Petition of Colorado Bar Ass'n, 18647

• Decision Date: 13 May 1958
• Docket Number: No. 18647,18647
• Parties: Petition of the COLORADO BAR ASSOCIATION.
• Court: Colorado Supreme Court

Page 932

325 P.2d 932

137 Colo. 357

Petition of the COLORADO BAR ASSOCIATION.

No. 18647.

Supreme Court of Colorado, En Banc.

May 13, 1958.

MOORE, Justice.

This matter comes before the court upon the ex parte petition of the Colorado Bar Association which is a non-profit Colorado corporation whose membership consists of a majority of lawyers admitted to practice in Colorado. Among the corporate objectives is the commendable duty 'to secure the more efficient administration of justice and to uphold the honor and integrity of the Bar.' The petition contains the following:

'Comes now the Colorado Bar Association and respectfully petitions the Court for an order dissolving a certain order entered by this Court on January 26, 1956, wherein the Court directed the Grievances and Ethics Committee of your petitioner to stay all proceedings until further order of this Court.

'Your petitioner further requests the Court to enter an order recognizing the right of your petitioner to consider and express opinions on questions of ethics submitted to it.'

We first consider the request relating to the order of this court entered January 26, 1956, which order reads as follows:

'Information having been received from the chairman of the grievance committee of the Denver Bar Association relating to current investigation being conducted by the Denver and Colorado Bar Associations relating to alleged violations of the Canons of Professional Ethics and the Canons of Judicial Ethics.

'It is this day ordered by the Court (Mr. Justice Holland not participating) that in so far as said investigations relate to enforcement of all of said Canons as Rules of this Court, all further actions and further investigations are hereby ordered stayed and discontinued pending determination of the hearings to be conducted by this Court beginning January 30, 1956, dealing with the Canons of Professional Ethics and the Canons of Judicial Ethics, or until the further order of the Court.'

In considering the question as to whether the above quoted order now operates to prevent the proper functioning of the committee on grievances of the Colorado Bar Association, it is necessary to record certain facts well known to this court, to petitioners, and to members of the Bar generally.

Canons of Ethics have been promulgated for many years by the Bar Associations of the various states, and by the American Bar Association. Rule 83e of the Colorado Supreme Court Rules existing prior to the adoption of the Rules of Civil Procedure (Vol. I, Code of Civil Procedure, page 652) states: 'The court recommends the Canons of Ethics set out in the appendix * * * to these rules as a standards professional conduct.' When the Rules of Civil Procedure were adopted by the court in 1941, there was contained therein Rule 228 which reads as follows: 'The court adopts the Canons of Ethics published herein as a standard of professional conduct.' Volume, 1, C.S.A. page 417, Appendix C, contains the canons of ethics referred to. After the adoption of the Rules of Civil Procedure, revised Canons of Professional Ethics, together with new Canons of Judicial Ethics, were promulgated by the American Bar Association, and upon recommendation of the Colorado Bar Association these two sets of canons were 'adopted' by this court July 30, 1953. The Canons of Professional Ethics will be found in C.R.S.1953, Vol. 1, beginning at page 140. They relate to the conduct of the practicing lawyer. The Canons of Judicial Ethics are to be found beginning at page 149 of the same volume. They relate to conduct of the judiciary.

Long prior to the date of the order referred to in the petition herein, this court had spoken upon the question of whether a breach of ethical standards could be made the basis of disciplinary action or revocation of a professional license. Chenoweth v. State Board, 57 Colo. 74, 141 P. 132, 51 L.R.A.,N.S., 958; State Board of Dental Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693, 82 A.L.R. 1176; Sapero v. State Board of Medical Examiners, 90 Colo. 568, 11 P.2d 555; Lipset v. Davis, 119 Colo. 335, 203 P.2d 730.

From these authorities extending over a period of forty years, it is quite clear that at the time of the order entered by this court January 26, 1956, it was settled law in this jurisdiction that a professional license could not be revoked nor disciplinary action taken merely for a violation of standards of ethics. To be actionable in disciplinary proceedings the conduct complained of must amount to a violation of law or it must involve 'moral turpitude or dishonorable conduct.' Every functioning committee of the bar association is charged with knowledge of these long established precedents.

We now turn our attention to the procedures then, and now, in force which must be followed in actions for the discipline of lawyers. These procedures are defined in Chapter 20, R.C.P. Colo. (Rules 241 to 250). By these rules the committee on grievances of the Colorado Bar Association is made the agent of this court to investigate alleged grievances, to conduct hearings, and to report its findings and conclusions to this court. These rules require that the pendency of investigations be strictly confidential. Rule 248 provides: 'The files and transactions of the committee shall not be public records unless released by vote of the committee with the approval of the court.'

The petition on file herein contains the following statement, admittedly true:

'Immediately prior to January 27, 1956, there were articles in the press indicating that the Colorado Bar Association Grievance Committee would conduct investigations concerning the propriety of the use of the names and photographs of a member of the Supreme Court of Colorado and two members of the Bar in connection with the formation of the American Founders Life Insurance Company.'

The grievance committee functioning in the capacity of an agent and representative of this court, or persons identified with it, in violation of the applicable rule, released the information that it intended to investigate certain persons in connection with particular conduct which the committee must have thought to be in violation of law, or tainted with 'moral turpitude or dishonorable conduct.' The committee of the bar association cannot escape responsibility for the advance press publication of its intentions. The rule prohibited public release of transactions of the committee unless by 'vote of the committee with the approval of the court.' No approval of this court was ever sought in connection with the press releases pertinent to this matter. The first knowledge that this court, or any member thereof, had concerning the intended investigation was the information contained in the public press.

The Colorado Supreme Court on December 12, 1955 had ordered public hearings to be conducted on the question as to whether the canons of ethics 'adopted' by the court July 30, 1953, should be amended. Also involved in this hearing was the question of whether by 'adopting' said canons the same were to be enforced as law. The hearings had been scheduled to begin January 30, 1956, and public notice thereof had been given.

In view of the illegally publicized intention of the committee to conduct investigations concerning a matter in which it was very doubtful that 'moral turpitude or dishonorable conduct' was present, it became important to determine whether the conduct about to be investigated amounted to a violation of law. If, by 'adopting' the Canons of Professional and Judicial Ethics they were given the force and effect of law, the publicized investigations might well proceed even though no 'moral turpitude or dishonorable conduct' was present. If, however, by 'adopting' said canons they were not given the status of law there might be no legal basis for the investigations.

Under these circumstances a determination of this question was essential for the guidance of the committee before investigations began. Accordingly we issued the order of January 26, 1956. No restrictions of any kind were placed upon the grievance committee by that order in the investigation of any alleged grievance which involved moral turpitude or dishonorable conduct, or which involved an alleged violation of an existing law. The committee was directed by said order to forego investigations being considered by...