(a)Availability of Information. Except as otherwise provided by these rules, all records, except (i) the work product, deliberations and internal communications of the Regulation Counsel, the committee, the Presiding Disciplinary Judge, the Hearing Boards, and the Supreme Court, and (ii) the lists of clients and copies of client notices referred to in C.R.C.P. 251.28(d)(2), 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 under C.R.C.P 251.10 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;
(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)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 14 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 21 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.
(r) For matters that are confidential under subsection (b) of this rule and that involve allegations of sexual harassment, Regulation Counsel’s investigation records regarding the sexual harassment allegations, not otherwise privileged or protected by court rule or court order, shall be available to the complainant and respondent, subject to the provisions of C.R.C.P. 251.33.
Source: Amended and adopted June 25, 1998, effective January 1, 1999; entire rule amended and effective September 1, 2000; a amended and adopted October 6, 2005, effective January 1, 2006; b amended and effective and committee comment added and effective February 5, 2009; f and m amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1 b; amended and adopted January 24, 2019, effective January 24, 2019.
This rule was previously numbered as 241.24.
Committee Comment
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.
Annotation Annotator’s note. The following annotations include cases decided under former provisions similar to this rule. Protective order issued by presiding disciplinary judge (PDJ) for “good cause” shown under section (e) does not offend the first amendment. First, section (e) furthers substantial government interest unrelated to the suppression of speech. Specifically, the government has substantial interests in preventing Attorney E from further abusing the discovery processes and in protecting the judge’s privacy. Second, the protective order did not limit Attorney E’s first amendment freedoms to an extent greater than necessary to protect the judge’s privacy interests. The protective order prevented Attorney E, as a party to the investigative proceedings, from disseminating information obtained from FBI documents only during attorney regulation counsel’s pre-complaint stage. In re Attorney E, 78 P.3d 300 (Colo. 2003). Protective order issued by PDJ under section (e) must be modified because it unduly hinders both attorney regulation counsel’s and Attorney E’s ability to further their cases. Both parties to the investigative proceedings, attorney regulation counsel and Attorney E, must be able to use the documents in a limited way to prosecute and defend their respective cases even though good cause exists to protect the pertinent privacy interests. Given the implications of a privacy order that prevents both parties from making any use of the relevant documents, PDJ must modify protective order to allow limited use of FBI documents by both parties. In re Attorney E, 78 P.3d 300 (Colo. 2003). Under this rule, the fact that a hearing board has imposed a particular sanction after a public hearing is a matter of public record. In re Attorney F, 2012 CO 57, 285 P.3d 322. Suppressing a hearing board’s disposition in a case pending resolution of an appeal would impair the transparency and public accountability in the disciplinary system. In re Attorney F, 2012 CO 57, 285 P.3d 322. PDJ did not err in denying attorney’s motion to compel removal of disciplinary information from web site. PDJ did not err by denying attorney’s motion to compel the office of attorney regulation counsel to remove from its web site information disclosing hearing board’s determination that a public censure was warranted in attorney’s case. In re Attorney F, 2012 CO 57, 285 P.3d 322. 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).
