In re Chessin v. Office of Attorney Regulation Counsel

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ADVANCE SHEET HEADNOTE
February 10, 2020

2020 CO 9

No. 19SA118, In re Chessin v. Office of Attorney Regulation Counsel—Subject
Matter Jurisdiction—Jurisdiction of Courts—Attorney Discipline.

In the lawsuit underlying this original proceeding, a complainant filed an

action in district court under C.R.C.P. 106(a)(4), seeking an order compelling the

Office of Attorney Regulation Counsel (“OARC”) to investigate the complainant’s

allegations of attorney misconduct. After OARC moved unsuccessfully to dismiss

the case for lack of subject matter jurisdiction, it sought relief under C.A.R. 21. The

supreme court has long held that as part of its inherent powers, it has exclusive

authority to regulate and supervise the practice of law in Colorado, including the

structure and administration of attorney discipline proceedings. The court’s rules

governing attorney discipline proceedings do not contemplate district court

review of OARC intake decisions. Accordingly, the supreme court holds that the

district court lacks subject matter jurisdiction to review Regulation Counsel’s

decision not to proceed with an investigation into allegations of attorney

misconduct. The supreme court therefore makes the rule to show cause absolute.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2020 CO 9

Supreme Court Case No. 19SA118
Original Proceeding Pursuant to C.A.R. 21
District Court, City and County of Denver, Case No. 19CV30251
Honorable Michael A. Martinez, Judge

In Re
Plaintiff:

Paul Chessin,

v.

Defendant:

Office of Attorney Regulation Counsel.

Rule Made Absolute
en banc
February 10, 2020

Attorneys for Plaintiff:
Vedra Law LLC
Daniel J. Vedra
Denver, Colorado

Gill & Ledbetter, LLC
Anne Whalen Gill
Castle Rock, Colorado
Attorneys for Defendant:
Philip J. Weiser, Attorney General
Christopher P. Beall, Deputy Attorney General
Robert Finke, First Assistant Attorney General
Denver, Colorado

JUSTICE MÁRQUEZ delivered the Opinion of the Court.
CHIEF JUSTICE COATS does not participate.

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¶1 In this case, an attorney was dissatisfied with the decision of the Office of

Attorney Regulation Counsel (“OARC”) not to pursue further investigation of his

allegations of professional misconduct against opposing counsel, so he filed a

complaint in district court under C.R.C.P. 106(a)(4), seeking an order compelling

Regulation Counsel to investigate the matter more fully. OARC moved to dismiss

the suit for lack of subject matter jurisdiction, arguing that the supreme court has

exclusive jurisdiction over attorney discipline matters. After the district court

issued an order holding OARC’s motion to dismiss in abeyance pending

resolution of the complainant’s motion to disqualify OARC’s counsel, OARC

petitioned this court for relief under C.A.R. 21.

¶2 We issued a rule to show cause. Because we have long held that this court,

as part of its inherent powers, has exclusive authority to regulate and supervise

the practice of law in Colorado, including the structure and administration of

attorney discipline proceedings, we hold that the district court lacks subject matter

jurisdiction to review Regulation Counsel’s decision not to proceed. Accordingly,

we make the rule absolute and remand the matter to the district court with

directions to dismiss the C.R.C.P. 106(a)(4) complaint against OARC.

I. Facts and Procedural History

¶3 The following facts are derived from the underlying C.R.C.P. 106(a)(4)

complaint. Paul Chessin is a former Senior Assistant Attorney General who was
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involved in an investigation of an internet payday lending enterprise. Over the

course of that investigation and contentious litigation that followed, Chessin came

to believe that opposing counsel committed various violations of the Colorado

Rules of Professional Conduct. In November 2017, Chessin filed a request for

investigation with OARC under C.R.C.P. 251.9(a)(1), alleging that opposing

counsel “prepared and submitted perjurious affidavits to Colorado’s courts,

concealed and withheld pertinent information, misled and deceived the courts,

and otherwise perpetrated a fraud on the courts,” thus violating Rules of

Professional Conduct 1.8(f), 3.3, 3.4, 8.4(c), and 8.4(d). OARC ultimately chose not

to bring disciplinary charges and closed the request for investigation into the

alleged misconduct approximately a year later.

¶4 Chessin then filed a complaint in district court under C.R.C.P. 106(a)(4) in

January 2019, alleging that OARC’s preliminary inquiry was unreasonably

cursory and that it sought and reviewed information from only one of the several

attorneys identified in his complaint before declining to pursue an investigation.

Chessin argued that OARC abused its discretion and requested an order

compelling OARC to “fully, thoroughly, and completely investigate the alleged

misconduct.” Upon Chessin’s motion, the district court ordered OARC to certify

the record “starting with Plaintiff’s November 14, 2017 Request for Investigation

through the December 26, 2018 OARC letter closing and dismissing the matter.”
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¶5 Through its counsel at the Attorney General’s Office, 1 OARC moved to

dismiss the suit for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1),

arguing that the Colorado Supreme Court has exclusive authority over matters of

attorney regulation and has not provided district courts with any role in the

process. Accordingly, OARC contended, district courts have no subject matter

jurisdiction over such matters.

¶6 Chessin did not respond to OARC’s C.R.C.P. 12(b)(1) motion; instead, he

moved to disqualify the Attorney General’s Office from representing OARC,

contending that the office had a conflict of interest under Colo. RPC 1.7(a), which

states that “a lawyer shall not represent a client if the representation involves a

concurrent conflict of interest.” Chessin argued that the Attorney General’s Office

was the victim of the allegedly unethical conduct that he had reported and

therefore could not defend OARC’s decision not to pursue an investigation into

that conduct. Chessin also filed a motion to hold OARC’s C.R.C.P. 12(b)(1) motion

to dismiss in abeyance until the court first resolved his motion to disqualify the

Attorney General’s Office. The district court granted this latter motion before

OARC filed a response.

1 The Attorney General’s Office serves as counsel to OARC in such matters. See
§ 24-31-101(1)(a), C.R.S. (2019).
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¶7 OARC moved the court for reconsideration, arguing that the court should

first determine whether it had subject matter jurisdiction over the case. When the

court did not rule on the motion to reconsider, OARC petitioned this court for

relief under C.A.R. 21, maintaining that the district court lacked subject matter

jurisdiction to review a decision by Regulation Counsel to dismiss an investigation

at the intake stage. OARC further argued that the confidentiality provisions of

C.R.C.P. 251.31 governing attorney discipline proceedings prevented it from even

acknowledging, much less certifying a record of, Chessin’s request for

investigation and thus severely constrained its ability to defend itself against the

motion to disqualify and the suit as a whole.

II. Original Jurisdiction

¶8 “The choice whether to exercise this court’s original jurisdiction is entirely

within its discretion.” Vinton v. Virzi, 2012 CO 10, ¶ 9, 269 P.3d 1242, 1245. We

have previously recognized that “we may exercise original jurisdiction [under

C.A.R. 21] to review whether a trial court acts in excess of its jurisdiction or without

jurisdiction,” City of Colorado Springs v. Bd. of Cty. Comm’rs, 147 P.3d 1, 2 (Colo.

2006), and “where appellate review would be inadequate,” Vinton, ¶ 9, 269 P.3d at

1245.

¶9 In this case, OARC’s motion to dismiss challenges the district court’s subject

matter jurisdiction to hear the matter and therefore plainly affects the court’s
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authority to proceed with the case. See Hagan v. Farmers Ins. Exch., 2015 CO 6,

¶ 13, 342 P.3d 427, 432 (exercising original jurisdiction to review trial court orders

relating to venue). Relatedly, judicial economy favors exercising our original

jurisdiction to resolve the issue because, if the district court lacks subject matter

jurisdiction, no other issues in the case—including the motion to disqualify—need

be resolved. See Bd. of Cty. Comm’rs v. City of Woodland Park, 2014 CO 35, ¶ 9,

333 P.3d 55, 58 (exercising original jurisdiction to review a district court’s order

denying a motion to dismiss for lack of subject matter jurisdiction in the interest

of judicial economy). In addition, we have exercised original jurisdiction under

C.A.R. 21 “when a procedural ruling will have significant effect on a party’s ability

to litigate the merits of the controversy.” McConnell v. Dist. Court, 680 P.2d 528,

530 (Colo. 1984). Here, OARC contends it is effectively unable to defend itself

against the motion to disqualify or the C.R.C.P. 106(a)(4) complaint without

violating C.R.C.P. 251.31(b), which states that “[b]efore the filing and service of a

complaint[,] . . . proceedings are confidential within the Office of the Regulation

Counsel,” with certain enumerated exceptions that are inapplicable here. Thus,

we conclude that this matter warrants exercise of our original jurisdiction.

III. Analysis

¶10 OARC argues that this court has the inherent power to regulate the practice

of law and the rules that we have prescribed for attorney discipline proceedings
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do not allow for review of OARC intake decisions in district court. Therefore, it

contends, the district court lacks subject matter jurisdiction over this dispute. We

agree.

¶11 It is well settled that “[t]he Colorado Supreme Court, as part of its inherent

and plenary powers, has the exclusive jurisdiction over attorneys and the

authority to regulate, govern, and supervise the practice of law in Colorado to

protect the public.” People v. Kanwal, 2014 CO 20, ¶ 6, 321 P.3d 494, 495 (alteration

in original) (quoting Colo. Supreme Court Grievance Comm. v. Dist. Court, 850 P.2d

150, 152 (Colo. 1993)); see also Smith v. Mullarkey, 121 P.3d 890, 891 (Colo. 2005)

(observing that the supreme court’s jurisdiction to regulate and control the

practice of law in Colorado is “exclusive”); Petition of Colo. Bar Ass’n, 325 P.2d 932,

937 (Colo. 1958) (stating that the supreme court has “full responsibility” over

matters of attorney regulation and discipline). In connection with this exclusive

jurisdiction, this court has “the ultimate and exclusive responsibility for the

structure and administration of disciplinary proceedings against lawyers.”

Kanwal, ¶ 6, 321 P.3d at 495–96 (quoting People v. Susman, 587 P.2d 782, 786 (Colo.

1978)).

¶12 We have exercised this authority through Rule 251 of the Colorado Rules of

Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado

Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal
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Education and Judicial Education, which provides the procedural mechanism for

attorney discipline proceedings. See C.R.C.P. 251.1 to 251.34; see also Kanwal, ¶ 6,

321 P.3d at 496. Although the attorney discipline process created by Rule 251 “has

much in common with criminal prosecution, and has in fact been characterized as

‘quasi-criminal’ in nature,” we have followed a largely civil model for the conduct

of discipline proceedings. Kanwal, ¶ 7, 321 P.3d at 496 (quoting In re Fisher,

202 P.3d 1186, 1199 (Colo. 2009)). Discipline proceedings therefore are “not strictly

civil or criminal cases.” Colo. Supreme Court Grievance Comm., 850 P.2d at 152.

Instead, we have characterized such proceedings as “unique, or sui generis, having

been designed for the precise, and sole, purpose of exercising this exclusive

jurisdiction and fulfilling this responsibility of the supreme court.” Kanwal, ¶ 7,

321 P.3d at 496.

¶13 We have allocated the authority to impose discipline among various officers

and bodies, all created, appointed, and reviewable by this court. Id. at ¶ 10,

321 P.3d at 497. The supreme court appoints Regulation Counsel, who serves at

the pleasure of the court. C.R.C.P. 251.3(a). Among other powers and duties,

Regulation Counsel, along with her staff, shall, in accordance with the rules of

procedure, conduct investigations into allegations made against an attorney,

prepare and prosecute disciplinary and disability actions against attorneys, and

negotiate dispositions of pending matters. C.R.C.P. 251.3(c). Discipline
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“proceedings,” in the general sense of opening an inquiry into particular attorney

conduct, may be commenced by a request for investigation. Kanwal, ¶ 11, 321 P.3d

at 497; C.R.C.P. 251.9(a)(1). However, “formal proceedings for public discipline

may be prosecuted only by Regulation Counsel, in the name of the People of the

State, C.R.C.P. 251.14; and only upon authorization by the [Attorney Regulation]

Committee.”2 Kanwal, ¶ 11, 321 P.3d at 497 (citing C.R.C.P. 251.12).

¶14 At the intake stage, Regulation Counsel has broad discretion in determining

whether to investigate an attorney. “Immediately upon receipt of a request for

investigation,” the matter is referred to Regulation Counsel for a determination of

whether to proceed with an investigation. Regulation Counsel considers whether

“the attorney in question is subject to the disciplinary jurisdiction of the [Colorado]

Supreme Court”; whether “there is an allegation made against the attorney in

question which, if proved, would constitute grounds for discipline”; and whether

“the matter should be investigated . . . or addressed by means of an alternative to

2The Attorney Regulation Committee consists of a chair, vice-chair, four members
of the Colorado Bar, and three members of the public, all appointed by the
supreme court. C.R.C.P. 251.2(a)(1)–(3). In addition to its role in reviewing
Regulation Counsel’s investigatory decisions, the committee may enlist the
assistance of members of the Bar to conduct or assist with investigations and,
among other powers, recommend to the Supreme Court Advisory Committee
proposed changes or additions to the rules of procedure for attorney discipline
and disability proceedings. C.R.C.P. 251.2(b).
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discipline.” C.R.C.P. 251.9(b). “In making a determination whether to proceed,

the Regulation Counsel may make inquiry regarding the underlying facts and

consult with the Chair of the [Attorney Regulation Committee].” Id.

¶15 Importantly, C.R.C.P. 251.9(b) provides that “the decision of the Regulation

Counsel [regarding whether to proceed] shall be final, and the complaining

witness shall have no right to appeal.” In this sense, Regulation Counsel’s decision

is at least somewhat analogous to a prosecutor’s discretionary decision not to bring

criminal charges against a person, which generally “may not be controlled or

limited by judicial intervention.” People v. Dist. Court, 632 P.2d 1022, 1024 (Colo.

1981). This court’s rules governing attorney discipline proceedings do not allow

for district court review of Regulation Counsel’s decision not to pursue an

investigation.3

¶16 Instead, the check on OARC’s power rests with this court, which has a

“unique” and supervisory role in attorney discipline proceedings. Kanwal, ¶ 8,

321 P.3d at 496. We have reserved plenary power “to review any determination

3Similarly, district courts do not have subject matter jurisdiction to review the
dismissal of a complaint filed with the Judicial Commission on Discipline. See
Higgins v. Owens, 13 P.3d 837, 838 (Colo. App. 2000) (holding that “district courts
do not have subject matter jurisdiction [under Rule 106(a)(4)] to compel the
Commission or its Executive Director to investigate a complaint alleging judicial
misconduct”).
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made in the course of a disciplinary proceeding and to enter any order with respect

thereto, including an order directing that further proceedings be conducted.”

C.R.C.P. 251.1(d).

¶17 In short, whether OARC successfully prosecutes a case to the Hearing Board

or decides to dismiss the matter, we are the only court authorized to review the

case.

¶18 The foregoing principles demonstrate that we have exclusive authority over

matters of attorney discipline and, as we stated in Colorado Supreme Court Grievance

Committee when analyzing the procedural rules then in effect, we “did not provide

for district courts to perform any role in the process.” 850 P.2d at 153. Thus, the

district court is without jurisdiction over cases that involve oversight of the

attorney discipline process.

¶19 Chessin counters that this court’s procedural rules “cannot deprive a district

court of the jurisdiction that the constitution provides and that no statute limits.”

He points to article VI, section 9 of the Colorado Constitution, which provides that

“district courts shall be trial courts of record with general jurisdiction, and shall

have original jurisdiction in all civil, probate, and criminal cases, except as

otherwise provided herein, and shall have such appellate jurisdiction as may be

prescribed by law.” Chessin brought his claim under C.R.C.P. 106(a)(4), which

permits district court review of whether “any governmental body or officer or any
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lower judicial body exercising judicial or quasi-judicial functions has exceeded its

jurisdiction or abused its discretion.” Thus, he contends, his claim falls within the

district court’s jurisdiction.

¶20 We disagree. The grant of subject matter jurisdiction to district courts “is

very broad, [but] it is not unlimited.” Colo. Supreme Court Grievance Comm.,

850 P.2d at 152. We have previously held that “district courts do not have subject-

matter jurisdiction over disciplinary proceedings” precisely because they are “not

strictly civil or criminal cases,” but are “sui generis.” Id. This remains true when a

discipline proceeding becomes the subject of a civil suit, as we concluded in

Colorado Supreme Court Grievance Committee. Id. at 153. There, we considered

whether a district court had jurisdiction over a respondent attorney’s challenge to

the constitutionality of a disciplinary rule while discipline proceedings against the

respondent attorney were pending. Id. at 151. We acknowledged that the

constitutional challenge to the rule was a civil proceeding, which ordinarily falls

within the district court’s general jurisdiction, but we nonetheless concluded that

“district courts may not exercise subject-matter jurisdiction over a civil action if

such exercise of jurisdiction interferes with ongoing disciplinary proceedings and

the inherent power of the Colorado Supreme Court to regulate, govern, and

supervise the practice of law.” Id. at 153. To have ruled otherwise would have

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allowed the respondent attorney to effectively circumvent the rules of procedure

governing discipline proceedings. Id.

¶21 Our holding in Colorado Supreme Court Grievance Committee applies here as

well. Though Chessin’s C.R.C.P. 106(a)(4) action is a civil proceeding, he

effectively seeks review of Regulation Counsel’s decision not to pursue an

investigation against an attorney. As in Colorado Supreme Court Grievance

Committee, a district court’s exercise of jurisdiction over such a claim would

interfere with the inherent power of this court to regulate, govern, and supervise

the practice of law because it would directly circumvent the rules we have

prescribed, which provide that “the complaining witness shall have no right to

appeal” Regulation Counsel’s decision not to pursue further investigation of a

particular complaint.

¶22 Chessin contends that Colorado Supreme Court Grievance Committee is

distinguishable because we concluded our opinion by saying that the “narrow

exception to the subject matter jurisdiction of district courts that we delineate

today is described no more broadly than necessary to resolve the case before us.”

Id. at 154. He points out that, unlike that case, there are no pending discipline

proceedings here. Further, he contends that Colorado Supreme Court Grievance

Committee stands for the limited principle “that courts will not entertain actions

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that raise issues more properly adjudicated in a prior pending proceeding between

the parties.”

¶23 However, we have not interpreted our holding in Colorado Supreme Court

Grievance Committee so narrowly. Indeed, in Smith, an applicant who was denied

admission to the Colorado Bar brought suit in Denver District Court, raising a

constitutional challenge to the denial of his application for admission. 121 P.3d at

891. We affirmed the district court’s order dismissing the case for lack of subject

matter jurisdiction. Id. After recognizing that Colorado Supreme Court Grievance

Committee “involved an attorney disciplinary proceeding,” we proceeded to

import its reasoning. Id. at 892. We observed that “constitutional challenges to

the Bar admission process are inextricably intertwined with the procedural

mechanism used to determine Bar admission qualifications,” which we have the

“exclusive and inherent power” to establish. Id. Thus, challenges to the Bar

admission process, in which we provided no role for district courts, fall “squarely

within [our] exclusive and inherent power” and outside the jurisdiction of the

district courts. Id. The same holds true regarding the rules of procedure governing

attorney discipline proceedings.

IV. Conclusion

¶24 In sum, we hold that the district court lacked subject matter jurisdiction over

Chessin’s claim. Accordingly, we make the rule absolute and remand the matter
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to the district court with directions to dismiss Chessin’s C.R.C.P. 106(a)(4)

complaint against OARC.

CHIEF JUSTICE COATS does not participate.

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