Carol Chambers Under Investigation Again

Controversial 18th Judicial District Attorney Carol Chambers, a Republican, is known for her penchant for a hard line approach to crime, her poor relationship with the judges in her district, and a public censure for unethical conduct prejudicial to the administration of justice in connection with her communications with a collections attorney.

Now, she is under investigation again by the body that regulates attorney ethics for allegedly making a “veiled threat” against a judge in an e-mail, according to the Denver Post and its TV news partner, 9News. One of the key e-mails, dated April 17 says that:

[P]reventing problems is much better than trying to clean up the mess after the fact. Since we tend to get the blame when things go wrong, I want to be on record as saying that if a judge shows overt hostility toward the People, any given attorney, or makes inappropriate comments concerning the cases, the victims, trial loads etc., there absolutely will be docket control problems in that division.

There is a right way and a wrong way to deal with a judge who you feel isn’t giving you a fair shake.  The right way is to file a grievance with the body that disciplines judges who act inappropriately (without threatening in advance to do so), and to seek relief from appellate courts where a trial is impaired by a judge’s actions.  A threat to swamp a particular judge with work in an effort to get your way is essentially a threat to engage in frivilous litigation conduct in order to get what you want, without regard to whether your complaint is or is not justified.

A tit for tat “don’t play nice” approach may work when dealing with another lawyer or law firm with a history of misconduct in private pratice.  It doesn’t work well with judges, whom lawyers have a limited ability to punish, and who have expansive powers to retalite with impunity against lawyers.

The ethics charge is, however, a close call.  While threating a criminal or administrative actions to gain advantage in a civil matter is a clear violation of the Colorado Rules of Professional Conduct, Chamber’s office deals with criminal cases, and her threat is essentially to gum up the system and make life unpleasant for the judge, not to personally impair the judge financially or personally.

One of the rules likely implicated in this case states:

A lawyer shall not:
  (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
  (b) communicate ex parte with such a person except as permitted
  by law; or 
  (c) engage in conduct intended to disrupt a tribunal.

The official commentary to that rule states:

A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate.

Here, the means implied in the e-mail are not clear, but the e-mail itself could be considered “conduct intended to disrupt a tribunal.”  Indeed, to the extent that “conduct intended to disrupt a tribunal” is itself something prohibited by law, the e-mail may be an attempt to influence a judge by means prohibited by law.

Lawyers are also subject to an ethical rule similar to the “conduct unbecoming an officer” rule of military justice.  It provides a variety a rather vague grounds for prosecutions of ethical violations by attorneys including the following:

It is professional misconduct for a lawyer to: . . .

violate or attempt to violate the rules of professional
conduct, knowingly assist or induce another to do so, or do so through the act of another; . . .

engage in conduct that is prejudicial to the administration of justice; . . . 

state or imply an ability to influence improperly a judge, judicial officer, government agency or official; . . .

engage in conduct which violates accepted standards of legal ethics; or . . .

engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.

The official commentary to this rule notes that:

Lawyers holding public office assume legal responsibilities going beyond those of other citizens.  A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of an attorney.

The Colorado Supreme Court, which has a 5-2 split between judges often considered liberal in the majority, and judges often considered conservative in the minority.  If the Colorado Supreme Court is sufficiently offended by this kind of overture towards a judge, it could sanction Chambers under this general provision, rather than the more specific provision related to impartiality of the tribunal.  This is what happened the last time she received a public censure.

The stakes are high because Carol Chambers is already in the almost unprecedented position of receiving a public censure for ethical violations while holding office as a District Attorney.  The Colorado Supreme Court views repeat ethics violators who commit one violation after another in a short period of time particularly dimly, so a finding of a violation in this case could easily result in a suspension of Carol Chamber’s license to practice law for a limited period of time.  A disbarment would be unlikely for this kind of ethical breach, even if it is found to be an ethical breach by a court.

Also, strategically speaking, the e-mail is simply dumb.  The reality is that in Colorado it is virtually impossible to remove a judge from office absent truly egregious conduct (like having sex with litigants who appear before you in a case).  But, the e-mail that Chambers sent is far more likely to encourage every judge to doubt the credibility of Chambers and her deputy district attorneys, and to deny her office the benefit of the doubt and a presumption of good faith, than it is to produce favorable rulings for the People in criminal cases.  It is very hard to intimidate a judge.

The District Attorney’s office admits to sending the e-mail (sensibly, as it would be hard to deny) and has defended its actions.  According to the Post that D.A.’s spokesperson said:

I do not believe this is an instance where the elected District Attorney is innocuously trying to be helpful and ‘prevent problems,’ but rather a blatant attempt to intimidate this judge and any other judge now and in the future, who issues rulings perceived as unfavorable to the district attorney or admonishes one of the attorneys.

Chambers herself said:

I am not trying to threaten anyone.  I’m trying to solve a problem that’s observable and statistically based within our courthouse.

In the law, however, being right isn’t everything.  Lawyers have to both show that they are right and win by legally acceptable means.

Suburban Denver’s Douglas and Arapahoe counties are both part of the 18th Judicial District.

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Andrew Oh-Willeke

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