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TCL > January 1997 Issue > Summaries of Opinions

The Colorado Lawyer
January 1997
Vol. 26, No. 1 [Page  103]

© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Colorado Disciplinary Cases

Summaries of Opinions

Column Ed.: James P. Hollaway, Committee Counsel, Denver—893-3393

The Grievance Committee’s office is located at the Dominion Plaza, 600 17th St., Suite 920 S, Denver, CO 80202-5435. “Grievances” or requests for investigation are filed with the Office of Disciplinary Counsel, located at the Dominion Plaza, 600 17th St., Suite 510 S, Denver, CO 80202-5435. Telephone: (303) 893-8121.


Table1

(through October 1996)

Requests for investigation filed in 1996 1,269
Docketed for investigation 403
Not docketed for investigation 665
Review in progress 199
In abeyance 2
Cases dismissed by the inquiry panels in 1996 195
Letters of admonition sent in 1996 86
Cases in which reasonable cause was found in 1996 172
Cases pending before the inquiry panels on 11/06/96 328
1Figures supplied by the Office of Disciplinary Counsel.

Public disciplinary and disability decisions are listed below. Decisions issued by Opinion appear in their entirety in the Colorado Supreme Court "Opinions" section of The Colorado Lawyer. Public disciplinary decisions involving issues that are not routine are summarized below, together with all private censures and, when space permits, selected admonishments. Occasionally, articles will appear in this space in lieu of summaries or with fewer of them.

Public Decisions

William H. Ebbert: The Supreme Court disbarred the respondent on October 15, 1996, effective immediately, ordered him to pay restitution as a condition of readmission, and assessed costs of $133.06 against him, following its approval of his conditional admission of misconduct.Timothy P. McCaffrey: The Supreme Court suspended the respondent for three years on October 15, 1996, effective immediately, ordered him to comply with conditions of reinstatement, and assessed costs of $171.50 against him. Michael L. Fager: On October 15, 1996, the Supreme Court suspended the respondent from the practice of law for one year and one day, effective thirty days after the issuance of its Opinion, ordered him to pay restitution and to comply with other conditions of reinstatement, and assessed costs of $132.47 against him. Robert M. Hohertz: On October 28, 1996, the Supreme Court suspended the respondent for three years, effective June 30, 1995, ordered him to pay restitution and to comply with conditions of reinstatement, and assessed costs of $53.99 against him, following its approval of his conditional admission of misconduct.Gary Alan Bottinelli: On October 28, 1996, the Supreme Court disbarred the respondent, effective thirty days after the issuance of its Opinion, and assessed costs of $8,881.63 against him.Perry Wayne Newman: On October 28, 1996, the Supreme Court publicly censured the respondent and assessed costs of $48.21 against him, following its approval of his conditional admission of misconduct.Donald G. Paulson: The Supreme Court immediately suspended the respondent from the practice of law on October 31, 1996, pending further order of the court.

Private Discipline

Attorney A: On October 11, 1996, the Supreme Court approved the respondent’s conditional admission of misconduct, privately censured the respondent, and assessed costs of $53.82 against him. In addition, the court ordered the respondent to complete twelve hours of accredited ethics continuing legal education courses and at least one continuing legal education accredited course in law office management within eighteen months.

The lawyer violated R.P.C. 1.7(a) (engaged in a conflict of interest). The lawyer filed a lawsuit on behalf of two clients against an entity for lost investments at the same time he was in-house counsel for a company that was the agency through which the entity sold the investments to his two clients.

The lawyer also violated R.P.C. 1.1 (failed to provide competent representation). In a foreclosure action, the lawyer failed to move the district court for an order authorizing the public trustee’s sale, pursuant to C.R.C.P. 120.

Given the lack of actual harm in this case, the court decided to accept the respondent’s conditional admission, despite his having been previously admonished once in Colorado and twice in another state.

Attorney B: The Supreme Court privately censured a lawyer on October 15, 1996, ordered him to comply with conditions, and assessed costs of $201.81 against him.

The lawyer’s professional misconduct arose from his arrest and conviction for misdemeanor theft of goods the lawyer shoplifted from a grocery store. The lawyer thereby violated R.P.C. 8.4(b) (committed a criminal act that adversely reflects on his honesty, trustworthiness, or fitness as a lawyer in other respects) and R.P.C. 8.4(c) (engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation). The lawyer also failed to report his conviction to the Office of Disciplinary Counsel as required by C.R.C.P. 241.16(b) and (h). The lawyer also failed to file a timely response to the request for investigation, thereby violating C.R.C.P. 241.6(7).

The hearing board found no aggravating factors; mitigating factors found included: absence of prior discipline in over twenty years of practice; personal problems in the form of alcoholism; remorse; and the undertaking of personal efforts to deal with his alcoholism. Nevertheless, some members of the court would have imposed more severe discipline.

To avoid additional disciplinary proceedings, the lawyer must: enroll in an intensive out-patient alcoholic dependence program of four to six weeks duration; participate in Alcoholics Anonymous for three years; participate in the Colorado Lawyers Health Program for three years, and be monitored for alcohol consumption; complete a physical examination within sixty days; provide quarterly reports to the Office of Disciplinary Counsel; waive privileges so that mental health professionals also may provide quarterly reports to the Office of Disciplinary Counsel.

Attorney C: The Supreme Court privately censured a lawyer on October 24, 1996, and assessed costs of $47.75 against her, following its approval of her conditional admission of misconduct.

The lawyer’s professional misconduct arose from her sexual relationship with a client she represented in child support and visitation matters. The lawyer admitted violating R.P.C. 8.4(h) (engaging in conduct that adversely reflects on fitness to practice law). The relationship did not result in any actual harm to the lawyer’s client, but it involved the very real potential for harm.

The court noted that the lawyer had no disciplinary record; that she was experiencing personal and emotional problems at the time of the misconduct; that she made full and free disclosure to the Office of Disciplinary Counsel and cooperated in these proceedings; that she was inexperienced in the practice of law; and that she expressed remorse. At least one member of the court, however, would have rejected the conditional admission and remanded the case to the Grievance Committee for further proceedings.

Attorney D: The Supreme Court privately censured a lawyer on October 25, 1996, and assessed costs of $48.36 against him, following its approval of his conditional admission of misconduct.

The lawyer’s professional misconduct arose from his representation of a client who was appealing his termination from the General Services Administration. The lawyer had been suspended for 180 days, but he had failed to notify his client or opposing counsel, thereby violating C.R.C.P. 241.6(6) and C.R.C.P. 241.21 (b) and (c). Since his client had not retained substitute counsel prior to the hearing on the appeal, the respondent should have appeared before the tribunal and moved to withdraw. The lawyer’s conduct in setting the hearing and his subsequent delay until the morning of the hearing to advise opposing counsel of his intent not to appear caused a delay in the proceedings that constituted conduct prejudicial to the administration of justice, contrary to R.P.C. 8.4(d).

The court observed that the lawyer’s previous disciplinary history "would normally bar private discipline." The lawyer had received two admonitions and a private censure, and he remained suspended under the order of suspension. Additional aggravating factors included the vulnerability of the client and the lawyer’s substantial experience in the practice of law. In mitigation, the court acknowledged that the assistant disciplinary counsel had stipulated to the absence of a selfish or dishonest motive; the presence of personal or emotional problems; full and free disclosure by the lawyer and his cooperative attitude; the presence of remorse; and the fact that little or no harm was caused.

The court said: "Given that you have chosen not to seek reinstatement from the . . . suspension pending the outcome of these proceedings, and have therefore served an additional period of suspension of almost a year, we have determined that no good purpose would be served by adding an additional period to that suspension." At least one member of the court, however, would have rejected the conditional admission.

The forms of discipline, both public and private, are set forth in C.R.C.P. 241.7. Disbarment is the revocation of a lawyer’s license. Suspension is the temporary interruption of a lawyer’s privilege to practice. Public censure is a verbal reproach issued by the Colorado Supreme Court in open session and then published with the Court’s other Opinions. Private censure is either a verbal reproach issued by the Colorado Supreme Court in Chambers or a written reproach mailed to the lawyer. Admonition is a letter of disapproval issued by the Grievance Committee and usually is mailed to the lawyer. A lawyer who receives a letter of admonition may demand that it be vacated and that a complaint be filed against him by Disciplinary Counsel.

© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=1997.


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