The Colorado Supreme Court’s Attorney Regulation Counsel — the government officials charged with investigating misconduct by lawyers and judges — threatened discipline recently against attorneys for their testimony to the Colorado General Assembly.
I read with grave concern The Colorado Springs Gazette’s story explaining that members of the Colorado Commission on Judicial Discipline had received letters threatening discipline for their testimony.
Unlike its usual role of looking into allegations such as sexual harassment, stealing clients’ money, driving while impaired or neglecting cases, this letter was about the attorney’s testimony presented before a joint House and Senate Judiciary Committee. The regulator disagreed with the factual statements made to the Committee, so she threatened their licenses to practice law.
Such threats and intimidation strike at the heart of the legislative process — the necessity of elected representatives to both obtain public testimony as they consider policy and to provide oversight of government agencies. To allow this regulator’s action to stand will chill all potential testimony to the legislature, as each witness will have to calculate the price of speaking truth to power and weigh the risk of career suicide out of fear that a politically motivated bureaucrat may want to prevent their public testimony, cover-up possible wrong-doing or exact retribution.
All the attorney members of the Judicial Discipline Commission are volunteers who do this work out of a commitment to the integrity and improvement of the legal system, to ensure that only the most upright judges serve the people of Colorado and that allegations of misconduct are investigated independently. They are all esteemed lawyers with impeccable credentials and long community service records. We should seek and welcome, not discourage, their testimony.
As a lawyer for 50 years, and the son of a lawyer, I have always held judges, particularly Supreme Court Justices, in the highest esteem.
The justices are at the apex of the legal hierarchy, having been appointed after rigorous selection processes based on distinguished careers and the recommendations of peers and appointment by the chief executive. They were the “creme dela crème,” the intellectual elite, ethical and principled without question.
But after the last few years in the legislature, however, where I served as chairperson of the House and then Senate Judiciary Committees and having read reports and heard testimony about continuing scandals and allegations of misconduct at the highest levels in the Judicial Branch, my perspective and idealism have been tempered.
Three years of narratives about misbehavior, cover-ups, administrative incompetence, mistakes, inappropriate lobbying, false candor, and lack of transparency have compelled me to alter my views of some of the legal profession’s leaders.
Contributing to my disillusionment has been the opposition of the Supreme Court and Judicial Branch, every step of the way, to provisions in three bipartisan bills I sponsored to reform and improve the Judicial Branch. All three passed and became law.
Their opposition took the form of a pattern and practice of tactics to defeat bills, silence their critics and neutralize opposition. One victim of sexual harassment by a judge would only testify via an anonymous letter to the committee; she described the negative treatment she received from the OARC. Now that office is makings accusations against six respected lawyers on the Commission on Judicial Discipline because it disagrees with their testimony to the legislature, with veiled threats to their licenses to practice law.
It seems that the branch is more interested in maintaining its power than promoting independent oversight, exposing and rooting out judicial misconduct, and ensuring that aberrant judges are sanctioned.
Let me state unequivocally that Colorado has been nationally recognized for the quality of its judicial system and the competency of its judges. That has been my experience as a practicing lawyer in El Paso County for decades.
But, as in any group, there are some judges who deviate from expected standards of professional conduct. Judges are only human. Thus, we need a credible process to ensure errant judges are identified and then corrected or disqualified. That is the role of the Commission on Judicial Discipline, working in conjunction with the Office of Attorney Regulation Counsel.
Attorney Regulation Counsel enforces the professional standards of lawyers and judges and serves at the pleasure of the Supreme Court. Its intimidating letter to the Commission’s lawyer members pertained to issues in dispute between the Supreme Court and the Commission regarding implementing a bill to reform the Judicial branch.
By sending the threatening letter, ARC could be viewed as putting a finger on the scales to tip future testimony in favor of the Supreme Court’s position, inhibit candor, and undermine the goal of creating independent oversight and assessment of judicial misconduct.
While past actions have, in my view, undermined attempts to improve the Judicial Branch, recent actions at the highest level of the Judicial Branch are now impacting the legislative branch in its lawmaking role. Threatening the law licenses of attorneys testifying before legislative committees will deprive lawmakers of critically important information, perspectives, and opinions of men and women who are often deeply knowledgeable about the issues being considered.
Having served in both the Colorado House and Senate and attended hundreds of hearings, I know the importance of hearing testimony from as many perspectives as possible. Sound public policy should only be developed with significant public input. The legislative process will be significantly impaired if lawyers can be intimidated by an over-eager attorney regulation counsel. These patterns and practices are unacceptable, and the Supreme Court should end them.
Pete Lee is a former Colorado state senator and representative from Colorado Springs.
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