Most state judges don’t have to spend much time explaining to lawyers what their job is. But there aren’t many jurists out there with a position quite like Presiding Disciplinary Judge William Lucero’s.
As PDJ, Lucero hears cases involving Colorado attorneys accused of ethics violations, which the Office of Attorney Regulation Counsel investigates and prosecutes. Lawyers have been known to mistakenly conflate the two independent bodies. Lucero recalls an instance when he’d introduced himself to an out-of-state attorney at a conference. The attorney, perhaps spotting the word ‘disciplinary’ on Lucero’s nametag, said to him, “Oh, you must work for John Gleason” — the Attorney Regulation Counsel at the time. This is like assuming a Denver district judge works for District Attorney Beth McCann.
While the PDJ and OARC are each separate pieces of the state Supreme Court’s attorney regulation system, the latter has gained visibility over the years through its outreach efforts. Lucero, in turn, is now making a point of delivering talks around the state.
“I came to realize that a lot of [lawyers] — and even lawyers in Colorado — they don’t know what we do,” Lucero said. “That’s one of the reasons I decided I need to get out and talk to people about what we do.”
The Office of the PDJ, which the Colorado Supreme Court established in 1999 with PDJ Roger Keithley, adjudicates not just disciplinary cases but also cases involving lawyer disability, the unauthorized practice of law and, more recently, character and fitness matters for bar applicants.
Lucero, the state’s second-ever PDJ, has presided over the disciplinary court since his appointment in 2004. Before that, he’d served as a prosecutor in the Denver District Attorney’s Office and the U.S. Attorney’s Office for a combined 32 years. The Colorado Hispanic Bar Association honored him as its Outstanding Hispanic Lawyer for 1995, and he was inducted in the American College of Trial Lawyers in 2002. Lucero was the Denver DA’s Office’s chief trial deputy and had served on the PDJ’s antecedent grievance committee when he was picked to ascend to his current, unique judgeship.
Joining the ‘Experiment’
Although he’s spent his professional life in Denver, Lucero’s roots lie in Southern Colorado; he was born in Trinidad and grew up in Pueblo. His decision to leave the Steel City followed a brief period after graduating college where he’d felt “lost.” He was mourning his brother, Pat, who in 1968 died fighting in Vietnam. Lucero sought to become a teacher but struggled to find a job in the state. Angry about his brother’s loss, he even considering enlisting, himself. On his grandparents’ encouragement, however, Lucero instead applied to the University of Denver College of Law.
He began his career in 1972 as an attorney in the Denver District Attorney’s Office, where he and now-Denver County Judge Gary Jackson were the only two minority prosecutors in the office at the time, he said. Over the next three decades, Lucero went from trying violent crime cases in state court with the DA’s office’s “knife and gun club,” to prosecuting tax evasion and bank fraud cases at the U.S. Attorney’s Office. In 2001, Lucero returned to the Denver DA’s Office before accepting his judgeship in 2004.
At that time, the attorney regulation scheme Colorado has today was still “an experiment,” he said. Previously, complaints against lawyers in the state were investigated by an all-volunteer panel of lawyers and then decided by another similar panel. The proceedings were slow — complaints could take two years to adjudicate, Lucero said. Meanwhile, an offending attorney would continue unethical behavior, “cutting a wide swath through Colorado, cheating clients, perhaps,” before facing any sanctions, he added.
Michael Bender, then an Associate Justice of the Colorado Supreme Court, asked the American Bar Association to intervene and overhaul the disciplinary system. What the ABA came up with was a system much like the PDJ today, albeit with some tweaks. Originally, the ABA recommended the PDJ hear and decide cases alone, but Colorado installed a three-member hearing board in which the PDJ — in a panel that includes one attorney and one non-attorney — much reach a consensus on disciplinary opinions.
“It’s not uncommon for two lawyers and a private citizen to have different views about what the facts are, so we deliberate much like a jury does,” Lucero said. Those discussions about the evidence, whether the OARC has met its burden and what the sanctions should be, if any, entail same back and forth, “thrust and parry” interactions and arguments that jurors experience, he added. On rare occasions, the deliberations in the disciplinary cases end with a board member dissenting.
The PDJ doesn’t make law, and its opinions can’t be cited as precedent. But the more-than 230 opinions published dating back to 1999 — not including its various reports and orders — make up a large body of TK
Colorado’s legal profession regulates itself independently from the state legislature. The Colorado Supreme Court has “plenary authority” over the OARC and the PDJ.
Arizona also has a PDJ who deliberates with a three-member hearing board. But even though Colorado adopted this form of attorney discipline proceedings nearly 20 years ago, it remains one of the only states to have done so. Not that people in other states haven’t shown interest in Colorado’s model. “Other jurisdictions are starting to look at it, what we’re doing here, because they’re still in systems like we used to have,” Lucero said. But those other states, he added, aren’t likely to get a PDJ-like apparatus unless their state Supreme Court throws its weight behind the idea like Colorado’s did.
A Hybridized Court
The PDJ office pulls from both civil and criminal procedure elements in how it hears and decides disciplinary cases.
“Our system is a little bit country and a little bit rock n’ roll,” Lucero said. The court has civil rules of procedure, and charges carry a burden on proof that requires clear and convincing evidence as opposed to a preponderance.
According to the court’s “Bible” for meting out appropriate punishments for certain violations, the ABA’s Standards for Imposing Lawyer Sanctions, there are aggravating and mitigating factors that determine sanctions. Culpability standards apply, as well. The court accounts for the respondent’s state of mind, like whether they committed the violation knowingly or intentionally, and its definitions “track very closely to what you see in criminal law,” Lucero said. For instance, the charge of converting client money is a lot like charging a defendant with theft, since each presumably requires a “knowing” state of mind.
Lucero sees his role as manning the “the rudder” of the court, which means following the bar’s sanctions standards and the court’s procedures. Lucero also focuses on making the right decisions on motions filed leading up to the hearings that are consistent with Supreme Court precedent.
“This system is designed to protect the public, but the corollary is that lawyers have rights in here and it’s primarily due process,” Lucero said. “And part of my job is to make sure that that due process is maintained.” Granted, it’s not the same due process as criminal cases, in which a defendant has a right to a lawyer (many respondent lawyers represent themselves) and a jury of peers. But respondents have a right to know the charges and “be heard,” he said.
The disciplinary cases Lucero hears nowadays are generally more complicated than those he heard back in the mid-2000s when he first took the bench. Now, a greater number of straightforward cases are filtered out. The OARC has the tools and discretion to resolve a range of simple complaints it receives about attorneys, “separating the wheat from the chaff,” he said. Colorado attorneys also have access to a significant amount of education and support services, like the Colorado Attorney Mentoring Program and Colorado Lawyer Assistance Program, which can help them maintain ethical practices through professional development and wellness. Those resources on the front end theoretically help reduce the number of ethics violation charges Lucero and his hearing boards see on the back end, he said.
But the disciplinary proceedings themselves are more involved than they used to be. “Gradually these cases are becoming more complicated, more serious,” with more motions filing, including for summary judgment and judgment on the pleadings, Lucero said. At least in that sense, the PDJ proceedings increasingly resemble civil litigation.
When Lucero gives talks to attorneys, they tend to center around the concept of professionalism. He’s quick to point out, however, that a lack of professionalism — being rude to court officials and other counsel, improperly addressing the jury, or other disrespectful behavior — usually isn’t an actionable violation that will send an attorney into his court. But if the attorney continues a pattern of that behavior, it could generate complaints being filed against them that could lead to formal consequences, he said.
And belligerence isn’t effective advocacy, Lucero said. He’s seen respondents facing charges related to “obstreperous” conduct in other courtrooms come into his courtroom and continue that behavior. They aren’t doing themselves any favors in the eyes of the people who will decide their cases, Lucero said. “When you see people acting like that, whether they’re a witness or a lawyer, [they] lose points for that most of the time.”
Lucero also likes to present talks to the general public, with the idea that the layperson should be informed and take an interest in the professional upkeep of attorney discipline. He believes the purpose of attorney discipline and regulation, after all, is to protect the public, not the lawyers. Colorado’s lawyer community is a rarity in the sense that it regulates itself, but Lucero would like to see non-attorneys play a more significant role in its ongoing experiment of attorney regulation.
“I’m not satisfied we have enough citizen involvement — people who aren’t lawyers, who are citizens and [are] interested in having a good judiciary, having a good bar and lawyers you can depend on.”
— Doug Chartier