C.r.c.p. 242.41

As amended through Rule Change 2024(18), effective October 2, 2024

Rule 242.41 - Access to Information

(a) Public Information. Unless otherwise provided in this section, all files and records of the Regulation Counsel, the Presiding Disciplinary Judge, and the supreme court that relate to any phase of a disciplinary proceeding are available to the public after:

(1) A complaint is filed with the Presiding Disciplinary Judge;

(2) The Presiding Disciplinary Judge approves a stipulation to discipline that is submitted before the filing of a complaint;

(3) A petition for reinstatement or readmission is filed with the Presiding Disciplinary Judge;

(4) The Presiding Disciplinary Judge approves a stipulation to reinstatement that is submitted before the filing of a petition; or

(5) An interim or a nondisciplinary suspension is imposed before the filing of a complaint.

(b) Confidential Information. The following types of information are confidential and are not available to the public:

(1) Files and records of a proceeding in which none of the five events set forth in subsection (a) above has occurred, unless the respondent has waived confidentiality;

(2) Files and records of any proceeding that was dismissed before a complaint was filed, unless the respondent has waived confidentiality;

(3) Interview notes made during a preliminary investigation under C.R.C.P. 242.13;

(4) The work product, deliberations, privileged communications, and internal communications of the Office of the Regulation Counsel, the Advisory Committee, the Regulation Committee, the Office of the Presiding Disciplinary Judge, Hearing Boards, and the supreme court;

(5) Lists of pending matters, lists of clients, and copies of client notices referred to in C.R.C.P. 242.32(f);

(6) Information subject to a protective order under subsection (e) below; and

(7) Information otherwise made confidential under this rule.

(c) Subpoenaed Records. If the Regulation Counsel is served with a valid subpoena, the Regulation Counsel shall not permit access to files or records or furnish documents that are confidential under this rule unless the supreme court orders otherwise.

(d) Private Admonitions. Access to information in proceedings resulting in private admonition is governed by C.R.C.P. 242.10(a)(4).

(e) Protective Orders. On motion of any person and on a showing of good cause, the Presiding Disciplinary Judge may enter a protective order restricting the disclosure of specific information to protect a complaining witness, another witness, a third party, a respondent, or a petitioner from annoyance, embarrassment, oppression, or undue burden or expense. A protective order may direct that a proceeding, including a hearing, be conducted so as to preserve the confidentiality of certain information.

(f) Exceptions to Confidentiality During Investigation.

(1) Before the filing of a complaint, the Regulation Counsel may, to conduct an investigation, disclose information to a complaining witness or to another third party.

(2) Before the filing of a complaint, the Regulation Counsel may disclose the existence, subject matter, status, and resolution, if any, of an investigation if:

(A) The respondent has waived confidentiality;

(B) The investigation is based on the respondent's conviction of a crime or discipline by another jurisdiction;

(C) The investigation is based on allegations that have become generally known to the public;

(D) The disclosure is made solely to a confidential supreme court program, such as the Colorado Attorneys' Fund for Client Protection or the Colorado Lawyer Assistance Program;

(E) The disclosure is necessary to protect the public, the administration of justice, or the legal profession; or

(F) A petition for interim suspension based on the investigation has been filed under C.R.C.P. 242.22.

(g) Request for Confidential Information.

(1) Release With Notice.

(A) The Regulation Counsel may, on request, release information that is confidential under subsection (b) above to the following types of agencies:

(i) An agency authorized to investigate the qualifications of persons for admission to practice law;

(ii) An agency authorized to investigate the qualifications of persons for government employment;

(iii) A lawyer or judicial discipline enforcement agency;

(iv) An agency authorized to investigate criminal conduct; or

(v) An agency authorized to investigate the qualifications of judicial candidates.

(B) When the Regulation Counsel releases confidential information under this subsection (g)(1), the Regulation Counsel must send to the lawyer's registered address or other last-known address contemporaneous notice and a copy of the information released.

(2) Release Without Notice.

(A) The Regulation Counsel may release confidential information without notifying the lawyer if an agency listed in subsection (g)(1)(A) above requests the information and certifies that:

(i) The request is made in furtherance of an ongoing investigation of the lawyer;

(ii) The information is essential to that investigation; and

(iii) Disclosing to the lawyer the existence of the investigation would seriously prejudice that investigation.

(B) A certification made under subsection (g)(2)(A) above is deemed confidential.

(h) Release to Commission on Judicial Discipline. The Regulation Counsel may, on request, release to the Colorado Commission on Judicial Discipline information concerning a Colorado judge that is confidential under subsection (b) above without obtaining a waiver from the judge or notifying the judge.

(i) Response to False or Misleading Statement and Defense to Civil Suit. The Regulation Counsel may disclose any information reasonably necessary either to correct false or misleading public statements made during a disciplinary proceeding or to defend against litigation in which the Regulation Counsel is a named defendant.

(j) Confidential Matters Involving Allegations of Sexual Harassment. For matters that are confidential under this section 242.41 and that involve allegations of sexual harassment, the Regulation Counsel's investigation records regarding the sexual harassment allegations, not otherwise privileged or protected by court rule or court order, are available to the complaining witness and respondent, subject to the provisions of C.R.C.P. 242.43.

(k) Disclosure by Persons and Entities Other Than Disciplinary Entities. Unless otherwise ordered, nothing in this rule prohibits the complaining witness, any other witness, or the respondent from disclosing the existence of a proceeding under this section 242.41, from disclosing any documents or correspondence provided to those persons, or from providing testimony related to a proceeding under this rule.

(l) Duty of Officials and Employees. All officials, employees, and volunteers within the supreme court, the Advisory Committee, the Regulation Committee, the Office of the Regulation Counsel, the Office of the Presiding Disciplinary Judge, and the Hearing Board pool have an ongoing duty to maintain the confidentiality mandated by this rule.

(m) Publication of Opinions. The clerk of the Presiding Disciplinary Judge must release for publication opinions imposing public discipline, orders revoking probation, and opinions granting or denying reinstatement or readmission.

(n) Notice of Order to the Courts. The clerk of the supreme court must promptly notify all courts within the supreme court's jurisdiction of orders of disbarment, suspension, or interim or nondisciplinary suspension.

(o) Notice to ABA National Lawyer Regulatory Data Bank. The Regulation Counsel must promptly transmit notice of all public discipline imposed and reinstatements and readmissions to the National Lawyer Regulatory Data Bank maintained by the American Bar Association.

C.r.c.p. 242.41

Adopted by the Court, En Banc, May 20, 2021, effective 7/1/2021.

COMMENT

C.R.C.P. 242.41 seeks to strike a balance between protecting lawyers against publicity predicated upon unfounded accusations and protecting clients, prospective clients, and the effective administration of justice from harm caused by lawyers who do not fulfill their professional obligations. C.R.C.P. 242.41 also recognizes that restrictions on confidentiality no longer serve a purpose when allegations that ordinarily would be confidential have become generally known through publicity, disclosure in the public record, or otherwise.

The Regulation Counsel frequently receives inquiries from judges, clients, prospective clients, and the media asking if a lawyer is the subject of a pending disciplinary investigation. Ordinarily, C.R.C.P. 242.41 prohibits the Regulation Counsel from providing information about a pending investigation or even confirming that an investigation is pending. C.R.C.P. 242.41(f)(2), however, sets forth several exceptions when the Regulation Counsel may reveal the existence, subject matter, status, and any resolution of an investigation.

Two such exceptions warrant further explanation. C.R.C.P. 242.41(f)(2)(C) requires the Regulation Counsel to determine whether otherwise confidential allegations against a lawyer have become generally known. Factors that the Regulation Counsel should consider in these circumstances include the nature and extent of media coverage, the nature and extent of inquiries from the media and the public, the nature and status of any related judicial proceedings, the number of people believed to have knowledge of the allegations, and the seriousness of the allegations.

Another exception is C.R.C.P. 242.41(f)(2)(E), which allows disclosure when necessary to protect the public, the administration of justice, or the legal profession. In determining whether a need to notify exists, the Regulation Counsel should consider factors including the nature and seriousness of the conduct under investigation, the lawyer's prior disciplinary history, whether prior discipline was premised on conduct similar to the alleged conduct under investigation, and the potential harm to a client, a prospective client, the public, or the judicial system. In those instances in which the Regulation Counsel determines that disclosure is permitted under C.R.C.P. 242.41(f)(2)(E), the Regulation Counsel is authorized not only to disclose the existence, subject matter, status, and any resolution of an investigation in response to an inquiry, but also to disclose this information affirmatively to those persons having a need to know the information in order to avoid potential harm.