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A Travesty of Justice in Colorado: Lawyer Suspended for A Year and A Day for WINNING His Client’s Case

by Carolyn Elefant on January 12, 2010 · 19 comments

in Ethics & Malpractice Issues

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Solo practice can be a risky business.  Even a three month suspension by a Grievance Committee wreaks damage far beyond the duration of the penalty.  Once suspended, solos must inform clients of their status and pass their files on to colleagues.  They cannot market and they cannot work on legal matters for other lawyers.  When the three month suspension ends, a solo may need double that time to restore a practice to its original condition.  So all told, three months suspend means nine months out of commission.

If a three month suspension represents the equivalent of a disabling injury, a suspension of a year and a day is a death knell, pure and simple.  For that reason, disciplinary committees ordinarily reserve suspensions of this durations for serious infractions that harm clients, such as stealing from trust accounts or video-taping the sexual activity of clients

Not Colorado.  There, solo lawyers with otherwise unblemished disciplinary records who win $1.4 million jury awards for their clients and garner compliments on their performance from jurors qualify for sanctions of a year and a day merely for zealously representing their client.

That’s what happened to Denver, Colorado solo, Mark Brennan, whose story I last covered in this post.  As described in this extensive write up, Brennan ticked off a federal judge during a long-shot employment suit against the City.  The judge sanctioned Brennan 75 times during the trial, but apparently, what the judge regarded as uncivil conduct didn’t impact the jury.  Brennan’s client prevailed to the tune of $1.4 million.  But the judge tossed out the verdict, citing Brennan’s inflammatory conduct in the courtroom.  Brennan’s client eventually settled the case for $850,000.

Apparently, sanctions, fines and loss of a hard fought verdict wasn’t punishment enough for Brennan, who’d never before been disciplined.  Brennan’s case was referred to the state’s Office of Attorney Regulatory Counsel (OARC) which imposed a suspension of a year and day on Brennan for his "obstreperous conduct."   The OARC based its findings largely on testimony about Brennan’s courtroom conduct from the court reporter, who presumably, felt compelled to criticize Brennan to stay in good graces with the court, which uses her services.  By contrast, the OARC ignored the comments of the jurors, who largely agreed that Brennan had represented his client in a professional, albeit vigorous manner.  And while the OARC claimed to give weight to Brennan’s pristine disciplinary record of twenty five years, that consideration certainly isn’t reflected in the harshness of the sanction. 

To make matters worse, the OARC makes Brennan’s re-entry to the bar contingent on submitting to an Independent Medical Exam.  There’s no justification or evidence to support this degrading requirement.  In my view, it’s sheer vindictiveness, nothing more.

Brennan’s case reflects the darker side of solo practice that few us like to acknowledge, because frankly, it would paralyze us.  Sure, we’d all like to think that we’d never act in a way that would generate 75 sanctions, but the truth is, we can never predict how judges will react.  Sometimes, judges may simply have a visceral, adverse reaction to certain lawyers or their client, other times, judges may truly be corrupt.  In either scenario, judges wield the power to set in motion a case that can end a solo’s career.  Just like Mark Brennan.  And there’s nothing a lawyer can do to stop it, because inside the courtroom, our fealty lies with our client.  We lawyers can’t subordinate zeal to a judge’s demands, no matter what the potential cost may be to our careers.   For solos, that cost may be higher.

Our profession needs civility, and courts need to maintain order, no doubt.  That’s why judges have authority to impose sanctions, financial penalties and contempt order on counsel.  But once penalized by the court, as Brennan was (his client’s verdict was snatched away, for heaven’s sake!), lawyers shouldn’t be punished again with a disciplinary action, particularly one as disproportionate as this one.

The OARC’s order concludes with this quote:

Unless order is maintained in the courtroom and disruption prevented, reason cannot prevail and constitutional rights to liberty, freedom and equality cannot be protected.

Seems to me that constitutional rights to liberty, freedom and equality suffer far more when the OARC shuts down lawyers like Brennan for vigorously and zealously representing their clients.

Note:  To read a full account of the events leading up to the OARC decision, including some of Brennan’s inside strategy in the underlying federal court case (he’s a really smart lawyer, as shown by his insights, which makes the result even more tragic), I’ll be uploading Brennan’s Valedictory Statement soon (it’s a huge file).

 

  • http://www.ramcharanlaw.com RE Ramcharan

    It looks like Mr. Brennan’s troubles were not so much the result of being a solo practitioner as the small, but non-zero probability that the judge in a particular case might be a jerk. (Another example lives at The Volokh Conspiracy http://volokh.com/2010/01/08/judge-personally-ordered-a-violation-of-the-fourth-amendment/ , if you’re interested.)
    There’s also the fact that while a gentle answer might turneth aside wrath, and then again it might not, responding in kind to a jerk is probably not going to help.
    As for the suspension, this is just something that goes on in Colorado. In Kansas, disbarment used to be more or less automatic following a felony conviction. Nowadays, not so much. http://cjonline.com/news/2009-03-27/ex_prosecutor_begins_prison (Mr. Goodrich was a local prosecutor who was nabbed extorting cash and unspecified “favors” from a nudie bar. He was indefinitely suspended by our Supreme Court, in an unpublished decision that has not been made available on the internet.)
    The danger for all lawyers, not just solo practitioners, is that the process has become less predictable, less orderly. We used to have some clear idea of what the rules were and how to function within those rules. Now it appears that the rule of law is eroding in favor of local despotism and the rule of judges.
    This is a Bad Thing.

  • http://www.ramcharanlaw.com RE Ramcharan

    It looks like Mr. Brennan’s troubles were not so much the result of being a solo practitioner as the small, but non-zero probability that the judge in a particular case might be a jerk. (Another example lives at The Volokh Conspiracy http://volokh.com/2010/01/08/judge-personally-ordered-a-violation-of-the-fourth-amendment/ , if you’re interested.)
    There’s also the fact that while a gentle answer might turneth aside wrath, and then again it might not, responding in kind to a jerk is probably not going to help.
    As for the suspension, this is just something that goes on in Colorado. In Kansas, disbarment used to be more or less automatic following a felony conviction. Nowadays, not so much. http://cjonline.com/news/2009-03-27/ex_prosecutor_begins_prison (Mr. Goodrich was a local prosecutor who was nabbed extorting cash and unspecified “favors” from a nudie bar. He was indefinitely suspended by our Supreme Court, in an unpublished decision that has not been made available on the internet.)
    The danger for all lawyers, not just solo practitioners, is that the process has become less predictable, less orderly. We used to have some clear idea of what the rules were and how to function within those rules. Now it appears that the rule of law is eroding in favor of local despotism and the rule of judges.
    This is a Bad Thing.

  • http://coloradolawcompass.com Peter Mullison

    This story struck fear into my heart, to be honest. First of all, I just filed my first case in this very district. Second of all, while not all of the details have been provided in this story, if one can be sanctioned for doing one’s job, I just wonder how one practices law without feeling constantly like the other shoe will one day drop.

  • http://coloradolawcompass.com Peter Mullison

    This story struck fear into my heart, to be honest. First of all, I just filed my first case in this very district. Second of all, while not all of the details have been provided in this story, if one can be sanctioned for doing one’s job, I just wonder how one practices law without feeling constantly like the other shoe will one day drop.

  • Mike Frisch

    Here’s a bar discipline case from Arizona that has some similarity–the hearing officer proposed a censure and probation for three years:
    http://www.supreme.state.az.us/dc/2009_scanned/HO_Reports/Hyams_HOrpt.2.pdf

  • Mike Frisch

    Here’s a bar discipline case from Arizona that has some similarity–the hearing officer proposed a censure and probation for three years:
    http://www.supreme.state.az.us/dc/2009_scanned/HO_Reports/Hyams_HOrpt.2.pdf

  • Mark Brennan

    THANK YOU! THANK YOU! THANK YOU, CAROLYN!!
    You have really made my month with your article! You gave a very complex situation a very thoughtful read and interpretation.
    I would like to suggest one correction: I was not sanctioned 75 times.
    The City accused me of 75-80 separate violations in its motion for new trial, consisting of (for the most part) forgetting to allow the judge to rule on an objection, instead of just impliedly withdrawing the question by moving on or changing it to make it unobjectionable, something good trial lawyers do all the time.
    Even Judge Blackburn dismissed their allegation of 75-80 violations as over the top.
    He actually only sanctioned me once, with a contempt citation when, during a bench conference, I attempted to explain, after he accused me of trying to bully him, that I was not, and had the greatest respect for him. He and Captain Queeg would get along well.
    A new trial cannot be granted as a sanction for misconduct. That is what contempt powers are for.
    A new trial can only be granted if, by clear and convincing evidence, the alleged misconduct unfairly influenced the jury.
    The judge never once identified ANY evidence that my alleged misconduct, which apparently enraged him, did not have a similarly negative effect on the jury.
    In other words, there was no evidence of any kind that my alleged misconduct did not ALSO alienate the jury.
    If it enraged the judge, it, to the degree logic governs, must have also alienated the jury.
    Yet, they decided in our favor. Far from supporting the judge’s bizarre inference of jury prejudice in our favor, this supports the inference that the jury decided in our favor DESPITE its prejudice against me!
    The Colorado Supreme Court effectively disbarred me as a favor to its friends in the City and County of Denver.
    The Chief Justice, Mary Mullarkey, is a good friend of Cole Finegan, who was City Attorney when I kicked the City’s butt, and is a mover and shaker, locally.
    The PDJ is a lapdog who will do whatever is required to preserve his sinecure. One of my Hearing Board members, Ed Kahn, is the longtime friend, mentor and partner of David Fine, the current City Attorney. I asked that he recuse himself because of his friendship and partnership with Fine. He refused, without explanation.
    I am a victim of a conspiracy to deprive me of my liberty and property without due process, but have no meaningful recourse.
    Under Younger abstention doctrines as usually applied in attorney ethics cases (Middlesex County Bar S. Ct. case), there is almost no chance the local federal court (where, after all, my problems originated) will allow my Section 1983 claims to proceed, even if I file them before Rooker-Feldman precludes it.
    The Colorado Supreme Court, to which I have appealed, directed the attorney regulation counsel to prosecute me despite the prosecuting attorney’s recommendation of dismissal for lack of evidence.
    The outcome of my show trial was predetermined, and the outcome of my appeal has already been determined, else I would not have been prosecuted.
    For my trouble in pursuing my appeal, I will have to spend $5000 for a transcript of a three-day trial (which would cost half that in a district court). I will lose on appeal.
    Even if they reduce the penalty, they will not exonerate me. So, in addition to the fraudulent bill of costs $3500 already submitted by the reg counsel, I will be hit with the cost of their transcript (another $3000?), plus, plus.
    I am therefore in the unenviable position, given the ridiculously low limit on indemnification for fees in my bar association-approved malpractice policy [only $10,000!], of looking forward to paying another $10,000 out of my pocket for the privilege of losing my appeal.
    All you solos out there: check your coverages. You will be horrified to find that, even if (as I had) you have unlimited defense costs coverage outside your policy limits for malpractice claims, the coverage for ethics charges is pathetically small.
    The CBA-sponsored insurance company never bothered to point that out to me. It also never occurred to me to worry about an ethics case, as I am scrupulous in my compliance with the rules of ethics, at least as I once understood them. Now I know that doing your very best for your client and winning big can be deemed, in Orwellian fashion, “interference with the administration of justice”, if your enemy has friends in high places.
    I have come to realize that, whereas I long naively thought of Colorado as an island of rectitude and probity, it is little better than a banana republic. Look around you. You may live in one, too!

  • Mark Brennan

    THANK YOU! THANK YOU! THANK YOU, CAROLYN!!
    You have really made my month with your article! You gave a very complex situation a very thoughtful read and interpretation.
    I would like to suggest one correction: I was not sanctioned 75 times.
    The City accused me of 75-80 separate violations in its motion for new trial, consisting of (for the most part) forgetting to allow the judge to rule on an objection, instead of just impliedly withdrawing the question by moving on or changing it to make it unobjectionable, something good trial lawyers do all the time.
    Even Judge Blackburn dismissed their allegation of 75-80 violations as over the top.
    He actually only sanctioned me once, with a contempt citation when, during a bench conference, I attempted to explain, after he accused me of trying to bully him, that I was not, and had the greatest respect for him. He and Captain Queeg would get along well.
    A new trial cannot be granted as a sanction for misconduct. That is what contempt powers are for.
    A new trial can only be granted if, by clear and convincing evidence, the alleged misconduct unfairly influenced the jury.
    The judge never once identified ANY evidence that my alleged misconduct, which apparently enraged him, did not have a similarly negative effect on the jury.
    In other words, there was no evidence of any kind that my alleged misconduct did not ALSO alienate the jury.
    If it enraged the judge, it, to the degree logic governs, must have also alienated the jury.
    Yet, they decided in our favor. Far from supporting the judge’s bizarre inference of jury prejudice in our favor, this supports the inference that the jury decided in our favor DESPITE its prejudice against me!
    The Colorado Supreme Court effectively disbarred me as a favor to its friends in the City and County of Denver.
    The Chief Justice, Mary Mullarkey, is a good friend of Cole Finegan, who was City Attorney when I kicked the City’s butt, and is a mover and shaker, locally.
    The PDJ is a lapdog who will do whatever is required to preserve his sinecure. One of my Hearing Board members, Ed Kahn, is the longtime friend, mentor and partner of David Fine, the current City Attorney. I asked that he recuse himself because of his friendship and partnership with Fine. He refused, without explanation.
    I am a victim of a conspiracy to deprive me of my liberty and property without due process, but have no meaningful recourse.
    Under Younger abstention doctrines as usually applied in attorney ethics cases (Middlesex County Bar S. Ct. case), there is almost no chance the local federal court (where, after all, my problems originated) will allow my Section 1983 claims to proceed, even if I file them before Rooker-Feldman precludes it.
    The Colorado Supreme Court, to which I have appealed, directed the attorney regulation counsel to prosecute me despite the prosecuting attorney’s recommendation of dismissal for lack of evidence.
    The outcome of my show trial was predetermined, and the outcome of my appeal has already been determined, else I would not have been prosecuted.
    For my trouble in pursuing my appeal, I will have to spend $5000 for a transcript of a three-day trial (which would cost half that in a district court). I will lose on appeal.
    Even if they reduce the penalty, they will not exonerate me. So, in addition to the fraudulent bill of costs $3500 already submitted by the reg counsel, I will be hit with the cost of their transcript (another $3000?), plus, plus.
    I am therefore in the unenviable position, given the ridiculously low limit on indemnification for fees in my bar association-approved malpractice policy [only $10,000!], of looking forward to paying another $10,000 out of my pocket for the privilege of losing my appeal.
    All you solos out there: check your coverages. You will be horrified to find that, even if (as I had) you have unlimited defense costs coverage outside your policy limits for malpractice claims, the coverage for ethics charges is pathetically small.
    The CBA-sponsored insurance company never bothered to point that out to me. It also never occurred to me to worry about an ethics case, as I am scrupulous in my compliance with the rules of ethics, at least as I once understood them. Now I know that doing your very best for your client and winning big can be deemed, in Orwellian fashion, “interference with the administration of justice”, if your enemy has friends in high places.
    I have come to realize that, whereas I long naively thought of Colorado as an island of rectitude and probity, it is little better than a banana republic. Look around you. You may live in one, too!

  • Erik

    Mike,
    He fabricated an appellate record. What part of ‘candor to the tribunal’ is even remotely arguable?

  • Erik

    Mike,
    He fabricated an appellate record. What part of ‘candor to the tribunal’ is even remotely arguable?

  • http://www.defamationlawblog.com Adrianos Facchetti

    I agree with Peter Mullison’s comment above. I also recently filed a case in Colorado. I sure hope that this type of situation is not commonplace in Colorado–I presume that it’s not.

  • http://www.defamationlawblog.com Adrianos Facchetti

    I agree with Peter Mullison’s comment above. I also recently filed a case in Colorado. I sure hope that this type of situation is not commonplace in Colorado–I presume that it’s not.

  • http://www.valanduseconstructionlaw.com Timothy R. Hughes

    From the article linked:
    “At one point, Brennan accused Blackburn’s clerk’s father — who hails from the South — of being a member of the Ku Klux Klan and called the disciplinary panel a “kangaroo court.”"
    Is this accurate? I am curious, if the answer is yes, what other things were said? I am going to hold off on judgment beyond saying that part of zealous advocacy is figuring out how to reach and persuade judges, not piss them off.

  • http://www.valanduseconstructionlaw.com Timothy R. Hughes

    From the article linked:
    “At one point, Brennan accused Blackburn’s clerk’s father — who hails from the South — of being a member of the Ku Klux Klan and called the disciplinary panel a “kangaroo court.”"
    Is this accurate? I am curious, if the answer is yes, what other things were said? I am going to hold off on judgment beyond saying that part of zealous advocacy is figuring out how to reach and persuade judges, not piss them off.

  • Mark Brennan

    Hi, Timothy:
    The Denver Post is a complaisant mouthpiece for the corrupt Democrat cabal that runs the City of Denver.
    The Post article is willfully inaccurate in many respects. The Post reporter had all the facts, but deliberately distorted or misreported them, so as to portray me in a false light.
    I did not “accuse” her father of being a Klan member.
    I asked the clerk, a redneck from Alabama, whether her Daddy was a Klan member, in order to explore the reason for her otherwise inexplicably deep-seated hostility to me (a plaintiff’s civil rights lawyer).
    This was fair exploration of personal bias, and should have been permitted. The Klan once ran Colorado, and I suspect the federal judge for whom she works is descended from Klan members.
    The PDJ, a moronic lapdog of my enemies who had already made plain his predetermination of the case, rescued her from having to answer.
    From the look on her face when I asked the question, I believe the truthful answer would have been, “Yes.”
    My job in the federal trial was not to please a corrupt judge who was doing his best to defeat me, but to persuade the jury of the justice of my client’s cause. I did so, extremely successfully.
    The ethics trial was a Stalinist show trial, orchestrated by the City of Denver and its friends in the Colorado Supreme Court to make an example of me to any other small firm or solo atty. who would, as I did, see the corrupt and arrogant City of Denver as a fat target.
    It is natural (indeed, one of the greatest weaknesses to which lawyers often succumb) to want to believe that the same thing could not happen to you because you are so much more intelligent and attuned to the subtleties of trial practice.
    Don’t kid yourself.
    I won the case, REALLY BIG, because I grasp the subtleties of trial practice very well, and tried the case, for the most part, masterfully well.
    The City’s lawyer’s did not. That contributed to their humiliating loss, from which a corrupt federal judge rescued them, probably in exchange for favors the City, with its power to dispense billions in contracts and other favors to major forces in both parties, did for his powerful masters.
    We have the best system of justice, and government, money can buy. That is the reality, not that I am, as unjustly portrayed by my enemies, a buffoon.
    If, however, it is too debilitating to accept that our system never has provided, and never will provide, “Equal Justice for All”, please continue in your self-delusion. It is an essential characteristic of any advocate for the little guy. I too once suffered from it. No more.
    Best regards,
    Mark

  • Mark Brennan

    Hi, Timothy:
    The Denver Post is a complaisant mouthpiece for the corrupt Democrat cabal that runs the City of Denver.
    The Post article is willfully inaccurate in many respects. The Post reporter had all the facts, but deliberately distorted or misreported them, so as to portray me in a false light.
    I did not “accuse” her father of being a Klan member.
    I asked the clerk, a redneck from Alabama, whether her Daddy was a Klan member, in order to explore the reason for her otherwise inexplicably deep-seated hostility to me (a plaintiff’s civil rights lawyer).
    This was fair exploration of personal bias, and should have been permitted. The Klan once ran Colorado, and I suspect the federal judge for whom she works is descended from Klan members.
    The PDJ, a moronic lapdog of my enemies who had already made plain his predetermination of the case, rescued her from having to answer.
    From the look on her face when I asked the question, I believe the truthful answer would have been, “Yes.”
    My job in the federal trial was not to please a corrupt judge who was doing his best to defeat me, but to persuade the jury of the justice of my client’s cause. I did so, extremely successfully.
    The ethics trial was a Stalinist show trial, orchestrated by the City of Denver and its friends in the Colorado Supreme Court to make an example of me to any other small firm or solo atty. who would, as I did, see the corrupt and arrogant City of Denver as a fat target.
    It is natural (indeed, one of the greatest weaknesses to which lawyers often succumb) to want to believe that the same thing could not happen to you because you are so much more intelligent and attuned to the subtleties of trial practice.
    Don’t kid yourself.
    I won the case, REALLY BIG, because I grasp the subtleties of trial practice very well, and tried the case, for the most part, masterfully well.
    The City’s lawyer’s did not. That contributed to their humiliating loss, from which a corrupt federal judge rescued them, probably in exchange for favors the City, with its power to dispense billions in contracts and other favors to major forces in both parties, did for his powerful masters.
    We have the best system of justice, and government, money can buy. That is the reality, not that I am, as unjustly portrayed by my enemies, a buffoon.
    If, however, it is too debilitating to accept that our system never has provided, and never will provide, “Equal Justice for All”, please continue in your self-delusion. It is an essential characteristic of any advocate for the little guy. I too once suffered from it. No more.
    Best regards,
    Mark

  • Peter

    Mark,
    You have experienced what I believe sadly is the norm of the Colorado Judicial Branch. It has become so flagrant and the “players” so comfortable in their roles that there is no possibility of correcting it. Think about it. What can you or anyone possibly do to overcome the corruption that has become so deeply imbeded in every facet of our government. Yes, you can try and fight it, but for what purpose? Unless you resign yourself to the role of bending your knee and bowing your head; life will be very difficult for you as an attorney in Colorado. The system will eventually collapse but until then, I see no valid remedy other than standing on the side line and watch it happen. Your experience is yet another example of the rapid implosion of the U.S.. Here’s wishing you only the best in whatever direction you head.

  • Peter

    Mark,
    You have experienced what I believe sadly is the norm of the Colorado Judicial Branch. It has become so flagrant and the “players” so comfortable in their roles that there is no possibility of correcting it. Think about it. What can you or anyone possibly do to overcome the corruption that has become so deeply imbeded in every facet of our government. Yes, you can try and fight it, but for what purpose? Unless you resign yourself to the role of bending your knee and bowing your head; life will be very difficult for you as an attorney in Colorado. The system will eventually collapse but until then, I see no valid remedy other than standing on the side line and watch it happen. Your experience is yet another example of the rapid implosion of the U.S.. Here’s wishing you only the best in whatever direction you head.

  • http://www.facebook.com/people/Craig-Buckley/100000152383239 Craig Buckley

    Weld County Colorado District Attorney Ken Buck will not stop harassing me, and my
    family. Please Help.
    Thank You,
    Craig Buckley
    Details at: http://www.corruptkenbuck.com

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