The Colorado Lawyer
Vol. 31, No. 5 [Page 133]
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From the Courts
Colorado Disciplinary Cases
Case Number: 01PDJ062
THE PEOPLE OF THE STATE OF COLORADO
EDWARD J. POSSELIUS
ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE
March 20, 2002
REPORT, DECISION AND IMPOSITION OF SANCTIONS
Opinion issued by the Presiding Disciplinary Judge and hearing board members Barbara Weil Gall and Victoria J. Koury,
both members of the bar.
SANCTION IMPOSED: ATTORNEY SUSPENDED FOR SIX MONTHS, REINSTATEMENT PROCEEDINGS PURSUANT TO C.R.C.P. 251.29(c) AND (d) REQUIRED.
A sanctions hearing pursuant to C.R.C.P. 251.15 was held on February 28, 2002, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Barbara Weil Gall and Victoria J. Koury, both members of the bar. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Edward J. Posselius, the respondent, did not appear either in person or by counsel.
The Complaint in this action was filed June 8, 2001. Posselius did not file an Answer to the Complaint. On October 22, 2001, the People filed a Motion for Default. Posselius did not respond. On December 3, 2001, the PDJ issued an Order granting default, stating that all factual allegations set forth in the Complaint were deemed admitted pursuant to C.R.C.P. 251.15(b). The default Order also found that all violations of The Rules of Professional Conduct alleged in the Complaint were deemed established.
At the sanctions hearing, exhibits 1 through 3 were offered by the People and admitted into evidence. The PDJ and Hearing Board considered the People’s argument, the facts established by the entry of default, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence.
I. Findings of Fact
Posselius has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on October 21, 1987 and is registered upon the official records of this court, registration number 17010. Posselius is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and were therefore established by clear and convincing evidence. The order entering default also granted default as to all alleged violations of The Rules of Professional Conduct set forth therein. The facts set forth in the Complaint reveal that Posselius was retained by Mark Voting Systems, Inc. (the "corporation") on June 26, 1999 to handle the defense of a case filed against it by plaintiff Judith Powelson in Boulder County District Court. The plaintiff in that matter was a corporate officer and shareholder of the corporation. The essence of her claim was that she had been misled about her investment in the corporation. Posselius had previously represented the corporation and he was personally aware of many of the facts that Ms. Powelson alleged in her complaint against the corporation.
There were several discussions between Posselius and his client’s representative designed to provide Posselius with sufficient information to respond to the complaint and engage in settlement discussions. Posselius requested and received two extensions of time within which to respond to the complaint. Notwithstanding the extensions of time to respond, Posselius did not file a timely answer. Opposing counsel sent formal written notice to Posselius informing him that in the absence of an answer being filed within three days, the plaintiff intended to seek the entry of default. Being aware that the extensions of time had expired and that the opposing party intended to seek the entry of default, Posselius still did not file the answer he had agreed to file on behalf of his client. Consequently, on November 16, 2000, default judgment was entered against Posselius’s corporate client and a copy of the Order of Default Judgment was mailed to Posselius.
During the period of time that opposing counsel was seeking to obtain an answer from Posselius, Linda Rosa, the representative of Posselius’s corporate client, was trying to contact Posselius to obtain information about the status of the case. She made several telephone attempts to contact him and in late October sent a certified letter to Posselius requesting information. The letter was returned unclaimed to Ms. Rosa on November 19. The same day, Ms. Rosa went to Posselius’s home, which also served as his office, to seek information and meet with Posselius.
Posselius told Ms. Rosa there was still time to file a response and that he would contact the president of the corporate client within two days concerning the matter. Posselius neither divulged nor discussed his failure to file an answer with Ms. Rosa nor any other representative of his client at that time or at any later time.
In January 2000, the corporation hired new counsel, and after a hearing on the matter, the District Court vacated the default judgment against the corporation, but awarded attorney fees in favor of the plaintiff and against the respondent and the corporation in the amount of $3,500.00, plus costs of $375.00. The corporation incurred attorney fees in the sum of $2,375.00 in order to get the default judgment set aside.
The respondent has not participated in these proceedings and he has not cooperated with the Office of Attorney Regulation Counsel in the investigation of this case.
II. CONCLUSIONS OF LAW
The entry of default established the following violations of the Colorado Rules of Professional Conduct ("Colo. RPC"): in claim one, Colo. RPC 1.3 (neglect of a legal matter); in claim two, Colo. RPC 1.4(a) and (b)(failure to communicate adequately and failure to explain a matter to the client so that the client can make informed decisions regarding the representation); and in claim three, grounds for discipline have been established pursuant to C.R.C.P. 251.5(d) (failure to respond without good cause to the Regulation Counsel), and 251.10 (failure to respond to the allegations in a request for investigation).
The facts established by the Complaint and the entry of default show that Posselius neglected the matter entrusted to him by his client, that he failed to communicate with his client and failed to keep them accurately informed of the status of the case. His misconduct caused serious injury, which, without his assistance, was mitigated by the actions of others.
Moreover, when confronted with his misconduct by the Office of Attorney Regulation Counsel, Posselius chose to ignore his mandatory obligation to cooperate in the investigation of the matter and failed to participate in these proceedings. See C.R.C.P. 251.5(d). Posselius’s misconduct in connection with his client’s case and his misconduct in connection with the investigation of this disciplinary matter reflect adversely upon his fitness to practice law.
III. SANCTION/IMPOSITION OF DISCIPLINE
The misconduct engaged in by Posselius amounted to neglect and lack of communication with his client. The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. ABA Standard 4.42(a) provides that suspension is generally appropriate when "a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client."
The Commentary to ABA Standard 4.42 provides that suspension should be imposed when a lawyer knows that he is not performing the services requested by the client, but does nothing to remedy the situation. Posselius was aware of his obligation to prepare and file a responsive pleading to the complaint, yet he neglected to do so. Posselius’s misconduct was the direct cause of the entry of default. Having caused injury to his client by neglecting the client’s case, Posselius aggravated that harm by failing to keep his client accurately informed about the case and by misinforming the client’s representative about the status of the case. For this misconduct, the PDJ and Hearing Board find that a period of suspension is warranted. See People v. Stevenson, 980 P.2d 504, 505 (Colo. 1999)(attorney suspended for sixty days for neglect of one client, failing to communicate with one client, failing to ensure that a dissolution decree and final order were prepared and filed, and failing to cooperate with the Office of Attorney Regulation Counsel where attorney had no prior discipline); People v. Kardokus, 881 P.2d 1202, 1204 (Colo. 1994)(attorney suspended for thirty days for neglect of one client, charging an excessive fee, accepting five hundred dollars and failing to perform requested work, and failing to file dissolution of marriage documents); People v. Barr, 855 P.2d 1386, 1388 (Colo. 1993)(attorney suspended for ninety days for neglect of one client, failing to prepare a dissolution order, failing to communicate with a client, failing to comply with the Office of Attorney Regulation Counsel, and considering the mitigating circumstance of a mental condition of depression); People v. Crimaldi, 804 P.2d 863, 866 (Colo. 1991)(attorney suspended for sixty days for complete disregard of proceedings, neglect of one client, failing to carry out contract of employment, failing to return funds, engaging in dishonesty, failing to prepare wills over a one-year period, demonstrating indifference to making restitution); People v. Combs, 805 P.2d 1115, 1116 (Colo. 1991)(attorney suspended for forty-five days for neglect of one client, failing to seek client’s objectives, failing to carry out employment contract, neglecting to file petition for dissolution, and failing to refund fees); People v. Chappell, 783 P.2d 838, 840 (Colo. 1989) (attorney suspended for forty-five days for neglect of one client, failing to seek objectives of client, failing to pay funds over to client, performing initial work but failing to revise separation agreement, failing to submit separation agreement to court, and failing to cooperate with the Office of Attorney Regulation Counsel).1
The degree of injury caused by Posselius’s misconduct is more severe than that caused in the cited cases and requires a greater period of suspension. Moreover, Posselius’s willingness to mislead his client and thereby aggravate the injury already visited upon that client by his misconduct when combined with his failure to participate in these proceedings raises a serious question about his fitness to practice law.
Determination of the appropriate sanction requires the PDJ and Hearing Board to consider aggravating and mitigating factors pursuant to ABA Standards 9.22 and 9.32 respectfully. Posselius did not participate in these proceedings, therefore no mitigating factors were established. The facts deemed admitted in the Complaint establish several aggravating factors pursuant to ABA Standard 9.22. Posselius engaged in a pattern of misconduct, see id. at 9.22(c); he engaged in multiple offenses, see id. at 9.22(d); he has demonstrated indifference to making restitution, see id. at 9.22(j), and he failed to cooperate in the disciplinary proceeding, see id. at 9.22(e).
The degree of injury caused by Posselius, the serious question concerning his fitness to practice law and the nature and degree of the aggravating factors cause the PDJ and Hearing Board to conclude that a six-month period of suspension from the practice of law is the appropriate sanction to impose. Additionally, respondent shall be required to undergo formal reinstatement proceedings pursuant to C.R.C.P. 251. 29(c) and (d) reimburse his client for the court-ordered attorney’s fees imposed against his client and the additional attorney’s fees incurred by his client to set aside the default.
It is therefore ORDERED:
1. EDWARD J. POSSELIUS, attorney registration number 17010 is suspended from the practice of law effective thirty-one days from the date of this Order for a period of six-months.
2. Posselius must undergo formal reinstatement proceedings pursuant to C.R.C.P. 251.29(c) and (d).
3. Posselius shall, within twelve (12) months from the issuance of this decision, refund and pay restitution as follows:
a. Either satisfy the court ordered award of $3,500.00, plus costs of $375.00 representing attorney fees and costs entered against his client by the Boulder County District Court, or reimburse his client, plus interest at the statutory rate from the date of this order, if the award of attorney’s fees and costs has already been satisfied;
b. Pay to his client the sum of $2,375.00 incurred in attorney’s fees to set aside the default judgment, plus interest at the statutory rate from the date of this decision.
4. Posselius is Ordered to pay the costs of these proceedings. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.
1. The People requested a substantially longer period of suspension than the sanction imposed by this decision. Their request was premised upon their argument at the sanction hearing that Posselius "abandoned" his client. The PDJ and Hearing Board decline to find that Posselius "abandoned" his client only because abandonment was not pled in the complaint. See People v. Lynch, 35 P.3d 509, 513 (Colo. PDJ August 30, 2000), 2000 Colo. Discipl. LEXIS 28, *7-8.
Case Number: GC97B121
(consolidated with 01PDJ025)
THE PEOPLE OF THE STATE OF COLORADO
LOUSENDA D. STILLMAN
March 20, 2002
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
OPINIONS AND ORDER IMPOSING SANCTIONS
Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Kathleen Killian and Richard P. Holme, both members of the bar.
SANCTION IMPOSED: ATTORNEY SUSPENDED FOR TWO YEARS
A trial pursuant to C.R.C.P. 251.15 was held on December 12, 2001, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Kathleen Killian and Richard P. Holme, both members of the bar. Debora D. Jones, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). The respondent, LouSenda Stillman ("Stillman") did not appear either in person or by counsel.
The Complaint in Case No. GC97B121 was filed on November 20, 1997. Stillman filed an Answer on January 26, 1998. A two-day trial was set to commence on August 26, 1999, which was subsequently vacated upon the People’s motion, the parties having reached an agreement pursuant to C.R.C.P. 251.13(c).1 The Complaint in Case No. 01PDJ025 was filed on March 14, 2001 and Stillman filed an Answer on April 30, 2001. Case No. 01PDJ025 was consolidated into Case No. GC97B121 upon the People’s motion by Order dated April 19, 2001.2
Stillman did not respond to the People’s interrogatories, requests for admissions and production of documents. The PDJ granted the People’s Motion for Sanctions based on Stillman’s failure to comply with the People’s outstanding discovery requests and ordered that Stillman would only be allowed to testify on her own behalf at trial and cross-examine the People’s witnesses.
At trial, the People presented testimony from John Brock, Emily Magnin, Donae Linde, Scott Garber and Susan Allen (f/k/a Susan Groller). Exhibits 1 through 17 were offered by the People and admitted into evidence. The PDJ and Hearing Board considered the People’s argument, the exhibits admitted, assessed the testimony and credibility of the witnesses and made the following findings of fact which were established by clear and convincing evidence. Stillman did not appear and therefore no evidence was received on her behalf.
I. FINDINGS OF FACT
Stillman has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on October 27, 1988, and is registered upon the official records of this court, registration number 18005. Stillman is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
The Brock Matter
John Brock met Stillman in February 1997. Shortly thereafter, Brock invited Stillman and Stillman agreed to move into Brock’s apartment. Stillman agreed to trade legal services in exchange for rent. Brock returned home a few days after Stillman moved in to find that Stillman had caused damage to his apartment and personal belongings. Brock asked Stillman to leave and she refused. The police took Stillman into protective custody. The extent of damage Stillman caused to Brock’s apartment necessitated Brock’s filing an insurance claim for damage done to the carpeting, window screens and coverings, blinds, computer, and personal belongings, resulting in a $500 unreimbursed expense to Brock.
The Magnin Matter
Stillman was retained by Emily Magnin in April 1994 to file a petition for dissolution of marriage. Magnin paid Stillman $1,500. Stillman filed the petition in El Paso County in May 1994. Thereafter, counsel for the estranged husband filed a petition for dissolution in Adams County and moved for change of venue, which was granted. On September 27, 1994, Stillman appeared for a pretrial conference. The court issued orders as to mediation, property valuation, witness endorsement and financial matters. Both sides were granted five days to submit names for the appointment of a guardian ad litem. Stillman failed to provide the names as ordered. Moreover, Stillman did not discuss the pretrial order with Magnin. Magnin attempted but was unable to communicate with Stillman about her case from mid September through December 1994. She left voice messages and went to Stillman’s office, only to find that Stillman had moved and taken her client file. Magnin was in an exceptionally vulnerable frame of mind, and was distraught over Stillman’s disappearance. Magnin hired other counsel in December 1994. The client was not able to retrieve her file from Stillman. In August 1996, Stillman sent Magnin a letter indicating an outstanding balance owing for attorney’s fees. Stillman has not communicated with Magnin since the invoice sent in 1996.
The Linde Matter
Donae Linde retained Stillman in connection with a dissolution proceeding in late August 1998. Linde’s ex-husband had filed a motion to reduce child support. A hearing on the motion was set for September 24. Stillman filed a motion for continuance on September 3, 1998, due to her client’s health issues. The court denied Stillman’s motion for continuance, and the hearing was held on September 24. Neither Stillman nor her client appeared for the hearing. The court attempted to call Stillman but was unable to reach her. The ex-husband’s child support obligation was reduced following the hearing. When Linde learned from her ex-husband that his child support had been reduced, she unsuccessfully attempted to contact Stillman. Linde was told by Stillman’s secretary that the ruling decreasing child support was erroneous and would be withdrawn. Stillman filed a motion for reconsideration, which the court denied.
Over the next two months, Linde continued to try to reach Stillman without success. Linde retained new counsel, and at a hearing in February 1999, Linde’s child support award was increased due to changed circumstances. The court did not modify the child support order resulting from the September 24, 1998 hearing.
The Groller Mater
Susan Groller retained Stillman in October 1998 to obtain a restraining order and dissolution of marriage. Stillman obtained a temporary restraining order for Groller. Groller was fearful of her estranged husband’s actions and Stillman was aware of this. Stillman did not take any action to initiate a dissolution proceeding, nor did she takes steps necessary to make the temporary restraining order permanent. Stillman stopped communicating with Groller. Groller left numerous messages for Stillman over several months but was unable to reach her. Eventually, Groller requested an accounting and Stillman failed to provide one until more than three months after it was requested, and only after Groller filed a request for investigation with the Office of Attorney Regulation Counsel.
II. CONCLUSIONS OF LAW
The Brock Matter
The Complaint in Case No. GC97B121 alleges that Stillman’s conduct with regard to the Brock matter constitutes a violation of Colo. RPC 8.4(h)(it is professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law). To find a violation of Colo. RPC 8.4(h), there must be "proof of conduct, the totality of which establishes that the lawyer engaged in conduct which reflects that he or she lacks the personal or professional moral and/or ethical qualifications required of those authorized to practice law. Conduct involving violence, lack of honesty, violation of trust, serious interference with the administration of justice, criminal endeavors, or comparable misconduct is required to establish a violation of Colo. RPC 8.4(h)." People v. Jaramillo, 35 P.3d 723 (Colo. PDJ Sept. 20, 2001), 2001 Colo. Discipl. LEXIS 92, *8-9, citing People v. Theodore, 926 P.2d 1237, 1242-43 (Colo. 1996)(holding that attorney’s engaging in conduct involving dishonesty amounts to conduct that adversely reflects on his fitness to practice law); People v. Good, 893 P.2d 101, 104 (Colo. 1995)(holding that conduct of a sexual nature with regard to a client violates prior rule DR 1-102(A)(6)). The knowing and intentional destruction of another’s property by a lawyer, without justification, demonstrates a lack of respect for an/or an inability of the individual to conform their conduct to the dictates of the law and is conduct which reflects that the lawyer lacks essential personal qualifications required of persons licensed to practice law.3
The Complaint also alleges that Stillman’s conduct violated C.R.C.P. 241.6(5).4 That provision states:
Misconduct by a lawyer, individually or in concert with others, including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship: (5) Any act or omission which violates the criminal laws of this state or any other state, or of the United States . . . .
The Complaint does not, however, specify any specific criminal statue allegedly violated. C.R.C.P. 251.14(a), the rule that governs the contents of disciplinary complaints, provides in part: "[t]he complaint shall set forth clearly and with particularity the grounds for discipline with which the respondent is charged and the conduct of the respondent which gave rise to those charges."5 See People v. Lynch 35 P.3d 509, 513 (Colo. PDJ August 30, 2000), 2000 Colo. Discipl. LEXIS 28. The rule requires that the charging document in a disciplinary case set forth both a factual basis for the charges and the legal basis upon which the People seek discipline. Id. Procedural due process requires fair notice of the charge. Id., citing In the Matter of John Ruffalo, Jr., 390 U.S. 544, 550 (1968). Fair notice of the charge envisions not only a recitation of the facts revealing the offensive conduct but also the identification of the legal prohibition which proclaims such conduct violative of the rules applicable to a lawyer’s conduct. Ruffalo at 551; see e.g. In the Matter of Andrew L. Quiat, 979 P.2d 1029, 1038 (Colo. 1999). Accordingly, C.R.C.P. 241.6(5) does not provide sufficient grounds for discipline upon the allegations stated in the Complaint, and is accordingly dismissed.
The Magnin Matter
In the Magnin6 matter, Stillman neglected her client’s legal matter in violation of Colo. RPC 1.3(a lawyer shall act with reasonable diligence and promptness in representing a client) by failing to discuss with the client the issues raised in the court’s orders as to the appointment of a guardian ad litem, mediation, property valuation, witness endorsement and financial matters. Stillman failed to communicate with the client for a period of three months in violation of Colo. RPC 1.4(a). Moreover, Stillman moved her office during that time frame without notifying her client. Notwithstanding several attempts by the client to communicate with Stillman during that period, Stillman did not inform the client concerning either the facts of the case or Stillman’s whereabouts. In essence, Stillman simply disappeared. The timing of her disappearance was at a particularly critical period of the proceedings. The extent of Stillman’s neglect of her client rose to the level of abandonment. "To find abandonment rather than merely neglect, there must be proof that the attorney—during a given time period—was required to accomplish specific professional tasks for the client, failed to accomplish those tasks, and failed to communicate with the client." People v. Powell, 2001 WL 1636751, *3 (Colo. PDJ December 10, 2001), citing People v. Carvell, No. 99PDJ096 (Colo. PDJ September 11, 2000), 2000 Colo. Discipl. LEXIS 26. The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client. Id. Such objective proof is present in the Magnin matter.
Stillman’s abandonment of her client, effectively terminated the attorney client relationship. Stillman’s failure to provide Magnin with the file upon termination constitutes a violation of Colo. RPC 1.16(d)(upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned).
The Linde Matter
In the Linde matter, Stillman’s failure to attend the September 24 hearing, constitutes neglect in violation of Colo. RPC 1.3(neglect of a legal matter). Stillman’s subsequent failure to return Linde’s telephone calls over a two month period constitutes a violation of Colo. RPC 1.4(a)(failure to communicate).
The Groller Matter
Stillman’s failure to communicate with her client for several months after she was retained and after she had commenced a temporary restraining order proceeding constitutes a violation of Colo. RPC 1.4(a)(failure to communicate). Stillman’s failure to promptly provide an accounting upon request is a violation of Colo. RPC 1.15(b)(failure to provide a timely accounting). Stillman’s failure to timely follow through with the restraining order or commence a dissolution proceeding on behalf of her client, both tasks she had agreed to perform, constitutes neglect in violation of Colo. RPC 1.3.
III. SANCTION/IMPOSITION OF DISCIPLINE
The evidence established that Stillman’s misconduct constitutes one violation of Colo. RPC 8.4(h) and Colo. RPC 8.4(a), two cases of neglect in violation of Colo. RPC 1.3, and in one of these two instances, the neglect rose to the level of abandonment, three cases of failing to communicate with clients in violation of Colo. RPC 1.4(a), one instance of failing to provide an accounting in violation of Colo. RPC 1.15(b) and one instance of failing to return a file upon termination in violation of Colo. RPC 1.16(d).
The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. ABA Standard 4.42 provides that suspension is generally appropriate when:
(b) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(c) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
The Commentary to ABA Standard 4.42 provides that "[s]uspension should be imposed when a lawyer knows that [s]he is not performing the services requested by the client, but does nothing to remedy the situation, or when a lawyer engages in a pattern of neglect, with the result that the lawyer causes injury or potential injury to a client.
A period of suspension is the appropriate sanction for a pattern of neglect and isolated cases of abandonment. See People v. Paulson, 930 P.2d 582 (Colo.1997)(attorney suspended in default proceeding for one year and one day for, among other rule violations, neglect of three client matters, failure to communicate in two matters, and failure to deliver funds or other property to the client and render a full accounting); People v. Berkley, 914 P.2d 338, 341 (Colo.1996)(attorney suspended for one year and one day for neglect of five separate matters and three instances of previous discipline); People v. Crews, 901 P.2d 472, 474 (Colo. 1995)(suspending the attorney for two years for neglecting a legal matter including failing to prepare motion for modification of child support for five months after telling client he would do so, failing to timely respond to discovery requests, and failing to ensure that the court received documents attorney was ordered to prepare).
Determination of the appropriate sanction requires the PDJ and Hearing Board to consider aggravating and mitigating factors pursuant to ABA Standards 9.22 and 9.32 respectively. Stillman has received prior discipline, considered as an aggravating factor pursuant to ABA Standard 9.22(a): she received two letters of admonition, one in 1993 for neglecting a client matter, failing to communicate with the client, and making a misrepresentation to the client, and a second letter of admonition in 1995 for neglecting a client matter and failing to timely refund an unearned retainer. Stillman engaged in a pattern of misconduct, see id. at 9.22(c); she engaged in multiple offenses, see id. at 9.22(d), and her clients were vulnerable at the time of her misconduct, see id. at 9.22(h). Stillman did not appear at the trial; accordingly, no mitigating factors were provided to the PDJ and Hearing Board.
In imposing the sanction, the PDJ and Hearing Board consider the harm to the clients caused by the respondent’s misconduct. The presumptive sanction recommended by the ABA Standards depends, in part, on the degree of injury or potential injury occasioned by the lawyer’s misconduct. See ABA Standard 3.0(c)(providing that "[i]n imposing a sanction after a finding of lawyer misconduct, a court should consider the potential or actual injury caused by the lawyer’s misconduct). In the present case, Stillman’s misconduct caused harm to her clients: Stillman did not resolve the contested custody dispute for Magnin, Linde was deprived of the opportunity to contest the reduction of the child support, and Groller lost the opportunity to make permanent the temporary restraining order. Magnin was forced to recreate her client file which Stillman failed to return to her, and Brock suffered monetary harm in the amount of $500 arising from the damage Stillman caused to his property. In all of the cases, except the Brock matter, the resolution of the clients’ legal matters were unnecessarily delayed by Stillman’s neglect.
It is therefore ORDERED:
1. LOUSENDA DELEHOY STILLMAN, registration number 18005, is SUSPENDED from the practice of law for a period of two years, effective thirty-one days from the date of this Order;
2. Within sixty (60) days of the date of this Order, respondent shall provide Emily Magnin with her client file;
3. Within sixty (60) days of the date of this Order, respondent shall pay five hundred ($500) dollars to John P. Brock;
4. Respondent shall pay the costs of this consolidated disciplinary proceeding; complainant shall submit a Statement of Costs within fifteen (15) days of the date of this Order, and respondent shall have ten (10) days thereafter to file a response.
1. The PDJ approved a Diversion Agreement on August 18, 1999, amended March 21, 1999. Thereafter, the People moved to terminate the Diversion Agreement due to Stillman’s material breach of its terms. Stillman did not respond, and the motion was granted on January 29, 2001.
2. In a separate matter, No. 01PDJ069, the PDJ granted Stillman’s request that she be transferred to disability inactive status on July 9, 2001, and suspended the pending disciplinary proceedings. On September 21, 2001, the PDJ lifted the stay on the proceedings pursuant to C.R.C.P. 251.23 due to Stillman’s failure to submit to an independent medical examination. Stillman remains on disability inactive status.
3. Stillman’s violation of Colo. RPC 8.4(h) constitutes an additional violation of Colo. RPC 8.4(a)(it is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct). It does not, however, impact on the level of sanction assessed by the PDJ and Hearing Board.
4. C.R.C.P. 241.6 was repealed and reenacted as C.R.C.P. 251.5 effective January 1, 1999.
5. C.R.C.P. 241.12, in effect in on November 20, 1997 when the Complaint was filed, contained identical language. C.R.C.P. 241.12 was repealed and replaced by C.R.C.P. 251.14 effective January 1, 1999.
6. Upon complainant’s motion, the alleged violation of Colo. RPC 8.4(d)(engaging in conduct prejudicial to the administration of justice) in the Magnin matter was dismissed at the commencement of the hearing.
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