In re Attorney D.

• Decision Date: 15 October 2002
• Docket Number: No. 01SA361.,01SA361.
• Citation: In re Attorney D., 57 P.3d 395 (Colo. 2002)
• Parties: In the Matter of Attorney D., Attorney-Respondent.
• Court: Colorado Supreme Court

57 P.3d 395

In the Matter of Attorney D., Attorney-Respondent.

No. 01SA361.

Supreme Court of Colorado, En Banc.

October 15, 2002.

As Modified on Denial of Rehearing November 18, 2002.

Charles Mortimer Jr., Attorney Regulation Counsel Denver, Colorado, for Petitioner.

Phillip S. Figa Englewood, Colorado, for Attorney-Respondent.

Steven Silvern, Denver, Colorado, Pro Se.

Justice COATS delivered the Opinion of the Court.

The Attorney Regulation Counsel petitioned for relief pursuant to C.A.R. 21 from an order of the Presiding Disciplinary Judge, authorizing discovery by the respondent in a disciplinary proceeding. The order of the PDJ came in response to a motion seeking protection from a subpoena duces tecum, commanding the attorney who reported the respondent's conduct to appear for a deposition and produce a substantial number of documents. After hearing the objections of both the Attorney Regulation Counsel and the reporting attorney, the PDJ partially granted the Motion for Protective Orders, substantially limiting the subpoena duces tecum on the grounds that it sought the disclosure of privileged material and information not likely to lead to admissible evidence. He nevertheless permitted the deposition of the reporting attorney to go forward and ordered the production of a number of the subpoenaed documents, which he considered to be potentially relevant to a standard of care for arbitral disclosures and the statute of limitations on disciplinary proceedings.

We issued a rule to show cause. Because we find that the Presiding Disciplinary Judge misperceived the relevance of the opinions and prior conduct of the reporting attorney with respect to arbitral disclosures, as well as the relevance of the point in time at which the reporting attorney became aware of the respondent's conduct, the rule is made absolute and the matter is remanded for reconsideration of the Motion for Protective Orders.

I. PROCEDURAL HISTORY

The subpoena duces tecum and Motion for Protective Orders at issue here grow out of a disciplinary proceeding in which the respondent is charged with violations of RPC 8.4(c). The complaint, filed by the Attorney Regulation Counsel pursuant to C.R.C.P. 251.14, contains two claims. The first alleges that the respondent violated RPC 8.4 by engaging in conduct involving dishonesty, misrepresentation, deceit, and fraud, by signing an oath in connection with the respondent's appointment by State Farm Insurance Company as an arbitrator in 1992. The oath verified the absence of existing or past financial, business, or professional relationships with any of the parties or their attorneys that would affect the respondent's impartiality or create an appearance of partiality or bias. The second claim alleges violations of RPC 8.4 in three instances in 1992 and 1993 in which the respondent failed to disclose his ongoing relationship with State Farm as an expert witness and arbitrator to the claimants in arbitrations over which he presided.

The Attorney Regulation Counsel filed the complaint after receiving information from an attorney involved in civil litigation against the respondent, in which information about the respondent's arbitral practices on behalf of State Farm had been discovered and collected. According to his representations to the Presiding Disciplinary Judge and this court, the reporting attorney informed the Attorney Regulation Counsel of the results of his investigation only after being contacted by an assistant disciplinary counsel¹ and after being admonished of his duty to report professional misconduct pursuant to RPC 8.3. He also represented that although he cooperated with the disciplinary counsel, he acted pursuant to a formal subpoena, in compliance with the terms of a settlement agreement between his client and the respondent.

In addition to a subpoena for the reporting attorney's deposition, the respondent served him with a subpoena duces tecum, ordering the production of numerous records, documents, files, articles, and lists of cases and files, which included virtually all cases related to his service as an expert witness or arbitrator and all files reflecting information gathered about State Farm.² In response, the reporting attorney filed a Motion for a Protective Order, in which the Attorney Regulation Counsel joined. The motion was immediately heard and partially granted.

In his ruling, the PDJ found portions of the subpoenaed material to be either irrelevant or privileged, and portions of it to impermissibly require the generation of lists that did not already exist. Nevertheless, the PDJ found some of the requested documents to be potentially relevant to the statute of limitations, which makes reference to the point in time at which the complaining witness discovered or reasonably should have discovered the misconduct,³ and he found some of the requested documents potentially relevant to what he referred to as the "standard of care or standard of practice" for arbitral disclosures, on the grounds that such a standard might relate to a mitigating factor. The PDJ therefore ordered that the reporting attorney submit to questioning concerning these two areas, and the PDJ made himself available to resolve individual objections as they arose.

Although the deposition apparently began, it was not completed, and the Attorney Regulation Counsel petitioned for relief from this court. We stayed the order and issued a rule to show cause. The respondent in the underlying disciplinary proceeding responded to the order to show cause, and both the Attorney Regulation Counsel and the reporting attorney replied.

II. C.A.R. 21 AND C.R.C.P. 251.1(d)

Exercise of the supreme court's original jurisdiction is entirely within its discretion. People v. District Court, 869 P.2d 1281, 1285 (Colo.1994). Relief pursuant to C.A.R. 21 is appropriate to correct an abuse of discretion by a lower court where no other remedy would be adequate. Id.; People v. District Court, 664 P.2d 247, 251 (Colo.1983). Although challenges to discovery rulings are typically the subject of an appeal, People v. District Court, 894 P.2d 739, 742 (Colo.1995), it can be appropriate to review discovery orders interlocutorily, by way of original proceeding, where the impact of the ruling would be substantial and incurable at a later time. See People v. District Court, 664 P.2d at 251; see also People v. District Court, 898 P.2d 1058, 1060 (Colo.1995); People v. District Court, 869 P.2d at 1285.

For a number of reasons, it is particularly appropriate to review this disciplinary discovery order at this time. The newness of the Rules Regarding Attorney Discipline and Disability Proceedings and the substantial changes they have effected in existing procedures raise significant questions about the discoverability of the practices and opinions of an attorney reporting misconduct. Even more than usual, the need to protect against unnecessary invasion of privacy and burdensome or oppressive discovery of a non-party is important in this context to avoid creating unnecessary disincentives to the reporting of attorney misconduct. See In the Matter of Smith, 989 P.2d 165, 172 (Colo.1999). The express reservation in C.R.C.P. 251.1(d) of authority to review any determination made in the course of a disciplinary proceeding is indicative of the unique role of the supreme court in supervising such proceedings.

III. C.R.C.P. 251.18(f)(4): DISCOVERY IN DISCIPLINARY PROCEEDINGS

Although discovery in disciplinary proceedings is governed by C.R.C.P. 251.18 rather than C.R.C.P. 16 and 26, see C.R.C.P. 251.18(f)(4)(A), many of the discovery procedures of the civil rules are expressly incorporated by Rule 251.18. Much of their general, interpretative case law will therefore be equally applicable in the disciplinary context. The scope of discovery under the Colorado Rules of Civil Procedure, which we have characterized as very broad, Williams v. District Court, 866 P.2d 908, 911 (Colo.1993); Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo.1982), has included any matter relevant to the claim or defense of any part that is not privileged. C.R.C.P. 26(b)(1).⁴

Even though these rules permit broad discovery, it is not unlimited. See Leidholt v. District Court, 619 P.2d 768, 770 (Colo.1980). The discovery process can be abused by disproportionate and inappropriate requests that increase the cost of litigation, harass an opponent, or tend to delay a fair and just determination of the legal issues. Id. Discovery must also be limited to avoid unnecessarily infringing upon privacy and confidentiality. Corbetta v. Albertson's, Inc., 975 P.2d 718, 720 (Colo.1999). While the information sought in discovery need not be admissible at trial, it must at least be reasonably calculated to lead to the discovery of admissible evidence. Martinelli v. District Court, 199 Colo. 163, 168, 612 P.2d 1083, 1087 (1980).

Because a balance must be struck between the need for information and these countervailing considerations, a motion to compel discovery is generally committed to the discretion of the trial court, and its determination will be upheld on appeal absent a clear abuse of discretion. Williams, 866 P.2d at 911; Gagnon v. District Court, 632 P.2d 567, 569 (Colo.1981); see also Bond v. District Court, 682 P.2d 33, 40 (Colo.1984); In re Marriage of Mann, 655 P.2d 814, 816 (Colo.1982). Where, however, it is clear that the trial court misconceives the materiality of certain matters to the proceeding before it, its assessment of the relevance of information tending to prove those matters or the likelihood that such information will lead to the discovery of relevant evidence is also necessarily affected.

A. STANDARD OF CARE

The respondent explained that he sought discovery of the past practices of the reporting attorney and his office in connection with the appointment of arbitrators, as relevant to the standard of care applicable to the profession...