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TCL > October 2003 Issue > Opinions

October 2003       Vol. 32, No. 10       Page  155
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 194 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: 02PDJ097

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

KJAERE ANDREWS, f/k/a KAREN MCLAUGHLIN

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

August 6, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Jerry D. Otero and Marilyn L. Robertson, both members of the bar.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR SIX MONTHS

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on April 15, 2003 in this default proceeding before the Presiding Disciplinary Judge ("PDJ") and two hearing board members Jerry D. Otero and Marilyn L. Robertson, both members of the bar. Terry Bernuth, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Kjaere Andrews ("Andrews"), the respondent, did not appear in person or by counsel.

The Complaint in this action was filed November 7, 2002. The People filed a proof of attempted service with this court on November 20, 2002, establishing that the Citation and Complaint were sent via regular and certified mail to Andrews’ last known address on November 7, 2002, and were returned with no forwarding address available. Andrews did not file an Answer to the Complaint. Service was therefore proper pursuant to C.R.C.P. 251.32(b). On February 3, 2003, upon the People’s motion, the PDJ entered an Order granting default. As a result of the Order granting default, all factual allegations set forth in the Complaint were deemed admitted and all rule violations set forth in the Complaint were deemed established pursuant to C.R.C.P. 251.15(b).

This is a reciprocal discipline matter from the State of Vermont brought pursuant to C.R.C.P. 251.21. C.R.C.P. 251.21(d) requires that in a reciprocal discipline matter from another jurisdiction, if the rules of professional conduct governing the attorney in Colorado would warrant a substantially different discipline than that warranted in the sister jurisdiction, the People must provide notice of the intent to seek harsher discipline in the Complaint. Claim III of the Complaint provided notice to Andrews that the People would seek identical discipline to the discipline imposed in Vermont.

At the sanctions hearing, the People’s exhibits 1 through 9 were offered and admitted into evidence. Karen L. Bershenyi 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

Andrews has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court of Colorado on October 28, 1985 and is registered upon the official records of this court, registration No. 14895. Andrews is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).1

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 "A." The violations set forth in the Complaint were also deemed established by the entry of default.

On September 28, 2001, the State of Vermont Professional Responsibility Board entered a judgment suspending Andrews from the practice of law for a period of six months and one day. In Vermont, a suspension for a period of time greater than six months requires a formal reinstatement proceeding. On October 31, 2001, the order became final and the Supreme Court of Vermont suspended Andrews for a period of six months and one day effective on that date. A copy of the Order of Suspension is attached hereto as Exhibit "B."

This reciprocal discipline matter arises from Andrews’ representation of Corylinn Jenne ("Jenne") commencing in June 2000, regarding Jenne’s divorce. Andrews and Jenne agreed to a rate of $50 per hour which was not reduced to writing. Jenne paid Andrews $1,000 as a retainer. Andrews did not maintain a trust account and deposited the retainer into her personal or business account. Within a few weeks, Jenne notified Andrews that she wanted to represent herself pro se and requested an accounting and refund of the balance of the retainer.

Andrews did not have funds available to return the unused portion of the retainer to the client: she had spent the retainer on her own personal or business expenses. In July 2000, Andrews sent a letter and final bill to Jenne, informing her that the bill reflected an hourly rate of $100, instead of the agreed-upon $50 hourly rate. Andrews did not discuss the increased rate with her client. After applying the increased rate, Andrews indicated in the letter that she owed Jenne $150.75 which she later paid to Jenne. Jenne accepted the $150.75 as partial payment of $575.35, the retainer balance at the $50 hourly rate. Despite her understanding that Jenne did not accept the partial payment as a resolution of her request for a refund, Andrews did not pay the balance due to Jenne, and used the funds for her own purposes.

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. The Supreme Court of Vermont held that Andrews violated the following Vermont Rules of Professional Conduct; 1.5(b)(the basis or rate of fee shall be communicated in writing), 1.15(a)(an attorney shall hold client’s property separate from attorney’s own property), 1.15(a)(every attorney in private practice who receives funds of a client shall maintain a trust accounting system), and 1.16(d)(upon termination a lawyer shall refund any advance payment of fee not yet earned). The Complaint in the within matter alleged that Andrews’ conduct constituted grounds for discipline pursuant to C.R.C.P. 251.21 in claim I. Claim II asserts that Andrews’ failure to report her suspension in Vermont to the Office of Attorney Regulation Counsel constitutes grounds for discipline pursuant to C.R.C.P. 251.5(d) and C.R.C.P. 251.21(b) in claim II. Claim III provides notice to Andrews that the People did not intend to seek imposition of a sanction harsher than that imposed by Vermont. See C.R.C.P. 251.21(d)(stating that "[i]f the Regulation Counsel intends either to claim that substantially different discipline is warranted or to present additional evidence, notice of that intent shall be given in the Complaint"); People v. Calder, 897 P.2d 831, 832 (Colo. 1995)(analyzed under C.R.C.P. 241.17(d), the predecessor to C.R.C.P. 251.21(d) and stating that in a reciprocal discipline case, the Supreme Court imposes the same discipline as that imposed in the foreign jurisdiction unless certain exceptions exist.)2

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline is, for purposes of attorney disciplinary proceedings in Colorado, sufficient to conclusively establish such conduct. See C.R.C.P. 251.21(a). The Order of the Supreme Court of Vermont constitutes such a final order.

Pursuant to C.R.C.P. 251.21(d)(4), the misconduct proved by the Order of the Supreme Court of Vermont warrants a substantially different form of discipline in Colorado. See, e.g., People v. Varallo, 913 P.2d 1, 11 (Colo. 1996)(stating that "[k]nowing misappropriation [for which the lawyer is almost invariably disbarred] ‘consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking,’ citing In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986)). Because no notice was provided by the People, the Hearing Board cannot impose a greater sanction than that imposed by the State of Vermont. See also People v. Apker, 67 P.3d 23, 25 (Colo. O.P.D.J. 2003)(hearing board finding that disbarment was the appropriate sanction under Colorado law for attorney’s knowing conversion of client property in reciprocal discipline action from the State of Arizona where respondent was suspended from the practice of law for a period of six months and one day); People v. Costa, 56 P.3d 130, 134 (Colo. O.P.D.J. 2002)(hearing board finding that disbarment was appropriate sanction under Colorado law for attorney’s making a material misrepresentation to the court, neglecting a client’s matter, failing to communicate with client, and knowingly failing to obey court orders in reciprocal discipline action where attorney was formally reprimanded and placed on probation by the State of New Mexico). Accordingly, Andrews is suspended for a period of six months with the requirement of a reinstatement proceeding.

III. ORDER

It is therefore ORDERED:

1. -KJAERE ANDREWS, attorney registration number 14895 is suspended from the practice of law for six months, effective thirty-one days from the date of this Order. If Andrews seeks reinstatement, she must comply with the reinstatement proceedings set forth in C.R.C.P. 251.29(c).

2. -Andrews 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

This complaint is filed pursuant to the authority of C.R.C.P. 251.14 and 251.21, 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 28, 1985 as Karen McLaughlin, and is registered upon the official records of this court, registration no. 14895. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered home address is P.O. Box 1064, Stowe, VT 05672. The respondent was administratively suspended from the practice of law in Colorado on November 6, 1987 for failure to pay registration fees. In 1992, the respondent petitioned the Colorado Supreme Court for a waiver of active registration fees from 1987 to 1992 and a name change to Kjaere Andrews. The Court granted the respondent’s requests and she was placed on inactive status and ordered to pay inactive registration fees for those years. The respondent failed to pay the inactive registration fees. The respondent’s record at Attorney Registration reflects that she has been administratively suspended since November 6, 1987.

CLAIM I

[Reciprocal Action for Revocation—C.R.C.P. 251.21]

2. The respondent was licensed to practice law in the state of Vermont on or about December 17, 1981.

3. On September 28, 2001, a hearing panel of the professional responsibility board of the Supreme Court of Vermont recommended suspension of respondent’s license to practice law for six months and one day for conduct in violation of her duties and obligations as a lawyer.

4. That recommended suspension became a final decision of the Supreme Court of Vermont when no appeal was taken by either party and the Supreme Court did not order review on its own motion. The order of suspension was effective October 31, 2001.

5. The hearing panel’s decision was a final adjudication of the respondent’s misconduct in Vermont, which constitutes grounds for discipline in Colorado, pursuant to C.R.C.P. 251.21(a). Exhibit A, which is a certified copy of the final decision of the hearing panel which became the order of the Supreme Court of Vermont conclusively establishes the respondent’s misconduct pursuant to Vermont Supreme Court Administrative Order 9, Rule 11.

6. In Vermont, in June 2000, the respondent was hired by Corylinn Jenne (the client) to represent her in a divorce action. The client paid the respondent $1,000 as a retainer. The respondent did not maintain a trust account and deposited the retainer into her personal or business account. After a few weeks, the client decided to handle the divorce case pro se and requested an accounting and refund of the balance of the retainer.

7. In July, 2000, the respondent sent a letter and final bill to the client informing the client that she was being charged an hourly rate of $100 rather than the $50 per hour rate that had been agreed upon between the client and the respondent. After applying the hourly rate of $100, the respondent indicated in the letter that she owed the client $150.70 which was later paid to the client. The client accepted the $150.70 as partial payment of the amount she wanted refunded of $575.35, the retainer balance at the $50 per hour rate.

8. The respondent was charged with violations of the following Vermont Rules of Professional Responsibility: 1.5(b) (the basis or rate shall be communicated in writing), 1.15(a)(an attorney shall hold client’s property separate from attorney’s own property), 1.15A(every attorney in private practice who receives funds of a client shall maintain a trust accounting system), and 1.16(d)(upon termination, a lawyer shall refund any advance payment of fee not yet earned). The hearing panel deemed that those charges were admitted as a result of the respondent’s default in the proceedings and found that the violations were proven by clear and convincing evidence.

9. The respondent’s conduct in Vermont violates the following Colorado rules: Colo. RPC 1.5(b) (the basis or rate of the lawyer’s fee shall be communicated in writing); 1.15(a) (an attorney shall hold client’s property separate from attorney’s own property) 1.15(f)(1) (every attorney in private practice shall maintain a trust account) and 1.16(d) (upon termination, a lawyer shall refund any advance payment of fee not yet earned).

CLAIM II

[Failure to Report Discipline Imposed Pursuant to
C.R.C.P. 251.21(b) and Failure to Respond
Pursuant to C.R.C.P. 251.5(d)]

10. Paragraphs 1 through 9 are incorporated herein.

11. The respondent failed to report to Colorado the discipline imposed by the Vermont Supreme Court in violation of C.R.C.P. 251.21(b) and failed to respond to the Regulation Counsel’s request for investigation in violation of C.R.C.P. 251.5(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM III

[Notice Pursuant to C.R.C.P. 251.21(d)]

Paragraphs 1 through 9 and 11 are incorporated herein.

12. The Vermont Supreme Court suspended the respondent for six months and one day stating, "At a minimum, a six-month suspension is necessary to protect the public, as no lesser sanction will require Respondent to demonstrate that she has acquired the fitness to act as a professional that she clearly lacks at present." Exhibit A, p. 7. In Vermont, a period of suspension that is greater than six months requires the respondent to apply for reinstatement. Vermont Supreme Court Administrative Order 9, Rule 22(D).

13. In reciprocal discipline proceedings, the same discipline of the other jurisdiction is usually imposed unless one of the following exceptions exists. See People v. Nangle, 937 P.2d 1271 (Colo. 1999).

C.R.C.P. 251.21(d) states the four exceptions:

(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.

15. None of the above-cited exceptions apply in the present case. Therefore, the discipline imposed in Colorado should be identical to the Vermont discipline. Accordingly, the respondent should be suspended for a period of six months and be required to demonstrate at a reinstatement hearing that she has acquired the fitness to act as a professional, which is the standard required by the Vermont Supreme Court.

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5 and 251.21 and the Colorado Rules of Professional Conduct and that she be appropriately disciplined and assessed the costs of the proceedings.

EXHIBIT B

STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD
In Re: Kjaere Andrews, Esq.
PRB File. No. 2001.014
HEARING PANEL DECISION NO. 25

A Petition of Misconduct was filed with the Office of the Professional Responsibility Board in the above referenced case on May 18, 2001. Respondent acknowledged receipt on May 18, 2001, but did not file an answer to the Petition of Misconduct. On June 13, 2001, Deputy Disciplinary Counsel filed a Motion to Deem Admitted the Charges and Allegations Set Forth in the Petition of Misconduct. Respondent did not respond to the Motion. On June 21, this hearing panel issued an Order granting the Motion to Deem Charges Admitted. The panel further requested submissions concerning sanctions to be filed with the Board within 30 days. On July 18, 2001, Deputy Disciplinary Counsel filed Recommended Conclusions of Law and Recommendation of Sanction. The Respondent did not file any submissions concerning sanctions. After notice to Respondent, a sanctions hearing was conducted by telephone on August 27, 2001. Deputy Disciplinary Counsel Beth DeBernardi attended by phone. Respondent did not participate in the hearing or otherwise respond to the notice of hearing.

Findings of Fact

The findings of fact arc those that have been previously deemed admitted, as follows:

1. The Respondent Kjaere Andrews is an attorney licensed to practice law in the State of Vermont.

2. Respondent was admitted to practice before the Vermont Supreme Court on or about December 17, 1981.

3. In March or April of 2000, Complainant Corylinn Jenne consulted with Respondent about representation in a divorce.

4. On or about June 3, 2000, Complainant hired Respondent to represent her in a divorce.

5. At the time Respondent was hired by Complainant, the parties agreed to an hourly rate of $50 per hour.

6. The fee agreement was not reduced to writing.

7. Complainant paid Respondent the sum of $1 ,000.00 as a retainer.

8. At all times in question, Respondent did not have or maintain a client trust account.

9. Respondent deposited the retainer into her personal or regular business account.

10. Respondent did not complete the preparation of the complaint for divorce within the first few weeks of representation.

11. In mid-June of 2000, Respondent stated to Complainant that she might not be able to continue with the representation and that she was thinking of closing her law practice.

12. Complainant informed Respondent on or about June 22, 2000 that she would file her divorce pro se.

13. On or about June 22, 2000, Complainant asked Respondent for a final statement or accounting and for a return of the unearned portion of the retainer.

14. Respondent did not have funds available to return the unused portion of the retainer because she had spent the retainer on her own personal or business expenses.

15. Respondent and Complainant have a mutual friend, Ms. Moore.

16. When Respondent found herself short of funds to return the retainer to Complainant, Respondent sought to borrow funds from Ms. Moore for this purpose.

17. Ms. Moore provided a loan to Respondent so that Respondent could return the retainer to Complainant.

18. The loan was in the amount of $1,000.00.

19. Respondent used the finds borrowed from Ms. Moore for her own personal or business expenses rather than to repay the retainer to Complainant.

20. On or about July 12, 2000, Respondent sent a letter and final bill to Complainant wherein she informed Complainant that, due to the unexpected early termination of the representation, Respondent would retroactively charge an hourly rate of $100 per hour, rather than the $50 per hour agreed upon.

21. Respondent’s letter also informed Complainant that, applying an hourly rate of $100.00, Respondent owed Complainant a balance (refund) of $150.70.

22. Respondent’s letter informed Complainant that Respondent was not able to refund the balance of the retainer "today" because there was not enough money in Respondent’s checking account to do so.

23. Respondent stated in her letter that she would come up with the money for the refund as soon as possible, but no later than two weeks from now when Ms. Moore returns.

24. On or about July 28, 2000, Respondent sent the sum of $150.70 to Complainant by personal check.

25. On or about August 1, 2000, Complainant informed Respondent that she would accept the sum of $150.70 as partial payment of the fill amount due to her of $575.35.

26. To date, Respondent has not returned any other sums to Complainant.

27. Respondent has provided various reasons for why she doubled the hourly rate charged to Complainant.

28. One reason provided was Respondent’s contention that Complainant was told that the $50/hour rate was only available for representation lasting more than six months.

29. Respondent also contended that Complainant was told that the rate was subject to change based on Complainant’s financial circumstances.

30. Respondent also contended that the doubling of the hourly rate was appropriate because Respondent’s own financial circumstances were less favorable than Complainant’s.

31. Complainant was never told at any time during the representation that the hourly rate would change for any of these reasons (or for any other reasons).

32. Respondent’s failure to return the balance of Complainant’s retainer exacerbated Complainant’s already difficult financial circumstances and also prevented Complainant from filing her divorce pro se because she did not have sufficient funds to pay the court filing fee.

Conclusions of Law

The charges, which have been deemed admitted and which the Hearing Panel concludes are supported by clear and convincing evidence, are that the Respondent violated Rules 1.5(b), 1.15(a), 1.15A, and 1.16(d) of the Vermont Rules of Professional Responsibility.

Rule 1.5(b)

Rule 1.5(b) of the Vermont Rules of Professional Conduct provides as follows:

"When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation."

The facts deemed admitted clearly and convincingly establish that the Respondent failed to communicate the $100 per hour rate of the fee to her client before or within a reasonable time after commencing the representation. At the commencement of the representation, the Respondent told Complainant that she would charge her $50 per hour for all work done. Nothing was said to suggest that this rate would or could change under differing circumstances. Less than six weeks later, in sending a final bill, Respondent retroactively doubled her hourly rate with no prior notice to her client and without giving the client any opportunity to agree or disagree with this substantial change in the agreed upon terms of representation. The Panel concludes, as a matter of law, that the Respondent violated Rule 1.5(b) of the Vermont Rules of Professional Conduct.

Rule 1.15(a)

Rule 1.15(a) of the Vermont Rules of Professional Conduct provides as follows:

"A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in accordance with Rules l.15A, B and C. . . ."

The facts deemed admitted clearly and convincingly establish that the Respondent did not hold Complainant’s retainer separate from Respondent’s own property, nor did she hold the finds in accordance with the rules governing client trust accounts. In fact, Respondent treated the funds as her own property, spending them on personal expenses before the fee was even earned. The Panel concludes, as a matter of law, that the Respondent violated Rule 1.15(a) of the Vermont Rules of Professional Conduct.

Rule 1.15A

Rule 1.15A of the Vermont Rules of Professional Conduct requires every attorney in private practice or who otherwise receives client funds to maintain a trust accounting system which includes the specific features set forth in Rule 1.15A. Respondent has admitted that she did not use any trust account system, and the facts that have been deemed admitted clearly and convincingly establish that the Respondent failed to maintain the required trust account. The Panel concludes, as a matter of law, that the Respondent violated Rule 1.15A of the Vermont Rules of Professional Conduct.

Rule 1.16(d)

Rule 1.16(d) provides as follows:

"Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned." (emphasis added)

The facts deemed admitted clearly and convincingly establish that Respondent did not hilly refund the advance payment of fee that had not been earned upon the termination of representation. The hourly rate agreed to by Respondent and Complainant was $50 per hour. Respondent performed 8.493 hours of work for Complainant, and accordingly the refund due amounted to $575.35 (ignoring for the moment the disputed 0.58 hours Respondent charged for preparing a bill and answering a telephone call from her client asking for the bill). Respondent did not refund that amount. Instead, Respondent calculated her fee at the arbitrarily imposed rate of $100 per hour, and refunded only $150.70 to Ms. Jenne. Accordingly, Respondent failed to refund a substantial portion of the retainer to Ms. Jenne in violation of Rule 1.16(d).

Sanctions

The ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") suggest that the sanctioning body consider four lhctors in determining the appropriate sanction, as follows:

(1) the duty violated;

(2) the respondent’s mental state;

(3) the actual or potential injury; and

(4) any mitigating andlor aggravating factors. ABA Sanctions, § 3.0 (1991 Edition); see also

In Re Warren, 167 Vt. 259, 261 (1997).

The Office of Disciplinary Counsel has recommended a suspension of at least six months in length. Applying the four factors to the Respondent’s case leads the Hearing Panel to conclude that a six month suspension is the minimum appropriate sanction under these circumstances.

The Duty Violated

Respondent has violated her duty of loyalty to her client, in that she failed to preserve the property of her client by expending client hinds for personal use. The ABA Standards note that the obligations owed to clients are the most important of all the ethical duties owed by lawyers. ABA Standards, § II, page 5.

Respondent has also violated the duties that she owes as a legal professional, in that she did not communicate or deal properly with the fee agreement and did not handle appropriately her obligations with regard to termination of the representation and return of her client’s retainer. See ABA Standards, § II, pages 5-6 and § III.7.0.

In this case, where the primary duty violated was the duty owed to a client, a more serious sanction is indicated. The fact that Respondent’s conduct also violated her duty as a professional compounds the gravity of the offense.

Respondent’s Mental State

The most culpable mental state is when the lawyer acts intentionally. In the case at hand, Respondent acted at least knowingly, and quite likely intentionally, when she failed to maintain any client trust account system and when she deposited and then spent her client’s retainer without earning it. Moreover, by unilaterally and retroactively doubling her hourly rate, thereby substantially reducing the amount of her client’s refund, Respondent must be found to have acted intentionally.

Extent of the Injury

The potential for serious injury to clients arising out of Respondent’s commingling of funds and her failure to maintain a trust account was enormous. In addition, there was actual injury to Complainant, who has still not received the balance of her retainer and who was unable to file her divorce complaint due to her lack of funds for the court filing fee. The amount due, about six hundred dollars, was a significant amount of money to Complainant at a time when she had just left her husband and couldn’t afford a place to live. Given the specific facts of this case, including Complainant’s financial vulnerability, the actual harm must also be considered serious, thus supporting the recommendation of a suspension as the appropriate sanction.

Appropriate Sanctions

In cases involving the failure to preserve a client’s property, suspension is appropriate when a lawyer "knows or should know that he (sic) is dealing improperly with client property and causes injury or potential injury to a client." ABA Standards, § 4.12. According to the comment to § 4.12, "[s]uspension should be reserved for lawyers who engage in misconduct that does not amount to misappropriation or conversion. The most common cases involve lawyers who commingle client fluids with their own, or fail to remit client funds promptly." Id. This is precisely the misconduct in which Respondent was involved. It is clear that Respondent commingled funds and failed to remit client funds promptly, as well as failed to maintain a trust account, and failed to prospectively inform her client of a change in the terms of billing. At a minimum, a six month suspension is necessary to protect the public, as no lesser sanction will require Respondent to demonstrate that she has acquired the fitness to act as a professional that she clearly lacks at present.

Aggravating and Mitigating Factors

Under the ABA Standards, after determining which sanction is appropriate, the sanctioning body should then consider any aggravating or mitigating factors to see whether the proposed sanction should be adjusted up or down. In the case in hand, there are several aggravating factors.

First, the Respondent had a dishonest or selfish motive when she retroactively doubled her hourly rate for work done on behalf of Complainant, so that the amount of the refund due would be reduced from $575.35 to $150.70. A dishonest or selfish motive is an aggravating factor, as set forth in the ABA Standards, § 9.22(b).

Second, Respondent has never acknowledged the wrongfulness of her conduct, either to Complainant or to the Office of Disciplinary Counsel. Such failure to acknowledge the wrongful nature of one’s conduct is an aggravating factor as set forth in the ABA Standards, § 9.22(g).

Third, the vulnerability of the Complainant is also an aggravating factor. During the time at issue, Complainant had recently left her husband, had no place to live except with friends, and had to borrow a substantial portion of the $1,000 retainer in order to commence her divorce. In fact, due to Respondent’s failure to return the retainer, Complainant was unable even to file her divorce pro se. The vulnerability of the victim is also an aggravating factor, as set forth in the ABA Sanctions, § 9.22(h).

Fourth, Respondent was first admitted to the practice of law in Vermont on or about December 17, 1981 and thus has had almost nineteen years experience in the practice of law at the time in question; accordingly her "substantial experience in the practice of law" must be considered an aggravating factor as well. ABA Standards, § 9.22(i).

Finally, Respondent has still made no effort to return the balance of the retainer to Complainant, despite the complaint to the Professional Responsibility Program and despite the passage of almost a year since she misappropriated Complainant’s retainer. Indifference to making restitution is also an aggravating factor set forth in the ABA Standards at §9.22(j).

Although Respondent has not come forward to present any mitigating factors, the following are possible mitigating factors; First, Respondent has no prior disciplinary sanctions on her record. Second, Respondent apparently alluded to some persona! difficulties she was experiencing at the time in question. In particular, she apparently stated to Complainant that she was upset in June about the suicide of one of her other clients and she apparently had some financial problems at that time. However, because Respondent failed to provide her version of these events, the Hearing Panel does not have direct information concerning these possible difficulties and declines to speculate as to their relevance.

A balancing of the aggravating factors and the mitigating factors leaves the aggravating factors in preponderance and does not lessen the appropriateness of imposing a significant suspension.

Conclusion

The facts of this case demonstrated a complete lack of professionalism on the part of Respondent Kjaere Andrews. Respondent violated Rule 1.5(b) by charging an hourly rate twice as high as the rate communicated to the client. She violated Rule 1.15(a) by commingling Complainant’s funds with Respondent’s own funds. She violated Rule l.l5A by failing to have a trust account. She violated Rule 1.16(d) by failing to refund in full the advance payment of fee that had not been earned at the time the representation was terminated. Finally, she added insult to injury by blaming Ms. Jenne for terminating the representation "early" when it was Respondent’s own actions that led to the termination of Respondent’s services.

This course of conduct on the part of Respondent Kjaere Andrews, for which she has not taken responsibility, supports Disciplinary Counsel’s suggestion of at least a six month suspension. The Hearing Panel recommends suspension of the Respondent’s license to practice law for six months and one day, and directs that Respondent reimburse Complainant the full amount due to Complainant based upon the agreed upon rate of $50.00 per hour.

Panel member James Gallagher concurs with the Sanctions but dissents from the conclusion that Rule 1.5(b) of the Vermont Rules of Professional Conduct was violated under the facts of this case. Notwithstanding Respondent’s later claim that she was entitled to $100 an hour, Respondent had communicated to Complainant that Respondent would charge $50 an hour. Mr. Gallagher believes this communication satisfied Rule 1.5(b) by contractually limiting Respondent to this agreed-upon rate.

_______

1. Andrews has been administratively suspended in Colorado since November 1987 due to her failure to pay attorney registration fees.

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

At the conclusion of proceeding 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 by 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.

 

 

Case Number: 02PDJ065
(Consolidated with 02PDJ103)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

JERRY R. CLOUGH

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

August 13, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge ("PDJ") Roger L. Keithley, and Hearing Board Members Mark D. Sullivan and E. Steven Ezell, both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. BACKGROUND

The People filed a Complaint in Case No. 02PDJ065 against Jerry R. Clough ("Clough") on August 22, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date to Clough’s registered business address which is also Clough’s registered home address. On September 3, 2002, the People filed a Proof of Service with the PDJ. Service was therefore proper pursuant to C.R.C.P. 251.32(b). Clough failed to file an Answer or otherwise respond to the Complaint.

Upon the People’s Motion, on October 31, 2002, the PDJ granted default as to the facts set forth in the Complaint in claims one through four, which were deemed admitted. The PDJ granted in part and denied in part the entry of default as to claim five: the court denied default as to the alleged violation of § 18-9-111(1)(h), 6 C.R.S. (2001), and granted default as to the alleged violation of § 18-9-106(1)(c), 6 C.R.S. (2001), both statutes forming the basis for the alleged violation of Colo. RPC 8.4(b) and grounds for discipline pursuant to C.R.C.P. 251.5(b). The alleged violations of Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) based on the alleged violation of § 18-9-111(1)(h), 6 C.R.S. were dismissed.

The People filed a second Complaint against Clough in Case No. 02PDJ103 on December 4, 2002. The Citation and Complaint were sent via regular and certified mail to Clough on the same day. The People filed a Proof of Service on December 30, 2002, indicating that Clough did not claim the envelope containing the Complaint and Citation sent via certified mail. The Citation and Complaint sent via regular mail were not returned to the People. Service was therefore proper pursuant to C.R.C.P. 251.32(b). Clough failed to file an Answer or otherwise respond to the Complaint in Case No. 02PDJ103.

Upon the People’s Motion for Default, on February 19, 2003, the PDJ granted in part and denied in part the Motion; the court granted the motion as to claims one, two, three, five, and six, and denied the motion as to claims four — alleging a violation of Colo. RPC 8.4(c) — and seven — alleging a violation of Colo. RPC 8.4(h). As a result, the People filed an Amended Complaint on March 3, 2003, as well as a Motion to Dismiss claim seven which the PDJ granted on March 11, 2003. Thereafter, the People filed an Amended Complaint and served it on Clough. Clough failed to file an Answer or otherwise respond to the Amended Complaint. Upon the People’s Motion, on April 23, 2003, the PDJ entered default on claims one through six of the Amended Complaint.

Cases 02PDJ065 and 02PDJ103 were consolidated upon the People’s Motion by order of the PDJ dated February 19, 2003.

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on July 23, 2003, before a Hearing Board consisting of the PDJ and two Hearing Board Members, Mark D. Sullivan and E. Steven Ezell, both members of the bar. Nancy L. Cohen, Deputy Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Jerry R. Clough did not appear in person or through counsel. At the sanctions hearing, exhibits 1 through 7 were offered by the People and admitted into evidence. The Hearing Board considered the People’s argument, the facts established by the entry of default, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence.

II. FINDINGS OF FACT

Clough has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 23, 1993, and is registered upon the official records of the Supreme Court, registration number 25994. Clough is presently suspended for failure to pay his registration fees. He 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 in Case No. 02PDJ065 and in the Amended Complaint in Case No. 02PDJ103 were deemed admitted by the entry of default and are therefore established by clear and convincing evidence. The Complaint and Amended Complaint are attached hereto as Exhibits A and B.

This consolidated matter reveals the following facts concerning Clough’s representation of Elizabeth Gabriella ("Gabriella"). Gabriella contacted Clough to represent her with respect to a misdemeanor assault charge in Larimer County, Colorado. The parties entered into a written flat fee agreement in August or September 2001 and formed an attorney-client relationship at that time. Pursuant to the fee agreement, Gabriella agreed to pay a total of $1,000 in legal fees for Clough’s representation. At the time Gabriella contacted Clough, he was suspended from the practice of law for failing to pay his registration fees. Gabriella agreed to pay his registration fee together with any late charges to the Office of Attorney Registration. She paid a total amount of $790.00 to the Supreme Court to bring Clough’s registration fees current.1

Gabriella’s trial had originally been set to commence on October 15, 2001. On October 11, 2001, Clough filed two pretrial motions and a motion for continuance. The court granted the motion for continuance and the matter was reset for December 12, 2001. However, Clough failed to notify Gabriella of the new hearing date; consequently, Gabriella traveled to Colorado from Texas to attend the previously scheduled October hearing. On December 7, 2001, Clough again filed a motion for continuance with the court. The court did not rule on the motion prior to the December 12, 2001, hearing. On that date, Clough met with Gabriella and her mother in the courthouse. Clough left them to file a motion with the clerk and when he returned, Gabriella was talking to Misty Narum ("Narum"), a witness listed by the District Attorney’s Office in Gabriella’s matter.

Clough approached Gabriella and Narum and asked about Narum’s identity. When she was identified, Clough confronted her and accused her in a very loud voice of drinking and being drunk. Clough also gave Narum advice. Narum was not represented by counsel. When a Deputy Sheriff began walking toward Clough, he left the courthouse and did not reappear in the courtroom for his client’s trial. As a result, the court was constrained to continue the trial. Thereafter, Gabriella attempted to reach a resolution of the matter directly with the District Attorney’s Office but was unable to do so because Clough failed to formally withdraw from representation until February 2002. Gabriella eventually retained new counsel.

Gabriella requested that Clough return her file to her as well as the fees she had paid. Clough did not complete the services for which he had been hired and, accordingly, did not earn a portion of the fees he had been paid. Clough failed to return his client’s papers and failed to return the unearned fee.

Clough also agreed to represent Gabriella in a civil suit for slander against Gabriella’s sister. Although he did not know how realistic the slander suit would be, he agreed to represent her but failed to file any case on behalf of Gabriella.

III. CONCLUSIONS OF LAW

Case No. 02PDJ065

In Case No. 02PDJ065, the entry of default established the following violations of the Colorado Rules of Professional Conduct: Colo. RPC 4.3 (in dealing on behalf of a client with a person who is not represented by counsel, an attorney shall not give advice to the unrepresented person other than to secure counsel) in claim one; Colo. RPC 4.4 (in representing a client, an attorney shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person) in claim two; Colo. RPC 8.4(d) (it is professional misconduct for an attorney to engage in conduct prejudicial to the administration of justice) in claim three; Colo. RPC 3.5(c) (an attorney shall not engage in conduct intended to disrupt a tribunal) in claim four; Colo. RPC 8.4(b) (it is professional misconduct for an attorney to commit a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects) as to a violation of 18-9-106(1)(c), 6 C.R.S. (2001) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) in claim five.2

Clough violated Colo. RPC 4.3 by providing legal advice to Narum, an unrepresented person, and by failing to advise the person to seek independent counsel. See In re Pautler, 47 P.3d 1175, 1182 (Colo. 2002) (lawyer violated Colo. RPC 4.3 by misleading a criminal defendant in not informing the criminal defendant that he was from the district attorney’s office and by failing to advise the criminal defendant to obtain independent counsel). Clough engaged in abusive conduct toward Narum in the courthouse by using profanity, standing within a foot of her while yelling at her in a loud voice, and accusing her of drinking in violation of Colo. RPC 4.4. Clough’s failing to appear at trial resulting in a delay in the proceeding constituted a violation of Colo. RPC 8.4(d) and Colo. RPC 3.5(c). See In re Roose, 69 P.3d 43, 46 (Colo. 2003) (lawyer violated Colo. RPC 8.4(d) by engaging in conduct prejudicial to the administration of justice by leaving the courtroom during trial in violation of an express order not to do so). Clough’s disorderly conduct in the courthouse with regard to Narum violated Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b).3

Case No. 02PDJ103

In Case No. 02PDJ103, the entry of default established the following violations of the Colorado Rules of Professional Conduct: Colo. RPC 1.3 (an attorney shall not neglect a legal matter entrusted to that attorney); Colo. RPC 1.4(a) (an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); Colo. RPC 1.16(d)(an attorney shall, upon termination of representation, surrender papers and property to which the client is entitled, and refunding any advance payment of any fee not earned); Colo. RPC 8.4(c) (it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); Colo. RPC 1.5(a) an attorney’s fee shall be reasonable); and Colo. RPC 5.5(a) (an attorney shall not practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction).

Clough agreed to provide legal services, did not earn all of the fees which he had been paid, and did not complete the services for which he had been hired. Clough failed to return the remaining fees to the client. Clough exercised dominion or ownership over the funds held for the client’s benefit. Through the unauthorized exercise of dominion or ownership over these funds, Clough knowingly converted or misappropriated the funds in violation of Colo. RPC 8.4(c). See People v. Varallo, 913 P.2d 1, 11 (Colo. 1996) (sanction for knowing conversion is almost invariably disbarment). See also People v. Wiedman, 36 P.3d 785, 788 (Colo. 1999) (holding that a lawyer’s knowing misappropriation of funds, whether belonging to a client or a third party, warrants disbarment except in the presence of extraordinary factors in mitigation).

Clough’s failing to appear at the client’s trial on December 12, 2001, failing to investigate her slander case and failing to file a civil suit arising in slander constituted neglect in violation of Colo. RPC 1.3. Clough’s failing to explain to his client that the first hearing had been continued and failing to communicate with the client regarding his failure to appear at the trial constituted a violation of Colo. RPC 1.4(a). Clough failed to return Ms. Gabriella’s file and unearned fees in violation of Colo. RPC 1.16(d). Clough’s fee agreement with Gabriella provided that he would represent her for the criminal case for a flat fee of $1,000 and — notwithstanding that agreement — Clough demanded an additional $4,465 to proceed to trial. Based upon his prior agreement and the lack of any evidence justifying such a demand, Clough’s demanded fee was unreasonable in violation of Colo. RPC 1.5(a). See People v. Jamrozek, 921 P.2d 725, 727 (Colo. 1996)(attorney previously disbarred was found to have charged an excessive fee under a contingent fee contract by arbitrarily demanding an additional $6,500.00 of a frightened and intimidated client at the time of receipt of the settlement check).

Prior to the reinstatement from his administrative suspension from the practice of law, Clough discussed Gabriella’s case with her and rendered legal advice, constituting the practice of law in violation of Colo. RPC 5.5(a). See People v. Mannix, 936 P.2d 1285, 1288 (Colo. 1997) (continuing to practice law after being notified of suspension for failure to pay registration fee and engaging in other conduct including conduct involving dishonesty, fraud, deceit or misrepresentation, warrants disbarment).

IV. IMPOSITION OF SANCTION

Clough’s knowing conversion of client funds is the most serious conduct giving rise to this consolidated proceeding. Varallo, 913 P.2d at 11 provides:

Knowing misappropriation [for which the lawyer is almost invariably disbarred] "consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking." citing In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986). Misappropriation includes "not only stealing, but also unauthorized temporary use for the lawyer’s own purpose, whether or not he derives any personal gain or benefit therefrom." citing In re Wilson, 81 N.J. 451, 455 n. 1, 409 A.2d 1153 (1979). The motive of the lawyer is irrelevant in determining the appropriate discipline for knowing misappropriation. Moreover, "[i]ntent to deprive permanently a client of misappropriated funds, however, is not an element of knowing misappropriation." In re Barlow, 140 N.J. 191, 657 A.2d 1197, 1201 (1995).

Disbarment is generally appropriate when a lawyer knowingly converts the property of clients or a third party and causes injury or potential injury to those persons. ABA Standards for Imposing Lawyer Sanctions (1991 and Supp. 1992) ("ABA Standards") §4.11. The remaining cumulative misconduct, although serious and involving injury to his client and the judicial system, would suggest a lengthy period of suspension. See ABA Standards 4.11, 4.42, and 6.22. In this case, the additional findings of misconduct serve to reinforce the conclusion that disbarment is required. People v. Holmes, 921 P.2d 44 (Colo. 1996)(noting that the pattern, breadth, and nature of the respondent’s misconduct, together with his total disregard of the proceedings, warranted a one year and one day suspension).

The Hearing Board is required to consider mitigating and aggravating factors pursuant to ABA Standards 9.22 and 9.32. Since Clough did not appear, no mitigating factors were presented. However, the People acknowledged that Clough had no prior misconduct. See ABA Standard 9.32(a). In aggravation, Clough had a dishonest or selfish motive, ABA Standard 9.22(b); he committed multiple offenses, see id. at 9.22(d); Clough’s client was vulnerable, see id. at 9.22(h), and Clough demonstrated indifference to making restitution, see id. at 9.22(j). The lack of prior discipline, in light of the aggravating factors present, does not rise to the level necessary to reduce the presumed sanction of disbarment. People v. Lujan, 890 P.2d 109, 1110 (Colo. 1995)(stating that the mitigation necessary to reduce the presumptive sanction of disbarment for knowing conversion to some lesser sanction has to be "extraordinary and tragic").

Based upon Clough’s knowing conversion of client funds, taken together with the numerous other rule violations, and absent significant mitigating factors, disbarment is the warranted sanction.

V. ORDER

It is therefore ORDERED:

1. -JERRY R. CLOUGH, attorney registration 25994, is DISBARRED from the practice of law effective thirty-one days from the date of this order.

2. -Clough 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. Jerry R. Clough shall have five (5) days thereafter to submit a response thereto.

3. -Clough is Ordered to pay restitution to the Client Protection Fund in the amount of $790.00. That amount is to be paid within thirty (30) days of the effective date of this order.

EXHIBIT A

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. Jerry R. Clough (the respondent) has taken and subscribed the oath of admission, was admitted to the bar of this court on October 23, 1993, and is registered upon the official records of this court, registration no. 25994. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered business address is 915 ½ South 13th Street, Laramie, Wyoming 82070.

General Allegations

2. In February 2001, Elizabeth Gabriella (Ms. Gabriella) was arrested and charged with misdemeanor assault in Larimer County, Colorado, arising from an incident involving Ms. Gabriella’s sister, Harmony Korkow.

3. A criminal action was initiated, People v. Elizabeth Gabriella, case no. 02M200397 in Larimer County, Colorado. The Honorable John E. Kochenburger (Judge Kochenburger) is the presiding county court judge.

4. In addition, in May 2001, a permanent restraining order was issued by the Larimer County Court against Ms. Gabriella in case no. 02C200376. Thereafter, Ms. Gabriella moved to Texas.

5. Ms. Gabriella contacted the respondent to represent her in the criminal matter. The parties entered into a written fee agreement in or about August or September, 2001. An attorney-client relationship was formed.

6. Ms. Gabriella agreed to pay, pursuant to the fee agreement, a total of $1,000, as legal fees for the respondent’s representation. At the time Ms. Gabriella contacted the respondent, he was suspended for failing to pay his registration fees. Ms. Gabriella agreed to pay the fee together with any late charges to the Office of Attorney Registration. The total amount paid was $790 and was part of the legal fee.

7. Prior to the December 12, 2001 hearing described below, Ms. Gabriella’s communications with the respondent were by telephone. Ms. Gabriella personally met with the respondent for the first time on December 12, 2001.

8. Ms. Gabriella’s criminal matter had been originally scheduled for trial commencing October 15, 2001. On October 9, 2001, the respondent filed a handwritten witness list of the witnesses he intended to call at the October 15 trial. However, the witness list submitted by the respondent did not identify specific addresses for the witnesses and did not provide the full names of all of the witnesses, as required by the Colorado Rules of Criminal Procedure.

9. On October 11, 2001, the respondent filed two pre-trial motions, and a motion for continuance. In his motion for continuance, he explained that he had not practiced law for over one year and had recently been retained by Ms. Gabriella.

10. The court granted the motion for continuance and the matter was reset for December 12, 2001. However, the respondent failed to notify Ms. Gabriella of the new hearing date. Ms. Gabriella traveled to Colorado from Texas to attend the October 11, 2001 hearing. Ms. Gabriella incurred travel expenses to attend the hearing, including the expenses of a witness who also traveled to Loveland, Colorado to testify on her behalf.

11. On December 7, 2001, the respondent filed a letter with the Larimer County District Attorney’s Office requesting a continuance due to lack of discovery. In addition, the respondent filed a motion for continuance with the Larimer County Court. The court did not rule on the motion prior to the December 12, 2001 hearing.

12. On December 12, 2001, the day the trial was scheduled, the respondent filed a motion to suppress Ms. Gabriella’s statement as obtained in violation of Miranda and in violation of the prior common law voluntariness doctrine.

13. Prior to trial on December 12, 2001, the respondent was in the lobby of the courthouse where he was meeting with Ms. Gabriella and her mother. The respondent then went to file the suppression motion described above and when he returned, Ms. Gabriella was talking to Misty Narum (Ms. Narum), a witness listed by the district attorney’s office. Everyone was still standing in the lobby of the courthouse.

14. The respondent walked up to the people in the lobby and asked who Ms. Narum was. Once Ms. Narum was identified, the respondent then confronted Ms. Narum and accused her, in a very loud voice, of drinking and being drunk. According to the respondent, he was loud because he wanted witnesses.

15. Ms. Narum became very concerned that law enforcement personnel would arrest her for a DUI. Ms. Narum was not represented by counsel. She asked the respondent what she should do. The respondent gave Ms. Narum legal advice about what she should say if asked by law enforcement personnel about drinking.

16. After the confrontation with Ms. Narum, the respondent went to the district attorney’s office which is also located in the courthouse building, to find Kim Robbins (Ms. Robbins), the Deputy District Attorney assigned to prosecute the criminal matters against Ms. Gabriella.

17. The respondent went to the reception area of the district attorney’s office, demanding and yelling that Ms. Robbins speak with him. The respondent was agitated and yelled something like "tell the DA your star witness reeks of alcohol and she is drunk."

18. The respondent then went back to the courthouse lobby where his client and Ms. Narum were standing. Even though the trial in Ms. Gabriella’s case had not yet begun, the respondent quickly left the building from the lobby when one of the security guards started walking toward him.

19. Judge Kochenburger then called Ms. Gabriella’s criminal matter. The respondent was not present in the courtroom or the courthouse.

20. While Judge Kochenburger was still addressing Ms. Gabriella’s criminal matter, one of the administrative clerks brought him a fax which had been sent by the respondent from a Kinko’s store approximately 11 miles north of Fort Collins. The fax stated:

Please deactivate and make my status inactive immediately upon receipt of this fax. This is handwritten for purposes of verifying my wish.

21. Judge Kochenburger continued Ms. Gabriella’s criminal matter since her attorney was not present. Ms. Gabriella expended additional monies for her to attend the trial on December 12, 2001.

22. On December 13, 2001, the respondent faxed a letter to the Larimer County Court, entitled "Explanation of Counsel’s Bizarre Behavior on December 12, 2001." A copy of that letter is attached and incorporated as Exhibit A.

23. In February 2002, the respondent filed a motion to withdraw from his representation of Ms. Gabriella, which was granted. Respondent’s failure to withdraw for approximately two months after December 12, 2001, caused Ms. Gabriella problems. During that two-month period Ms. Robbins refused to talk to Ms. Gabriella because she was represented by counsel. Thereafter, Ms. Gabriella retained Rusty Nichols to represent her in the criminal matter.

24. As a result of the respondent’s conduct toward Ms. Narum on December 12, 2001, a warrant was issued for the respondent’s arrest. The charges are harassment of a witness (misdemeanor) and disorderly conduct (petty offense). On or about May 15, 2002, the respondent filed a motion with the Larimer County Court asking that the bench warrant be vacated. That motion was denied. The warrant remains outstanding. To date, the respondent has not turned himself in to law enforcement authorities although he is and was aware of the warrant.

CLAIM I

(Dealing with Unrepresented Person — Colo. RPC 4.3)

25. Paragraphs 2 through 24 are incorporated herein as if fully set forth.

26. Colo. RPC 4.3 provides in part that in dealing on behalf of a client with a person who is not represented by counsel . . . the lawyer shall not give advice to the unrepresented person other than to secure counsel.

27. The respondent was representing Ms. Gabriella when he confronted Ms. Narum. The respondent knew that Ms. Narum was a witness subpoenaed by the prosecution to appear in Ms. Gabriella’s case.

28. Ms. Narum was not represented by counsel. The respondent knew she was an unrepresented person.

29. After the respondent was introduced to Ms. Narum, he stated to her, "What the hell, have you been drinking." Ms. Narum was frightened and wanted to know whether "they" were going to arrest her for a DUI. The respondent advised Ms. Narum to either take the "Fifth" or to say that she arrived by bus. The respondent did not tell Ms. Narum to secure counsel.

30. Through his communications with Ms. Narum on December 12, 2001, the respondent gave advice to an unrepresented person, namely Ms. Narum.

31. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 4.3.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

(In Representing a Client, a Lawyer Shall Not Use Means
that have no Substantial Purpose Other than to Embarrass,
Delay or Burden a Third Person — Colo. RPC 4.4)

32. Paragraphs 2 through 24 are incorporated herein as if fully set forth.

33. Colo. RPC 4.4 provides that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person.

34. The respondent was representing Ms. Gabriella in her criminal matter on December 12, 2001. On that date the respondent engaged in abusive conduct toward Ms. Narum by using profanity, standing within a foot of her while yelling at her in a loud voice and accusing Ms. Narum of drinking.

35. As a result of the respondent’s conduct, Ms. Narum was visably distraught and shaken by this episode. A victim advocate and law officer were summoned and Ms. Narum was taken to a secluded room.

36. The respondent’s conduct as described above had no substantial purpose in respondent’s representation of Ms. Gabriella. Instead, the respondent sought to embarrass and burden Ms. Narum.

37. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 4.4.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM III

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

38. Paragraphs 2 through 24, are incorporated herein as if fully set forth.

39. 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.

40. The respondent failed to appear at the trial scheduled in Ms. Gabriella’s criminal matter. The respondent had the ability to appear, knew that he was required to appear, but nevertheless failed to appear.

41. By failing to appear at Ms. Gabriella’s criminal matter, the respondent acted in contravention of the court’s authority.

42. Such failure to attend Ms. Gabriella’s trial in the criminal matter, interfered with the procedures and the function of the court in Ms. Gabriella’s case.

43. As a result of the respondent’s conduct, the court was required to continue Ms. Gabriella’s case because her attorney, the respondent, failed to appear at the trial.

44. 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 IV

(A Lawyer Shall Not Engage in Conduct Intended to
Disrupt a Tribunal — Colo. RPC 3.5(c))

45. Paragraphs 2 through 24 are incorporated herein as if fully set forth.

46. Colo. RPC 3.5(c) provides that a lawyer shall not engage in conduct intended to disrupt a tribunal.

47. The respondent engaged in conduct intended to disrupt a tribunal by the following: he had a verbal altercation with the district attorney’s witness, Ms. Narum, in the courthouse lobby; after the confrontation the respondent bolted from the courthouse, even though he knew Ms. Gabriella’s criminal matter had not yet been heard that day.

48. The respondent failed to appear at the trial scheduled in Ms. Gabriella’s criminal matter. The respondent had the ability to appear, knew that he was required to appear, but nevertheless failed to appear.

49. The respondent’s failure to appear as counsel for Ms. Gabriella in her criminal matter was intentional and forced Judge Kochenburger to continue the criminal case against Ms. Gabriella.

50. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 3.5(c).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM V

(It is Professional Misconduct for a Lawyer to
Commit a Criminal Act that Reflects Adversely on the
Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer in
Other Respects — Colo. RPC 8.4(b) and C.R.C.P. 251.5(b))

51. Paragraphs 2 through 24 and paragraphs 34 through 36 are incorporated herein as if fully set forth.

52. Colo. RPC 8.4(b) provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

53. C.R.C.P. 251.5(b) provides an attorney engages in misconduct by committing any act or omission which violates the criminal laws of the State of Colorado.

54. The respondent engaged in criminal conduct by harassing a witness, Ms. Narum, and engaging in disorderly conduct with Ms. Narum in the courthouse lobby. These criminal acts in violation of C.R.S. §18-9-111(1)(h) and 18-9-106(1)(c) reflect adversely on the respondent’s fitness in all other respects.

55. The foregoing conduct of the respondent establishes grounds for discipline as provided for in C.R.C.P. 251.5 and violates Colo. RPC 8.4(b) and violates C.R.C.P. 251.5(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; that the respondent be required to pay Ms. Gabriella for expenses she incurred as a result of the trial being continued and that the respondent be assessed the costs of this proceeding.

EXHIBIT B

AMENDED 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. 25994. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered business address is 915 ½ South 13th Street, Laramie, Wyoming 82070.

General Allegations

2. In February 2001, Elizabeth Gabriella (Ms. Gabriella) was arrested and charged with misdemeanor assault in Larimer County, Colorado, arising from an incident involving Ms. Gabriella’s sister, Harmony Korkow.

3. A criminal action was initiated, People v. Elizabeth Gabriella, case no. 02M200397 in Larimer County, Colorado. The Honorable John E. Kochenburger (Judge Kochenburger) is the presiding county court judge.

4. In addition, in May 2001, a permanent restraining order was issued by the Larimer County Court against Ms. Gabriella in case no. 02C200376. Thereafter, Ms. Gabriella moved to Texas.

5. Ms. Gabriella contacted the respondent to represent her in the criminal matter. The parties entered into a written fee agreement, a copy of which is attached hereto and incorporated herein as Exhibit A. An attorney-client relationship was formed.

6. Ms. Gabriella agreed to pay, pursuant to the fee agreement, a total of $1,000 as legal fees for the respondent’s representation. At the time Ms. Gabriella contacted the respondent, he was suspended from the practice of law for failing to pay his registration fees. Ms. Gabriella agreed to pay the registration fee together with any late charges to the Office of Attorney Registration as part of her legal fees.

7. On September 4, 2001, Ms. Gabriella sent a check in the amount of $463.00 to the Colorado Supreme Court Attorney Registration Clerk’s Office on behalf of the respondent.

8. On September 21, 2001, Ms. Gabriella sent an additional $327.00 to the Colorado Supreme Court Attorney Registration Clerk’s Office. On that same date, the respondent’s registration status to practice law became active.

9. Prior to the December 12, 2001 hearing described below, Ms. Gabriella’s communications with the respondent were by telephone. Ms. Gabriella personally met with the respondent for the first time on December 12, 2001.

10. Ms. Gabriella’s criminal matter had been originally scheduled for trial commencing October 15, 2001. On October 9, 2001, the respondent filed a handwritten witness list of the witnesses he intended to call at the October 15 trial. However, the witness list submitted by the respondent did not identify specific addresses for the witnesses and did not provide the full names of all of the witnesses, as required by the Colorado Rules of Criminal Procedure.

11. On October 11, 2001, the respondent filed a typewritten discovery demand, motion in limine and notice of Ms. Gabriella’s intent to use arresting officer’s statement pursuant to C.R.E. § 803(24). On that same date, the respondent filed a motion for continuance, stating that the respondent had not practiced law for over one year and had been recently retained by Ms. Gabriella. The court granted the motion and the matter was set for December 12, 2001.

12. The respondent failed to notify Ms. Gabriella of the new hearing date and that the October trial was vacated. She traveled to Colorado to attend the October 15, 2001 hearing, only to discover that the matter had been continued. Ms. Gabriella incurred travel expenses to attend the hearing.

13. On November 26, 2001, Ms. Gabriella sent an electronic transmission to the respondent that asked if the respondent had subpoenaed a certain witness and obtained the police call tape; and that asked if the respondent planned on attending a pre-trial conference with the district attorney’s office.

14. In response to Ms. Gabriella’s e-mail, on December 8, 2001 the respondent sent an electronic transmission to Ms. Gabriella, that is attached hereto and incorporated herein as Exhibit B, requesting additional money and outlining the various defenses and the fees for such defenses. The e-mail used vulgar language.

15. On December 12, 2001, the day the trial was scheduled, the respondent filed a motion to suppress Ms. Gabriella’s statement as obtained in violation of Miranda and in violation of the prior common law voluntariness doctrine.

16. Prior to the trial scheduled on December 12, 2001, the respondent was in the lobby of the courthouse where he was meeting with Ms. Gabriella and her mother. The respondent then went to file the suppression motion described above and when he returned, Ms. Gabriella was talking to Misty Narum (Ms. Narum), a witness listed by the district attorney’s office. Everyone was still standing in the lobby of the courthouse.

17. The respondent walked up to the people in the lobby and asked who Ms. Narum was. Once Ms. Narum was identified, the respondent then confronted Ms. Narum and accused her, in a very loud voice, of drinking and being drunk. According to the respondent, he was loud because he wanted witnesses.

18. Thereafter, a deputy sheriff began walking toward the respondent who then left the courthouse.

19. Subsequently, Judge Kochenburger called Ms. Gabriella’s criminal matter. The respondent was not present in the courtroom or the courthouse when the case was called. Judge Kochenburger continued the trial.

20. After the trial was continued, Ms. Gabriella attempted to reach a resolution of her legal matter directly with the district attorney’s office but was unable to do so because the respondent failed to formally withdraw from the matter and remained the attorney of record for approximately two months. Subsequently, the complainant retained new counsel, Rusty Nichols.

21. The respondent did not file a motion to withdraw from his representation of Ms. Gabriella until February 2002. The motion was granted.

22. Ms. Gabriella asked the respondent for her file and the fees she paid. The respondent failed to return his client’s papers and failed to return any portion of his unearned fee.

23. When the respondent was retained, he also agreed to represent Ms. Gabriella in a slander lawsuit against her sister. According to Ms. Gabriella, she had a dispute with her sister concerning the sister’s rental of Ms. Gabriella’s house after she moved to Texas. Ms. Gabriella claims that her sister stole furniture from her and engaged in "slander" by telling family members that Ms. Gabriella was incarcerated.

24. The respondent advised Ms. Gabriella he did not know how realistic a "slander" lawsuit would be. Nevertheless, he agreed to file a civil suit, and his fee agreement states that he agrees to represent Ms. Gabriella in a "defamation" case.

25. No "defamation" case was filed on behalf of Ms. Gabriella.

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)

26. Paragraphs 1 through 25 are incorporated herein as if fully set forth.

27. 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.

28. The respondent failed to act with reasonable diligence and promptness and neglected both of Ms. Gabriella’s legal matters in each of the following respects:

a. by failing to attend her trial in the criminal matter on December 12, 2001;

b. by failing to investigate her "slander" case;

c. by failing to file a civil lawsuit against Ms. Gabriella’s sister for slander;

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

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

30. 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, Promptly Comply With Reasonable
Requests For Information, And Explain A Matter To The Extent Reasonably Necessary To Permit The Client To Make Informed
Decisions Regarding The Representation-Colo. RPC 1.4(a))

31. Paragraphs 1 through 25 are incorporated herein as if fully set forth.

32. 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.

33. The respondent failed to keep Ms. Gabriella reasonably informed about the status of her criminal legal matter by failing to advise her of the vacated October 2001 hearing date and by failing to reasonably communicate with her prior to and after the respondent failed to appear at the December 12, 2001 trial date.

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.

34. The respondent knew or should have known that he failed to communicate adequately with his client.

35. The respondent’s failure to communicate with his client caused injury or potential injury to the client.

36. 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).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM III

[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)]

37. Paragraphs 1 through 25 are incorporated herein as if fully set forth.

38. 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.

39. The respondent effectively terminated the attorney-client relationship when he failed to appear at the December 12, 2001 trial on Ms. Gabriella’s criminal matter. The respondent did not formally terminate the relationship until February 2002, despite the fact that Ms. Gabriella discharged the respondent’s services before that date.

40. The respondent knew or should have known that he was failing to protect the client’s interest by not communicating with her after he failed to appear at the December 12, 2001 trial and by waiting two months to file a motion to withdraw after the December 12, 2001 trial date.

41. According to Rusty Nichols, Ms. Gabriella’s current lawyer, the hours the respondent claims he spent on Ms. Gabriella’s "docile character" defense was a waste of time, and the respondent’s estimate of time involving discovery issues was "excessive."

42. Furthermore, by failing to appear at the December 12, 2001 trial in Ms. Gabriella’s criminal matter, he did not earn the fees he had been paid. The respondent knew or should have known that he was failing to protect his client’s interests by not returning the unearned fees.

43. The respondent failed to return client papers and failed to return any portion of the unearned fee.

44. 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 IV

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

45. Paragraphs 1 through 25 are incorporated herein.

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

47. The respondent agreed to provide services, including services relating to her criminal case, to Ms. Gabriella for a flat fee of $1,000. See Exhibit A.

48. Nothing the respondent did while he represented Ms. Gabriella assisted Rusty Nichols, Ms. Gabriella’s current lawyer, in preparing Ms. Gabriella’s defense in the criminal case.

49. By failing to appear at the December 12, 2001 trial in Ms. Gabriella’s criminal matter, the respondent did not earn the fees ($790) he had been paid and did not complete the services for which he had been hired.

50. By failing to return the $790 Ms. Gabriella had paid to the respondent when he had not earned such fees because he did not complete the services, the respondent exercised dominion or ownership over such funds held for Ms. Gabriella’s benefit.

51. The respondent knew that he was keeping the $790 of funds he had not earned, knowing that such funds should be returned to his client because he had not earned them and knowing that keeping such funds was not authorized.

52. The respondent did not have permission from the client to use her funds for his personal purposes.

53. Through the unauthorized exercise of dominion or ownership these funds, the respondent knowingly converted or misappropriated such client funds.

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

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

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM V

[A Lawyer’s Fee Shall Be Reasonable — Colo. RPC 1.5(a)]

56. Paragraphs 1 through 25 are incorporated herein.

57. Colo. RPC 1.5(a) provides a lawyer’s fee shall be reasonable. The rule lists the factors in determining the reasonableness of the fee.

58. In his December 8, 2001 electronic transmission four days before the scheduled December 12, 2001 trial, the respondent demanded $4,465.00 to prepare for Ms. Gabriella’s case, even though he agreed in his fee agreement (Exhibit A) that he would charge no more than $1,000.00.

59. The foregoing conduct of the respondent establishes grounds for discipline as provided for in C.R.C.P. 251.5 and violates Colo. RPC 1.5(a).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VI

[A Lawyer Shall Not Practice Law In A Jurisdiction Where
Doing So Violates The Regulations Of The Legal Profession
In That Jurisdiction — Colo. RPC 5.5(a)]

60. Paragraphs 1 through 25 are incorporated herein.

61. Colo. RPC 5.5(a) provides that a lawyer shall not practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction.

62. At the time Ms. Gabriella discussed her criminal matter with the respondent and engaged him to represent her, the respondent was under suspension from the practice of law for failing to pay his Attorney Registration fees. The respondent knew that he was under administrative suspension when he entered into this new attorney-client relationship because he told Ms. Gabriella and they agreed that she would pay his registration fees as part of her legal fees.

63. The respondent provided legal advice and discussed Ms. Gabriella’s legal matter by telephone prior to the respondent’s reinstatement to the practice of law on September 21, 2001.

64. The foregoing conduct of the respondent establishes grounds for discipline as provide for in C.R.P.C. 251.5 and violates Colo. RPC 5.5(a).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VII

[Engaging In Any Other Conduct That Adversely Reflects
On The Fitness To Practice Law — Colo. RPC 8.4(h)]

65. Paragraphs 1 through 25 are incorporated herein.

66. Colo. RPC 8.4(h) provides it is professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.

67. By making inappropriate, offensive and harassing statements to Ms. Gabriella in his December 8, 2001 electronic transmission to her, the respondent engaged in behavior that adversely reflected on his fitness to practice law. See, People v. Brenner, 852 P.2d 456 (Colo. 1993).

68. The foregoing conduct of the respondent establishes grounds for discipline as provide for in C.R.P.C. 251.5 and violates Colo. RPC 8.4(h).

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; that the respondent be required to refund fees to the client, and/or the client protection fund pursuant to C.R.C.P. 252.14(b), that the respondent be required to take any other remedial action appropriate under the circumstances; and that the respondent be assessed the costs of this proceeding.

_______

1. The Hearing Board viewed the payment of the $790 as additional injury to the client. In addition, the Attorney’s Fund for Client Protection reimbursed $790 to Gabriella pursuant to C.R.C.P. 251.14.

2. The default was denied as to Colo. RPC 8.4(b) and C.R.C.P. 251.5 (b) with respect to violations of § 18-9-111(1)(h), 6 C.R.S. (2001).

3. § 18-9-106(1)(c), 6 C.R.S. (2001) provides: "[a] person commits disorderly conduct if he or she intentionally, knowingly, or recklessly: [m]akes unreasonable noise in a public place or near a private residence that he has no right to occupy."

 

 

Case Number: 02PDJ106

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

CLIFFORD G. COZIER

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

August 8, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members, Maureen A. Cain, and Mark D. Sullivan, both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on June 11, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Maureen A. Cain and Mark D. Sullivan, both members of the bar. Gregory G. Sapakoff, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Clifford G. Cozier, the respondent ("Cozier"), did not appear either in person or by counsel.

The People filed a Complaint in this matter on December 18, 2002. The Citation and Complaint were sent via regular and certified mail to Cozier on the same date. The People filed a Proof of Service on December 30, 2002. The Proof of Service shows that the Citation and the Complaint were sent to both Cozier’s registered business address and his registered home address, and were signed for by Cozier’s agent at his registered business address. Cozier failed to file an Answer or otherwise respond to the Complaint.

On January 22, 2003, the People moved for default on the claims set forth in the Complaint. A copy of the Motion for Default was sent to Cozier at his business address. Cozier did not respond to the People’s Motion for Default.

On February 21, 2003, the PDJ granted the Motion as to the facts set forth in the Complaint, which were deemed admitted, and the claims set forth in the Complaint, with the exception of claim seven, were deemed established. A copy of the PDJ’s Order was sent to Cozier at his business address.

On March 4, 2003, the People sent a Confirmation of Sanctions Hearing to Cozier via certified and regular mail at his registered business address. The Confirmation provided notice to Cozier that the matter was set for a one-half day hearing on June 11, 2003. Notwithstanding the fact that Cozier had sufficient notice of the hearing, he failed to appear.

At the Sanctions Hearing, the People presented no additional testimony or exhibits. The Hearing Board considered the facts established 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

Clifford G. Cozier has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 29, 1991, and is registered upon the official records of the Supreme Court, registration number 20550. He 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 therefore are established by clear and convincing evidence. See the Complaint attached hereto as Exhibit A. The entry of default also deemed established the violations of the Rules of Professional Conduct set forth therein, except for those alleged in claim seven.

II. CONCLUSIONS OF LAW AND
IMPOSITION OF SANCTION

The entry of default established the following violations of the Colorado Rules of Professional Conduct ("Colo. RPC") in this matter: Two violations of Colo. RPC 1.7(b) (conflict of interest); two violations of Colo. RPC 1.15(a) (failure to keep client or third party funds separate from the lawyer’s own property); two violations of Colo. RPC 3.4(c) (knowing failure to comply with an obligation under the rules of a tribunal); one violation of Colo. RPC 8.1(b) (failure to respond reasonably to a lawful demand for information from a disciplinary authority); one violation of Colo. RPC 8.4(a) (attempting to violate the rules of professional conduct through the act of another); and five violations of Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

Among the violations of Colo. RPC 8.4(c) are one act of negligent conversion of client or third party funds and one act of knowing conversion of client or third party funds.

In the Caldwell matter, Cozier represented all of the heirs of Thelma Caldwell, individually, and served as personal representative for the decedent’s estate. Cozier was aware of conflicts among the heirs but failed to discuss with any of them any actual or potential conflict of interest created by his serving as a fiduciary for the estate and representing all of the heirs in their individual capacities. Even as potential conflicts among Cozier’s clients ripened into actual disputes involving the probate assets, Cozier continued to represent all of the individual heirs and the interests of the estate. Cozier’s conduct in this regard violated Colo. RPC 1.7(b) (representing a client when the representation may be materially limited by the lawyer’s responsibilities to another client or to a third person).

Cozier induced the heirs of Thelma Caldwell to support his appointment as personal representative by representing that he would not charge any fee for his services as personal representative. In the process of closing the decedent’s estate, however, Cozier sought and obtained approval from the court for payment of fees from estate assets which included fees for work Cozier performed as personal representative of Thelma Caldwell’s estate. By submitting invoices to the court for approval for services when he knew he was not entitled to compensation, Cozier deceived his clients and induced the court to act upon false or misleading information in approving his application for payment of fees out of estate assets. Cozier’s conduct in this regard violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

Cozier also attended a closing with respect to the sale of decedent’s real estate and signed closing documents as trustee of the Thelma Caldwell revocable trust. At the time, Cozier had not been appointed by the court to serve as trustee, nor had he received any authorization to act in that capacity from his individual clients. By signing documents as trustee of the Thelma Caldwell revocable trust, Cozier made further misrepresentations, in violation of Colo. RPC 8.4(c).

On or about July 6, 2001, Cozier deposited the sum of $53,164.00 belonging to the estate of Jack Zolar into his trust account. Cozier deposited the funds into the trust account in anticipation of paying estate taxes and other administrative fees relating to the Zolar estate. When it came time to pay the estate taxes, Cozier wrote a check drawn on his law firm operating account instead of his trust account.

Cozier promptly discovered the mistake and, in an attempt to rectify the mistake, wrote a check drawn on his trust account, payable to himself, in the amount of $56,150.00. At the time the check was written, the total balance in the trust account was $55,416.19. After the check was returned due to insufficient funds, Cozier wrote another check drawn on his trust account, payable to himself, in the amount of $55,000.00. The check cleared, but the amount of the check exceeded the amount of funds on deposit for the Zolar estate. By writing the check to himself for $55,000.00, Cozier converted $1,836.00 of funds belonging to another client or to a third party. The complainant has conceded that it cannot prove by clear and convincing evidence that this conversion was knowing. Thus, technical or negligent conversion is established in violation of Colo. RPC 8.4(c) and Colo. RPC 1.15(a). See, People v. Varallo, 913 P.2d 1, 11 (Colo. 1996) (holding that a "technical conversion" is a conversion or misappropriation where the complainant either concedes that the misappropriation was negligent or it cannot be proven by clear and convincing evidence that the conversion was knowing).

Cozier also knowingly failed to respond reasonably to lawful demands for information from the Office of Regulation Counsel concerning the trust account notification matter. Specifically, Cozier failed to provide a written response to the request for investigation concerning the overdraft in his trust account and failed to comply with the Office of Attorney Regulation Counsel’s request for further documentation concerning the funds on deposit in his trust account at the time of the overdraft. Cozier had sufficient notice of the request for information from the Office of Attorney Regulation Counsel: the letter sent certified mail was received at Cozier’s office and signed for by Dougherty’s legal assistant. Cozier’s conduct in this regard constitutes a violation of Colo. RPC 8.1(b) (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). Cozier also knowingly failed to comply with his obligations under the rules of a tribunal, in violation of Colo. RPC 3.4(c). Specifically, Cozier failed to comply with his obligations under C.R.C.P. 251.5(d) (failure to respond without good cause shown to a request by Attorney Regulation Counsel) and Colo. RPC 8.1(b).

In the Glasgow/Estate of Rohn Matter, Cozier was initially retained by Lora Larson ("Larson") to represent her in her capacity as a beneficiary of the revocable trust of John Rohn, who died in September 2001. After entering into an attorney-client relationship with Larson, Cozier sought to have the existing trustee of the Rohn trust removed and to have himself appointed as successor trustee. In doing so, Cozier sought Larson’s support and the other beneficiaries of the trust without disclosing to or discussing with any of them the implications or risks involved in having Cozier serve as successor trustee while representing Larson individually.

Cozier effectively took control of the Rohn trust in September 2001, and assumed the role of trustee after obtaining the support of a majority of the trust beneficiaries. Shortly after declaring himself to be successor trustee of the Rohn trust, Cozier wrote and signed a check payable to himself drawn on the decedent’s checking account at US Bank. The check was for Cozier’s fees charged for representing Larson individually from September 10, 2001, through October 10, 2001.

Cozier’s representation of Larson may have been materially limited by Cozier’s duties as purported trustee of the Rohn trust. Accordingly, Cozier was obligated to fully disclose that conflict to his client. Colo. RPC 1.7(b)(2). See, also, In re Cimino, 3 P.3d 398, 399-400 (Colo. 2000) (lawyer suspended for failing to disclose conflict of interest to client). Cozier’s representation of Larson and his obligations as purported trustee of the Rohn trust were also materially limited by his own interests in obtaining control of the Rohn trust assets. See, People v. Henderson, 967 P.2d 1038, 1040 (Colo. 1998) (lawyer’s ability to represent his client in bankruptcy was materially limited by his own interest as a creditor in collecting attorney fees). Through this conduct, Cozier violated Colo. RPC 1.7(b), even if no actual injury resulted from the conflict of interest. See, Cimino, 3 P.3d at 401 (stating that "[t]he absence of injury does not negate the violations of Colo. RPC 1.7(b) or 1.8(a)").

In seeking to have himself appointed as trustee of the Rohn trust, Cozier sent nomination forms to most of the trust beneficiaries. The forms required the notarized signature of the designated beneficiary. One of those beneficiaries, Beatrice Lobland, resided in Minnesota. Lobland apparently signed a form prepared by Cozier in Minnesota and returned it to Cozier without notarization. After Cozier received the form from Lobland, he asked a notary public in his office suite in Colorado to notarize the signature, despite his knowledge that neither he nor the notary had witnessed the signature. The notary complied with Cozier’s request based upon his advice that she was permitted to notarize the signature.

By notarizing Lobland’s signature, the notary verified that Lobland had appeared and signed the document before her and that the notary was able to verify Lobland’s identity. Cozier published the document containing the false representations to others, including the probate court, intending that they rely upon the misrepresentation of the notary. By making a misrepresentation through the conduct of the notary, Cozier violated Colo. RPC 8.4(a) (it is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct through the act of another). By publishing the improperly notarized documents, Cozier violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). See, People v. Mitchell, 969 P.2d 662 (Colo. 1998) (attorney violated Colo. RPC 8.4(c) by submitting a false statement to the small business administration for the purpose of obtaining a loan).

Cozier engaged in further acts in violation of Colo. RPC 8.4(c) through his misrepresentations to the former trustee of the Rohn trust and to representatives of US Bank. On September 21, 2001, Cozier sent a letter to Gary Glasgow, the original trustee of the Rohn trust, advising that Cozier had been retained by Lora Larson "as well as the majority of the beneficiaries of Mr. Rohn’s revocable trust with respect to the administration of Mr. Rohn’s trust and his estate." The statement was false. Cozier had not been retained by any of the beneficiaries in their individual capacity other than Larson. Furthermore, Cozier had not been retained by anyone with respect to administration of Mr. Rohn’s probate estate.

Also on September 21, 2001, Cozier sent a letter to Karen Barber at US Bank, concerning Mr. Rohn’s bank account. In the letter, Cozier falsely represented to US Bank that he represented the beneficiaries of the estate of John Rohn, including the majority of the beneficiaries of the Rohn trust. Cozier made representations in order to gain control of Mr. Rohn’s trust asset, some of which he then used to pay himself for work he had done for Larson, individually.

In November 2001, the Arapahoe County District Court entered an order granting a motion for preliminary injunction to restrain Cozier from acting as trustee from the Rohn trust. The order also directed Cozier to turn over to Mr. Glasgow any trust assets in his possession and any documents in his possession relating to the Rohn trust. Pursuant to the court’s order, Cozier was obligated to restore to the Rohn trust the funds he had paid to himself out of the trust assets. Cozier knowingly failed to comply with the court order, in violation of Colo. RPC 3.4(c) (a lawyer shall not knowingly fail to comply with an obligation under the rules of a tribunal). See also, People v. Huntzinger, 967 P.2d 160, 162 (Colo. 1998) (lawyer suspended for failure to pay court-ordered attorney fees, in violation of Colo. RPC 3.4(c)).

Since receiving the order of the Arapahoe County District Court, dated November 5, 2001, Cozier has continued to exercise unauthorized dominion or ownership of assets belonging to the Rohn trust or the Rohn estate. Through this continuing conduct, Cozier knowingly converted funds belonging to a client or a third party, in violation of Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). See, Varallo, supra (holding that knowing misappropriation (for which the lawyer is almost invariably disbarred) "consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking"). In Colorado, misappropriating funds belonging to a third party is no less egregious than conversion of client funds. See, e.g., People v. Guyerson, 898 P.2d 1062, 1063 (Colo. 1995) (lawyer disbarred for converting funds from a law firm in which he was a partner, including some funds belonging to clients); People v. Nulan, 820 P.2d 1117, 1119 (Colo. 1991) (finding conversion even though escrowed funds held by the lawyer were the property of persons who were not clients of the lawyer).

Certainly after the issuance of the Arapahoe County District Court’s order of November 5, 2001, Cozier knew the funds he paid to himself out of the Rohn trust assets did not belong to him and that he was not authorized to retain the funds. Notwithstanding that knowledge, after receiving the court order and a demand for the return of the funds from the trustee of the Rohn trust, Cozier continued to retain control of the funds.

The ABA Standards for Imposing Lawyer Sanctions (1991 and Supp. 1992) ("ABA Standards") are the guiding authority for selecting the appropriate sanction to oppose for lawyer misconduct. In re Roose, 69 P.3d 43, 47 (Colo. 2003), modified, reh’g denied.

ABA Standards § 4.11 provides:

Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.

Cozier’s knowing conversion of funds in the Glasgow/Estate of Rohn matter meets the criteria for disbarment under ABA Standard § 4.11. Colorado case law is consistent with the ABA Standards in holding that disbarment is the presumed sanction for knowing conversion of the property of another. Varallo, supra. See also, People v. Wiedman, 36 P.3d 785, 788 (Colo. 1999) (holding that a lawyer’s knowing misappropriation of funds, whether belonging to a client or a third party, warrants disbarment except in the presence of extraordinary factors in mitigation).

In Varallo, supra, 913 P.2d 1, 11, the Colorado Supreme Court stated as follows:

A "technical conversion," usually warranting suspension rather than disbarment, is a conversion or misappropriation where the complainant either concedes that the misappropriation was negligent, People v. Dickinson, 903 P.2d 1132, 1138 (Colo.1995), or it cannot be proven by clear and convincing evidence that the respondent knowingly converted the funds, People v. Galindo, 884 P.2d 1109, 1112 (Colo.1994) (board’s conclusion that conversion was negligent rather than knowing was supported by the record and would not be overturned); People v. Wechsler, 854 P.2d 217, 220-21 (Colo.1993) (supreme court will not overturn hearing board’s conclusion that intentional conversion was not established by clear and convincing evidence unless there is no substantial evidence in the record to support conclusion); McGrath, 780 P.2d at 493 ("Indeed, if there were not some lingering doubt about whether the respondent engaged in knowing conversion of his client’s funds, we would have no hesitation in entering an order of disbarment.")

Cozier’s conduct in negligently or technically converting funds in the trust account notification matter is, in and of itself, grounds for suspension from the practice of law. See, e.g., People v. Wechsler, 854 P.2d 217, 223 (Colo. 1993) (lawyer suspended for one year and one day for technical or negligent conversion of funds coupled with other misconduct).

ABA Standard § 6.22 provides:

Suspension is generally appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.

Pursuant to ABA Standard § 6.22, Cozier’s conduct in knowingly violating court orders or rules in two instances would generally warrant a suspension from the practice of law. In the instant case, the sanction of disbarment is reinforced by Cozier’s knowing violation of court orders and rules; his additional instances of misconduct involving dishonesty, fraud, deceit or misrepresentation; and his conflicted representations.

Aggravating factors in the instant case include prior discipline in the form of a private admonition in 2000, ABA Standard § 9.22(a); a dishonest or selfish motive, see id. at § 9.22(b); multiple offenses, see id. at § 9.22(d); failure to cooperate in disciplinary proceedings, see id. at § 9.22(e); and substantial experience in the practice of law, see id. at § 9.22(i). Cozier has not submitted evidence of any factors in mitigation.

The Hearing Board further finds that restitution is warranted. The entry of default established that Cozier billed the Caldwell estate over $10,000 for his services contrary to his earlier representations to his clients, a significant portion of his fees were billed for work Cozier performed as personal representative of the estate and/or for tasks within the scope of the duties and responsibilities of a personal representative. Cozier induced the heirs to support his appointment as personal representative of the estate based, at least in part, on Cozier’s representation that he would not charge any fee for his services as personal representative. The amount Cozier charged was contrary to the fee agreement. The estate is owed not less than $10,000.

Additionally, the entry of default has established that shortly after declaring himself to be successor trustee of the Rohn trust, Cozier wrote and signed a check payable to himself drawn on Mr. Rohn’s checking account at US Bank in the amount of $12,319.50. The withdrawal was for payment of Cozier’s fees in representing Larson from September 10, 2001 through October 10, 2001. A portion of the time for which Cozier billed Larson and for which he paid himself from Rohn’s account was spent researching and consulting with other attorneys concerning Cozier’s own conflict of interest. Substantial additional time was billed by Cozier for time spent in his efforts to have himself appointed as successor trustee of the Rohn trust. In seeking to have himself appointed as successor trustee of the Rohn trust, Cozier was acting for his own benefit and not for the benefit of his client, Larson, or for the trust. Consequently, Cozier’s withdrawal of the $12,319.50 from the account was not authorized under his fee agreement and must be returned.1

III. ORDER

It is therefore ORDERED:

1. CLIFFORD G. COZIER, attorney registration 20550, is DISBARRED from the practice of law 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. Cozier is Ordered to pay the costs of these proceedings within sixty (60) days of the date of this order. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Cozier shall have five (5) days thereafter to submit a response thereto.

3. Within ninety (90) days from the date of this Order, Cozier shall pay $10,000 to the personal representative of the Caldwell Estate in restitution to the Estate plus interest from the date of this Order, and $12,319.50 to US Bank plus interest at eight percent from October 12, 2001 as restitution for the check written on that date.

EXHIBIT A

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 May 29, 1991, and is registered upon the official records of this court, registration no. 20550. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered business address is 7430 E. Caley Ave., Suite 100, Englewood, Colorado 80111. The respondent’s registered home address is 7600 E. Caley Ave., #218, Englewood, Colorado 80111.

Caldwell Matter

CLAIM I

[Conflict of Interest — Colo. RPC 1.7(b)]

2. Thelma Caldwell died on February 24, 2000. During her lifetime, she had executed a will and a revocable trust, both prepared by the respondent.

3. In approximately late February 2000, Rose Sanford, one of Thelma Caldwell’s children, contacted the respondent with questions about the probate process and Thelma Caldwell’s estate. At that time, Ms. Sanford informed the respondent that there were significant conflicts and disputes among some of Thelma Caldwell’s children, all of whom were the heirs of her estate and designated as beneficiaries of the trust (hereinafter referred to collectively as the "heirs").

4. Pursuant to Thelma Caldwell’s last will and testament, Gregory Caldwell and Patricia Hill, two of the heirs, were to serve as co-personal representatives of the estate. If neither of them were able or willing to act as personal representative, then the will designated Gloria Olivier, another of the heirs, to serve as personal representative.

5. The trust documents executed by the decedent designated Rose Sanford to serve as trustee of the Thelma Caldwell revocable trust.

6. In March of 2000, after the initial contact with Rose Sanford, the respondent met with several of the heirs and proposed an arrangement whereby he would represent all of the heirs in their individual capacities. The respondent further proposed that he be appointed personal representative of the estate as a means of alleviating the conflict among some of the heirs.

7. In proposing the representation and fiduciary appointment as described above, the respondent did not discuss with the heirs, all of whom are adults, any actual or potential conflict of interest created by the respondent serving as fiduciary for the estate and representing all of the heirs in their individual capacities.

8. In seeking to induce the heirs to appoint him as personal representative of the decedent’s estate, the respondent offered to waive any fee for serving as personal representative if he was also retained by all of the heirs to represent them in their individual capacities.

9. Some of the heirs agreed to the respondent’s appointment as personal representative in reliance upon his offer to waive any fee for serving in that capacity.

10. In approximately March 2000, all of the heirs signed, in counterparts, a written fee agreement retaining the respondent to represent them in their individual capacities. Accordingly, an attorney-client relationship was formed between the respondent and each of the heirs individually. Neither that fee agreement nor any other fee agreement or written memorialization provides for the payment of any fee to the respondent for serving as personal representative or for serving in any fiduciary capacity with respect to the Thelma Caldwell revocable trust.

11. In April 2000, the respondent filed with the probate court for the City and County of Denver an application for informal probate of the decedent’s will and for informal appointment of himself as personal representative.

12. Shortly after the respondent filed his application, the respondent was appointed as personal representative of the decedent’s estate.

13. As early as March of 2000, conflicts arose between Gregory Caldwell and both the respondent and some of the other heirs concerning estate-related matters. These conflicts included issues about whether Mr. Caldwell was entitled to additional estate assets because of his role in caring for his mother and her home late in her life, and Mr. Caldwell’s concerns about the respondent’s efforts to sell the decedent’s home, which was the principal asset of the estate. In addition to these conflicts, the animosity between Gregory Caldwell and one of his sisters became so severe that a restraining order was sought by one of them.

14. The respondent was aware of all of these conflicts between and among the heirs.

15. In December 2000, Gregory Caldwell wrote a letter to the probate court voicing his complaints and concerns about the respondent and the respondent’s handling of estate administration matters. The respondent received a copy of the letter.

16. Despite the actual conflict and disagreements among the heirs and between Gregory Caldwell and the respondent, the respondent continued to represent all of the heirs, and continued to serve as personal representative of the decedent’s estate throughout the estate administration process.

17. Later during the estate administration process, the respondent also acted, without authority, as trustee of the Thelma Caldwell revocable trust.

18. In both his capacity as personal representative of the decedent’s estate, and as trustee for the decedent’s revocable trust, the respondent had fiduciary obligations including, but not limited to, those defined and set forth in the Uniform Fiduciaries Law, C.R.S. §15-1-101, et seq., and further duties and obligations as provided under Colorado law, including, but not limited to, those set forth at C.R.S. §15-12-701, et seq.

19. As attorney for each of the individual heirs of the decedent’s estate, the respondent also had a duty of loyalty to each of the heirs, individually.

20. Pursuant to Colo. RPC 1.7(b), a lawyer shall not represent a client if representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

21. In representing all of the heirs of the decedent’s estate and beneficiaries of the decedent’s revocable trust, the respondent represented clients under circumstances in which his representation may have been materially limited by the respondent’s responsibilities to the other heirs as clients, by his fiduciary responsibilities to the estate and the trust, and by his own interests.

22. In seeking his client’s consent to the representation of all of the heirs, in addition to serving in his fiduciary capacities, the respondent did not consult with his individual clients as provided for and defined in Colo. RPC 1.7(b)(2).

23. Through his conduct as described above, the respondent engaged in a conflict of interest, in violation of Colo. RPC 1.7(b).

24. The respondent’s conflicted representation caused harm or potential harm to his individual clients.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

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

25. Paragraphs 1 through 22 are incorporated herein as if fully set forth.

26. The decedent’s estate consisted of assets valued at slightly over $200,000.00. The most significant asset was the decedent’s home, the sale of which netted $157,937.31. The decedent also had bonds purchased through Norwest and Metlife worth approximately $46,000.00 at the time of her death.

27. By operation of the estate plan created by the respondent, the decedent’s entire residuary estate was to pour over into the Thelma Caldwell revocable trust to be distributed to the various beneficiaries through the trust. Through this process, the decedent’s home became an asset of the trust and had to be conveyed by the trustee.

28. Pursuant to the provisions of the estate plan prepared by the respondent, Rose Sanford was designated to serve as trustee of the Thelma Caldwell revocable trust.

29. The respondent never took any steps, in either his capacity as personal representative of the estate or in his capacity as Rose Sanford’s attorney, to have her appointed as trustee.

30. At the time the closing with respect to the sale of the decedent’s real estate was to take place, no one had been appointed by the court as trustee of the Thelma Caldwell trust.

31. The respondent attended the closing with respect to the sale of the decedent’s real estate and signed all of the closing documents as trustee of the Thelma Caldwell revocable trust.

32. At the time the respondent executed the closing documents, the respondent had not been appointed by the court to serve as trustee, nor had he received any other authorization to act in that capacity.

33. At the time of the closing with respect to the sale of the decedent’s real estate, the respondent knew, or should have known, that he had not been appointed by the court to serve as trustee of the Thelma Caldwell revocable trust and that he did not have authority to sign closing documents in that capacity.

34. On May 16, 2001, the respondent attended a hearing before Denver Probate Court Magistrate Sandra Franklin. At the hearing, the respondent acknowledged that he had signed all of the closing documents as trustee of the Thelma Caldwell revocable trust when, in fact, he had never been appointed in that capacity.

35. In signing closing documents as personal representative of the Thelma Caldwell revocable trust, the respondent made material factual representations that he was, in fact, the trustee. The respondent’s representations in this regard were false.

36. The respondent knew, or should have known, that his representations concerning his status as trustee were false.

37. The respondent made representations concerning his status as trustee with the intent that all parties involved in the closing rely upon his representations.

38. All parties involved in the closing with respect to the sale of the decedent’s real estate reasonably relied upon the representations of the respondent that he was authorized to act as trustee and was, therefore, empowered to convey the subject real estate.

39. As a result of the respondent’s misrepresentations as described above, the validity of the closing concerning the decedent’s real estate was threatened.

40. At the hearing held on May 16, 2001, the trust beneficiaries agreed to ratify the respondent’s actions in order to avoid the possible rescission of the sale of the decedent’s real property.

41. But for the agreement to ratify the respondent’s actions in assuming the authority of trustee of the Thelma Caldwell revocable trust, the trust and its beneficiaries could have suffered significant harm.

42. Through his conduct as described above in relation to the sale of the decedent’s real estate, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, which caused harm or potential harm to the trust and to the trust beneficiaries.

43. In the process of closing the decedent’s estate, the respondent sought and obtained approval for payment of all of his fees from estate or trust assets.

44. The respondent billed the estate over $10,000.00 for his services and, contrary to his earlier representations to his clients, a significant portion of his fees were billed for work the respondent performed as personal representative of the estate and/or for tasks within the scope of the duties and responsibilities of a personal representative as provided under Colorado law, including C.R.S. §15-12-701, et seq.

45. The respondent induced the heirs to support the respondent’s appointment as personal representative of the estate based, at least in part, on the respondent’s representation that he would not charge any fee for his services as personal representative.

46. By submitting billing statements for his services, the respondent impliedly represented that such charges were for services as counsel for the individual heirs and not for services as personal representative. This representation was false.

47. By submitting his invoices to the court and seeking compensation for the invoices as expenses of estate administration, the respondent also impliedly represented to the court that all such fees were in accordance with the agreement pursuant to which he had been retained. This representation was false.

48. The respondent knew that he was not authorized to bill for services as personal representative at the time he submitted these invoices.

49. Through his conduct as described above, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, by deceiving his clients and by inducing the court to act upon false or misleading information in approving his application for payment of fees out of estate assets.

50. Through the respondent’s conduct as described above, the respondent caused harm to the decedent’s estate and to his individual clients by obtaining from the estate payment for services the respondent represented would be provided without any fee.

51. Through his conduct as described above, the respondent violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

WHEREFORE, the complainant prays at the conclusion hereof.

Trust Account Notification Matter

CLAIM III

[Failure to keep client or third party funds separate from the lawyer’s own property and negligent conversion of client or
third party funds — Colo. RPC 1.15(a) and Colo. RPC 8.4(c)]

52. In approximately March of 2000, the respondent was retained by Marricorine Tabor to administer the estate of her father, Jack Zolar, who died in approximately March of 2000. Accordingly, an attorney-client relationship between the respondent and Ms. Tabor was formed. The respondent also assumed fiduciary duties with respect to the estate.

53. As part of the estate administration process, the respondent opened a fiduciary bank account in the name of the Estate of Jack A. Zolar at First Bank of Cherry Creek (the "Zolar account").

54. The respondent deposited into the Zolar account only funds belonging to the Zolar estate.

55. The respondent was the only person with signatory power on the Zolar account.

56. On or about July 6, 2001, the respondent wrote a check drawn on the Zolar account in the amount of $53,164.00, payable to the Cliff Cozier COLTAF Account (the "COLTAF account"). On or about the same day, the respondent deposited the check into the COLTAF account.

57. At the end of July 2001, the balance in the COLTAF account was $68,416.19. According to the respondent, all of the funds in the COLTAF account as of July 31, 2001, other than the funds deposited to the account from the Zolar account, were funds the respondent received in connection with his representation of a client in a real estate matter known as the "Flynn-Fabrizio matter."

58. The funds in the COLTAF account in relation to the Flynn-Fabrizio matter belonged to the respondent’s client or to a third party at the time they were originally deposited into the COLTAF account.

59. The respondent deposited the funds from the Zolar account into the COLTAF account in anticipation of paying estate taxes and other administrative fees relating to the Zolar estate.

60. In late September 2001, the respondent completed the estate tax returns for the Zolar estate and directed his legal assistant to prepare checks for his signature to pay those taxes.

61. The respondent’s legal assistant prepared checks for the respondent’s signature from the respondent’s operating account instead of the COLTAF account. The respondent signed the checks without noticing the account on which they were drawn.

62. Within approximately one day, the respondent discovered the mistake concerning the checks and, in an attempt to rectify the mistake, wrote check number 617, drawn on his COLTAF account, in the amount of $56,150.00, payable to himself. The check was intended to cover the total expenditures the respondent had made on behalf of the Zolar estate out of his operating account.

63. The respondent took no steps to determine the balance in the COLTAF account at the time he wrote check number 617.

64. On or about September 25, 2001, check number 617 was presented for payment at First Bank of Cherry Creek and was returned unpaid due to insufficient funds. At the time, the total balance in the COLTAF account was $55,416.19.

65. At the time check number 617 was presented for payment at First Bank of Cherry Creek, the respondent had only $53,164.00 in the COLTAF account belonging to the Zolar estate. All other funds in the account belonged to the respondent’s client or to a third party in regard to the respondent’s representation of a client in the Flynn-Fabrizio matter.

66. First Bank of Cherry Creek notified the respondent and Regulation Counsel promptly of the overdraft in the COLTAF account.

67. After the respondent learned that check number 617 had not cleared due to insufficient funds, he wrote check number 618 drawn on the COLTAF account, dated September 27, 2001, in the amount of $55,000.00. The check was made payable to the respondent.

68. At the time the respondent wrote check number 618 as described above, he still had only $53,164.00 on deposit in the COLTAF account from the Zolar estate. The balance of the funds in the account belonged to the respondent’s client or to a third party in connection with the respondent’s representation of a client in the Flynn-Fabrizio matter.

69. Check number 618 cleared the COLTAF account on September 27, 2001, leaving a balance of $416.19 in the COLTAF account.

70. By writing check number 618 to himself for $55,000.00, the respondent used $1,836.00 of funds belonging to his client or to a third party in regard to the Flynn-Fabrizio matter to reimburse himself for expenses he had paid for the Zolar estate.

71. The respondent did not have the consent of his client or anyone else in a position of authority to use any of the funds he received in connection with the Flynn-Fabrizio matter for such purposes.

72. By using funds belonging to a client or a third party in relation to the Flynn-Fabrizio matter, the respondent exercised unauthorized dominion or ownership over funds of a client or third party.

73. Through his conduct as described above, the respondent knowingly and/or negligently converted or misappropriated funds belonging to a client or a third party.

74. By paying these client or third party funds to himself and removing them from the COLTAF account, the respondent also failed to keep client or third party funds separate from his own property.

75. Through his conduct as described above, the respondent violated Colo. RPC 1.15(a) (in connection with a representation, an attorney shall hold property of clients or third persons that is in an attorney’s possession separate from the attorney’s own property) and Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM IV

[Failure to keep client or third party funds separate
from the attorney’s own property in a trust account —
Colo. RPC 1.15(a)]

76. Paragraphs 52 through 74 are incorporated herein as if fully set forth.

77. In the alternative, if it is proven that the respondent had earned all of the funds he received in connection with representation of a client in the Flynn-Fabrizio matter as described above prior to September 27, 2001, then those funds constituted the respondent’s own property. Under such circumstances, the respondent commingled funds belonging to the estate of Zolar with his own property in the COLTAF account.

78. Pursuant to Colo. RPC 1.15(a), the respondent is required to hold property of clients or third persons that is in his possession separate from his own property.

79. By commingling property belonging to the estate of Zolar with his own property in the COLTAF account, the respondent failed, in connection with the representation, to hold property of clients or third persons in his possession separate from his own property.

80. Through his conduct as described above, in the alternative, the respondent violated Colo. RPC 1.15(a) (in connection with a representation, an attorney shall hold property of clients or third persons that is in the attorney’s possession separate from the attorney’s own property).

81. WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM V

[Failure to respond reasonably to lawful demands
for information from a disciplinary authority —
Colo. RPC 8.1(b) and Colo. RPC 3.4(c)]

81. Paragraphs 52 through 79 are incorporated herein as if fully set forth.

82. On October 4, 2001, Karen L. Bershenyi, investigator for the Office of Attorney Regulation Counsel, sent a letter to the respondent requesting an explanation of the overdraft in the COLTAF account which occurred in September 2001, and also requesting specific accounting documents and information.

83. The respondent received the letter from Ms. Bershenyi and failed to respond to it.

84. On November 27, 2001, Regulation Counsel sent a letter to the respondent by certified mail advising him that an investigation had been initiated based upon the overdraft notification and the respondent’s failure to respond to prior requests for information from Ms. Bershenyi. The letter further advised the respondent of his obligation to respond, in writing, within 20 days of his receipt of the letter.

85. The November 27, 2001 letter from Regulation Counsel was received at the respondent’s office and signed for by the respondent’s legal assistant on November 28, 2001.

86. The respondent personally received the letter dated November 27, 2001, and was aware of his obligation to respond to the request for investigation.

87. The respondent failed to respond to the letter dated November 27, 2001.

88. As of April 2002, the respondent had not responded to any requests for information from Regulation Counsel concerning the trust account notification matter. Accordingly, Regulation Counsel scheduled an investigative deposition and had the respondent served with a subpoena duces tecum to appear on April 16, 2002.

89. The subpoena was served upon the respondent personally and, on April 16, 2002, the respondent appeared at the Office of Attorney Regulation Counsel and requested that the deposition be rescheduled so he could retain counsel. The respondent also indicated on that date, on the record, that the records he needed to respond to the issues raised concerning the Zolar estate were in storage and that he would have to retrieve those documents.

90. Pursuant to the respondent’s request, Regulation Counsel agreed to reschedule the deposition until after the respondent had retained counsel.

91. Subsequently, Regulation Counsel was notified that the respondent had retained Alexander R. Rothrock, Esq., to represent him regarding all pending investigations.

92. On June 25, 2002, the respondent and Mr. Rothrock met with Regulation Counsel. At that time, the respondent did not provide a written response concerning the trust account notification matter, and indicated that he had not yet retrieved his records concerning the Zolar estate matter from storage.

93. On August 6, 2002, Mr. Rothrock notified Regulation Counsel that he was withdrawing from representation of the respondent.

94. As of September 2002, the respondent had provided no written response to the request for investigation concerning the trust account notification matter, and had failed to provide any of the documents requested by Regulation Counsel relating to that matter. Accordingly, Regulation Counsel had the respondent served with another notice to take his deposition along with a subpoena duces tecum.

95. On September 30, 2002, the respondent appeared in the Office of Attorney Regulation Counsel pursuant to the subpoena served upon him personally. On that date, the respondent answered questions concerning the trust account notification matter for the first time.

96. On September 30, 2002, the respondent failed to produce all documents requested in the subpoena duces tecum served upon him for purposes of the deposition.

97. During his deposition on September 30, 2002, the respondent mentioned, for the first time, the Flynn-Fabrizio matter, and speculated about his handling of funds received in connection with that matter.

98. During his deposition on September 30, 2002, the respondent was also asked to provide billing records and other documents to account for all of the funds in his COLTAF account during the period of time the funds from the Zolar estate were held in the COLTAF account as described above. This request specifically included billing records concerning the Flynn-Fabrizio matter.

99. Since September 30, 2002, the respondent has not provided any further information or documents requested by Regulation Counsel.

100. Pursuant to Colo. RPC 8.1(b), 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 that the rule does not require disclosure of information otherwise protected by Colo. RPC 1.6 or prohibit a good faith challenge to the demand for such information.

101. Through his conduct as described above, the respondent has knowingly failed to respond reasonably to lawful demands for information from Regulation Counsel concerning this matter.

102. Respondent has never raised any challenge pursuant to Colo. RPC 1.6 or any other grounds as a basis for failing to comply with demands for information from Regulation Counsel.

103. Pursuant to C.R.C.P. 251.5(d), a lawyer’s failure to respond without good cause shown to a request by Regulation Counsel in the performance of Regulation Counsel’s duties, constitutes grounds for discipline.

104. Through his conduct as described above, the respondent has failed to respond, without good cause shown, to numerous requests made by Regulation Counsel in the performance of Regulation Counsel’s duties.

105. Through his conduct as described above, the respondent has knowingly failed to comply with obligations under the rules of a tribunal, and specifically those provided in C.R.C.P. 251.5(d) and Colo. RPC 8.1(b) concerning cooperation with Regulation Counsel in connection with a disciplinary investigation.

106. Through his conduct as described above, the respondent has violated Colo. RPC 8.1(b) (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) and Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal).

WHEREFORE, the complainant prays at the conclusion hereof.

The Glasgow/Estate of Rohn Matter
CLAIM VI
[Conflict of interest — Colo. RPC 1.7(b)]

107. Prior to his death on September 9, 2001, John Rohn executed estate planning documents, including a revocable trust, prepared by Gary Glasgow, Esq. As part of the estate plan, substantially all of Mr. Rohn’s assets were to be distributed through the revocable trust (the "Rohn trust").

108. Mr. Rohn designated attorney Glasgow to serve as his successor trustee upon Mr. Rohn’s death.

109. Upon Mr. Rohn’s death, attorney Glasgow began acting as successor trustee of the Rohn trust, and commenced estate proceedings in Arapahoe County District Court.

110. Shortly after Mr. Rohn’s death, Lora Larson, with whom Mr. Rohn lived for several years prior to his death, consulted with the respondent concerning Mr. Rohn’s estate planning documents.

111. Ms. Larson, who was listed by Mr. Rohn as a beneficiary of the Rohn trust, took the estate planning documents to the respondent and asked the respondent to explain the documents to her. Ms. Larson also expressed to the respondent her concerns about attorney Glasgow, whom she did not trust to serve as trustee for the Rohn trust.

112. On or about September 13, 2001, the respondent entered into a written fee agreement with Ms. Larson, pursuant to which the respondent was to be paid an hourly rate of $140.00 per hour, plus a contingency fee of "one-tenth (10%) of the gross recovery to the beneficiaries of Mr. Rohn’s estate." At the time the respondent entered into the fee agreement with Ms. Larson, he was representing Ms. Larson only and had not been retained by anyone to represent or administer Mr. Rohn’s estate or to represent anyone who had been appointed or designated to serve in a fiduciary capacity with respect to the Rohn estate.

113. Ms. Larson was one of several persons and entities named as beneficiaries in Mr. Rohn’s estate planning documents.

114. After entering into the fee agreement with Ms. Larson, the respondent sought to have attorney Glasgow removed as trustee of the Rohn trust, pursuant to a provision in the trust documents allowing removal of any trustee based upon a majority vote of the trust beneficiaries if the trustee had been "grossly negligent."

115. The respondent concluded that attorney Glasgow had been grossly negligent and communicated this opinion to most of the beneficiaries of the Rohn trust based upon rumors and hearsay statements from some of the beneficiaries and based upon his own disagreement with some aspects of the estate plan created by attorney Glasgow.

116. In approximately September 2001, the respondent contacted, by telephone or in person, most of the beneficiaries designated in the trust documents to receive property from the Rohn trust.

117. While trying to convince the beneficiaries that attorney Glasgow should be removed as trustee from the Rohn trust, the respondent also urged the beneficiaries to have the respondent appointed as successor trustee.

118. The respondent prepared and sent to a majority of the beneficiaries a form for nomination of successor trustee, stating the beneficiaries’ desire to have attorney Glasgow removed as successor trustee and voting to have the respondent appointed as successor trustee. Each of the nomination forms was in the form of a pleading to be filed in estate proceedings in the probate court for the City and County of Denver.

119. The forms sent by the respondent to the beneficiaries of the Rohn trust were to be signed before a notary public and returned to the respondent.

120. Based upon their conversations with the respondent, a majority of the beneficiaries executed the forms provided by the respondent.

121. On approximately September 19, 2001, the respondent met with Patrick Malmay and his wife concerning the Rohn estate.

122. Mr. Malmay was designated as a beneficiary in the trust documents. Specifically, Mr. Malmay was to receive the home owned by Mr. Rohn at the time of his death.

123. During his meeting with the Malmays, the respondent represented that he was in possession of documents, including hand-written letters, suggesting that Mr. Rohn had intended for Ms. Larson to have the house. The respondent told the Malmays he would contest, on Ms. Larson’s behalf, the estate plan established by attorney Glasgow and that it would cost the Malmays anywhere from $20,000.00 to $90,000.00 to litigate the issue of who gets the house.

124. As an alternative to litigation, the respondent suggested to the Malmays that if attorney Glasgow was removed as trustee and the respondent appointed in his place, the respondent could rework the estate with everyone’s cooperation to limit any estate taxes so that everyone would be made whole.

125. The respondent also told the Malmays that if they cooperated with him, "I will bend over backwards to make sure that Lora meets you halfway."

126. In his discussions with the Malmays, the respondent acknowledged that he had a conflict of interest in working for both Mr. Malmay and Lora Larson because of their competing claims to Mr. Rohn’s house.

127. The respondent advised the Malmays that the conflict of interest was waiveable and would not be a problem because he could rework the estate to everyone’s advantage.

128. In discussing his conflict of interest with the Malmays, the respondent proposed a common representation without explaining the implications of the common representation and the risks involved. He also did not explain the implications or risks involved in the respondent serving as successor trustee while representing Ms. Larson individually.

129. In seeking the support from the other beneficiaries of the Rohn trust for his appointment as successor trustee, the respondent did not disclose or discuss any conflict of interest.

130. The respondent did not discuss with his existing client, Ms. Larson, any conflict of interest involved in his becoming trustee of the Rohn trust, or representing other beneficiaries such as Malmay, while representing Ms. Larson individually.

131. Among the beneficiaries designated in the trust documents to receive distributions from the Rohn trust were three charities. The charities were to receive specific distributions, and were to receive any and all funds that remained in Mr. Rohn’s estate after payment of all taxes, fees and expenses of estate administration, and after all distributions to beneficiaries as designated in the trust documents.

132. In seeking the cooperation of beneficiaries in removing attorney Glasgow and having himself appointed as successor trustee, the respondent never contacted any of the charities.

133. On or about September 21, 2001, the respondent sent a letter to attorney Glasgow stating that attorney Glasgow had been removed as trustee of the Rohn trust and that the respondent had been appointed as successor trustee.

134. Shortly after declaring himself to be successor trustee of the Rohn trust, the respondent wrote and signed a check payable to himself drawn on Mr. Rohn’s checking account at US Bank. The check, dated October 12, 2001, was payable to the respondent in the amount of $12,319.50, and was for payment of the respondent’s fees charged for representing Lora Larson from September 10, 2001 through October 10, 2001.

135. A portion of the time for which the respondent billed Ms. Larson and for which he paid himself from Mr. Rohn’s account was spent researching and consulting with other attorneys concerning the respondent’s own conflict of interest. Substantial additional time was billed by the respondent for time spent in his efforts to have himself appointed as successor trustee of the Rohn trust.

136. In seeking to have himself appointed as successor trustee of the Rohn trust, the respondent was acting for his own benefit and not for the benefit of his client, Ms. Larson, or for the trust.

137. Pursuant to Colo. RPC 1.7(b), a lawyer shall not represent a client if representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

138. The respondent continued to have an attorney-client relationship with Lora Larson at a time when his representation may have been materially limited by his responsibilities to the other beneficiaries of the Rohn trust and by the respondent’s own interests.

139. The respondent’s service as trustee of the Rohn trust may also have been materially limited by the respondent’s responsibilities to Ms. Larson and by the respondent’s own interests.

140. The respondent failed to explain the implications of the common representation and the advantages and risks involved.

141. Neither Lora Larson nor any of the other beneficiaries of the Rohn trust consented to the respondent’s representation as described above after consultation, as required and as defined by Colo. RPC 1.7(b).

142. Through his conduct as described above, the respondent violated Colo. RPC 1.7(b).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VII
[Improper solicitation of professional
employment — Colo. RPC 7.3(a)]

143. Paragraphs 107 through 141 are incorporated herein as if fully set forth.

144. In seeking his own appointment as successor trustee of the Rohn trust, the respondent solicited professional employment from prospective clients.

145. The respondent solicited such professional employment through both in-person and live telephone contact with the prospective clients.

146. The respondent had no family or prior professional relationship with any of the beneficiaries of the Rohn trust, other than Lora Larson.

147. A significant motive for the respondent’s solicitation of professional employment through appointment as successor trustee of the Rohn trust was his own pecuniary gain.

148. Through his conduct as described above, the respondent violated Colo. RPC 7.3(a) (a lawyer shall not either in-person or by live telephone contact, solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship or a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VIII

[Conduct involving dishonesty, fraud, deceit or
misrepresentation, and violating or attempting to
violate the Rules of Professional Conduct through the
act of another — Colo. RPC 8.4(c) and Colo. 8.4(a)]

149. Paragraphs 107 through 147 are incorporated herein as if fully set forth.

150. In seeking nomination of himself as successor trustee of the Rohn trust, the respondent asked Beatrice Lobland, a beneficiary living in Minnesota, to sign a nomination form prepared by the respondent and return the form to the respondent.

151. After the respondent received the form signed by Ms. Lobland in Minnesota, the respondent asked a notary public in his office suite in Colorado to notarize Ms. Lobland’s signature.

152. In asking the notary to notarize Ms. Lobland’s signature, the respondent knew that neither he nor the notary had witnessed the signature, and had no way of knowing whether the signature was genuine. Despite this knowledge, the respondent advised the notary she was permitted to notarize the signature and requested that she do so.

153. The notary complied with the respondent’s request and notarized Ms. Lobland’s signature.

154. By notarizing Ms. Lobland’s signature, the notary verified that Ms. Lobland had appeared and signed the document before the notary and that the notary was able to verify her identity. These representations were false.

155. The notary made such false representations based upon the advice and at the request of the respondent.

156. The respondent then published the document containing the false representations to others, including the probate court, intending that they rely upon the misrepresentations.

157. Through his own actions and the actions of the notary as described above, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

158. Through his conduct as described above, the respondent violated Colo. RPC 8.4(a) (it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct through the act of another) and Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM IX
[Conduct involving dishonesty, fraud, deceit or
misrepresentation — Colo. RPC 8.4(c)]

159. Paragraphs 107 through 156 are incorporated herein as if fully set forth.

160. On September 21, 2001, when the respondent notified attorney Glasgow of attorney Glasgow’s alleged removal as trustee of the Rohn trust, the respondent stated to attorney Glasgow, in a letter, that "my office has been retained by Lora Larson, as well as the majority of the beneficiaries of Mr. Rohn’s revocable trust with respect to the administration of Mr. Rohn’s trust and his estate."

161. The statement made by the respondent in his letter to attorney Glasgow was false in that the respondent had not been retained by any of the beneficiaries in their individual capacity other than Lora Larson. Furthermore, the respondent had not been retained by anyone with respect to administration of Mr. Rohn’s estate. Rather, the respondent had obtained nominations from the majority of the beneficiaries of the Rohn trust for the respondent’s appointment as successor trustee.

162. The letter from the respondent to attorney Glasgow was sent in an attempt to get attorney Glasgow to turn over to the respondent all trust and estate documents in attorney Glasgow’s possession.

163. The representations made by the respondent in his letter to attorney Glasgow were material and the respondent knew they were false.

164. The respondent intended for attorney Glasgow to rely upon the statements made in his September 21, 2001 letter in determining what action to take in regard to the trust and estate documents in attorney Glasgow’s possession.

165. Also on September 21, 2001, the respondent sent a letter to Ms. Karen Barber, at US Bank, concerning Mr. Rohn’s bank account. In the letter, the respondent represented to US Bank, "this office represents the beneficiaries of the Estate of John O. Rohn, including the majority of the beneficiaries of Mr. Rohn’s living trust dated September 19, 1995 and amended August 9, 2001."

166. The above-referenced representations made by the respondent in his letter to US Bank were false in that the respondent did not represent any of the beneficiaries of the Rohn estate or trust in their individual capacity, other than Ms. Larson.

167. The respondent’s representations to US Bank as described above were material and the respondent knew they were false.

168. The respondent intended for US Bank to rely upon his misrepresentations in allowing the respondent access to Mr. Rohn’s account at US Bank.

169. US Bank reasonably relied upon the respondent’s representations in honoring the check written by the respondent drawn on Mr. Rohn’s account at US Bank on October 12, 2001, pursuant to which the respondent paid himself $12,319.50.

170. At the time the respondent wrote and signed the check drawn on Mr. Rohn’s account at US Bank, the respondent was not an authorized signatory on the account and had taken no steps to sign any signature cards or other documents at US Bank to become an authorized signatory on the account.

171. Prior to writing a check to himself from Mr. Rohn’s account, the respondent had not obtained authorization from the court or from anyone other than himself to pay himself from Mr. Rohn’s account the invoice for services he provided pursuant to his fee agreement with Ms. Larson.

172. In writing the letters to attorney Glasgow and to US Bank as described above, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

173. The respondent engaged in a further act of dishonesty or deceit by taking advantage of his prior misconduct and misrepresentations to pay himself from Mr. Rohn’s account at US Bank for services he had performed pursuant to a fee agreement with Ms. Larson.

174. Through his conduct as described above, the respondent violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM X
[Knowing failure to comply with a court
order — Colo. RPC 3.4(c)]

175. Paragraphs 107 through 173 are incorporated herein as if fully set forth.

176. In early October 2001, attorney Glasgow retained his own counsel and notified the respondent that he objected to the actions taken by the respondent in relation to the Rohn estate.

177. During the month of October, several of the beneficiaries who had signed forms to nominate the respondent as successor trustee of the Rohn trust retracted their nomination.

178. In late October 2001, attorney Glasgow filed a motion in the Arapahoe County District Court, Probate Division, seeking an emergency restraining order and/or preliminary injunction to restrain the respondent from acting as trustee for the Rohn trust.

179. On November 5, 2001, Judge Timothy L. Fasing entered an order granting the motion for preliminary injunction and requiring, among other things, that the respondent cease acting as or identifying himself as the successor trustee of the Rohn trust and requiring him to turn over to attorney Glasgow any trust assets in his possession, and any documents in his possession relating to the Rohn trust.

180. Despite requests from attorney Glasgow and his counsel, the respondent failed or refused to disgorge funds he paid to himself from Mr. Rohn’s bank account at US Bank.

181. After the respondent’s failure or refusal to pay the funds back to the trust, the trust made demands upon US Bank based upon US Bank’s alleged failure to follow appropriate procedures in honoring the check.

182. US Bank agreed to and did restore the funds to the account. Thus, the trust has been made whole, except to the extent that it had to pay additional attorney fees to deal with US Bank.

183. US Bank, however, has not been made whole as the respondent has failed or refused demands from US Bank for contribution or reimbursement.

184. The funds the respondent paid to himself from Mr. Rohn’s bank account were, at the time the respondent wrote the check to himself, assets of the Rohn estate or trust.

185. The assets of the Rohn estate and trust were subject to the jurisdiction of the probate division of the Arapahoe County District Court.

186. The respondent never obtained authorization from the Arapahoe County District Court or anyone else to pay himself any funds from the Rohn estate or trust assets.

187. Pursuant to Judge Fasing’s order of November 5, 2001, the respondent was obligated to restore to the Rohn trust the funds he had paid to himself out of the trust assets.

188. The respondent received a copy of Judge Fasing’s order and knew of his obligations pursuant to the order.

189. Through his conduct as described above, the respondent has knowingly failed to comply with Judge Fasing’s order.

190. Through his conduct as described above, the respondent has violated Colo. RPC 3.4(c) (knowing failure to comply with an obligation under the Rules of a Tribunal).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM XI
[Conversion of client or third party funds — Colo. RPC 8.4(c)]

191. Paragraphs 107 through 188 are incorporated herein as if fully set forth.

192. The funds on deposit in Mr. Rohn’s bank account at US Bank as described above belonged to Mr. Rohn’s estate or his trust. By using those assets to pay himself for work performed pursuant to a fee agreement with Ms. Larson, the respondent exercised unauthorized dominion or ownership over a portion of those funds.

193. At the time the respondent initially exercised dominion or ownership over the funds, the respondent knew or should have known that the funds belonged to the Rohn estate or to the Rohn trust, and that he did not have authorization to use the funds for his own purposes or to pay himself for services he had performed pursuant to a fee agreement with Ms. Larson.

194. To the extent the respondent believed initially, that he was acting as trustee of the Rohn trust and had authority to use a portion of Mr. Rohn’s funds to pay himself in October 2001, Judge Fasing’s order entered on November 5, 2001 made it clear that the respondent was not entitled to exercise dominion or control over any of Mr. Rohn’s assets.

195. Since receiving a copy of Judge Fasing’s order, the respondent has continued to exercise unauthorized dominion or ownership over assets belonging to the Rohn estate or trust.

196. Because of the settlement between the Rohn trust and US Bank, however, any legal claim to such funds now belongs to US Bank.

197. Through his conduct as described above, the respondent converted or misappropriated funds belonging to the Rohn estate or the Rohn trust.

198. The respondent’s conversion of such funds was knowing.

199. Through his conversion of funds as described above, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

200. Through his conduct as described above, the respondent violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

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; that the respondent be required to refund fees or pay restitution to the clients in the Caldwell Matter; that the respondent be required to pay appropriate restitution to US Bank in relation to the Glasgow/Estate of Rohn Matter; and that the respondent be required to pay any restitution deemed appropriate in the trust account notification matter; and that the respondent be assessed the costs of this proceeding.

_______

1. US Bank covered the loss to the account by the unauthorized withdrawal.

 

 

Case Number: 02PDJ084

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

MATTHEW S. SMITH.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

August 13, 2003

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Robert A. Millman and Marilyn L. Robertson, both members of the bar.

SANCTION IMPOSED: NINE MONTH SUSPENSION

A trial in this matter was held on February 27 and 28, 2003, before a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley and two Hearing Board Members, Robert A. Millman and Marilyn L. Robertson, both members of the bar. Kim E. Ikeler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Gary D. Fielder represented respondent Matthew S. Smith ("Smith"), who was also present.

At the trial, the People’s exhibits 1 through 4 and 6 through 37, and Smith’s exhibit A were admitted into evidence. Jennifer Reynolds, Roy Reynolds, Jr., Jeanette Ross, and Matthew Smith testified on behalf of the People. Smith testified on his own behalf. The Hearing Board considered the testimony of the witnesses and the exhibits admitted into evidence, the Joint Stipulation of Facts submitted by the parties, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Matthew S. Smith has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court on May 13, 1993, and is registered upon the official records of the Court, attorney registration number 22681. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

During the relevant time period from 1999 to 2001, Smith was a sole practitioner. He handled a large-volume practice with approximately half of the practice devoted to domestic law. Jeanette Ross ("Ross") worked as Smith’s legal assistant from 1996 to 2001. During the period of her employment, Smith put measures in place to assure that all communications, oral and written were brought to his attention. Ross was required to receive, open and sort mail and record telephone messages. Ross would review incoming mail and place matters requiring prompt attention on Smith’s desk with the client file. Less critical communication was placed in sorted stacks for Smith’s review. Smith would then review his mail or telephone messages and instruct Ross what action to take on a given case. It was Smith’s practice to review all court orders. Smith did not utilize computer software to track deadlines in cases. Smith and Ross did, however, manually record dates on two calendars. In addition, Smith allowed Ross to prepare form pleadings, prepare and send correspondence, docket court appearances, communicate with clients by phone, and handle settings with the court. Smith periodically reviewed case files to determine if cases were properly advancing.

Smith did not give Ross permission to sign his name to pleadings. Ross was permitted to write checks on Smith’s operating account and utilize his signature stamp on operating account checks without prior authorization from Smith. Ross testified that she signed Smith’s name to routine pleadings. Ross’s testimony that Smith permitted her to sign his name to pleadings was not credible.

Roy and Jennifer Reynolds were married in 1995. In late 1998, Roy Reynolds, Jr. ("Reynolds") retained Smith to represent him in an uncontested divorce and paid him $800. Reynolds’ address and phone numbers were noted on the client intake sheet.1

On January 27, 1999, Smith filed Reynolds’ Petition for Dissolution of Marriage together with a Summons for Dissolution of Marriage or Legal Separation and Temporary Injunction in Arapahoe County District Court, Case No. 99DR0234. On the same day, the court issued a form order entitled "Domestic Case Management and Delay Reduction Order" requiring that Smith take specified actions by a date certain. The order required Smith to provide a copy to Mrs. Reynolds. Although Smith did not see the order, he was fully aware of the routine procedure in uncontested divorces and knew what deadlines were imposed by the court as a matter of course. Smith did not set a Temporary Orders Hearing or engage in the pre-hearing conference as required by the court’s order. Smith knew that Mrs. Reynolds was pregnant and he felt it necessary to wait for the birth of the child before requesting that the court enter child support orders. Smith did not file a plan for alternative dispute resolution by the stated deadline due to his unconfirmed belief Reynolds’ desired to forestall the divorce.

Thereafter, Mrs. Reynolds, who resided in Kansas, signed a Waiver and Acceptance of Service and Affidavit with Respect to Financial Affairs prepared by Smith, and returned both documents to Smith’s office. Mrs. Reynolds did not obtain counsel at that time.

Between January and May, Smith and Reynolds were in communication. In May 1999, Smith drafted a Settlement Agreement and gave it to Reynolds to review. Reynolds took the Separation Agreement prepared by Smith to Kansas for Mrs. Reynolds to sign, and she signed it on June 16, 1999, had it notarized and gave it back to Reynolds. Reynolds gave it back to Ross shortly thereafter. Reynolds failed to sign it. Smith was unaware that Reynolds had returned the Separation Agreement to his office.

On May 20, 1999, Ross filed a Notice to Set regarding a hearing on Permanent Orders. Ross affixed Smith’s signature to the Notice to Set. Thereafter, she neglected to call the court at the appointed time to set the hearing.

On June 7, 1999, the court issued a form Status Order notifying the parties that the Reynolds case would be dismissed unless Smith took certain specific actions. Smith did not see the Status Order, did not take any of the actions the court directed him to take, and did not provide a copy of the Order to the parties. Smith believed that the case was proceeding on course and that he was waiting for a return of the signed Separation Agreement by the parties.

Ross, in an effort to cover her failure to follow through on the Notice to Set, filed another Notice to Set on June 10, 1999. Smith signed the notice but did not confirm with Ross that she set the hearing. A hearing was not set.

Ross attempted to contact Reynolds but was unable to do so. Smith told Ross to send a letter to Reynolds and advise him that the case may be dismissed if the Separation Agreement was not filed. Smith believed Ross did so, but did not check the file to confirm that she had. Ross did not send a letter to Reynolds.

During July and August 1999, Reynolds attempted to contact Smith several times but was able to only speak to Ross. The calls were not routed to Smith, and Smith was not advised that Reynolds was attempting to reach him.

On August 11, 1999, the court dismissed the case on the grounds that the parties had not complied with the court’s June 7, 1999 Status Order and required Smith to provide a copy of the order to the parties. Smith did not see the order and therefore did not comply with it. Smith continued to believe that Reynolds had lost interest in pursuing the divorce.

In October, Ross contacted the court to set the matter for a Permanent Orders hearing. It was at this point that she discovered the case had been dismissed. She determined to conceal this fact from Smith. On October 25, 1999, without Smith’s knowledge or approval, Ross filed a Notice to Set Uncontested Permanent Orders, an Affidavit With Respect to Financial Affairs and the Separation Agreement both of which Mrs. Reynolds had signed on June 16, 1999. Ross hoped that the court would reopen the case. Nothing further occurred in Case No. 99DR0234.

In November 1999, Reynolds tried to reconcile with his wife, and she declined.

In early 2000, due to the lack of communication with Smith, Reynolds came to Smith’s office to inquire about the status of his case. Reynolds never spoke directly with Smith; rather, he believed at the time that Ross was his lawyer. Reynolds confronted Ross with the court order dismissing the case in August 1999 which he first saw when he reviewed the court file at the courthouse. Ross told Reynolds the court had lost the paperwork and it would be necessary to file a new case. Ross did not tell Smith about Reynolds’ visit to the office.

On March 6, 2000, without Smith’s knowledge or approval, Ross commenced a new action on behalf of Reynolds by filing a Summons for Dissolution of Marriage and Temporary Injunction in Arapahoe County District Court under Case No. 00DR0782. Ross affixed Smith’s signature to the documents. Ross falsely notarized a Waiver and Acceptance of Service and affixed Mrs. Reynolds’ signature without her knowledge or authority.

The next day, without informing Smith, Ross sent a letter to Reynolds enclosing financial affidavits, a Separation Agreement and Child Support Worksheets. After receiving these documents, Reynolds came to the office and was angry with Ross. Ross did not inform Smith that Reynolds had visited the office. Smith believed the case was closed because Reynolds had not signed the Separation Agreement. Smith had no communication with Reynolds in 2000.

On March 20, 2000, Ross filed a Petition for Dissolution of Marriage and affixed Smith’s name to the pleading.

In July 2000, Mrs. Reynolds believed the divorce had been finalized. She contacted Smith’s office and spoke to Ross numerous times and to Smith once, asking for a copy of the decree. Ross informed her she would inquire into the status of the case and get back to her. Later Ross told Mrs. Reynolds she was not sure why there was no decree and that there was some confusion in Smith’s office. After receiving a call from Mrs. Reynolds’ father, Smith asked Ross about the status of the case. Ross said that Reynolds came in to sign the Separation Agreement and that they were waiting to receive a decree from the court. Smith then told Mrs. Reynolds that he was waiting for a decree from the court and that he would get back to her. Smith did not get back to Mrs. Reynolds.

On July 15, 2000, Ross drafted a second Separation Agreement. She affixed the signatures of Smith as counsel for Reynolds, Mrs. Reynolds, and the attorney’s name who shared Smith’s office as counsel for Mrs. Reynolds. Ross notarized the signatures stating that she witnessed the signatures in Adams County, even though Mrs. Reynolds continued to reside in Kansas. Ross filed it with the court. Neither Smith, Mrs. Reynolds nor the attorney who was purportedly signing as counsel for Mrs. Reynolds knew that Ross had affixed their signatures to the document. Ross knew at the time that Smith would not condone her drafting the Separation Agreement and affixing signatures to it.

In August 2000, Ross filed an Affidavit for Decree Without Appearance of Parties with the court. She affixed the signatures of Smith and the attorney who shared Smith’s office as counsel for Mrs. Reynolds without their knowledge or approval. Ross knew the court would rely on the document as containing valid signatures and knew at the time she filed the document that she was making a false statement to the court.

Finally, in the spring on 2001, Mrs. Reynolds hired an attorney in Kansas to commence a new divorce proceeding at a cost of $1,500. On April 3, 2001, Ross sent a letter to Mrs. Reynolds’ attorney in Kansas stating that the dissolution of marriage action in Arapahoe County had not been dismissed. She wrote the letter on behalf of Smith and affixed his signature to the letter without his knowledge. On the same date, she notified the clerk of the district court in Shawnee County, Topeka, Kansas, that the matter had not been dismissed, and again affixed Smith’s name to the letter without his knowledge.

On April 12, 2001, a Decree of Dissolution of Marriage issued from Arapahoe District Court in Case No. 00DR0782. The Magistrate entered the Decree unaware that it had been presented by Ross with falsified signatures of the attorneys and parties.

Shortly thereafter, the divorce proceeding in Kansas was completed and Mrs. Reynolds obtained a decree.

Smith acknowledged that he was responsible for Ross’s actions, but also believed that his actions were based on his belief that Reynolds had decided not to go forward with the divorce. Smith also believed that were it not for Ross’s actions as an "intervening cause," he would have been aware of the court’s orders and of Reynolds’ communication with Ross.

Both parties suffered harm as a result of the delay in obtaining the divorce: Mrs. Reynolds applied for but could not obtain financial aid because she was required to include Mr. Reynolds’ income on her application, and she paid additional attorneys’ fees to resolve the divorce. Mr. Reynolds was required to resolve child support issues in another jurisdiction. Both parties suffered personal inconvenience and stress for over one and one half years.

Smith refunded the $800 Reynolds paid to him.2

II. CONCLUSIONS OF LAW

The Complaint filed in this matter alleges that Smith’s conduct violated Colo. RPC 1.3 (an attorney shall act with reasonable diligence and promptness in representing a client) in claim one; Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) and Colo. RPC 1.4(b)(an attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation) in claim two; Colo. RPC 5.3(a)(a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer) and Colo. RPC 5.3(b)(a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer) in claim three, and Colo. RPC 1.16(d)(upon termination an attorney take steps to the extent reasonably practicable to protect a client’s interests) in claim four.

Colo. RPC 5.3 provides:

With respect to a non-lawyer employed or retained by or associated with a lawyer:

(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of a lawyer;

(b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer . . . ."

Smith entered into an attorney/client relationship with Reynolds, thereby forming an obligation to perform the agreed-upon professional services, including obtaining a divorce for Reynolds through the entry of permanent orders. By agreeing to perform the requested services, Smith inherently agreed that he would perform the services in accordance with the Colorado Rules of Professional Conduct. The Complaint alleges that Smith did not have measures in place which would give reasonable assurance that Ross’s conduct was compatible with the obligations of a lawyer.3 The evidence presented, however, revealed that Smith did have measures in place to reasonably assure that all communications with his office were promptly brought to his attention and that Ross would conduct herself in such a manner as was compatible with his professional responsibilities. Ross didn’t follow those measures. Since such measures were in place, the charged violation of Colo. RPC 5.3(a) is dismissed.

The charged violation of Colo. RPC 5.3(b) requires a different consideration. Colo. RPC 5.3(b) focuses upon whether the attorney having direct supervisory authority over a non-lawyer adequately supervises that individual. Smith had direct supervisory authority over Ross in this case. He delegated substantial responsibility to her and failed to review her work. Indeed, although the client file was in his office for the entire period of time the events were unfolding, he did not review that file to determine if Ross was, in fact, attending to the case as she described to him. Smith’s failure to adequately supervise Ross allowed her to conceal the court’s orders requiring that Smith take specific action on Reynolds’ behalf, including setting a temporary orders hearing, engaging in alternative dispute resolution or informing the court that none was necessary, calendaring all deadlines set by the court, confirming that Smith’s office was in contact with the client, and confirming the correct status of the case. A simple examination of the Reynolds file would have disclosed Ross’s activities and alerted Smith of the problems developing in the case.

Smith’s failure to adequately supervise Ross resulted in her engaging in the unauthorized practice of law. Smith’s acting as Ross’s direct supervisor but failing to fulfill his professional obligations with regard to that supervision violated Colo. RPC 5.3(b). Allowing a non-lawyer assistant to engage in the unauthorized practice of law by failing to supervise the non-lawyer is grounds for discipline. People v. Reynolds, 933 P.2d 1295, 1298-99 (Colo. 1997); People v. Stewart, 892 P.2d 875, 877-78 (Colo. 1995).

Smith argues that but for Ross’s failing to advise him of Reynolds’ attempts to contact him, her failing to provide him with the court’s orders, and her failing to advise him that the case had been dismissed, he would not have neglected the client’s case. Smith’s argument is without merit.

Other jurisdictions have examined this issue. The Restatement (Third) of Law Governing Law. § 11 (2003) concerning a lawyer’s duty of supervision, provides:

Supervision is a general responsibility of a principal (see Restatement Second, Agency § 503, Comment f, & id. §§ 507 & 510). A . . . lawyer with authority to direct the activities of another lawyer or nonlawyer employee of the firm is such a principal. Appropriate exercise of responsibility over those carrying out the tasks of law practice is particularly important given the duties of lawyers to protect the interests of clients and in view of the privileged powers conferred on lawyers by law. The supervisory duty, in effect, requires that such additional experience and skill be deployed in reasonably diligent fashion.

Lack of awareness of misconduct by another person, either lawyer or nonlawyer, under a lawyer’s supervision does not excuse a violation of this Section. To ensure that supervised persons comply with professional standards, a supervisory lawyer is required to take reasonable measures, given the level and extent of responsibility that the lawyer possesses. Those measures, such as an informal program of instructing or monitoring another person, must often assume the likelihood that a particular lawyer or nonlawyer employee may not yet have received adequate preparation for carrying out that person’s own responsibilities.

In State ex rel. Oklahoma Bar Ass’n v. Braswell, 663 P.2d 1228, 1231-32 (Okla.1983) the attorney raised the same argument as Smith, intimating that losing track of the client’s case may have been occasioned by the inaction or neglect of his law clerk. The Oklahoma Supreme Court stated "[w]hile delegation of a task entrusted to a lawyer is not improper, it is the lawyer who must maintain a direct relationship with his client, supervise the work that is delegated and exercise complete, though indirect, professional control over the work product . . . . [t]he work of lay personnel is done by them as agents of the lawyer employing them. The lawyer must supervise that work and stand responsible for its product." See, e.g., In re Morin, 878 P.2d 393, 401 (Or.1994) (lawyer responsible for unauthorized practice of law by paralegal where, following lawyer’s initial warning to paralegal, lawyer took no further steps to enforce instruction or to test employee’s ability to identify inappropriate activities); In re Bonanno, 617 N.Y.S.2d 584 (N.Y.App.Div.1994)( attorney reprimanded respondent for his conduct in the supervision of a non-attorney employee and in the management of his law office in violation of the rules of professional conduct of New Jersey prohibiting gross neglect, aiding the unauthorized practice of law, and failure to supervise adequately a non-attorney employee); Florida Bar v. Rogowski, 399 So.2d 1390, 1391 (Fla.1981)(noting that an attorney’s nonlawyer personnel are agents of the attorney and attorney is responsible for seeing that the agents’ actions do not violate the Code of Professional Responsibility); State v. Barrett, 483 P.2d 1106, 1110 (Kan.1971)(noting that the work done by secretaries and other lay persons is done as agents of the lawyer employing them and the lawyer must supervise their work and be responsible for their work product or the lack thereof).

After initially pursuing the Reynolds matter and drafting a separation agreement, Smith lost contact with Reynolds and failed to inform himself of the status of the case. He failed to comply with the court’s January 27, 1999 and June 7, 1999 orders. Even if — as Smith asserts — he did not see the court orders and therefore could not comply with them, he was fully aware of the procedures and deadlines set forth by the court in a divorce proceeding. Smith failed to make every effort to locate the client and acquire his signature on the Separation Agreement, and failed to take adequate measures to confirm the status of the case. Instead, he relied on Ross to oversee the file. Smith’s failing to take the required steps to resolve the Reynolds matter constitutes neglect in violation of Colo. RPC 1.3.

Although Smith’s conduct clearly constitutes neglect, it does not, however, rise to the level of abandonment. To find abandonment rather than mere neglect, the evidence must objectively indicate that counsel deserted, rejected, and/or relinquished his professional responsibilities. In the present case, although Smith should have taken measures to locate Reynolds, Ross did not inform Smith that Reynolds had come to the office inquiring about the status of the case. Smith continued to believe that Reynolds had lost interest in pursuing the divorce. Ross fostered Smith’s lack of awareness of Reynolds’ numerous attempts to contact him. He did not, therefore, desert, reject or relinquish his professional responsibilities. Smith’s actions did not terminate the attorney client relationship with Reynolds and the provisions set forth in Colo. RPC 1.16(d) were not triggered. Accordingly, claim four alleging a violation of Colo. RPC 1.16(d) is dismissed.

Initially, for approximately the first four months of representation, Smith stayed in adequate contact with Reynolds and kept him informed of the case status. Thereafter, however, for a period of a year and a half, Smith violated Colo. RPC 1.4(a) by failing to keep Reynolds reasonably informed about the status of the divorce proceeding. Smith violated Colo. RPC 1.4(b) by failing to explain the procedural status of the case to Reynolds to the extent reasonably necessary to permit the client to make informed decisions. His failure to inform himself of the status of the case does not abrogate his responsibility to keep the client reasonably informed.

Smith’s conduct regarding the Reynolds matter resulted in injury to Reynolds: his divorce matter was dismissed, both parties suffered considerable distress not knowing whether they were divorced over a considerable period of time, and Reynolds must suffer the inconvenience of pursuing his legal rights in another jurisdiction.

III. IMPOSITION OF SANCTION

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") are the guiding authority for electing the appropriate sanction to impose for lawyer misconduct. ABA Standard 4.42 (b) provides that suspension is generally appropriate when "a lawyer engages in a pattern of neglect and causes injury or potential injury to a client." Because Smith’s continuing failure to properly supervise Ross in the Reynolds case covered a period of nearly twenty-seven months, his conduct established a pattern of neglect. A six-month suspension is consistent with other disciplinary measures ordered by the Supreme Court. See People v. Williams, 824 P.2d 813, 815 (Colo. 1992) (attorney suspended for six months for continued and chronic neglect of three separate legal matters with requirement of reinstatement); People v. Barber, 799 P.2d 936, 941 (Colo. 1990)(attorney suspended for six months for handling legal matter without adequate preparation, neglect of legal matter, failure to seek lawful objectives of client and gross negligence); People v. Larson, 716 P.2d 1093 (Colo.1986) (neglect of entrusted legal matter and failure to carry out contract of employment warrants six-month suspension); People v. Bugg, 200 Colo. 512, 616 P.2d 133 (1980) (failure to process estate, to file action, and to communicate with clients, when considered with the mitigating factor of personal problems, warrants six-month suspension).

Factors in aggravation and mitigation were considered pursuant to ABA Standards 9.22 and 9.32 respectively. In mitigation, Smith does not have a prior disciplinary record, see id at 9.32(a); he did not have a dishonest or selfish motive, see id. at 9.32(b); Smith made a timely, good faith effort to make restitution by returning to Reynolds his retainer, and endeavored to assist in rectifying the filing of multiple divorce cases, see id at 9.32(d), and Smith has made a full and free disclosure and has demonstrated a cooperative attitude toward the disciplinary proceedings, see id. at 9.32(f). In aggravation, Smith declined to acknowledge the wrongful nature of his conduct. He testified that he did not believe he did anything wrong in the matter. See id. 9.22(g). Moreover, the length of time involved in his neglect of the Reynold’s case and the supervision of Ross established a pattern of misconduct. See id. 9.22(c).

In this case, Smith’s lack of recognition of his wrongdoing in combination with the substantial damage imposed upon the administration of justice by the filing and processing of an unauthorized dissolution of marriage proceeding as well as the injury suffered by his client arising from his neglect and failure to supervise a non-lawyer employee, suggests that a period of suspension greater than six months is required. The Hearing Board finds that a nine-month suspension is appropriate under both Colorado law and the ABA Standards.

IV. ORDER

It is therefore ORDERED:

1. MATTHEW S. SMITH, attorney regulation number 22681 is suspended from the practice of law for a period of nine months, effective thirty-one days from the date of this Order.

2. Pursuant to C.R.C.P. 251.32, Smith shall pay the costs in conjunction with this matter. Complainant shall file a Statement of Costs within fifteen (15) days of the date of this Order; Smith shall have ten (10) days thereafter to file a Response.

_______

1. The Reynolds file disappeared when a new management company took over Smith’s office.

2. The second divorce action filed by Ross was eventually dismissed upon Smith’s motion.

3. It is not clear that the provisions of Colo. RPC 5.3(a), referring only to partners in law firms, is applicable to a lawyer practicing as a solo practitioner. That issue, however, was not argued before the Hearing Board and is not decided here. For purposes of this decision we assume, without deciding, that Colo. RPC 5.3(a) applies to a solo practitioner.

 

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