Colorado § 13-93-105 - Supreme court may strike name.

§ 13-93-105. Supreme court may strike name.

No person whose name is not subscribed to or written on the said roll, with the day and year when the same was subscribed thereto or written thereon, shall be admitted to practice as an attorney- or counselor-at-law within this state under the penalty mentioned in section 13-93-108, anything in this article 93 to the contrary notwithstanding; and the justices of the supreme court in open court, at their discretion, shall have power to strike the name of any attorney- or counselor-at-law from the roll for malconduct in his or her office.

Source: L. 2017: Entire article added with relocations, (SB 17-227), ch. 192, p. 699, § 1, effective August 9.

Editor's note: This section is similar to former § 12-5-108 as it existed prior to 2017.

ANNOTATION

I. General Consideration.

II. Grounds for Striking Name or Disbarment.

III. Pleading and Practice.

IV. Review of Disbarment.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Unauthorized Practice of Law", see 10 Dicta 284 (1933).

Annotator's note. (1) Since § 13-93-105 is similar to § 12-5-108 as it existed prior to the 2017 amendments relocating article 5 of title 12 to this article 93, relevant cases construing that provision have been included in the annotations to this section.

(2) For other annotations concerning disbarment, see the annotations for chapters 18 to 20 of the Colorado Rules of Civil Procedure and the Colorado Rules of Professional Conduct contained in the appendix to those chapters.

The section is declaratory of the common law on the subject. In re Walkey, 26 Colo. 161, 56 P. 576 (1899).

This section not only vests this court with a discretion which may be exercised, but, by implication, it enjoins a solemn duty upon the court, which, in a proper case, must be exercised. People ex rel. Elliott v. Green, 7 Colo. 237, 3 P. 65 (1883).

The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

II. GROUNDS FOR STRIKING NAME OR DISBARMENT.

Any misconduct of an attorney which would render his continuance in practice incompatible with the proper respect of the court for itself, or a proper regard for the integrity of the profession, is sufficient under this section to cause his disbarment. People ex rel. Colo. Bar Ass'n v. Weeber, 26 Colo. 229, 57 P. 1079 (1899).

Conduct involving moral turpitude. Violation by attorneys of law intended for the protection of the public, or misapplication by them of funds in violation of the law, whether or not a loss results in the last analysis, constitutes conduct involving moral turpitude. People v. Salazar, 185 Colo. 331, 524 P.2d 298 (1974).

The right of the court to strike his name from its rolls exists for acts of misbehavior other than the commission of a crime. People ex rel. Colo. Bar Ass'n v. Weeber, 26 Colo. 229, 57 P. 1079 (1899).

The court might disbar him for committing a crime, even though he was not convicted. People ex rel. Colo. Bar Ass'n v. Weeber, 26 Colo. 229, 57 P. 1079 (1899).

Where an information in disbarment proceedings charged the respondent with the crime of embracery, an answer setting up his acquittal upon a criminal charge based upon the same facts was not a defense to the proceeding for disbarment, and a demurrer to the answer was sustained. People ex rel. Colo. Bar Ass'n v. Thomas, 36 Colo. 126, 91 P. 36 (1906).

When an attorney has by his conduct shown himself unworthy of his office, it becomes the duty of the court to revoke the authority it gave him upon his admission. People ex rel. Maupin v. Keegan, 18 Colo. 237, 32 P. 424 (1893).

The conviction of a felony is ground for disbarment. People ex rel. Colo. Bar Ass'n v. Bryce, 36 Colo. 125, 84 P. 816 (1906); People ex rel. Attorney Gen. v. Cowen, 88 Colo. 571, 298 P. 957 (1931); People ex rel. Attorney Gen. v. Kaufman, 90 Colo. 8, 5 P.2d 1114 (1931); People ex rel. Attorney Gen. v. Bentall, 97 Colo. 526, 51 P.2d 352 (1935).

An attorney will be disbarred under this section for procuring witnesses to a forged will. People ex rel. Colo. Bar Ass'n v. Boutcher, 89 Colo. 497, 4 P.2d 910 (1931).

An attorney may be disbarred or suspended for publishing advertisements soliciting divorce cases. People ex rel. Attorney Gen. v. MacCabe, 18 Colo. 186, 32 P. 280 (1892).

Where an attorney at law receives money as collections for his clients by virtue of his employment as an attorney, and refuses and neglects to pay the same over to them upon demand and tender of his fees and expenses, his name will be stricken from the roll of attorneys in this state in disbarment proceedings. People ex rel. Colo. Bar Ass'n v. Nicholas, 36 Colo. 42, 84 P. 67 (1906); People ex rel. Colo. Bar Ass'n v. Kohn, 59 Colo. 353, 149 P. 249 (1915); People ex rel. Colo. Bar Ass'n v. Cary, 80 Colo. 443, 251 P. 597 (1926); People ex rel. Colo. Bar Ass'n v. Winograd, 87 Colo. 384, 287 P. 864 (1930); People ex rel. Colo. Bar Ass'n v. Hillyer, 88 Colo. 428, 297 P. 1004 (1931).

For obtaining money under false pretenses, taking advantage of those who employed him in his professional capacity to defraud them of money which came into his hands by virtue of such employment, and making misrepresentations to a client for the purpose of inducing him to advance money which he appropriated to his own use, the respondent will be disbarred. People ex rel. Colo. Bar Ass'n v. Sindlinger, 28 Colo. 258, 64 P. 191 (1901).

Attorney's actions in utilizing lien to overreach and force payment of more than he was owed warranted his disbarment. People v. Radinsky, 182 Colo. 259, 512 P.2d 627 (1973).

Subornation of perjury is another ground for disbarment. People ex rel. Colo. Bar Ass'n v. McCann, 80 Colo. 220, 249 P. 1093 (1926).

Abuse of process is a ground for disbarment. Civil liabilities may not be enforced by threats of criminal prosecution any more than by threats of physical violence, and conduct of an attorney which has the appearance of resort to such methods is as bad, in law, as the thing itself. People ex rel. Colo. Bar Ass'n v. ...., 90 Colo. 440, 9 P.2d 611 (1932).

Contempt of court is ground for disbarment. Under this section it is not necessary that the indignity of insult to a judge should occur in open court, nor that it constitute a statutory contempt of court, in order to confer on this court jurisdiction to disbar therefor. People ex rel. Elliott v. Green, 7 Colo. 237, 3 P. 65 (1883).

Regardless of the power to punish for contempt, there can be no doubt of the existence of a power to strike an offending attorney from the roll. People ex rel. Elliott v. Green, 7 Colo. 237, 3 P. 65 (1883).

If subsequent to admission an attorney is guilty of such conduct that he no longer possesses the qualification of good moral character, his name may be stricken from the rolls under the provisions of this section. People ex rel. Colo. Bar Ass'n v. Sindlinger, 28 Colo. 258, 64 P. 191 (1901).

An attorney who, in a business transaction, is guilty of conduct involving moral turpitude will be disbarred. People ex rel. Colo. Bar Ass'n v. Humbert, 51 Colo. 60, 117 P. 139 (1911).

An attorney who used his position as a director or officer of a bank to arrange financial transactions in a way prohibited by law is properly subject to disbarment. People v. Salazar, 185 Colo. 331, 524 P.2d 298 (1974).

Where an attorney having advised, and consented to, the illegal payment of dividends for the purpose of defrauding the public by the promotion of sales of stock, and being one of the promoters of a company operated as a stock selling swindle, is held guilty of unprofessional conduct, his name stricken from the roll of attorneys of Colorado. People ex rel. Colo. Bar Ass'n v. Allen, 88 Colo. 283, 295 P. 1107 (1930).

Where attorney had commingled funds in direct violation of the code of professional responsibility and had used his clients' funds for his own personal purposes, disbarment was warranted. People v. Sarvas, 185 Colo. 329, 524 P.2d 304 (1974).

Attorney's action in making alterations in court papers with intent to deceive the court is ground for disbarment. People v. Atencio, 185 Colo. 326, 524 P.2d 613 (1974).

Where an attorney attempted to reap a benefit for his client through the alteration or destruction of written evidence, such conduct was characterized as reprehensible. People ex rel. Colo. Bar Ass'n v. Attorney at Law, 88 Colo. 325, 295 P. 917 (1931).

An attorney who was instrumental in employing persons to wrongfully break into a clubhouse and remove goods therefrom was held guilty of unprofessional conduct and publicly reprimanded. People ex rel. Colo. Bar Ass'n v. White, 89 Colo. 306, 1 P.2d 577 (1931).

Where an attorney approached another with an offer, for a money consideration, to influence jurors to vote for an acquittal in a criminal case, he was disbarred and his name stricken from the roll of attorneys. People ex rel. Attorney Gen. v. Powell, 87 Colo. 387, 287 P. 858 (1930).

Attorney's action in negligently failing to take measures to procure his client's release from jail after he had represented to client that he would do so is ground for disbarment. People v. Atencio, 185 Colo. 326, 524 P.2d 613 (1974).

III. PLEADING AND PRACTICE.

It is the privilege, if not the duty, of every attorney to call to the attention of the supreme court any act of a licensed attorney which may fairly be considered to disqualify him. People ex rel. Colo. Bar Ass'n v. Class, 70 Colo. 381, 201 P. 883 (1921).

It is not the proper practice to entertain disbarment proceedings while the conduct complained of is already being investigated in an appropriate action. People ex rel. Eli v. Benson, 24 Colo. 358, 51 P. 481 (1897).

Where the alleged wrong is committed during or in connection with the judicial trial of an action, the disbarment proceedings should be postponed, or its hearing suspended until the termination of the action. People ex rel. Eli v. Benson, 24 Colo. 358, 51 P. 481 (1897).

Previous good standing and reputation is entitled to much consideration. People ex rel. Eli v. Benson, 24 Colo. 358, 51 P. 481 (1897).

In a proceeding to disbar upon charges made by the client, the burden is on the client to prove an attorney's guilt. People ex rel. Colo. Bar Ass'n v. Johnson, 40 Colo. 460, 90 P. 1038 (1907).

As accusations of this kind are easy to make and difficult to defend, the court will not be quick to take the naked charge as a proof of guilt, and, acting upon that, not only deprive a member of the bar of the means of making a livelihood, but disgrace him as well. People ex rel. Colo. Bar Ass'n v. Johnson, 40 Colo. 460, 90 P. 1038 (1907).

In disbarment proceedings, the burden, under the rule to show cause, is cast upon the respondent to justify his alleged unprofessional conduct. People ex rel. Colo. Bar Ass'n v. Lindsey, 86 Colo. 458, 283 P. 539 (1929).

In disbarment proceedings, if respondent fails to deny the charges made against him, he in legal effect admits them to be true. People ex rel. Attorney Gen. v. Powell, 87 Colo. 387, 287 P. 858 (1930); People ex rel. Attorney Gen. v. Cowen, 88 Colo. 571, 298 P. 957 (1931).

In disbarment proceedings where the petition is upon the relation of the Colorado bar association, neither the petition of the association nor the information of the attorney general is required to be under oath. People ex rel. Colo. Bar Ass'n v. Mead, 29 Colo. 344, 68 P. 241 (1902).

In disbarment proceedings the practice is to have the evidence taken and reported by a referee. People ex rel. Colo. Bar Ass'n v. Mead, 29 Colo. 344, 68 P. 241 (1902).

The charges should be established by clear, satisfactory and convincing evidence. People ex rel. Eli v. Benson, 24 Colo. 358, 51 P. 481 (1897); People ex rel. Colo. Bar Ass'n v. Tanquary, 48 Colo. 122, 109 P. 260 (1910).

The fact that an attorney has been acquitted on an embezzlement charge does not affect the question as to whether he has been guilty of unprofessional conduct for which he should be disbarred. People ex rel. Colo. Bar Ass'n v. Mead, 29 Colo. 344, 68 P. 241 (1902).

The fact that an attorney, who was convicted of a felony in a sister state, was restored to his civil rights by a pardon of the governor, is not a defense to disbarment proceedings against him for the same offense. People ex rel. Colo. Bar Ass'n v. Burton, 39 Colo. 164, 88 P. 1063 (1907).

The court may consider the conduct of such attorney, and if satisfied that it has been of a nature to require his disbarment, may disbar him. People ex rel. Colo. Bar Ass'n v. Burton, 39 Colo. 164, 88 P. 1063 (1907).

If an attorney honestly believes he is the owner of money in the hands of an officer taken from a person charged with robbery and held pending a prosecution, and believes it is not the money of the person alleged to have been robbed, although he is altogether wrong upon all points in his attempt to get the money, he is not guilty of attempting to defraud the claimant of the money, or of abuse of the process of the courts such as to cause his disbarment. People ex rel. Eli v. Benson, 24 Colo. 358, 51 P. 481 (1897).

In a disbarment proceeding against an attorney for refusing to pay over money collected for his client, it was no defense that the money was collected for the guardian of minor children, and that respondent loaned the money to prevent the husband of his client from getting and using the money for his personal benefit, even if such defense were true. People ex rel. Carr v. Selig, 25 Colo. 505, 55 P. 722 (1898).

An attorney at law who refuses to pay over money collected for a client cannot relieve himself from the consequences of the violation of professional duty by paying over the money after the commencement of disbarment proceedings, though in a proper case it may be considered in mitigation of the punishment. People ex rel. Carr v. Selig, 25 Colo. 505, 55 P. 722 (1898).

While ratification of an unauthorized act of an attorney by his client is for some purposes equivalent, in law, to antecedent authority, the principle has no application in disbarment proceedings where the character of the act must be considered as at the time it was committed. People ex rel. Colo. Bar Ass'n v. Hillyer, 88 Colo. 428, 297 P. 1004 (1931).

If improper and immoral at that time, it does not become proper and moral by reason of a subsequent forgiveness by the victim. People ex rel. Colo. Bar Ass'n v. Hillyer, 88 Colo. 428, 297 P. 1004 (1931).

Where lawyer with prior censures and suspension for dereliction of duty failed to prepare will of aged person for at least eight months after being employed to do so and failed to file written objections to disbarment, disbarment was warranted. People v. James, 180 Colo. 133, 502 P.2d 1105 (1972).

Where respondent fails to appear and answer, the proper motion to be filed by petitioner is for default and judgment, and not for judgment on the pleadings. People ex rel. Attorney Gen. v. Kaufman, 90 Colo. 8, 5 P.2d 1114 (1931).

An attorney, by reason of his conduct subsequent to disbarment, may be held not entitled to reinstatement. People ex rel. Colo. Bar Ass'n v. Lindsey, 93 Colo. 41, 23 P.2d 118 (1933).

IV. REVIEW OF DISBARMENT.

The federal courts do not have jurisdiction to review an order of the Colorado supreme court disbarring an attorney in that state for personal and professional misconduct. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

The federal courts have no jurisdiction to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties, including disbarment proceedings. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

Where the limits of review of a disbarment by the Colorado supreme court are violations, in the course of disbarment proceedings, of the due process or equal protection clauses of the fourteenth amendment, a petition for a writ of certiorari to the supreme court of the United States is the only method by which review may be had. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).