Rule 251.31.Access to Information Concerning
Proceedings Under These Rules
(a)Availability of Information.
Except as otherwise
provided by these rules, all records, except the work product,
deliberations and internal communications of the Regulation
Counsel, the committee, the Presiding Disciplinary Judge, the
Hearing Boards, and the
Supreme Court shall be available to the public after the
committee determines that reasonable cause to believe grounds
for discipline exists and the Regulation Counsel files and
serves a complaint as provided in C.R.C.P. 251.14, unless the
complainant or the respondent obtains a protective order.
Unless otherwise ordered by the Supreme Court or the
Presiding Disciplinary Judge, nothing in these rules shall prohibit the
complaining witness, the attorney, or any other witness from
disclosing the existence of proceedings under these rules or
from disclosing any documents or correspondence served on or
provided to those persons.
(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 may
be disclosed by the Regulation Counsel if:
(1)The respondent has waived confidentiality;
(2)The proceeding is based upon allegations that include
either the conviction of a crime or discipline imposed by a
foreign jurisdiction;
(3)The proceeding is based on allegations that have
become generally known to the public; or,
(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.
(c)Public Proceedings.
When the committee determines
that reasonable cause to believe that grounds for discipline
exists and the Regulation Counsel files and serves a complaint
as provided in C.R.C.P. 251.14, or when a petition for
reinstatement or readmission is filed, the proceeding is
public except for:
(1)The deliberations of the Presiding Disciplinary
Judge, the Hearing Board, or the Supreme Court; and,
(2)Information with respect to which a protective order
has been issued.
(d)Proceedings Alleging Disability.
In disability proceedings, all orders transferring an attorney to or from
disability inactive status shall be matters of public record,
but otherwise, disability proceedings shall be confidential
and shall not be made public, except by order of the Supreme
Court, the Presiding Disciplinary Judge, or a Hearing Board.
(e)Protective Orders.
To protect the interests of a
complainant, witness, third party, or respondent, the
Presiding Disciplinary Judge or a Hearing Board, may, upon
application of any person and for good cause shown, issue a
protective order prohibiting the disclosure of specific
information otherwise privileged or confidential and direct
that the proceedings be conducted so as to implement the
order, including requiring that the hearing be conducted in
such a way as to preserve the confidentiality of the
information that is the subject of the application.
(f)Disclosure to Law Firms.
When the Regulation Counsel
obtains an order transferring the attorney to disability
inactive status or immediately suspending the attorney, or is
authorized to file a complaint as provided by C.R.C.P. 251.12,
the attorney shall make written disclosure to the attorney's
current firm and, if different, to the attorney's law firm at
the time of the act or omission giving rise to the matter, of
the fact that the order has been obtained or that a
disciplinary proceeding as provided for in these rules has
been commenced. The disclosures shall be made within fifteen
days of the date of the order or of the date the Regulation
Counsel notified the attorney that a disciplinary proceeding
has been commenced.
(g)Pending Investigations.
Except as provided by section (b) of this rule or when the attorney waives
confidentiality, the Regulation Counsel shall treat as
confidential proceedings pending with the Regulation Counsel
or before the committee.
(h)Cases Dismissed.
Except as provided by section
(b) of this rule or when the attorney waives confidentiality,
the Regulation Counsel shall treat as confidential proceedings
that have been dismissed.
(i)Private Admonitions.
Any public proceeding in which
a private admonition is imposed as provided by C.R.C.P. 251.6
shall be public, as follows: the fact that private admonition
is imposed shall be public information, but the private
admonition itself shall not be disclosed.
(j)Production of Records Pursuant to Subpoena.
The Regulation Counsel, pursuant to a valid subpoena, shall not permit
access to files or records or furnish documents that are
confidential as provided by these rules unless the Supreme
Court orders otherwise. When counsel is permitted to disclose
confidential documents contained in files or confidential
records, a reasonable fee may be charged for identification of
and photocopying the documents and records.
(k)Response to False or Misleading Statement.
If public statements that are false or misleading are made about any
disciplinary or disability case, the Regulation Counsel may disclose
any information necessary to correct the false or misleading statements.
(l)Request for Nonpublic Information.
A request for nonpublic information other than that authorized for
disclosure under subsection (b) of this Rule shall be denied
unless the request is from:
(1)An agency authorized to investigate the
qualifications of persons for admission to practice law;
(2)An agency authorized to investigate the
qualifications of persons for government employment;
(3)An attorney discipline enforcement agency;
(4)A criminal justice agency; or,
(5)An agency authorized to investigate the
qualifications of judicial candidates. If a judicial
nominating commission of the State of Colorado requests the
information it shall be furnished promptly and the Regulation
Counsel shall give written notice to the attorney that
specified confidential information has been so disclosed.
(m)Notice to the Attorney.
Except as provided in
subsection (l)(5) of this Rule, if the Regulation Counsel is permitted to provide
nonpublic information requested, and if the attorney has not
signed a waiver permitting the requesting agency to obtain
nonpublic information, the attorney shall be notified in
writing at his or her last known address of that information
which has been requested and by whom, together with a copy of
the information proposed to be released to the requesting
agency. The notice shall advise the attorney that the
information shall be released at the end of twenty days
following mailing of the notice unless the attorney objects to
the disclosure. If the attorney timely objects to the
disclosure, the information shall remain confidential unless
the requesting agency obtains an order from the Supreme Court
requiring its release.
(n)Release Without Notice.
If an agency otherwise authorized by section (l) of this rule has not obtained a
waiver from the attorney to obtain nonpublic information, and
requests that the information be released without giving
notice to the attorney, the requesting agency shall certify that:
(1)The request is made in furtherance of an ongoing
investigation into misconduct by the attorney;
(2)The information is essential to that investigation; and
(3)Disclosure of the existence of the investigation to
the attorney would seriously prejudice that investigation.
(o)Notice to National Regulatory Data Bank.
The Regulation Counsel shall transmit notice of all public
discipline imposed against an attorney, transfers to or from
disability inactive status, and reinstatements to the National
Regulatory Data Bank maintained by the American Bar Association.
(p)Duty of Officials and Employees.
All officials and employees within the Office of the Regulation Counsel, the
committee, the Presiding Disciplinary Judge, and the Supreme Court shall conduct
themselves so as to maintain the confidentiality mandated by this rule.
(q)Evidence of Crime.
Nothing in these rules except for
the admission of past misconduct protected by C.R.C.P.
251.13(i) shall be construed to preclude any person from
giving information or testimony to authorities authorized to
investigate criminal activity.
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ANNOTATIONSSource:
Amended and adopted June 25, 1998, effective January 1, 1999;
entire rule amended and effective September 1, 2000.
Editor's note:
This rule was previously numbered as
241.24.
Annotator's note.
The following annotations include cases decided under former
provisions similar to this rule.
District attorney may obtain access to grievance committee's files provided
that following requirements are met: first, the district attorney's request
must be made pursuant to an ongoing criminal investigation; and second,
the prosecution's request must set forth the evidence or information required
which must relate to the charges being investigated. People v. Pacheco,
199 Colo. 470, 618 P.2d 1102 (1980); People v. Smith, 773 P.2d 522 (Colo.
1989).
Disbarment warranted where attorney filed false pleadings and
disciplinary complaints, disclosed information concerning the filing of the
disciplinary complaints, offered to withdraw a disciplinary complaint filed
against a
judge in exchange for a favorable ruling, failed to serve copies of pleadings
on opposing counsel, revealed client confidences and material considered
derogatory and harmful to the client aggravated by a repeated failure to
cooperate with the investigation of misconduct, disruption of disciplinary
proceedings, and a record of prior discipline. People v. Bannister, 814 P.2d
801 (Colo. 1991).
Reference to confidential disciplinary proceedings in civil action
constituted violation and, in conjunction with violation of other disciplinary
rules, warranted suspension. People v. Smith, 830 P.2d 1003 (Colo.
1992).
Applied in
People ex rel. MacFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716 (1978);
People v. Kendrick, 646 P.2d 337 (Colo. 1982);
People v. Smith, 830 P.2d 1003 (Colo. 1992).
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