No Retroactive Sanction In Reciprocal Discipline Matter

From the web page of the Colorado Presiding Disciplinary Judge

Turning to the crux of this dispute, the Court considers whether Respondent’s suspension should be made retroactive to the effective date of his suspension in Arizona. Respondent argues, in essence, that Colorado’s reciprocal discipline should be coterminous with his original Arizona discipline. But nothing in C.R.C.P. 242.21 supports Respondent’s contention that the rule precludes a period of suspension from taking effect after entry of a final reciprocal discipline decision in Colorado, whether that final decision enters before or after he has served the Arizona suspension. The Court also disagrees with Respondent’s interpretation of C.R.C.P. 242.21(b)(6). He argues that subsection, which prohibits imposing reciprocal discipline during a period when the original discipline has been stayed pending appeal, “suggests a requirement” that the two sanctions run concurrently with each other. But that provision is not intended to guarantee concurrent periods of discipline in different jurisdictions; instead, it safeguards due process and judicial economy by ensuring that Colorado does not impose reciprocal discipline for misconduct that has not been fully adjudicated in the other jurisdiction. In short, Respondent has not shown that C.R.C.P. 242.21 entitles him to the relief he seeks.

Because the rule governing reciprocal discipline provides no purchase for Respondent’s argument, the Court consults case law concerning retroactive imposition of reciprocal discipline. Discipline is rarely imposed retroactively in Colorado, and only when certain factors—not applicable in this case—are met. As a point of contrast, however, the Court observes that reciprocal discipline has been retroactively imposed in Colorado when doing so aligns with the purposes of reciprocal discipline. For instance, In re McKee was a lawyer’s second reciprocal discipline case stemming from discipline imposed in Arizona, where the lawyer had been suspended in two separate matters. The Colorado Supreme Court imposed reciprocal discipline in the form of a two-year suspension. Because the lawyer’s second suspension in Arizona retroactively began on the effective date of his first suspension in that state, the McKee court ordered that the lawyer’s two-year suspension in Colorado likewise begin on the effective date of his first reciprocal sanction “to make the Colorado discipline as similar as possible to that imposed in Arizona . . . .”  And in People v. Reade, this Court approved a stipulation to reciprocal discipline in December 2017; there, the parties agreed to retroactively begin a three-year period of suspension on June 25, 2014, the date when the lawyer was temporarily suspended in Nevada. In making the term of suspension retroactive, the parties took into account that the lawyer’s Nevada suspension retroactively took effect on June 25, 2014; that more than three years elapsed between the lawyer’s temporary suspension in Nevada and the final adjudication of his case in that state in November 2017; that the lawyer had also been under a period of immediate suspension in Colorado for the Nevada misconduct since September 2014; and that the lawyer had cooperated with disciplinary authorities in Nevada and in Colorado.

In this case, however, Respondent does not offer a compelling reason for the Court to retroactively impose reciprocal discipline. Arizona did not impose its discipline retroactively. And Respondent does not allege that this proceeding was delayed such that the prospective imposition of his suspension would be unjust. Indeed, were the Court to grant Respondent’s request, it would effectively relieve him from serving any portion of his reciprocal suspension. Such a result would undermine the purposes of reciprocal discipline: that Colorado impose the same discipline as the lawyer did in the originating jurisdiction imposed.

(Mike Frisch)