In the Matter of Steven James Foster.

• Decision Date: 23 May 2011
• Docket Number: No. 10SA89.,10SA89.
• Citation: 253 P.3d 1244
• Parties: In the Matter of Steven James FOSTER.
• Court: Colorado Supreme Court

253 P.3d 1244

In the Matter of Steven James FOSTER.

No. 10SA89.

Supreme Court of Colorado, En Banc.

May 23, 2011.

Office of the Attorney Regulation Counsel, Kim E. Ikeler, Assistant Regulation Counsel, Denver, Colorado, Attorneys for Complainant/Appellee.Law Offices of Gary S. Cohen, Gary S. Cohen, Denver, Colorado, Attorneys for Respondent/Appellant.Justice RICE delivered the Opinion of the Court.

In this original proceeding in discipline, respondent/appellant attorney Steven James Foster appeals the orders of the Presiding Disciplinary Judge (“PDJ”) and disciplinary Hearing Board (“Board”) sanctioning Foster for allegedly filing a frivolous appeal and engaging in conduct prejudicial to the administration of justice during the course of a protracted pro se post-dissolution litigation campaign against his now ex-wife, Sherrie Nunn.

Upon review, we reject the Board's conclusion that an attorney's First Amendment right to petition pro se must unilaterally give way to the Colorado Rules of Professional Conduct. We hold that the Board's findings—which indicated that the substantial majority of Foster's conduct was both objectively non-frivolous and subjectively motivated primarily by a genuine desire to obtain favorable legal relief—do not support the Board's ruling that Foster's conduct was not protected by the First Amendment. We further conclude that the PDJ erred by failing to require the complainant/appellee Office of Attorney Regulation Counsel (“OARC”) to make a heightened showing on summary judgment that Foster's conduct was not protected by the First Amendment as required by Protect Our Mountain Environment v. District Court, 677 P.2d 1361 (Colo.1984) (“ POME ”).

Nevertheless, we find that Foster's claims in his sixth appeal of bias by a district court judge were so wholly duplicative of claims made and rejected in his fifth appeal that Foster cannot have had a subjectively proper motivation for making them. Thus, we conclude that Foster's bias claims in his sixth appeal constituted sham litigation unprotected by the First Amendment.

Accordingly, we affirm the determination of the Board that Foster violated Colorado Rules of Professional Conduct 3.1 and 8.4(d) by making frivolous bias claims during his sixth appeal, but reverse the remainder of the Board's determinations of misconduct. We accordingly remand to the Board for a redetermination of the appropriate sanctions for Foster's misconduct in asserting the bias claims.

I. Facts and Procedural Posture

Foster and Nunn married in 1991, the same year Foster was admitted to practice law in Colorado. The marriage later began to deteriorate, and Nunn filed for dissolution in 1999.¹

A. Foster's Underlying Litigation Against Nunn

Initially represented by counsel, Foster stipulated to temporary orders regarding various parenting issues. Foster's lawyer then withdrew from the case, and Foster proceeded pro se into a lengthy post-dissolution litigation campaign against Nunn, centering on the valuation of marital property, parenting decisions, and a host of other issues. The register of actions in the district court spans some six-hundred and thirty transactions over the past twelve years. Foster also initiated probate, civil, and criminal proceedings against Nunn, and filed nine appeals with the court of appeals and several petitions for certiorari with this Court between 1999 and 2007.

B. The OARC's Investigation

In 2007, Nunn requested that the OARC investigate Foster, contending that his lengthy post-dissolution litigation against her constituted misconduct. After an investigation, the OARC recommended in 2008 that the Attorney Regulation Committee (“ARC”) approve formal charges against Foster for violating Colo. RPC 3.1 (bringing a frivolous action) and Colo. RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice). The ARC apparently authorized the OARC to file the charges, and the OARC did so.

C. Foster's Motion for Summary Judgment

Foster filed a motion for summary judgment in the disciplinary proceeding, alleging that his litigation against Nunn was protected by his First Amendment right to petition. Foster further argued that the OARC bore the burden of showing that his litigation was not protected by the First Amendment under the framework articulated by this Court in POME.

The PDJ held that POME, decided in the context of a civil abuse-of-process action, is inapplicable in attorney discipline proceedings. The PDJ reasoned that the underlying First Amendment concerns of POME are sufficiently vindicated by preliminary steps in disciplinary proceedings to obviate the applicability of the POME framework in the context of attorney discipline. The PDJ concluded that a full hearing would be necessary to determine whether Foster's litigation was in fact protected by the First Amendment, and denied Foster's motion.

D. Foster's Disciplinary Hearing

After a hearing, the Board concluded that Foster violated Colo. RPC 3.1 and 8.4(d) and imposed sanctions accordingly. The Board entered findings of fact regarding Foster's nine appeals to the court of appeals and concluded that his sixth appeal was frivolous in violation of Colo. RPC 3.1 and 8.4(d) and that the remainder of his activity, though admittedly non-frivolous, reflected a desire on Foster's part to vex and harass Nunn in violation of Colo. RPC 8.4(d), notwithstanding his genuine belief that his arguments provided him with a legitimate basis to secure favorable relief.

1. Findings of Fact

The Board entered the following specific findings of fact:

1) The Board did not find clear and convincing evidence that Foster's first appeal,² in which he was partially victorious, was frivolous or prejudicial to the administration of justice.

2) The Board found that Foster's second appeal,³ in which he was again partially victorious, was neither frivolous nor prejudicial to the administration of justice, but found that the appeal “demonstrate[d] [Foster]'s level of litigiousness,” that Foster “contributed to the lack of cooperation that might have resolved [the case] without further litigation,” and that Foster's conduct was “contrary ... to the just, speedy, and inexpensive resolution of civil disputes.”

3) The Board agreed with the court of appeals' specific holding that Foster's third appeal ⁴ was neither frivolous nor groundless, and found that the appeal was not prejudicial to the administration of justice. The Board nevertheless noted that the appeal was “yet another instance where [Foster] appealed a district court's order entered within its sound discretion.”

4) The Board found that Foster's fourth appeal,⁵ stemming from a civil complaint against Nunn for converting funds from their daughter's bank account,⁶ was appropriately filed. The Board nonetheless found that the decision to file the civil complaint while issues surrounding the bank account were pending in the probate court was “consistent with [Foster]'s level of litigiousness as well as his efforts to find a tribunal that would agree with his assertion that Nunn wrongfully removed the funds.”

5) The Board did not find clear and convincing evidence that Foster's fifth appeal ⁷ was frivolous or prejudicial to the administration of justice, but noted that “the underlying facts in th[e] appeal demonstrate [Foster] was continuing to focus more upon controlling Nunn than advancing claims in good faith.”

6) The Board found by clear and convincing evidence that Foster's sixth appeal ⁸ was frivolous and, “given the frivolousness of [the] appeal, [that Foster] was more interested in vexing Nunn than advancing arguments ... in good faith.” The Board also noted that “as [Foster's] legal arguments wore thin, his motivation for continuing the litigation became clearer.”

7) The Board found Foster's seventh appeal ⁹ and the underlying litigation “troublesome,” and acknowledged that the court of appeals deemed the appeal frivolous. The Board, however, noted that the OARC had earlier given Foster a letter explicitly declining to prosecute Foster for the appeal and noting that there was insufficient evidence to prove that the appeal was frivolous. Accordingly, the Board found that Foster “initiated [the] appeal with the good faith belief that he was not violating the Colorado Rules of Professional Conduct.”

8) The Board found that underlying statements by the district court in Foster's eighth appeal ¹⁰ “corroborate[d the Board's] findings that [Foster] was extremely litigious throughout eight years of post-dissolution litigation,” but heard no evidence on the resolution of the appeal itself and declined to find that the appeal was frivolous or prejudicial to the administration of justice.

9) The Board made no findings with respect to Foster's ninth appeal, ¹¹ which the court of appeals dismissed as untimely.

2. Conclusions of Law and Sanctions

The Board concluded that Foster's sixth appeal constituted a violation of Colo. RPC 3.1 and 8.4(d). Additionally, the Board found that Foster's aggregate conduct over the course of the litigation, viewed as a whole, had a cumulative effect prejudicial to the administration of justice in violation of Colo. RPC 8.4(d). The Board also rejected Foster's First Amendment defense, holding that his “freedom of speech and access to the courts ... do not immunize him from the application of the Colorado Rules of Professional Conduct.” The Board suspended Foster from practicing law for a year and a day, all but ninety days stayed upon the successful completion of a two-year probation period, and ordered him to pay the costs of the disciplinary proceedings. Foster appealed the Board's imposition of sanctions and the PDJ's denial of his motion for summary judgment to this Court.

II. Analysis

Foster disputes the Board's imposition of sanctions on several substantive and procedural First Amendment grounds. As the OARC concedes, it is well-accepted that an attorney cannot be disciplined for conduct protected...