Colorado discipline commission accuses legal system's discipline chief of illegal intimidation

Mar. 9—The enforcer who oversees Colorado's legal profession — the Attorney Regulation Counsel — last month told a member of the state's judicial discipline commission that his law license and that of others on the panel could be in jeopardy for having allegedly made false statements to legislators about its cooperation problems with that office.

In a letter sent Thursday to ARC Jessica Yates, former Colorado Public Defender David Kaplan slammed the allegation as a "terrible chilling effect" on anyone asked to testify before the Legislature, as well as a potential criminal violation of a law that protects testimony to the General Assembly from retribution.

Kaplan was hired by the Colorado Commission on Judicial Discipline to represent it. The Office of Attorney Regulation Counsel is responsible for licensing, policing and disciplining attorneys.

Yates accused commission vice-chairman David Prince, who is also an El Paso County district court judge, of making false statements to legislators in February during hearings in which state agencies inform the General Assembly about their functions and current status, according to the Kaplan letter, a copy of which was obtained by The Denver Gazette. Known as SMART hearings, they are intended to give lawmakers a view of what each agency is facing.

Prince told committee members that the Judicial Department and the commission weren't getting along as easily as Colorado Supreme Court Chief Justice Brian Boatright had testified earlier in the same hearing. Instead, Prince laid out how the commission had several ongoing problems, including not obtaining information it felt germane to its inquiry into alleged judicial misconduct.

Yates wrote Prince to say his testimony was untrue and, according to Kaplan's letter, "that such conduct may have been in violation" of the rules of professional conduct all attorneys must follow. Those violations could end in discipline in which a lawyer's license is suspended or revoked.

"... although (Yates' letter) does not function to initiate an investigation, it makes a final determination that false statements were made by Judge Prince in testimony before a legislative committee of the Colorado legislature," according to Kaplan's letter, copies of which were circulated to a number of legislators. "This is an intimidating letter that any licensed attorney would believe to ignore would be done at their own peril."

Besides, Kaplan wrote, everything Prince told legislators was true.

In her own response sent to a broader range of legislators Thursday, Yates said she merely told Prince of his "errors" and "invited him to provide correct information," according to a copy of the correspondence obtained by The Denver Gazette. She also defended her assertions that Prince made false statements.

During the SMART hearing before a joint Senate-House judiciary committee on Feb. 1, Prince contradicted Boatright, who said the two bodies — the commission and the Judicial Department — were cooperating in their efforts to ensure the commission had all it needed investigating allegations of judicial misconduct.

Prince said there continued to be times the commission was having difficulty in obtaining critical information, including OARC lawyers walking away from cases it helped with or long delays in acquiring necessary documents. The commission said much the same a year earlier when it appeared before legislators for the first time, culminating with legislation that began a wholesale revamping of the judicial discipline process.

Kaplan wrote that Yates extended her accusations to the commission's executive director, Christopher Gregory, "and all attorney/judge members of the Commission in a potential violation ... if they assisted in the alleged violations."

"Among the Commission members are attorneys of impeccable character who have attained respected positions in the profession," Kaplan wrote Yates. "It includes 2 district court judges, 2 county court judges, 2 private attorneys and an attorney executive director. "The mere suggestion that a licensed lawyer may be the subject of a rule violation becomes a grave and anxiety-provoking concern for those whose careers, livelihoods and sense of civic pride depend on their ability to practice law."

Kaplan wrote that looking to investigate or discipline any attorney who appears before the legislature "will cause many a lawyer to think twice about dedicating their time to the commission, boards, task forces and legislative committees whose work is greatly improved by the presence of members of the bar."

Testimony before the legislature is protected by law, making it a misdemeanor for anyone to intimidate or seek retribution against someone who does.

"It is dangerous to the rights of attorneys to participate in the legislative process if elevating what may be differences in perspective, interpretation or opinion become grounds for Rules of Professional Conduct violations," Kaplan wrote.

Prince's allegation that Yates' office did not turn over information about a judge's purported misconduct was untrue, she wrote the members of both judiciary committees. Yates said her office kept the commission informed.

"OARC has consistently alerted the Commission when OARC receives a complaint about a judge over whom the Commission has jurisdiction," Yates wrote.

The issue is over a discipline matter involving an unidentified district court judge who was accused of having an extramarital affair with an assistant in 2013, while serving as a magistrate judge. The commission only has authority to discipline county and district court judges while OARC disciplines magistrates.

The commission, per Kaplan's letter, wanted to investigate the judge for not having disclosed the affair in his applications for county and later district court judgeships, as he was required to do.

Yates maintained that her office wasn't required to make the disclosure because the alleged sexual conduct happened at a time the judge was under her office's jurisdiction.

The discipline commission has been at odds with the Supreme Court, which appoints the ARC, since allegations of hidden judicial misconduct surfaced in February 2022 with revelations that a multi-million-dollar contract was awarded to a former high-ranking Judicial Department official who faced firing.

Department executives alleged the contract was intended to silence the official's promise of a tell-all sex-discrimination lawsuit that would reveal years of judicial misconduct that went unreported or was handled leniently.

The accusations launched a number of investigations, none of which was able to corroborate the deal was a quid pro quo, but did find numerous problems with how discipline is handled.

A summer of legislative hearings gave way to at least three bills pending before the General Assembly that will fundamentally change how judicial discipline is conducted.

During those hearings, special committee chairman Sen. Pete Lee, D-Colorado Springs, stepped down to push back allegations he was not a resident of the district he represented. Lee, who was also instrumental in legislation that brought about the changes, was represented by Kaplan.