The Colorado Supreme Court discipline committee that dismissed an inquiry into former Chief Justice Nathan “Ben” Coats’ professional conduct need not have recused itself from that decision even though nearly all the members of the panel were appointed by him, according to a legal ethics expert.
What’s more, a rule that specifically requires members of the court’s Legal Regulation Committee to disqualify themselves from any case “in which a judge, similarly situated, would be required” to do the same doesn’t necessarily apply, according to Eli Wald, a professor at the University of Denver’s Sturm School of Law.
At least six of the 11 members who sit on the committee — eight members are lawyers — were appointed by the Supreme Court while Coats was its chief justice; four were appointed while he was a member of the court. Several worked closely with him in other capacities with the court. Each is appointed to a 7-year term on the committee.
“This is not to say that our disciplinary system is perfect,” Wald told The Denver Gazette when asked to review the matter. “There is always room for growth and improvement, but in this instance, it seems the system worked reasonably well.”
Some questioned how the committee’s decision could avoid the appearance of any conflict of interest, especially in light of a rule the Supreme Court recently adopted for itself that mandates the justices step down from any discipline matter that involves them, a family member or even a former colleague such as Coats.
The committee’s job is to review misconduct allegations against any licensed attorney in Colorado and recommend formal proceedings to the Office of Attorney Regulation Counsel, which oversees the licensing process.
The OARC in 2021 hired an outside investigator to examine allegations that Coats, while chief justice, had approved a multi-million-dollar contract to silence a Judicial Department executive who was being fired for financial irregularities. If fired, the executive, Chief of Staff Mindy Masias, threatened a tell-all sex-discrimination lawsuit that would also reveal years of judicial misconduct that went unreported or was handled lightly.
The allegation came from former State Court Administrator Christopher Ryan, who resigned when a newspaper investigation in 2019 uncovered the contract deal and, in 2021, the existence of a secret memo that laid out the alleged misconduct by the judges and the alleged quid pro quo arrangement. The memo was read to Coats during a meeting that led to the contract.
Two other outside investigations, both paid for by the Judicial Department, have already concluded Coats did not directly approve the contract and was merely the unwitting accomplice in a complex deal that they say Ryan helped engineer. The investigations, including the one commissioned by the OARC, concluded Coats was a poor administrator who let a “dysfunctional and toxic” work environment permeate the State Court Administrator’s Office he was supposed to oversee.
Ryan has consistently maintained his allegation and that the outcome of all the investigations — seven were launched — were designed "to protect the robes."
The investigators hired by the OARC submitted their findings and recommendations to the committee, which determined there wasn’t “clear and convincing” evidence to prove the quid pro quo allegation.
The committee did slam Coats for not reporting the apparent misconduct of two unidentified Judicial Department lawyers involved in the contract deal — it doesn’t say whether they are being investigated or disciplined for that conduct — a violation of his professional conduct promise. But the committee ultimately decided not to discipline Coats for any of it.
The investigator’s report is secret, according to the rules surrounding attorney discipline, as are the recommendations.
Some critics quickly said the same conflict-of-interest concerns that caused the Supreme Court to issue its new disqualification rule should have influenced the committee to recuse itself from the Coats matter. There are no provisions in the committee’s rules for when that happens.
Ten of the 11 members of the committee that rendered the decision, including its chairman, Boulder defense attorney Steven Jacobson, were appointed by Coats and other members of the current Supreme Court, according to annual reports by the Office of Attorney Regulation Counsel.
Coats retired in December 2020 after twenty years on the court, the last three as its chief justice.
And while Jacobson has held the chairmanship of the regulation committee since at least 2016 — committee chairmen and vice-chairmen can be appointed twice for a total of 14 years — he also sat alongside Coats as a member of the court’s influential Advisory Committee going back to at least 2003, records show.
What’s more, the committee’s rules require any decision to be made by at least a quorum, or majority, of its membership, or six of them.
If the decision about Coats was instead made by a quorum, at least five of the six would have been appointed to the job by Coats or a Coats-led court, records show.
Wald said he didn’t think there was enough reason for the committee to step aside. He is a member of the Colorado Supreme Court committee on the state Rules of Professional Conduct, a member of the Colorado State Bar Association’s ethics committee, and a member of the Colorado Judicial Ethics Advisory Board.
“I believe that the OARC handled the matter appropriately,” Wald said. “Although not required by the applicable rules, the office retained out-of-state investigators to avoid the appearance of impropriety. Review of the investigators’ findings by the committee was appropriate because the disqualification provision does not apply. Moreover, it ought not to apply.”
Wald explained that committee appointments by the Supreme Court should “not suffice as a basis to disqualify members reviewing allegations against one former court member.”
If the committee had recused itself, the only apparent alternative would be another group of people appointed by the Supreme Court to temporarily take its place, fostering the same questions.
“It’s unclear that disqualification would address theoretical concerns about the appearance of impropriety,” Wald said.