Dozens of lawsuits filed against lawyers across Colorado — including malpractice cases whose plaintiffs are themselves lawyers — have been hidden from the public for years, keeping secret the details of any alleged misconduct and misdeeds.
The lawsuits have been suppressed, at least one of them forever, by the judges who presided over them and typically at the request of the lawyers being sued, The Denver Post found. The bulk were sealed at the time a settlement was reached, records show.
In several cases, The Post learned, the defendant lawyers were concerned that potentially negative information about them could be made public — one worried that future clients would avoid her because of the allegations in the lawsuit — according to interviews and copies of documents from several suppressed cases shared with the newspaper.
The array of alleged misconduct in the suppressed cases The Post reviewed is broad: misappropriating client cash; lying to the court; overcharging and over-billing clients; hiding assets; careless advice that impacted a lawsuit’s outcome.
In all, The Post found at least 38 suppressed lawsuits that were filed against attorneys in the past five years that, according to interviews and court records, alleged some type of misconduct and were ultimately settled. It’s unclear how many more exist because the state’s court system doesn’t uniformly categorize malpractice cases.
It’s difficult to assess the reasons the cases were suppressed, or if the reasons were even legitimate, because the judges’ orders to close them, as well as the lawyers’ requests to have them restricted from the public, are also suppressed and not open to inspection.
But the few cases from which The Post was able to obtain information indicate a process that doesn’t always adhere to the rules and one where attorneys and judges appear to protect each other.
In one instance, a district judge suppressed a case after the lawyers said the public couldn’t be trusted to read beyond the lawsuit’s initial complaint, which allegedly contained errors that were corrected in a subsequent filing. The lawyers also argued said the allegations in the case might cause the public to inquire further about their private business.
The Post also learned that judges often won’t question a request to suppress a lawsuit because lawyers on both sides of the case had already agreed to have it closed, contrary to rules that dissuade the practice, according to several attorneys who specialize in legal malpractice cases. The reason, they say, is to help speed cases through a clogged court system.
“If it wasn’t suppressed,” attorney Richard Rufner told The Post, “you couldn’t get it settled.”
And it apparently happens with some frequency.
“The courts will rubber stamp and suppress a case, usually every time it’s requested,” said Rufner, refusing to speak specifically about cases he’s handled because it would violate a judge’s suppression order. “And they pretty much do it when reputations can be tarnished if the allegations (against the defendant attorney) get out.”
The practice of suppressing legal malpractice cases in Colorado is in stark contrast to those alleging medical malpractice, which attorneys say are rarely closed to the public and, by law, must be reported to state regulators if there is a settlement or verdict of any kind.
That’s also true of lawsuit settlements and verdicts against podiatrists, pharmacists, optometrists, physical therapists, architects and even plumbers licensed in Colorado.
But not lawyers.
“Most lawyers want this sort of thing buried; they don’t want legal malpractice claims made public, and there’s a laundry list of concerns, but it’s the public-relations aspect of it most,” attorney Michael Mihm said. “We don’t have this problem suing doctors, but the legal profession is very protective of its own, and it’s not socially acceptable to sue brother and sister lawyers.”
That means no one — not a potential client researching an attorney they’d like to hire or a prospective employer looking to bring the lawyer on board — can learn of the allegations against them or how the suppressed lawsuit was ultimately handled.
And until a few weeks ago, the suppressed lawsuits didn’t appear on any Colorado courthouse computer provided for public use. It was as if they didn’t exist at all.
The Post reported in July that thousands of criminal and civil cases were suppressed and have remained hidden from public view in just the last five years, dozens of them felonies for which defendants were convicted and sent to prison.
The state’s Judicial Department computer system couldn’t tell the difference between a suppressed case and one that was sealed under specific rules. The system has treated them the same for the past 18 years, The Post has since learned, and kept all the cases hidden.
Although the computer problem has been rectified and the names of criminal defendants and parties to a lawsuit are available publicly, the cases themselves and the details within them still cannot be inspected.
The Post was able to learn of the details surrounding a few suppressed legal malpractice cases because portions of them were brought before the Colorado Court of Appeals, where cases are not suppressed except for specific instances involving abortions for juveniles.
“Cases are not suppressed because the court is dealing with the law and not the facts,” said Christopher Ryan, Colorado’s state court administrator. “In my 10 years here, I cannot recall a time when an attorney has requested an appeal be suppressed.”
Similarly, Supreme Court cases are not suppressed even if the underlying case is, Ryan said.
Nearly every suppressed legal malpractice case reviewed by The Post was settled by the parties, most of them clients suing their lawyer. Experts in the field say a settlement cannot require that a case be suppressed from the public, although the terms of a settlement can be kept confidential. To side-step the restriction, plaintiffs will not object if a defendant files a separate request to keep the case closed to the public.
“It may be a trade-off that a plaintiff makes in the interest to get a case settled,” Mihm said. “If they want it suppressed, it’s no sweat off my back. Personally, I’d like to see far fewer confidentiality provisions in settlement agreements, and see the judges rigorously apply the rules for suppressing cases.”
In one lawsuit that was dismissed in 2009 and kicked back on appeal a year later, attorney John Evans of Parker was accused of taking advantage of an elderly client. Evans eventually lost the Douglas County case for $180,000 in 2013 and, court records show, it was suppressed shortly afterward.
Evans filed for bankruptcy protection four months later and the judgment has gone unpaid, records show.
Evans did not respond to efforts by The Post to reach him.
The Colorado Attorney Regulation Counsel, which oversees lawyer conduct and discipline, eventually suspended Evans’ law license in March 2015 for eight months over conduct not related to the lawsuit — a penalty it set aside as long as Evans stayed out of trouble for 18 months.
It’s unclear whether the ARC ever learned of Evans’ conduct alleged in the lawsuit as that agency’s investigations are confidential.
And Evans is not required to tell them, either.
“I would love to see it where settlements and judgments of legal malpractice lawsuits are automatically reported to the state,” Rufner said. “There’s a lot of bad conduct now that’s not in the public eye and should be.”
Evans’ case is an anomaly, where the public gets a glimpse of the charges levied against an attorney within a suppressed lawsuit because of an appeal. The majority never reach an appellate court.
The Post found a number of lawsuits against attorneys are even closed to the public from the day they are filed.
That’s what happened when Denver attorney Bennett Aisenberg sued fellow attorney Douglas Romero in Denver District Court in July 2017.
Aisenberg told The Post that the case was over unpaid legal fees stemming from having represented Romero in several matters, including before the state’s attorney disciplinary board.
Romero’s law license was suspended for five months starting in February 2017, and he was placed on a three-year probationary period for a variety of misdeeds against clients, including charging too much money from an immigrant he had convinced to plead guilty to a felony sex-assault charge. The client did, then changed his mind and was acquitted using a different attorney, Regulation Counsel records show.
So why ask to suppress his lawsuit against Romero from the public? Aisenberg said that to make his case, information typically protected by attorney-client privilege would have to be revealed and could cause Romero additional problems, such as further disciplinary charges.
“The whole basic idea is I didn’t want to get him into any other trouble other than the attorney fees, out of consideration for him, and to be sure I wasn’t violating any rules of ethical conduct,” said Aisenberg, a former president of the Colorado Bar Association and member of its ethics committee.
The suppression order from Denver District Judge Robert McGahey Jr. was nearly automatic and without a hearing, according to public records of the court’s actions in the case.
“If the court had said no, I’d not have been the least offended,” Aisenberg said. “And it’s discretionary to the court, and courts in most of these cases will say, ‘If you want suppression, we’ll give it to you.’ ”
Romero did not respond to Denver Post efforts to reach him.
About 200 malpractice cases of all kinds are filed in Colorado courts each year, according to Judicial Department annual reports, but that doesn’t account for all the cases that allege misconduct, officials say. Those could be classified as cases involving a breach of contract or the collection of money, among other things, attorneys say.
For the same reason, it’s difficult to quantify how many legal malpractice cases are suppressed each year, but getting one closed appears to be easier than the rules indicate it should be.
“If you have a stipulation for a settlement and there’s a request to suppress the case, judges aren’t going to buck the parties in an unopposed motion to do anything,” said attorney Andrew Oh-Willeke, whose practice is about 20 percent legal malpractice cases. “Maybe one judge in 10 would be concerned and have a hearing, but 90 percent of the time, the judge won’t look at it, (want) it off the docket, rubber stamp it, and go.”
But Colorado’s rules of civil procedure, the courtroom directives for how the legal process is supposed to work, has a very specific set of criteria that must be met in order to suppress a case from the public.
Rule 121, as it’s known, lays out the framework to limit access to court files:
- One of the parties must ask for the suppression, and the order shall specify why the case is being closed and how long it will remain that way.
- The judge must find that “the harm to the privacy of a person in interest outweighs the public interest.”
There are several decisions by the state Supreme Court and Court of Appeals that delineate the legitimate reasons for suppressing a case, the most prominent from 1996 in which the appeals court ruled that simply saying a case contains personal information isn’t enough to close it.
“The fact that the parties may claim that a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file,” the court wrote in Anderson vs. Home Insurance Company. “Prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.”
The Anderson case was a medical malpractice lawsuit in which the plaintiff sought access to information from a different suppressed lawsuit involving the same doctor. The appeals court, ruling in Anderson’s favor, made a point to talk about the public’s right to access information.
A medical doctor charged with malpractice would not be entitled to have the case sealed from public access if the doctor “failed to demonstrate how any possible harm to (their) reputation would differ from the possible harm that might be suffered by any other professional sued for malpractice,” the court wrote. “If the charge is proven accurate, the public should have access to that information; if the charge if unfounded, the public should be made aware of that fact, as well.”
Though Anderson was about medical malpractice, and is a key reason those types of cases are rarely suppressed, the appellate court decision applies to all lawsuits in which anyone seeks to suppress information.
The appellate court also made clear that any suppression request should not be rubber-stamped.
“We do hold … that a court cannot enter a limited access order based solely upon an agreement between the parties to the litigation,” the court held. “If the evidence does not support the required finding under (Rule 121), no such order may be entered.”
Lawyers asking to suppress lawsuits against them often have said “potentially defamatory information” could be in the court records, according to documents from cases shared with The Post. The appellate court in the Anderson decision said that could be a valid reason to restrict a lawsuit from the public.
“Generally … a heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated,” the court wrote.
Sometimes, The Post found, a judge does take the time to evaluate a request to suppress a case, only to fall off track.
“Ordinarily, the court sees no basis or justification for suppressing or sealing a legal malpractice case, just as the court sees no basis for suppressing or sealing a medical malpractice case,” wrote one Denver judge in a suppression order issued in 2013. “The fact that a lawyer, physician, or other professional has been sued does not, standing alone, warrant limiting public access to a court file.”
Nevertheless, the judge on his own chose to suppress the entire case rather than separate documents within it for a reason no one had even suggested: The lawsuit contained emails between the plaintiff and the lawyers who were being sued, which the judge deemed as protected attorney-client privilege.
Lawyers who spoke to The Post say suppressions are often too broad and too frequent.
“As an attorney, I’m representing a client in legal malpractice, and they are offering … to have it settled and insisting on confidentiality, which they almost always do,” Mihm said. “More rarely, they actually, for one reason or another, want the whole file suppressed, and I’ve had occasions where I’ve said I don’t see how it complies (with the rules) … and the judge simply rubber-stamps it.”
