The ADA’s focus is thus not the impairment itself, but the alleged impairment’s “effect upon the attitudes of others.” MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir. 1996). Section 12132 covers not only “exclusion from participation in or [denial of] benefits of the services, programs, or activities of a public entity, but also being “subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1999). A public entity discriminates against bar applicants regarded as having disabilities if it imposes additional burdens upon them, Clark, supra., and the imposition of a substantial surcharge upon disabled persons constitutes discrimination forbidden under the ADA. See, Dare v. California, 191 F.3d 1167, 1171 (9th Cir. 1999) ($6 charge for handicapped placard is discrimination; collecting pre-1999 cases). Similarly, a public entity may not “impose or apply eligibility criteria that screen out . . . any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R.§ 35.130(b)(6). And while it may seem intuitive that a mental fitness requirement could and should be imposed on attorneys, Rule 201.10(6) permits an applicant who has been declared mentally incompetent to even handle his own checkbook to practice law, at the apparently unfettered discretion of the Colorado Supreme Court. Given the vagueness of the standard in place, in light of the profound successes of such celebrated barristers as Abraham Lincoln who are thought to have suffered from mental illness, it is difficult to suggest that those criteria employed by Colorado are necessary.
²² Twing v. Schott, 338 P.2d 839, 841 (Wyo. 1959).
²³ See http://www.coloradosupremecourt.com/Regulation/Staff.htm. As Mr. Coyle attended the hearing on a regular basis, it is reasonable to presume that he was McMurrey’s direct supervisor.
²⁴ James C. Coyle, Motion for Medical Examination of Applicant, (before a hearing panel of the Colorado Board of Law Examiners), Dec. 15, 1998 at 3.
²⁵ See 18 U.S.C. §§ 241-42.
²⁶ Colo. R. Civ. P. 201(5)(d) and (c).
²⁷ See e.g., Blanchard v. Bergeron, 489 U.S. 87 (1989) (an attorney's fee allowed under § 1988 is not limited to the amount provided in the plaintiff's contingent fee arrangement with his counsel); Hensley v. Eckerhart, 461 U.S. 424, 434, (1983); Spensieri v. Farmers Alliance Mut. Ins. Co., 804 P.2d 268 (Colo. App. 1990).
²⁸ Lt. Daniel Kaffee, A Few Good Men (Columbia, 1992) (character played by Tom Cruise).
²⁹ See e.g., People v. Radinsky, 490 P.2d 951 (Colo. 1971); People v. Haase, 781 P.2d 80 (Colo. 1989) (obstruction of justice).
³⁰ April McMurrey, e-mail (to Rebecca Alexander), Jul. 1, 2009 (back-copy in response from Alexander; copy on file).
³¹ A “diary” is defined as “[a] daily record esp. a personal record of events, experiences, and observations.” Amer. Heritage Dictionary 392 (2nd Coll. ed. 1985). Diaries are like reporters’ notes, and constitute a valuable source of “state of mind” evidence, of critical import in a defamation case such as this one. Diaries are routinely discoverable where relevant. See e.g., Vermont v. Shaw, 542 A.2d 1106 (Vt. 1987) (unprotected by rape shield law).
³² See http://www.knowyourcourts.com/CARC/CARC_grievances.htm#Thorup0.
³³ Codex Hammurabi § 5, available at http://www.wsu.edu/~dee/MESO/CODE.HTM.
³⁴ [The judge Sisamnes], being of the number of the royal judges, had taken money to give an unrighteous sentence. Therefore [King] Cambyses slew and flayed Sisamnes, and cutting his skin into strips, stretched them across the seat of the throne whereon he had been wont to sit when he heard causes. Having done so Cambyses appointed the son of Sisamnes to be judge in his father’s [courtroom], and bade him to never forget in what way his seat was cushioned. Herodotus, Histories, Bk. V, § 26 (tr. George Rawlinson, et al.) (D. Appleton & Co. 1889), Vol. III at 192.
³⁵ President Clinton was suspended from the practice of law in Arkansas for five years, see, Todd v. Ligon, No. 03-415, 2004.AR.0000220 (Ark. 2004) (Versuslaw), and permanently disbarred by the United States Supreme Court, see, Order List, 122 S.Ct. 24 (2001), for similar conduct during the Paula Jones sexual harassment suit. See generally, Ann Coulter, “Disbar Clinton!,” National Review, Aug. 30, 2000, available at http://www.nationalreview.com/comment/commentprint083000c.html (visited May 7, 2004).
³⁶ See e.g., Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002) (meth dealer); Martin v. People, 27 P.3d 846 (Colo. 2001) (sex offender).
³⁷ Karen Abbott, “FBI Settles Judge’s Case,” Rocky Mountain News, Apr. 27, 2004. It is worth noting that the only Colorado judge who has been ‘whacked’ (quite obviously, in a figurative sense) by our judicial Cosa Nostra in the past three years was a whistle-blower. Given that sterling object lesson, it is fairly safe to say that the next judge will think twice before turning state’s evidence.
³⁸ The Manzanares Muddle: Explanation By Court Brass Leaves Much To Be Desired, Rocky Mountain News, Mar. 7, 2007 (summary of the stolen laptop and pornography scandal which ended in the suicide of former judge, Denver City Attorney, and Harvard Law School graduate Larry Manzanares, and the Colorado Supreme Court’s interference in the course of what would have been a prosecution for felony theft). Mullarkey is also a graduate of Harvard Law School. Mary J. Mullarkey, Two Harvard Women: 1965 To Today, 27 Harv. Womens’ L.J. 367 (2004); school ties are the among the oldest conduits of corruption.
³⁹ Attorney, convicted felon, and known cocaine abuser Cynthia Ciancio faces a high likelihood of relapse, as do all who go down that path. See e.g., Richard B. Marx, “Impaired Attorneys and the Disciplinary System,” Florida Bar Journal, Dec. 1999, reprinted at http://www.fla-lap.org/journal/marx.html (“a practicing attorney who is impaired can be substantial danger to the public and the judicial system as a whole”). As cocaine addicts “have a very high relapse rate,” “Epilepsy Drug May Block Cocaine Addiction,” CNN, Aug. 5, 1998, at http://www.cnn.com/HEALTH/9808/- 05/anti.addiction.drug, the odds of Ms. Ciancio’s posing a danger to the public are high.
⁴⁰ Tony Kovaleski, “Judges Admit To Signing Inaccurate Affidavits,” TheDenverChannel.com, story aired Nov. 13, 2002 (transcript on file).
⁴¹ See, Carlos Illescas, “DA Chambers Issued Censure by State Panel,” Denver Post, Dec. 27, 2006; George Merritt, Jeffco DA Faces Conduct Probe, Denver Post, By stark contrast, Chief Justice Mullarkey used the powers of her office in an attempt to shelter fellow Democrat and Harvard Law School graduate Larry Manzanares from criminal prosecution.
⁴² Matthew A. Samuelson, Letter (to Blake Leverett), Jan. 12, 2010, at 1-2, reprinted at http://www.knowyourcourts.com/CARC/correspondence/2010-01-12_OARCresponse.pdf. The author is under no legal obligation to redact the accused attorney’s name, but reminds the reader that these are mere allegations.
⁴³ News and Comment, KnowYourCourts.com, Apr. 7, 2010, at http://www.knowyourcourts.com/News/news.htm (emphasis added).
⁴⁴ In re Mark E. Brennan, No. 08PDJ052 (Oct. 28, 2009), see, Carolyn Elefant, A Travesty of Justice in Colorado: Lawyer Suspended for A Year and A Day for WINNING His Client's Case, MyShingle.com, Jan. 12, 2010; Felisa Cardona, Colorado Supreme Court Panel Suspends Attorney For Court Outbursts, Denver Post, Oct. 29, 2009.
⁴⁵ See, In re Maynard, supra (Ms. Alexander was the complainant).
⁴⁶ Based on published reports over a long period and citing multiple witnesses, Judge Naughty was spending about $60,000 a year on courtesans (the main difference between a courtesan and a garden-variety whore is $1,000 a night) and, judging from public financial disclosure reports, reprinted at http://www.judicialwatch.org/judge/nottinghamedward- w, he had neither the outside income nor accumulated savings to pay for his prodigious sexploits out of his own resources. See generally, http://www.knowyourcourts.com/Nottingham/Nottingham.htm (collecting/archiving articles).
⁴⁷ Significant publicly-available evidence suggests that former local U.S. Attorney Troy Eid failed to disclose the lobbying activity performed before Interior Secretary Gale Norton for convicted felon Jack Abramoff’s infamous client, the Mashpee Tribe, Sarah Kershaw, Drug Traffickers Find Haven in Shadows of Indian Country, N.Y. Times, Feb. 19, 2006; Did CO's USA Hide His Abramoff-Related Lobbying?, The Next Hurrah (Blog), May 1, 2007, http://thenexthurrah.typepad.com/the_next_hurrah/2007/05/did_cos_usa_hid.html, and that he had his official DoJ biography massaged to avoid any obvious links to Abramoff. Id. While the documents themselves have vanished into the ether, the author retains copies. Eid is the husband of Colorado Supreme Court Justice Allison Eid.
⁴⁸ Miles Moffeit, Discipline For Masters' Prosecutors, Denver Post, Sept. 9, 2008.
⁴⁹ Eliott C. McLaughlin, Man Says Bogus Conviction Leaves Him Without Wife, Job, CNN, Feb. 25, 2009; Elefant, Travesty, supra.
⁵⁰ In re Maynard, supra (11:45 A.M., Apr. 8, 2010).
⁵¹ Id. at 11:45-11:50 A.M (emphasis added).
⁵² Id. at 11:40 A.M.
⁵³ Alison Maynard, e-mail (to author), Apr. 11, 2010 (copy on file).
⁵⁴ Cf., Steve Garnaas, “Police Blast Adams DA Felon Hired As Prosecutor,” Denver Post, July 15, 1997, at B1. (convicted felon and cocaine dealer Cynthia Ciancio is the daughter of Democratic activist and judge Gene Ciancio); In re Application of Leonard Alford Thomas, No. LX 99-23 (Colo. Nov. 9, 2000) (Republican candidate for state House of Representatives, denied a license within a week of his loss).
⁵⁵ E.g., In re Westfall, 808 S.W.2d 829, 834 (Mo. 1991); In re Raggio, 487 P.2d 499, 500 (Nev. 1971); but see, e.g., In re Hinds, 449 A.2d 483, 489 (N.J. 1982) (lawyer has full array of First Amendment protections; minority view).
⁵⁶ In re Susan G. Haines, 177 P.3d 1239, 1255-56 (Colo. 2008)
⁵⁷ Id. at 1256.
⁵⁸ See id. at 1254 (Coats takes his colleagues to task for their “slavish[] defer[ence]” to the Hearing Board's factual conclusions, “even though they were clearly inferred from erroneous premises,” and its desperate attempt to search the record “for new and different support for the board's discredited findings.”).
⁵⁹ http://knowyourcourts.com/CARC/Brennan/08PDJ052.htm.
⁶⁰ Id.
⁶¹ Author interview with Ms. Maynard, Apr. 8, 2010.
⁶² Alan Prendergast, Defiant Attorney Awaits Cold Day in Hell For Psych Exam, Westword Blog, Dec. 9, 2009, at http://blogs.westword.com/latestword/2009/12/defiant_attorney_awaits_cold_d.php.
⁶³ Alan Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 116 (Oxford U. Press, 2001).
⁶⁴ Geoffrey Robertson, Q.C., The Media and Judicial Corruption, in Transparency Int’l., The 2007 Global Corruption Report,109 (Cambridge U. Press 2007) (emphasis added).
⁶⁵ Greg Moore, E-mail (to “Randy King”), Mar. 4, 2009 (copy on file).
⁶⁶ This is a representative sample of what a federal judge might have gotten for about $1,000 a night, plus a healthy tip: http://s248.photobucket.com/albums/gg166/bouldergeist/?action=view¤t=daphne.jpg.
⁶⁷ Caplis and Silverman, KHOW, March, 2008. Caplis has his own vulnerabilities, apparently having filed a lawsuit against activist Greg Spagnuolo simply for the purpose of harassing him.
⁶⁸ Id.
⁶⁹ Transparency Int’l, Judiciary Advocacy in the TI Global Movement (website), http://www.transparency.org/global_priorities/other_thematic_issues/judiciary (visited Oct. 21, 2009; PDF copy on file; emphasis added). 70 Geoffrey Robertson, Q.C., The Media and Judicial Corruption, in The 2007 Global Corruption Report, Transparency International 108-09 (Cambridge U. Press 2007) (emphasis added).

Apr. 6, 2010 - KnowYourCOurts.com exclusive - KnowYourCOurts.com covers the OARC v. Maynard attorney disciplinary trial by video-camera.

Yesterday, as reported by Colorado Law Week, the Presiding Disciplinary Judge granted KnowYourCourts' Request for Expanded Media Coverage over the objection of the Office of Attorney Regulation Counsel, rejecting arguments that KnowYourCourts.com is not a newsgatherer and that my purpose for seeking expanded coverage was to advance some "personal agenda" arising from the fact that I was a party to a divorce case in Colorado initiated in 1999. ¹ The pleadings are here

Don Knox, Law Week's Editor-in-Chief, graciously loaned KnowYourCourts.com a video-camera with which to record the proceedings.²

_____________________________
¹ Although Law Week has characterized it as a "victory" for bloggers, I am more circumspect: The OARC's objection was so lame and specious, that it may be deserving of sanctions on its face as groundless, frivolous, and vexatious.
² Under the original pooling arrangements, Suzanne Shell was to provide the video-taping, but her request for expanded coverage was denied. Although I am a still-camera photographer and also have sound-mixing and studio engineering experience, I do not own any video-camera equipment.

Apr. 5, 2010 - KnowYourCOurts.com exclusive - Colorado's OARC modi operandi: Regulation Counsel's employment records are a mystery; ass't regulation counsel caught lying about visits to KnowYourCourts.com Web site; rumors abound about proceedings transcripts being altered; OARC objects to recording by independent media; and now, materially altering e-mail evidence?

Although the truth may be in the eye of the beholder (and KnowYourCourts.com holds no license on truth), a number of transactions chronicled on this site are troubling even to one not schooled in the law:

• I caught OARC lying about their visits to this site (read about it in this embarrassing Westword article here).



• Recently, a prominent district attorney publicly alleged, "the transcript of [the disciplinary] hearing appears to have been altered."



• Recently, I reported that certain seeming discrepancies in Regulation Counsel John S. Gleason's curriculum vitae have given rise to speculation that he may have falsified his credentials, and that in response to an Open Records Request, OARC claims to have not employment application records for Gleason.



• And, just last week, OARC tried [unsuccessfully] to prevent me from providing media coverage of the upcoming trial of Alison "Sunny" Maynard, because I was a party to a divorce case initiated in 1999, and I purportedly have a "personal agenda."

Today, I discovered what appears to me to be a ham-fisted attempt to alter an e-mail that OARC submitted into evidence.

In the Maynard case, OARC submitted a "Motion for security during April 6-8, 2010 hearing." Attached to that Motion was a putative e-mail message from Alison "Sunny" Maynard to assistant regulation counsel April McMurrey,¹ in which Maynard allegedly states nothing more than, "Well, the hearing panel will hear about the lawyer- impersonator who runs your office. So have some law enforcement types." OARC argued that Maynard was requesting enhanced courthouse security.

But, Maynard forwarded me the actual e-mail message she sent. It states, as follows:

So, I see these various standards you have included, both of which relate to DISBARMENT, nothing less, and neither of which have anything to do with the bogus charges you have preferred against me.

Are you seeking disbarment? This is the first I have heard of it. Is there any limit to the sneaky, unethical, harassing things you will do?

Well, the hearing panel will hear about the lawyer-impersonator who runs your office. So have some law enforcement types.

Certainly, none of us is privy to the context of this communication between Maynard and McMurrey. But Maynard told KnowYourCourts.com that she was referring to Gleason being a "lawyer- impersonator," because she believes Gleason has falsified his credentials not unlike Howard Kieffer and Maynard was merely suggesting that she would raise the issue of Gleason's credentials at her hearing, and that the law should be enforced against Gleason as it has been against Kieffer, who is now serving time in federal prison.

Maynard's explanation seems plausible, when you read the entire actual e-mail and recognize that there is history, context, and an established course-of-dealing between Maynard and her tormentors.

But what is alarming is that OARC submitted an exhibit purporting to be an e-mail, which clearly was not the e-mail they received. There is no prominent indication that redactions were made (such as when necessary to remove social security numbers, financial information, victim's or children's names), and there is no reason for altering the e-mail other than to make an assertion that is disrespectful of the truth. But for OARC's claim that Maynard was asking for additional security, which she clear did not, the altered e-mail appears as a thinly-veiled threat by Maynard that law enforcement will be necessary to protect Gleason.

I believe this alteration may be a violation of the Colorado Rules of Professional Conduct committed by none other than those who are tasked with enforcing those rules in Colorado.

____________________________
¹ I previously reported a story regarding McMurrey on Septemer 10, 2009 (below).

Mar. 23, 2010 - Colorado's John Gleason tapped as special prosecutor by Arizona Supreme Court to investigate Maricopa County Attorney

A few weeks ago, an Arizona attorney/blogger informed us that his state's supreme court intended to reinvent its attorney regulation system, based on Colorado's model. According to the proposal, Arizona will adopt Colorado's "best practices" model, by implementing an intake call center, where attorneys can deter complainants by phone before a written complaint (and a record of the same) is created. The purpose behind this is to reduce the number of complaints processed. This, in turn results in a higher prosecution rate of complaints it does process, thereby creating the appearance that the agency is taking complaints more seriously, whilst improving efficiencies. It's a system that grants control to the agency to --in effect-- "fix the books" regarding the state's attorney misconduct statistics (in an effort to counter criticism that the state is soft on attorney regulation), whereas they were previously driven by complainants' filings.

Today, the Arizona Supreme Court appointed Colorado's John S. Gleason as Independent Bar Counsel to investigate ethics complaints against Arizona Maricopa County Attorney Andrew Thomas. Gleason told The Arizona Republic, "I don't know any of the parties involved. I can't think of anyone more independent than me and my staff."

For reasons more fully set forth in the articles below, I can't think of anyone more intellectually dishonest than Gleason's staff.

Further reading:

• Court names Colorado Attorney Regulation Counsel to look into County Attorney Thomas (The Irreverent Lawyer blog).



• Terry Carter, The Maricopa Courthouse War (ABA Journal)

Mar. 2, 2010 - KnowYourCOurts.com exclusive - In response to Open Records Request, Office of Attorney Regulation Counsel claims to have no employment application records on file for attorney regulation czar, John S. Gleason

Yesterday, I received this response from the OARC.

The response indicates that the Office of Attorney Regulation Counsel has no records of any kind pertaining to its Executive Director's application for employment, or his background, qualifications, or credentials.

The response does not pass the straight face test and indicates, instead, that the OARC either has something to hide, or is stonewalling for the bad faith purpose of frustrating a lawful request made on behalf of KnowYourCourts.com, for legitimate newsgathering purposes. The response undermines the public's faith in a state supreme court agency responsible for enforcing ethics standards for the legal profession.

In addition, the OARC claims the request is connected to litigation that Alison Maynard filed against the OARC. This aspect of the response is also without merit, and unsupported by any legal authority or privilege. First, I am not a party to Maynard's litigation. Second, the federal court does not have personal jurisdiction over me and it's orders regarding discovery do not pertain to me, because I do not have care, custody, access, or control over any of the documents subject to discovery (or a stay from discovery). Therefore, Ms. Maynard's litigation (or any other litigation other than my own), has no legal or practicable effect on my request for records pursuant to Colorado's Open Records Act.

What do they have to hide? Did Gleason lie or author[ize] material misrepresentations on his past or present resumes or applications for employment? Is it possible that Gleason was never a prosecutor, as one or more of his curriculum vitae claim? I'll keep after it and let you know what I find out.

Feb. 27, 2010 - KnowYourCOurts.com exclusive - Member of the Arizona bar asks for KnowYourCourts.com feedback regarding proposed changes to Arizona's attorney regulation, modeled after Colorado

On Sunday, I received the following e-mail (name redacted to protect the innocent):

Sean: I am a Nevada and Arizona licensed lawyer now practicing in the Phoenix area. Our state bar just announced a proposed new and improved process to discipline Arizona lawyers, which purports to be modeled on Colorado's "best in class" system. To read the Arizona Supreme Court’s Administrative Order 2009-73, go to www.supreme.state.az.us/ orders/admorder. More information on the Attorney Discipline Task Force: www.myazbar.org/SecComm/TF/LR I was just acquainted today with your website and wondered if you had some insights to share? The public comment period regarding the proposed new rules ends April 1st. I want to reply to the bar both as a lawyer and through my blog at "The Irreverent Lawyer."

Although I haven't yet had a chance to reply, I forwarded the request on to some Colorado lawyers. One (who shall also remain nameless) has already responded thus:

Colorado's system is shot through with corruption, favoritism, back-scratching and selective prosecution.

If its system is "best in class", I am the Pope.

Since Arizona is, like Colorado, a banana republic controlled by a few powerful interests, e.g., Kemper Marley and those who inherited his empire (Hensley, et al.), you should be very slow to adopt a system so subject to such abuse, unless you are part of the inner circle, in which event you will find it a useful way to punish your enemies and protect your friends.

By way of example, William Rehnquist was appointed to the Supreme Court as a reward for his service to, and in expectation of his future service to, Kemper Marley and Marley's friends. Marley, as you must surely know, was the Joseph P. Kennedy of the Southwest, and was very close to Johnny Roselli, Gus Greenbaum, Joe Bonanno, and other leading members of organized crime. He had Arizona Republic reporter Don Boles murdered in or about 1976 because he would not stop investigating Marley's ties to organized crime. John and Sandra Day O'Connor (though they are certainly lovely people personally, and I hate to speak ill of [them]) evidently were and/or remain a part of the same crowd. I assume that in Arizona, as in Colorado, certain people remain above the law, including those who enforce it?

Feb. 26, 2010 - KnowYourCOurts.com exclusive - Colorado Attorney Regulation Advisory Committee breaks the silence regarding the discretionary aspect of processing complaints.

Over the last five years or so, I've had some dialogue going with Alec Rothrock. When I first engaged him, he was on the CBA Ethics Committee. Back then, another ethics attorney in Denver informed me that Rothrock shared my disdain of Colorado's John Gleason, writing:

Alec is a buddy of mine who not only sits on the CBA ethics committee, but is the chair for next year. Alec is far more connected with the ODC than I am. He sits on several committees and is very "in" regarding ODC complaints.

I also know the fact that there is no one to review John Gleason is one of his pet peeves. He would love to have a situation where it is clear someone needs to look over John's shoulder.

Today, Alec is a member of Colorado's Attorney Regulation Advisory Committee, and he denies any objection to the OARC or John Gleason. In a recent e-mail to me, he wrote:

Actually, I believe we have a very good attorney regulation model here in Colorado, and I have a very high regard for John Gleason.

I do not understand why the Nottingham investigation is being held in abeyance. Usually that status is reserved for disciplinary matters that are related to pending civil or criminal matters, the outcome of which may affect the discipline matter. Are you aware of another investigation or proceeding involving former Judge Nottingham? I thought his federal discipline matter went away when he resigned.

Also, I do not know the details of your frustration with the system, except that they involve your ex-wife. I read some of the materials you recently sent me and the chair of the Attorney Regulation Committee concerning your ex-wife’s lawyer’s conduct in a deposition. I would be interested to hear her side.

It is impossible to design an attorney regulation system that does not depend on human beings exercising discretion. Sometimes that discretion involves accusations of misconduct, or partiality, on the part of attorney regulation counsel personnel. With a finite amount of resources, OARC cannot appoint a special prosecutor every time someone alleges such misconduct or partiality, although that procedure has occasionally been employed in just such circumstances. A decision to neither prosecute nor appoint a special prosecutor is inherently discretionary, and to a large degree the system relies on the integrity of the regulation counsel to make an appropriate decision. Couple that with the confidentiality rule binding OARC--which is designed to protect lawyers’ reputations from being unnecessarily tarnished--and true “accountability” for these decisions lies with the Colorado Supreme Court. Parenthetically, OARC is on record as preferring a confidentiality rule much more narrow in scope than the one we have now.

This leads me to your last observation about my role in the system, which I take as a compliment. One of the best things that happened to the system was when the Attorney Regulation Committee expanded its membership a few years ago to include a variety of “stakeholders,” including me and another “respondents’ counsel.” Before then, I did not think the system was sufficiently “transparent.” Now I do. The benefits have run two ways. I like to think that we new members have had an influence on some of the policies and procedures of the system in general and OARC in particular. As important, I now have a better understanding of the practical realities of running an attorney discipline system. To be sure, I disagree all the time as a member of the Attorney Regulation Committee, and my ideas are often “shot down.” But at least people are listening.

Alec: There's something that I thought about after you sent you sent your e-mail and I replied. In your message, you discussed the concept of discretion ("It is impossible to design an attorney regulation system that does not depend on human beings exercising discretion. Sometimes that discretion involves accusations of misconduct, or partiality, on the part of attorney regulation counsel personnel."). Candidly, that is the heart of my "frustration" with the Colorado attorney regulation system. Rule 251.9 requires that the OARC "shall" conduct an investigation, when allegations are made that "if proved true" would constitute a violation of the Rules of Professional Conduct requiring the imposition of discipline. This is analogous to the Rule 12 pleading standard --the allegations in a complaint are taken as true and the only question is whether they state a claim for which the law provides some relief. Instead, what's happening, is that the OARC is disregarding the mandatory "shall" language, and is making judgments about whether the allegations are, in fact, true, and requiring complainants to obtain civil or criminal findings before an investigation will proceed, and requiring complainants to prove their allegations before an investigation will proceed. Indeed, in Kiernan-Johnson, Bender, & Coats, "Colorado’s Attorney Regulation System: An Update," Colo.Law (2006), the authors admit the exercise of this unauthorized discretion, stating, "The changes to the system that allow the Office of Attorney Regulation Counsel to dismiss more cases at an early stage—such as by granting intake and trial attorneys the authority to dismiss cases—are designed to dispose of unfounded complaints and minor violations quickly so that the system can turn its attention to more flagrant misconduct." As I noted, there is no authority in the rules --specifically Rule 251.9-- that gives the agency or its intake screeners the discretion to dismiss any complaint that consists of allegations of a violations of the RPC's, whether minor or not. By exercising discretion that does not exist, we have capricious and arbitrary enforcement, which is subject to no accountability, and which is the source of frustration for both complainants and targeted attorneys, alike. Here's an example of this "discretion" in practice -- I quote from a recent memo from Matthew Samuelson to a complainant, Blake Leverett: You assert that Mr. Luchetta filed a notice of income withholding with an erroneous amount of child support, that the notice included arrearages that were not ordered by the court, served a different notice of income withholding on your employer, that he lied to the court in order to pursue a contempt citation against you that resulted in the court finding you in contempt and sentencing you to serve jail time, and that Mr. Luchetta and others in his office made false statements to the principal at your daughters' school in order to obtain visitation for their client that was in violation of court orders. Without question, the complainant alleged facts [restated by OARC's Matt Samuelson], which if proven, would constitute multiple grounds for the imposition of discipline. And again, Samuelson told the complainant that he must first obtain findings from a civil or criminal court that the attorney's conduct was a violation of the rules. Ironically, [former] chief federal district judge, Edward "Fast Eddie" Nottingham, has already denounced Samuelson's tactics in another case: [M]y understanding of the Colorado rules of attorney conduct is that upon the filing of a complaint, they do whatever investigation they need to have done, and they make whatever findings they need to have made, and they issue whatever orders they need. They don't need a recommendation from this court. You know, if that is what [Samuelson] said, he's wrong. 12/14/2007 transcript at 5. I hope you will share this with the Committee. . . . with kind regards, Sean L. Harrington

Feb. 25, 2010 - KnowYourCOurts.com exclusive - Colorado attorney: "I may one day be delighted to read that [Judge] Blackburn has suffered a stroke playing squash or taking a dump, and will spend the next 20 years drooling jell-o and shitting his pants. I may one day be delighted to read that [Presiding Disciplinary Judge William] Lucero and [OARC czar John] Gleason were caught in a 69 at the Motel 6 while [regulation counsel, Kim] Ikeler and [Jim] Coyle tickled their asses with feathers, [while] dressed as Mothers Superior. I may one day be delighted to read that Steve Farber, Norm Brownstein, Cole Finegan and David Fine died from bad chopped liver served at a Mizel Center fundraiser."

Mark Brennan, who was rewarded by Judge Robert E. Blackburn, the City of Denver, and the Colorado Supreme Court with the attempted destruction of his reputation, and successful destruction of his career, in retaliation for his successful representation of Denver Firefighter Billy Cadorna in an age discrimination case that resulted in a $1.22 million jury verdict and $850,000.00 settlement, recently wrote the following missive to a colleague who has also been the victim of politically-motivated persecution in Colorado, and from which the foregoing quote was excerpted:

It's MUCH more important that you focus on getting on with and enjoying your life, despite their efforts to make you miserable.

The change that is necessary is not going to be achieved through litigation in a system they control. The federal courts are indifferent to our plight, because they are part of the problem, not part of the solution. They work for our enemies.

Your experiences to date should convince you that your faith in the system was admirable, but misguided.

I too believed in the system, and achieved great success before the jury in the Cadorna case, as a result, but I did not realize the degree of lawlessness in the system until I saw a federal judge defy every commonly accepted legal standard with utter impunity, and the full approval of the Colorado Supreme Court.

Despite overwhelming evidence, including the deposition testimony of the jury foreperson and notes of interviews with 6 of the 7 other jurors, that I did not engage in any misconduct, and that the jury decided the case correctly and was not influenced in the least by any alleged misconduct by me, Blackburn has succeeded in unconstitutionally wiping his ass with a valid jury verdict, and the City and its friends in the Colorado Supreme Court have succeeded in destroying my reputation and career.

The law and the evidence were all on my side, but they have the power to ignore the law and the truth to accomplish their unlawful aims.

The solo/small firm bar does not give a shit, because they buy into the notion that you and I are outliers, and that the same thing would not happen to them because they are morally superior. Bullshit.

We have no constituency or supporters in the bar, precisely because we are outsiders, and always do the right thing.

They forget that they are in fact our moral and intellectual inferiors, and THAT is why they have little to fear. As long as they continue to play ball and suck up to the right people and avoid offending the wrong people, all will be well.

I have nothing of which to be ashamed, and much to be very proud. I have always fought the good fight, fairly and well, and often achieved outstanding results for my clients.

That Billy Cadorna is a shitbird who did not merit such sacrifice is something I knew in my heart of hearts from early on. I fired him as a client in 2004, but in the end would not abandon him.

I gave him the benefit of the doubt and, lo and behold, he proved to be a shitbird. Is he responsible for being what he is, or am I, for having chosen to give him the benefit of the doubt?

Does it matter, since I at least struck a blow for truth and justice, even if no one, outside of a few friends and family, really gives a shit?

Any efforts to reform the system from within will fail. It is only when powerful people who gain and secure their power through treachery or cruelty face the loss of their power, because of forces they cannot control through treachery or cruelty, that they loosen their grip.

Slavery did not end until the South was devastated.

The Germans and Japanese became pacifist democrats only once murder and mayhem ceased being fun for them, and they experienced the same horrors they had gleefully inflicted on others.

Martin Luther King would have been a failure without H. Rap Brown, Stokely Carmichael, Bobby Seale and the Black Panthers, and all the frightful looting and rioting. To be sure, King undeniably changed the course of history, but only because the Establishment realized he was much better than the alternative.

Similarly, the corrupt assholes who control our government and judiciary through legalized bribery disguised as "free speech", and other blandishments they bestow on their errand boys and girls in government and the judiciary to induce them to allow them to subvert democracy and justice for fun and profit, will not cede their iron grip on our government until faced with the threat of their destruction.

That is what happened during the Great Depression, when FDR, an errand boy for the Establishment, prevented what might well have been a revolution by instituting policies that would occupy millions of otherwise dangerous young men in useful labor. The New Deal mollified the People.

World War II was the ultimate "stimulus package". It ensured, when it became apparent that the New Deal was a failure, that the Establishment would retain its iron grip on our government. To be sure, it was a necessary and noble cause, yet there can be little denying that, in addition to destroying two evil empires, Japan and Germany, while inexplicably saving another, the Soviet Union, it saved the ass of a fourth evil empire that continues to control this Great Nation: thieving bankers who caused the Great Depression. They, of course, are the grandparents or great-grandparents of the same people who nearly caused a second Great Depression, last year.

I am highly intelligent. So are you. I am not going to be a martyr in a losing cause. I recommend you join me.

As a wise wag once quipped, "Living well is the best revenge."

I am going to live my life as well as possible, focusing on the great good there still is in it, for the sake of my family. That I have developed the misguidedly bad habit of being a lawyer for the last 25 years does not mean I cannot break the addiction, and move on to a better life. It is not an addiction involving much real fun, other than trying cases (which I love, and am very good at). Other than that, it is a lousy way to waste one's life. I had already reached that conclusion before I foolishly took on Billy Cadorna's cause. I only wish I had followed my wife's advice and had nothing to do with him. I felt sorry for him, and was outraged by the stupidity and arrogance of the City, and its lapdog Civil Service Commission and Hearing Officer.

The less I have to do with the legal system, the happier I will be. The less I have to do with people who have fucked up and want me to be their Savior at little or no cost to themselves, the happier I will be. I am done with assuming the bad karma of others as my own, when my own karma is actually pretty good, if only I will embrace it.

As time passes, if some of our enemies become martyrs in the cause of advancing and preserving stupidity and corruption, I won't shed a tear. They will have reaped what they have sown. Just as Ed Nottingham was brought down by his forgivable but bizarre predilection toward commercially anomic sex, and Larry Manzanares was brought down by his theft of a computer to cruise porn, I do not doubt that some of our enemies will one day be exposed and brought down.

I may one day be delighted to read that Blackburn has suffered a stroke playing squash or taking a dump, and will spend the next 20 years drooling jell-o and shitting his pants. I may one day be delighted to read that Lucero and Gleason were caught in a 69 at the Motel 6 while Ikeler and Coyle tickled their asses with feathers, dressed as Mothers Superior. I may one day be delighted to read that Steve Farber, Norm Brownstein, Cole Finegan and David Fine died from bad chopped liver served at a Mizel Center fundraiser.

If I don't, I will still have the great satisfaction of knowing that they know I am a far better man than they, and that is why they did so much to try to bring me down. I will leave it to others to bring them down, though.

When the corrupt face REAL consequences for their corruption, then you may actually see some improvement in the system, but it won't be because those who benefit from its corruption choose to loosen their grip in response to moral outrage and suasion. It will be because they lost in a game they don't understand, and cannot control.

More likely, nothing will change, as there will just be other shitbirds lined up to take their places.

We've done more than our part for people who didn't deserve our sacrifice.

Don't waste the rest of your life trying to convince yourself they were worth it. They weren't. They would never have done the same for you.

Focus on the many people in your life who are worth the sacrifice, and the labors that are worth your time and energy, and put the rest aside.

Leave the game of being the top fly on the shit pile to the lying, thieving shitbirds who dominate the profession, are protected from scrutiny by dubious affiliations, and are rewarded quite well for their moral inferiority.

Let them have their shit pile. You and I were made for better things.

Feb. 22, 2010 - attorney files suit, claiming connection between attorney regulation czar, John Gleason, and court-fixed organized-crime land grab, and that Gleason may have lied about his professional background

In a pleading filed today in Maynard v. OARC in U.S. Court for the District of Colorado, an attorney (hereinafter "Plaintiff") has made the following allegations regarding John Gleason, head of Colorado's Office of Attorney Regulation Counsel:

• Plaintiff claims to have "found a connection between John Gleason and two of the people who took over [a] homeowners' association in Spring Creek Ranch." ¹ She explains that Gleason's office prosecuted her for bringing a RICO suit regarding the takeover; for moving to recuse the Summit County district court judge, David R. Lass,² and for putatively violating an order of the water court to not "relitigate" water rights Lass had determined in a prior case. She further explains that her former client in the litigation testified "about the connections to organized crime he and his wife found, of people involved with the takeover of the homeowners' association."



• that, in October 2009, "John Scott Gleason-Denver" signed an online guestbook for his deceased aunt, Nadyne Lichty. Plaintiff called Dawn Gleason in Columbus, Ohio, who also signed the guestbook, and who confirmed that this is the same John Gleason. Plaintiff learned that Nadyne and her husband John Lichty owned a condo at 755 Saturn St. in Jupiter, Florida, and that one of the persons "who came out of nowhere" to buy a home and take over the Spring Creek Ranchers' Association's board of directors was Clayton Beattie, whose wife Mary Ellen Beattie was appointed to be secretary/treasurer, and who owns a condo at 810 Saturn St. in Jupiter, Florida, across the street from the Lichtys. Coincidentally, another John S. Gleason, of Evergreen Colorado, bought a condo at the Jupiter Yacht Club in December, 2003, about 4,200 feet (less than a mile) away from the Lichtys.



• That plaintiff obtained the bios of John S. Gleason (here and here). She notes that one indicates that he graduated from Ohio Northern University, Pettit College of Law, and that, before joining OARC, he "served as a criminal prosecutor and was in private practice with a law firm in Denver for several years," and that he attended Bowling Green State University and Columbia College as an undergraduate. The other indicates he "previously served with the Allen County Prosecutor's Office and was in private practice with a law firm in Denver for several years" and that he "attended Bowling Green State University" (nothing about Columbia College). Plaintiff contends there is no evidence that Gleason ever litigated any case, criminal or civil, as an attorney prior to joining OARC, which The Colorado Legal Directory shows he must have done before May 1988, when its 1988-89 edition was published. Plaintiff was told by the Ohio Bar Admissions Office that John S. Gleason has never been admitted in Ohio, and never sat for the bar exam in Ohio, and that he was not a prosecuting attorney in Allen County.³



• According to the Colorado Office of Attorney Registration, Gleason sat for the bar exam and was admitted in Colorado in 1985, but plaintiff was unable to learn the year he graduated from law school. She contacted the prestigious (not) Pettit College of Law and was told that they will not confirm a student's attendance or graduation (citing privacy concerns). In addition, Colorado Attorney Registration told plaintiff it keeps no "old employment records" of attorneys, and that that bar applications are private.



• Plaintiff interviewed Gleason's former employer, Robert Bartholic, an attorney. Bartholic told plaintiff he didn't remember seeing a resume from Gleason or an application, and believed he had just graduated from law school. Bartholic didn't remember "how he came in," or when, but that he believed Gleason had been a prosecutor. Bartholic represented railroads, and did some estate work, but no litigation. He said he didn't have enough business to keep Gleason busy, and recalled that, when the job at OARC opened up, Gleason "just applied and got it."



• Plaintiff contends that, not only was Gleason never employed as a prosecutor, and never prosecuted cases as an attorney, but also his resume is false in representing that he was "in private practicle with a law firm in Denver for several years," when --in reality-- it was with a sole practitioner between October 1985 to April 1988, during which there was "not enough business to keep [Gleason] busy."



• Plaintiff next states Gleason's resumes do not indicate that he graduated from Columbia College or Bowling Green State University, but only that he "attended," and because he provided no location for "Columbia College," it false appears that that he may have attended Columbia University. She notes there is a college by that name in Aurora which lists Gleason as an "adjunct professor" and is associated with Columbia College, a church-affiliated college in Missouri. Plaintiff called the Aurora campus, and --again-- they will not disclose whether Gleason attended or graduated.⁴

As a result of the plaintiff's allegations, which raises more questions than it answers, KnowYourCourts.com. has filed an Open Records request with the Office of Attorney Regulation Counsel.

____________________________
¹ The details of the alleged scheme are set out in a May 27, 2009 incident report to the FBI.
² For some interesting reading, see this December, 2006 Affidavit by 21-year police veteran Ken McNichols concerning retired judge David Lass.
³ Allen County is the county in which Ohio Northern University is located, thus Plaintiff surmises "Allen County" is in Ohio. And e-mail from Joanne Wieman, the Office Manager of the Allen County, Ohio Prosecutor’s Office states, "Please be advised that we do not have anything on record regarding the employment of John S. Gleason. I checked with the Auditor’s Office and they did not have him on record. He may have interned here as a student for credit only and our records only go back to 1988."
⁴ Plaintiff also observes that that Pettit College of Law states on its Web site that almost half its students obtained in the 25th percentile on the LSAT, that a Web site that ranks the top 100 law schools in the U.S. does not list Pettit, and that anyone who scored in the 25th percentile on the LSAT could not have passed the Colorado bar exam.

Feb. 18, 2010 - KnowYourCourts.com featured in Prendergast Westword article about OARC's selective prosecution practices

http://blogs.westword.com/latestword/2010/02/non-investigation_of_edward_no.php

If you have an opinion on the subject, leave your comment at the bottom of the article (no registration is required).

Feb. 12, 2010 - Prominent district attorney publicly accuses Office of Attorney Regulation Counsel (or Office of the Presiding Disciplinary Judge) of selective prosecution and altering disciplinary proceeding transcripts

In a public statement posted to the forum section of The Denver Post, the twice-elected Eighteenth Judicial District Attorney, Carol Chambers, impliedly accused offices of the Colorado Supreme Court of altering transcripts of a disciplinary proceeding and selective prosecution:

[D]id you know that, after I was censored, the transcript of that hearing appears to have been altered? One of the members of the hearing panel clearly and unequivocally told the attorney for the other side that what Jonathan Steiner had done looked like a crime to him too. Judge Lucero agreed. They then asked what the Office of Attorney Regulation Counsel was going to do to Jonathan Steiner. That entire discussion, that was witnessed by so many members of the press, is not in the transcript. It was also not reported at the time. If it looked like a crime to the hearing board, as it had to me, why wasn't I acquitted?? Dealing with crime is my constitutional mandate. What happened to Jonathan Steiner?

Jan. 31, 2010 - Attorney under fire: the "OARC goes after you if you try to stand up to the racketeers who control this state, and, in particular, if you expose misconduct of a judge . . . [The OARC] is not protecting the public from corrupt attorneys . . . It is protecting corrupt attorneys--particularly corrupt judges--from the public"

On this site, I have repeatedly alleged that Colorado's Office of Attorney Deregulation Council (OARC) willfully and knowingly disregards the Rules of Professional Conduct and will not prosecute dishonest lawyers, with four exceptions: (1) if the attorney is in arrears on child support (this is an automatic computer-generated suspension); (2) if the attorney has a fiduciary relationship with the complainant (e.g., co-mingling, misappropriation, or embezzlement of the client, estate, or trust funds); (3) for any other violation of the rules of professional conduct, but only if the case is high profile; and (4) as a political favor or the attorney has criticized the judiciary (in which case, whether the respondent lawyer is dishonest or incompetent is irrelevant).

By way of example, OARC's Matt Samuelson on January 12 summarily dismissed a complaint against Mike Luchetta, concluding that the complaint "does not set forth facts, which if proven, would constitute grounds for the imposition of discipline by the offices of the Supreme Court of Colorado." (citing Rule 251.9).   Yet, Samuelson, on the previous page, set out each of the complainant's contentions:

You assert that Mr. Luchetta filed a notice of income withholding with an erroneous amount of child support, that the notice included arrearages that were not ordered by the court, served a different notice of income withholding on your employer, that he lied to the court in order to pursue a contempt citation against you that resulted in the court finding you in contempt and sentencing you to serve jail time, and that Mr. Luchetta and others in his office made false statements to the principal at your daughters' school in order to obtain visitation for their client that was in violation of court orders.

I don't know about y'all, but it sounds like the complainant certainly did state facts, which if proven, would constitute multiple grounds for the imposition of discipline.

So why was the complaint dismissed? Well, because Samuelson disregarded the obligatory "shall" language of Rule 251.9 and made up his own rule. Or, more accurately, he applied John Gleason's unwritten agency rule, which is to dismiss opposing parties' complaints, by telling them they need to first obtain findings from a civil or criminal court that the attorney's conduct was a violation of the rules.

And yet, a [former] chief federal district judge, Edward "Fast Eddie" Nottingham has already denounced Samuelson's scheme:

[M]y understanding of the Colorado rules of attorney conduct is that upon the filing of a complaint, they do whatever investigation they need to have done, and they make whatever findings they need to have made, and they issue whatever orders they need. They don't need a recommendation from this court. You know, if that is what [Samuelson] said, he's wrong. (12/14/2007 transcript at 5)

Indeed, there's a fair amount of anecdotal evidence to support each of my four prosecution theories (supra), including the most seemingly-incredulous one, the "political favor" prosecution.¹

And so, I was delighted to discover the following addition, by Alison "Sunny" Maynard, to the lively comments posted to the recent Denver Post article, Money given to 18 clients victimized by dishonest Colorado lawyers:

OARC gets around 5,000 presumptively legitimate complaints a year about lawyers, and goes forward on only 50 of them--one percent. Yet I have been the obsession of a prosecutor there, April (Seekamp) McMurrey, full-time for over three years now, and she is closely supervised by Gleason and Coyle. She has told the defendant in one of my cases that "the Supreme Court is going to get Maynard" and that "the Supreme Court is tired of Maynard filing these cases."

What have I done? Well, I have exposed huge frauds at work in this state which have been enabled by judges. It's asset-stripping: the wrongful transfer of water rights, land, bank accounts--and, in one case, an historic building--from the true owners to development interests. After I have lost in the district court (in front of a judge who rubberstamps the deal), I have appealed to the Colorado Supreme Court, where I have written compelling briefs, yet seen that Court issue one-line summary affirmations which it then does not publish. My issues are not even mentioned, let alone determined. They won't let me win. And it's clear the other side--the developers--know the outcome in advance, because they do not even bother to respond to my issues. Their briefs are a joke. The appellate process is there only to give the appearance that due process has been afforded when, in fact, it has not.

So I can say, from experience, that OARC goes after you if you try to stand up to the racketeers who control this state, and, in particular, if you expose misconduct of a judge, although maybe sometimes it will go after an attorney when there's been a lot of press about something heinous. In my case, there isn't. There is not the slightest whiff of moral turpitude in anything I have been charged with, nor is it my clients who are complaining. Instead, the complaints have been filed by attorneys opposing me in pending litigation, seeking an advantage which OARC should never be giving them, but instead has been only too happy to. I have been required to get off the case and divulge my litigation strategy and views of the evidence to defend myself, a result not even my opponents dared hope for in their wildest dreams.

I have defended against EIGHT groundless complaints over the past three years, including two intended to get me determined "mentally incapacitated." It's like the Soviet Union under Stalin, where political dissidents are committed to mental asylums simply for disagreeing with the government.

OARC has further authorized the posting, on two websites (Statebillnews.com and LawWeek), of its latest complaint. They posted it under the heading, in red capitalized letters, 'DISCIPLINE!" But it's not discipline: it's only a complaint. This matter hasn't been to hearing yet, although I've had it hanging over me for two years, and they didn't bother to post either my answer--which completely debunks the complaint--or the order dismissing one of the three charges. Thus, it is libel per se. (The charge I got dismissed, by the way, required the word "clients" to be construed to mean "former clients"--the opposite of its plain meaning. McMurrey said she was arguing for an "extension of the law.")

This posting is more evidence that this office of "attorney regulation" is not interested in protecting the public, or in correcting ethical mistakes. It is interested in discrediting and destroying lawyers who have spoken out about what is going on in this state. It has shown it will resort to any maneuvers it can come up with to achieve this result. I have seen both Coyle and McMurrey lie outright to the PDJ, and I have strong evidence that ex parte communications are taking place between them. OARC is nothing but the hatchetman of the same interests I have been litigating against. In Animas-La Plata, for instance, where the developers have stolen the water out from under 6,000 other people, with the indispensable assistance of the judge. In Spring Creek Ranch, where the judge rubberstamped the takeover of my clients' homeowners' association by persons who proceeded, as "directors," to convey the subdivision's plan for augmentation to the adjacent developer (who was paying them), and to run up bogus liens on my clients' properties, which they then foreclosed on in front of the same judge. In Eulipions, where Dan Muse threatened the board of my clients' nonprofit, forcing them to step down and appoint cronies of Wellington Webb to the board, who then conveyed the historic building Eulipions owned to other people, pocketing the proceeds. And then there are the carve-ups of public property I have litigated over the past 20 years, by Roy Romer, Ken Salazar, and Wellington Webb, giving big chunks to their developer cronies (or, in Romer's case, to his own family trust).

As for my complaints to OARC about other lawyers, they have never gone anywhere. OARC has never even investigated a single one. This office is not protecting the public from corrupt attorneys, therefore. It is protecting corrupt attorneys--particularly corrupt judges--from the public.

_________________________
¹ For example, Law Week's Matt Masich reported in December that the former director of Colorado Ethics Watch, Chantell Taylor, accused two attorneys, Mike Coffman and Andy McElhany, of using (or attempting to use) the OARC as "a pawn in a person or party's political game." Another attorney, Kenny Padilla, accused the City and County of Denver of using the OARC grievance process to obtain a tactical advantage in ongoing litigation. (See ibid at ¶ 5). And The Rocky Mountain News reported that Carol Chambers accused an Arapahoe County judge of retaliating against her for complaints she filed against certain judges.  Soon after, Chambers was being persecuted by the OARC under the guise of ethics code enforcement in what some bloggers had described as a "show trial" immediately prior to the 2006 election. (Chambers alluded to selective prosecution in her public statement).

Jan. 29, 2010 - Colorado lawyer, Norman Beecher, disciplined for having an intimate relationship with client, but hearing board accepts lawyer's claim that he slept with client in her bed platonically.

Yeah, right. Does Mr. Beecher need some blue-pill help or does his story ("the parties stipulated") strain credulity? The opinion and order was issued in February, 2009 (nearly a year ago), but was just posted on the PDJ's Web site (the PDF document was created 12/18/2009). Yet, in other cases (hint, OARC v. Brennan) the OARC contacts the media with the decision before the respondent attorney has received notice of the same by mail.

Jan. 28, 2010 - I need a barf-bag: Denver Post quotes John Gleason today, "Attorney misconduct is not something the court takes lightly"

Thanks, Denver Post, for again giving Gleason and his specious OARC agency some more advertising space that, not only is free, but also false.¹

Denver Post staff are regular visitors to this site and, thus, are aware of the issues with OARC and the documentary evidence, but continue to portray the agency as one that protects the public. I'm not a conspiracy wingnut (e.g., believing that The Post is improperly aligned with the Mullarkey Court or run by Brownstein, Hyatt, Farber, & Schreck), but what else should we infer?

________________________
¹ The Gazette did the same last year (here), despite paying lip-service to me about its awareness of the problems with and well-founded criticism of the OARC. See my February 10, 2009 entry about that below.

Jan. 12, 2010 - Renowned "My Shingle" blogger excoriates OARC for "sheer vindictiveness, nothing more"

Read her article, "A Travesty of Justice in Colorado: Lawyer Suspended for A Year and A Day for WINNING His Client's Case"

Dec. 14, 2009 - Mark Brennan's Motion for Stay of Suspension (from practice of law) Denied Because, "Respondent demonstrated in these proceedings that he cannot or will not obey reasonable orders of the tribunal. Further. he physically and emotionally intimidated parties and participants in the proceedings . . . [and] . . . Respondent continue[s] to hold fast to his belief that the judicial system and most of its lawyers are corrupt."

The Order denying the stay contains profuse language about protecting the public, but the last clause of my excerpt in the heading (above) makes clear that the Hearing Board's interests are to protect the bench and bar from Brennan's dissent.

For readers new to this blog, the case is OARC v. Brennan.

Dec. 11, 2009 - KnowYourCourts.com featured in Prendergast Westword article about questionable OARC practices

http://blogs.westword.com/latestword/2009/12/attorney_regulators_love_egosu.php

If you have an opinion on the subject, leave your comment at the bottom of the article (no registration is required).

Dec. 04, 2009 - Appropos Quote: “[Office of Attorney Regulation Counsel] regularly indulges in the practice of throwing whatever [nonsense] against the wall of the courts it can, in the hope that some might stick, or that its adversary might fail to hose it off with a salutary spray of Truth.”

You'll find that quote, and many others, in Mark Brennan's latest Response to OARC's Motion to Strike Notice of Appeal as Untimely, located here.

Oct. 30, 2009 - KnowYourCOurts.com exclusive - OARC notifies press before notifying attorney of his suspension

Based on an e-mail obtained by KnowYourCOurts.com, it has been determined that the OARC, a regulatory agency of Colorado's Supreme Court, had notified Law Week Online's Matt Masich on the morning of October 28, 2009. Law Week had the opinion posted by 11:45.

"It wouldn't be unusual for a journalist to put in a standing request to be notified when the decision comes out," said Alan Prendergast (Westword). Prendergast said that he, too, received a phone call on the 28th from OARC's Jim Coyle.

The problem with all of this is that, according to the Certificate of Service the OARC received it's copy from the Presiding Disciplinary Judge by hand delivery, whereas the copy sent to Brennan was by mail. As a result, Brennan didn't receive his copy of the Order until the 29th, and probably learned of his suspension by receiving an inteview request from Law Week. If Law Week didn't have the integrity to get a comment from Brennan, he instead would have learned of his suspension by reading about it on their Web site.

In matters like these, the press should never be notified before the respondent-attorney. Once again, and for yet another reason, shame on Colorado's Attorney Regulation Counsel.

Sep. 10, 2009 - KnowYourCOurts.com exclusive - another OARC employee becomes embroiled in physical confrontation with accused lawyer, who contends OARC is prosecuting her because she has openly criticized Colorado judges on a blog and attempted to recuse two.

Readers may recall that, recently, in the matter of OARC v. Brennan the OARC in May, 2009, requested increased security at the hearing out of an abundance of concern that Brennan posed some safety risk, ostensibly because he has been characterized as loud and assertive.¹

Nevertheless, a physical altercation did occur, with the OARC threatening to request criminal charges and Brennan contending that the OARC staffer, Kim Ikeler, "assaulted me, in violation of repeated court orders that he stay away from me."

Today, another altercation took place between OARC staffer April McMurrey and accused attorney Alison "Sunny" Maynard, which arose from a dispute over OARC's dispossessing Maynard of 14 bankers' boxes of files, dating back 11 years and relating to litigation in which Maynard won a sizable judgment against Gary Magness.

Before I get to the scandal part of this story, let's start with the underlying dispute first, because it provides some insight into the secretive world and childish antics of Colorado attorney disciplinary proceedings. The underlying dispute also sheds light on serious due process failings, which seem to be routine in these matters.

Renée E. Moeller of the Bennett Law Firm in Texas recently wrote:

Both the United State Constitution and the Texas Constitution specify and guarantee due process rights as "rights of the accused." . . . In attorney disciplinary matters in particular --where the respondent attorney is the accused-- federal courts have articulated even more due process rights: (1) an opportunity to confront the evidence against the Respondent attorney and to cross-examine witnesses. (2) the right to present witnesses and argument on one's own behalf; (3) the right to assert the privilege against self-incrimination; and (4) the right to have the facts determined and the sanction imposed by an impartial body. Unfortunately, attorneys caught up in the Texas disciplinary system are given the short shrift regarding full due process rights.²

Mark Brennan would likewise contend that attorneys caught up in the Colorado disciplinary system are also given the short end of that stick, as he was denied the opportunity to call his own witnesses or present his own exhibits. Brennan points to an April 17, 2009 order which, in effect, posits that the Colorado Supreme Court disciplinary process is not governed by basic principles of due process enunciated by the US Supreme Court.³ The Presiding Disciplinary Judge ("PDJ") William Lucero opined that the Colorado Supreme Court's dictum in People v. Morley,⁴ (that due process does not require a respondent be allowed to call every conceivable witness) means that Brennan be disallowed from deposing the key witness against him, or to subpoena key witnesses in his favor.

Last Friday, Lucero denied Maynard a protective order as to April McMurrey's planned use of a 2003 dismissed grievance and certain testimony. Lucero also granted OARC's Motion to Compel (suprise, suprise --see Brennan, supra where all Motions were axiomatically ruled in OARC's favor), thus requiring Maynard to produce the 14 boxes of files.

Lucero's order was issued at 4:30 p.m., and he convened a telephone conference to inform Maynard he was serving it by e-mail because of the long weekend. Yet, throughout the proceedings, Lucero has prohibited service by email. Maynard was ordered to make this production by Tuesday, Sept. 8, -- the same day she was expected in federal court on her preliminary injunction hearing against the OARC. See Maynard v. OARC.

Although, Maynard says, "I did not want this production to go forward unsupervised . . . because I do not trust these creeps with my case files," she nevertheless complied, reviewing the files over the weekend (when she should have been preparing for the preliminary injunction hearing), and delivered the files by 1 p.m. to OARC's downtown office.

When Maynard showed up to retrieve her records at the expiration of OARC's access period, she says she was told by McMurrey, "No way. Sorry; we aren't done inspecting and copying your files, and I'm filing a motion to ask to keep them until Friday, and for an extension to Monday submit my exhibits." The irony of this situation is that Maynard was also under the same Friday deadline to submit exhibits, but didn't have access to her own files.

Maynard feared McMurrey was keeping the files to continue a ceaseless fishing expedition, looking for something to contrive yet another grievance.

On Wednesday, Lucero ruled on the discovery dispute, decreeing that OARC would keep Maynard's files indefinitely.⁵ In fact, says Maynard, it is she who will have limited access to them, as she is "permitted" to inspect and copy her files Thursday and Friday to prepare her exhibits. She said she must also provide a manifest to OARC of what documents from her files she copied as necessary to prepare exhibits (providing OARC with unilateral insight into her defense).

Prior to entering this ruling, Maynard says Lucero was going to send the entire 11 boxes of files to Kinkos for OARC's use and stick the copying costs (thousands) to Maynard, who points out that, under Rule 26(a)(1), the OARC is required to pay for their own copies. Moreover, Lucero threatened to sanction Maynard by not permitting her to put any evidence on at the hearing, which has led her to conclude that he's looking for a pretext to fix the outcome of the proceedings. (Ed.: Newsflash, Sunny --the fix is already in).

Maynard said she believes Lucero and McMurrey and Coyle are conferring and colluding ex parte, because Lucero was fully briefed on what the OARC needed (viz., to see what exhibits Maynard will use).⁶

Today, Maynard met with McMurrey, while reviewing Maynard's files. The files had been transferred to a conference room outside the courtroom. Maynard observed what McMurrey was designating for copying, which Maynard contends is unrelated to the instant case and, thereby, confirming McMurrey's fishing-expedition intent.

Maynard says she became infuriated and repossessed her files, removing them to her car. She says McMurrey attempted to physically block Maynard's path⁷ and this, in turn, resulted in shouting and one or more expletives. According to Maynard, Lucero said he would issue an order later and would impose some sanction (on Maynard, of course).

Instead, Lucero convened a hearing, whereupon McMurrey testified as to her version of events (her eminently reasonable conduct and Maynard's purported eminently unreasonable reaction). Lucero then --according to Maynard-- changed his position, urging that he always intended that Maynard could remove her files,⁸ and he restored the deadline for exhibits by noon tomorrow.

Of note, the only cross-examination OARC had of Maynard yesterday (they called no witnesses) was to discuss an unrelated case (not at issue in these disciplinary proceedings), in which Maynard moved to recuse the judge, as well as a posting on a blog Maynard wrote about a Denver special election she contested, where she made a negative statement about Colorado judges being "another tentacle of the same octopus we are fighting." Maynard says, "That was their [case], and that is the reason they are expending all these resources to get me: I have been critical of judges and moved to recuse a couple."

___________________________
¹ Naturally, I regarded this deceptive posturing as dubious because Madeline Wilson (my ex-wife's former divorce attorney) would invariably use similar tricks to taint the proceedings. These tricks include, but are not limited to:

• Requesting and adding herself, the ex-wife, and the divorce judge to a duty-to-warn, after requesting that I be confined in a mental hospital in 2000, which request was approved and handled by my ex-wife's supervisor, Tom Olbrich (my ex-wife was then an employee of the Jefferson Center for Mental Health), and which confinement was based on information supplied by my ex-wife, which was repackaged by Olbrich as `though it was official medical information
• Repeatedly arguing that I was "potentially homicidal" and mentally ill
• Repeatedly alleging (for the past nearly ten years) that I possess her residential address and that she is fearful for her life
• Repeatedly (but unsuccessfully) applying for permanent restraining orders, making the above allegations
• Calling or otherwise conveying information intended for a court in Texas with a "tip" that I am dangerous, resulting in heightened court security upon my arrival at a custody hearing
• Requesting additional deputies at Colorado court hearings and then claiming, afterwards, in collateral proceedings, "there were five Sheriffs in the Courtroom to protect us with a female Sheriff to escort us to the restroom. (Having this many Sheriffs in the Courtroom is not a normal procedure, nor is having an escort to the restroom.)"

² Renée E. Moeller & Robert S. Bennett, Attorneys and the Texas Disciplinary System: A Continuing Denial of Due Process, San Antonio Lawyer (Nov/Dec 2004).
³ The U.S. Supreme Court unequivocally said in Jenkins v. McKeithen that due process requires the right to compel attendance of witnesses, even in non-criminal administrative proceedings.
⁴ 725 P.2d 510, 518 (Colo.1986).
⁵ KnowYourCourts.com does not have a copy of any minute orders, bench rulings, or written orders to confirm or deny Maynard's version, which is represented in this article. April McMurrey has not returned an inquiry for comment.
⁶ Maynard's belief echoes Brennan's observation of OARC's Jim Coyle and one of Lucero's clerks chatting intimately in the hallway at Brennan's hearing.
⁷ Here's a question for 1L law students: Assume no Colorado statute governs: Would McMurray have been privileged to use reasonable force against Maynard under the common law recapture-of-chattels doctrine? If not, would Maynard have a cause of action for false imprisonment, assuming Maynard had no other means of escape?
⁸ Maynard vows to obtain a transcript from yesterday to reveal the discrepancy.

Aug. 27, 2009 - Increasing number of lawyers are exercising their First Amendment rights (free speech and the Petitioning Clause) to speak out against or sue Colorado's Office of Attorney Regulation Counsel

Today, Illinois lawyer Beverly Mann filed a Motion with the Colorado Court of Appeals in the probate case of her decedent-father, in which she berated the OARC:

Although in most states, attorneys (including judges) who are aware of attorney misconduct are required to report it to the respective state bar agency that corresponds with the OARC, in Colorado . . . the OARC acts only upon the requests or findings of judges, if the alleged attorney misconduct was directed against (or operated against) an opposing party.

Maybe that's because the OARC is spending all of their time drafting memos to protect lawyers like Madeline Wilson, or selectively prosecuting lawyers who pose little (or, more probably, no) harm to the public, like Mark E. Brennan and Allison "Sunny" Maynard.

Today, Maynard, a Colorado attorney licensed for 22 years, brought suit against the OARC. "I have endured political retaliation in the guise of ethics code enforcement for almost three years,” she told KnowYourCourts.com.

Maynard, who was the Green Party candidate for Colorado Attorney General in 2002, and a co-plaintiff, Jerry Lewis, both allege violations of their civil rights because of OARC’s institution of dozens of disciplinary charges against Maynard over the last three years, leading to two one-year suspensions (during which time Maynard is unable to practice law). Another hearing is scheduled in September, intended increase the suspension or result in disbarment, she believes.

Lewis complains that the charges against Maynard relating to his case were initiated by the attorney opposing him in pending litigation, Victor Boog, to obtain a tactical advantage in the case, worth millions. The 73-year-old Lewis has, for the past 10 years, fought what he characterizes as a racket enabled by [now retired] district court judge, David Lass, which racket he contends took over the board of directors of his homeowners’ association in Summit County and proceeded to convey commonly owned property, including the water supply, to the adjacent developer, as well as to institute a lien foreclosure scheme to drive the other owners out of the subdivision and acquire their properties for a fraction of their value.  Lewis now asserts that OARC assisted and colluded with Boog to remove Maynard from the case to ensure Lewis’s defeat.

In a statement prepared for KnowYourCourts.com, Maynard further claims that the disciplinary proceedings constitute retaliation for her criticism of a Colorado's supreme court justice, Greg Hobbs, for meeting with the attorneys opposing her in litigation while her appeals were pending in that court, as well as accepting gifts and money from them. She alleges the retaliation is also because of criticism she has made of the Court as a whole. “The Supreme Court has issued one-line summary affirmations of the trial court in two important appeals I have brought to it in the past three years; dismissed another on a pretext; and mischaracterized my issues or the evidence in two others. I believe it is now punishing me because it is embarrassed: the justices know that I know they do not in fact decide cases based on the evidence or the law. They decide them on other grounds they are not going to tell us about. Those grounds are impermissible per se.” ¹

Maynard, who has been denied a stay pending appeal, claims that none of the complaints leading to the disciplinary proceedings were initiated by her clients —but rather— her clients have testified for her as character witnesses.

Further reading: Complaint  |  Application for TRO |  Lewis Affidavit

_______________________________

¹ See, e.g., Peter Jan Honigsberg, Legal Research, Writing & Analysis, §205 ("As you gain experience in reading cases, you will see how judges play around with a set of facts, manipulating them to reach a desired decision. They will try to make the plaintiff or defendant an object of sympathy, depending on whom they think should win");  Monroe Freedman, 128 F.R.D. 409, 439 (1989) ("Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules") (excerpted from speech to the Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit (May 24, 1989)); Gennaioli & Shleifer, Judicial Fact Discretion (October 2006) ("Judicial fact discretion is defined as misrepresentation in a judge's decision of facts revealed in a trial . . . judges engage in fact discretion to promote their own agenda");  Hon. Richard Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla. State Univ. L. Rev. 1259 (2005) ("one expects that personal factors —such as political or ideological concerns personal to the judge rather than embodied in the law, the kind of intellectual laziness that consists of acting on intuition rather than on analysis and evidence, and the delights of tormenting the lawyers that appear before them— will play a larger role in federal district judges’ decisions"); Mark Tushnet, Taking the Constitution Away from the Courts (1999) at 155-56 (Judges typically embrace a desired result and then select whichever theory plausibly permits them to reach that result); Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133 (discussing judges "manhandling of the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach"); William L. Reynolds, Who are the Juristocrats? Guerrila Warfare Among the Courts (March, 2005) ("judges . . . manipulate the fact-finding and opinion-writing processes in various ways . . . they twist or thwart the controlling authority in order to reach the desired result."); Hon. Terry Lewis, "Judicial Independence, judicial accountability and activist judges", The Tallahassee Democrat, (Nov. 21, 2007) (discussing judicial conduct, "demonstrating a willingness to ignore legal precedent and principles in order to reach a desired result"); Hon. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995) ("I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would-be dissenters go along with a result they do not like so long as it is not elevated to a precedent").

Feb. 10, 2009 - The Gazette gives Colorado's Office of Attorney Deregulation Council free advert space (at a time when papers are going out of print because of revenue shortages)

Dennis Huspeni, a reporter I have attempted to establish good rapport with over the last couple of years and with whom I've discussed the OARC via email on numerous occasions, decided to finally make good on his promise to write an article about the OARC.

On 6/13/2007, Dennis wrote me:

As I told Kim [Thorup], I am VERY interested in doing a story on the ARC. I got a copy of the 2006 report and have been reading over it. It does seem like only a minor number are actually investigated, then an even smaller number of discipline actions taken. That concerns me, but I need to let readers know why that's important and why they should care (other than the obvious - you pay a lot of money for attorneys, they should be above reproach ethically). Keep the info coming. I really appreciate it. [emphasis in the orig.]

I don't get around to deleting email often.

Unfortunately, Dennis appears either to have completely lost his initial impression or something (or someone) has persuaded him to publish a different viewpoint.

In this February 7, 2009 article, Dennis provided John Gleason with a mouthpiece, quoting him as saying, "Our No. 1 goal is to protect the public; Our No. 2 goal is to serve the public." Gleason loves the attention and, doubtless, appreciates the free advertising.

Dennis further quoted from an OARC opinion in one case:

"Purposeful deception by an attorney is intolerable, even when it is undertaken as part of attempting to achieve what the attorney believes is the greater good."

Whereas the specious opinion states "Purposeful deception by an attorney is intolerable," the reality is that making false statements under oath and offering material misrepresentations during the course of a disciplinary investigation is tolerable, as I've fully explicated in detail on this page (click on the Feb. 2009 link thereon).

Gleason spryly noted that, "Other states cringe when I tell them here you can make a complaint about a lawyer by picking up the phone."  Perhaps, Dennis' readers would've cringed if they realized that this is Gleason's way of eliminating the paper-trail, because most caller-complainants are told their complaint has no merit and are turned away. Under his "model system" he not only can manipulate the metrics and manage his workload (discretion that Rule 251.9 does not afford), but he also can claim that the low prosecution rates indicate that Colorado attorneys are of extraordinary character.

At the risk of sounding narcissistic, it seems to me that, through these various consonant interviews, Gleason is laughing at those of us who've reported dishonest attorneys.

I'm very disappointed that Dennis declined to even concede his knowledge of the contrary viewpoint on this topic.

Jan. 21, 2008 - Proposed Changes to Rules of Procedure Regarding Attorney Discipline and Disability Proceedings

Colorado Rules of Civil Procedure Rule 251.8 and Rule 251.31 Hearing to be Held Wednesday, January 21, 2009 at 1:30 P.M. The Colorado Supreme Court will conduct a hearing on the proposed changes to C.R.C.P. 251.8, Immediate Suspension, and C.R.C.P. 251.31, Access to Information Concerning Proceedings Under These Rules, on Wednesday, January 21, 2009 at 1:30 p.m. in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. The Court also requests written public comments by any interested person on these proposed rule changes. An original and eight copies of the written comments concerning the changes should be submitted to Susan J. Festag, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203 no later than Friday, January 9, 2009 by 5:00 p.m. Persons wishing to participate at the hearing should notify Ms. Festag no later than Friday, January 9, 2009. By the Court: Michael L. Bender, Justice, Colorado Supreme Court Nathan B. Coats Justice, Colorado Supreme Court ------------------------------------------------------------------- Rule 251.8 Immediate Suspension (a) Immediate Suspension. Immediate suspension is the temporary suspension by the Supreme Court of an attorney’s license to practice law for a definite or indefinite period of time while proceedings conducted pursuant to this Rule and these Rules are pending against the attorney. Although an attorney’s license to practice law shall not ordinarily be suspended during the pendency of such proceedings, the Supreme Court may order the attorney’s license to practice law immediately suspended when there is reasonable cause to believe that: (1) the attorney is causing or has caused immediate and substantial public or private harm and the attorney: (A) has been convicted of a serious crime as defined by C.R.C.P. 251.20(e); (B) has converted property or funds; (C) has abandoned clients; (D) or has engaged in conduct which poses an immediate threat to the effective administration of justice. (b) and (c) [No Change] Rule 251.31. Access to Information Concerning Proceedings Under These Rules (a) [No Change] (b) Confidentiality. Before the filing and service of a complaint as provided in C.R.C.P. 251.14, the proceedings are confidential within the Office of the Regulation Counsel, the committee, the Presiding Disciplinary Judge, and the Supreme Court, except that the pendency, subject matter, and status of an investigation under C.R.C.P 251.10 may be disclosed by the Regulation Counsel if: (1)–(2) [No Change] (3) The proceeding is based on allegations that have become generally known to the public; (4) There is a need to notify another person or organization, including the fund for client protection, to protect the public, the administration of justice, or the legal profession; or (5) A petition for immediate suspension has been filed pursuant to C.R.C.P. 251.8. (c)–(q) [No Change] COMMENT C.R.C.P. 251.31 The confidentiality rule set forth in C.R.C.P. 251.31(b) seeks to strike a balance between the protection of attorneys against publicity predicated upon unfounded accusations and the protection of clients and prospective clients and the effective administration of justice from harm caused by attorneys who are unwilling or unable to fulfill their professional obligations. C.R.C.P. 251.31(b) also recognizes that restrictions on confidentiality no longer serve their purpose when allegations that would ordinarily be confidential have become generally known through disclosure in the public record, publicity or otherwise. The Regulation Counsel frequently receives inquiries from judges, clients or prospective clients and the media asking if an attorney is the subject of a pending disciplinary investigation. Ordinarily, this rule prohibits the Regulation Counsel from providing information about a pending investigation or even confirming that an investigation is pending. C.R.C.P. 251.31(b) sets forth exceptions when the Regulation Counsel may reveal the pendency, subject matter, and status of an investigation under C.R.C.P. 251.10. Certain exceptions are clear. For example, when the attorney has waived confidentiality or when the proceeding against the attorney is based on a criminal conviction, discipline imposed on the attorney in another jurisdiction, or a petition for immediate suspension filed by the Regulation Counsel against the attorney under C.R.C.P. 251.8. Other exceptions require the Regulation Counsel to exercise discretion. C.R.C.P. 251.31(b)(3) requires the Regulation Counsel to determine whether otherwise confidential allegations against an attorney have become generally known. Factors that the Regulation Counsel should consider in these circumstances include but are not limited to the nature and extent of media coverage, the nature and extent of inquiries from the media and the public, the nature and status of any related judicial proceedings, the number of people believed to have knowledge of the allegations, and the seriousness of the allegations. Another important exception requiring the Regulation Counsel to exercise discretion is C.R.C.P. 251.31(b)(4), which allows disclosure when there is a need to notify another person or organization in order to protect the public, the administration of justice, or the legal profession. In determining whether a need to notify exists, the Regulation Counsel should consider factors including but not limited to the nature and seriousness of the conduct under investigation, the attorney’s prior disciplinary history and whether the attorney has previously been disciplined for conduct similar to the alleged conduct under investigation, and the potential harm to a client or prospective client, the public or the judicial system. In those instances in which the Regulation Counsel determines that disclosure is permitted based on C.R.C.P. 251.31(b)(4) alone, the Regulation Counsel is authorized to disclose the pendency, subject matter, and status of an investigation in response to inquiry, but also to disclose this information affirmatively to those persons having a need to know the information in order to avoid potential harm.

Dec. 11, 2008 - Accomplished Colorado trial lawyer persecuted by Attorney Regulation Counsel in retaliation for prevailing against the the wrong defendant

This fireside chat is about my favorite and your favorite bureaucracy, the exalted Colorado Supreme Court Office of Attorney Deregulation Council: our Defender of Truth, Justice and the American Way; our Protector of vulnerable widows and orphans from incompetent and dishonest attorneys.

But, as I'll explain later, one capable attorney --a modern day Lord Erskine-- doesn't see it that way at all: he suggests the agency is a complaisant instrument of political retribution.

 

Lord Erskine for the defense of the Dean of St. Asaph, Sir William Jones, in a trial for seditious libel for having written a tract on general principles of government and recommending parliamentary reform.  Camp. VIII, 272-279.  After a long series of contentious exchanges between Erskine and Justice Buller over how the language of the jury's verdict should be recorded, the following occurred (Camp. VIII, 277; small capitals in the original):   Buller, J.: "Sir, I will not be interrupted."   Erskine: "I stand here as an advocate for a brother citizen, and I desire that the [record be complete]."   Buller, J.: "Sit down, Sir; remember your duty or I shall be obliged to proceed in another manner [i.e., with imprisonment for contempt of court].   Erskine: "Your Lordship may proceed in what manner you think fit; I know my duty as well as your Lordship knows yours.  I shall not alter my conduct."   Campbell continued:  "The learned judge took no notice of this reply, and, quailing under the rebuke of his pupil, did not repeat the menace of commitment.  This noble stand for the independence of the Bar would of itself have entitled Erskine to the statue which the profession affectionately erected to his memory in Lincoln's Inn Hall.... The example had had a salutary effect in illustrating and establishing the relative duties of Judge and Advocate in England."

 

The account that follows may elucidate why trepidation and indecisiveness (or else covert advocacy arrived at by treachery and parlor tricks) has been substituted for the valor of Lord Erskine's overt championing of the client's cause.

In today's legal profession, a lawyer's first client is the judge, whereas the client by title simply pays the bills. And see Monroe H. Freedman, The Threat to Judicial Independence by Criticism of Judges: A Proposed Solution to the Real Problem, 25 Hofstra L. Rev. 729, 729 (1997) (“The problem is not that too many lawyers are publicly criticizing judges. Unfortunately, too few lawyers are willing to do so, even when a judge has committed serious ethical violations and should be held accountable”).

If you're a practitioner who subscribes to The Colorado Lawyer, then you've probably read the OARC's flattering self-appraisal or Alex Rothrock's summary description of the theoretical policy and procedure.  If you're an average lawyer of average intelligence, you may fear the regulation system, but assume that an attorney has nothing to fear from OARC so long as he or she achieves the best possible result for his or her client.

If you're an average member of the public, you've possibly read reports by The Glenwood Springs Post or Denver9News, with interviews of the agency's long-time chief, John Gleason, that attorney dishonesty is not tolerated in this state.

If you're Dale Kim Thorup, you know better: The OARC won't investigate your claim that your ex-wife's attorney was sleeping with her during the pendency of your divorce case, even after the attorney married her a few months after the divorce.

If you're me, you know better: I was told to go pound sand when I provided direct (as opposed to indirect or circumstantial) evidence that a certain attorney provided substantial aid, encouragement and legal advice in tortiously and unlawfully concealing the whereabouts of my child; lied about knowing the physical location of the parent-client hiding the minor child; lied under oath about giving legal advice to the parent-client living in another state; lied under oath about being "assaulted in court"; lied about faxing documents that were never faxed; lied to disciplinary authorities; repeatedly and deliberately misled the tribunal; advised the client to light candles, burn incense and send my spirit away; and fabricated bizarre and exotic claims of death threats, among other things.

But, I digress.

If you're Mark E. Brennan, a highly capable plaintiff's lawyer in Centennial, you know better: He seems to have good reason to suspect that OARC is not above allowing itself to be used by those with friends in very low places to take retribution against their enemies.

Why should readers care?  Put bluntly, "Where law is honored and respected, societies flourish; where legal systems are trumped by political or economic elites and stifling bureaucracies, the people live in misery and are impoverished." ¹

Brennan's saga is explicated in detail by Alan Prendergast (The Westword) in his article, Blackburned,² and is a classic fable of the "little guy" prevailing against "those who have all the wealth and power at their disposal." ³ Alan Prendergast summed it up this way:

The . . . fiasco is only part of a twisted saga of perjury, cover-ups and discrimination claims that led to [plaintiff] winning a $1.2 million judgment from a federal jury two years ago. It was one of the largest awards ever entered against the city -- but it was tossed by Judge Robert E. Blackburn, who declared that [Brennan] must have improperly inflamed the jury with his sarcastic, confrontational style of litigation.

Brennan selflessly devoted years to representing a 27-year-veteran Denver firefighter in Civil Service Commission and federal court proceedings challenging the the firefighter’s unlawful termination on the pretext he shoplifted a cookbook from a Safeway store.

In early 2004, Civil Service Commission Hearing Officer John Criswell found after an extended hearing that the City failed to prove the firefighter, Bill Cadorna, shoplifted the cookbook. He found that, as Cadorna contended when first accused of shoplifting the cookbook by a fellow firefighter, a Safeway clerk had given Cadorna permission to take a copy of the cookbook without paying for it to make up for one Cadorna had bought, but lost, on a previous visit to the store.

In what some have characterized as an apparent favor to the City, Criswell --the same Civil Service Commission Hearing Officer who found that Denver cop James Turney deserved no punishment whatever for his killing of mentally disabled Paul Childs-- complied with the City’s insistence that Cadorna be denied reinstatement because he was over age 50 and had retired following his termination.

The Denver Civil Service Commission upheld Criswell’s decision, in reliance upon an obvious misstatement of fact by Criswell in his decision that Cadorna retired “prior to dismissal”. All the evidence showed Cadorna retired after his dismissal. The Commission’s own records verified that Cadorna had not retired until after his dismissal. Yet, to avoid reinstating Cadorna, the Commission concluded that, since Cadorna had retired before he was fired, there was no dismissal to be appealed. Huh?

Brennan told Cadorna in 2003 he would not litigate Cadorna’s claims in federal court if that became necessary, as he did not want to become mired in years of federal litigation. However, when Cadorna was still unable to find other counsel in 2004, Brennan prevented Cadorna from losing his claims under statutes of limitation by suing the City in federal court for age discrimination and other civil rights violations. When numerous other expert employment attorneys declined to take over the case because they regarded it as a “loser”, Brennan did not abandon Cadorna. Brennan forged ahead.

After federal Judge Robert E. Blackburn, no friend of employment plaintiffs, and normally inclined to dismiss employment claims, denied summary judgment on Cadorna’s age discrimination and substantive due process claims, the case went to trial in June, 2006.

At the end of a two-week trial, the jury found the City guilty of willful age discrimination, and awarded Cadorna $610,571.00 in back pay. Judge Blackburn imposed judgment for liquidated damages in the same amount because the jury found the City’s discrimination against Cadorna was willful. The judgment therefore totaled $1.22 million, one of the largest ever against the City of Denver.

Brennan recalls how mystified he was that the City made no effort whatever before trial to settle the case, even though the evidence against it was very strong. In retrospect, Brennan says he suspects they had reason to believe even before trial that their “back was covered”, whatever the outcome.

And, sure enough, Blackburn set aside the jury's verdict. Why? On the basis of Brennan's alleged misconduct (`though neither the City nor the judge had sought or ordered a mistrial for alleged misconduct during trial).

I say "alleged," because --if you believe the jurors (discussed below)-- Blackburn's maneuver was, in all probability, based on an ulterior motive. Additionally, Brennan notes that Blackburn has developed a reputation for deep-seated hostility to civil rights plaintiffs (quite similar, now that I think about it, to former judge Edward Nottingham's reputation concerning employment cases),⁴ but adds that Blackburn seemed at the close of trial to feel that justice had been done.

Brennan says he believes that, although Blackburn did not conceal his hostility to Brennan and his client during trial, it was only well after trial that Blackburn decided to overturn the verdict, for reasons unrelated to the truth or the law. “Cui bono?”, Brennan asks.

Obviously, the City has lots of friends in low places. Just after Blackburn ordered a new trial, OARC Chief John Gleason served Mark Brennan with a Notice of Investigation.⁵

What of Brennan's alleged misconduct? In response to Gleason’s demand that he explain why he should not be disciplined for prevailing against the City, Brennan requested that Investigating Attorney, Kim Ikeler, interview the jurors. Ikeler and his assistant, Janet Layne, did. Here are notes from interviews with seven of the eight jurors (the eighth wasn't interviewed):

• Brennan did a great job . . . Don't think [his behavior was] out of line . . . thinks City got to Blackburn . . . Don't think it was 100% the judge's decision . . . think somebody (city) got to him . . . City attorneys not very good. [Asked, "Was Brennan abusive - answer]: Not at all!



• [Asked, "Was Brennan abusive, obstreperous?" Answer]: Seemed arrogant, interrupted a lot, judge got upset a couple of times. [Asked, "Was Brennan trying to disrupt [the] trial?" Answer]: No. [Asked, "Should the Supreme Court [OARC] do anything to Brennan for the way he acted?" Answer]: No



• though [Brennan's] behavior was normal . . . Didn't believe the reason[s] given for overturning [the verdict] . . . No intent to disrupt; [Brennan] did not interrupt proceedings; [Asked, "Should the Supreme Court [OARC] do anything to Brennan for the way he acted?" Answer]: No



• [Brennan] not abusive or obstreperous. Not belligerent . . . Did not disrupt.



• Brennan - thought he was good. Would hire him . . . pushed limits a couple of times. Not abusive, belligerent. Behaved professionally . . . Not trying to disrupt. Just trying to prove his point.



• Brennan - total advocate for client . . . Not abusive. Not disruptive . . . did not intend to disrupt . . . Never yelled at judge . . . maybe occasionally obstreperous. Very passionate . . . good advocate . . . Would hire Brennan if needed an attorney . . . Blackburn: process obsessed . . . Thinks somebody got to judge



• Didn't think disruptive; not intentional at all . . . just trying to win case . . . appreciated his spark; behaved prof[fessionally]. Did a good job rep[resenting] client. Not abusive, obstreperous, disrespectful.

On January 31, 2008, Ikeler and Layne met with Brennan to discuss the results of their investigation. Ikeler, a senior attorney in OARC, explained that, although OARC could not endorse some of Brennan’s theatrics or methods, neither did its investigation reveal clear and convincing evidence of misconduct. Ikeler explained that he would recommend dismissal of the matter for lack of evidence.

So, then, would it surprise you to learn that, on February 15, 2008, Ikeler called Brennan and informed him that Ikeler’s superiors had ignored the recommendation of dismissal, and directed Ikeler to issue a March, 2008 Report of Investigation, requesting that the Committee authorize a complaint against Brennan? ⁶

Would it surprise you to learn that, in the February 15 Report of Investigation in which he requested Brennan’s prosecution, Ikeler forgot to mention that, in their January, 2008 interviews, supra, the jurors all supported Brennan, and that Ikeler failed to state his legal opinion that there was insufficient evidence to support Brennan’s prosecution?

Would it surprise you to learn that in May of 2008, the OARC served Brennan with a citation?

Would it also surprise you to learn that Brennan's February 18, 2008 Response to Ikeler’s Report was stricken (considered not filed), because it was 24 pages in length [supposedly exceeding "Committee guidelines" that they be limited to five pages, which Brennan says are not published or written anywhere]? ⁷ Would it surprise you to learn that OARC did not apply this alleged rule to its own Report of Investigation (which was over 20 pages in length)?

I called Kim Ikeler, today, to clarify this latter point. His response was about as clear as mud:

Well, the Attorney Regulation Committee does have a list of practices, and that includes the five-page limit. It's not published in the Rules. It comes from the Committee. . . [sound of thumbing through papers and regulations] . . . So, I'm trying to figure out whether that's confidential. I don't know. Doesn't say. I can't tell you what the list says or where you can get it. I just don't know.

Well, that's reassuring. Unable to find an answer, Ikeler had to transfer me to Gleason's desk. I left a voice-message, but am not holding my breath for a call back.

I find Brennan's Answer to this frivolous prosecution both concise and compelling. He argues:

This proceeding was initiated and is being pursued as part of a fraudulent and unlawful conspiracy by the Colorado Supreme Court, "Judge" Robert E. Blackburn, and the City and County of Denver to deprive Respondent of his property interest in his professional license, and liberty interest in his career and reputation, without due process of law, and to violate Respondent's right to equal protection of the law, in violation of the United States Constitution and the Colorado Constitution . . . [and] to deprive Respondent of his constitutional and civil rights, including but not limited to his right to free speech, and to take reprisal against Respondent for his successful representation of a disadvantaged person in a civil rights action against the politically and economically powerful City and County of Denver.

Brennan further argues, in his Motion to Dismiss:

Those who enforce the law in Colorado evidently deem themselves above it. [The] OARC, the Denver City Attorney, and Judge Blackburn appear to work from the same playbook, one written not by our Founding Fathers, but by the spiritual and intellectual descendants of Cardinal Wolsey. It is highly unlikely this tribunal will take a chance on offending the very powerful Judge Blackburn, before whom its members or their colleagues may practice frequently, or with whom its members may for other reasons wish to maintain cordial relations. It is likewise highly unlikely this tribunal will take a chance on offending the City of Denver or its many other friends in very high places, who populate the State judiciary or play a major role in deciding who populates the State judiciary.

. . .

As the outrageous conduct of the City of Denver, Judge Blackburn and OARC proves beyond any reasonable doubt, ours is a government of men, not of laws.

How many people here think Brennan's going to get a fair "trial?" Anyone?

Well, for starters, let's look at the fairness of the trial setting on its face. The prosecution in this case is the OARC, an office/agency of the Colorado Supreme Court. The investigation team is the OARC, an office/agency of the Colorado Supreme Court. And, according to the OARC's directions for filing pleadings, the, "The office of the Presiding Disciplinary Judge acts as the 'clerk' for the Supreme Court."

So, in essence, the Colorado Supreme Court is both the titular plaintiff, judge and jury, and it has so far shown considerable indifference to the facts.

Earlier today, I spoke with Brennan's client, Bill Cadorna. When asked about his attorney's conduct, he said without hesitation, "Outstanding job. Mark's very passionate. Blackburn tried to shut him down every time he tried to question anybody. He'd let him get two or three questions in and then, 'Nope, testimony over.'" Cadorna continued, "He did a good job. And the jury agreed with him," noting "Even the jurors think there's a fix . . . I think there's a fix."

So there you have it. The client, who never received his jury award, doesn't feel Brennan did him any disservice. The jury verdict is in that Blackburn --not Brennan-- was the reason for the waste of the jurors' time and efforts. Seems only the City was prejudiced by Brennan's zealous and effective advocacy.

The lesson? If you represent the right people, you are virtually immune to scrutiny by OARC, no matter how massive your subversion of justice or breach of ethics.

But, if you zealously represent the little guy against a powerful, connected client, and win big, don’t expect your good deed to go unpunished.

_____________________

¹ Arundel & Kanis. (2008, December). Review of Legal Resources [Review of the book The Bramble Bush: The Classic Lectures on the Law and Law School]. 37 Colo. Law 12 at 66.
² I discussed the "Blackburned" article in my Feb. 12 entry here.
³ Excerpted from Brennan's closing arguments.
⁴ Nottingham also made certain that jury verdicts were disregarded so that prevailing plaintiffs would not collect their judgments. See, e.g., Settle v. Nottingham, 92-10-372-07. And see Affidavits of Stephen Phillips & attorney Jim Carleo (quoting Magistrate Judge Kristen Mix) ("The biggest problem with your case is that Judge Nottingham hates employment cases and there’s nothing you can do about it. It’s random. Now don’t get me wrong, he’s a fine judge, but he just hates employment cases. That’s why he will try to find any way in the summary judgment briefs to say there’s no material issues and grant summary judgment, and if he doesn’t, he will make it tough at trial, and you won’t win . . . I’m going to look you right in the eye and tell you that you’re gonna lose").
⁵ When Brennan inquired of Ass't Regulation Counsel Kim Ikeler who filed it, Ikeler declined to identify an individual complainant, noting that the OARC is entitled to pursue complaints of its own volition, without the necessity of a formal complaint. Thus, this would be one of the very few times --if not the first time-- they've ever done that in a non-criminal matter. Such selective prosecution is strong circumstantial evidence of a hidden agenda.
⁶ The Westword also recently reported, "The OAR[C] investigator [Kim Ikeler] is on record as having told Brennan that, in his opinion, the complaint didn't amount to much but that higher-ups in the office insisted that it be pursued."
⁷ See ¶ 14 of OARC's Response to Brennan's Motion to Dismiss

Dec. 03, 2008 - Rogue employee of the Colorado Supreme Court Attorney Regulation Counsel compromises judicial computer systems network

On December 1, 2008, Louise Culberson-Smith of the Office of the Attorney Deregulation Council declined to examine evidence that was submitted with a complaint and, thusly, did not conduct any investigation despite the mandatory language ("shall") of Rule 251.9.

The reason cited was because the evidence was provided as URL links to PDF files and, "[We] did not attempt to access the exhibits cited in your faxes. Due to concerns about computer viruses and security issues, this office avoids accessing questionable or unsecure websites." Click here.

However, a review of the server logs for the site (KnowYourCourts.com) hosting those documents indicates that someone from the OARC (IP address 165.127.111.130 (judicial.state.co.us)) has clearly violated this policy and risked the entire computing resources of the judicial department by accessing the "questionable or unsecure" Web site, KnowYourCourts.com:

• 09/23/2008 (1 occurrence)
• 09/11/2008 (1 occurrence)
• 5/07/2008 (1 occurrence)
• 02/25/2008 (5 occurrences)
• 02/13/2008 (1 occurrence)
• 12/28/2007 (1 occurrence)
• 09/26/2007 (1 occurrence)
• 09/23/2007 (1 occurrence)
• 09/21/2007 (10 occurrences)
• 08/08/2007 (9 occurrences)
• 02/15/2007 (2 occurrences)
• 02/05/2007 (5 occurrence)
• 02/02/2007 (12 occurrences)
• 01/19/2007 (4 occurrence)

In fact, just two days after the date of Culberson-Smith's correspondence, a rogue or uninformed employee of the OARC accessed this site at 9:36 AM.

Of course, as a responsible citizen, I am duty-bound to report this violation of policy and compromise of state resources to the State Court Administrator's Office.

Oct. 23, 2008 - John Gleason serving up more of his famous KoolAid^TM

Based on a complaint I filed against the former federal chief judge, Edward Nottingham, and attributable to intense media scrutiny, it appears that Colorado's Attorney Deregulation Council must reluctantly undertake an investigation. During a brief phone interview with Deborah Sherman (Denver9News), Gleason claimed:

It doesn't make any difference who the lawyer is or where the lawyer works or did work . . . If they are admitted in Colorado, if there is a public allegation against any lawyer, it will be investigated . . . The goal is to protect the public from lawyers who do not follow rules of ethics . . . Colorado is one of the most progressive states in the country of lawyer regulation. We take it very seriously.

Recalling similar statements that Gleason made to The Glenwood Springs Post, I hereby characterize Gleason's latest claims a "crock of shit." And, when asked if I was pleased with the OARC's decision to investigate Nottingham, I told Denver9News, "I would be pleased if they conducted any and every investigation pursuant to the disciplinary rules; usually they don't."

Similarly, one lawyer-journalist wrote me via email:

No need . . . to go through chapter and verse about Gleason's statements about pursuing all valid complaints. He's made the same statements to me over the years, and I continue to get an earful (from lawyers and clients alike) about how the system doesn't work, except possibly in slamdunk cases involving theft from clients.

Another lawyer (non-journalist) emailed me several months ago:

the attorney regulation system does indeed exist in part to preserve the illusion of an ethical profession, but certainly does not protect the entire profession, and is, indeed, sometimes used as a means of punishing those who challenge the established order. Those who most greatly abuse their authority and power to advance the interests of the rich and powerful are largely immune from ethics enforcement, unless (as in the case of Eliot Spitzer) they cross the even more rich and powerful.

Feb. 6, 2008 - H.A.L.T. gives Colorado a "D-" on its nation-wide report card for lawyer-client fee dispute problems.

An overview of the study is here. Colorado's "report card" is here.

Dec. 31, 2007 - Federal Judge in Denver decrees that Colorado's Attorney Regulation Counsel has no basis for directing complainants to first obtain findings from a court as a condition precedent to initiating an investigation

THE COURT: Well, this started out as a motion under U.S. Judicial Canon 3B for this court somehow to refer this to the state disciplinary board, right? PLAINTIFF: Yes, it did. THE COURT: Well, you can do that. You can do it. You can file a complaint against any of these gentlemen with the state regulatory council. And it's my impression that you have. Have you not? PLAINTIFF: Yes, we have. THE COURT: Why does this court need to do it? The regulatory council has all the resources it needs to make determinations, and does regularly make determinations concerning whether attorneys have behaved ethically. PLAINTIFF: Well, my first contact with the attorney regulation council, I was still in Steamboat. They said that they needed a finding from a court of law before they would act. That's what Matt Samuelson told me. THE COURT: Well, I don't know the context in which those words were spoken, and I don't know what you had asked, and I don't know what the problem was. But my understanding of the Colorado rules of attorney conduct is that upon the filing of a complaint, they do whatever investigation they need to have done, and they make whatever findings they need to have made, and they issue whatever orders they need. They don't need a recommendation from this court. You know, if that is what he said, he's wrong.

Judge Nottingham got one issue half right:  He would be correct that, under C.R.C.P. 251.9, a complainant need do no more than file a complaint that contains allegations, which, if proved true, would constitute a rule violation. That's all it takes.  Moreover, in People v. Musick, 960 P.2d 89 (Colo. 1998) the Colorado Supreme Court explained:

[W]e have never held that a complaint must charge a violation of the criminal law before . . . behavior can be found to reflect adversely on a lawyer's fitness to practice law. As we said in People v. Crossman, 850 P.2d 708 710-11 (Colo. 1993), ‘[w]e agree with the Supreme Court of Florida that “[i]mproprieties that directly and intentionally harm others always are serious offenses in the eyes of this Court.” Florida Bar v. Samaha, 557 So. 2d 1349, 1350 (Fla. 1990) (emphasis in original).’ In People v. Brailsford, 933 P.2d 592, 595 (Colo. 1997), we observed that ‘the actual nature of [the attorney's] conduct . . . is more important for disciplinary purposes than the statutory label put on it.’

Yet, our Attorney Deregulation Council has, indeed, been informing complainants contrary to C.R.C.P. Rule 251.9 that they must first obtain findings from a criminal or civil court, as these quotations from memoranda of various assistant regulation counsel (Louise Culberson-Smith, James Coyle and Matthew Samuelson) prove:

• March 22, 2005: "I have repeatedly offered to reconsider this aspect of your complaint if you provide evidence of a court's decision or finding against Ms. Wilson . . . this particular matter remains dismissed and closed, subject to reconsideration if you supply the previously requested court decision or judicial findings"

• March 24, 2005: "As I have told you many times before, if a civil court specifically finds Ms. Wilson has somehow acted improperly in your case, you may forward those judicial findings to my office for review on whether such findings provide a basis for regulatory action."

• March 15, 2005: "As I have told you many times before, if a civil court specifically finds Ms. Wilson has somehow acted improperly in your case, you may forward those judicial findings to my office for review on whether such findings provide a basis for regulatory action . . . you may request reconsideration of this issue by providing us a copy of the court's decision against Ms. Wilson. To date, you have not provided any court decision or findings against Ms. Wilson regarding your discovery claims or anything else."

• June 15, 2004 "you may request reconsideration of this issue by providing us a copy of the court's decision against Ms. Wilson. To date, you have not provided any court decision or findings against Ms. Wilson regarding your discovery claims or anything else . . . my office's policy remains as I have informed you before: we will not reconsider your complaint again unless you provide the above-mentioned judicial findings. Consequently, we ask that you kindly refrain from contacting us about this particular matter except for providing those court findings."

• August 26, 2003: "We will not reconsider you complaints about Ms. Wilson unless you provide judicial findings against her from your case or a notice that Ms. Wilson has been convicted of or has pled guilty to a criminal violation."

• August 21, 2003: "As I told you before, if a civil court specifically finds Ms. Wilson has defrauded you or otherwise acted improperly, you may forward those judicial findings to our office for review on whether such findings provide a basis for regulatory action . . . if the court rules in your favor, you may forward the court's findings to our office for review . . . Please note that we will not reconsider this matter again unless you provide the above-mentioned judicial findings and/or notice of Ms. Wilson's criminal conviction. Consequently, we ask that you kindly stop contacting us about this particular matter except for providing those court findings or conviction."

• August 21, 2001: "you should first address your concerns with the court in the underlying civil proceeding. If the court determines that the attorney has engaged in any misconduct as you have alleged, then please feel free to resubmit this matter to this office for investigation."

• August 14, 2001: "the allegations that you have made in the civil matter closely parallel those you make in this disciplinary proceeding. You must prove your case in the civil proceeding by a preponderance of the evidence. In disciplinary proceedings, our office must establish the same allegations by a higher, more difficult standard, i.e. by clear and convincing evidence. Thus it makes sense to defer disciplinary proceedings until you have resolved the civil matter. If the court determines that the attorney has engaged in any misconduct as you have alleged, please feel free to resubmit the matter to this office for investigation."

The part Nottingham did not get right is that it is the obligation of judges to report misconduct, rather than leave this to the party aggrieved.  According to the ABA Standards for Imposing Lawyer Sanctions:

It cannot be emphasized strongly enough that lawyers and judges must report unethical conduct to the appropriate disciplinary agency. Failure to render such reports is a disservice to the public and the legal profession. Judges, in particular, should be reminded of their obligation to report unethical conduct to the disciplinary agencies.

Under Canon3(D)(1) and (2) of the ABA Model Code of Judicial Conduct, a judge who receives information indicating a substantial likelihood that another judge or a lawyer has violated the applicable rules of professional conduct is obligated to take appropriate action. This action includes making a report of the violation to the appropriate authority when the violation raises a substantial question about the judge’s fitness or the lawyer’s honesty, trustworthiness or fitness.

Frequently, judges take the position that there is no such need and that errant behavior of lawyers can be remedied solely by use of contempt proceedings and other alternative means. It must be emphasized that the  goals of lawyer discipline are not properly and fully served if the judge who observes unethical conduct simply deals with it on an ad hoc basis . . . the lawyer discipline system is in addition to and serves purposes different from contempt powers and other mechanisms available to the judge.

Only if all lawyer misconduct is, in fact, reported to the appropriate disciplinary agency can the legal profession have confidence that consistent sanctions are imposed for similar misconduct.

Id. at § I (A), p. 5. [internal brackets omitted].

Dec. 8, 2007 - Musings on Reporting Professional Misconduct in Colorado 

Our fellow blogger at The Colorado Index has here prepared a nice write up on the procedure for lawyers reporting violations of the Rules of Professional Conduct by other lawyers.  The only primary point our fellow blogger appears to have missed is that all Colorado lawyers know and adhere to the unwritten rule that one does not report his fellow lawyer, regardless of requirement imposed by Rule 8.3.  This unwritten rule is known simply as, "The Golden Rule."  The Golden Rule is violated —and Rule 8.3 followed— only in rare cases, such as when lawyers are competing with each other for public office; or when they are personally impacted by the conduct of an attorney, who has some authority over them; or when there is some PR element involved.  Examples include when Katherine Steers reported Colleen Truden (click here) or when anonymous attorneys reported Carol Chambers on at least two occasions (click here) or when anonymous parties (probably attorneys) filed a complaint against Scott Storey (click here).

Nov. 21, 2007 - Colorado Attorney Deregulation Council rejects request to investigate report of former judge and attorney may have knowingly used their position to adversely possess a neighbor's land.

Big Surprise (Not) - Aside from the fact that this fact situation "smells," the Rocky Mountain News (RMN) report claims that the OARC couldn't consider a complaint against . . . [the]. . . former judge . . .[because] issues with his conduct must be taken up with the state's Commission on Judicial Discipline." >> full article text >>    However, in this recent RMN article (concerning Colorado's Commission for the Abolition of Judicial Discipline), it was reported that, "[I]n 41 years, the commission has never recommended to the state Supreme Court that a judge be removed because of misconduct. Instead, judges often choose to retire or resign when there's an investigation pending against them. Once judges leave, the commission loses its power to discipline them, and the record of their misconduct remains private."  So which is it?   (Easy answer:  Lawyers protecting lawyers and no one's protecting the public).

November 16, 2007 - Filing a complaint against opposing counsel in your divorce case? Think again.

From the November 16, 2007 Family Law Section Executive Council Meeting:

Fran Fontana reported on the changes in the disciplinary process currently being considered by the Office of Disciplinary Counsel, at the initiative of John Gleason. Mr. Gleason wants the process to be a transparent and public process. There is frustration within the Office of Disciplinary Counsel because members of the public often check with the Office concerning specific attorneys. However, because of the confidential nature of the process, the office cannot reveal that there may be an ongoing investigation into an attorney there is a finding of merit to the complaint. On the other hand, attorneys are concerned that complaints not automatically be made public because 80% of the complaints made do not proceed past the informal intake phase. Domestic Relations practitioners are particularly susceptible to the filing of unwarranted complaints, and there does seem to be recognition of that fact within the Office of Disciplinary Counsel.

Oct. 16, 2007 - OARC determines that attorney, who induces her daughter to notarize her attorney fee affidavits and other legal documents, does not violate the Rules of Professional Conduct, even `though it violates the Notarial Code of Conduct and even `though it would result in revocation of daughter's notarial commission by Secretary of State.

• Complaint.

• OARC acknowledgment.

• Response of respondent attorney, Madeline Wilson.

• Reply in support of Complaint.

• OARC decision.

Oct. 9, 2007 - Ten Reasons Why Judicial Term Limits Don't Go Far Enough

Despite its title, this article is actually about Colorado's attorney regulation counsel. The article was originally found on John Andrews' site (here) but, based on the writing style, it appears that this was written by our fellow blogger at The Colorado Index

Oct. 5, 2007 - The hush-hush world of attorney-attorney privilege

In this short article, Alan Prendergast (The Westword) observes:

The fact is that the state's attorney discipline process is shrouded in more mystery than a Dionysian cult. Of the 5,000 complaints the ARC receives each year, less than 10 percent are considered worthy of actual investigation, and only a small fraction of those cases lead to a public hearing . . . The rest are settled behind closed doors because — well, because lawyers like it that way.

Oct. 5, 2007 - OARC dismisses complaint accusing Arapahoe County District Attorney, Carol Chambers, of misconduct over an alleged threatening e-mail

Gleason's indictment of Chambers, however, was unmistakable. "We don't clear people of misconduct," Gleason said. "We decide whether we can prove or not prove a case, and we have an extremely high burden of proof.">> full article text >>

Sep. 25, 2007 - Attorney Deregulation Council Now Claims Desire to Eliminate Agency's Secrecy

In this Sept. 16th Denver Post feature, the OARC's John Gleason claims, "It's time we eliminate the secrecy around our system."   Perhaps, Gleason is preparing to run for public office in the near future?

Aug. 19, 2007 - Some Commentary Regarding the New Rules of Professional Conduct

The Colorado Supreme Court has approved substantial amendments to the Colorado Rules of Professional Conduct, which will result in the repeal of the current rules and reenactment of the newly-approved rules. These new rules will took effect on January 1, 2008.

We provided the commentary regarding the new Rules from The Colorado Lawyer to our fellow blogger over at The Colorado Index, who reviewed the article and had this to say:

[The new Rules] appear[] to weaken protections that the public supposedly has now. It does allow judges at their discretion to allow lawsuits against attorneys for breaking the rules, something the current rules prohibit. When one considers the effort we went through to get an attorney disciplined, and the level of resistance we met, this provision is simply unethical slight of hand. No judge will ever allow such a lawsuit and the folks writing that section know that. Judges protect lawyers, lawyers protect judges, and no one protects the public.

Cut-and-pasted, hereinbelow, is the analysis (or propaganda, depending on your viewpoint) of Marcy Glenn, which analysis was published in The Colorado Lawyer. Note that, in addition to the accreditations given to the author, she is also the chairwoman of the federal court's little known Committee on Conduct, the body responsible for processing ethical complaints against attorneys admitted to the federal bar. Here is an example of a complaint and the Committee's response --pop quiz: Find how many issues are raised in the complaint, including those cited by case law. Then find how many issue[s] are addressed and disposed of with the Committee's decision. Note also the length of time between the complaint filing date and the date of a decision.

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The New Colorado Rules of Professional Conduct: A Survey of the Most Important Changes by Marcy G. Glenn, Michael H. Berger

Colorado Rules of Professional Conduct, adopted April 12, 2007, eff. Jan. 1, 2008

How Accountable is the Civil Justice System? - statistical summary prepared by H.A.L.T.

Corruption at the Highest Judicial Level (March 9, 2007) The Colorado Index, ("John Gleason operates Attorney Regulation as a "paperless office," that uniformly refuses to issue written documents to citizens who make complaints.  Some suspect the real purpose is to ensure that Attorney Regulation leaves a minimumally [sic.] auditable paper trail.  While John Gleason speaks publicly about how tough his office is on unethical lawyers, the paperless record is less clear").

Feb. 15, 2007 - Gleason seeks to amend rules to formalize secrecy of OARC meetings

According to the Attorney Regulation Advisory Committee meeting minutes:

[T]he Attorney Regulation Committee wants to memorialize a long standing practice by adding another sentence to Item 6. The second sentence in Item 6 would state, “Neither respondents, nor their counsel, may attend meetings during which the Committee considers reports of investigations or requests for diversions”. Mr. Gleason stated that the rationale behind this requested modification was that an individual who was told that he could not attend the meeting wanted to know where that restriction could be found in writing. Several committee members stated that allowing respondents or their counsel to attend this meeting would change the nature of the proceedings. They expressed concern that opening up these meetings would turn what is now a more judicial type of deliberation into a more adversarial process. There also was concern that opening up the proceedings could lead to unintended consequences in other areas of the process as well unduly lengthening the meeting. There was general consensus that for all the reasons detailed above the current practice was appropriate but that it should be set out in writing.

Feb. 2007 article: Attorney Discipline and Disability Process and Procedure - Part I

By Alec Rothrock; appearing in Vol. 36, No. 2 of The Colorado Lawyer .  (Click here). Rothrock explains that, "The primary purpose for disciplining lawyers it to "protect the public, not to punish the offending lawyer." (citing In re Cardwell, 50 P.3d 897, 904 (Colo. 2002)). The article provides an overview of the Colorado attorney discipline system, including the relevant governing bodies, the intake process, settlements, purported investigations, and formal proceedings. Click here for an email from John "Jack" Tanner, CBA ethics committee member, commenting on what Alec Rothrock really believes about Colorado's attorney regulation system.  Ben Aisenberg, former CBA president, agrees  --see his email here.  Note:  the inclusion of the two (2) foregoing emails is not intended to constitute any waiver of attorney-client privilege that exists between the attorneys and the recipient of the electronic mail. Both memoranda are reproduced herein with the express permission of the recipient, subject to the aforesaid limitation and reservation of privilege.

Jan. 23, 2007 - David Purvis excoriates OARC

1/23/2007 posts to Colorado Law, Lawyers and Politics blog, entitled "Office of Regulation Counsel - State of Co: To expect this entity to assist any common citizen is utter folly. I make this statement based on my own experience (verifiable by documentation in my possession) and numerous comments and writings of others . . . In my belief and opinion, the office of regulation counsel (Colorado, tax supported?) is one of the most, in my belief and opinion, one of the most putrid, disgusting operations in existence, and a disgrace to the decent citizens of Colorado I anticipate attempting to find its' funding source(s). I am sure my belief and opinion is the same as others who have interacted. I am sugarcoating my comments and am not being as direct as I would like to be. My opinion is supported by documentation in my possession. I will not hide behind anonymity. David L. Purvis, 6043 Highway 60, Johnstown, Colorado 80534.

Jan. 22, 2007 "Are We Tough Enough: Colorado Gets Praise, but a D-Minus, Too"

By Jennifer Clifford; appearing in Colorado Law Week. This article summarizes the numerous points of contention and few points of agreement between HALT's analysis of the OARC and John Gleason's misrepresentations of his agency's agenda and performance.  KnowYourCOURTS.com opines that HALT's sparing praise of Colorado's OARC is, itself, misplaced and overly charitable. >> full article text >>

Jan. 5, 2007 letter to Peter Boyles regarding Colorado's Attorney Regulation Counsel, by Ken Smith, J.D.

Nov. 4, 2006 essay, Head of Attorney Regulation [Gleason] Simply Lied, by Townhall.com blogger Not Legal Roadkill Yet.

June 2006 Letter to the Editor of the Society of Addiction Counselors of Colorado, by Rand Kannenberg, LAC, discussing dismissal of his complaints by Louise Culberson Smith.

2006 Lawyer Discipline Report Card

. . . issued by HALT.org, a legal reform group, rating Colorado second in the nation (apparently on a bell curve), and noting that Colorado, "failed to investigate more than 86 percent of the complaints received against lawyers, according to the American Bar Association's latest figures."  Halt produced the 2006 Lawyer Discipline Report Card series to assess whether states have taken any meaningful action to improve the lawyer discipline system since their last Report Card in 2002. "Unfortunately, few states showed any improvement, and many states' systems actually saw their grades decline!  In state after state, the attorney discipline system not only fails consumers, but ultimately undermines the integrity of the legal profession," explains HALT Associate Counsel Suzanne Blonder. "We hope this wake-up call will spur more disciplinary officials to join us in working for meaningful reforms." Click here.

Jul. 30, 2006 Snapshot of Colorado Supreme Court's Attorney Regulation Counsel Home Page, stating that "Attorneys must meet high professional standards," and discussing, "Ethics and Discipline." 

 

Apr. 2006 Colorado Attorney Regulation self-appraisal

By Eileen Kiernan-Johnson (counsel to Chief Justice Mullarkey and Justices Bender and Coates, both on the Attorney Regulation Committee.

Louise Culberson-Smith was responsible for implementing a phone intake center in 1999 to field calls and to "Concentrate the system's resources on [only] the most serious instances of misconduct."  "[T]he improvements that have been made over the last eight years have resulted in a system that aims to be more fair to attorneys."  Under this paradigm, "[t]he intake attorney is [now] authorized immediately to dismiss the matter. . . The changes to the system . . allow the Office of Attorney Regulation Counsel to dismiss more cases at any early stage, such as by granting intake and trial attorneys the authority to dismiss cases, are designed to dispose of unfounded complaints and minor violations quickly. . . Perhaps the most significant benefit of the central intake [phone] system's quick determination . . .is the psychological and emotional impact on the aggrieved attorney.  Attorneys against, whom complaints are lodged often find the investigative period immensely stressful, as their reputations and livelihoods hang in the balance during the pendency of the investigation process." >> full article text >>

2005 Results, Survey on Lawyer Discipline Systems (compiled from the American Bar Association's S.o.L.D. Web site).

Mar. 2006 - "State Bar programs aim to . . . Smooth Ruffled Feathers, Reduce Formal Complaints"

John Gleason aggrandizes the call-center developed by Louise Culberson-Smith: "Under the old system, somebody files a complaint with a form and eventually someone gets around to looking at it . . . When someone has a complaint about a lawyer, it's typically about a failure to communicate.  And, what do we do?  We fail to communicate."   >> full article text >>. Take a look at the grievance page and do a search for the phrase, "No Response."  (Apparently, Gleason hasn't yet rectified the failure-to-communicate problem).

May 10, 2005 Glenwood Springs Post Article, Supreme Court says attorneys must be honest

The section on the rules of misconduct lists multiple ways an attorney can violate the code.  "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation," rule 8.3 states.  John Gleason noted allegations of dishonesty are always taken seriously: "There are rules regarding honesty and the way you deal with the public or anyone.  Lawyers have to be honest 100 percent of the time . . . If there are issues of honesty, we investigate those. . .  a lawyer's duty of honesty, those are all of the kinds of cases that we investigate. . .  If someone has a concern about any lawyer, all they have to do is call this office and we'd be delighted to conduct an investigation."  >> full article text >>

Apr. 27, 2005 Rocky Mountain News editorial, Whitewash in Jeffco: Vincent Carroll characterizes a report by John Gleason as a "whitewash."

2/10/2005 Westword article by Alan Prendergast regarding the OARC's pursuit and prosecution of court reform advocate Suzanne Shell. (See also the 12/18/2006 Opinion and Order of the Colorado Supreme Court finding Shell in contempt and fining her $6,000 for "unauthorized practice of law").

Protocol for Complaints and Concerns Filed with the Attorney Regulation Advisory Committee, approved by the Colorado Supreme Court, en banc, May 27, 2004.

Nov. 6, 2002 Denver Post article: "Attorney regulators dispute poor grade"

According to an ABA year-2000 survey, 4,507 complaints were filed in Colorado, but only 432 investigations were initiated.  "The problem in Colorado is that is has one of the worst investigation rates in the country --it looks into less than 10 percent of the grievances coming in the door," said HALT, a Washington-based legal reform group. John Gleason, who heads Colorado's Office of Attorney Regulation, disagreed, saying that Colorado should rank first: "Unfortunately, they don't understand the nature of the Colorado program," said Gleason, who was "incensed at the claim that Colorado investigates only a small number of claims."  "We never blow them off," Gleason said.  >> full article text >> "We never say we are not going to look into your case."

September 1999 Denver Bar Assoc. article, The Attorney Regulation System

By Diane Hartman. John Gleason explains that he wants attorneys to no longer fear the Attorney Regulation Counsel: "I can't emphasize it enough--we're truly trying to help attorneys . . . The overwhelming majority of complaints result in dismissal and no discipline--probably 80 percent of the 5,000 calls we get each year. Every person in this office is committed to the new attorney discipline system and to helping attorneys stay out of trouble. That's not to say that an attorney engaging in serious misconduct isn't in trouble. But most problems are minor and we can correct them quickly. Our goal is not to have the attorneys hanging, not knowing what's going to happen. We usually [dismiss] things within days. " >> full article text >>.

American Bar Association Standards for Imposing Lawyer Sanctions, as amended February 1992

 

Duty of Attorney - Adverse Parties ( abstract from 3 Modern Tort Law: Liability and Litigation (2d ed.) - § 26:11)

 

Lawyer Liability to Non-Clients: Realizing the Risk, by William B. Dunn

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