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TCL > April 2003 Issue > Summaries of Opinions

The Colorado Lawyer
April 2003
Vol. 32, No. 4 [Page  125]

© 2003 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Colorado Disciplinary Cases

Summaries of Opinions

Summaries of Decisions Issued by the Presiding Disciplinary Judge
(Through 02/05/03)

People v. Fischer, No. 02PDJ058, 02/05/03. Attorney Disbarred.

The Hearing Board disbarred respondent Mark Joseph Fischer, attorney registration number 07161, from the practice of law in the state of Colorado. Respondent knowingly converted funds belonging to third parties, in violation of Colo. RPC 8.4(c), by exercising unauthorized dominion or control over funds belonging to his client and third parties, and using a portion of the funds to pay his fees, which was contrary to the express language of the Separation Agreement that had been made an order of court. Respondent failed to hold proceeds of the sale of marital property between his client and the opposing party separate from his own property, in violation of Colo. RPC 1.15(a). He also failed to make disbursements to third parties consistent with the Separation Agreement, in violation of Colo. RPC 1.15(b), as well as failing to keep disputed amounts separate until he could secure a court ruling resolving such a dispute, commingling the same, in violation of Colo. RPC 1.15(c). Additionally, respondent disobeyed an order of the court, in violation of Colo. RPC 3.4(c). Disbarment is effective thirty-one days from the date of the Order, and respondent is ordered to pay costs of the proceedings. p.127.

Summaries of Decisions Regarding Conditional Admissions of Misconduct
Issued by the Presiding Disciplinary Judge
(Through 01/29/03)

[The Presiding Disciplinary Judge’s approval of Conditional Admissions of Misconduct does not result in a written Opinion but only a brief Order, which does not constitute precedent. Conditional Admissions of Misconduct are public record and are available for review at the Office of the Presiding Disciplinary Judge, 600 17th St., Suite 510-South, Denver, CO 80202; (303) 825-2797. They are also available on LexisNexisTM at http:// www.lexis.com/research by clicking on States Legal U.S./Colorado/Cases and Court Rules/By Court/Colorado Supreme Court Disciplinary Opinions.]

People v. Blumenthal, No. 03PDJ007, 01/29/03. Attorney Receives Two-Year Probation.

The Presiding Disciplinary Judge approved the party’s Conditional Admission of Misconduct and suspended Respondent Thomas Blumenthal, attorney registration number 15549, from the practice of law in the state of Colorado for a period of one year and one day, all stayed during a two-year period of probation subject to conditions. Respondent was retained by the client in an ongoing dissolution of marriage matter. Respondent did not enter into a written fee agreement with the client; rather, he verbally quoted the client an hourly rate. Respondent received an advance payment from the client for his services, and deposited the funds into his trust account. At the time, all of the money in the account other than the client’s retainer was respondent’s own property. Respondent routinely deposited payments from clients toward flat fees into his trust account and later withdrew the funds after he estimated he had earned the fee. Respondent’s failure to keep this client’s and other clients’ funds separate from his own constituted a violation of Colo. RPC 1.15(a). His failure to communicate the basis or rate of the fee to the client in writing within a reasonable time after commencing representation violated Colo. RPC 1.5(b). Respondent’s disbursal to himself of the client’s entire advance retainer without any accounting to the client violated Colo. RPC 1.15(c). Using trust accounts to hold his own funds and generally using such accounts in a manner contrary to the purposes for which such accounts are to be established violated Colo. RPC 1.15(f). His failure to maintain appropriate receipt and disbursement records of all trust accounts violated
Colo. RPC 1.15(g). Respondent wrote checks drawn on insufficient funds, and failed to attend to financial and account matters relating to his practice of law, violating Colo. RPC 8.4(h). Respondent was ordered to pay the costs of the disciplinary proceedings.

People v. Darnel, No. 02PDJ083, 01/22/03. Attorney Suspended.

The Presiding Disciplinary Judge approved the parties’ Conditional Admission of Misconduct and suspended Respondent James Darnel, attorney registration number 26381, from the practice of law in the state of Colorado for a period of one year and one day. While applying for a driver’s license in the state of Virginia, respondent misrepresented his residence, misrepresented that his driver’s license had never been revoked, and misrepresented that he had not been convicted of any traffic offense in the last ten years, when each of those statements was untrue at the time he uttered them, and he knew they were untrue. Respondent surrendered the Virginia license a few days thereafter on his own initiative. Respondent was ordered to pay costs of the disciplinary proceedings.

People v. DuBarry, No. 02PDJ072, 01/22/03. Attorney Suspended.

In this reciprocal discipline proceeding from the state of Louisiana, the Presiding Disciplinary Judge approved the party’s Conditional Admission of Misconduct and suspended Respondent Deonne DuBarry, attorney registration number 18237, from the practice of law in the state of Colorado for a period of one year. Respondent and her law partner and husband (the "Firm") represented a client in a wrongful death action. The Firm negotiated a settlement for the client that included an annuity. The Firm calculated the contingency fee amount and tendered payment to the client, less the contingency fee amount. A dispute arose between the client and the Firm with regard to the contingency fee amount, based on the annuity. Respondent failed to segregate the disputed funds and did not take steps to ensure that the contingency fee was legally accurate. The client filed suit against the Firm, which extended over a considerable number of years. The trial court found in favor of the client for the disputed attorney fees and sanctioned the Firm for abuse of process, unethical practices, fraud, and conversion, and for intentional infliction of emotional distress. The decision was affirmed on appeal. Respondent was suspended for one year in the state of Louisiana for the following: impeding a lawsuit filed by the client; prolonging a lawsuit to harass the client; and refusing to make prompt payment of funds, which the client was entitled to receive. Respondent’s conduct constitutes the following violations in the state of Colorado: Colo. RPC 3.1 (frivolously defending the lawsuit and asserting claims against the client); Colo. RPC 3.3(a) (making false statements regarding the factual basis for the defense and assertion of other claims in the lawsuit); Colo. RPC 3.5(c) (engaging in tactics that disrupted the proceedings before the court); and Colo. RPC 4.4 (engaging in tactics that had no substantial purpose other than to embarrass, delay, or burden the client). Respondent was ordered to pay the costs of the disciplinary proceedings.

People v. Good, No. 02PDJ024, 01/29/03. Attorney Suspended for Three Years.

The Presiding Disciplinary Judge approved the party’s Conditional Admission of Misconduct and suspended Respondent Niel L. Good, attorney registration number 00458, from the practice of law in the state of Colorado for a period of three years, subject to conditions. From 1987 until approximately September 1999, the respondent served as a fiduciary for an individual who had received a structured settlement resulting from a wrongful death action involving the death of his family. Respondent handled various financial matters for the individual, as well as handling legal matters, and paid himself management and attorney fees. Respondent did not provide an accounting to the individual when requested. The individual ultimately hired an attorney to review respondent’s handling of the funds. When the attorney requested an accounting from respondent, after considerable delay, respondent provided inadequate accountings. The attorney filed a Request for Investigation with the Office of Attorney Regulation Counsel. Respondent again failed to provide a complete accounting when requested. Respondent’s failure to provide a complete accounting of his handling of the settlement funds violated Colo. RPC 1.15(b). Respondent represented the individual in connection with several felony counts arising from a domestic incident. Respondent charged a fee of $300,000 and gradually paid himself approximately $296,000 for his representation in the criminal matter, when $30,000 would have been the maximum amount of reasonable fees for the services he rendered to the client. Respondent charged an unreasonable fee, in violation of DR2-106(A) (for conduct prior to January 1, 1993), and Colo. RPC 1.5(a) (for conduct on or after January 1, 1993). With regard to the client, respondent engaged in conduct involving fraud, misrepresentation, dishonesty, or deceit, in violation of DR1-102(A)(4). In a separate matter, respondent represented a client in a traffic matter. Respondent agreed to clear up a mistake in the records of another state that impacted the client’s Colorado record and revocation of the client’s Colorado driver’s license. Respondent was required to obtain verification from the other state that the client’s license in that state had not been suspended. Respondent did not attempt to contact the other state for a seven-month period, and thereby neglected the client’s legal matter, in violation of Colo. RPC 1.3. Respondent was ordered to pay restitution as a condition of reinstatement, as well as the costs of the disciplinary proceedings.

People v. Hofer, No. 02PDJ076, 01/23/03. Attorney Suspended.

The Presiding Disciplinary Judge approved the party’s Conditional Admission of Misconduct and suspended Respondent David Hofer, attorney registration number 13280, from the practice of law in the state of Colorado for a period of one year and one day. In one matter, respondent failed to prepare a written permanent order after being ordered to do so by the court, in violation of Colo. RPC 1.3 and Colo. RPC 3.4(c), and failed to respond to the client’s repeated requests for information concerning the status of the case, in violation of Colo. RPC 1.4(a). In another matter, respondent represented a client in a child support modification matter. The client hired respondent to review a proposed stipulation and counsel the client with regard to certain specific issues. For a three-month period, respondent took no action on behalf of the client, in violation of Colo. RPC 1.3, and did not return the client’s phone calls or otherwise keep the client informed about the status of the matter, in violation of Colo. RPC 1.4(a). In a third matter, respondent was retained to act as liaison with out-of-state counsel on post-decree matters. For several months, respondent took no action on the case, in violation of Colo. RPC 1.3, and did not return the client’s phone calls, in violation of Colo. RPC 1.4(a). Ultimately, respondent refunded full payment to the client, which he had failed to keep separate from his own funds, in violation of Colo. RPC 1.15(a). Respondent was ordered to pay the costs of the disciplinary proceedings.

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