Denver Bar Association
April 2010
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State Mandates Drug Testing for Attorneys

by Becky Bye



As members of a highly regulated profession, lawyers must act in the utmost ethical manner at all times, even in matters beyond their professional duties. Accordingly, the Colorado Legislature recently passed a series of bills that adds more regulatory requirements for attorneys and other professionals.

House Bill 0401 addresses the substance abuse rates for attorneys, in light of recent "medical" marijuana rulings. Legislators approved mandatory drug testing for attorneys licensed in the State of Colorado. Citing the "growing trend of substance abuse" and the need for "attorneys to represent their clients, particularly in the Colorado court system, with the utmost professional care and coherency," the measure requires that all licensed attorneys submit to random drug testing.

The first part of the measure calls for attorneys to submit to random drug sampling via urine tests before representing clients in all Colorado courts. The measure also appropriates $1 million per year for a new, part-time position at each courthouse, titled "attorney substance abuse specialist." The specialists will work two days per week at each courthouse and approach attorneys, at random, in the courthouse before a proceeding, provide them with a urine vial, and acquire a urine sample to test for illegal drugs that have been proven to impair an attorney’s ability to represent his or her client.

Because the state legislators recognized that a large percentage of licensed attorneys rarely visit courtrooms to represent their clients, the second part of the measure requires that, once every quarter, transactional attorneys must visit the newly-formed "Professional Substance Control Office" to provide urine samples. The Professional Substance Control Office will provide general oversight of the new substance control initiatives for all professionals. Therefore, due to the potentially long lines of attorneys, physicians, accountants and other regulated professionals, transactional attorneys are advised to schedule the urine sampling appointments at least one month in advance. For various reasons, judges are excluded from the test.

Passing by a 33 to 32 vote, the measure naturally invokes much scrutiny from other legislators, attorneys and Colorado citizens. Many opponents argue that general privacy rights prohibit such an invasion. Other critics point out that with the ongoing Colorado budget crisis, lawmakers made a poor decision to devote $1 million of taxpayer funds to subsidize "attorney substance abuse specialists," and an additional undisclosed amount to open a Professional Substance Control Office during these dire economic times. Of course, many attorneys also believe that the mere notion of random drug testing is ridiculous and cumbersome to all involved in the process.

Impassioned proponents of the bill say that this bill should have been passed decades ago to bring about more professionalism, accountability and transparency within the legal profession. One of the members of the house who voted for the bill, agreed to comment anonymously. He said that the measure, "will aid in promoting justice for clients and will allow attorney regulation to be taken up a notch. If athletes, pilots, and other professionals have to submit to testing, why not lawyers?"

Regardless of the differing views, the measure passed and state law requires attorneys to submit to these random tests. The Colorado-based bar associations and The Docket have agreed to keep members apprised of any additional details and developments after April 1.

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