Rule 251.18.Hearings Before the Hearing Board
(a)Notice. Not less than sixty days before the date set for the hearing
of a complaint, the Regulation Counsel shall give notice of such
hearing as provided in
C.R.C.P. 251.32(b) to the respondent, or the respondent's counsel, and to
the
complaining witness. The notice shall designate the date, place, and time of
the hearing. The notice shall also advise the respondent that the
respondent is entitled to be
represented by counsel at the hearing, to cross-examine witnesses, and to
present
evidence in the respondent's own behalf.
The notice shall also advise the complaining witness that the complaining
witness has a right to be present at the hearing and if there is a finding of
misconduct to
make a statement, orally or in writing, regarding the form of discipline.
(b)Designation of a Hearing Board. All hearings on complaints seeking
disciplinary action against a respondent shall be conducted by a
Hearing Board. A
Hearing Board shall consist of the Presiding Disciplinary Judge and two other
members,
one of whom shall be an attorney, who are to be selected at random from the
pool of
Hearing Board Members by the clerk for the Presiding Disciplinary Judge. If
the
Presiding Disciplinary Judge has been disqualified, then a presiding officer
shall be
selected at random from among the attorneys on the list of Hearing Board
members.
The presiding officer shall, in all respects, act in accordance with these
Rules.
The Presiding Disciplinary Judge or the presiding officer shall rule on all
motions, objections, and other matters presented after a complaint is filed and
in the
course of a hearing.
(c)Prehearing Conference. At the discretion of the Presiding
Disciplinary Judge, a prehearing conference may be ordered.
(d)Procedure and Proof. Except as otherwise provided in these Rules,
hearings and all matters commencing with filing the complaint as
provided in C.R.C.P. 251.14
shall be conducted in conformity with the Colorado Rules of Civil Procedure,
the
Colorado Rules of Evidence, and the practice in this state in the trial of civil cases;
provided, however, that proof shall be by clear and convincing evidence, and provided
further that the respondent may not be required to testify or to produce records over the
respondent's objection if to do so would be in violation of the
respondent's
constitutional privilege against self-incrimination.
In the course of proceedings conducted pursuant to this Rule, the Presiding
Disciplinary Judge or the Presiding Officer, acting pursuant to and in
conformity with
these Rules, shall have the power to administer oaths and affirmations.
A complete record shall be made of all depositions and of all testimony taken
at
hearings before a Hearing Board.
(e)Order for Examination. When the mental or physical condition of the
attorney in question has become an issue in the proceeding, the
Presiding Disciplinary
Judge, on motion of the Regulation Counsel, may order the attorney to submit to
a
physical or mental examination by a suitable licensed or certified examiner.
The order
may be made only upon a determination that reasonable cause exists and after
notice to
the attorney. The attorney will be provided the opportunity to respond to the
motion of
the Regulation Counsel, and the attorney may request a hearing before the
Presiding Disciplinary Judge. If requested, the hearing shall be held
within thirty days of the date
of the attorney's request, and shall be limited to the issue of whether
reasonable cause
exists for such an order.
(f)Procurement of Evidence During Hearing.
(1)Subpoena. In the course of a hearing conducted pursuant to these Rules,
and upon the petition of any party to the hearing, the clerk of
the Presiding Disciplinary
Judge may, for the use of a party, issue subpoenas to compel the attendance of
witnesses and the production of pertinent books, papers, documents, or other
evidence.
Witnesses shall be entitled to receive fees for mileage as provided by law
for witnesses in civil actions.
(2)Quashing a Subpoena. Any challenge to the power to subpoena as
exercised pursuant to this Rule shall be directed to the Presiding
Disciplinary Judge or the
Presiding Officer of the Hearing Board.
(3)Contempt. Any person who fails or refuses to comply with a subpoena
issued pursuant to these Rules may be cited for contempt of the Supreme Court.
Any person who by misbehavior obstructs the Hearing Board or any part thereof
in the performance of its duties may be cited for contempt of the Supreme
Court.
Any person having been duly sworn to testify who refuses to answer any proper
question may be cited for contempt of the Supreme Court.
A contempt citation may be issued by the Presiding Disciplinary Judge or the
presiding officer. A copy of the contempt citation, together with the findings
of fact
made by the Presiding Disciplinary Judge or the presiding officer surrounding
the
contempt, shall be filed with the Supreme Court. The Supreme Court shall then
determine whether to impose contempt.
(4)Discovery.
(A)Purpose and Scope. Rules 16 and 26 of the Colorado Rules of Civil
Procedure shall not apply to proceedings conducted pursuant to these
Rules. This Rule
shall govern discovery in attorney discipline and disability proceedings.
(B)Meeting. A meeting of the parties must be held no later than fifteen
days after the case is at issue to confer with each other about the nature and
basis of the
claims and defenses and discuss the matters to be disclosed.
(C)Disclosures. No later than thirty days after the case is at issue, the
parties shall disclose:
(i)The name and, if known, the address, and telephone number of each
individual likely to have discoverable information relevant to disputed facts
alleged in
the pleadings, identifying who the person is and the subjects of the
information;
(ii)A listing, together with a copy of, or a description of, all documents,
data
compilations, and tangible things in the possession, custody, or control of the
parties
that are relevant to the disputed facts in the pleadings; and
(iii)A statement of whether the parties anticipate use of expert witnesses,
identifying the subject areas of the proposed experts.
(D)Trial Management Order. Upon the request of one of the parties or upon
order of the Presiding Disciplinary Judge or the presiding officer of the
Hearing Board,
no later than forty-five days prior to the trial date, the parties shall
disclose to the other
party and file a trial management order containing the following matters under
the
following captions and in the following order:
(i)Statement of Claims and Defenses to be Pursued or Withdrawn. The
parties
shall set forth a listing of the claims and defenses remaining for trial. Any
claims or
defenses set forth in the pleadings which will not be at issue at trial shall
be designated
as "withdrawn."
(ii)Stipulated Facts. The parties shall set forth a plain, concise
statement of all
facts which the Hearing Board shall accept as undisputed.
(iii)Pretrial Motions. The parties shall list motions, if any, which are
anticipated
to be filed before trial as well as motions, if any, which are pending before
the Hearing
Board. The parties shall indicate a deadline for the filing of such motions
which shall be
no later than fourteen days prior to the date set for trial.
(iv)Legal Issues. The parties shall set forth a list of legal issues that
are
controverted, including appropriate citation of statutory, case or other
authority. In
addition, the parties shall indicate whether trial briefs will be filed,
including a schedule
for their filing. Trial briefs shall be filed no later than seven days before
the
commencement of the trial.
(v)Identification of Witnesses and Exhibits. Each party shall provide the
following information:
(a)Lay Witnesses. Each party shall include a list containing the name,
address,
and telephone number of any person whom the party will call and of any person
whom
the party may call as a witness at trial.
(b)Exhibits. Each party shall attach a list describing any physical or
documentary evidence which the party intends to introduce at trial.
Complainant shall
assign a number and respondent shall assign a letter designation for each
exhibit. If any
party wishes to object to the authenticity or admissibility of any exhibit,
such objection
shall be noted, together with the grounds therefor.
(c)Expert Witnesses. Each party shall attach to the trial management order
a list
of the name, address, and telephone number of each person whom the party will
call
and any person whom the party may call as an expert witness at trial,
indicating the
anticipated length of testimony, including cross-examination. The list shall
indicate
whether the opposing party accepts or challenges the qualifications of a
witness to
testify as an expert as to the opinions expressed. If there is a challenge,
the list shall be
accompanied by a resume setting forth the basis for the expertise of the
challenged witness. Copies of any expert reports shall be provided to the
other party at this time.
(vi)Presentation of Testimony. If the testimony of any witness is to be
presented
by deposition or through any other acceptable means in lieu of live testimony,
a copy
shall be submitted to the Hearing Board and include the proponent's and
opponent's
anticipated designations of the pertinent portions of such testimony or a
statement why
designation is not feasible prior to trial. If any party wishes to object to
the admissibility
of the testimony or to any tendered question or answer therein, it shall be
noted, setting
forth the grounds therefor.
(vii)Trial Efficiencies. If the anticipated length of the trial has
changed, the
parties shall so indicate.
(E)Limitations. Except upon order by the Presiding Disciplinary Judge or
the
presiding officer of the Hearing Board for good cause shown, discovery shall be
limited
as follows:
(i)The Regulation Counsel may take one deposition of the respondent and two
other persons in addition to the depositions of experts as provided in C.R.C.P.
26. The
respondent may take one deposition of the complaining witness and two other
persons
in addition to the depositions of experts as provided in C.R.C.P. 26. The
scope and
manner of proceeding by way of deposition and the use thereof shall otherwise
be governed by C.R.C.P. 26, 28, 29, 30, 31, 32, and 45.
(ii)A party may serve on the adverse party 30 written interrogatories, each
of
which shall consist of a single question. The scope and manner of proceeding
by means
of written interrogatories and the use thereof shall otherwise be governed by
C.R.C.P.
Rules 26 and 33.
(iii)The Regulation Counsel may obtain a physical or mental examination of
the
respondent pursuant to C.R.C.P. 251.18(e).
(iv)A party may serve the adverse party requests for production of
documents pursuant to C.R.C.P. 34, except such requests for production shall be
limited to 20 in
number, each of which shall consist of a single request.
(v)A party may serve on the adverse party 20 requests for admission, each
of which shall consist of a single request. The scope and manner of proceeding
by means
of requests for admission and the use thereof shall otherwise be governed by
C.R.C.P. 36.
(F)In determining good cause pursuant to C.R.C.P. 251.18(f)(4)(E), the
Presiding
Disciplinary Judge or the presiding officer of the Hearing Board shall consider
the
following:
(i)Whether the discovery sought is unreasonably cumulative or duplicative,
or
is obtainable from some other source that is more convenient, less burdensome,
or less
expensive;
(ii)Whether the party seeking discovery has had ample opportunity by
disclosure or discovery in the action to obtain the information sought;
(iii)Whether the burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the case, the parties'
resources, the
importance of the issues in the litigation, and the importance of the proposed
discovery
in resolving the issues; and
(iv)Whether, because of the number of parties and their alignment with
respect
to the underlying claims and defenses, the proposed discovery is reasonable.
(G)Supplementation of Disclosures and Discovery Responses. A party is
under
a duty to supplement its disclosures under section (f)(4)(C) of this Rule when
the party
learns that in some material respect the information disclosed is incomplete or
incorrect
and if the additional or corrective information has not otherwise been made
known to
the other parties during the disclosure or discovery process. A party is under
a duty to
amend a prior response to an interrogatory, request for production or request
for
admission when the party learns that the prior response is in some material
respect
incomplete or incorrect and if the additional or corrective information has not
otherwise
been made known to the other parties during the discovery process. With
respect to
experts, the duty to supplement or correct extends both to information
contained in the
expert's report or summary disclosed pursuant to section (f)(4)(D)(v)(c)
of this Rule and
to information provided through any deposition of or interrogatory responses by
the
expert. Supplementation shall be performed in a timely manner.
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ANNOTATIONSSource:
Amended and adopted June 25, 1998, effective January 1, 1999.
Editor's note:
This rule was previously numbered as
241.14.
C.J.S. See 7 C.J.S., Attorney and Client, SectionSection88, 90, 105,
108.
Annotator's note.
The following annotations include cases decided under former
provisions similar to this rule.
Procedural due process does not include criminal defendant's rights.
In every disciplinary proceeding a lawyer is entitled to procedural due
process, but those rights do not extend so far as to guarantee the full
panoply of rights afforded to an accused in a criminal case.
People v. Harfmann, 638 P.2d 745 (Colo. 1981);
People v. Morley, 725 P.2d 510 (Colo. 1986);
People v. Varallo, 913 P.2d 1 (Colo. 1996);
People v. Smith, 937 P.2d 724 (Colo. 1997).
Sixth amendment rights to jury trial and speedy trial do not attach in
discipline cases,
since by its terms the sixth amendment only applies in criminal cases.
People v. Smith,
937 P.2d 724 (Colo. 1997).
Fifth amendment privilege against self-incrimination did not operate to
preclude
respondent from being compelled to attend his own deposition. People v.
Smith, 937
P.2d 724 (Colo. 1997).
No due-process violation where presiding officer of the board also
served on the
hearing panel that reviews the board's action. People v. Fitzgibbons, 909
P.2d 1098
(Colo. 1996); People v. Smith, 937 P.2d 724 (Colo. 1997).
Consideration of charges not made in formal complaint against an attorney
constitutes a violation of the respondent's rights to procedural due process
of law. People v. Emeson, 638 P.2d 293 (Colo. 1981).
Right to call witnesses
is a basic tenet of due process and applies to an
attorney facing disciplinary charges.
People v. Morley, 725 P.2d 510 (Colo. 1986).
This right, however, is not absolute. Due process does not
vest a respondent in a disciplinary proceeding with a right
to call any and all witnesses or elicit any testimony whatever;
so long as the respondent is accorded a full and fair opportunity
to present a defense to a charge, the tribunal hearing the case
is entitled to exercise a sound discretion in limiting the type of
evidence and the number of witnesses offered at a hearing.
People v. Morley, 725 P.2d 510 (Colo. 1986).
Standard of proof in disciplinary proceeding. The disciplinary prosecutor
has to prove allegations of misconduct by clear, convincing and substantial
evidence. People v. Bugg, 635 P.2d 881 (Colo. 1981) (decided under
former Rule 249, C.R.C.P.).
Clear and convincing evidence is proof which persuades the trier of fact
that the truth contention is highly probable. It is evidence stronger than a
preponderance by less than beyond reasonable doubt.
People v. Distel, 759
P.2d 654 (Colo. 1988).
Evidence which clearly and unequivocally
establishes unlawful conduct of a lawyer should be admissible in a
disciplinary proceeding if the official misconduct does not shock the
conscience of the court or is not in bad faith. People v. Harfmann, 638 P.2d
745 (Colo. 1981).
Unlike the rule applicable to a criminal proceeding, evidence
of professional misconduct obtained by law enforcement officers
should be admissible at a disciplinary proceeding unless the
officers themselves engaged in outrageous misconduct or acted
in bad faith in obtaining the challenged evidence.
People v. Morley, 725 P.2d 510 (Colo. 1986).
If governmental officials act outrageously or in bad
faith in obtaining challenged evidence, due process of
law requires the exclusion of such evidence or perhaps
the even more drastic remedy of dismissal. There is no
"bright line" or "per se" rule in this area of the law
and each case must be decided on the basis of its own
peculiar facts.
People v. Morley, 725 P.2d 510 (Colo. 1986).
Evidence of attorney's disciplinary record may be properly admitted
to the extent allowed under the Colorado rules of evidence in order to
refute claim that he regularly attended to client matters.
People v. Yaklich, 744 P.2d 504 (Colo. 1987).
Such evidence may be introduced to impeach respondent's credibility.
People v. Distel, 759 P.2d 654 (Colo. 1988).
When acting as fact finder in attorney disciplinary proceedings,
grievance committee has duty to assess credibility of all evidence before
it, both controverted and uncontroverted. People v. Distel, 759
P.2d 654 (Colo. 1988).
Applied in
People ex rel. Goldberg v. Gordon, 199 Colo. 296, 607 P.2d 995 (1980).
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