10th Circuit Says Colorado OARC Can Discipline Out-of-Staters

In a recent opinion, the court held that even if a lawyer is not licensed in Colorado, the state OARC can discipline an attorney for violation of state requirements

The 10th Circuit Court of Appeals building in Denver, also known as the Byron White building.

In a recent opinion, the 10th Circuit Court of Appeals held that an attorney was still subject to Colorado’s practice requirements — and disciplinary action by the Colorado Office of Attorney Regulation Counsel — even though he is not licensed to practice law in Colorado.

In the case, Youras Ziankovich, a licensed New York attorney representing himself, maintained a law office in Colorado and practiced immigration law before the Executive Office of Immigration Review, Department of Homeland Security and U.S. District Court for the District of Colorado without a Colorado law license. He no longer resides or maintains an office within the state, according to the opinion.

The OARC brought disciplinary action against Ziankovich for violation of the Colorado Rules of Professional Conduct, and he filed a federal complaint to challenge the action. After multiple fillings, motions to dismiss, opinions, summary judgments and appeals, the court sided with the district court on the OARC’s jurisdiction on out-of-state attorneys.

“We dismiss Mr. Ziankovich’s appeal from the district court’s summary judgment decision. We affirm the district court’s denial of his Rule 60(b) motion,” the opinion states. The case was before judges Harris Hartz, Joel Carson and Carolyn McHugh, who penned the opinion.

The case originated with Byron Large, an attorney for the OARC, filing a complaint against Ziankovich, who then moved to dismiss the disciplinary action against him on the grounds that the OARC didn’t have jurisdiction to investigate and sanction attorneys with law licenses from other states and practices limited to federal court.

The issue of jurisdiction was a central issue as the case went through the courts. The presiding disciplinary judge found there was jurisdiction there was jurisdiction, and granted summary judgment on six claims. Following a hearing on the remaining claims, a hearing board issued an opinion and decision in favor of the people.

While his state disciplinary proceedings were pending, Ziankovich filed a complaint in federal district court asserting the OARC didn’t have authority to discipline him because he wasn’t licensed to practice in Colorado and didn’t practice in state courts or agencies — only federal courts and agencies located in the state, according to the opinion. Ziankovich asserted his claims against the OARC for violation of several of his constitutional rights and violations of the Commerce Clause, which the OARC then moved to dismiss for lack of subject matter jurisdiction.

The district court dismissed Ziankovich’s complaint, and he appealed, which resulted in remand back to district court. On remand, the OARC moved to dismiss Ziankovich’s amended complaint arguing the OARC and PDJ had the disciplinary authority over Ziankovich for legal services he provided to Colorado residents, that the complaint failed to state any plausible claims for relief and the doctrines of issue and claim preclusion barred the federal action.

In the case’s path through the courts, Ziankovich eventually filed a Rule 60(b) motion seeking relief from the judgment, which was denied and then became the primary issue of the most recent appeal to the 10th Circuit Court of Appeals.

The 10th Circuit judges noted in the opinion that Ziankovich did not indicate which subsection he was citing, but the district court concluded it was under a subsection that permits relief from a judgment due to “mistake, inadvertence, surprise, or excusable neglect.”

Ziankovich had argued that the district court made a mistake by citing to a rule in the Colorado Rules of Civil Procedure when it meant to cite a rule in the Rules of Professional Conduct. The district court found, and the 10th Circuit agreed, that the error did not affect its conclusion in resolving the question of jurisdiction.

The 10th Circuit judges also agreed that the district court was correct in relying on 10th Circuit precedent while Ziankovich had cited a 5th Circuit precedent in his arguments.  

Ziankovich had also argued that the district court was biased against him, however, as noted in the 10th Circuit opinion, “Mr. Ziankovich never filed a motion for recusal. But even considering his allegations of bias, he only points to adverse rulings as evidence of bias and ‘adverse rulings . . . do not in themselves support a bias charge.’”

The court explains in the opinion that relief under Rule 60(b) is “extraordinary and may only be granted in exceptional circumstances, and ultimately found that Ziankovich failed to show the district court abused its discretion denying his Rule 60(b) motion.

— Avery Martinez


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