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TCL > June 2003 Issue > Opinions

The Colorado Lawyer
June 2003
Vol. 32, No. 6 [Page  131]

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

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From the Courts
Colorado Disciplinary Cases

Opinions

The Colorado Supreme Court has adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge, pursuant to C.R.C.P. 251.16. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The Presiding Disciplinary Judge presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the Presiding Disciplinary Judge. See C.R.C.P. 251.18(d).
The Colorado Lawyer publishes the summaries and full-text Opinions of the Presiding Disciplinary Judge, Roger L. Keithley, and a two-member hearing board, whose members are drawn from a pool appointed by the Supreme Court. For space purposes, accompanying Exhibits may not be printed.
These Opinions may be appealed in accordance with C.R.C.P. 251.27.
The full-text Opinions, along with their summaries, are available on the CBA home page at http://www.cobar.org/tcl/index.htm. See page 156 for details.Opinions, including Exhibits, and summaries are also available on LexisNexisTM at http://www.lexis.com/research by clicking on States LegalU.S./Colorado/Cases and Court Rules/By Court/Colorado Supreme Court Disciplinary Opinions.

 

Case Number: 02PDJ088

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

DAVID BURTON APKER

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

April 7, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Edwin S. Kahn and David A. Helmer both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on March 6, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley and two hearing board members, David A. Helmer and Edwin S. Kahn, both members of the bar. Terry Bernuth, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Respondent David Burton Apker ("Apker") did not appear either in person or by counsel.

The People filed a Complaint in this matter on Oct. 18, 2002. The Citation and Complaint were sent via regular and certified mail to Apker on the same date to Apker’s two registered addresses. The People filed a Proof of Service on Oct. 23, 2002, which indicates that Apker signed for receipt of the Citation and Complaint at his registered business address. Apker failed to file an Answer or otherwise respond to the Complaint.

On Dec. 12, 2002, the People moved for default on the claims set forth in the Complaint. On Jan. 8, 2003, the PDJ granted the motion for default as to the facts set forth in the Complaint, which were deemed admitted, and as to the violation of the claims set forth in the Complaint, which were deemed established.

This is a reciprocal discipline matter from the State of Arizona brought pursuant to C.R.C.P. 251.21. The Complaint in this action gave notice to Apker that the Office of Attorney Regulation Counsel would seek substantially different discipline before the Colorado Supreme Court than that imposed in the State of Arizona. See C.R.C.P. 251.21(d).

At the sanctions hearing, exhibits 1 through 3 were offered by the People and admitted into evidence. The Hearing Board considered the People’s argument, the facts and violations 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

David Burton Apker has taken and subscribed to the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 17, 1977 and is registered upon the official records of this court, attorney registration number 08105. Apker is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On October 18, 2001, the Arizona Supreme Court entered an Order suspending Apker from the practice of law in that state for a period of six months and one day. Under Arizona law, a suspension for a period of time greater than six months requires a formal reinstatement proceeding. A copy of the Order of Suspension is attached hereto as Exhibit "A."

II. CONCLUSIONS OF LAW AND
IMPOSITION OF SANCTION

The Complaint in this action seeks imposition of discipline under the reciprocal discipline provisions of C.R.C.P. 251.21. Pursuant to subsection (d) of that Rule, the Office of Attorney Regulation Counsel seeks substantially different discipline than that imposed by Arizona. C.R.C.P. 251.21 (d) provides that the same discipline imposed in the foreign jurisdiction shall be imposed in Colorado unless certain exceptions exist. See People v. Calder, 897 P.2d 831, 832 (1995).

C.R.C.P. 251.21(d) provides in part:

At the conclusion of proceedings brought under this Rule, the Hearing Board shall issue a decision imposing the same discipline as was imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:

(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;

(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;

(3) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or

(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline is, for purposes of attorney disciplinary proceedings in Colorado, conclusively established. See C.R.C.P. 251.21(a). The suspension order issued by the Arizona Supreme Court is such a final order.

In order to determine if any of the four factors set forth in C.R.C.P. 251.21(d) are satisfied, the Hearing Board must consider the evidence before it. In this default proceeding, the evidence before the Hearing Board are the findings made by the Arizona Supreme Court.

The Arizona Supreme Court found that Apker failed to notify and deliver trust funds that his client had paid to him. Apker’s conduct violated the Arizona Rules of Professional Conduct, ER 1.15(b)(receipt of third party funds), 8.4(b)(committing a criminal act that reflects adversely on the lawyer), ER 8.4(d)(engaging in conduct that is prejudicial to the administration of justice) and SCR43(d) (trust account/ guideline authority).

The Arizona Supreme Court also found that Apker, in connection with his failure to deliver funds, committed theft, under A.R.S. § 13-1802.A.2. Pursuant to that statute, a person commits theft:

[I]f, without lawful authority, the person knowingly "[c]onverts for an unauthorized term or use services of property of another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use."

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. See People v. Rishel, 50 P.3d 938 (Colo. O.P.D.J. 2002) (holding that the theft of funds warrants the sanction of disbarment, regardless of whether the funds belonged to a third party or to a client). See also People v. Varallo, 913 P.2d 1 (Colo. 1996) (knowing conversion of the property of a client without authority from the client results in disbarment); People v. Coyne, 913 P.2d 12 (Colo. 1996)(holding that attorney’s personal use of funds held in trust for clients warranted disbarment).

Under the analysis set forth in People v. Lujan, 890 P.2d 109 (Colo. 1995), the mitigation necessary to reduce the presumptive sanction of disbarment for knowing conversion to some lesser sanction has to be "extraordinary and tragic." Since Apker neither responded to the charges against him nor appeared at this proceeding, no mitigation has been presented.

Accordingly, the Hearing Board concludes that the misconduct found by the Arizona Supreme Court warrants a substantially different form of discipline under Colorado law than that imposed under the law of Arizona. See C.R.C.P. 251.21(d)(4).

III. ORDER

It is therefore ORDERED:

1. DAVID BURTON APKER, attorney registration number 08105 is disbarred from the practice of law in the State of Colorado, effective thirty-one days from the date of this Order, and his name shall be stricken from the roll of attorneys licensed to practice law in this state;

2. Apker 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 A
BEFORE THE DISCIPLINARY COMMISSION
OF THE SUPREME COURT OF ARIZONA

______________

IN THE MATTER OF A

SUSPENDED MEMBER OF THE Comm. No. 99-2298

STATE BAR OF ARIZONA,

DAVID B. APKER,

Attorney No. 004741 Disciplinary Commission Report

Respondent.

This matter was scheduled before the Disciplinary Commission of the Supreme Court of Arizona on April 14, 2001, pursuant to Rule 53(d), Ariz. R.S.Ct., for consideration of the Hearing Officer’s report, filed January 19, 2001, recommending an indefinite suspension and payment of Respondent’s debt. The State Bar filed an objection and recommended at least a suspension of six (6) months and one (1) day, restitution and costs.

Decision

The eight1 (8) members of the Commission unanimously apply a clearly erroneous standard to all of the Hearing Officer’s findings of fact and conclusions of law, except the violation of ER 8.4(d) and apply de novo review of the recommendation.2 The Commission recommends that Respondent, David P. Apker, be suspended for a period of six (6) months and one (1) day,3 pay restitution in the amount of $4,646.00 to TSG Title Agency, Inc. and pay costs of these disciplinary proceedings.

Discussion of Decision

The Commission found by clear and convincing evidence that Mr. Apker’s conduct, which was deemed admitted by default, violated Rule 42 of the Arizona Rules of the Supreme Court, specifically,

ER 1.15(b) (receipt of third party funds), 1 violation

ER 8.4(b) (commit a criminal act that reflects adversely on the lawyer), 1 violation

ER 8.4(d) (engage in conduct that is prejudicial to the administration of justice), 1 violation

SCR 43(d) (Guideline 1.c)(trust account/guideline authority) 1 violation

Respondent was summarily suspended on April 28, 2000, for non-payment of dues and he remains suspended.

In Count One, Respondent was hired by MCO Properties to hold trustees’ sales to foreclose against parcels of realty. Respondent ordered and obtained from TSG Title Agency, Inc., two trustee sale guarantee reports, for which TSG billed Respondent in the amount of $4,646. MCO paid Respondent the money owed to TSG; however, he failed to promptly notify TSG and failed to promptly deliver funds to TSG in violation of 1.15(b) and 8.4(d), failed to have internal controls to safeguard fund held in trust in violation of Rule 43(d) (Guideline 1.c.) and committed theft,4 in violation of 8.4(b) by using the money to pay himself and other creditors. Count Two addresses the Respondent’s prior discipline.

Although not alleged by the State Bar, the Commission notes that Respondent violated Rule 31(c) 3, when he moved and did not notify membership at the State Bar, and he violated ER 8.1(b) and Rules 51(h) and (i) by not responding.

In determining the appropriate sanction, out Supreme Court considers the American Bar Association’s Standards for Imposing Lawyer Sanctions ("Standards") a suitable guideline. In re Kaplan, 179 Ariz. 175, 877 P.2d 274 (1994). The Supreme Court and the Commission are consistent in utilizing the Standards to determine appropriate sanctions for attorney discipline. In imposing a sanction after a finding of misconduct, consideration is given to the duty violated, the lawyer’s mental state, the actual or potential injury caused by the misconduct and the existence of aggravating and mitigating factors. See Standard 3.0.

A review of Standard 4.0 indicates that suspension is the presumptive sanction for Respondent’s particular misconduct. Standard 4.0 addresses Violations of Duties Owed to Clients, with 4.12 specifically providing:

Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.

Respondent knowingly violated his duties owed to the client by failing to deliver funds to the title company causing actual injury. In addition the Supreme Court has stated that a lawyer’s failure to respond to the State Bar inquiries borders on contempt for the legal system. In re Galusha, 164 Ariz. 503, 794 P.2d 136 (1990).

The Commission, having concluded that suspension is warranted, reviewed Standards 9.22 and 9.32, aggravating and mitigating factors, respectively. The Hearing Officer found five (5) aggravating factors present in the record, 9.22(a)(prior disciplinary offenses),5 (b)(selfish motive), (e)(bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency), (g)(refusal to acknowledge wrongful nature of conduct), and (i)(substantial experience in the practice of law).6 The State Bar also argued for (h) (vulnerability of the victim), (j)(indifference in making restitution) and (k) (illegal conduct). The Commission agrees.

The Commission, as well as the Hearing Officer, found one (1) factor present in mitigation, 9.32(m)(remoteness of prior offense).

The Commission considered the proportionality analysis provided and found the following cases instructive. In Matter of Fletcher, SB 99-0090-D (200), the respondent was censured and placed on probation for violating ERs 1.15(b) and 8.1(b). Fletcher failed to pay investigators and consultants and did not timely respond to State Bar inquiries. There was no aggravation or mitigation. In Matter of Jones, 169 Ariz. 19, 816 P.2d 916 (1991), the respondent was disbarred and ordered to pay restitution for violating DR 1-102(A)(3) & (6), DR 9-102(b) and ERs 1.15(b) and (c). Jones failed to remit insurance proceeds, which belonged to a client, failed to safeguard client property and converted funds.

Conclusion

The purpose of discipline is to protect the public and deter similar conduct by other lawyers. Matter of Kersting, 151 Ariz. 171, 726 P.2d 587 (1986). Another purpose is to instill public confidence in the bar’s integrity. Matter of Horwitz, 180 Ariz. 20, 29, 881 P.2d 352, 362 (1994). Yet another purpose is to maintain the integrity of the legal system. In re Fioramonti, 176 Ariz. 182, 187, 859 P.2d 1315, 1320 (1993). Therefore, having considered Respondent’s misconduct, application of the Standards, including the significant factors present in aggravation and the single factor in mitigation, and a proportionality analysis, the Commission recommends a six (6) month and one (1) day suspension, restitution and costs of these disciplinary proceedings.

Respectfully submitted this 15th day of May, 2001.

SUPREME COURT OF ARIZONA

In the Matter of a
Suspended Member of
the State Bar of Arizona

Arizona Supreme Court No. SV-01-0126-D

 

Disciplinary Commission No. 99-2298

DAVID B. APKER,
Attorney No. 4741
Respondent.

 

This matter having come on for hearing before the Disciplinary Commission of the Supreme Court of Arizona, it having duly rendered its decision and no discretionary or sua sponte review occurring,

IT IS ORDERED, ADJUDGED AND DECREED that DAVID B. APKER, a suspended member of the State Bar of Arizona, is hereby suspended from the practice of law for a period of six (6) months and one (1) day, effective as of the date of this Judgment and Order, for conduct in violation of his duties and obligations as a lawyer, as disclosed in the Commission report . . . .

IT IS FURTHER ORDERED that DAVID B. APKER shall pay restitution in the amount of $4,646.00 to TSG Title Agency, Inc.

IT IS FURTHER ORDERED that DAVID B. APKER SHALL COMPLY WITH ALL THE PROVISIONS OF Rule 63, Rules of the Supreme Court of Arizona, including, but not limited to, Rule 63(a), which requires that Respondent notify all of his clients, within ten (10) days from the date hereof, of his inability to represent them and that he should promptly inform this Court of his compliance with this Order as provided in Rule 63(d).

IT IS FURTHER ORDERED that DAVID B. APKER shall pay the costs and expenses of these proceedings in the amount of $1,487.41, together with interest at the legal rate from the date of this judgment.

Dated this 18th day of October, 2001.

_______

1. One public seat remained vacant.

2. While great deference is given to the Hearing Officer’s report and recommendation, Matter of Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988), the Commission finds that given a default was entered all ethical rules alleged in the Complaint should be found, unless a Hearing Officer finds that the State Bar Complaint is so lacking in support for the violation or there is clearly an additional violation. The Hearing Officer indicated to Bar counsel his concern regarding theft. Bar counsel briefed this issue in it Post Aggravation/Mitigation Memorandum. The Commission is satisfied that all allegations should be found. Furthermore, the recommendation given by the Hearing Officer does not comply with Rule 52 or the American Bar Association’s Standards for Imposing Lawyer Sanction.

3. This will require Respondent to apply for reinstatement, pursuant to Rules 71(d) and 72, which requires proof of rehabilitation.

4. A.R.S. § 13-1802.A.2 states that a person commits theft, if without lawful authority, the person knowingly "[c]onverts for an unauthorized term or use services of property of another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use." The facts in this case indicate that Respondent converted his client’s property for an unauthorized term or use, and thereby committed theft.

5. Respondent received a private informal reprimand in 1986 for violating ER 3.3(a)(1) and (2) and 8.4(a), (b) and (c).

6. The Hearing Officer inadvertently stated (h), but found (i). Respondent was admitted to the State Bar of Arizona on December 7, 1976.

 

 

Case No. 02PDJ077

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

JOSEPH F. MUTO

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

April 9, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members Marilyn J. David, and E. Steven Ezell, both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on February 13, 2003, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Marilyn J. David, and E. Steven Ezell, both members of the bar. Fredrick J. Kraus, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Joseph F. Muto, the respondent ("Muto"), appeared by telephone.

The People filed the Complaint in this matter on September 20, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The People filed a Proof of Attempted Service on November 5, 2002, indicating that the Citation and Complaint were sent to both of Muto’s last known addresses. The Citation and Complaint sent via certified mail were returned to the Office of Attorney Regulation Counsel unclaimed, and the documents sent via regular mail were not returned. Muto failed to file an Answer or otherwise respond to the Complaint.

Upon the People’s motion, by order dated December 5, 2002, the PDJ granted default as to the facts set forth in the Complaint, which were deemed admitted, and as to the violation of the claims set forth therein, which were deemed established. Muto did not respond to the motion for default. Muto was provided notice of the entry of default against him.

At the Sanctions Hearing, the People’s exhibits 1 through 3 were admitted into evidence. The Hearing Board considered the exhibits, the facts admitted by the entry of default, and the People’s argument, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Joseph F. Muto has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 31, 1994, and is registered upon the official records of the Supreme Court, attorney registration number 24164. He is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

On March 19, 2002, the New York Supreme Court, Appellate Division, issued a per curiam decision affirming the decision of the Referee and the Hearing Panel of the Departmental Disciplinary Committee for the First Judicial Department in the county of New York disbarring Muto from the practice of law in the State of New York. A copy of that decision is attached hereto as exhibit A.

II. CONCLUSIONS OF LAW AND
IMPOSITION OF SANCTION

Under claim I of the Complaint the People seek imposition of the same discipline under the reciprocal discipline provisions of C.R.C.P. 251.21. The same discipline that was imposed in the foreign jurisdiction shall be imposed in Colorado unless certain exceptions exist. People v. Calder, 897 P.2d 831, 832 (1995).

C.R.C.P. 251.21(d) provides in part:

At the conclusion of proceedings brought under this Rule, the Hearing Board shall issue a decision imposing the same discipline as was imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:

(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;

(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;

(3) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or

(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

Under the provisions of C.R.C.P. 251.21(d), if the respondent attorney seeks to challenge the validity of the disciplinary order entered by the foreign jurisdiction, the attorney must file with the PDJ an Answer and a full copy of the record of the disciplinary proceedings which resulted in the imposition of that disciplinary order within twenty days after service of the Complaint. Muto neither answered the Complaint nor filed the requisite documentation to enable him to challenge the New York disbarment order. Accordingly, Muto is foreclosed from challenging the validity of the New York disbarment order.

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline conclusively establishes the misconduct for purposes of attorney disciplinary proceedings in Colorado. See C.R.C.P. 251.21(a). The disbarment order issued by the New York Supreme Court Appellate Division constitutes such a final adjudication.

Having reviewed the New York Supreme Court Appellate Division’s order of disbarment, the Hearing Board finds that none of the exceptions found in C.R.C.P. 251.21(d) are applicable and it is therefore bound to impose the same discipline as imposed by New York.

III. ORDER

It is therefore ORDERED:

1. JOSEPH F.MUTO, attorney registration 24164, is DISBARRED from the practice of law in the State of Colorado effective thirty-one days from the date of this order, and his name shall be stricken from the roll of attorneys licensed to practice law in this State.

2. Muto 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. Muto shall have ten (10) days thereafter to submit a response to the Statement of Costs.

EXHIBIT A

SUPREME COURT, APPELLATE DIVISION

First Judicial Department, January 2002

Eugene Nardelli, Justice Presiding
David B. Saxe
Joseph P. Sullivan
Richard W. Wallach
David Friedman, Justices

———————————————————

In the Matter of Joseph F. Muto
(admitted as Joseph Francis Muto),
an attorney and counselor-at-law:

Departmental Disciplinary Committee M-6977
for the First Judicial Department,

Petitioner,

Joseph F. Muto, Esq.,

Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, as Joseph Francis Muto, was admitted to the Bar at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on January 27, 1987. By an unpublished order of this Court entered on February 7, 2001 (M-762) a Referee was appointed to conduct a hearing and file a report on formal charges against respondent.

Sherry K. Cohen, of counsel (Thomas J. Cahill, Chief Counsel) for petitioner.

Respondent, pro se.

Motion No. 6977 — January 29, 2002
In the Matter of Joseph F. Muto, An Attorney

PER CURIAM

Respondent Joseph F. Muto was admitted to the practice of law in the State of New York by the Third Judicial Department on January 27, 1987, as Joseph Francis Muto. Respondent is also admitted to practice in Colorado. At all times relevant to the charges here at issue, respondent maintained an office for the practice of law within the First Judicial Department.

On or about February 27, 2001, petitioner Departmental Disciplinary Committee ("DDC") served respondent with a Notice and Statement of Charges charging respondent with 43 counts of professional misconduct in connection with his immigration law practice. Thirty-six of the charges relate to respondent’s alleged neglect of matters in which he represented 17 clients in proceedings before the United States Immigration Court. The remaining charges are based on respondent’s alleged violations of trust account rules in connection with two IOLA accounts, and his alleged failure to comply with the address reporting requirements of the OCA. It is charged that these alleged acts of respondent constituted violations of several Disciplinary Rules ("DR") of the New York Code of Professional Responsibility, to wit: DR 1-102(A)(4), (5) and (7) (conduct involving dishonesty, fraud, deceit or misrepresentation, prejudicial (sic) to the administration of justice, and adversely reflecting on one’s fitness to practice law); DR 3-101(A) (aiding the unauthorized practice of law); DR 6-101(A)(2) and (3) (handling a legal matter without adequate preparation under the circumstances and neglect of a legal matter); DR 7-101(A)(1) and (3) (failing to seek a client’s lawful objectives and intentionally prejudicing or damaging a client during the course of representation); DR 7-106 (A) (disregarding a ruling of a tribunal); and DR 9-102(A), (B), (C)(4), (D), (E), (I), and (J) (improper commingling of trust funds; improper maintenance of a trust account; failing to promptly deliver property a client is entitled to receive; failing to keep proper bookkeeping records and to produce such records as required by law; writing a check payable to "cash" from an IOLA account). Respondent filed an answer, dated March 23, 2001, denying all charges.

In June 2001, seven days of hearings were held before Referee John Horan, Esq. The DDC staff called 12 witnesses. Respondent, who appeared pro se at the hearing, testified on his own behalf. The Referee, who credited testimony of the DDC witnesses and discredited most of respondent’s testimony, sustained each of the 43 charges and recommended the sanction of disbarment. A Hearing Panel of the DDC heard oral argument on November 8, 2001, and subsequently issued a report, dated November 19, 2001, unanimously confirming the Referee’s findings of fact and conclusions of law, and concurring in the Referee’s recommendation that respondent be disbarred. The DDC now moves for an order pursuant to NYCRR § 603.4(d), confirming the findings of fact and conclusions of law of the Referee and the Hearing Panel, and imposing the sanction of disbarment.

After reviewing the record, we agree that all 43 charges against respondent were properly sustained, and that the sanction of disbarment should be imposed. Since 1997, respondent has purported to specialize in representing illegal immigrants, chiefly from China, who seek political asylum in the United States. Through the testimony of several of respondent’s former clients and attorneys familiar with these matters, the DDC staff showed that these immigrants are brought into the United States by a series of middlemen known as "snakeheads," who hand the immigrants over to an "agency" when they reach their destination in this country. The immigrant, lacking any knowledge of either the English language or the American legal system, then becomes completely dependent on his "agency," which provides him with a job, a place to sleep, translators, and legal representation in immigration matters. The non-lawyer "agency" generally performs the actual legal work, and retains an attorney to front for it in the Immigration Court. An attorney retained by an "agency" to represent an illegal immigrant client generally has little or no contact with the client, exercises no control over the case, and serves at the pleasure of the "agency," which pays his fee. The Referee concluded that respondent lent himself to this "insidious system."

Based on the testimonial and documentary evidence presented by the DDC staff, the Referee made findings, confirmed by the Hearing Panel, that respondent engaged in the following kinds of professional misconduct, among others, in representing 17 immigrant clients:

(1) accepting client referrals from non-lawyers, and relying on non-lawyers he did not supervise to perform legal work, such as consulting with the client;

(2) in most cases, undertaking the representation without ever discussing the case directly with the client in the presence of a translator, and, in some cases, without ever meeting the client at all;

(3) filing with the courts affidavits purportedly signed by clients, which the clients in fact had not signed;

(4) repeatedly failing to appear at hearings in violation of court directives that he appear, and after giving the courts assurances that he would appear;

(5) filing grossly inadequate and/or untimely motions to change venue or to re-open orders of deportation, which motions were denied;

(6) failing to file motions after his office represented to the clients that such motions would be made;

(7) failing to advise clients of hearing dates, or having his office advise clients that it was unnecessary for them to appear at scheduled hearings, and failing to advise clients of dispositions of motions of which they should have been apprised, such as motions for change of venue;

(8) arranging for other attorneys to appear in his stead at hearings, without informing the clients or obtaining their consent, and without adequately preparing the other attorneys for such appearances; and

(9) failing to return important original documents relating to a client’s asylum claim.

In addition, the Referee found that respondent made affirmative misrepresentations to the Immigration Courts and to the DDC in order to conceal his professional misconduct, in a number of cases seeking to blame the client for his own professional failures. Notably, although respondent’s neglect resulted in the entry of orders of deportation against the clients who testified in this proceeding, those clients were able to salvage their cases by retaining, at higher cost, new attorneys who made successful motions to re-open.

The Referee also found that respondent engaged in the following misconduct relating to his trust accounts: (1) he wrote a check payable to "cash" from one of his IOLA accounts; (2) he failed to keep and produce to the DDC proper bookkeeping records for that account or a second IOLA account; (3) he accepted a $30,000 check from an individual for deposit in one IOLA account, which funds purportedly belonged to an unnamed third party, and disbursed the funds in cash to the individual who gave him the check without knowing or seeking to know the unnamed third party; and (4) he used one IOLA account solely as a business operating account. Finally, the Referee found that respondent failed to report his correct business address in two OCA registration statements.

To the extent respondent sought to deny the charges or to excuse his admitted misconduct, the Referee found his testimony incredible. Like the Hearing Panel, we see no reason to disturb this finding.1

In support of his argument that his punishment should be limited to public censure or reprimand, respondent proffers two points as supposed mitigation of his misconduct. First, he points out that during the period at issue in some of the charges, his mother had been terminally ill in Syracuse, requiring him to travel there frequently up to the time of her death in February 1999. As the Hearing Panel noted, however, respondent failed to demonstrate any causal connection between his mother’s illness and his professional misconduct. Second, respondent asserts that his failures to appear for hearings in New Orleans (the venue of a number of his clients’ cases) should be deemed excused due to his fear of flying. Respondent claims that each time he arranged to travel to New Orleans, he believed he would be able to board the airplane, but he ultimately was unable to do so. We agree with the Referee and the Hearing Panel that, under the circumstances of this case, the matter of respondent’s fear of flying is more aggravating than it is mitigating. Respondent, in spite of his awareness that he suffered from this condition, not only took on matters involving hearings in a distant city, he failed to advise his clients of the risk that he would be unable to appear at such hearings due to his disability.

While genuinely mitigating factors are absent, aggravating factors are clearly present. In this connection, it is significant that respondent had accumulated a substantial disciplinary history before any of the events on which the present charges are based. On December 23, 1994, the Fourth Department suspended him, on default, pending further proceedings (Matter of Muto, 210 AD2d 1008), and on December 22, 1995, that court suspended him for one year from the date of his interim suspension, and until further order of the court, for neglect and use of client funds for personal purposes (Matter of Muto, 218 AD2d 328). Before respondent was reinstated to the bar on December 30, 1996 (Matter of Muto, 234 AD2d 1014) , the Fifth District Grievance Committee issued a Letter of Admonition to him in March 1996, based on 10 different client complaints of neglect pre-dating his suspension. Respondent’s culpability is further aggravated by his lack of candor in these proceedings, and by his lack of genuine remorse and contrition, as evidenced by his continued mantra-like recitation, even in this Court, of the baseless assertion that he rendered "low cost high quality" representation to his ill-served clients. As the Referee observed, respondent’s repetition of this empty claim "has an air of delusion about it."

In sum, we confirm the findings of fact and conclusions of law sustaining all 43 charges against respondent. Further, we agree with the Referee and the Hearing Panel that disbarment is the appropriate sanction in this case. As aptly noted by the Referee, respondent’s conduct demonstrates a "truly shocking disregard for his clients’ welfare in what is for them one of the most important undertakings of their lives." Respondent, who already has a substantial disciplinary history based on neglect of client matters during an earlier period of his career, has been proven in this proceeding to have neglected the representation of no less than 17 clients in matters of the gravest significance, involving possible loss of their personal liberty and deportation. Through this "long-standing pattern of insensitivity to his legal and ethical obligations, . . . respondent has shown himself to be unfit to continue in the practice of law" (Matter of Hunter, 120 AD2d 214, 220; see also, Matter of Evangelista, 233 AD2d 1; Matter of Kranis, 219 AD2d 278, lv denied 89 NY2d 805; Matter of Stenstrom, 194 AD2d 277). In the words of the Hearing Panel, respondent "is a danger to any client who might retain him." The protection of the public demands that respondent be removed from the legal profession.

Accordingly, the petition of the DDC for an order pursuant to 22
NYCRR § 603.4(d) should be granted, the findings of fact and conclusions of law of the Referee and the Hearing Panel confirmed, and respondent disbarred from the practice of law in this State and his name stricken from the roll of attorneys and counselors-at-law, effective immediately.

At a Term of the Appellate Division of the Supreme Court held in and for the First Judicial Department in the County of New York on March 19, 2002.

Present:

Hon. Eugene Nardelli, Justice Presiding
David B. Saxe
Joseph P. Sullivan
Richard W. Wallach
David Friedman, Justices

————————————————————

In the Matter of Joseph F. Muto
(admitted as Joseph Francis Muto),
an attorney and counselor-at-law:

Departmental Disciplinary Committee
for the First Judicial Department,

Petitioner,

Joseph F. Muto, Esq.,

Respondent.

————————————————————

An unpublished order of this Court having been entered on February 27, 2001 (M-762) appointing a Referee to conduct a hearing and file a report in the above-referenced proceeding pursuant to Section 605.12(f) of the Rules of the Court on formal charges against respondent (who, as Joseph Francis Muto, was admitted to practice as an attorney and counselor-at-law in the State of New York at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on January 27, 1987),

And the Departmental Disciplinary Committee for the First Judicial Department by Thomas J. Cahill, its Chief Counsel (Sherry K. Cohen, of counsel), having presented a petition to this Court on January 29, 2002 seeking an order, pursuant to Judiciary Law §90 and 22 NYCRR 603.4(d), confirming the Report of the Hearing Panel, which confirmed the Referee’s findings of fact and conclusions of law and recommended sanction of disbarment,

And respondent, pro se, having interposed an answer and reply affirmation stating, inter alia, that disbarment is too harsh a sanction and that a lesser sanction such as a public censure or reprimand be imposed,

(M-6977) -2- March 19, 2002

Now, upon reading and filing the papers with respect to the petition, and due deliberation having been had thereon, and upon the Opinion Per Curiam filed herewith, it is unanimously

Ordered that the petition is granted and the Report of the Hearing Panel, which confirmed the Referee’s findings of fact and conclusions of law and recommended sanction, is confirmed, and respondent is disbarred and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof, and it is further

Ordered that respondent is commanded to desist and refrain from the practice of law in any form, either as principal or agent, clerk or employee of another; that respondent is forbidden to appear as an attorney and counselor-at-law before any court, judge, justice, board, commission or other public authority; that respondent is forbidden to give to another an opinion as to the Law or its application or any advice in relation thereto, effective the date hereof. Respondent is directed to fully comply with the provisions of Title 22, Section 603.13, of the Rules of this Court, a copy of which is annexed hereto and made a part hereof.

_______

1. Respondent challenges only two of the 43 charges against him as based on insufficient evidence. We agree with the Hearing Panel that the charges in question were supported by sufficient evidence.

 

 

Case Number: 02PDJ003

Petitioner:

GEORGE C. PRICE,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

November 22, 2002

OPINION AND ORDER READMITTING GEORGE C. PRICE
TO THE PRACTICE OF LAW

Opinion issued by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Marilyn L. Robertson and Robert M. Maes, both members of the bar.

ATTORNEY REINSTATED TO THE PRACTICE OF LAW

On September 20, 2002, a reinstatement hearing was held pursuant to C.R.C.P. 251.29(b) before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, Marilyn L. Robertson and Robert M. Maes, both members of the Bar. Alexander R. Rothrock appeared on behalf of George S. Price. James S. Sudler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Sarah Cline-Lebsack, Richard B. Wagner, Sandra G. Jaquith, and Howard V. Selinger, Ph.D. testified on behalf of Price, who testified on his own behalf. Price’s exhibits 1 through 9 were offered and 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

George Case Price ("Price") took the oath of admission and was admitted to the bar on October 17, 1980, attorney registration number 10652. As a result of a Conditional Admission of Misconduct submitted by the parties, the Colorado Supreme Court suspended Price from the practice of law on December 16, 1996 for a period of one year and one day. The effective date of the period of suspension was January 15, 1997. People v. Price, 929 P.2d 1316 (Colo. 1996).

The facts giving rise to the suspension arose in part from conduct involving five separate client matters. In the first matter,1 Price represented a client in a dispute with a school district involving the client’s termination of employment and the employer’s failure to retain her following the termination. Price agreed to represent her on a contingent fee basis without executing a written fee agreement. When the matter settled, Price deposited the settlement check in his trust account. Price attempted to send the client her share two months thereafter, but she did not receive the check. After Price deposited the settlement check into his trust account, the account dropped below the amount owed to the client. Two months later, when the client filed a request for investigation, Price tendered payment in the form of a cashier’s check to the client. Price’s misappropriation of client funds was due to inattention and neglect rather than knowing conversion.

In a second matter, Price entered into a settlement agreement on behalf of a client, and the client tendered funds to Price to pay the agreed-upon sum pursuant to the agreement by wiring the funds to Price’s trust account. Price wrote a check the same day to opposing counsel. When the check was presented for payment five days later, it was returned due to insufficient funds. Price did not maintain all of the client’s funds in the trust account due to an accounting error.

In a third matter, Price represented a client in an employment dispute. The parties entered into a settlement agreement, and Price failed to timely deliver the settlement documents to opposing counsel. Price’s conduct constituted neglect of the client’s matter. Thereafter, during the period of time he was immediately suspended, when a problem arose with the settlement, Price attempted to resolve the problem on behalf of his client, and admitted that his conduct constituted the practice of law while under suspension.

In a fourth matter, Price represented a client concerning an employment dispute, sent a letter on behalf of the client to the employer with an offer to settle the matter, and when no agreement was reached, Price advised the client to commence a lawsuit. The client provided funds to Price to be used for costs incurred in the action and Price agreed to file a complaint. For an eight-month period thereafter, the client attempted to reach Price and was unable to do so. During that time frame, Price did not file a complaint. Following the client’s filing a request for investigation with the then Office of Disciplinary Counsel,2 Price provided the client with a draft copy of the complaint, which was subsequently filed. Price’s conduct amounted to neglect of the client’s matter.

In a fifth matter, Price entered his appearance on behalf of a client in an employment dispute. Price failed to provide opposing counsel with discovery and failed to respond to a summary judgment motion or advise the client that the motion had been filed. The motion was granted. Price attempted to move for reconsideration of the ruling, but did so, in part, while under suspension, and on these grounds the court denied Price’s motion. Price’s conduct constituted neglect, engaging in conduct prejudicial to the administration of justice and conduct adversely reflecting on fitness to practice law.

In addition to the misconduct involving client matters, from January 1994 through August 1994, Price wrote thirty checks on his business account that were returned for insufficient funds, and twenty-five checks that were paid by the bank even though there were insufficient funds on deposit to cover the checks. During the same time frame, nine checks written on Price’s trust account were returned for insufficient funds.

In February 1998, Price petitioned for reinstatement. By Order dated January 16, 2001, Price was denied reinstatement because he had failed to file an affidavit containing a list of all pending matters, failed to notify all of his clients and opposing counsel that he had been suspended, and failed to file a list of pending matters with the court after being suspended. Additionally, with regard to several clients, Price took action on their behalf when he was suspended. See generally In the Matter of George Case Price, 18 P.3d 185 (Colo. 2001).

The misconduct giving rise to the disciplinary proceeding occurred within the time frame 1991 through 1998.3 Throughout those seven years, Price was distracted by marital difficulties and became increasingly depressed, manifesting a short attention span, an inability to concentrate and a failure to focus on the details of any given matter. Throughout that period, however, he remained close to his two sons. Price sought marital counseling in 1997, but it did not resolve the marital difficulties. In 1997, at the zenith of the depression, in an attempt to stop the downward spiral of his personal and professional life, Price sought individual therapy with Dr. Selinger, a behavioral psychologist, who continued to treat Price through March, 2002, and intermittently thereafter. A divorce was later finalized on May 28, 2002.

Throughout this time period, Dr. Selinger treated Price for dysthymic disorder involving moderate depression. Based on his assessment of Price over a five-year period, Dr. Selinger opined that the primary cause of Price’s depression has been resolved, and that he no longer manifests the behavior which gave rise to the prior disciplinary action. Currently, Price shows no sign of depression, and enjoys a positive outlook on his life.

In 1999, Price sought and obtained employment with the Federal Emergency Management Administration ("F.E.M.A."), where he is presently part of the Project Impact/Corporate Team dealing directly with the victims of disasters. The team is responsible for contacting roughly three hundred businesses seeking private sector and government cooperation in preventing disasters. Price’s performance in his current position reflects that he is efficient, capable, and has good communication skills. He meets deadlines and brings projects to completion. During the time period he has been employed at F.E.M.A., he has never neglected a project or a client.

From 1999 to the present, Price has also been employed as a paralegal by Sandra Jaquith, who has known Price since law school. Under Jaquith’s supervision, Price conducts research, interviews clients, and assists in negotiation and arbitration of cases. As a paralegal, Price has worked on approximately thirteen cases, is attentive to detail, and is responsible. He follows through on assignments, calendars matters and is proactive with his tasks. Throughout his period of suspension, both through his work as a paralegal and through his fulfillment of Continuing Legal Education courses, Price has remained current in the law.4

Notwithstanding his suspension from the practice of law, Price remained active in community affairs. He has performed volunteer work in the Denver community with the Park Hill Community Justice Council, and is also a member of the Community Accountability Board. Price takes full responsibility for his misconduct. He is committed to getting back into the practice of law of law. He intends to continue in therapy and submit his law practice to financial monitoring.

Price filed the within Petition for Reinstatement on January 14, 2002. At the time he filed the Petition, he had been suspended for approximately five years. The People stipulated that the Petition was filed within the five-year time frame set forth in C.R.C.P. 251.29(b).5 Under that rule, the five-year time frame would be tolled during the period of time a Petition for Reinstatement was pending. Price’s prior Petition for Reinstatement was pending for approximately a three year period. The People further stipulated that Price substantially complied with all prior orders. The People stipulated to Price’s reinstatement.

II. CONCLUSIONS OF LAW

C.R.C.P. 251.29(b) provides in relevant part:

An attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.

Thus, an attorney who desires reinstatement after suspension must bear the burden of proving that he or she is (1) rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (3) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized. See Goff v. People, 35 P.3d 487 (Colo. 2000).

Additionally, certain criteria must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. People v. Klein, 756 P.2d 1013 (Colo. 1988), interprets the language of the prior reinstatement rule, 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:

Any determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the petitioner’s state of mind and professional ability, including character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, present business pursuits, personal and community service, and the petitioner’s recognition of the seriousness of his previous misconduct.

Price has established by a clear and convincing standard that he is rehabilitated. Price determined that the main cause of his spiral into depression and the consequential professional misconduct over a seven year period was his response to a difficult marriage. After seeking marital counseling and determining that the counseling was not benefiting the situation, Price obtained a divorce. He also sought treatment for his depression. Medical evidence confirms that Price has rectified the behavior and circumstances which resulted in his suspension.

Prior to his suspension, Price was a capable attorney whose judgment and ability to function became impaired due to depression. He has demonstrated that he is reliable and capable in his present employment with F.E.M.A. and as a paralegal. Through his paralegal position and his fulfilling Continuing Legal Education requirements, as well as the independent reading of legal journals, Price has established that he is currently fit to practice law.

The parties stipulated that Price has substantially complied with all prior disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline. The parties further stipulated that Price’s Petition for Reinstatement was filed within the five-year deadline required by C.R.C.P. 251.29(b). The facts acknowledged by these stipulations are accepted.

Price fully acknowledged and expressed remorse for his prior conduct. He recognized that the conduct was entirely his responsibility and took affirmative action to resolve the difficulties in his life underlying the misconduct.

The evidence admitted in this reinstatement hearing established by clear and convincing evidence that Price is rehabilitated, has complied with all applicable disciplinary orders, and is fit to practice law as required by C.R.C.P. 251.29.

The Supreme Court in People v. Price, 929 P.2d at 1321, ordered that "[u]pon any reinstatement, the respondent is ordered to comply with the conditions included in the conditional admission." Accordingly, Price’s reinstatement is conditioned upon his adherence to the following conditions:

1. MONITORING OF PRACTICE BY
ANOTHER ATTORNEY:

An attorney approved by the Office of Attorney Regulation Counsel shall review the respondent’s legal files and method of handling the respondent’s case load for a period of three years following the respondent’s reinstatement to the practice of law. The review procedure shall be as follows:

A. The respondent shall demonstrate the existence of a workable reminder, or "tickler" system, and proof of a dual calendar system, or comparable case monitoring system, in the respondent’s office to the Office of Attorney Regulation Counsel within ninety (90) days of any Order of Reinstatement and shall, by the reports of the monitoring attorney, demonstrate that both the reminder system and the dual calendar system, or comparable case-monitoring system, is in existence and operating effectively.

B. A case-load-review meeting shall take place between the monitoring attorney and the respondent on this schedule:

(1) First year: meeting once per month;

(2) Second year: meeting every other month;

(3) Third year: meeting quarterly.

C. At each meeting the following will take place:

(1) The respondent will prepare a list of current, active files, which files will be reviewed by the monitoring attorney together with the respondent. The monitoring attorney will take steps to verify that the list is complete.

(2) The monitoring attorney will make, and the respondent will write down, specific suggestions necessary to assure that the case load is being properly and professionally handled and that the respondent is progressing in a satisfactory manner following the respondent’s reinstatement.

(3) The monitoring attorney and the respondent will review the list of suggestions from the previous meeting to be sure that all suggestions for improvement have been implemented and that the respondent has complied with them.

(4) The monitoring attorney shall have access to and monitor, to the extent he deems necessary, all financial accounts of the respondent, including personal accounts, in order to assure that no commingling of funds occurs.

D. Within ten days following each meeting, the respondent shall submit to the Office of Attorney Regulation Counsel a written report of the meeting, which report shall be signed by the monitoring attorney.

E. The monitoring attorney shall immediately disclose to the Office of Attorney Regulation Counsel, 600 17th Street, Suite 200-South, Denver, Colorado 80202, any matters which are uncorrected or which represent significant problems requiring corrective attention. Copies of such correspondence shall be sent to the respondent.

2. FINANCIAL MONITORING:

A. The respondent will maintain the following minimum records as to all bank accounts instituted or utilized by the respondent in any fashion whatsoever in the practice of law:

(1) A separate bank account or accounts and, if utilized, a separate savings and loan association account or accounts, located in Colorado, in the name of the lawyer or law firm and clearly labeled and designated as "trust account."

(2) Original or duplicate deposit slips and, in the case of currency or coin, an additional cash receipts book, clearly identifying:

(a) The date and source of all trust funds received;

(b) The client or matter for which the funds were received.

(3) Original cancelled checks, all of which must be numbered consecutively.

(4) Other documentary support for all disbursements and transfers from the trust account.

(5) A separate cash receipts and disbursements journal, including columns for receipts, disbursements, transfers, and the account balance, and containing at least:

(a) The identification of the client or matter for which the funds were received, disbursed, or transferred;

(b) The date on which all trust funds were received, disbursed, or transferred;

(c) The check number for all disbursements;

(d) The reason for which all trust funds were received, disbursed, or transferred.

(6) A separate file or ledger with an individual card or page for each client or matter showing all individual receipts, disbursements, or transfers and any unexpended balance and containing:

(a) The identification of the client or the matter for which trust funds were received, disbursed, or transferred;

(b) The date on which all trust funds were received, disbursed, or transferred;

(c) The check number for all disbursements;

(d) The reason for which all trust funds were received, disbursed, or transferred.

(7) All bank or savings and loan association statements for all trust accounts.

B. The respondent will perform the following trust-accounting procedures:

1. The lawyer shall cause to be made monthly:

(a) Reconciliation of all trust bank or savings and loan association accounts, disclosing the balance per bank, deposits in transit, outstanding checks identified by date and check number, and other items necessary to reconcile the balance per bank with the balance per the checkbook and the case receipts and disbursements journal;

(b) A comparison between the total of the reconciled balances of all trust accounts and the total of the trust ledger cards or pages, together with specific descriptions of any differences between the two totals and reasons therefor.

2. At least annually, a detailed listing identifying the balance of the unexpended trust money held for each client or matter.

3. The above reconciliation’s, comparisons, and listing shall be retained for at least six years.

C. The respondent shall direct any bank or savings and loan association where the respondent is a signatory on any bank account utilized in the practice of law to notify the Office of Attorney Regulation Counsel in the event any law firm or trust account check is returned due to insufficient funds or uncollected funds, absent bank error. Further, if any such check is returned, the respondent shall, likewise, notify the Office of Attorney Regulation Counsel.

D. The respondent shall file a written report with the Office of Attorney Regulation Counsel each year for a period of five years beginning one year from the date of the reinstatement order regarding the satisfactory maintenance of the financial aspect of the respondent’s law practice and demonstrating the respondent’s compliance with the conditions set forth above. The said report shall contain the certificate of a certified public accountant verifying that the procedures set forth above were followed and that an audit demonstrated no irregularities in the handling of the trust accounts. Said audit and report shall be conducted and complied with at the respondent’s sole expense.

E. The respondent shall obtain malpractice insurance coverage of no less than $100,000.00 for each claim and, within thirty days of the order of reinstatement, shall deliver to the Office of Attorney Regulation Counsel documentary proof of the existence of such coverage; further, the annual written report filed with the Office of Attorney Regulation Counsel referred to hereinabove shall specifically include documentary proof of the continued existence of malpractice insurance coverage during the entire period of monitoring by the Office of Attorney Regulation Counsel described herein.

F. The respondent shall specifically maintain separate accounts for any funds coming into the respondent’s possession as real estate broker and shall not utilize the respondent’s law firm business account nor trust accounts for any broker functions whatsoever.

G. In the event that Price returns to the practice of law in some capacity such as in-house counsel to a company, or as an associate or member of a firm with built-in possibilities for monitoring, then the conditions specified above may modified accordingly to obtain the same goals therein which contemplate that Price will return to a solo practice.6

III. ORDER OF REINSTATEMENT

It is therefore ORDERED:

George C. Price, attorney registration number 10652 is reinstated to the practice of law effective thirty-one days from the date of this order, subject to the conditions set forth above. Price shall pay all costs of the reinstatement proceeding. Respondent shall file a Statement of Costs or Notice that costs have been paid within fifteen (15) days of the date of this Order. Petitioner shall have five (5) days thereafter to file a Response.

_______

1. Price was immediately suspended from the practice of law on January 12, 1995 due to the allegations set forth in this matter. The immediate suspension was subsequently vacated on February 7, 1995, pending final disposition of the disciplinary proceeding.

2. Effective January 1, 1999, Disciplinary Counsel was designated as the Office of Attorney Regulation Counsel. See C.R.C.P. 251.3.

3. During the same time frame, Price received three letters of admonition dated June 11, 1991, July 28, 1993, and August 22, 1994. These letters concerned Price’s neglect of a client matter, failure to communicate with clients, and on one occasion, failing to reduce a contingent fee agreement to writing.

4. Price completed 16 Continuing Legal Education courses and read twenty-four other treatises, journals or law related reading material.

5. C.R.C.P. 251.29(b) provides in relevant part: [a]n attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement . . . . [I]f the attorney remains suspended for five years or longer, reinstatement shall be conditioned upon certification by the state board of law examiners of the attorney’s successful completion, after the expiration of the period of suspension, of the examination for admission to practice law and upon a showing by the attorney of such other proof of professional competence as the Supreme Court or a Hearing Board may require; provided, however, that filing a petition for reinstatement within five years of the effective date of the suspension of the attorney tolls the five-year period until such time as the Hearing Board rules on the petition.

6. Any modifications of the conditions set forth herein shall be submitted to the PDJ for review.

 

 

Case Number: 02PDJ081

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JULIA M. ROYE.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

April 17, 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 Dante J. James and Kathryn S. Lonowski, both members of the Bar.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR ONE YEAR AND ONE DAY

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on March 5, 2003, before a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley ("PDJ") and two Hearing Board members, Dante J. James and Kathryn S. Lonowski, both members of the bar. Fredrick J. Kraus, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Julia M. Roye, the respondent ("Roye"), did not appear either in person or by counsel.

The People filed a Complaint in this matter on September 24, 2002. The Proof of Service filed November 14, 2002 indicated that the Citation and Complaint were sent via certified and regular mail to Roye on September 25, 2002 to her registered home address.1 Roye failed to file an Answer or otherwise respond to the Complaint.

The People moved for default on the claims set forth in the Complaint, and on December 5, 2002, the PDJ granted the motion as to the facts set forth therein, which were deemed admitted. The PDJ granted default as to the alleged rule violations set forth in the Complaint, which were deemed established, with the exception of claim six alleging a violation of Colo. RPC 8.1(b), which was subsequently withdrawn.

At the sanctions hearing, exhibits 1 and 2 were offered by the People and admitted into evidence. Aaron W. Barrick testified on behalf of the People. The Hearing Board considered the People’s argument, the facts established by the entry of default, the exhibits admitted, the testimony of the witness, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Julia Matilda Roye has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on October 23, 1995 and is registered upon the official records of this court under attorney registration number 26240. Roye 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 Roye violated the following Colorado Rules of Professional Conduct: claim one, 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); claim two, 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) and 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); claim three, Colo. RPC 3.4(c)(a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); claim four, Colo. RPC 8.4(d)(a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and claim five Colo. RPC 1.16(d)(upon termination, a lawyer shall take steps to protect a client’s interest and surrender papers and property to the client).

The allegations giving rise to this Complaint involve Roye’s representation of one client. Roye filed injunctive proceeding to prevent seizure of equipment on behalf of the client on November 15, 2000, in Adams County District Court. The defendant filed an answer, a counterclaim and a third-party complaint. The parties resolved all issues with the exception of those alleged in the counterclaims. The case was set for trial on December 3, 2001. A status conference was set for November 5, 2001. Roye knew of the status conference and failed to appear.

The judge’s division attempted to contact Roye, but Roye did not respond. On November 14, 2001, the court issued an order requiring Roye to contact the division no later than November 20, 2001 and state why the case had not been prosecuted. Roye did not respond to the order. Opposing counsel attempted to communicate by telephone with Roye on numerous occasions and she did not return the telephone calls. The client appeared before the court on November 20, 2001, and requested that the matter be continued so that new counsel could be obtained, and the court vacated the trial date. The client hired replacement counsel on November 27, 2001. The client attempted to contact Roye to request that she turn over the file and bring replacement counsel up to date. Roye did not respond. Replacement counsel attempted to contact Roye directly to no avail and subsequently reconstructed the file from court records. The client incurred additional costs due to Roye’s abandonment. The case was eventually resolved through mediation.

Roye neglected the legal matter entrusted to her in violation of Colo. RPC 1.3 by failing to appear for a status conference and respond to the subsequent order of court; failing to prosecute the case; failing to participate in the drafting of a proposed case management and trial management order; failing to engage in discovery, and by failing to respond to the court, her client, opposing and replacement counsel.

The facts established by the entry of default demonstrate that Roye effectively deserted and/or rejected the client. Such misconduct constitutes 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. The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client. People v. Powell, 37 P.3d 545, 548 (Colo. O.P.D.J. 2001), citing People v. Carvell, 62 P.3d 167 (Colo. O.P.D.J. 2000); 2000 Colo. Discipl. LEXIS 26. In the present case, Roye effectively terminated the attorney-client relationship when she failed to communicate with the court, her client, and opposing counsel over a four-month period despite their numerous attempts to communicate with her. Her disregard of the client’s request that she turn over the file to replacement counsel and her failure to communicate with replacement counsel triggered the requirements of Colo. RPC 1.16(d), requiring her to take reasonable steps to protect the client’s interests upon termination. She failed to do so. The totality of such conduct constitutes abandonment.

Roye failed to adequately communicate with the client in violation of Colo. RPC 1.4(a) and failed to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Roye failed to respond to her client’s repeated telephone calls after August 2001; she made no efforts to communicate with the client or replacement counsel when he was hired in November 2001; she failed to advise the client as to the date of the status conference and the possible legal effects of failing to attend the conference, and she failed to advise the client of the court’s order requiring Roye to file a written status report and the possible legal effects of her failing to do so.

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).

Finally, due to Roye’s abandonment of the matter, the client was constrained to hire replacement counsel who requested that Roye provide the client’s file to him. Roye failed to return the client’s files and papers despite demands and requests that she do so. Roye failed to take steps to the extent reasonably practicable to protect a client’s interest in surrendering papers and property to which the client was entitled in violation of Colo. RPC 1.16(d).

III. IMPOSITION OF SANCTION

Under the ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992)("ABA Standards ") neglect rising to the level of abandonment warrants a sanction ranging from suspension to disbarment, depending on the facts of each case. See ABA Standard § 4.42(a)(providing that "[s]uspension is generally appropriate when (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client"); ABA Standard § 4.41(a)(providing that "[d]isbarment is generally appropriate when a lawyer abandons the practice and causes serious or potential serious injury to a client"). Colorado case law is consistent with this range of sanction.

In People v. Odom, 914 P.2d 342 (Colo. 1996), the attorney was suspended for three years for failing to keep one client informed regarding an offer by the estranged spouse to increase child support and failing to keep the client informed regarding social security benefits, misconduct which resulted in harm to the client. In a separate case, the attorney failed to perform requested services in a criminal matter, failed to refund a retainer, and abandoned the client. The attorney failed to participate in the disciplinary proceedings. In arriving at a three-year suspension, the Supreme Court stated:

Prior case law would sustain either a long period of suspension or disbarment in his case. However, "[g]iven the abbreviated record in these default proceedings, and the facts and circumstances of this particular case, we elect to . . . impose a period of suspension rather than disbarment."

914 P. 2d at 345, (quoting People v. Crimaldi, 854 P.2d 782, 786
(Colo.1993)).

In Odom, the Court considered several aggravating factors including the attorney’s prior discipline and assessed a three-year period of suspension. In People v. Rishel, 956 P. 2d 542 (Colo. 1998) the Supreme Court suspended the attorney for one year and one day for seriously neglecting two client matters and recommended special conditions for reinstatement. In Carvell, 62 P.3d at 171, the Hearing Board suspended the attorney for one year and one day for failing to communicate with one client over a five-month period during a critical time in the proceeding, failing to provide the court with his client’s financial information, failing to notify the client of the final orders hearing, failing to appear on the client’s behalf, and failing to cooperate with the Office of Attorney Regulation Counsel’s investigation. The within case is similar to Carvel in that the matter involved one client and one instance of abandonment. As in Carvell, there is no allegation that Roye misappropriated funds. Similarly, in Powell, 37 P.3d at 548, the Hearing Board found that a suspension of one year and one day was warranted where, in three separate matters, the attorney neglected clients’ matters, failed to communicate with the clients, failed to return one client’s file, and did not update his information with the Office of Attorney Registration. As in the present case, Powell involved one instance of abandonment.

The ABA Standards and Colorado case law also support a period of suspension for one instance of abandonment coupled with one instance of knowingly disobedience of an obligation under the rules of a tribunal in violation of Colo. RPC 3.4(c). See Powell, 37 P.3d at 548 (suspending attorney for one year and one day for several rule violations including failing to update his home and business addresses with Attorney Registration); People v. Johnson, 35 P.3d 192 (Colo. O.P.D.J. 1999)(suspending attorney for one year and one day for court-ordered child support).

Pursuant to ABA Standards 9.22 and 9.32 respectively, aggravating and mitigating factors are considered in arriving at the appropriate sanction. Because Roye did not participate in these proceedings, no mitigating factors were established. The People informed the Hearing Board, however, that Roye has had no prior disciplinary history, considered a mitigating factor pursuant to 9.32(a). See Carvel, 62 P.3d at 172 (considering an absence of a prior disciplinary record in mitigation in arriving at a one year and one day period of suspension). The Hearing Board also notes in mitigation that Roye was inexperienced in the practice of law, having been licensed for five years at the time of the events giving rise to this disciplinary proceeding. See id. at 9.32(f). In aggravation, Roye engaged in a pattern of misconduct, see ABA Standard 9.22(c). Given the mitigating and aggravating factors presented, a one year and one day suspension is warranted in this default proceeding.

IV. ORDER

It is therefore ORDERED:

1. JULIA MATILDA ROYE, attorney registration number 26240, is SUSPENDED from the practice of law for a period of one year and one day effective thirty-one (31) days from the date of this Order.

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

3. Roye 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

COMPLAINT

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 23, 1995, and is registered upon the official records of this court, registration no. 26240. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered business address is not listed with the Colorado Supreme Court, Office of Attorney Registration. The last known business address is 4875 DTC Blvd., Unit 107, Denver, CO 80237. The respondent’s registered home address is 4950 S. Yosemite, #158, Greenwood Village, Colorado 80111.

General Allegations

2. Respondent was hired by HBCCI. & Associates, Inc. (hereinafter "HBCCI") to bring suit against MCC Construction Corporation (hereinafter "MCC"). An attorney-client relationship was thus formed.

3. Respondent filed suit on behalf of HBCCI on November 15, 2000, in the District Court of Adams County, case no. 00CV2603.

4. the case was assigned to the Honorable Judge Chris Melonakis.

5. The defendant, MCC, retained counsel, filed an answer, a counter-claim and a third-party complaint.

6. The case was set for a trial on December 3, 2001.

7. A status conference was set for November 5, 2001, at 8:30 a.m. On November 5, 2001, at 8:30 a.m. The respondent knew of the status conference. The respondent failed to appear for the status conference.

8. The Judge’s division called respondent at the telephone number listed in her pleadings and left two voice mail messages for the respondent to call Judge Melonakis.

9. The respondent received the telephone messages from the Judge’s division. Despite receiving these telephone voice mail messages, the respondent failed to respond.

10. On November 14, 2001, the court issued an order directed to the respondent to contact the division no later than November 20, 2001 and state why the case had not been prosecuted and when further action will be taken to resolve the case.

11. The order of November 14, 2001, was sent to the address listed in the respondent’s pleadings. It was not returned to the court. It is presumed the respondent received the court order. The respondent did not respond or comply with the order.

12. Respondent’s opposing counsel attempted to communicate by telephone with the respondent on numerous occasions. The respondent was well aware of the attempts to communicate with her, but nevertheless respondent did not return any telephone calls or communicate in any other manner with opposing counsel.

13. HBCCI appeared before the court on November 20, 2001, and requested that the matter be continued so that new counsel could be obtained.

14. The trial date of December 3, 2001, was vacated so that respondent’s client could obtain new counsel.

15. On January 17, 2002, respondent’s client retained new counsel.

16. Respondent’s replacement counsel attempted to contact respondent to discuss the case, and to obtain the file of the client from respondent. Respondent was aware of the attempts to discuss the case and obtain the file.

17. Respondent did not respond to the request for the client’s file and did not communicate with her client’s new counsel.

18. The Office of Attorney Regulation Counsel made repeated attempts to contact respondent by telephone at her registered office and residence telephone numbers, by mail at her registered office and registered home addresses, by mail at addresses listed in pleadings, and
e-mail at an e-mail address listed in correspondence during the investigation of this matter. Some mail was returned, some mail was not. Respondent did not respond by mail or telephone to the attempts to communicate with her.

CLAIM I

[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]

19. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

20. 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.

21. The respondent failed to act with reasonable diligence and promptness and neglected the client’s legal matter in each of the following respects:

a. by failing to prosecute the case entrusted to her to its conclusion;

b. by failing to participate in the drafting of a proposed case management order and trial management order;

c. by failing to engage in and complete discovery;

d. by failing to communicate with the court, her client, and opposing counsel and to participate in the status conference; and

e. by failing to communicate with the client’s new counsel;

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

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

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

24. The respondent’s pattern and practice of failing to accomplish her professional tasks for the client constitutes abandonment of the professional responsibilities owed to that client.

25. 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 II

[A Lawyer Shall Keep A Client Reasonably Informed About
The Status Of A Matter, 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)]

26. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

27. 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.

28. The 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 in the following respects:

a. by failing to respond to her client’s repeated telephone calls;

b. by failing to advise the client that there was a status conference on November 5, 2001, and the possible legal effects of failing to attend the conference;

c. by failing to advise the client of a November 14, 2001, order to file a written status report and the possible legal effects of her failing to do so;

d. by failing to advise the client that she was not going to appear for the status conference on November 5, 2001, or the November 14, 2001 hearing to report or to file a written status report and the possible legal effects of her failing to do so;

e. by failing to maintain minimum communications with the client from August, 2001, to the date the client was forced to retain new counsel; and

f. by failing to respond to the client’s new counsel’s reasonable request for information and the file.

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

29. The respondent knew or should have known that she had failed to communicate adequately with her client over a period of months.

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

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

32. 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.

33. The respondent failed to explain to the client the matter in which the client was involved to the extent reasonably necessary to permit the client to make informed decisions in the following respects:

a. by failing to explain sufficiently the client’s legal rights and obligations in participation of the status conference on November 5, 2001 proceedings, and explain the practical implications therein;

b. by failing to inform the client fully and promptly of material developments in the matter to permit the client to make informed decisions regarding the representation; and

c. by failing to respond to new counsel’s request for information and explain the matter to new counsel.

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

34. The respondent knew or should have known that she failed to adequately explain the legal matter to the client over a period of months.

35. The respondent’s pattern and practice of failing to explain these legal matters to the client caused potential injury to the client.

36. The respondent’s failure to adequately explain the client matter constitutes abandonment of the professional responsibilities owed to the client.

37. 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 III

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

38. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

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

40. The respondent was aware of the court order to appear for a status conference. The respondent knowingly disobeyed a court order to appear for a status conference on November 5, 2001.

41. The respondent was aware of a subsequent order of court to inform the court as to the status of the case in writing or in person. The respondent knowingly disobeyed a court order by not responding, in writing or in person, to an order dated November 14, 2001, to inform the court as to the status of the case by November 20, 2001.

42. No exception exists under Colo. RPC 3.4(c) for the respondent’s knowing failure to comply with the court order for a conference on November 5, 2001, and the court order dated November 14, 2001.

43. 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 IV

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

44. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

45. 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.

46. The respondent 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.

47. By failing to respond to court orders for a status report on two occasions which directly led to the court resetting the trial of the case, the respondent acted in contravention of the court’s authority.

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

49. 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 V

[Upon Termination, A Lawyer Shall Take Steps to
Protect a Client’s Interest And Surrender Papers And
Property to the Client—Colo. RPC 1.16(d)]

50. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

51. The respondent effectively terminated the attorney-client relationship and also when she failed to communicate with her client despite the client’s numerous attempts to communicate with her, by not appearing at the hearing on November 20, 2001,

52. On January 17, 2002, new counsel filed an entry of appearance for HBCCI in the suit.

53. The attorney who replaced respondent made requests for the client’s file from respondent.

54. Respondent failed to return the client’s files and papers despite demands and requests to do so.

55. Colo. RPC 1.16(d) requires that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest in surrendering papers and property to which the client is entitled.

56. The respondent knew or should have known that she was failing to protect the client’s interest by not communicating with the client or new counsel and by not returning the client’s file.

57. The foregoing conduct of respondent in failing to take steps reasonably necessary to protect the client’s interest and returning papers and property of the client establishes grounds for discipline as provided for in C.R.C.P. 251.5 and also violates Colo. RPC 1.16(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VI

[An Attorney Shall Respond To A Request By The
Regulation Counsel For Information Necessary To Carry Out
The Performance Of Regulation Counsel’s Duty—
C.R.C.P. 251.5(d); A Lawyer Shall Not Knowingly Fail to Respond Reasonably To A Lawful Demand for Information From A
Disciplinary Authority Colo. RPC 8.1(b)]

58. Paragraphs 1 through 18 are incorporated herein.

59. C.R.C.P. 251.5(d) requires that an attorney respond to a request by the Attorney Regulation Counsel for information to carry out the performance of its duties.

60. The respondent failed to respond to repeated attempts by the Office of Attorney Regulation Counsel to information from the respondent.

61. The respondent knew or should have known that she was failing to cooperate and respond to the request by Attorney Regulation Counsel.

62. The foregoing conduct of the respondent in failing to respond to requests of Attorney Regulation Counsel establishes grounds for discipline as provided in C.R.C.P. 251.5.

63. Colo. RPC 8.1(b) provides that 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, except if the information is protected by Colo. RPC 1.6 or there is a good faith challenge to the demand.

64. The respondent knowingly violated the rule by failing to respond to the demands for information made by Attorney Regulation Counsel during the investigation of the subject matter of this disciplinary proceeding.

65. The information sought did not require disclosure of information otherwise protected by Colo. RPC 1.6.

66. The respondent made no good faith challenge to the demand by Attorney Regulation Counsel for such information.

67. The foregoing conduct of the respondent in failing to respond to requests of regulation counsel establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 8.1(b).

WHEREFORE, the people pray that the respondent be found to have engaged in misconduct under C.R.C.P. 251.5 and the Colorado Rules of Professional Conduct as specified above; that the respondent be appropriately disciplined for such misconduct; and that the respondent be assessed the costs of this proceeding.

_______

1. All mailings sent to Roye at her last known business address have been returned unclaimed.

 

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