The Colorado Lawyer
Vol. 32, No. 6 [Page 129]
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From the Courts
Colorado Disciplinary Cases
Summaries of Opinions
Summaries of opinions appear on a space-available basis. The summaries for the Presiding Disciplinary Judge and hearing board are prepared by the Office of the Presiding Disciplinary Judge. The summaries of the Opinions of the Presiding Disciplinary Judge are provided as a service by the Colorado Bar Association and are not the official language of the Opinion. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Unless otherwise noted, full copies of the Opinions follow the summaries pages. The summaries and full-text Opinions are also available on the CBA home page at http://www.cobar.org/tcl/index.htm (see page 156 for details), as well as on Lexis NexisTM 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.
Summaries of Decisions Issued by the Presiding Disciplinary Judge
People v. Apker, No. 02PDJ088, 04/07/03. Attorney Disbarred.
The Hearing Board disbars David Burton Apker, attorney registration number 08105, following a sanctions hearing, in this reciprocal discipline matter from the state of Arizona, where respondent was suspended for six months and one day. Greater discipline was sought, and sufficient notice provided to respondent, regarding the increased level of discipline; nonetheless, respondent did not participate in these proceedings. The Arizona Supreme Court found that respondent failed to notify and deliver trust funds that his client had paid to him, in violation of Arizona Rules of Professional Conduct ER 1.15(b), ER 8.4(b), ER 8.4(d), and SCR 43(d). The Arizona Supreme Court also found that respondent had committed theft, pursuant to ARS § 13-1902.A.2. Theft by an attorney, as theft is defined under Arizona law, constitutes knowing conversion of client property under Colorado law. The knowing conversion of client property almost invariably results in disbarment under Colorado law. No mitigation was presented that would reduce the presumptive sanction of disbarment in Colorado. The Hearing Board therefore orders the sanction of disbarment, which is effective thirty-one days from the date of the Court’s Order. Respondent is ordered to pay the costs of the disciplinary proceedings. p.131.
People v. Muto, No. 02PDJ077, 04/09/03. Attorney Disbarred.
The Hearing Board disbars Joseph F. Muto, attorney registration number 24164, following a sanctions hearing, in this reciprocal discipline matter from New York, from which state respondent was disbarred from the practice of law. The conduct giving rise to the disciplinary proceeding in New York resulted in forty-three counts against respondent, which involved respondent’s participation in an “agency” to which immigrants would turn for a job, lodging, translators, and legal representation. The non-lawyer “agency” performs the actual legal work and retains an attorney to “front” for it in immigration court. Respondent, who performed this service for the “agency,” had little or no contact with the clients, exercised no control over the cases, and served at the pleasure of the “agency,” which paid his fees. Additionally, respondent made affirmative misrepresentations to the courts in order to conceal his professional misconduct. In a number of cases, respondent sought to blame the client for his own professional failures. Although respondent’s neglect resulted in the entry of orders of deportation against the clients, those clients were able to salvage their cases by retaining new attorneys who made successful motions to re-open. Disbarment is effective thirty-one days from the date of the Court’s Order. Respondent is ordered to pay the costs of the disciplinary proceedings. p.133.
People v. Price, No. 02PDJ003, 11/22/02. Attorney Reinstatement.
George F. Price, attorney registration number 10652, is reinstated to the practice of law. Reinstatement was effective December 22, 2002. p.136.
People v. Roye, No. 02PDJ081, 04/17/03. Attorney Suspended.
The Hearing Board suspended Julia M. Roye, attorney registration number 26240, from the practice of law for a period of one year and one day for misconduct arising from respondent’s representation of one client. Roye failed to communicate with the court, her client, and opposing counsel during a four-month period, despite their numerous attempts to communicate with her. Respondent neglected the client’s case, in violation of Colo. RPC 1.3 and Colo. RPC 1.4(a) and (b). Roye knowingly disobeyed an obligation under the rules of a tribunal, in violation of Colo. RPC 3.4(c), when she failed to appear for a status conference and thereafter failed to comply with the court order requiring her to advise the court in writing or in person as to the status of the case. Roye directly delayed and altered the course of court proceedings by failing to participate in a case management order, a trial management order, discovery, and two status conferences, and thereby caused prejudice to the administration of justice, in violation of Colo. RPC 8.4(d). She disregarded the client’s request that she turn over the file to replacement counsel, in violation of Colo. RPC 1.16(d). The totality of Roye’s conduct constituted abandonment. Roye was ordered to pay the costs of the disciplinary proceedings. p.139.
Summaries of Decisions Regarding Conditional Admissions of Misconduct Issued by the Presiding Disciplinary Judge
[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. Gahagan, No. 02PDJ082, 04/07/03. Attorney Suspended.
The Presiding Disciplinary Judge approved the parties’ Conditional Admission of Misconduct and suspended respondent Daniel S. Gahagan, attorney registration number 27026, from the practice of law for a period of one year and one day, with all but forty-five days stayed during a one-year period of probation, and subject to conditions. Respondent represented himself and his family members in an appeal of a civil forfeiture action brought by the U.S. Attorney in the Eastern District of Michigan. The case was appealed to the U.S. Court of Appeals, Sixth Judicial District. In a letter brief filed with the Court of Appeals, the respondent made a misrepresentation, which, it was stipulated, resulted from his haste in preparing the brief and his failure to reflect adequately on what he was including in the brief. Respondent’s conduct constituted a violation of Colo. RPC 8.4(c). The parties stipulated that the period of suspension would commence on May 15, 2003. Respondent is ordered to pay the costs of the disciplinary proceedings.
People v. Kendall, No. 03PDJ023, 03/31/03. Attorney Suspended.
The Presiding Disciplinary Judge approved the party’s Conditional Admission of Misconduct and suspended respondent Sean A. Kendall, attorney registration number 22253, from the practice of law for a period of sixty days, all stayed during a one-year period of probation that is subject to conditions. In 2002, as a result of an incident involving his girlfriend, respondent pled guilty to second-degree tampering, a class two misdemeanor; reckless endangerment, a class three misdemeanor; and careless driving, a class two traffic offense. Respondent was sentenced to eighteen months’ probation. Respondent’s conduct constituted grounds for discipline, pursuant to C.R.C.P. 251.5(b), and violated Colo. RPC 8.4(b). Respondent was ordered to pay the costs of the disciplinary proceedings.
People v. Mason, No. 02PDJ041, 03/31/03. Attorney Suspended.
The Presiding Disciplinary Judge approved the party’s Conditional Admission of Misconduct and suspended respondent Robert J. Mason, attorney registration number 04324, from the practice of law for a period of one year and one day. In one matter, in August 2001, through agents who were not licensed to practice law, respondent entered into an attorney/client relationship with a client and accepted $1,145 from the client to prepare estate planning documents. Respondent had no direct contact with the client throughout the “representation.” Respondent failed to supervise his non-attorney agents. Shortly thereafter, respondent exercised dominion and control over the client’s funds and did not deposit them into his trust account; instead, he used the funds to pay personal expenses. Respondent did not provide estate planning documents to the client. In August 2002, respondent refunded the funds to the client. Respondent’s conduct violated Colo. RPC 1.15(b), Colo. RPC 5.3(b), and Colo. RPC 1.3. In a separate matter, respondent’s non-attorney agent met with the client, provided estate planning documents to the client, and accepted $1,995 for the work performed. Respondent never directly met with the client, who believed the non-attorney agent was, in fact, an attorney. Respondent’s conduct violated Colo. RPC 5.5(b), Colo. RPC 5.3(b), Colo. RPC 1.5(a), and Colo. RPC 1.16(d). Respondent is ordered to pay restitution and the costs of the disciplinary proceedings.
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