Chessin v. Office of Attorney Regulation Counsel

• Decision Date: 10 February 2020
• Docket Number: Supreme Court Case No. 19SA118
• Citation: 458 P.3d 888
• Parties: In re Paul CHESSIN, Plaintiff, v. OFFICE OF ATTORNEY REGULATION COUNSEL, Defendant.
• Court: Colorado Supreme Court

458 P.3d 888

In re Paul CHESSIN, Plaintiff,

v.OFFICE OF ATTORNEY REGULATION COUNSEL, Defendant.

Supreme Court Case No. 19SA118

Supreme Court of Colorado.

February 10, 2020

Petition for Rehearing Denied March 16, 2020

Attorneys for Plaintiff: Vedra Law LLC, Daniel J. Vedra, Denver, Colorado, Gill & Ledbetter, LLC, Anne Whalen Gill, Castle Rock, Colorado

Attorneys for Defendant: Philip J. Weiser, Attorney General, Christopher P. Beall, Deputy Attorney General, Robert Finke, First Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 In this case, an attorney was dissatisfied with the decision of the Office of Attorney Regulation Counsel ("OARC") not to pursue further investigation of his allegations of professional misconduct against opposing counsel, so he filed a complaint in district court under C.R.C.P. 106(a)(4), seeking an order compelling Regulation Counsel to investigate the matter more fully. OARC moved to dismiss the suit for lack of subject matter jurisdiction, arguing that the supreme court has exclusive jurisdiction over attorney discipline matters. After the district court issued an order holding OARC’s motion to dismiss in abeyance pending resolution of the complainant’s motion to disqualify OARC’s counsel, OARC petitioned this court for relief under C.A.R. 21.

¶2 We issued a rule to show cause. Because we have long held that this court, as part of its inherent powers, has exclusive authority to regulate and supervise the practice of law in Colorado, including the structure and administration of attorney discipline proceedings, we hold that the district court lacks subject matter jurisdiction to review Regulation Counsel’s decision not to proceed. Accordingly, we make the rule absolute and remand the matter to the district court with directions to dismiss the C.R.C.P. 106(a)(4) complaint against OARC.

I. Facts and Procedural History

¶3 The following facts are derived from the underlying C.R.C.P. 106(a)(4) complaint. Paul Chessin is a former Senior Assistant Attorney General who was involved in an investigation of an internet payday lending enterprise. Over the course of that investigation and contentious litigation that followed, Chessin came to believe that opposing counsel committed various violations of the Colorado Rules of Professional Conduct. In November 2017, Chessin filed a request for investigation with OARC under C.R.C.P. 251.9(a)(1), alleging that opposing counsel "prepared and submitted perjurious affidavits to Colorado’s courts, concealed and withheld pertinent information, misled and deceived the courts, and otherwise perpetrated a fraud on the courts," thus violating Rules of Professional Conduct 1.8(f), 3.3, 3.4, 8.4(c), and 8.4(d). OARC ultimately chose not to bring disciplinary charges and closed the request for investigation into the alleged misconduct approximately a year later.

¶4 Chessin then filed a complaint in district court under C.R.C.P. 106(a)(4) in January 2019, alleging that OARC’s preliminary inquiry was unreasonably cursory and that it sought and reviewed information from only one of the several attorneys identified in his complaint before declining to pursue an investigation. Chessin argued that OARC abused its discretion and requested an order compelling OARC to "fully, thoroughly, and completely investigate the alleged misconduct." Upon Chessin’s motion, the district court ordered OARC to certify the record "starting with Plaintiff’s November 14, 2017 Request for Investigation through the December 26, 2018 OARC letter closing and dismissing the matter."

¶5 Through its counsel at the Attorney General’s Office,¹ OARC moved to dismiss the suit for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1), arguing that the Colorado Supreme Court has exclusive authority over matters of attorney regulation and has not provided district courts with any role in the process. Accordingly, OARC contended, district courts have no subject matter jurisdiction over such matters.

¶6 Chessin did not respond to OARC’s C.R.C.P. 12(b)(1) motion; instead, he moved to disqualify the Attorney General’s Office from representing OARC, contending that the office had a conflict of interest under Colo. RPC 1.7(a), which states that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." Chessin argued that the Attorney General’s Office was the victim of the allegedly unethical conduct that he had reported and therefore could not defend OARC’s decision not to pursue an investigation into that conduct. Chessin also filed a motion to hold OARC’s C.R.C.P. 12(b)(1) motion to dismiss in abeyance until the court first resolved his motion to disqualify the Attorney General’s Office. The district court granted this latter motion before OARC filed a response.

¶7 OARC moved the court for reconsideration, arguing that the court should first determine whether it had subject matter jurisdiction over the case. When the court did not rule on the motion to reconsider, OARC petitioned this court for relief under C.A.R. 21, maintaining that the district court lacked subject matter jurisdiction to review a decision by Regulation Counsel to dismiss an investigation at the intake stage. OARC further argued that the confidentiality provisions of C.R.C.P. 251.31 governing attorney discipline proceedings prevented it from even acknowledging, much less certifying a record of, Chessin’s request for investigation and thus severely constrained its ability to defend itself against the motion to disqualify and the suit as a whole.

II. Original Jurisdiction

¶8 "The choice whether to exercise this court’s original jurisdiction is entirely within its discretion." Vinton v. Virzi , 2012 CO 10, ¶ 9, 269 P.3d 1242, 1245. We have previously recognized that "we may exercise original jurisdiction [under C.A.R. 21 ] to review whether a trial court acts in excess of its jurisdiction or without jurisdiction," City of Colorado Springs v. Bd. of Cty. Comm’rs , 147 P.3d 1, 2 (Colo. 2006), and "where appellate review would be inadequate," Vinton , ¶ 9, 269 P.3d at 1245.

¶9 In this case, OARC’s motion to dismiss challenges the district court’s subject matter jurisdiction to hear the matter and therefore plainly affects the court’s authority to proceed with the case. See Hagan v. Farmers Ins. Exch. , 2015 CO 6, ¶ 13, 342 P.3d 427, 432 (exercising original jurisdiction to review trial court orders relating to venue). Relatedly, judicial economy favors exercising our original jurisdiction to resolve the issue because, if the district court lacks subject matter jurisdiction, no other issues in the case—including the motion to disqualify—need be resolved. See Bd. of Cty. Comm’rs v. City of Woodland Park , 2014 CO 35, ¶ 9, 333 P.3d 55, 58 (exercising original jurisdiction to review a district court’s order denying a motion to dismiss for lack of subject matter jurisdiction in the interest of judicial economy). In addition, we have exercised original jurisdiction under C.A.R. 21 "when a procedural ruling will have significant effect on a party’s ability to litigate the merits of the controversy." McConnell v. Dist. Court , 680 P.2d 528, 530 (Colo. 1984). Here, OARC contends it is effectively unable to defend itself against the motion to disqualify or the C.R.C.P. 106(a)(4) complaint without violating C.R.C.P. 251.31(b), which states that "[b]efore the filing and service of a complaint[,] ... proceedings are confidential within the Office of the Regulation Counsel," with certain enumerated exceptions that are inapplicable here. Thus, we conclude that this matter warrants exercise of our original jurisdiction.

III. Analysis

¶10 OARC argues that this court has the inherent power to regulate the practice of law and the rules that we have prescribed for attorney discipline proceedings do not allow for review of OARC intake decisions in district court. Therefore, it contends, the district court lacks subject matter jurisdiction over this dispute. We agree.

¶11 It is well settled that "[t]he Colorado Supreme Court, as part of its inherent and plenary powers, has the exclusive jurisdiction over attorneys and the authority to regulate, govern, and supervise the practice of law in Colorado to protect the public." People v. Kanwal , 2014 CO 20, ¶ 6, 321 P.3d 494, 495 (alteration in original) (quoting Colo. Supreme Court Grievance Comm. v. Dist. Court , 850 P.2d 150, 152 (Colo. 1993) ); see also Smith v. Mullarkey , 121 P.3d 890, 891 (Colo. 2005) (observing that the supreme court’s jurisdiction to regulate and control the practice of law in Colorado is "exclusive"); Petition of Colo. Bar Ass’n , 137 Colo. 357, 325 P.2d 932, 937 (1958) (stating that the supreme court has "full responsibility" over matters of attorney regulation and discipline). In connection with this exclusive jurisdiction, this court has "the ultimate and exclusive responsibility for the structure and administration of disciplinary proceedings against lawyers." Kanwal , ¶ 6, 321 P.3d at 495–96 (quoting People v. Susman , 196 Colo. 458, 587 P.2d 782, 786 (1978) ).

¶12 We have exercised this authority through Rule 251 of the Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal Education and Judicial Education, which provides the procedural mechanism for attorney discipline proceedings. See C.R.C.P. 251.1 to 251.34 ; see also Kanwal , ¶ 6, 321 P.3d at 496. Although the attorney discipline process created by Rule 251 "has much in common with criminal prosecution, and has in fact been characterized as ‘quasi-criminal’ in nature," we have followed a largely civil model for the conduct of discipline proceedings. Kanwal , ¶ 7, 321 P.3d at 496 (quoting In re Fisher , 202 P.3d 1186, 1199 (Colo. 2009) ). Discipline proceedings therefore are "not strictly civil or criminal cases." Colo....