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TCL > March 2003 Issue > Opinions

The Colorado Lawyer
March 2003
Vol. 32, No. 3 [Page  129]

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From the Courts
Colorado Disciplinary Cases

Opinions

Case Number: 02PDJ035

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

MICHAEL S. KOCEL.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

January 8, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members Gail C. Harriss and William J. Martinez, both members of the Bar.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR SIX MONTHS

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on Nov. 7, 2002, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, Gail C. Harriss and William J. Martinez, both members of the bar. James S. Sudler, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Michael S. Kocel, the respondent, did not appear either in person or by counsel.

The People filed a Complaint in this matter on May 15, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The Proof of Service filed June 18, 2002 indicated that the Citation and Complaint which were sent to Kocel’s registered business address was returned unclaimed.1 Respondent failed to file an Answer or otherwise respond to the Complaint.

On July 15, 2002, the People moved for default on the claims set forth in the Complaint, and on August 16, 2002, the PDJ granted the motion as to both the facts and claims set forth therein.

At the sanctions hearing, exhibits 1, 2 and 3 were offered by the People and admitted into evidence. The 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

Michael Kocel has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on November 17, 1986 and is registered upon the official records of this court under attorney registration number 16305. Kocel 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 are therefore established by clear and convincing evidence. See Complaint attached hereto as exhibit "1." The entry of default also established the alleged violations of the Rules of Professional Conduct set forth therein.

II. CONCLUSIONS OF LAW AND
IMPOSITION OF SANCTION

The Complaint in the within matter alleges that Kocel violated the following Colorado Rules of Professional Conduct: claim one, Colo. RPC 1.8(e)(an attorney shall not advance or guarantee financial assistance to the attorney’s client); claim two, Colo. RPC 1.5(c)(a contingent fee shall meet all of the requirements of Chapter 23.3 of the Colorado Rules of Civil Procedure); claim three, Colo. RPC 1.3(an attorney shall act with reasonable diligence and promptness in representing a client); claim four, Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); claim five, Colo. RPC 1.16(d)(an attorney shall upon termination of representation take steps to the extent reasonably practicable to protect a client’s interests, including surrendering papers and property to which the client is entitled).

In one matter, a client hired Kocel in April 1998 to represent him regarding a workers’ compensation matter. Although Kocel agreed to represent the client on a contingent fee basis, he did not reduce the agreement to writing as required by Colo. RPC 1.5(c). Additionally, Kocel provided funds to the client as an advance on the potential settlement in violation of Colo. RPC 1.8(e).

In a second matter, a client hired Kocel in 1998 to represent her in a workers’ compensation case in order to secure additional workers’ compensation benefits. Kocel failed to appear at three hearings scheduled to consider a modification of the client’s disability rating. Kocel failed to inform the client about the status of her matter and did not promptly comply with her requests for information. When the client requested her file, Kocel failed to provide it to her. The client’s case was dismissed due to Kocel’s failure to prosecute. As a result, the client was unable to pursue her claim for additional benefits.

Kocel entered into an attorney/client relationship with two separate clients. In the first matter, he failed to reduce a contingency fee agreement to writing in violation of Colo. RPC 1.5(c), and he provided financial assistance to the client as an advance on the settlement in violation of Colo. RPC 1.8(e). In the second matter, Kocel neglected the client’s case by failing to appear at scheduled hearings and generally failed to adequately pursue the client’s claim in violation of Colo. RPC 1.3. In addition, he failed to adequately communicate with the client in violation of Colo. RPC 1.4(a). Kocel failed to return to the client’s file when requested in violation of Colo. RPC 1.16(d).

III. IMPOSITION OF SANCTION

Colorado law provides that a period of suspension is warranted for neglecting a client’s matter coupled with a failure to communicate and failure to take steps to protect the client’s interests upon termination. See People v. Archuleta, 898 P.2d 1064 (Colo. 1995)(attorney stipulating to six month suspension for delay in filing bankruptcy petition on behalf of one client and failing to file civil complaint on behalf of another client or return that client’s retainer fee); People v. Williams, 824 P.2d 813 (Colo. 1992)(attorney suspended for a period of six months for neglect of three separate legal matters); People v. Barber, 799 P.2d 936 (Colo. 1990)(attorney’s handling legal matter without adequate preparation, neglect of a legal matter, and failing to seek lawful objectives of client warranted six months’ suspension); People v. Espinoza, 35 P.3d 547 (Colo. O.P.D.J. 2001)(attorney’s neglect of client matter, concealing fact that neglect resulted in entry of default judgment against client, failure to deliver client file to replacement counsel, and refusal to refund retainer warranted six-months’ suspension from the practice of law).

The Supreme Court has previously publicly censured an attorney for failing to comply with the rules governing contingent fees, see In re Wimmershoff, 3 P.3d 417, 420 (Colo. 2000)(attorney publicly censured for, charging an unreasonable fee and failing to adequately convey the basis and rate of his fee to the client in violation of Colo. RPC 1.5(b)) and has suspended an attorney for thirty days for advancing funds to the client. In Re Gibson, 991 P.2d 277, 278 (Colo. 1999)(attorney suspended for thirty days for, among other rule violations, advancing funds to his client in violation of Colo. RPC 1.8(e)).

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, and are consistent with Colorado law in recommending a period of suspension for neglect of a client matter. 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."

In one of the two client matters, Kocel’s misconduct resulted in serious injury to the client. The client’s case was dismissed due to Kocel’s failure to prosecute and the client was thereafter unable to pursue her claim for additional benefits.

Pursuant to ABA Standards 9.22 and 9.32 respectively, aggravating and mitigating factors are considered in arriving at the appropriate sanction. Because Kocel did not participate in these proceedings, no mitigating factors were established.2 Several aggravating factors were presented pursuant to ABA Standard 9.22: Kocel demonstrated a pattern of misconduct, see id. at 9.22(c); he engaged in multiple offenses, see id, at 9.22(d), and Kocel had substantial experience in the practice of law having been licensed in Colorado since 1986, see id. at 9.22(i).

IV. ORDER

It is therefore ORDERED:

1. MICHAEL S. KOCEL, attorney registration number 16305, is SUSPENDED from the practice of law for a period of six months effective thirty-one (31) days from the date of this Order.

2. In the event Kocel wishes to resume the practice law in the State of Colorado, he must undergo formal reinstatement proceedings pursuant to C. R.C.P. 251.29(c) and (d).

3. Kocel is ordered to return the file to Rhonda Sellers within ninety (90) days of the date of this Order.3

4. Kocel 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.

EXHIBIT 1

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on November 17, 1986, and is registered upon the official records of this court, registration No. 16305. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered business address is P.O. Box 60400, Colorado Springs, CO 80960.

GENERAL ALLEGATIONS IN FOSTER MATTER

2. Ralph Foster was injured on the job as a cook for Russell Stover Candy Co. ("Russell Stover")

3. He hired the respondent in April, 1998 to represent him in the workers’ compensation case.

4. The attorney-client relationship was formed at that time between the respondent and Mr. Foster.

5. Mr. Foster agreed with the respondent that the representation would be on a contingent fee basis. The initial contact between the respondent and Mr. Foster was done over the telephone.

6. Thereafter, the respondent failed to prepare and execute a written contingent fee agreement with his client.

7. A proposed settlement for $5,000 was offered to Mr. Foster on behalf of Russell Stover that Mr. Foster did not want to accept.

8. Mr. Foster had told the respondent earlier that he would not settle for anything less than $50,000.00 from Russell Stover.

9. Mr. Foster eventually agreed to settle for about $4,500. Mr. Foster signed the settlement agreement with Russell Stover on March 31, 2000.

10. The actual settlement was for $2,500 and payment of medical expenses of about $2,000.

11. Mr. Foster was forced to settle for less than he wanted because the respondent told him that he was unable to reserve a room in Grand Junction for a hearing in the case.

12. Respondent resides in Colorado Springs.

13. At some time before the settlement was completed, the respondent gave Mr. Foster $1,000.00 as an advance on the potential settlement. This payment was made by the respondent before December 25, 1999.

14. The respondent later apologized to Mr. Foster and his wife for not getting them the settlement that they wanted. He stated that they did not have to pay him back the $1,000.00, because the respondent did not feel that he had obtained what he should have from Russell Stover on their behalf.

CLAIM ONE

The factual allegations in paragraphs 1-14 are incorporated herein.

15. The respondent made an advance of money and financial assistance to his client, Mr. Foster in violation of Colo. RPC 1.8(e).

16. When he paid $1,000 to Mr. Foster the respondent was not advancing any expenses of litigation which would have been appropriate pursuant to Colo. RPC 1.8(e).

WHEREFORE, the complainant prays at the conclusion hereof,

CLAIM TWO

The factual allegations in paragraphs 1-14 are incorporated herein.

17. The respondent did not have a written contingent fee agreement with his client as required by Chapter 23.3 of the Colorado Rules of Civil Procedure in violation of Colo. RPC 1.5(c).

WHEREFORE, the complainant prays at the conclusion hereof,

SELDERS MATTER GENERAL ALLEGATIONS

18. Rhonda Selders, who hired the respondent in 1998 to represent her in a workers’ compensation case, had injured her back while working for Larchwood Inns of Grand Junction.

19. The attorney-client relationship between Ms. Selders and the respondent commenced in 1998.

20. When she hired the respondent, Ms. Selders had earlier reached a settlement with the opposing party for $10,000.00 for what is believed to be partial temporary disability.

21. $7,500.00 of the $10,000 had already been paid to Ms. Selders. The remaining amount had been used to pay medical bills.

22. After the settlement was concluded, Ms. Selders continued to need medical treatment. After a year her doctor refused to give her any more medicine.

23. She hired the respondent approximately two months after the settlement in order to obtain more workers’ compensation benefits.

24. The respondent made one doctor’s appointment for Ms. Selders with a doctor in Denver and that was essentially the extent of his work for her.

25. The doctor in Denver opined that Ms. Selders’ level of disability was greater than previously rated.

26. The respondent missed at least three hearings in Ms. Selders’ case and did not communicate to Ms. Selders as to why he missed them.

27. When Ms. Selders arrived at the hearings she learned that the respondent would not be appearing. The hearings concerned the doctor’s change in her disability rating.

28. Ms. Selders called the respondent for a year "on and off" after she hired him. On the few occasions that she would talk to him, the respondent made excuses for not contacting Ms. Selders sooner and continually "put her off."

29. During the attorney-client relationship with Ms. Selders, the respondent did not inform Ms. Selders about the status of her matter and he did not promptly comply with her requests for information about her matter.

30. On December 27, 2000, Ms. Selders requested her file from the respondent. She intended to fire him at that time and believed that she had conveyed that desire to him; however it is not clear that she did so then.

31. In early-February 2001, Ms. Selders called the Office of Attorney Regulation Counsel and stated that she was having a difficult time obtaining her file after she believed that she had terminated the respondent.

32. Respondent was contacted by Intake Counsel on or about February 12, 2001, who told him that Ms. Selders wanted to and did terminate him. He was also informed that she requested her file. The respondent then wrote to Ms. Selders on February 19, 2001 effectively acknowledging that he was terminated and stating that he would withdraw from her case.

33. On May 16, 2001, the respondent wrote to Ms. Selders; however, that letter was returned to him because he did not have the correct town on the envelope (he wrote Grand Junction instead of Fruita.)

34. Also on May 16, 2001, the respondent filed a pleading in Ms. Selders workers’ compensation case responding to a motion to show cause why the case should not be dismissed. In that response he stated that the lack of prosecution in the matter was his fault and not that of Ms. Selders. The respondent did file a motion to withdraw and a notice of withdrawal.

35. The respondent has still not returned the file to Ms. Selders.

36. Ms. Selders’ case was dismissed because it was not prosecuted by the respondent. She was not able to go forward on her claim for additional benefits.

37. The respondent has admitted that he failed to prosecute Ms. Selders’ case.

38. Ms. Selders did not pay the respondent any money.

CLAIM THREE

The factual allegations in Paragraphs 18 — 38 inclusive are incorporated herein.

39. The respondent failed to act with reasonable diligence and promptness on behalf of Ms. Selders in her workers’ compensation case.

40. The respondent should have prosecuted Ms. Solder’s case by asking for a review of or a change in her disability rating and he should have prosecuted the matter diligently. The respondent neglected the workers’ compensation matter entrusted to him by Ms. Selders. His conduct violated Colo. RPC 1.3.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM FOUR

The factual allegations in Paragraphs 18 — 38 inclusive are incorporated herein.

41. The respondent did not keep Ms. Selders, his client, reasonably informed about the status of the matter. He also failed to comply with reasonable requests for information about the case.

42. The respondent did not communicate with his client adequately in violation of Colo. RPC 1.4(a).

CLAIM FIVE

The factual allegations in Paragraphs 18 — 38 inclusive are incorporated herein.

43. The respondent was terminated by Ms. Selders in early February of 2001. He did not return her file to her after being requested to do so.

44. The respondent did not timely return the client’s file to her in violation of Colo. RPC 1.16(d).

45. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5.

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5, and the Colorado Rules of Professional Conduct and that he be appropriately disciplined and assessed the costs of these proceedings.

_______

1. Even though the Citation and Complaint were ultimately returned to Kocel, proper service was effected pursuant to C.R.C.P. 251.32(b).

2. The People admitted that Kocel has no prior discipline.

3. See C.R.C.P. 251.29(b).

 

 

Case Number: 01PDJ089

Petitioner:

MICHAEL D. MULLISON,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

December 16, 2002

OPINION AND ORDER READMITTING MICHAEL D. MULLISON, TO THE PRACTICE OF LAW

Opinion issued by a Hearing Board consisting of John E. Hayes and Kathryn S. Lonowski, both members of the bar, and the Presiding Disciplinary Judge Roger L. Keithley.

ATTORNEY READMITTED TO THE PRACTICE OF LAW

On October 10, 2002, a readmission hearing was held pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, Kathryn S. Lonowski and John E. Hayes, both members of the Bar. David L. Wood, Esq. represented Michael D. Mullison ("Mullison"). Debora D. Jones, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). The following witnesses testified on behalf of Mullison: Sunita Sharma, Regina W. Adams, Doug Mathre, Robert Schmidt and John K. Nagel, M.D. Mullison testified on his own behalf. Mullison’s exhibits 1 through 8 were admitted into evidence.

The Hearing Board considered the testimony and exhibits admitted, assessed the credibility of the witnesses, and made the following findings of fact, which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Michael Dean Mullison took the oath of admission and was admitted to the bar of the State of Colorado on November 1, 1985, attorney registration number 15169. The events leading to this attorney’s disbarment occurred during a time period in which Mullison developed an addiction to cocaine which increased to a level where it destroyed the attorney’s personal and professional life.

After graduating from law school, Mullison practiced in Colorado for one year, then relocated to the State of Washington to work for a firm handling no-contest divorce and bankruptcy matters. While working for the firm, in 1988, Mullison agreed to represent a client "on the side" in a contested divorce. Mullison accepted money from this client outside of his employment, and diverted those funds to his own use for drug purchases. When his employer discovered Mullison’s "on the side" representation, Mullison’s employment was terminated.

Mullison returned to Colorado with his wife and daughter. He did not inform his wife the true reason for the termination of his employment and continued to conceal his drug use from her. He established a solo practice in Longmont where he handled bankruptcy, domestic relations and civil matters.

The stress of his solo practice exacerbated his use of cocaine. He charged a relatively small flat fee for bankruptcy work and other matters, but routinely used those fees for drug purchases. His practice became a "shell game" in which he would use fees collected from subsequent clients to pay the filing fees required to complete previous clients’ work.

During this time, Mullison represented a client, Kathy Rush, and accepted fees and costs from her to file a petition for dissolution of marriage on her behalf. Mullison converted the fees and costs to his own use and never filed the petition. Later, Mullison forged what purported to be a copy of the decree. Another attorney who had been consulted by the client reported his forgery of the decree. Mullison pled guilty to second degree forgery, a class four felony. He admitted to having used the money paid to him for the purchase of drugs.

In another matter a client retained Mullison and paid him to file a personal bankruptcy action. Mullison never filed the bankruptcy petition, although he misrepresented to the client that it had been filed and that the court date had been set. Mullison pled guilty to felony theft for taking the client’s money and failing to perform the agreed-upon legal services. In addition to these two specific instances, in eleven separate additional instances in 1989, Mullison failed to perform legal services while accepting and retaining payment for services.

The State of Washington brought criminal charges against Mullison based on his diversion of client funds for his own use. He pled guilty to attempted theft in the second degree, a misdemeanor, and was subsequently suspended by the Washington Supreme Court. Mullison stipulated to a one year period of suspension (from May 25, 1989 to May 25, 1990) in Washington with an additional two-year period of probation in the event he returned to the practice of law in that state.

Mullison was immediately suspended from the practice of law in Colorado on November 9, 1989, based on the criminal charges in the State of Washington and Mullison’s misconduct following his return to Colorado. Thereafter, as a result of a stipulated sanction of disbarment accepted and approved by the Colorado Supreme Court, Mullison was disbarred from the practice of law in the State of Colorado on April 27, 1992. People v. Mullison, 829 P.2d 382 (Colo. 1992).

Mullison finally admitted to his wife and family that he had a serious cocaine addiction. He began to realize the extent of his addiction, and that it had resulted in the ruin of his personal and professional life. At the same time, he was relieved that he need no longer lie about his addiction.

On April 13, 1990, after entering a plea of guilty to second degree forgery, a class four felony in Colorado arising out of Mullison’s forgery of a court document in his representation of Kathy Rush, Mullison was sentenced to six years in community corrections and was ordered to pay restitution in the amount of $7,157.00. Mullison was placed in community corrections in the Longmont, Colorado facility and served one hundred and twenty-nine (129) days as a resident of that facility where he received intensive treatment for his addiction to cocaine. In this facility, Mullison was subjected to detoxification, random testing, counseling, and seminars on remaining drug-free. He developed skills to live without the use of drugs.

After being released from the Longmont facility, Mullison was transferred to Larimer County Community Corrections, and was under its supervision until the termination of his sentence on December 9, 1994. While under its supervision, Mullison worked long hours in non-legal positions including delivering milk in the evening and furniture in the daytime. He later obtained paralegal positions. He supported his wife and children, and earned the funds to make full restitution as ordered in both the criminal and disciplinary proceedings.

As part of his sentence, Mullison entered drug treatment in the "New Beginnings" program in Fort Collins, Colorado in 1989, involving weekly meetings, consultation with a caseworker, drug addiction after care, and random drug testing. New Beginnings helped Mullison to change his behavior and thinking and helped him begin to piece his life back together. He was also involved in Narcotics Anonymous on a daily basis from 1989 to 1997. He assisted in establishing a Fort Collins chapter of "Coke Anon" and spoke to college students and school groups about cocaine addiction. As a result of these rehabilitative programs, Mullison came to understand that his cocaine addiction caused him to act dishonestly and exercise extremely poor judgment.

Mullison’s family relationship was badly harmed by his cocaine habit and the resulting consequences. During the years following his criminal conviction, Mullison and his wife — also an attorney — separated twice. Following those separations, both Mullison and his wife attended counseling, devoted substantial effort to their relationship, and were able to reestablish the marriage. Mullison has maintained a close relationship to his children, spending a great deal of time with them, coaching basketball teams and attending school events.

In 1991 Mullison, through his wife, sought paralegal employment. Richard K. Blundell hired Mullison as a paralegal in the area of worker’s compensation law, personal injury, and social security matters. Mullison worked for Blundell in that capacity from May 1991 until September 1995. Mullison assisted Blundell in various aspects of the law practice and had regular supervised client contact. In 1995, Mullison left Blundell’s employment to accept employment with attorney Steve Bristol. Upon Bristol’s death in January 1996, Regina Adams acquired Bristol’s practice and continued Mullison’s employment. Mullison continues to work for Adams in generally the same areas of practice that he had previously worked in with Blundell. He engages in legal research, maintains client files, prepares forms, contacts clients, performs extensive research and prepares legal briefs under the supervision of Adams. He has been responsible for delivering funds to clients, performing disbursement of payments on cases, and depositing funds in the firm account. Mullison’s work with Adams has been exemplary; he is punctual, organized, responsible and demonstrates attention to detail. If readmitted, Adams intends to offer an associate position to Mullison.

On December 9, 1994, Mullison sought early termination of his sentence on the grounds that he fully complied with all requirements of the Community Corrections program and the court order, completed all drug treatment, maintained his after-care program, remained gainfully employed for the duration of his sentence, and maintained his sobriety, which was verified by random drug testing. The court granted early termination of his sentence.

As part of its disbarment order, the Colorado Supreme Court required Mullison to pay the costs of the disciplinary proceeding in the amount of $428.09 within thirty days. Due to a misunderstanding of the disciplinary order and the costs ordered in the criminal proceeding, Mullison did not timely pay that amount within the prescribed thirty days. Pursuant to C.R.C.P. 241.21(d)1 Mullison was also required to file an affidavit with the Supreme Court setting forth all matters he had pending and attesting that he had fully complied with the provisions of the order of disbarment and the Rule.2 Mullison failed to file the affidavit, erroneously believing that because he had closed his practice and had no matters pending, he was relieved from the obligation to comply with this Rule. The People stipulated that Mullison’s payment of costs plus statutory interest prior to the hearing constitutes substantial compliance with the Court’s Order. The People also stipulated that Mullison had substantially complied with all prior disciplinary orders and relevant rules.

The disbarment order also required Mullison to pay restitution to eleven separate clients for a total amount of $3,122. Restitution was also ordered as part of the criminal proceeding in Boulder County, Colorado (Case No. 1989CR12121) which included restitution to the same persons to which payment was owed pursuant to the disbarment order. Mullison made all reimbursement payments required under the Boulder District Court’s 1990 Judgment of Conviction in the amount of $3,385.14.3 Mullison has completed all drug treatment requirements from the Boulder County matters and has scrupulously maintained adherence to a drug-free lifestyle.

Mullison sat for and passed both the May 2002 Colorado Bar Examination and the Multistate Professional Responsibility Exam. He has remained current in the law by regularly reading The Colorado Lawyer, attending legal seminars throughout his period of employment, keeping abreast of the law through reading of case law, ethics opinions and disciplinary cases, and other legal publications.

Mullison candidly acknowledged and admitted that his disbarment for dishonesty and conversion of client funds was justified. He acknowledged the harm that he caused to his clients and the legal profession, and has paid reimbursement to his clients in full. He acknowledged the harm he caused to his wife and family, and is committed to setting an example to his children of the harm that can result from drug use. He forthrightly acknowledged and admitted that his prior conduct was deceptive, that he had, but ignored, opportunities to obtain help with his problems, and that he engaged in "rock bottom conduct."

Mullison is now forty-two years of age, does not suffer from any physical or emotional disorder, and has not used illegal drugs since November 1, 1989.

At the conclusion of the evidence, the People stipulated to Mullison’s readmission.

II. CONCLUSIONS OF LAW

Michael D. Mullison is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

C.R.C.P. 251.29(a) provides:

Readmission After Disbarment. A disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment. To be eligible for readmission the attorney must demonstrate the attorney’s fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission, properly verified, with the Presiding Disciplinary Judge, and furnish a copy to Regulation Counsel. Thereafter, the petition shall be heard in procedures identical to those outlined by these rules governing hearings of complaints, except it is the attorney who must demonstrate by clear and convincing evidence the attorney’s rehabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter. A Hearing Board shall consider every petition for readmission and shall enter an order granting or denying readmission.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988) interprets the language of the prior rule governing readmission to the bar, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. Klein requires:

[A]ny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the respondent’s state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the respondent, the personal and community service aspects of the respondent’s life, and the respondent’s recognition of the seriousness of his previous misconduct.

An attorney seeking readmission following disbarment must establish compliance with the provisions of C.R.C.P. 251.29(c). People v. Goff, 35 P.3d 487 (Colo. PDJ, August 4, 2002). Those provisions are as follows:

The facts other than the passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;

Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;

Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

Mullison filed a Verified Petition for Readmission on October 1, 2001 and paid the required filing fee. More than eight years have elapsed since the disbarment became effective.

Mullison established his efforts to maintain professional competence by passing the Colorado Bar Exam and the Multistate Professional Responsibility Exam. He has also established proficiency in the law while working as a paralegal for the last eleven years, conducting legal research and preparing briefs, maintaining client files, preparing forms, contacting clients, performing disbursements of payments on cases, and depositing the funds in the firm account. He has remained current in the law by attending Continuing Legal Education seminars and reading legal journals. Mullison has demonstrated his trustworthiness as an employee over an extended period of time by accepting and successfully completing work assignments, and has demonstrated honesty and integrity in the handling of both personal and professional monetary accounts.

Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed upon which the discipline is premised. Goff, 35 P.3d at 495, 496. The shortcoming may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. Id. It necessarily follows that the analysis of rehabilitation should be directed at the professional or moral shortcoming which resulted in the discipline imposed. Id., citing C.R.C.P. 251.29(c)(5); Tardiff v. State Bar, 612 P.2d 919, 923 (Cal. 1980)(citing Roth v. State Bar, 253 P.2d 969, 972 (Cal. 1953)(holding that in an application for reinstatement . . . the proof presented must be sufficient to overcome the court’s former adverse judgment of [the] applicant’s character). A prior disbarment based upon felonious conduct requires a close examination of the actual misconduct. Id.; In the Matter of Wegner, 417 N.W. 2d 97, 100 (Minn. 1987)(holding that the present fitness to practice law of an attorney seeking [readmission] must be considered in light of the offenses for which he or she was disbarred, citing Matter of Peterson, 274 N.W. 2d 922, 926 (Minn. 1979)); see also Avila v. People, 52 P.3d 230, 234 (Colo. O.P.D.J. 2002) 2002 Colo. Discipl. LEXIS 53. In this case, Mullison was disbarred due to the commission of two criminal acts. First, Mullison knowingly caused the falsification of a court document in an effort to hide from the client that he had not performed the work he had been retained to complete. In the second instance of criminal misconduct, Mullison knowingly utilized client funds in order to finance his cocaine habit.

Both of these criminal episodes reveal character deficits present at the time the events transpired. Both episodes and the additional episodes giving rise to the disbarment arose from Mullison’s placing his cocaine addiction above his professional responsibilities to his clients. In order to be readmitted to the practice of law, Mullison must establish that those character deficits present at the time of his misconduct have now been removed so as to insure that similar misconduct does not recur.

Mullison has established that he has undergone a fundamental character change. Goff, 35 P.3d at 496 n. 14. Almost immediately after his convictions, Mullison acknowledged the wrongfulness of his misconduct and began the lengthy process of restructuring his life. During his sentence in community corrections after the initial one hundred and twenty-nine day period, he continuously maintained jobs to support his family and earn the funds necessary to pay restitution. He pursued extensive programs and counseling aimed at rehabilitation and recovery. He has applied these concepts successfully to his routine life for over eleven years. The period of time which has transpired between Mullison’s last submission to his addiction and the time of this readmission proceeding, eleven years, is a significant factor. It independently demonstrates that Mullison has developed sufficient character to control his addictions and conform his personal conduct to the standards required by our society.

Mullison has engaged in community service by sharing the story of his professional and personal experiences with college students and school groups, informing them of the hazards of cocaine use. He was dedicated to Narcotics Anonymous and assisted in developing a chapter of "Coke Anon" in Fort Collins. His free time is currently focused on raising his children and coaching them and other children in sports. He has worked hard to overcome his former behavior and win back the trust of those he previously hurt and deceived. In that regard, he has focused on repairing his marital relationship, and providing honesty and guidance to his children by playing an active role in their upbringing.

Mullison has candidly acknowledged, expressed and demonstrated sincere remorse for his conduct. He did not attempt to use his drug addiction as an excuse for his previous behavior but at the same time, he acknowledged that his addiction played a major role underlying the actions leading to his disbarment.

By stipulation, the Office of Attorney Regulation Counsel has stipulated that Mullison has substantially complied with all rules pertaining to the underlying disciplinary matter and all disciplinary orders. That stipulation was accepted.

These facts demonstrate by clear and convincing evidence that Mullison no longer entertains the thought of using drugs to alleviate the difficulties in life, and is committed to return to the profession. Because Mullison has demonstrated that change in character, he is rehabilitated.

The evidence having established by a clear and convincing standard that Mullison has been rehabilitated, it is Ordered that Mullison shall be readmitted to the practice of law. Mullison shall appear before the Presiding Disciplinary Judge within thirty-one days of the date of this Order to take the oath of admission.

Substance abuse and/or addiction poses an ever present threat of recurrence. Although the evidence presented is both clear and convincing that Mullison is presently free from substance abuse, the remote possibility of relapse warrants the imposition of conditions upon Mullison’s readmission to the practice of law as an added measure of protection to the public.

III. ORDER

It is therefore ORDERED:

1. Mullison’s Petition for Readmission is GRANTED;

2. Mullison shall be subject to not more than fifteen random drug/ urinalysis tests during a period of twelve months from the date of this Order. The Office of Attorney Regulation Counsel shall initiate such tests at such times as they may elect.

3. Mullison is ORDERED to appear before the Presiding Disciplinary Judge within thirty-one days of the date of this Order to take the oath of admission;4

4. Mullison is ORDERED to pay the costs of these proceedings and the costs of all random drug testing;

5. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Petitioner shall have ten (10) days thereafter to submit a response thereto.

_______

1. C.R.C.P. 241.21 was replaced by C.R.C.P. 251.29 effective January 1, 1999.

2. At the time Mullison was required to file the affidavit he was not practicing law and had no clients. Consequently, no clients were exposed to potential harm as the result of his failure to file the required affidavit.

3. Mullison actually paid $7,157 as restitution in the criminal proceeding, but the database currently available reflects only payments made after 1993.

4. Prior to taking the oath of admission, Mullison shall pay all necessary fees to the Office of Attorney Registration.

 

 

Case Number: 02PDJ028

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

RORY SEGAL.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

December 31, 2002

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members Ralph G. Torres and Edward L. Zorn, both members of the Bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on October 16, 2002, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Ralph G. Torres and Edward L. Zorn, both members of the bar. Kim E. Ikeler, Assistant Regulation Counsel, represented the People of the State of Colorado ("People"). Rory Segal ("Segal"), the respondent appeared pro se.

The People filed a Complaint in this matter on April 30, 2002. The Citation and Complaint were sent via regular and certified mail to the Segal on the same date. The People filed a Proof of Service of Citation and Complaint on June 5, 2002. The Proof of Service showed that Segal had received a certified mailing of the Citation and the Complaint at an address in California and that the certified mailing of the Citation and Complaint also had been received at one of Segal’s Denver addresses. Segal failed to file an Answer or otherwise respond to the Complaint.

On June 26, 2002 the People moved for default on the claims set forth in the Complaint. On July 16, 2002 the PDJ granted the motion both as to the facts set forth in the Complaint and as to the claims alleged.

At the Sanctions Hearing, the People offered the testimony of Susan Lefebvre and exhibits 1 through 4, which were admitted into evidence. Segal provided testimony and argument regarding mitigation. The Hearing Board considered the parties’ argument, the facts established by the entry of default, the testimony of the witness and the exhibits, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Segal has taken and subscribed to the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 23, 1996 and is registered upon the official records of the Colorado Supreme Court, registration number 26867. Segal 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 established by the entry of default by clear and convincing evidence. See the Complaint attached hereto as Exhibit "A." The entry of default also established the alleged violations of the Rules of Professional Conduct set forth therein.

II. CONCLUSIONS OF LAW

The Complaint in the within matter alleges that Segal violated Colo. RPC 1.3(failure to act with reasonable diligence and promptness in representing a client and neglecting a legal matter) in claim one; Colo. RPC 1.4(a)(failure to communicate with the client and failure to explain a matter to the client so that the client can make informed decisions regarding the representation) in claim two; Colo. RPC 1.15(b) (failure to render a full accounting upon request by the client) in claim three; Colo. RPC 1.16(d)(failure to take steps to protect the client’s interest upon termination of the representation in claim four; Colo. RPC 8.4(c)(engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) in claim five; and Colo. RPC 8.1(b)(failure to respond to a lawful demand for information from a disciplinary authority) constituting grounds for discipline pursuant to C.R.C.P. 251.5(d) in claim six.

On February 9, 2000, Segal commenced representation of Dominic Pacheco ("Pacheco") in an action styled The People of the State of Colorado, Plaintiffs-Appellee v. Dominic Pacheco, Defendant-Appellant, Colorado Court of Appeals, Case No. 99CA1884 ("the appeal"). Segal was retained by Susan Lefebvre ("Lefebvre"), Pacheco’s mother, to handle Pacheco’s appeal and related matters. After initially filing a response to a show cause order, Segal failed to prepare or file an opening brief, failed to move for an extension of time to file the brief, and failed to respond to a second show cause order requiring Pacheco to show cause why the appeal should not be dismissed with prejudice for failure to file an opening brief. The court dismissed the appeal because it had not received an answer to the show cause order. Segal failed to take any further action on behalf of his client to reinstate the appeal.

Segal entered into an attorney/client relationship with Pacheco, thereby forming an obligation to perform the agreed-upon professional services. By agreeing to perform the requested services, Segal inherently represented that he would provide the services in accordance with the Colorado Rules of Professional Conduct. Thereafter, without either his client’s permission or an appropriate withdrawal from the attorney/client relationship, Segal failed to perform the agreed-upon professional services within a reasonable period of time, constituting neglect in violation of Colo. RPC 1.3. The extent of Segal’s neglect, in light of the professional services to be provided, taken together with Segal’s failure to communicate with the client justifies a finding 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. Lenahan, 52 P.3d 247, 253 (Colo. O.P.D.J. 2002). The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client. Id. The totality of facts establish that Segal deserted, rejected and/or relinquished the professional responsibilities owed to his client and thereby abandoned him.

Following his filing of one preliminary pleading with the court, Segal effectively abandoned his representation of Pacheco. Segal failed to give the client notice that he had abandoned their representation, failed to advise them to obtain other counsel, and otherwise failed to take steps to protect Pacheco’s interest. In addition, Segal failed to return to the client any portion of the $1500 deposit, not all of which Segal had earned. By these acts and omissions, Segal violated Colo. RPC 1.16(d), which provides: "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect the client’s interest, 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."

Segal failed to keep his client, Pacheco, reasonably informed about the status of the appeal, and failed to explain to Pacheco the ramifications of Segal’s failure to file an opening brief, to seek extensions of time, to respond to the court’s show cause order, to oppose dismissal or seek reconsideration of it, or file further pleadings in the appropriate court. By these acts and omissions, Segal violated Colo. RPC 1.4, which requires that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.

Segal had been paid $1500 as a "down payment" for representing Pacheco. When Lefebvre was not able to communicate with Segal and when she discovered that he had not performed the work for which he was hired, Lefebvre requested that Segal provide an accounting of the $1500 and return the funds to her. Segal failed to provide one and failed to return the unearned funds, thus violating Colo. RPC 1.15(b), which provides: "[u]pon receiving funds or other property in which a client . . . has an interest, a lawyer shall . . . deliver to the client . . . any funds or other property that the client . . . is entitled to receive and, upon request by the client or third person, render a full accounting regarding such property."

By accepting the client’s funds, failing to perform the services he was hired to perform, retaining the funds despite the client’s demand that he return the unearned portion over a substantial period of time, Segal engaged in knowing conversion of the client’s in violation of Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). See People v. Elliott, 39 P.3d 551 (Colo.O.P.D.J. 2000)(disbarring attorney for his accepting advance fees from two clients, performing some but not all of the services for which he was paid, retaining the fees for one year in one matter and two years in another matter, and abandoning the clients, citing People v. Singer, 897 P.2d 798, 801 (Colo. 1995)(holding that extensive and prolonged neglect is considered willful misconduct)); People v. Silvola, 915 P.2d 1281, 1284 (Colo. 1996)(finding that misconduct that occurred over an extended period of time must be deemed to be willful). Misappropriation of a client’s funds includes "not only stealing, but also unauthorized temporary use for the lawyer’s own purpose, whether or not he derives any personal gain or benefit therefrom." People v. Varallo, 913 P.2d 1, 11 (Colo.1996).

On August 9, 2001, the People sent to Segal via certified mail a Request for Investigation, requesting that he respond within twenty days. The letter was received by an individual at Segal’s address of 1200 Madison, Suite 654, Denver, Colorado 80206, on August 10, 2001. Segal failed to file any response to the Request for Investigation, either within twenty days or thereafter. On September 10, 2001, the People wrote to Segal at several of his known addresses, requesting again that Segal respond to the Request for Information and stating that it was overdue. Segal still did not contact the Office of Attorney Regulation Counsel or otherwise respond to the Request for Investigation. In late 2001, the People located respondent at a new address, 8380 Miramar Mall, #234, San Diego, California 92121. The People forwarded copies of documents related to the Complaint to Segal at this address. On January 16, 2002 and again on February 6, 2002, the People wrote to Segal again requesting that he respond to the Request for Investigation. Segal did not respond. On February 25, 2002, the People again wrote to Segal at the San Diego, California address, enclosing a proposed Report of Investigation, and requesting that Segal respond. He failed to do so. On March 11, 2002, the People wrote to Segal at the San Diego, California address listed above, stating that the matter would be proceeding to a formal Complaint. Segal did not respond.

By failing to respond to the Request for Investigation despite repeated attempts by the Office of Attorney Regulation Counsel to communicate with him, Segal violated Colo. RPC 8.1(b)(a lawyer shall not knowingly fail to respond reasonably to a lawful demand for information from a disciplinary authority) constituting grounds for discipline pursuant to C.R.C.P. 251.5(d)(failing to respond without cause shown to a request by the Regulation Counsel constitutes misconduct).

III. IMPOSITION OF SANCTION

Colorado law provides that in the absence of substantial mitigating factors, disbarment is the presumed sanction when an attorney knowingly misappropriates clients’ funds. Varallo, 913 P.2d at 11 (attorney disbarred for violating the predecessor of Rule 8.4(c) when he used for his own purposes death benefit funds belonging to an estate). The presumed sanction for knowing conversion coupled with abandonment of an attorney’s clients is disbarment. See People v. Townshend, 933 P.2d 1327, 1329 (Colo. 1997)(lawyer disbarred when he effectively abandoned two clients after accepting retainers and failing to account for or return the unearned retainers); People v. Jenks, 910 P.2d 688, 692 (Colo. 1996)(attorney disbarred for accepting legal fees from a number of clients and then abandoning them); People v. Tucker, 904 P.2d 1321, 1325 (Colo.1995)(lawyer disbarred who abandoned clients while continuing to collect attorney fees for work that would not be performed); People v. Fritsche, 897 P.2d 805, 806-807 (Colo.1995)(lawyer who effectively abandoned clients and disregarded disciplinary proceedings disbarred); People v. Ain, 35 P.3d 734, 739 (Colo. PDJ 2001) (attorney disbarred for conduct including abandonment of a client matter and knowingly converting funds).

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. ABA Standard 4.11 provides that "[d]isbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client."

ABA Standard 4.41(b) and (c) provide that disbarment is generally appropriate when:

(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or

(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to the client.

In the present case, Segal knowingly converted funds belonging to his client and knowingly failed to perform the services he was engaged to perform. Knowing conversion alone warrants disbarment. Varallo, supra. Segal’s neglect, failing to communicate, failing to provide an accounting, disregard of the legal needs of his clients, abandonment of his client, and Segal’s failure to participate in these proceedings, confirms that disbarment is warranted. See In the Matter of Stevenson, 979 P.2d 1043, 1044 (Colo. 1999) (attorney disbarred for having received payment of monies due to client, failing to deliver funds to client and failing to account for them); In the Matter of Bilderback, 971 P.2d 1061, 1063 (Colo. 1999) (attorney disbarred for conduct including failing to remit settlement funds to client); People v. Skaalerud, 963 P.2d 341, 342 (Colo. 1998) (same); People v. Ross, 35 P.3d 522, 524-25 (Colo. PDJ 2000)(attorney disbarred for conduct including failing to inform a client that a case had been dismissed and failing to communicate with the client).

Pursuant to ABA Standards 9.22 to 9.32 respectively aggravating and mitigating factors must be considered in arriving at the appropriate sanction. The facts established by the entry of default reveal several aggravating factors pursuant to ABA Standard 9.22. Segal had a dishonest or selfish motive by accepting funds for a specific purpose, failing to perform the work and retaining the funds despite the client’s request that he return the unearned portion, see ABA Standard 9.22(b). Segal failed to cooperate in the disciplinary proceeding with the exception of appearing at the Sanctions Hearing, see id. at 9.22(e), and he was indifferent to making restitution, see id. at 9.22(j). Although Segal expressed remorse and confirmed that he had the present ability to repay the $1,500 in the Pacheco matter, he has not made any attempt to repay the client.

Segal’s client was vulnerable, an aggravating factor pursuant to ABA Standards 9.22(h). Pacheco was in prison at the time of Segal’s representation. His mother raised the funds for Segal’s "down payment" with great difficulty and has not been able to raise sufficient funds to hire a replacement attorney. Finally, Segal has had prior discipline, an aggravating factor under ABA Standard. 9.22(a). In February, 2002, Segal was suspended for eighteen months with eight months stayed followed by a one year period of probation subject to conditions.1 People v. Segal, 40 P.3d 852 (Colo. O.P.D.J. 2002). That case involved similar misconduct, neglect and failure to communicate, in addition to other violations.

In mitigation, Segal established that he was inexperienced in the practice of law, see id. at 9.32(f). At the time of these events, Segal had been licensed to practice law slightly over three years and had established his own practice after graduating from law school. He had personal and emotional problems at the time, see id. at 9.32(c), and expressed remorse for his conduct, see id. at 9.32(l). Although Segal did not fully participate in these disciplinary proceedings, he flew from California to represent himself at the Sanctions Hearing. The mitigating factors presented by Segal are insufficient to lessen the presumed sanction of disbarment for knowing conversion.

IV. ORDER

It is therefore ORDERED:

1. RORY SEGAL, attorney registration 26867, is DISBARRED from the practice of law effective thirty-one days from the date of this order. His name shall be stricken from the roll of attorneys licensed to practice law in this state.

2. Segal is Ordered to pay restitution within one year of the date of this order to Susan Lefebvre in the amount of $1500, with interest at the statutory rate from October 16, 2002.

3. Segal 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. Segal shall have five (5) days thereafter to submit a response thereto.

EXHIBIT A

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this Court on May 23, 1996, and is registered upon the official records of this Court, registration no. 26867. He is subject to the jurisdiction of this Court in these disciplinary proceedings. The respondent’s registered business address is 8380 Miramar Mall, Suite 234, San Diego, California 92121. Other known addresses for respondent are 1200 Madison, Suite 654, Denver, Colorado 80206 and 1911 South Josephine, Denver, Colorado 80210.

CLAIM I

[Failing to act with reasonable diligence and
promptness in representing a client and
neglect of a legal matter — Colo. RPC 1.3]

2. Rule 1.3, Colorado Rules of Professional Conduct, provides:

A lawyer shall act with reasonable diligence in representing a client. A lawyer shall not neglect a legal matter entrusted to that lawyer.

3. Respondent failed to act with reasonable diligence, and neglected matters entrusted to him, during his representation of Dominic Pacheco ("Pacheco") in an action styled The People of the State of Colorado, plaintiffs-appellee, v. Dominic Pacheco, defendant-appellant, Colorado Court of Appeals, Case No. 99CA1884 (the "appeal"), an appeal from a judgment of conviction entered in Adams County District Court, Case No. 98CR2217 (the "trial court action"). The facts are as follows.

4. Pacheco was convicted on April 27, 1999 of multiple counts of kidnapping, menacing, assault and domestic violence. He was sentenced on June 30, 1999 to sixteen years in prison.

5. On September 21, 1999, from prison, Pacheco, acting pro se filed a notice of appeal. At about the same time he filed a motion for leave to proceed in forma pauperis in the trial court action. He also filed a motion to appoint private counsel, arguing that he had a conflict of interest with the public defender’s office.

6. On November 18, 1999, the Court of Appeals issued a show cause order, noting that Pacheco had failed to attach to his notice of appeal a final appealable order. The Court of Appeals gave Pacheco fourteen days to respond. It is not clear whether Pacheco received the show cause order.

7. On February 9, 2000, Pacheco’s mother, Susan Lefebvre ("Lefebvre"), retained respondent to handle Pacheco’s appeal and related matters. She paid respondent a retainer of $1500.00. Respondent wrote in hand a receipt which states:

Rory Segal received $1500.00 this 9th day of February, from Susan Lefebvre, as down payment for representation on appeal of Adams County District, Case No. 99CA1884; to fully investigate, formulate issues on appeal, and perform all appropriate actions in furtherance of the client’s (Dominic Pacheco) rights and interests — [signed] Rory Segal

Upon information and belief, respondent prepared no retainer agreement for this engagement other than the above-recited receipt.

8. On February 23, 2000, respondent filed in the appeal a response to show cause order. In his pleading, respondent entered his appearance on Pacheco’s behalf. Respondent attached a copy of the judgment of conviction, which apparently had not previously been provided to the Court of Appeals. Based on having provided a final appealable order to the court, respondent requested that the show cause order be discharged. The Court of Appeals discharged the show cause order on February 28, 2000.

9. On March 1, 2000, the Court of Appeals issued its notice of filing of record on appeal and briefing schedule. Copies were mailed to counsel of record including respondent. The Court of Appeals set the deadline for the filing of appellant’s opening brief for April 10, 2000.

10. Upon information and belief, respondent failed to act with reasonable diligence to prepare the opening brief, in that respondent neglected to review the record on appeal, neglected to consult with his client, Pacheco, neglected to conduct appropriate legal research, and neglected to prepare and file the opening brief by the April 10, 2000 deadline. On May 8, 2000, the Court of Appeals entered a second show cause order. The Court stated:

From a review of the file, it appears that the opening brief was due April 10, 2000, but that it has not been filed.

IT IS THEREFORE ORDERED that appellant shall show cause, if any there is in writing within fourteen days, why this appeal should not be dismissed with prejudice for failure to file an opening brief.

A copy of this show cause order was mailed to counsel of record, including respondent, on May 8, 2000.

11. Respondent failed to act with reasonable diligence to respond, and neglected to respond, to the May 8, 2000 show cause order. In addition, respondent neglected to file a motion with the Court of Appeals seeking to extend the time for filing the opening brief. On June 19, 2000 the Court of Appeals dismissed the appeal because it had received no answer to the show cause order. Copies of the order dismissing the appeal were mailed to all counsel, including respondent.

12. Respondent failed to act with reasonable diligence to respond to the dismissal. Respondent neglected to file a motion seeking reconsideration or to take other action directed toward reinstating the appeal. Respondent further failed and neglected to inform his client, Pacheco, of the event.

13. During the spring of 2000, respondent spoke a few times with Pacheco’s mother, Lefebvre. Beginning in early June, 2000, Lefebvre made numerous attempts to contact respondent by telephone, leaving messages on respondent’s voice mail. She had no success in reaching him. Nor did respondent call her.

14. On August 7, 2000, the Court of Appeals issued its mandate dismissing the appeal, copies of which were mailed to counsel of record including respondent.2 Respondent failed to act with reasonable diligence, and neglected to respond, to the mandate. Respondent failed to seek reversal of the mandate, or to otherwise take action to reverse the dismissal. Respondent further failed to notify his client of any of these events.

15. Rule 35(b), Colorado Rules of Criminal Procedure, provides that a court may reduce the sentence imposed by a judgment of conviction if a motion for reduction of the sentence is filed within 120 days after the receipt by the court of a remittitur issued upon dismissal of an appeal. Because the mandate was issued by the Court of Appeals on August 7, 2000, the deadline to file a motion under Rule 35(b) was November 5, 2000.

16. Respondent failed to act with reasonable diligence to inform Lefebvre or Pacheco of the opportunity to file a Rule 35(b) motion or that the deadline to do so was November 5, 2000. Respondent further failed to act with reasonable diligence to prepare such a motion and to gather information and documents in support of such a motion.

17. In January, 2001, after unsuccessfully attempting for months to contact respondent, Lefebvre called the Office of Attorney Regulation Counsel and learned that she could contact the Court of Appeals to inform herself concerning the status of her son’s case. Lefebvre called the Court of Appeals and was told that the appeal had been dismissed in June, 2000 and that the record on appeal had been returned to the district court in August, 2000.

18. In February, 2001, Lefebvre again attempted to contact respondent. Lefebvre left respondent a message telling him that Lefebvre had learned Pacheco’s appeal had been dismissed and that she was quite upset.

19. Respondent called Lefebvre back. Upon information and belief, respondent also contacted the Court of Appeals to obtain a copy of the order dismissing the appeal. After respondent confirmed that the appeal had been dismissed, he attempted to minimize his neglect by telling Lefebvre, "Well, we knew that wouldn’t fly."

20. During the week of February 12, 2001, respondent conferred with Lefebvre. Lefebvre understood that respondent’s continued assistance was consistent with her retention of him, which had been for the purpose not only of prosecuting Pacheco’s appeal but also performing any other appropriate actions in furtherance of Pacheco’s rights and interests. In what Lefebvre understood to be an effort to achieve this purpose, Segal and Lefebvre discussed filing a "motion for reconsideration" in the trial court action.3 Respondent scheduled a telephone conference between respondent, Lefebvre and Pacheco for the evening of February 21, 2001. During this call, respondent neglected to inform his client that the deadline for filing a motion under Rule 35(b) had passed.

21. Following the three-way call, respondent spoke to Lefebvre about exhibits respondent claimed were necessary for filing a motion to seek a reduction in Pacheco’s sentence. These included letters from friends and victims as well as a letter from Pacheco himself concerning his good conduct while in prison.

22. Lefebvre endeavored to obtain the letters respondent had requested. In mid-March, 2001, respondent visited Lefebvre and picked up the letters which Lefebvre had obtained to date. Respondent reviewed Pacheco’s letter and opined it needed revisions. Respondent did not tell Lefebvre that the deadline to file a Rule 35(b) motion had passed.

23. In early April, 2001, Lefebvre contacted respondent by phone. Respondent was in California. Lefebvre told respondent she had obtained an additional letter for use as an exhibit to the motion for reconsideration. Respondent gave Lefebvre a fax number to which she could transmit this. Respondent further told Lefebvre that he would be working on the motion while in California. Lefebvre tele-copied the remaining letter to respondent and contacted him via e-mail to confirm his receipt.

24. On May 1, 2001, respondent sent Lefebvre via e-mail revisions to Pacheco’s letter. Lefebvre made some additional revisions and returned it via e-mail to respondent. Respondent told Lefebvre by phone that respondent would come by to pick up additional documents Lefebvre had received. Respondent did not disclose that the time to file a Rule 35(b) motion had expired months before.

25. Respondent never appeared for this appointment. Later, Lefebvre learned respondent was having transportation problems and offered to assist him. Respondent told Lefebvre that, if he needed transportation, he would call Lefebvre.

26. Lefebvre never heard from respondent again. Upon information and belief, respondent never contacted Pacheco after this. Respondent failed to file the motion for reconsideration in the trial court action. In short, respondent failed and neglected to take any further action on the case.

27. On June 29, 2001, Lefebvre wrote to respondent, again asking him to contact her. Lefebvre further requested that, if respondent was unable to file the motion for reconsideration, that respondent return to Lefebvre the letters written by family and friends on Pacheco’s behalf. Respondent never responded, and never returned the letters.

28. From the foregoing, respondent failed to act with reasonable diligence and promptness in representing Pacheco in the appeal and in the trial court action. Instead, he neglected to file the opening brief, to respond to the Court of Appeals’ show cause order, to seek extensions of time, and to file the motion for reduction of sentence in the trial court action. As a result of his neglect, Pacheco has been damaged, by losing his rights of appeal and by losing his right to seek a reduction of sentence. Based on the foregoing, respondent should be subjected to discipline, as provided in C.R.C.P. 251.5, for violation of Colo. RPC 1.3.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

[Failure to keep the client reasonably informed about the
status of the matter and to promptly comply with
reasonable requests for information; failure to explain a
matter to the extent necessary to permit the client to
make informed decisions regarding the
representation—Colo. RPC 1.4]

29. Paragraphs 1 through 28 are incorporated herein.

30. Rule 1.4(a), Colorado Rules of Professional Conduct, provides: "A lawyer shall keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information."

31. Rule 1.4(b), Colorado Rules of Professional Conduct, provides: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

32. Respondent failed to keep his client, Pacheco, reasonably informed about the status of the appeal, either by communicating with Pacheco directly or through his mother, Lefebvre. Respondent further failed to explain to Pacheco, either directly or through his mother, the ramifications of respondent’s failure to file an opening brief, to seek extensions of time to do so, to respond to the Court of Appeals’ show cause order, to oppose dismissal or seek reconsideration of it, and to move to reduce Pacheco’s sentence in the trial court action. As a result of respondent’s failures to explain these matters, Pacheco did not have the information necessary to permit him to make informed decisions regarding respondent’s representation. The facts are as follows.

33. As discussed above, the Court of Appeals set the deadline for filing of the opening brief for April 10, 2000. Although respondent spoke with Lefebvre several times during spring, 2000, respondent did not inform Lefebvre that he had failed and neglected to review the record on appeal, to consult with Pacheco, to conduct appropriate legal research, and to prepare and file the opening brief by the April 10, 2000 deadline. Nor did respondent explain to Lefebvre or Pacheco the consequences which could result from respondent’s failure to act with reasonable diligence in this regard.

34. Beginning in early June, 2000, Lefebvre made numerous attempts to contact respondent by telephone. Lefebvre called respondent on June 6, 7, 8, 14, 15, 16, 19, and 27. She left messages, but received no response. Lefebvre continued to call during the month of July, on July 5, 11 and 19. Respondent did not return these calls either. Lefebvre did not call respondent during the months of August and September, on the assumption that respondent had not called her because he was awaiting developments in the Court of Appeals. Lefebvre again attempted to contact respondent on October 9, 19 and 30. She also called on November 10 and 24. She likely also called respondent during the month of December, 2000. Respondent answered none of these calls. Nor did respondent otherwise attempt to contact Lefebvre during months of June through December, 2000. Upon information and belief, respondent also did not attempt to contact Pacheco during this time period.

35. During the months of June through December, 2000, respondent made no effort to explain to Pacheco or Lefebvre the facts that he had failed to file the opening brief, that he had failed to respond to the Court of Appeals’ show cause order, that the appeal had been dismissed, that the mandate had entered, and that the deadline to file a motion under Rule 35(b), C.R.Crim.P., was November 5, 2000. Respondent further failed to explain to Pacheco or Lefebvre the consequences of these events.

36. In February, 2001, Lefebvre again attempted to contact respondent. Lefebvre left respondent a message telling him that she had learned Pacheco’s appeal had been dismissed and that she was quite upset as a result.

37. Respondent called Lefebvre back. During the week of February 12, 2001, respondent conferred with Lefebvre and discussed filing a motion for reconsideration in the trial court action.4 Respondent scheduled a telephone conference between respondent, Lefebvre and Pacheco for the evening of February 21, 2001. Following the three-way call, respondent spoke to Lefebvre about exhibits respondent claimed were necessary for filing a motion for reconsideration. These included letters from friends and victims as well as a letter from Pacheco himself concerning his good conduct while in prison. Respondent did not explain that the deadline for filing a Rule 35(b) motion had passed.

38. Over the next few weeks Lefebvre endeavored to obtain the letters respondent had requested. In mid-March, 2001, respondent, visited Lefebvre and picked up the letters which Lefebvre had obtained to date. Respondent suggested making revisions to Pacheco’s letter. Respondent did not tell Lefebvre the time to file a motion for reduction of sentence had expired.

39. On April 4, 2001, Lefebvre called respondent on his cell phone. Respondent was in California. Lefebvre told respondent she had obtained an additional letter for use as an exhibit to the motion for reconsideration. Respondent told Lefebvre he would be working on the motion while out of state. Respondent gave Lefebvre a fax number to which she could transmit the additional letter which Lefebvre had obtained. Respondent also gave Lefebvre an e-mail address at which to correspond with him.

40. During April, 2001, Lefebvre and respondent exchanged several e-mails, mostly concerning respondent’s schedule. On May 1, 2001, respondent sent Lefebvre via e-mail revisions to Pacheco’s letter. Lefebvre made some additional revisions and returned it via e-mail to respondent. Respondent told Lefebvre by phone that respondent would come to Lefebvre’s house to pick up additional documents Lefebvre had received.

41. Respondent never appeared for this appointment. Later, Lefebvre learned respondent was having transportation problems. She offered to assist him. Respondent told Lefebvre that, if he needed transportation, he would call her. Lefebvre never heard from respondent again. Upon information and belief, respondent never contacted Pacheco either after this point.

42. By failing to thereafter communicate with Lefebvre or Pacheco, respondent failed to keep them informed about the status of mattes in the trial court action and failed to respond promptly to Lefebvre’s request for information about the motion for reconsideration. Respondent further failed to explain his inaction concerning the motion for reconsideration to the extent necessary to permit Lefebvre and her son Pacheco to make an informed decision about respondent’s representation of Pacheco.

43. After numerous attempts to contact respondent, Lefebvre called the clerk of the Adams County District Court and learned that the motion for reconsideration had never been filed. Lefebvre then sent respondent a certified letter requesting that respondent contact her. She still received no response.

44. From the foregoing, respondent failed to keep Pacheco and his mother reasonably informed about the status of both the appeal and the trial court action. Respondent further failed to comply with Lefebvre’s many requests for information made on behalf of her son. Respondent further failed to explain to either Lefebvre or Pacheco respondent’s failure to file the opening brief, to respond to the Court of Appeals’ show cause order, to seek extensions of time, to take steps to reverse the Court of Appeals’ dismissal of the appeal, and to file a motion for reduction of sentence in the trial court action. Respondent’s failures in this regard prevented Lefebvre and her son, respondent’s client, for making informed decisions concerning respondent’s representation.

45. As a result of respondent’s failure and refusal to adequately communicate with his client, Pacheco, and Pacheco’s mother, Lefebvre, Pacheco has been damaged by losing his rights on appeal and by losing the opportunity for relief in the trial court action.

46. Based on the foregoing, respondent should be subjected to discipline, as provided in C.R.C.P. 251.5, for violation of Colo. RPC 1.4.

WHEREFORE, the complainant prays at the conclusion hereof.

Claim III

[Failure to render a full accounting regarding property of
another held by the lawyer, upon request — Colo. RPC 1.15(b)]

47. Paragraphs 1 through 46 are incorporated herein.

48. Rule 1.15(b), Colorado Rules of Professional Conduct, provides: "Upon receiving funds or other property in which a client or third person has a interest, a lawyer shall, promptly or otherwise as permitted by law or by agreement with the client, deliver to the client or the third person any funds or other property that the client or third person is entitled to receive and upon request by the client or third person, render a full accounting regarding such property."

49. Respondent failed to deliver to Lefebvre monies to which she was entitled, to wit, the $1,500 which Lefebvre deposited with respondent at the commencement of respondent’s purported representation. Lefebvre was due a return of those monies because respondent failed to do any meaningful work on Pacheco’s behalf and, in fact, seriously damaged Pacheco’s legal rights through respondent’s neglect. Respondent also failed to provide Lefebvre with an accounting which she requested of the funds. The facts are as follows.

50. As discussed above, on February 9, 2000, Lefebvre paid respondent $1,500 as a "down payment" for representing her son, Pacheco, in his appeal. Respondent promised "to fully investigate, formulate issues on appeal and perform all appropriate actions in furtherance of the client’s (Dominic Pacheco) rights and interest".

51. However, respondent did little to assist Pacheco. Other than filing a response to the Court of Appeals’ show cause order, respondent entirely abandoned his obligation to represent Pacheco in the appeal, including by failing to review the record on appeal, to conduct legal research, to prepare and file the opening brief, to respond to the Court of Appeals’ second show cause order, to oppose the dismissal, and to keep Pacheco, the client and his mother informed of these events.

52. Respondent also failed to assist Pacheco in the trial court action. Respondent neglected to inform Pacheco of his right to file a Rule 35(b), C.R.Crim.P. motion within 120 days of the Court of Appeals’ mandate. And, respondent failed to take any steps toward the filing of such a motion himself, until the time within which to do so had long since passed.

53. Because of these failures to act with reasonable diligence, and because respondent’s neglect resulted in Pacheco losing his right of appeal and right to have the trial court reduce the sentence, respondent earned none of the $1500 deposit. As a result, respondent was obligated to return those funds to Lefebvre. But, respondent has never done so.

54. Lefebvre requested an accounting from respondent of the $1,500, but respondent failed to provide one.

55. From the foregoing respondent failed to tender to Lefebvre funds to which she was due and refused to provide to Lefebvre an accounting of her funds. This resulted in damage to Lefebvre in the amount of at least $1500. Based on the foregoing, respondent should be subjected to discipline, as provided in C.R.C.P. 251.5, for violation of Colo. RPC 1.15(b).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim IV

[Failure to take steps to protect a client’s interest upon
termination of the representation — Colo. RPC 1.16(d)]

56. Paragraphs 1 through 55 are incorporated herein.

57. Rule 1.16(d), Colorado Rules of Professional Conduct provides: "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect the client’s interest, 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."

58. When a lawyer enters into an attorney/client relationship with another, an obligation to perform the agreed-upon professional services arises. By agreeing to perform the requested services, the lawyer represents that he will provide the services in accordance with the Colorado Rules of Professional Conduct. If the attorney thereafter, absent either his client’s permission or an appropriate withdrawal from the attorney/client relationship, fails to perform the agreed-upon professional services within a reasonable period of time, the attorney’s misconduct constitutes neglect. Under circumstances where the period of neglect, in light of the professional services to be provided, is accompanied by a failure to communicate with the client, the neglectful conduct may justify a finding of abandonment. People v. Hotle, 35 P.3d 185, 188-89 (Colo. 1999). Such as the case here.

59. Following his filing of the response to show cause order in February, 2000, respondent effectively abandoned his representation of Pacheco. Respondent failed to review the record on appeal, to consult with Pacheco, to conduct appropriate legal research, to prepare and file the opening brief, to respond to the Court of Appeals’ second show cause order, to seek extensions of time, to take steps to avoid dismissal, to seek reconsideration of dismissal or to seek a reduction of Pacheco’s sentence. Respondent failed to give Pacheco or Lefebvre notice that he had abandoned their representation, failed to advise them to obtain other counsel or to assist them in obtaining other counsel, and otherwise fail to take steps to protect Pacheco’s interest. In addition, respondent failed to return to Lefebvre her $1500 deposit which respondent had not earned.

60. After having abandoned his representation of Pacheco in the appeal, and after having ignored Lefebvre’s calls for eight months, respondent resumed communications with Lefebvre in February, 20001. Respondent made some desultory attempts to prepare to file a motion for reconsideration in the trial court action (a motion which in any event already was time-barred). However, after early May, 2001, respondent abandoned this representation as well.

61. As with his abandonment of the appeal, after respondent again abandoned Pacheco in May, 2001, respondent failed to take steps reasonably practical to protect Pacheco’s interest. Respondent failed to give Pacheco notice of his abandonment, failed to advise Pacheco to obtain other counsel, failed to assist Pacheco in doing so, and failed to refund to Lefebvre the fees which respondent had not earned.

62. Based on the foregoing, respondent failed to take the steps necessary to protect Pacheco’s interest following respondent’s abandonment of Pacheco’s appeal and Pacheco’s efforts to seek relief in the trial court action. As a result of respondent’s neglect, Pacheco has been damaged by losing his rights of appeal and by losing his right to seek a reduction of his sentence from the trial court. Based on the foregoing, respondent should be subjected to discipline, as provided in C.R.C.P. 251.5, for violation of Colo. RPC 1.16(d).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim V

[Engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation — Colo. RPC 8.4(c)]

63. Paragraphs 1 through 61 are incorporated herein.

64. Rule 8.4(c), Colorado Rules of Professional Conduct, provides: "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

65. Respondent engaged in dishonesty, fraud, deceit and misrepresentation during the course of his representation of Pacheco in the appeal and in the trial court action. The facts are as follows.

66. As discussed above, respondent took from Lefebvre a "down payment" of $1500 for work to be done representing Pacheco in the appeal. Respondent performed almost no work in that regard, other than filing a response to the Court of Appeals’ show cause order. As discussed in more detail above, respondent failed to file the opening brief, and failed to take any other action in the appeal, with the result that the appeal was dismissed.

67. Notwithstanding respondent having done no work to earn the $1500 paid to him by Lefebvre, respondent kept the $1500 and failed and refused to return it. Upon information and belief, respondent knowingly converted these funds to his own use.

68. Respondent’s dishonest intent was confirmed during spring, 2001, when respondent pretended to assist Pacheco in filing a "motion for reconsideration" with the trial court. Respondent engaged in communications with Lefebvre for the purported purpose of preparing a motion for reconsideration, but the circumstances (including the fact that the deadline to do so already had passed) show that respondent never intended to file such a motion.

69. From the foregoing, respondent engaged in dishonesty, fraud, deceit and misrepresentation in representing Pacheco in the appeal and the trial court action. Respondent kept Lefebvre’s funds even though respondent failed to perform any meaningful work on the appeal. And, respondent misled Lefebvre as to respondent’s intention to file the motion for reconsideration in the trial court action. As a result of respondent’s dishonesty and deceit, Lefebvre was damaged through the loss of her $1500 "down payment" and Pacheco was harmed by losing his rights of appeal and by losing his right to file a motion for reduction of sentence in the trial court action. Based on the foregoing, respondent should be subjected to discipline, as provided in C.R.C.P. 251.5, for violation of Colo. RPC 8.4(c).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim VI

[Failure to respond reasonably to a lawful demand
for information from a disciplinary authority —
Colo. RPC 8.1(b) and C.R.C.P. 251.5(d)]

70. Paragraphs 1 through 68 are incorporated herein.

71. Rule 8.1(b), Colorado Rules of Professional Conduct, provides: "A lawyer . . . in connection with a disciplinary . . . matter, shall not . . . knowingly fail to respond reasonably to a lawful demand for information from [a] . . . disciplinary authority. . . ."

72. Rule 251.5(d), Colorado Rules of Civil Procedure, provides: "Misconduct by an attorney, … including the following acts or omissions, shall constitute grounds for discipline …: (d) failure to respond without cause shown to a request by … the Regulation Counsel … ."

73. Respondent knowingly failed and refused without good cause to respond to the investigation in this action, despite repeated requests that he do so. The facts are as follows.

74. On August 9, 2001, Louise Culberson-Smith, Assistant Regulation Counsel, sent to respondent via certified mail a request for investigation. Ms. Culberson-Smith requested that respondent file a response to the request for investigation filed by Lefebvre. Respondent was to file his response within twenty days of his receipt of Ms. Culberson-Smith’s letter.

75. Ms. Culberson-Smith’s letter to respondent was received by one Crystal Lindfors, a person at respondent’s address of 1200 Madison, Suite 654, Denver, Colorado 80206, on August 10, 2001. Respondent failed to file any response to the request for investigation, either within twenty days or thereafter.

76. On September 10, 2001, Charles E. Mortimer, Jr., another Assistant Regulation Counsel, wrote to respondent at several of his known addresses, including the address listed in the paragraph above, pointing out to respondent that respondent’s response to the request for information was overdue. Mr. Mortimer advised respondent that, if respondent failed to respond, the investigation would proceed and the allegations in the request for investigation would be deemed uncontroverted. Mr. Mortimer further advised respondent that failure to cooperate can be, in and of itself, grounds for discipline. Respondent still did not contact the Office of Attorney Regulation Counsel or otherwise respond to the request for investigation.

77. In late 2001, the Office of Attorney Regulation Counsel located respondent at a new address, 8380 Miramar Mall, #234, San Diego, California 92121. Mary Lynne Elliott, an investigator with the Office of Attorney Regulation Counsel, forwarded to respondent at that address copies of documents related to Lefebvre’s complaint.

78. On January 16, 2002, Ms. Elliott again wrote to respondent, reminding him that the investigation had been assigned to Mr. Mortimer, and again requesting that he respond to the request for investigation within ten days. Respondent did not comply with this request.

79. On February 6, 2002, Mr. Mortimer again wrote to respondent at the San Diego, California address set forth above. Mr. Mortimer again reminded respondent of his obligation to respond to the request for investigation. Mr. Mortimer asked respondent to send a response within ten days. Mr. Mortimer reminded respondent again that failure to cooperate can be, in and of its self, grounds for discipline. Again, respondent ignored Mr. Mortimer’s request that he cooperate.

80. On February 25, 2002, Mr. Mortimer again wrote to respondent at the San Diego, California address. Mr. Mortimer enclosed a proposed report of investigation. Mr. Mortimer gave respondent until March 6, 2002 to contact Mr. Mortimer or submit a written statement. Respondent again failed to cooperate.

81. On March 11, 2002, John S. Gleason, Regulation Counsel, wrote to respondent at the San Diego, California address listed above. Mr. Gleason informed respondent that the request for investigation of respondent’s conduct had been considered by the Attorney Regulation Committee and that the Committee had determined the investigation disclosed facts warranting further proceedings by complaint. As he had with prior correspondence, respondent ignored this letter and has not to date contacted the Office of Attorney Regulation Counsel.5

82. From the foregoing, it is clear that respondent knowingly failed to respond without good cause to the requests of Attorney Regulation Counsel for information about Lefebvre’s request for investigation. Based on this, respondent should be subjected to discipline, as provided in C.R.C.P. 251.5, for violation of Colo. RPC 8.1(b) and C.R.C.P. 251.5(d).

WHEREFORE, the complainant prays at the conclusion hereof.

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5, and the Colorado Rules of Professional Conduct and that he be appropriately disciplined and assessed the costs of these proceedings.

_______

1. Segal stated that he did not send the notice required by C.R.C.P. 251.28(b) notifying Lefebvre of his suspension, although he did send notice to Pacheco.

2. The Colorado Court of Appeals register of actions contains notations that on May 15, 2000, June 23, 2000 and August 11, 2000, mailings sent to respondent were returned marked "moved, left no forwarding address". Respondent never provided a different address to the Court of Appeals.

3. Respondent did not mention Rule 35(b), C.R.Crim.P.; however, it was to this Rule respondent was alluding, because he told respondent that the motion would request a reduction in Pacheco’s sentence based upon his good behavior.

4. As discussed above, although respondent did not make specific mention of Rule 35(b), C.R.Crim.P., it appears from the context of respondent’s discussions with Lefebvre that respondent meant a motion for reduction of sentence pursuant to the Rule. Respondent explained to Lefebvre that, at the time of sentencing, the trial court judge was bound by the statute to sentence Pacheco to sixteen years in prison. But, respondent further represented that, following the appeal, the trial court now had the power to reduce the sentence if Pacheco had proved himself to be on the path to rehabilitation while in prison.

5. None of the letters sent by the Office of Attorney Regulation Counsel to the respondent at the San Diego, California address have been returned.

 

 

 

Case Number: 02PDJ045
(consolidated with 02PDJ057)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

MICHAEL A. VARALLO.

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

December 20, 2002

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion issued by a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Corinne Martinez-Casias and Barbara Weil Laff, both members of the bar of the State of Colorado.

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15(b) was held on December 19, 2002, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Corinne Martinez-Casias and Barbara Weil Laff, both members of the bar. James C. Coyle, Deputy Regulation Counsel, represented the People of the State of Colorado ("People"). Michael A. Varallo, the respondent, ("respondent") appeared pro se.

The People filed a complaint in this matter on June 5, 2002. The respondent failed to answer in a timely fashion and on July 16, 2002, the People filed a motion for default. The respondent subsequently filed a two paragraph answer and requested an extension of time to file an amended Answer. The respondent’s motion was granted to and including August 6, 2002. The respondent failed to file an amended answer to the Complaint.

An at-issue conference occurred on August 28, 2002. The respondent appeared and participated. At that time, the court entered discovery deadlines and other trial management deadlines, including an order that the parties use alternative dispute resolution or mediation to discuss resolution of the matter.

Initial disclosures were due on or before September 17, 2002. The respondent failed to provide initial disclosures. The People filed a motion for order compelling discovery on October 3, 2002. Respondent was ordered to respond on or before October 14, 2002. The respondent failed to file a response. On October 18, 2002, the court ordered that the respondent provide initial disclosures to counsel for the People on or before October 28, 2002; the respondent failed to do so. On October 30, 2002 the People filed a motion for sanctions. This motion for sanctions was granted on November 20, 2002, and respondent was precluded from introducing any evidence at trial except his own testimony in mitigation and cross-examination of witnesses.

In the interim, and on October 7, 2002 the People filed a motion for leave to file amended complaint. That motion was granted on November 1, 2002. The People filed an amended Complaint on November 4, 2002. Pursuant to C.R.C.P. 15(a), the respondent had ten days to file an Answer to the amended Complaint. The respondent failed to file an Answer. On November 20, 2002, the People filed a motion for default. The respondent did not respond.

On December 2, 2002 the pre-trial conference in the above-entitled matter occurred. Despite having received sufficient notice of the conference, respondent failed to appear. On December 9, 2002, the PDJ granted the People’s motion for default as to the facts set forth in the amended complaint, which were deemed admitted, and as to the claims set forth in the amended complaint, which were deemed established. The PDJ directed that the hearing scheduled for December 19–20, 2002, become a sanctions hearing on one day only, December 19, 2002. Copies of the PDJ’s order re: default were sent to the respondent at his registered business address.

At the Sanctions Hearing, the People presented and the PDJ admitted exhibits 1, 2 and 3. Respondent appeared and testified regarding mitigation and aggravation. The Hearing Board considered the exhibits, the facts established by the entry of default, respondent’s testimony, the argument of the parties, and made the following findings of facts which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Michael A. Varallo has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 14, 1999 and is registered upon the official records of the Supreme Court, registration number 31100. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

The October 14, 1999 admission to the Colorado Bar was the respondent’s second admission. The respondent was first licensed to practice law in Colorado in 1973. The respondent then engaged in conduct involving knowing conversion of client funds, resulting in his disbarment effective May 22, 1993. See People v. Varallo, 913 P.2d 1, 12 (Colo. 1996). The Colorado Supreme Court terminated Varallo’s disbarment effective December 31, 1998. The respondent passed the February 1999 Colorado Bar Examination, applied for readmission and thus obtained this second license to practice law in Colorado.

All factual allegations set forth in the amended Complaint were deemed admitted by the entry of default, and therefore are established by clear and convincing evidence. See Exhibit "1". The entry of default also deemed established the violations of the Rules of Professional Conduct set forth therein, except for Colo. RPC 1.15(a) (claim five), which was pled as an alternative claim.

II. CONCLUSIONS OF LAW

The order entering default against Varallo established that in the Sargsyan/Idinyan matter, Varallo violated Colo. RPC 1.1 (a lawyer shall provide competent representation to a client), Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client and shall not neglect a legal matter entrusted to that lawyer), Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter, and promptly comply with reasonable requests for information), Colo. RPC 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), Colo. RPC 8.4(c) (knowing conversion of client funds), Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal), Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to administration of justice), and Colo. RPC 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal). In the Dougherty-Trentlage matter, the respondent violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client and shall not neglect a legal matter entrusted to that lawyer) and Colo. RPC 1.4(a)(a lawyer shall keep a client reasonably informed about the status of a matter, and promptly comply with reasonable requests for information).

A review of the individual matters reveals the extent of Varallo’s misconduct. In the Sargsyan/Idinyan matter, Varallo agreed to represent six members of an Armenian family facing removal from this country, each client having different immigration issues and defenses. Varallo received a retainer of $1,000 for such representation. While Varallo deposited the retainer into his COLTAF account, prior to earning the deposited funds, he withdrew some of these client funds and exercised dominion and control over the funds without the consent of the clients.

Varallo was well aware of his obligations in the handling of client funds as he had previously been disbarred for knowing conversion of client funds and had been required as a prerequisite to readmission to establish that he understood the absolute necessity to keep client funds in trust until earned. See Varallo v. People, 35 P.3d 177, 180 - 181 (Colo. 1999).1

Varallo engaged in a pattern and practice of incompetence, neglect, and failure to communicate with these clients, and ultimately abandoned these clients in their immigration matters. The most severe examples of his misconduct involved Varallo’s failing to make adequate inquiry into, and analysis of, the substantive and procedural aspects of removal, asylum and marriage fraud proceedings in these clients’ matters, by failing to advise one family member (who was married to an American citizen) of the opportunity to file an I-130 petition, by failing to advise that same family member of the opportunity for filing an I-360 petition (as a result of her first marriage to another American citizen), by failing to notify his clients of the court ordered deadline for application for political asylum, by failing to notify the clients of an upcoming removal hearing, by failing to personally appear for that hearing despite a prior court order requiring him to do so, by failing to notify his clients of the judge’s order of removal, and by failing to advise his clients of the deadlines for filing an appeal or motion to reopen.

The immigration court ordered Varallo to personally appear at the February 27, 2001 hearing. The respondent knowingly disobeyed this order when he failed to personally appear and instead chose to appear by telephone. Such failure to attend this hearing prejudiced his clients and interfered with the procedures and the function of the immigration court.

Varallo also knowingly made a false statement of material fact to the immigration court after the court had entered orders of removal when he stated on the record that he was going to withdraw and had attempted to find new counsel for the family, but had difficulty scheduling a time when he, the new attorney and the family could meet. Varallo had made no effort to secure counsel, had made no effort to schedule a meeting, and had never told the family of his intentions to withdraw. The respondent knew these statements were not true at the time he made them to the court. These statements were made to deceive the court as to the level and extent of his failures to complete his professional tasks and to deceive the court on his clients’ lack of knowledge of the status of their proceedings.

In the Dougherty-Trentlage matter, Varallo represented a client in post dissolution proceedings. Varallo had agreed to prepare a qualified domestic relations order ("QDRO") on behalf of this client on January 17, 2001. Nevertheless, Varallo failed to communicate with the client over an extended period of months and neglected the client’s matter, ultimately failing to prepare the QDRO on behalf of the client, or otherwise notify the client that he would not finish the QDRO.

In both cases, Varallo’s misconduct caused and exposed his clients to serious injury.

III. SANCTION/IMPOSITION OF DISICIPLINE

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for this lawyer’s misconduct. ABA Standard 4.11 provides that disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.

ABA Standard 4.41 provides that disbarment is generally appropriate when:

(a) -lawyer abandons the practice and causes serious or potentially serious injury to a client; or

(b) -lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or

(c) -awyer engages in a pattern of neglect with respect to client matters and causes serious of potentially serious injury to a client.

ABA Standard 4.51 provides that disbarment is generally appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.

By his acts and omissions, Varallo abandoned the Sargsyan/Idinyan clients with the result that these clients had no effective representation during the course of their removal and marriage fraud proceedings. To establish 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. Scruggs, 52 P.3d 237 (Colo. O.P.D.J. 2002). The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the clients. Id. The totality of facts here establish that the respondent deserted, rejected and/or relinquished the professional responsibilities he owed to the Sargsyan/Idinyan family and therefore abandoned them. The presumed sanction for conversion and abandonment of an attorney’s clients is disbarment. See People v. Lenahan, 52 P.3d 247 (Colo. O.P.D.J. 2002) (attorney disbarred, inter alia, for abandonment of client matters); People v. Scruggs, supra (attorney disbarred, inter alia, for knowing conversion and abandonment of client matters).

In addition, the presumed sanction for conversion of client funds alone is disbarment. See People v. Katz, 58 P.3d 1176, 1995 (Colo. O.P.D.J. 2002); People v. Varallo, 913 P.2d 1 (Colo. 1996).

In this case, however, there is a third basis for disbarment. Varallo knowingly made a misstatement of material fact to a court in order to conceal his neglect of client matters. See People v. Kolbjornsen, 35 P.3d 181 (Colo. O.P.D.J. 1999); People v. Espinosa, 35 P.3d 552 (Colo. O.P.D.J. 2001) and People v. Roose, 44 P.3d 266 (Colo. O.P.D.J. 2002).

Pursuant to ABA Standards 9.22 and 9.32, respectively, aggravating and mitigating factors were considered in arriving at the appropriate sanction. At the sanctions hearing, respondent acknowledged that he made mistakes in the immigration cases due to his failing to calendar deadlines. He did not express remorse for his actions. Respondent’s testimony with regard to mitigation was not credible, accordingly, no factors in mitigation were considered.

In aggravation, Varallo has a prior disciplinary record, considered an aggravating factor pursuant to ABA Standards 9.22 (a); he had a dishonest or selfish motive, see id. at 9.22(b); he demonstrated a pattern of misconduct, see id. at 9.22(c); he engaged in multiple offenses, see id. at 9.22(d); he did not cooperate in this proceeding and thereby engaged in bad faith obstruction in the disciplinary proceeding, see id. at 9.22(e); he refused to acknowledge the wrongful nature of the conduct, see id. at 9.22(g); his clients were exceptionally vulnerable, depending on respondent to protect their abilities to reside in the United States, see id. at 9.22(h); and respondent has had substantial experience in the practice of law, see id. at 9.22(i).

Varallo’s knowing conversion of client funds, abandonment, intentional deception of his clients, false statements of material fact to the immigration court, and other instances of failure to communicate, neglect, abandonment, and failure to participate in this proceeding result in the conclusion that disbarment is required.

IV. ORDER

It is therefore ORDERED:

1. MICHAEL A. VARALLO, attorney registration 31100, is DISBARRED from the practice of law effective thirty-one days from the date of this order. His name shall be stricken from the roll of attorneys licensed to practice law in the State of Colorado.

2. Michael A. Varallo 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.

EXHIBIT "1"

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

Jurisdiction

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on October 14, 1999, and is registered upon the official records of this court, registration no. 31100. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered business address is 1817 Ninth Street, Greeley, Colorado 80631.

THE SARGSYAN/IDINYAN MATTER

2. Ruben Sargsyan and Susan Idinyan are Armenian citizens.2 The Sargsyan/Idinyan family (hereinafter referred to as "Sargsyan family" or "Sargsyans") has four children (two daughters and two sons). One of the daughters is named Nvart.

3. In the 1990’s, Nvart married an American named Vaughn Huckfeldt in Armenia. Mr. Huckfeldt lived in the same town as the Sargsyan family in Armenia.

4. Upon information and belief, Mr. Huckfeldt counseled local townspeople on methods to emigrate to the United States; Mr. Huckfeldt collected large fees from these residents in exchange for his promised assistance in helping them emigrate to the United States.

5. Mr. Huckfeldt then left Armenia with Nvart and returned to the United States. Upon information and belief, Mr. Huckfeldt told his "clients" that they were to contact the Sargsyans regarding their eventual emigration to the United States. The Sargsyans had no knowledge of Mr. Huckfeldt’s "business" with these individuals until after Mr. Huckfeldt left the country.

6. Once the other townspeople learned that Mr. Huckfeldt had left Armenia with their money, they approached and blamed the Sargsyans. Ruben Sargsyan was severely beaten. In addition, threats were made to have the two Sargsyan sons killed unless the Sargsyans restored the funds collected by Huckfeldt.

7. The Sargsyans sold their home and personal property and took out a loan in an effort to partially pay some of the affected individuals.

8. Eventually, the Sargsyans were able to flee Armenia after Mr. Huckfeldt arranged for Mr. Sargsyan to receive a U.S. student visa. The family arrived in the United States on or about January 30, 1999.

9. Nvart’s and the family’s relationship with Mr. Huckfeldt soon deteriorated. Mr. Huckfeldt had been abusive to Nvart and their newborn son, Joseph. Mr. Huckfeldt and Nvart were divorced in December 1999.

10. Shortly thereafter, Mr. Huckfeldt reported the Sargsyan family to the U.S. Immigration & Naturalization Service ("INS") in Dallas, Texas. Huckfeldt later filed a marriage fraud claim with the INS against Nvart. The Sargsyan family, including Nvart, were all thereafter subject to removal proceedings before the U.S. Immigration Court in Texas.

11. On January 12, 2000, an immigration agent in Dallas, Texas, issued separate notices to appear to Ruben Sargsyan, and the children (Meri, Gevorg and Hayk) to an incorrect address provided by Huckfeldt; the Sargsyan family therefore did not appear at the initial hearing. The mother, Susan, did not receive any notice to appear. Nvart only learned of the removal proceedings when she traveled to the Denver INS office in March 2000 to try to obtain a work permit.

12. On May 16, 2000, the Immigration Court in Dallas, Texas issued separate notices in removal proceedings to the Sargsyan family, setting a master hearing in Dallas on June 20, 2000. The notices were sent to the Sargsyan family’s correct address in Colorado.

13. Nvart retained the respondent in May 2000 to represent her family in their removal proceedings and to represent her in her marriage fraud case. An attorney-client relationship was thus formed between the respondent and all members of the Sargsyan family, including Nvart (hereinafter collectively referred to as "the clients").

14. Nvart stressed to the respondent in their initial meeting that the removal case was the most important of the two matters, given the substantial risk of removal and family members’ life endangerment if they were required to return to Armenia. Nvart informed the respondent of all those facts recited in paragraphs 2-12 hereinabove, and provided the respondent with psychological reports and documentary evidence of Mr. Huckfeldt’s abusive nature.

15. On May 22, 2000, Nvart’s current husband, Lloyd Noland, wrote a check in the amount of $1000 to the respondent. The respondent deposited the check into his COLTAF account on May 25, 2000.

16. The respondent incorrectly advised Nvart and Lloyd that the Sargsyan family should not apply for asylum, despite their stated belief that the Sargsyans would face probable death if they were removed and sent back to Armenia. The respondent also failed to recognize that spousal abuse by an American citizen could provide Nvart with legal remedies under immigration law and the Violence Against Women Act ("VAWA").

17. On May 31, 2000, the respondent appeared with Nvart in the marriage fraud matter in the immigration court in Denver. The court set a master hearing for August 9, 2000 at 9:30 a.m. with the respondent’s consent.

18. The respondent advised Nvart that the Sargsyan family would have to attend their master hearing set for June 20, 2000 in Dallas, Texas. Relying on the respondent’s advice, the entire family traveled to Dallas, and then learned that the respondent only needed to move for a change of venue. The judge ordered that venue be changed to Denver.

19. On June 23, 2000, the Immigration Court in Denver scheduled a master hearing for September 7, 2000 for the Sargsyans. Nvart faxed a copy of the notice to the respondent on June 29, 2000. The facsimile was received by the respondent’s office.

20. On June 29, 2000, Nvart also sent a letter to the respondent requesting application forms for asylum. The respondent received the letter, but did not respond.

21. Pursuant to the respondent’s billing records, the respondent spent 4.0 hours in May 2000 on the Sargsyan matters and then spent no other time until August 9, 2000. The respondent’s billing rate was $150 per hour; therefore, the total amount of time spent, and total amount of money earned, by the respondent in May through July 2000 was $600.

22. On July 10, 2000, the respondent’s balance in his COLTAF account dipped to $223.27, which is below the $400 of the Sargsyan trust funds that the respondent should have maintained in his trust account.

23. On August 9, 2000, Nvart was present at her marriage fraud hearing with the respondent; the respondent told the court that he had not "sorted the case out procedurally" at that point. The judge asked the respondent if Lloyd had filed an I-130 petition for Nvart, and the respondent replied that he had not. Nvart’s marriage fraud and removal case was set for an evidentiary hearing on January 29, 2001 at 1:00 p.m.

24. Despite having known that Nvart was now married to an American and despite the fact that the court had intimated that an I-130 petition could be filed by Lloyd on Nvart’s behalf, the respondent failed to advise them to do so and took no other action in this regard. Despite having been provided with psychological reports and other evidence that established spousal abuse by Mr. Huckfeldt and against Nvart, the respondent failed to recognize the possibility of filing an I-360 self-petition pursuant to VAWA.

25. On September 7, 2000, Nvart, Lloyd and the Sargsyans drove from their home in Ridgway to Denver to attend the master hearing for the removal matters. The respondent failed to appear. The respondent did not notify his clients beforehand that he would not appear at the master hearing. Lloyd requested a continuance based upon the absence of counsel, which was granted.

26. On September 7, 2000, the immigration court issued a notice of hearing in removal proceedings in the Sargsyans’ case, which set the continued master hearing for October 19, 2000. Lloyd sent the respondent a copy of the notice of hearing as the respondent had not yet filed a written entry of appearance. The respondent received this notice.

27. On October 19, 2000, the immigration court issued a notice of hearing in the Sargsyans’ removal case. A master hearing was set for January 29, 2001, based upon a statement from the respondent that he would move to consolidate Nvart’s and the Sargsyans’ cases. The Judge wrote "Respondents [Sargsyans] excused. Counsel must appear. Mr. Sargsyan must be by the phone." The notice was sent to the respondent as well as the Sargsyans. The respondent received this notice.

28. On October 23, 2000, the respondent filed separate entries of appearance with the Immigration Court on behalf of Ruben, Meri, Gevorg and Hayk Sargsyan. This was his first written appearance in their cases. The respondent took no action on behalf of Susan. The respondent failed to recognize or address the legal ramifications of not amending the proceedings to include Susan. These ramifications included, but were not limited to, a potential permanent bar to any subsequent application for asylum by Susan.

29. On November 2, 2000, Judge J.P. Vandello issued a minute order in the Sargsyans’ case, stating that the respondent had requested but then failed to file a motion for the consolidation of the clients’ cases. The judge therefore ruled that the cases would not be consolidated; the judge thus reset the Sargsyans’ cases for hearing on December 7, 2000. He excused the Sargsyans from attending the hearing, but ordered one of them to be waiting by the telephone. Nvart’s hearing was still set for January 29, 2001.

30. The court issued separate notices that a master hearing in each of the Sargsyans’ cases was set for December 7, 2000. The notices were sent to, and received by, the respondent as he was now counsel of record.

31. The respondent failed to notify his clients of the court notices, or of the December 7, 2000 hearing.

32. On December 7, 2000, the respondent appeared telephonically before the immigration court without the knowledge of the Sargsyans. The respondent admitted the charges against the family without having fully discussed the admission to the charges, or the legal effect of such admissions to the charges, with the family. The respondent told the judge that the Sargsyan family was going to seek asylum. On that date, the court ordered a deadline of February 27, 2001 for the filing of any application for asylum (Form I-589) to be filed with the INS. The court also set a merits hearing for February 27, 2001. The court ruled that the family could be present by telephone. The court directed the respondent to prepare two applications for political asylum - one for Ruben and his sons and another for Meri, who was an adult. The judge specifically ordered that the respondent was to be present at the hearing with the prepared asylum applications on February 27, and that since he was giving the respondent two months, he would grant no more extensions. A notice of hearing was sent to and received by the respondent.

33. The respondent failed to inform the family of the February 27, 2001 hearing or the deadline for asylum applications. The respondent also failed to address or discuss the legal issues involving Susan Idinyan. In addition, the respondent did not prepare the asylum applications.

34. On December 28, 2000, the Assistant District Counsel for the INS filed a motion to submit proposed exhibits for Nvart’s hearing on January 29, 2001. Copies of the motion and exhibits had been mailed to the respondent on December 26, 2000. The respondent failed to forward the documents to Nvart and filed nothing in response.

35. Nvart attempted to contact the respondent many times after October, 2000, but the respondent failed to return her calls. The last thing he told her was that all family members were to be by the telephone on January 29, 2001 for the next master hearing. It was Nvart’s understanding that her case had been consolidated with the Sargsyans’ removal matters, and that the judge had acknowledged the hardship on the family to travel to Denver and allowed them to be present by telephone. She did not know that she had to be present at her hearing on January 29, 2001 or face removal because the respondent had not advised her accordingly. She was also not made aware of the severe consequences of losing her proceedings, including being statutorily barred from proceeding under an I-130 or an I-360 petition in the future.

36. On January 25, 2001, the Assistant District Counsel for the INS mailed copies of additional exhibits for Nvart’s January 29 hearing to the respondent. The respondent received these documents. The respondent did not send copies of those documents to Nvart.

37. On January 29, 2001, the Sargsyans and Nvart gathered around the telephone at 1:00 p.m., the scheduled hearing time. Based on the respondent’s representations, they reasonably believed that the respondent would be attending the hearing on their behalf. The respondent called the Sargsyans at approximately 2:00 p.m. and said that the court had not made a decision. Approximately ten minutes later, the respondent called back and said the court had continued the hearing but that he did not know the new hearing date. The respondent did not mention to his clients the deadline for the Sargsyans’ applications for asylum or the February 27 hearing in their case.

38. On January 30, 2001 in Nvart’s case, the immigration court issued a notice of hearing, which set an individual hearing on August 8, 2001. Notice was sent to, and received by, the respondent. Pursuant to a notation made on his copy, the respondent did not send the notice to Nvart until June 11, 2001.

39. On February 27, 2001, the respondent appeared by telephone in connection with the Sargsyans’ case, in violation of the earlier court order requiring his personal appearance. With the respondent on the telephone, the judge entered orders of removal for the Sargsyans. The court then advised the respondent of the deadlines for an appeal (30 days) and for a motion to reopen (90 days).

40. The respondent stated on the record at the February 27, 2001 hearing that he was going to withdraw and had attempted to find new counsel for the family, but had had difficulty scheduling a time when he, the new attorney and the family could meet. This statement was not true. The respondent had made no attempt to notify the clients of the need to secure new counsel and had never told the family of his intentions to withdraw. The respondent knew these statements were not true at the time he made the statements. The statements were an attempt by this respondent to deceive the court on the level and extent of his neglect in failing to represent their interests in their removal proceedings. These statements were material in nature.

41. Despite the fact that the judge ordered the removal of the Sargsyans to Armenia and informed the respondent of the deadlines for appeal and to reopen, the respondent did nothing. The respondent failed to file the appeal, and failed to file a motion to reopen. The respondent also did not withdraw.

42. The respondent did not notify his clients of the court’s order of removal, of the deadlines for appeal, and of the deadlines for motions to reopen. The respondent also did not notify his clients of his intent to withdraw from representing them. Nor did the respondent notify the Sargsyans of his neglect of their matter.

43. On about May 17, 2001, each Sargsyan family member received a certified envelope from the INS containing a notice stating that they were deportable and ordering them to arrange for their departure to Armenia. They were instructed to report to the INS office in Denver on June 7, 2001 ready for deportation. The Sargsyans were horrified by the prospect of returning to Armenia where a number of people had threatened their family members’ lives.

44. Nvart attempted to contact the respondent on several occasions. The respondent did not return her calls.

45. Nvart eventually got in contact with the respondent in June 2001. The respondent told her at that time that he had "not been paid enough" on these matters and that he no longer handled immigration cases.

46. On about June 8, 2001, the family retained new counsel, Sandra Saltrese Miller, who had them execute applications for asylum and for withholding of removal. Shortly thereafter, Ms. Saltrese Miller filed a motion to reopen on behalf of the Sargsyans alleging ineffective assistance of counsel on the part of the respondent. She also filed for an emergency administrative stay of deportation on behalf of the family. Ms. Saltrese Miller has also been attempting to assist Susan Idinyan from being deported, despite the tolling of the statute of limitation on her ability to file for any relief.

47. On June 11, 2001, the respondent filed a motion to withdraw in Nvart’s case. The judge denied the motion because it did not set forth an address for service of Nvart that corresponded with the records of the court. It also did not advise Nvart of the next scheduled appearance.

48. Also on June 11, 2001, the respondent sent Nvart a check for $1,000 written on his operating account. That check was returned due to insufficient funds. Nvart’s bank charged her $30 for the returned item. Later, the respondent obtained a cashier’s check for $1,000 and sent it to Nvart. That check cleared.

49. On July 2, 2001, the immigration judge granted the Sargsyans’ motion to reopen filed by subsequent attorney Sandra Saltrese Miller. The Sargsyans (except for Susan) had a master/individual hearing in the removal matters on August 20, 2002. Orders of removal were again entered. These orders are now under appeal. Nvart has been cleared in the marriage fraud action, and can now proceed with her attempt to adjust her status pursuant to I-130 and/or I-360 applications. Attorney Saltrese Miller is also attempting to fashion legal recourse for Susan Idinyan, who is now ineligible to file for asylum.

CLAIM I

(A Lawyer Shall Provide Competent Representation
To A Client — Colo. RPC 1.1)

50. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

51. Colo. RPC 1.1 requires that a lawyer shall provide competent representation to a client, and that competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

52. The respondent failed to provide his clients competent legal representation:

a. by advising them in May 2000 that they were not eligible for application for asylum after failing to first make adequate inquiry into and analysis of the appropriateness of such advice;

b. by failing to file a motion for change of venue and instead instructing the Sargsyans that they had to appear at a June 20, 2000 hearing in Dallas, Texas without having first made adequate inquiry and analysis into the appropriateness of such advice;

c. by failing to prepare an I-130 petition, or have Lloyd file an I-130 petition based upon Nvart’s current marital status, despite intimations by the immigration court that such action should be taken, and by failing to prepare an I-360 petition;

d. by failing to make adequate inquiry into and analysis of the substantive and procedural aspects of removal, asylum and marriage fraud proceedings in the clients’ (including Susan’s) matters, and failing to become qualified to provide legal representation in these matters;

e. by failing to make adequate inquiry into and analysis of the factual circumstances involved in the clients’ matters in order to properly safeguard their interests during the course of their removal and marriage fraud proceedings;

f. by failing to associate with a lawyer competent in immigration matters, or in the alternative, by failing to timely decline representation of these clients in these immigration matters;

g. by remaining the attorney of record for these clients despite lacking the necessary knowledge, skill, thoroughness and preparation reasonably necessary for such representation;

h. by admitting the charges against the clients without having inquired into and analyzed the appropriateness of such admission made without client knowledge or consent; and

i. by abandoning these clients’ interests by neither filing asylum applications nor notifying the clients of the court’s direction in that regard, by failing to seek additional relief on behalf of Nvart or any relief on behalf of Susan, by failing to personally appear at the February 27, 2001 hearing and failing to timely notify the clients that they should be present at such hearing, by failing to notify the clients of the order of removal entered on that date, by failing to file an appeal or motion to reopen within the statutory deadlines, and by allowing these clients to be subject to removal without having exercised a minimal level of competence expected of an attorney under the same circumstances.

Each of these failures by the respondent constitutes a separate incident of failure to provide competent legal representation, as do all of them together.

53. The respondent knew or should have known that he was failing to provide competent legal representation to these clients, but made no effort to remedy the situation.

54. The respondent’s failure to provide competent legal representation to these clients caused serious or potentially serious injury to these clients.

55. The foregoing conduct of the respondent in failing to provide competent legal representation to these clients establishes grounds for discipline as provided in C.R.C.P. 251.5 and also violates Colo. RPC 1.1.

WHEREFORE, the complainant prays at the conclusion hereof.

Claim II

(A Lawyer Shall Act With Reasonable Diligence And
Promptness In Representing A Client And Shall Not Neglect
A Legal Matter Entrusted To That Lawyer — Colo. RPC 1.3)

56. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

57. Colo. RPC 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client, and that a lawyer shall not neglect a legal matter entrusted to that lawyer.

58. The respondent failed to act with reasonable diligence and promptness and neglected the clients’ legal matters in each of the following respects:

a. by failing to inquire into and analyze adequately the factual and legal elements of the clients’ immigration matters, and failing to adequately advise them of immigration procedures in their first meetings;

b. by failing to study and investigate these client matters adequately prior to advising Nvart and Lloyd that the Sargsyans were not eligible for asylum;

c. by failing to move for a change of venue in the removal proceedings that had been set in Dallas, Texas;

d. by continuing to fail to research, study and investigate adequately his clients’ legal matters during the time that master hearings were taking place;

e. by failing to file an I-130 petition on Nvart’s behalf, even after being instructed by the court to do so, and by failing to file an I-360 petition on Nvart’s behalf;

f. by continuing to fail to advise his clients properly and adequately on their legal matters to the extent reasonably necessary to permit those clients to make informed decisions regarding their representation;

g. by failing to appear at the September 7, 2000 master hearing in the removal proceedings;

h. by failing to file a written entry of appearance on behalf of the Sargsyans in the removal matters until October 2000;

i. by failing to file a motion to consolidate all of the client matters even after the respondent had already informed the court that he would do so;

j. by failing to notify his clients of the court notices for the December 7, 2000 hearing;

k. by admitting the charges against the clients in the removal proceedings without having fully discussed such action with these clients;

l. by failing to prepare asylum applications on behalf of these clients (including Susan) even after having been given clear notice by the court that there would be no extensions after February 27, 2001;

m. by failing to inform the clients of the February 27, 2001 evidentiary hearing or the deadline for asylum applications;

n. by failing to file proposed exhibits for the January 29, 2001 marriage fraud hearing;

o. by failing to forward the INS proposed exhibits to the client for the January 29, 2001, hearing;

p. by failing to advise the clients of their legal rights and duties in the immigration matters during the critical time periods of December 2000, January 2001 and February 2001;

q. by failing to notify Nvart that she had to be physically present at the January 29, 2001 hearing in order to avoid the possibility of removal;

r. by failing to inform the Sargsyans that they would be allowed to be present at the February 27, 2001 hearing by telephone, and by failing to inform them of the court’s order that the respondent had to be physically present for said hearing;

s. by failing to appear at the January 29, 2001 hearing, and by failing to advise the clients truthfully that he would not and did not appear for such hearing;

t. by failing to notify Nvart that the marriage fraud hearing had been rescheduled to August 8, 2000 (until the respondent moved to withdraw from the case on June 11, 2001);

u. by failing to comply with the court order that the respondent physically appear for the February 27, 2001 hearing;

v. by failing to notify the clients of the orders for removal entered on February 27, 2001, and of their right to file an appeal within thirty days, and of their right to file a motion to reopen within ninety days;

w. by failing to file a notice of appeal within the statutory deadline of thirty days;

x. by failing to file a motion to reopen within the statutory deadline of ninety days;

y. by failing to inform the court that his clients were unaware of the February 27, 2001 hearing prior to the entry of the order of removal;

z. by failing to withdraw from these clients’ matters despite the fact that the respondent had so severely and grossly neglected them; and

aa. by failing to keep the family adequately informed as to the status of their legal matter throughout these proceedings.

Each of these failures by the respondent constitutes a separate incident of lack of diligence and promptness, and/or neglect, as do all of them together.

59. The respondent knew or should have known that his lack of diligence and promptness, and/or neglect continued to occur over a period of months and involved a pattern and practice of lack of diligence and promptness, and/or neglect.

60. The respondent’s lack of diligence and promptness, and/or neglect caused serious or potentially serious injury to these clients.

61. The respondent’s pattern and practice of failing to accomplish his professional tasks for these clients constitutes abandonment of the professional responsibilities owed to these clients.

62. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 1.3.

WHEREFORE, the complainant prays at the conclusion hereof.

Claim III

(A Lawyer Shall Keep A Client Reasonably Informed
About The Status Of A Matter, Promptly Comply With
Reasonable Requests For Information, And Explain A
Matter To The Extent Reasonably Necessary To Permit
The Client To Make Informed Decisions Regarding
The Representation — Colo. RPC 1.4(a) and (b))

63. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

64. Colo. RPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

65. This respondent failed to keep the clients reasonably informed about the status of their legal matters and failed to comply promptly with reasonable requests for information in the following respects:

a. by failing to respond to Nvart’s request for forms to seek asylum;

b. by failing to advise Nvart of the opportunity for Lloyd to file an I-130 petition and the possible legal effects of failing to do so, and by failing to advise Nvart of the opportunity for filing an I-360 petition;

c. by failing to advise the clients of his intent to file motions to consolidate their cases and of the possible legal effects of his failure to so;

d. by failing to inform the clients of the court notices on the December 7, 2000 master hearing;

e. by failing to advise the clients of the possible legal effect of his admission to the charges against the clients at the December 7 hearing and of the possible legal effects of such admission;

f. "by failing to notify the clients of the court ordered deadline of February 27, 2001 for the application for political asylum and failure to advise the clients (including Susan)of the possible legal effects of failing to file said applications;

g. by failing to notify the clients of the February 27, 2001 hearing, and of the requirement that the respondent personally appear for that hearing, and of the ruling that the family could be present by telephone, and of the possible legal effects of failing to abide by that court order;

h. by failing to advise Nvart of the proposed exhibits in the January 29, 2001 and February 27, 2001 hearing, and failing to notify the clients of the respondent’s failure to file proposed exhibits on their behalf and the possible legal effects of such failures;

i. by failing to respond to reasonable requests for information made by the family between October 2000 and January 2001;

j. by failing to notify Nvart that she had to be physically present at the marriage fraud hearing on January 29, 2001 or of the possible legal effects, including removal, for such failure to appear;

k. by failing to notify the clients of the respondent’s failure to appear at the September 7, 2000 hearing and the January 29, 2001 hearing, and of the possible legal effects of his failures to appear;

l. by failing to advise the clients accurately as to the status of their cases when he spoke with them on January 29, 2001;

m. by failing to notify Nvart (until June 11, 2001) of her individual hearing on the marriage fraud case, set for August 8, 2001;

n. by failing to notify the family of the judge’s orders of removal in their cases;

o. by failing to advise the clients of the opportunity and deadline for filing an appeal of the orders of removal;

p. by failing to notify the clients of the opportunity and deadline for filing a motion to reopen their cases;

q. by failing to notify the clients of his stated intention (to the court) that he "was going to withdraw and had attempted to find new counsel for this family;"

r. by failing to notify the family of the potential effects of his neglect in not filing an appeal, a motion to reopen, or a motion to withdraw;

s. by failing to return Nvart’s telephone calls after the clients received notice on May 17, 2001 that they were deportable and that they should arrange for their departure to Armenia;

t. by failing to inform the clients fully and promptly of any other material developments in their matters;

u. by failing to examine the clients’ legal affairs adequately, and report about them to the clients;

v. and by failing to maintain minimum communications with the clients throughout the course of the representation.

Each of these failures to communicate adequately with these clients constitutes a separate violation of Colo. RPC 1.4(a) as do all of them together.

66. The respondent knew or should have known that he had failed to communicate adequately with his clients over an extended period of months.

67. The respondent’s pattern and practice of failing to communicate with his clients caused serious or potentially serious injury to these clients.

68. The respondent’s failure to communicate on these matters constitutes abandonment of the professional responsibilities owed to these clients.

69. Colo. RPC 1.4(b) provides that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

70. The respondent failed to explain to these clients the matters in which they were involved to the extent reasonably necessary to permit them to make informed decisions in the following respects:

a. by failing to explain sufficiently their legal rights and obligations in the removal proceedings, the marriage fraud action, and possible asylum proceedings, and explain the practical implications therein;

b. and by failing to inform the clients fully and promptly of material developments in their matters to permit them to make informed decisions regarding the representation.

Each of these failures to explain constitutes a separate violation of Colo. RPC 1.4(b) as do both of them together.

71. The respondent knew or should have known that he failed to adequately explain these legal matters to these clients over an extended period of months.

72. The respondent’s pattern and practice of failing to explain these legal matters to these clients caused serious or potentially serious injury to these clients.

73. The respondent’s failure to adequately explain these clients’ matters constitutes abandonment of the professional responsibilities owed to these clients.

74. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 1.4(a) and (b).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim IV

(A Lawyer Shall Not Engage In Conduct Involving
Dishonesty, Fraud, Deceit Or Misrepresentation
(Knowing Conversion) — Colo. RPC 8.4(c))

75. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

76. Colo. RPC 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

77. Commencing on July 10, 2000 the balance in the respondent’s trust account dipped below the amount of funds that should have been held in trust on behalf of the clients. This dip resulted from the respondent’s conduct in writing checks or withdrawing funds from the trust account for purposes other than for the Sargsyan clients during that time period.

78. The respondent exercised dominion and ownership over funds held in trust on behalf of these clients.

79. The respondent did not have the consent of the clients or Mr. Noland to use the clients’ funds for his own purposes, or any other purpose other than these clients’ purpose.

80. The respondent was well aware of his obligations in the handling of client funds as he had previously been disbarred for knowing conversion of client funds (People v. Varallo, 913 P.2d 1 (Colo. 1996)), and had been required as a prerequisite to readmission to establish that he had been rehabilitated and fit to practice law (Varallo v. People, 35 P.3d 177 (Colo. 1999)).3

81. Through his unauthorized exercise of dominion or ownership over client funds as described above, the respondent knowingly converted or misappropriated funds belonging to his clients.

82. Through his knowing conversion or misappropriation of client funds, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

83. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 8.4(c).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim V

(Alternative Claim of Negligent Or Technical
Conversion — Colo. RPC 1.15(a))

84. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

85. Colo. RPC 1.15(a) provides that an attorney is required to hold the property of clients or third persons that is in an attorney’s possession separate from the attorney’s own property.

86. By allowing his COLTAF trust account to dip below the amount of client funds that the respondent was required to have kept in trust, the respondent converted and/or misappropriated such client funds prior to the them being earned.

87. By removing these funds from the trust account, the respondent failed to hold the client property in trust. The respondent did not have the consent of the client or Mr. Noland to keep said funds elsewhere.

88. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 1.15(a).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim VI

(A Lawyer Shall Not Knowingly Disobey An Obligation
Under The Rules Of A Tribunal — Colo. RPC 3.4(c))

89. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

90. Colo. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal.

91. The respondent knowingly disobeyed a court order by failing to attend the February 27, 2001 hearing when specifically ordered to do so.

92. No exception exists under Colo. RPC 3.4(c) for the respondent’s knowing failure to attend the hearing.

93. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 3.4(c).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim VII

(A Lawyer Shall Not Engage In Conduct That Is Prejudicial
To The Administration Of Justice — Colo. RPC 8.4(d))

94. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

95. Colo. RPC 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

96. By failing to attend a hearing when ordered by the court to do so, the respondent acted in contravention of the court’s authority.

97. Such failure to attend interfered with the ebb and flow of the procedures and the function of the court.

98. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 8.4(d).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim VIII

(A Lawyer Shall Not Knowingly Make A False Statement
Of Material Fact Or Law To A Tribunal — Colo. RPC 3.3(a)(1)).

99. Paragraphs 1 through 49 are incorporated herein as if fully set forth.

100. Colo. RPC 3.3(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact to a tribunal.

101. On February 27, 2001, the court entered orders of removal for the clients because no application for asylum had been filed on their behalf. The court also advised the respondent of the deadlines for an appeal and the motion to reopen.

102. At that time the respondent stated on the record that he was going to withdraw and had attempted to find new counsel for the family, but had had difficulty scheduling a time when he, the new attorney and the family could meet.

103. The above statements by this respondent were not true. The respondent had made no attempt to secure counsel, had made no effort to schedule a meeting, and had never told the family of his intentions to withdraw.

104. The respondent knew that the above statements were not true at the time that he made the statements.

105. The respondent’s statements were an attempt by this attorney to deceive the court on the level and extent of his failures to complete his professional tasks and to deceive the court on his clients’ lack of knowledge of the status of their proceedings.

106. The respondent’s false statements were of a material fact.

107. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5 and also violates Colo. RPC 3.3(a)(1).

WHEREFORE, the complainant prays at the conclusion hereof.

THE DOUGHERTY-TRENTLAGE MATTER

108. Tracy Dougherty-Trentlage hired Greeley attorney Robert Ray to represent her in a dissolution of marriage action. The respondent had been Mr. Ray’s legal assistant while under an order of disbarment. See People v. Varallo, 913 P.2d 1 (Colo. 1996).

109. During the course of attorney Ray’s representation in the Dougherty matter, the respondent was the primary, if not exclusive, contact with Ms. Dougherty-Trentlage. The separation agreement was entered into and filed on September 20, 1999. The decree of dissolution was also entered on September 20, 1999.

110. Pursuant to the separation agreement, a qualified domestic relations order ("QDRO") was to be prepared by the attorney for Ms. Dougherty-Trentlage. C.R.S. § 14-10-113 provides that such QDRO should be prepared and submitted to the plan administrator within ninety days after entry of decree and the permanent orders.

111. The respondent was readmitted to the practice of law effective October 6, 1999. The respondent left attorney Ray’s office shortly thereafter. Ms. Dougherty-Trentlage remained a client of attorney Ray.

112. Attorney Ray did not complete the QDRO on Ms. Dougherty-Trentlage’s behalf.

113. On January 17, 2001, Ms. Dougherty-Trentlage hired the respondent to finish the QDRO and handle another post-dissolution matter. Ms. Dougherty-Trentlage and the respondent entered into an attorney-client relationship.

114. The respondent agreed that he would prepare the QDRO. The respondent also agreed that he would also represent Ms. Dougherty-Trentlage on a potential request for modification of permanent orders that the ex-husband intended to file.

115. The respondent reviewed an already-prepared draft of the QDRO as well as the court-approved separation agreement on January 17, 2001.

116. On January 29, 2001, the respondent had an office conference with the client. At that conference, the respondent informed Ms. Dougherty-Trentlage that he was working on the QDRO. In addition, the respondent prepared a response to a motion for modification and enforcement of parenting time and child support issues that was filed by the ex-husband on January 24, 2001. On that same date, the respondent drafted a motion for mediation (regarding the parenting time and child support issues).

117. The respondent and the client met briefly on February 2, 2001. At the time, Ms. Dougherty-Trentlage paid the respondent his requested retainer of $500. At that time, the respondent assured his client that he would finish the QDRO.

118. On February 2, 2001, the respondent filed a motion for substitution of counsel, whereby the respondent entered his appearance as attorney of record for and on behalf of Ms. Dougherty-Trentlage and in substitution for attorney Robert E. Ray in the post-dissolution proceedings.

119. The respondent’s motion for mediation and the respondent’s response to verified motion for modification and enforcement of parenting time and child support issues were filed with the Weld County District Court on February 6, 2001.

120. On February 9, 2001, the court granted the motion for mediation and ordered the parties to engage in mediation prior to setting any court hearing in the matter.

121. In February 2001, the respondent informed his client that he was either going to a seminar on QDROs or was doing further research on the topic, and would then finish her QDRO. The respondent’s billing records demonstrate that Ms. Dougherty-Trentlage had a $170 balance on her retainer as of March 1, 2001.

122. Ms. Dougherty-Trentlage and her ex-husband attended mediation on Tuesday, March 20, 2001. The parties resolved parenting time, child support and medical costs; some issues involving finances and traveling with the children remained. The certificate of completion of mediation was filed by the mediator on March 23, 2001.

123. On March 26, 2001, the respondent paid Ms. Dougherty-Trentlage’s portion of the mediation bill in the amount of $128.75 from his office operating account. The respondent had sufficient funds in the trust account on behalf of Ms. Dougherty-Trentlage to pay this amount.

124. In March and April, 2001, Ms. Dougherty-Trentlage continued to contact the respondent to determine the status of the QDRO. The respondent continued to state that he was working on the matter.

125. On May 1, 2001, the respondent had another office conference with the client, the ex-husband and the ex-husband’s attorney. The status of the QDRO was discussed. The respondent stated that he was finishing the QDRO.

126. The respondent did not finish the QDRO as promised on May 1, 2001, however, and did not submit the same to opposing counsel. The respondent states he submitted a bill to his client for the amount of $318.75 on May 6, 2001. The client states she never received this May 6, 2001 bill.

127. On June 14, 2001 the respondent had another office conference with the client. At that time, Ms. Dougherty-Trentlage again inquired as to the status of the QDRO. Respondent stated that he was working on it.

128. The respondent prepared a June 15, 2001 memorandum; the last item in that memo stated as a reminder to himself "Finish the damn QDRO." The respondent prepared the memorandum following the meeting with his client.

129. On July 4, 2001, the respondent submitted another bill to Ms. Dougherty-Trentlage. While the billing states that the June 14 conference lasted .8 hours (and therefore an additional $120.00 was owed), the "total due" remained at $318.75.

130. Ms. Dougherty-Trentlage did not pay the $318.75 when she received the July 2001 billing statement because the respondent had not yet completed his job. At that time, Ms. Dougherty-Trentlage felt frustrated at waiting two and a half years to get the QDRO complete.

131. The respondent has alleged that he refused to work on the QDRO after July 2001 due to his client’s failure to pay his $318.75 bill. The respondent admits, however, that he did not inform his client that he refused to work on her matter unless she made further payment. The respondent remained counsel of record and had a continuing obligation to complete his professional tasks.

132. The respondent `did no further work on Ms. Dougherty-Trentlage’s matter.

133. On September 6, 2001 opposing counsel wrote to the respondent and stated:

I know you were going to prepare a QDRO, but since it was supposed to be done within ninety days of the decree pursuant to statute I am curious how we are going to accomplish it at this late date.

Mr. Dougherty has informed me that he will just accept the present court ordered parenting time and does not wish to pursue the motion to modify at this time. Are there any matters your client wishes to pursue other than the QDRO?

Your response within ten days would be greatly appreciated.

134. The respondent received the September 6, 2001 letter. Nevertheless, the respondent did not respond to attorney Rawling’s request for information on the QDRO, and failed to finish the QDRO.

135. On December 26, 2001 Ms. Dougherty-Trentlage filed a request for investigation against the respondent in this matter.

136. On February 21, 2002 the respondent filed his response to the request for investigation. In that response, the respondent states:

"I have reviewed the request for investigation filed by Tracy Dougherty-Trentlage. She completely omits the crucial fact that she has failed to pay me for past fees and costs, including an advance paid by me of $128.75 to the mediator. Since I do not intend to work for free, I refused to do any further work until my past due bill was paid, and reasonable retainer was paid for future work.

. . .

If I had been paid, I could have finished the QDRO in about one more hour of work."

137. Contrary to the respondent’s February 21, 2002 statements, there were sufficient funds in the trust account to pay the March, 2001 mediator bill. There were also sufficient funds in the trust account in February 2001 for the respondent to complete the QDRO in one hour’s time (the respondent’s billed hourly rate was $150). The respondent nevertheless failed to finish the QDRO.

Claim IX

(A Lawyer Shall Act With Reasonable Diligence And
Promptness In Representing A Client And Shall Not Neglect
A Legal Matter Entrusted To That Lawyer — Colo. RPC 1.3)

138. Paragraphs 108 through 137 are incorporated herein as if fully set forth.

139. Colo. RPC 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client, and that a lawyer shall not neglect a legal matter entrusted to that lawyer.

140. The respondent failed to act with reasonable diligence and promptness and neglected Ms. Dougherty-Trentlage’s legal matter by failing to prepare the QDRO on behalf of his client, or otherwise notify the client that he would not finish this professional task.

141. The respondent knew or should have known that his lack of diligence and promptness, and/or neglect continued to occur over a period of months and involved a pattern and practice of lack of diligence and promptness, and/or neglect.

142. The respondent’s lack of diligence and promptness, and/or neglect caused injury or potential injury to the client.

143. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 1.3.

WHEREFORE, the complainant prays at the conclusion hereof.

Claim X

(A Lawyer Shall Keep A Client Reasonably Informed About
The Status Of A Matter, and Promptly Comply With
Reasonable Requests For Information — Colo. RPC 1.4(a))

144. Paragraphs 108 through 137 are incorporated herein as if fully set forth.

145. Colo. RPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

146. This respondent failed to keep the client reasonably informed about the status of the legal matter and failed to comply promptly with reasonable requests for information by failing to advise Ms. Dougherty-Trentlage that he would not handle her legal matter in a timely fashion, particularly after he decided that he would not finish such matter.

147. At a minimum, the respondent had the duty to notify his client in July, 2001, that he would not perform any further services on her behalf until and unless she made further payment to him.

148. The respondent knew or should have known that he had failed to communicate adequately with his client over an extended period of months.

149. The respondent’s pattern and practice of failing to communicate with the client caused injury or potential injury.

150. The foregoing conduct of the respondent establishes grounds for discipline as provide for in C.R.P.C. 251.5 and violates Colo. RPC 1.4(a).

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5, and the Colorado Rules of Professional Conduct as specified above and that he be appropriately disciplined and assessed the costs of these proceedings.

_______

1. The conditions upon Varallo’s readmission included submitting quarterly reconciliation reports of both his operating and trust accounts reflecting each and every deposit and withdrawal from such accounts to the Office of Attorney Regulation Counsel for a period of 3 years, and fully cooperating with the Office of Attorney Regulation Counsel in explaining and submitting requested detail contained in such reports. Additionally, during the first thirty-six months of Varallo’s readmission, he was prohibited from practicing as a solo practitioner; any trust account over which Varallo had signature authority required the signature of a second attorney who had full and complete access to the documentation justifying such withdrawals to effectuate a withdrawal, and he was to secure the services of an independent accounting service to maintain the financial records of his law practice and make all records available to the Office of Attorney Regulation Counsel upon request.

2. In Armenia, the women retain the mother’s surname.

3. In the readmission opinion, the court stated: "Varallo’s disbarment was based on financial issues. Varallo’s experiences during the period of his disbarment firmly established the necessity of conducting the finances of a law practice with the utmost attention to ethical considerations. He identified several practices followed by his supervising attorney which he intends to implement in order to prevent any possibility of a recurrence of his earlier misconduct." See Varallo at 179.

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