In re Foster
253 P.3d 1244
| Colo. | 2011Background
- Foster, a Colorado attorney admitted in 1991, engaged in a lengthy post-dissolution, pro se litigation campaign against his former wife Nunn.
- The record spans approximately 12 years with around 630 district court transactions, plus probate, civil, and criminal proceedings and nine appellate appeals.
- OARC investigated Foster in 2007 and recommended charges for frivolous actions and conduct prejudicial to the administration of justice, which the ARC authorized and the OARC filed.
- Foster moved for summary judgment asserting his First Amendment right to petition and arguing POME governs whether his conduct was protected.
- The PDJ held POME inapplicable to attorney discipline, while the Board concluded that certain Sixth Appeal bias claims were frivolous and that aggregate conduct was prejudicial, leading to sanctions.
- The Court unanimously held that First Amendment rights extend to pro se advocacy by an attorney, that POME framework applies to attorney discipline, and remanded for redetermination of sanctions for a single proven violation while dismissing the aggregate conduct and sixth-appeal valuation issues from discipline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the First Amendment protect pro se attorney petitioning conduct in discipline? | Foster's pro se petitions are protected; Board misapplied law. | State may regulate attorney conduct, potentially reducing First Amendment protections. | Yes; conduct is protected; Board erred. |
| Should POME be applied to attorney discipline and require OARC to show non-protected conduct on summary judgment? | POME applies; OARC must show non-protected conduct. | POME not applicable or unnecessary in discipline. | POME applies; OARC must make prima facie showing. |
| Was Foster's aggregate conduct of the entire litigation non-frivolous such that it could be punished under 8.4(d)? | Aggregate conduct was protected as not objectively baseless. | Aggregate conduct prejudicial; likely frivolous/public policy concerns. | Protected; aggregate conduct not sanctionable on First Amendment grounds; charges dismissed. |
| Was Foster's sixth appeal bias claim frivolous and subject to discipline? | Bias claims were legitimate and not frivolous. | Bias claims were duplicative and meritless. | Frivolous and unprotected; affirmed sanction for bias claim; remanded for sanctions on the single other count. |
Key Cases Cited
- Button v. NAACP, 371 U.S. 415 (1963) (state may not suppress First Amendment rights under guise of discipline)
- United Mine Workers v. Pennington, 381 U.S. 657 (1965) (sham exception requires objective baselessness and subjective improper motive)
- Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49 (1993) (two-prong sham test: objective baselessness and subjective improper motive)
- BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002) (retaliatory lawsuits must be objectively baseless to fall outside First Amendment protection)
- Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859 (Colo. 2004) (adopts sham framework in Colorado context)
- In re Green, 11 P.3d 1078 (Colo. 2000) (First Amendment protections in professional conduct contexts)
- In re Trupp, 92 P.3d 923 (Colo. 2004) (disciplinary proceedings and due process considerations)