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TCL > November 2003 Issue > Disciplinary Opinions

The Colorado Lawyer
November 2003
Vol. 32, No. 11 [Page  139]

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From the Courts
Colorado Disciplinary Cases

Disciplinary Opinions

SUPREME COURT, STATE OF COLORADO
ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

600 17th Street, Suite 510-South
Denver, Colorado 80202
Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

EDDIE G. DISTEL

Case Number: 03PDJ005

 

REPORT, DECISION AND IMPOSITION OF SANCTION

 

Opinion by Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members John E. Hayes, a member of the bar, and B. LaRae Orullian, a representative of the public.

SANCTION IMPOSED: ATTORNEY DISBARRED

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on July 24, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley, and two Hearing Board Members, John E. Hayes, a member of the bar, and B. LaRae Orullian, a representative of the public. Kim E. Ikler, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Eddie G. Distel, the respondent, ("Distel") did not appear in person or by counsel.

The People filed a Complaint in this matter on January 16, 2003. The Citation and Complaint were sent by regular and certified mail to Distel on the same date. The People filed a Proof of Service on February 24, 2003, indicating that the Proof of Service shows that the Citation and the Complaint were sent to both respondent’s last known address. Service was in accord with C.R.C.P. 251.32(b) and is sufficient. Distel failed to file an Answer or otherwise respond to the Complaint.

On February 24, 2003, the People moved for default on the claims set forth in the Complaint. Copies of the Motion for Default were sent to Distel at his last known address. He did not respond to the Motion for Default.

On April 10, 2003, the PDJ granted the Motion for Default as to the facts set forth in the Complaint, which were deemed admitted, and as to the claims set forth in the Complaint, which were deemed established. The PDJ’s order entering default was sent to Distel at his last known address.

A Sanctions Hearing was held on July 24, 2003, before the Hearing Board. The People’s exhibit 1, the Judgment and Order of the Supreme Court of Arizona, was admitted into evidence. The Hearing Board considered the exhibits, 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.

  1. FINDINGS OF FACT

Eddie G. Distel has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 16, 1974, and is registered upon the official records of the Supreme Court, registration number 05727. He is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

On December 4, 2002, the Supreme Court of Arizona issued an order disbarring Distel from the practice of law in that state. The Supreme Court of Arizona found, among other misconduct, that Distel engaged in knowing conversion of client funds, trust account violations and neglect. In addition, Distel knowingly made misstatements of material fact to a tribunal. A copy of that decision is attached hereto as exhibit "A."

  1. CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION
  2. The Complaint in this action seeks imposition of the same discipline under the reciprocal discipline provisions of C.R.C.P. 251.21. The same discipline that was imposed in the foreign jurisdiction shall be imposed in Colorado unless certain exceptions exist. People v. Calder, 897 P.2d 831, 832 (1995).

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

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


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

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

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

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

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

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

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

     

     

  3. ORDER

It is therefore ORDERED:

              1. EDDIE G. DISTEL, attorney registration 05727, is DISBARRED from the practice of law in the State of Colorado effective thirty – one days from the date of this order and his name shall be stricken from the roll of attorneys licensed to practice in this state.
              2. Eddie G. Distel 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.

 

 

 

 

DATED THIS 24th DAY OF JULY, 2003.

(SIGNED)
____________________________________
ROGER L. KEITHLEY
PRESIDING DISCIPLINARY JUDGE

 

 

(SIGNED)

____________________________________
JOHN E. HAYES

HEARING BOARD MEMBER

 

(SIGNED)

____________________________________
B. LARAE ORULLIAN

HEARING BOARD MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT A

 

 

 

SUPREME COURT OF ARIZONA

IN THE MATTER OF A SUSPENDED MEMBER ) Supreme Court

OF THE STATE BAR OF ARIZONA ) No. SB- 02-0131-D

)

) Disciplinary Commission

) Nos. 97-2568, 98-1281,

EDDIE G. DISTEL, ) 98-1565, 99-0262, 99-0695,

Bar No. 014771 ) 99-1439, 99-1613, 00-0053,

) 00-0352, 00-1149, 00-1681

)

) JUDGMENT AND ORDER

________________________________________________ )

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

IT IS ORDERED, ADJUDGED AND DECREED that EDDIE G. DISTEL, a suspended member of the State Bar of Arizona, is hereby disbarred from the practice of law, effective the date of this Judgment and Order, for conduct in violation of his duties and obligations as a lawyer, as disclosed in the commission report attached hereto as Exhibit A.

IT IS FURTHER ORDERED that EDDIE G. DISTEL shall pay restitution in the following amounts to the following individuals:

Rafael Suarez $ 3,100.00

Monika Halterman $ 3,000.00

Sylvia Grijalva $ 5,000.00

Sharan Morris $ 729.76

TOTAL $11,829.76

IT IF FURTHER ORDERED that Respondent shall pay in full any and all claims paid by the Client Protection Fund, not to exceed the maximum permissible payment of $100,000.

IT IF FURTHER ORDERED that respondent shall comply with all the provisions of Rule 63, Rules of the Supreme Court of Arizona, including, but not limited to, Rule 63(a), which requires that Respondent notify all of his clients, within ten (10) days from the date hereof, of his inability to represent them and that he should promptly inform this Court of his compliance with this Order as provided in Rule 63(d).

IT IF FURTHER ORDERED that EDDIE G. DISTEL shall pay the costs and expenses of these proceedings in the amount of $6,645.45, together with interest at the legal rate from the date of this judgment.

DATED this 4th day of December 2002.

 

NOEL K. DESSAINT, Clerk

IN THE MATTER OF A SUSPENDED MEMBER ) Supreme Court

OF THE STATE BAR OF ARIZONA ) No. SB- 02-0131-D

)

) Disciplinary Commission

) Nos. 97-2568, 98-1281,

EDDIE G. DISTEL, ) 98-1565, 99-0262, 99-0695,

Bar No. 014771 ) 99-1439, 99-1613, 00-0053,

) 00-0352, 00-1149, 00-1681

)

) DISCIPLINARY COMMISSION

________________________________________________ ) REPORT

This matter came before the Disciplinary Commission of the Supreme Court of Arizona on July 3, 2002, pursuant to Rule 53(d), Ariz. R.S. Ct., for consideration of the Hearing Officer’s findings of fact, conclusions of law and recommendation filed April 22, 2002, providing for disbarment, restitution and costs.

Decision

The Commission’s standard of review is set forth in Rule 53(d)2, which states that the Commission reviews questions of law de novo. In reviewing findings of fact made by a hearing officer, the Commission applies a clearly erroneous standard.

Therefore, having found no findings of fact clearly erroneous the eight members of the Commission unanimously recommended adopting and incorporating by reference the Hearing Officer’s findings of fact, conclusions of law and recommendation for disbarment, restitution in the following amounts to the following individuals.

Rafael Suarez $ 3,100.00
Monika Halterman $ 3,000.00
Sylvia Grijalva $ 5,000.00
Sharan Morris $ 729.76
TOTAL $11,829.76

and costs of these disciplinary proceedings.

RESPECTTFULLY SUBMITTED THIS 13th day of August 2002.

C. Alan Bowman, Chair

Disciplinary Commission

Original filed with the Disciplinary Clerk

this 13th day of August 2002.

 

IN THE MATTER OF A SUSPENDED MEMBER ) Supreme Court

OF THE STATE BAR OF ARIZONA ) No. SB- 02-0131-D

)

) Disciplinary Commission

) Nos. 97-2568, 98-1281,

EDDIE G. DISTEL, ) 98-1565, 99-0262, 99-0695,

Bar No. 014771 ) 99-1439, 99-1613, 00-0053,

) 00-0352, 00-1149, 00-1681

)

) FINDINGS OF FACT,

________________________________________________ ) CONCLUSIONS OF LAW AND

RECOMMENDATION OF HEARING

OFFICER

A hearing having been held on December 18, 2001, at which time Respondent, Eddie G. Distel, appeared on his own behalf, and the State Bar of Arizona appeared through Bar Counsel, Shauna R. Miller, Esq. The Hearing Officer, having heard the evidence and considered the documentary evidence submitted, makes the following Findings of Fact, Conclusions of Law, and Recommendation.

Procedural History

This disciplinary matter was initiated by the State Bar's filing of a seven-count Complaint on October 27, 1999. Respondent was suspended from the practice of law on an interim basis on June 12, 2000. An Amended Complaint, adding four additional counts, was filed on August 7, 2000. Lastly, a separate two-count Complaint was filed on June 8, 2001. The matters were consolidated by Order of the Hearing Officer on November 8, 2001. Respondent has been involved in this formal disciplinary proceeding since the original Complaint was filed on October 27, 1999. Respondent did not respond to that Complaint until after an Application for Entry of Default was filed on December 1, 1999. On August 1, 2000, the State Bar's Motion to Amend the original Complaint was granted. Again, Respondent did not file an Answer to the Amended Complaint until after an Application for Entry of Default was filed.

The State Bar filed a Motion to Compel Discovery on February 6, 2001, to compel Respondent to file a disclosure statement in compliance with Arizona Rules of Civil Procedure, Rule 26.1. Only thereafter did Respondent file a disclosure statement.

Stipulation

Prior to the commencement of testimony, Respondent stated that he did not contest the allegations contained in the State Bar's Amended Complaint dated August 8, 2000, with the exception of the allegations contained in Counts Three and four ("the Suarez matter"). The allegations of Counts One, Two, Five, Six, Seven, Eight, Nine, Ten, and Eleven are deemed admitted. Respondent also does not contest the allegations contained in Counts One ("Sylvia Grijalva") and Two ("Sharan Morris") of the June 8, 2001, Complaint. These allegations are also deemed admitted.

 

FINDINGS OF FACT

    1. Respondent was admitted to practice law in Arizona on October 22, 1994.
    2. COUNT ONE (97-2568)

      (HANNA)

      Findings of Fact: Count One

    3. Respondent filed a notice of appeal with the Court of Appeals, Division 2, on or about June 10, 1997, on behalf of his client Ms. Jill Hanna.
    4. On or about September 19, 1997, the Court of Appeals dismissed the appeal for non-payment of the filing fee.
    5. Respondent filed a motion to reinstate, which was granted on or about October 17,
    6. 1997.

    7. The order of reinstatement stated, inter alia, that Respondent's opening brief was to be filed within thirty (30) days from October 17, 1997, the date of the order.
    8. On or about November 13, 1997, Respondent filed a stipulation requesting that the time to file the opening brief be extended until December 1, 1997.
    9. On or about November 18, 1997, the Court of Appeals issued an order denying the extension, but leave was given to re-file if there was good cause for requesting the extension.
  1. Respondent did not re-file the stipulation requesting an extension to file the opening brief.
  2. Respondent did not file the opening brief within thirty (30) days of the appellate court's October 17, 1997, order.
  3. On or about December 3, 1997, opposing counsel filed a motion to dismiss the appeal.
  4. The appellate court granted opposing counsel's motion to dismiss on or about December 29, 1997, noting that there had been no opposition to the motion.
  5. On or about January 20, 1998, Respondent filed a motion to reinstate the appeal.
  6. One reason Respondent gave for reinstating the appeal was that the loss of the original filing fee caused duplicate and inconsistent orders to be issued by the appeals clerk, resulting in confusion over which orders to rely on or comply with.
  7. One reason Respondent gave for reinstating the appeal was that his requests to the court reporter for transcripts of the lower court proceedings had gone unheeded.
  8. On or about March 10, 1998, the appellate court denied the motion to reinstate the appeal.

COUNT TWO (98-1565)

(OPPMAN)

Findings of Fact: Count Two

    1. William Oppman was a defendant in the civil contract action Wholesale Auto Exchange vs. William Oppman, et al, No. 314575, Pima County Superior Court. The relief sought in the civil action met the conditions for compulsory arbitration and the matter was assigned to an arbitrator.
    2. The complaint filed on August 13, 1996, by Wholesale Auto was verified and had copies of promissory notes attached as exhibits.
    3. Wholesale Auto filed a motion for summary judgment, which was supported by the affidavit of Wholesale Auto's personal representative who had personal knowledge of the facts and transactions in the matter.
    4. Respondent was aware of the subject matter of the complaint and had been discussing the matter with Mr. Oppman from on or about February 17, 1997.
    5. On or about April 11, 1997 the arbitrator granted Wholesale Auto's motion for summary judgment and entered judgment against Mr. Oppman.
    6. William Oppman formally retained Respondent on April 18, 1997.
    7. On or about April 23, 1997, Respondent filed a motion for reconsideration on behalf of Mr. Oppman stating that the Oppmans had a good faith and meritorious defense to the complaint.
    8. The motion for reconsideration did not state what the "good faith and meritorious defense to the complaint" was.
    9. The motion for reconsideration was denied on or about May 22, 1997.
    10. On or about June 10, 1997, Respondent filed an appeal from the arbitration award and a motion to set for trial.
    11. On or about September 12, 1997, Wholesale Auto filed a motion for sanctions and summary judgment.
    12. On or about September 25, 1997, Respondent prepared and filed a response to the motion for summary judgment.
    13. The response to the motion for summary judgment was not supported by affidavit.
    14. The response to the motion for summary judgment did not contain any evidence in opposition to plaintiffs motion.
    15. On or about September 25, 1997, Respondent prepared and served on plaintiffs counsel Mr. Oppman's 26.1 disclosure statement.
    16. The 26.1 disclosure statement prepared by Respondent did not contain statements of fact in support of the legal theories set forth and did not identify any witnesses or exhibits.
    17. The 26.1 disclosure statement prepared by Respondent was not verified.
    18. A hearing on the summary judgment motion was held on October 14, 1997.
    19. Respondent did not advise Mr. Oppman about the hearing on the summary judgment motion. Neither Respondent nor Mr. Oppman appeared at the hearing.
    20. The motion for summary judgment was granted on or about October 20, 1997, and Mr. Oppman was sanctioned $500.00.
    21. Respondent filed a motion for reconsideration on or about November 6, 1997, in which he argued, inter alia, that he had not received notice of the hearing on Wholesale Auto's motion for sanctions and summary judgment.
    22. The court denied the motion for reconsideration on or about November 21, 1997.
    23. On or about January 9, 1998, judgment was entered against Mr. Oppman in the amount of $6,608.72 for damages, $149.25 for accrued court costs and $2,202.66 for attorney fees.
    24. Prior to the summary judgment, Mr. Oppman asked Respondent about filing a bankruptcy. Respondent advised Respondent that a bankruptcy filing would stay collection procedures and other court actions pending disposition by the bankruptcy court.
    25. Respondent's secretary/paralegal, Sandy Wright, prepared Chapter 7 bankruptcy forms for Mr. Oppman while Respondent was representing Mr. Oppman in the civil contract action brought by Wholesale Auto.
    26. Ms. Wright also drafted a motion to continue, a notice of hearing and motion for approval of sale for Mr. Oppman to file pro Se.
    27. Respondent did not review or revise the bankruptcy papers. Respondent did not supervise Ms. Wright in any manner with regard to preparation of the bankruptcy papers, the motion to continue, the notice of hearing, or the motion for approval of sale.
    1. Respondent failed to consult with his client and keep him reasonably informed about the representation. Respondent failed to explain matters to the extent reasonably necessary so his client could make informed decisions. Among other things, Respondent failed to consult with Mr. Oppman regarding the Rule 26.1 disclosure statement, failed to inform Mr. Oppman about the hearing on the motion for summary judgment scheduled for October 14, 1997, and failed to inform or consult with Mr. Oppman about the motion for reconsideration prior to filing said motion.
    2. Respondent did not have any basis for appealing the arbitrator's decision that was not frivolous.
    3. Respondent's purpose in appealing the arbitrator's judgment was to frustrate Wholesale Auto's attempt to receive rightful redress and was solely for delay.
    4. Respondent knowingly made a false statement of material fact to the court when he filed the motion for reconsideration stating that he had not received notice of the hearing on the motion for summary judgment.

COUNT THREE (99-0262)

(SUAREZ)

Findings of Fact: Count Three

    1. Respondent represented Rafael Suarez in an Equal Employment Opportunity Commission (hereinafter the EEOC) matter.
    2. Respondent sent a letter to the EEOC on December 7, 1995, advising that Mr. Suarez had asked Respondent to inquire into Mr. Suarez' case. (Exhibit 29.)
    3. Respondent sent a facsimile to the EEOC on July 29, 1996, asking that the EEOC send the right to sue letter to Respondent's fax number. (Exhibit 30.)
    4. Respondent sent a letter to the EEOC on July 30. 1996, advising that Respondent was representing Mr. Suarez in the matter that the EEOC was investigating. (Exhibit 31.)
    5. Respondent sent a letter to the EEOC on December 18, 1996, again advising of the representation and asking that the EEOC provide Respondent with all information or evidence that the EEOC investigation had produced. (Exhibit 32.)
    6. Respondent received the notice of the right-to-sue letter from the EEOC.
    7. Respondent advised Mr. Suarez that the 90-day deadline to file his complaint after receiving the right-to-sue letter was tolled while Mr. Suarez was incarcerated.
    8. Respondent did not file a complaint on behalf of Mr. Suarez within the statute of limitations after receiving the right-to-sue letter. (Exhibit 33)

COUNT FOUR (99-0262)

(SUAREZ)

Findings of Fact: Count Four

    1. Respondent represented Rafael Suarez in a criminal matter.
  1. Mr. Suarez paid Respondent a $3,800.00 retainer to represent him in the criminal matter.
  2. Respondent refunded $900.00 to Mr. Suarez from the original $3,800.00 retainer.
  3. Respondent misrepresented to the State Bar that he refunded an additional $1,500.00 to Mr. Suarez from the original $3,800.00 retainer.
  4. Respondent knowingly made a false statement of material fact to the State Bar when he stated that he had refunded an additional $1,500.00 to Mr. Suarez from the original $3,800.00 retainer.
  5. Respondent refunded $900.00 to Mr. Suarez so Mr. Suarez could make improvements on the property so it could be sold and/or deeded to Respondent to pay Respondent's fees in the criminal matter.
  6. Respondent misrepresented to the State Bar that he refunded the $900.00 to Mr. Suarez to provide food and clothing for Mr. Suarez' family.
  7. Respondent misrepresented to the State Bar that he did not ask Mr. Suarez to sell his property or execute any deeds to pay Respondent's attorney's fees.
  8. Respondent did not properly prepare for Mr. Suarez' trial because Respondent was displeased that Mr. Suarez had not fulfilled his payment obligations to Respondent.
  9. Respondent filed a motion to withdraw in the criminal matter several weeks before trial noting that Mr. Suarez had failed to fulfill his payment obligations to Respondent and that continued representation of Mr. Suarez would result in an unreasonable financial burden on Respondent. (Exhibit 35.)
  10. The court denied Respondent's motion and advised Respondent that if Mr. Suarez was indigent he could submit proof of indigency and the court would consider ordering the county to pay for Mr. Suarez' costs. (Exhibit 36.)
  11. Respondent did not submit proof of Mr. Suarez' indigency.
  12. Respondent coerced Mr. Suarez into signing a letter stating that Mr. Suarez had discharged Respondent.
  13. Respondent filed a motion of June 26, 1997, asking the court to reconsider its ruling on the motion to withdraw on the basis that Respondent had been discharged by Mr. Suarez.
  14. Mr. Suarez filed a pro se motion of June 27, 1997, asking the court to appoint Respondent as private counsel.
  15. The court would not allow Respondent to withdraw.
  16. Respondent made a false statement of material fact to the court in the motion for reconsideration when he led the court to believe that Mr. Suarez had voluntarily discharged him.
  17. Mr. Suarez was convicted in the criminal matter and Respondent agreed to represent him in his appeal for $2,000.00.
  18. Respondent received a partial retainer of $500.00 from Mr. Suarez for the appeal.
  19. Respondent failed to timely file a notice of appeal on behalf Mr. Suarez.

 

COUNT FIVE (98-1281)

(TRUST ACCOUNT)

Findings of Fact: Count Five

    1. On June 11, 1998, Respondent wrote a check on his Arizona State Bar Foundation Trust Account, in payment of Respondent's State Bar convention fees.
    2. Check number 1454 was drawn on Respondent's Norwest Bank client trust -account, account number 1220-5278, in the amount of $205.00.
    3. Respondent stated in a July 21, 1998, letter to the State Bar that the $205.00 check represented earned fees that had not been transferred to his operating account.
    4. Respondent failed to produce trust account records to verify that the $205.00 check represented earned fees. Specifically, Respondent could not produce a copy of a client ledger card showing the origin of fees that were earned, or a copy of his general journal reflecting the transfer of the earned fees into his operating account.
    5. Respondent failed to keep client and/or third party property separate from his own property.

COUNT SIX (99-0695)

(TRUST ACCOUNT)

Findings of Fact: Count Six

Respondent wrote check number 1368 to Desert Endodontics, Ltd. on his Arizona State Bar Foundation Trust Account on August 25, 1997.

    1. Check number 1368 was drawn on Respondent's Norwest Bank client trust account, account number 1220-5278, in the amount of $470.00.
    2. Thomas J. Cipriano, D.D.S. dba Desert Endodontics, Ltd. attempted to negotiate check number 1368, however the check was not honored because Respondent had insufficient funds in his trust account to cover the check.
    3. Check number 1368 was issued to cover the dental expenses of Travis Distel, who is not Respondent's client.
    4. Respondent failed to keep client and/or third party property separate from his own property.

COUNT SEVEN

(TRUST ACCOUNT)

Findings of Fact: Count Seven

    1. Pursuant to the investigation arising out of file nos. 97-2568 and 98-1281, the Director of the Law Office Management Assistance Program, Diane Ellis, met with Respondent to perform a pre-diversion assessment of Respondent's law office
    2. Ms. Ellis met with Respondent on February 1, 1999, to review, among other things, Respondent's available trust account records, which consisted of the checkbook and one bank statement.
    3. Respondent informed Ms. Ellis that most of the pre-1999 records were offsite and Ms. Ellis was not able to ascertain whether complete trust account ledgers were being maintained.
    4. During the February 1, 1999, meeting, Ms. Ellis noted that expenditures were made from the trust account that were inappropriate. The expenditures were not identified as pertaining to a specific client and were not the type of expenditure that should be made from a trust account. Examples include, but are not limited to, the following: checks made payable to Respondent or to cash; checks made payable to Sandi Wright or S. Wright; a check made payable to a restaurant; checks made payable to an educational institution; checks made out to pay for personal expenses.
    5. During the February 1. 1999 meeting. Ms. Ellis noted that at various periods of time the check register did not have a running balance.
    6. During the February 1, 1999 meeting, Ms. Ellis was informed that trust account checks had been returned because the trust account had insufficient funds in it to honor them.
    7. Ms. Ellis scheduled another appointment with Respondent to review the trust account records that she asked Respondent to provide for review and which he purported to have offsite. Respondent failed to provide the documents that Ms. Ellis asked Respondent to provide for review.

V

COUNT EIGHT (99-1439)

(TRUST ACCOUNT)

Findings of Fact: Count Eight

    1. The State Bar of Arizona received two overdraft notices from Norwest Bank, one dated July 15, 1999, and one dated July 23. 1999, relating to Respondent's client trust account.
    2. The July 15, 1999 overdraft notice indicated that check number 2045 in the amount of $800.00 was presented for payment on July 21, 1999. Norwest Bank honored the check, leaving Respondent with a negative balance of $244.19 in his client trust account.
    3. The July 23, 1999 overdraft notice indicated that check number 2046 in the amount of $130.00 was presented for payment on July 23, 1999. Norwest Bank honored the check, leaving Respondent with a negative balance of $234.19 in his client trust account.
    4. The State Bar's staff examiner sent Respondent a charging letter on August 17,

1999 requesting that Respondent file a written response regarding the overdraft notices and that he attach all supporting documentation.

    1. Respondent replied on August 31, 1999 and stated that he had requested an "interim statement" from the back and would respond further to the State Bar's letter when it was received.
  1. Respondent sent a supplemental response to the State Bar on September 9, 1999 stating that a $500.00 deposit made on July 26, 1999, had been noted in his account records as having been deposited on July 20, 1999.
  2. The State Bar requested specific trust account records from Respondent on September 16, 1999, and again on October 7, 1999. Respondent replied on October 18, 1999 stating he had requested information from his bank and would forward it to the State Bar when it was received, along with the other information that the State Bar had requested.
  3. On October 21, 1999 Respondent's assistant called the State Bar and asked for an extension of time to submit the trust account records. Respondent was given until November 23, 1999. To date Respondent has failed to submit any trust account records or communicate with bar counsel concerning this matter.
  4. Respondent failed to hold client funds separate from his own funds.
  5. Respondent failed to appropriately safeguard client funds.
  6. Respondent failed to maintain complete records of the handling, maintenance and disposition of all funds coming into Respondent's possession.
  7. Respondent failed to maintain complete records of all funds of a client coming into his possession and failed to render appropriate accounts to clients regarding them.
    1. Respondent has failed to respond to a lawful demand for information, has failed to cooperate with the State Bar, and has failed to furnish information to or respond promptly to a request from bar counsel.
    2. COUNT NINE (00-0053)

      (TRUST ACCOUNT)

      Findings of Fact: Count Nine

    3. The State Bar received an overdraft notice from Norwest Bank on or about January 2000, relating to Respondent's client trust account.
    4. The overdraft notice indicated that check number 2062 in the amount of $106.00 was presented for payment of December 23, 1999. Norwest Bank honored the check, leaving Respondent with a negative balance of $45.16 in his client trust account.
    5. The State Bar's staff examiner sent Respondent a charging letter on January 13,
    6. 2000, requesting that Respondent file a written response regarding the overdraft notice and that he attach all supporting documentation. Respondent failed to respond to the State Bar's request.

COUNT TEN (00-0352)

(TRUST ACCOUNT)

Findings of Fact: Count Ten

    1. The State Bar received an overdraft notice from Norwest Bank on or about March
    2. 2000, relating to Respondent's client trust account.

    3. The overdraft notice indicated that check number 2009 in the amount of $106.00 was presented for payment of September 14, 1999. Norwest Bank honored the check, leaving Respondent with a negative balance of $38.19 in his client trust account.
    4. The State Bar's staff examiner sent Respondent a charging letter on March 3,

2000, requesting that Respondent file a written response regarding the overdraft notice and that he attach all supporting documentation. Respondent failed to respond to the State Bar's request.

COUNT ELEVEN (99-1613)

(HALTERMAN)

Findings of Fact: Count Eleven

    1. Respondent represented Monika A. Halterman in a domestic relations post-decree proceeding, having been asked by Ms. Halterman to substitute as her counsel of record in the matter. Ms. Halterman signed a fee agreement with Respondent on August 7. 1998.

112. Prior to August 7, 1998, attorney Susan Schauf represented Ms. Halterman in the

post-decree proceedings. On July 30, 1998, a hearing was held on a Petition to Show Cause/Contempt that had been filed on behalf of Ms. Halterman's ex-husband. The court imposed sanctions against Ms. Halterman and instructed that any objections to the court's findings had to be filed no later that August 21, 1998.

    1. Ms. Halterman asked Respondent to accomplish four objectives for her; to immediately file an objection to the court's July 30. 1998 minute entry, to file a motion requesting that paragraph one of the July 30, 1998 minute entry be amended, to file a motion requesting that Mr. Halterman reimburse Ms. Halterman for certain expenses, and to file a motion asking that Mr. Halterman stop harassing her.
    2. Respondent never informed Ms. Halterman that he could not or would not attempt to accomplish the four objectives that she had identified to him.
    3. Ms. Halterman paid Respondent an initial retainer of $1,500.00, but has never received an accounting from Respondent as to how the money was spent.
    4. Respondent prepared a Motion and Order for Withdrawal and Substitution of Counsel and sent it to Ms. Schauf on August 12, 1998 via facsimile and U.S. Mail.
    5. Ms. Schauf signed the facsimile copy of the Motion and Order for Withdrawal and Substitution of Counsel on August 12 and faxed it back to Respondent on August 12, 1998.
  1. Ms. Schauf received the original Motion and Order for Withdrawal and Substitution of Counsel in the mail and on August 20, 1998 she gave the original, executed Motion and Order for Withdrawal and Substitution of Counsel to E-Z Messenger Service to hand deliver the document to Respondent's office.
  2. E-Z Messenger Service returned the original Motion and Order for Withdrawal and Substitution of Counsel to Ms. Schauf on August 24, 1998 due to their inability to deliver it to Respondent's office.
  3. Ms. Schauf made numerous attempts to contact Respondent regarding the original Motion and Order for Withdrawal and Substitution of Counsel but was unsuccessful and on August 26, 1998 Ms. Schauf filed the original with the court.
  4. On August 28, 1998, the original Motion and Order for Withdrawal and Substitution of Counsel was returned to Ms. Schauf by Judge Nygaard's office as it did not comply with Rule XII(2) of the Uniform Rules of Practice.
  5. On August 31. 1998, Ms. Schauf forwarded the original Motion and Order for Withdrawal and Substitution of Counsel and Judge Nygaard's letter to Respondent.
  6. On September 11, 1998 Ms. Schauf received a second original Motion and Order for Withdrawal and Substitution of Counsel. The second original Motion and Order for Withdrawal and Substitution of Counsel was executed by Ms. Schauf and returned to Respondent on September 11, 1998.
  7. Respondent stated in his response to the State Bar that Ms. Schaufs office did not return the executed substitution to him, but rather Ms. Schaufs office related to Respondent's secretary that they would file the executed substitution with the court. This was a misrepresentation to the State Bar.
  8. Respondent did not file a timely motion substituting as counsel for Ms. Halterman.
  9. Respondent alleged that he timely filed a Motion Shortening Time and Order and a Motion to Extend Time for Objection/Response with regard to the court's July 30, 1998 minute entry; however, the court denied the motions as having been filed untimely.
  10. On September 10, 1998 the court issued a minute entry granting Mr. Halterman's attorney $1,500.00 in attorney's fees after noting that no objection to the application for attorney's fees had been filed.
  11. On October 13, 1998, Respondent filed a Motion for Findings of Facts and Conclusions of Law requesting that the court support its July 30, 1998 minute entry order and its September 10, 1998 minute entry order regarding sanctions.
  12. On October 10, 1998 Respondent also filed a Motion for Reconsideration on the grounds that he had recently been retained and that for unknown reasons the court did not receive the Motion and Order for Withdrawal and Substitution of Counsel, the Motion Shortening Time and Order and the Motion to Extend Time for Objection/Response that Respondent alleges he filed.
  13. In a November 10, 1998 minute entry, the court noted that Respondent was not the attorney of record and his motion requesting findings of fact and conclusions of law was untimely as it was made after the trial. The court also noted that a request made by Respondent on October 9, 1998, asking the court to reconsider ("alter") its order entered on September 10, 1998, was also untimely.
  14. In a January 6, 1999 minute entry, the court noted that Respondent had failed to file a notice of appearance, notice of association of counsel, or a stipulation for substitution of counsel and that therefore Respondent was not the attorney of record. The court stated that it could not and did not consider any of the pleadings and/or motions filed by Respondent up to that time.
  15. On February 11, 1999, Mr. Halterman filed an Order to Show Cause/Contempt. In the minute entry that was issued March 18, 1999 regarding the Order to Show Cause/Contempt, the court instructed Respondent to file a notice of appearance.

STATE BAR COMPLAINT DATED JUNE 8.2001

COUNT ONE (00-1149)

(GRIJALVA)

Findings of Fact: Count One

    1. Sylvia Grijalva retained Respondent in September 1998 to defend her against fraud charges. Ms. Grijalva gave Respondent a $5,000.00 retainer.
    2. During the representation, Ms. Grijalva met with Respondent once and she received two letters from Respondent that pertained to her case.
    3. When Ms Grijalva called Respondent's office for information she was told that Respondent was either in court or with another client. Ms. Grijalva left numerous messages for Respondent, which he never responded to.
    4. In a December 1998 meeting with Respondent, Ms. Grijalva gave Respondent a list of paperwork that she needed from the opposing party and Respondent told Ms. Grijalva that he would request the information and send a copy to her house. Respondent never requested the documents from the opposing party.
    5. Respondent did not act with reasonable diligence and promptness in representing Ms. Grijalva in this matter. Respondent represented Ms. Grijalva for approximately two years and did little work on her behalf during this time. Respondent failed to request documents that Ms. Grijalva needed to defend against the opposing party's allegations.
    6. Respondent failed to promptly reply to Ms. Grijalva's request for information and failed to explain matters to Ms. Grijalva so she could make informed decisions. Other than forwarding some information and several telephone calls, Respondent failed to respond to Ms. Grijalva's telephone calls and failed to inform her what he was doing to protect her interests.
    7. Ms. Grijalva never received a last billing from Respondent, and was never informed whether her retainer was spent. No amount of the retainer was returned to Ms. Grijalva at the end of the representation.

COUNT TWO (00-1681)

(MORRIS)

Findings of Fact: Count Two

    1. Sharan Morris retained Respondent to represent her in a divorce action.
    2. Ms. Morris's divorce was final on March 20, 2000, but Respondent failed to provide her with a copy of the final papers and a copy of the qualified domestic relations order (QDRO).
    3. Respondent's billing statements to Ms. Morris included numerous double-charges. The billing errors amounted to $729.76, which was charged against Ms. Morris's retainer.
    4. Ms. Morris asked Respondent to send her the documents from her file relating to the final papers and the QDRO. Respondent failed to turn over these documents until after Ms. Morris filed the bar complaint. After Respondent returned her file, Ms. Morris found information in the file indicating that Respondent was not doing his job. Ms. Morris found letters from Mr. Miller, who was opposing counsel, showing that Mr. Miller was also trying to reach Respondent, with no success.
    5. Ms. Morris called Respondent's office on August 1, 2000, and the office person told her that Respondent had been called and notified of Ms. Morris's call. Ms. Morris was informed that she would receive a call back; however, no calls were made to her for over another month.

CONCLUSIONS OF LAW

COUNT ONE (97-2568)

(HANNA)

Conclusions of Law: Count One

    1. Respondent did not have the legal knowledge or skill that was necessary to represent his client on appeal in this matter. Respondent relied on two procedural orders signed by the clerk of the appellate court to justify his failure in filing the opening brief, instead of following the appellate court's order to file the opening brief within thirty (30) days of the appellate court's October 17, 1997, order. Respondent failed to ask the court for clarification as to when the opening brief was due.
    2. Respondent did not have the legal knowledge or skill that was necessary to represent his client on appeal in this matter. Respondent failed to follow Rule 11, Ariz.R.Civ.App.P. in obtaining a copy of the trial transcript. Respondent failed to order the transcript no later than 10 days from the filing of the notice of appeal. Respondent failed to make satisfactory arrangements for payment of the cost of the trial transcript and failed to file a notice that arrangements to obtain the trial transcript had been completed.
    3. Respondent did not act with reasonable diligence and promptness in representing his client in this matter. Respondent failed to promptly pay the filing fee for the appeal, failed to re-file the request for an extension of time within which to file the opening brief, failed to timely file the opening brief as ordered by the appellate court, failed to timely order the trial transcript, failed to timely make satisfactory arrangements for payment of the cost of the trial transcript, failed to timely file a notice that arrangements to obtain the trial transcript had been completed, and failed to respond to opposing counsel's motion to dismiss that was filed December 3, 1997.
    4. Respondent failed to make reasonable efforts to expedite litigation consistent with the interests of his client resulting in the appeal being dismissed twice.
    5. Respondent engaged in conduct that is prejudicial to the administration of justice by allowing his client's appeal to be dismissed on procedural grounds instead of it being decided on the merits.
    6. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER's 1.1, 1.3, 3.2 and 8.4 (d).

COUNT TWO (98-1565)

(OPPMAN)

Conclusions of Law: Count Two

    1. Respondent failed in his obligation to comply with the Arizona Rules of Civil Procedure and the Uniform Rules of Practice when he filed Mr. Oppman's 26.1 disclosure statement and the response to Mr. Oppman's motion for summary judgment.
    2. Respondent engaged in conduct involving dishonesty, fraud, deceit and misrepresentation when he told the court in the motion for reconsideration that he had not received notice of the hearing on the motion for summary judgment.
    3. Respondent engaged in conduct prejudicial to the administration of justice when Respondent failed to appear for the summary judgment hearing on October 14. 1997, allowing a judgment to be entered against Mr. Oppman.
    4. Respondent assisted in the unauthorized practice of law by allowing his secretary/paralegal to prepare legal documents for Mr. Oppm.an without supervising her work.
    5. The record does not establish by clear and convincing evidence that Mr. Oppman suffered monetary damage resulting from Respondent's misconduct.
    6. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER's 1.2 (a), 1.3, 1.4, 3.1, 3.2, 3.3 (a), 3.4 (c), 5.5 (b), 8.4 (c) and (d).

COUNT THREE (99-0262)

(SUAREZ)

Conclusions of Law: Count Three

    1. Respondent did not have the legal knowledge or skill that was necessary to represent his client in this matter, as the statute of limitations was not tolled by Mr. Suarez' incarceration and Respondent failed to file the complaint in a timely manner.
    2. Respondent failed to consult with Mr. Suarez about not filing the complaint within the statute of limitations.
    3. Respondent failed to keep Mr. Suarez reasonably informed about his EEOC case and failed to explain the matter to the extent necessary to permit Mr. Suarez to make an informed decision about his EEOC case.
    4. Respondent failed to diligently pursue Mr. Suarez' EEOC case after receiving the right-to-sue letter when he failed to file the complaint.
    5. Respondent knowingly made a false statement of material fact when he denied to bar counsel that he represented Mr. Suarez in the EEOC matter.
    6. Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation when he denied to bar counsel that he represented Mr. Suarez in the EEOC matter.
    7. Respondent engaged in conduct that is prejudicial to the administration of justice by allowing the statute of limitations to run on Mr. Suarez' claim instead of the claim being decided on the merits.
    8. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER's 1.1, 1.2, 1.3, 1.4, 3.2, 3.3(a), 8.1, 8.4(c) and (d).

COUNT FOUR (99-0262)

(SUAREZ)

Conclusions of Law: Count Four

    1. Respondent failed to consult with Mr. Suarez about the appeal and failed to act with reasonable diligence and promptness in filing the notice of appeal.
    2. Respondent made a false statement of material fact when he told the State Bar that he had not agreed to handle Mr. Suarez' appeal.
    3. Respondent engaged in conduct prejudicial to the administration of justice when he failed to properly prepare for trial and when he failed to file the notice of appeal.
    4. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER's 1.1, 1.2, 1.3, 1.4, 3.2, 3.3(a), 8.1, 8.4 (c) and (d).

COUNT FIVE (98-1281)

(TRUST ACCOUNT)

 

Conclusions of Law: Count Five

    1. Respondent failed to maintain complete records of the handling, maintenance and disposition of client and/or third party trust account funds.
    2. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER 1.15 (a) and Supreme Court Rules 43 (d) and 44 (b)(3).

COUNT SIX (99-0695)

(TRUST ACCOUNT)

Conclusions of Law: Count Six

    1. Respondent failed to maintain complete records of the handling, maintenance and disposition of client and/or third party trust account funds.
    2. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER 1.15 and Rules 43 and 44, Ariz.R.S.Ct.

COUNT SEVEN

(TRUST ACCOUNT)

Conclusions of Law: Count Seven

    1. Respondent failed to maintain client and/or third party property separate from his own property.
    2. Respondent failed to maintain complete records of the handling, maintenance and disposition of client and/or third party funds.
    3. Respondent failed to preserve complete trust account records of clients and/or third parties for five years.
    4. Respondent's conduct as described in this count violated Rule 42, Ariz.R.S.Ct., specifically, ER 1.15, and Rules 43 and 44, Ariz.R.S.Ct.

COUNT EIGHT (99-1439)

(TRUST ACCOUNT)

Conclusions of Law: Count Eight

    1. Respondent failed to hold client funds separate from his own funds.
    2. Respondent failed to appropriately safeguard client funds.
    3. Respondent failed to maintain complete records of the handling, maintenance and disposition of all funds coming into Respondent's possession.
    4. Respondent failed to maintain complete records of all funds of a client coming into his possession and failed to render appropriate accounts to clients regarding them.
    5. Respondent has failed to respond to a lawful demand for information, has failed to cooperate with the State Bar, and has failed to furnish information to or respond promptly to a request from bar counsel.
    6. Respondent's conduct as described in this count violated Rule 42, Ariz.R.S.Ct., specifically, specifically ER's 1.15 and 8.1, and Rules 43, 44, and 51(h) & (i)

COUNT NINE (00-0053)

(TRUST ACCOUNT)

Conclusions of Law: Count Nine

    1. Respondent failed to hold client funds separate from his own funds.
    2. Respondent failed to appropriately safeguard client funds.
    3. Respondent failed to maintain complete records of the handling, maintenance and disposition of all funds coining into Respondent's possession.
    4. Respondent failed to maintain complete records of all funds of a client coming into his possession and failed to render appropriate accounts to clients regarding them.
    5. Respondent has failed to respond to a lawful demand for information, has failed to cooperate with the State Bar, and has failed to furnish information to or respond promptly to a request from bar counsel.
    6. Respondent's conduct as described in this count violated Rule 42, Ariz.R.S.Ct., specifically, specifically ER's 1.15 and 8.1, and Rules 43,44, and 51 (h)& (i).

COUNT TEN (00-0352)

(TRUST ACCOUNT)

Conclusions of Law: Count Ten

    1. Respondent failed to hold client funds separate from his own funds.
    2. Respondent failed to appropriately safeguard client funds.

47. Respondent failed to maintain complete records of the handling, maintenance and disposition of all funds coming into Respondent's possession.

48. Respondent failed to maintain complete records of all funds of a client coming into his possession and failed to render appropriate accounts to clients regarding them.

49. Respondent has failed to respond to a lawful demand for information, has failed to cooperate with the State Bar, and has failed to furnish information to or respond promptly to a request from bar counsel.

50. Respondent's conduct as described in this count violated Rule 42, Ariz.R.S.Ct., specifically ER's 1.15 and 8.1, and Rules 43, 44. and 51 (h)& (i)

COUNT ELEVEN (99-1613)

(HALTERMAN)

Conclusions of Law: Count Eleven

    1. Respondent failed to provide competent representation to Ms. Halterman as he failed to timely substitute as counsel of record in the matter, which precluded the court from considering any of the pleadings and/or motions that Respondent had filed on Ms. Halterman's behalf. Respondent also filed numerous motions and/or pleadings in an untimely manner, which may have precluded the court from considering them even if Respondent had been the attorney of record at the time of filing.
    2. Respondent failed to abide by Ms. Halterman's request that he pursue several objectives for her, including Ms. Halterman's request that an objection be filed to the July 30, 1998 minute entry order.
    3. Respondent failed to act with reasonable diligence and promptness in representing Ms. Halterman, as Respondent failed to timely substitute as counsel of record in the matter, failed to timely file an objection to the July 30, 1998 minute entry, and failed to timely file a motion for reconsideration.
    4. Respondent failed to keep Ms. Halterman reasonably informed about her case.
    5. Respondent failed to provide Ms. Halterman with an accounting as to how her retainer had been spent.
    6. Respondent made misrepresentations to the State Bar regarding the substitution of counsel motion and order.
    7. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER's 1.1, 1.2, 1.3, 1.4, 1.15, 8.1, 8.4 and Supreme Court Rules 43 and 44.

STATE BAR COMPLAINT DATED JUNE 8.2001

COUNT ONE (00-1149)

(GRIJALVA)

Conclusions of Law: Count One

    1. Respondent's fee in this matter was unreasonable. Ms. Grijalva never received a last billing from Respondent and was never informed whether her retainer was spent. No amount of the retainer was returned to Ms. Grijalva at the end of the representation.
    2. Ms. Grijalva asked for her paperwork back, but Respondent failed to respond to this request.
    3. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER's 1.3. 1.4, 1.5, 1.16(d).

COUNT TWO (00-1681)

(MORRIS)

Conclusions of Law: Count Two

    1. Respondent did not act with reasonable diligence or promptness. Respondent failed to promptly reply to Ms. Morris's request for information.
    2. Respondent failed to explain matters to Ms. Morris so she could make informed decisions. Respondent failed to respond to Ms. Morris's telephone calls and failed to inform her what he was doing to protect her interests. Respondent failed to keep Ms. Morris reasonably informed about the representation.
    3. Respondent failed to return documents to Ms. Morris after she requested them.
    4. Respondent failed in his obligation to comply with the Arizona Rules of the Supreme Court, Rule 63(b), as he never notified Ms. Moms that he was on summary suspension since June 12, 2000.
    5. Respondent's conduct in this count violated Rule 42 Ariz.R.S.Ct., specifically ER's 1.3, 1.4, & 1.16(d); and, Rule 63(b), Ariz.R.S.Ct

LEGAL ANALYSIS AND DISCUSSION

 

Respondent has admitted to the following ethical violations:

ER 1.1 (Competence) 2 Violations

ER 1.2 (Scope of Representation) 2 Violations

ER 1.3 (Diligence) 5 Violations

ER 1.4 (Communication) 5 Violations

ER 1.5 (Fees) 1 Violation

ER 1.15 (Safe Keeping Property) 7 Violations

ER 1.16 (Termination Representation) 2 Violations

ER 3.1 (Meritorious Claims and Contentions) 1 Violation

ER 3.2 (Expediting Litigation) 2 Violations

ER 3.3 (Candor Toward the Tribunal) 1 Violation

ER 3.4 (Fairness to Opposing Party and Counsel) 1 Violation

ER 5.5 (Restrictions on Right to Practice) 1 Violation

ER 8.1 (Bar Admission and Disciplinary Matters) 4 Violations

ER 8.4(c) (Misconduct) 2 Violations

ER 8.4(d) (Conduct Prejudicial to the Administration

Of Justice 2 Violations

SCR 43 (Trust Account Verification) 6 Violations

SCR 44 (Trust Accounts: Interest Thereon) 6 Violations

SCR 51 (Grounds for Discipline) 3 Violations

SCR 63 (Notice to Clients, Adverse Parties and

Other Counsel) 1 Violation

Additionally, the Hearing Officer finds, with respect to the Suarez matter, that the State Bar proved by

clear and convincing evidence two additional violations each of ER's 1.1. 1.2, 1.3, 1.4, 3.2, 3.3(a). 8.1and 8. (c)(d).

SANCTIONS

Based on the foregoing admissions and findings, the only remaining issue is that of sanctions. 'The object of disciplinary proceedings is not punish the lawyer, but to protect the public and deter similar conduct by other lawyers." In re Rivkind, 164 Ariz. 154, 791 P.2d 1037 (1990).

In Arizona, the American Bar Association's Standards for Imposing Lawyer Sanctions ("ABA Standards") are frequently a guideline imposing discipline. When analyzing the appropriate discipline to be imposed, the ABA Standards suggest the following considerations:

A. The duty violated;

B. Respondent's mental state;

C. The injury to the client; and

D. Any aggravating or mitigating certain factors be considered ABA Standards 3.0.

DUTIES VIOLATED

By his own admission, Respondent has violated ethical duties owed to his clients, the public, the legal system, and to the legal profession. Many of Respondent's ethical violations, standing alone, would warrant suspension. See, e.g., Standards 4.42 (Lack of Diligence). Others warrant disbarment. See, e.g., Standards 6.11 (Candor Toward Tribunal) and Trust Account violations.

On the trust account violations, Respondent has admitted consistently overdrawing his trust account over a period of years. He wrote checks from his trust account to the State Bar for convention dues, a restaurant, an educational institution, and to pay for personal expenses. His account was overdrawn on at least on two occasions, and he was unable to produce trust account records or other documentation which might explain the overdrafts. Absent any explanation and based upon the evolving interpretations of the trust account rules, it must be concluded that the overdrafts resulted in misappropriation of client funds. Respondent repeatedly violated the trust account rules, then refused, or was unable, to provide supporting documentation to the State Bar.

When taken together, the trust account violations and the other ethical misconduct lead to the inevitable conclusion that the appropriate sanction is disbarment.

RESPONDENT'S MENTAL STATE

Respondent, on the issue relating to his mental state, offered a volume of medical records. The records indicate a decade-long history of depression associated with migraine and tension headaches. At the hearing. Respondent offered little insight as to how his physical and emotional problems affected him in the practice of law. Certainly no evidence linking any specific act or omission of misconduct was presented.

His former attorney, Jeffrey Minker, Esq., testified to the fundamental paralysis which has gripped Respondent during the course of these proceedings. That paralysis, by any objective measurement, continues.

On the evidence presented, including Respondent's ineffective efforts to represent himself in the disciplinary process, the conclusion is inescapable that Respondent is not now, either physically or emotionally, fit to practice law. While his physical and emotional condition most likely contributed to his ethical misconduct, the record on which these matters will be decided is not at all helpful in quantifying the degree to which it contributed. Suffice it to say that, from the record, it does not appear that Respondent has resolved his underlying physical or emotional problems.

  1. INJURY TO THE CLIENT

The injury to Respondent's clients, both actual and potential, is equally evident. Clearly Respondent's clients were harmed by his manifold violations, including but not limited to his failure to communicate with them, his failure to diligently perform services for which he has been retained, and his misappropriation of client funds resulting from overdrafts in his trust account.

Additionally, the record supports an award of restitution for monetary damages to the following:

1. Mr. Suarez $3,100

2. Ms. Halterman $3,000

3. Ms. Grijalva $5,000

4. Ms. Morris $729.76

Although the State Bar requested an award in restitution of $9,460.63 to Mr. Oppman, the record is vague as to whether Mr. Oppman suffered monetary damage resulting from Respondent's misconduct. Since this was not proven by clear and convincing evidence, no restitution will be awarded as to Mr. Oppman. The record establishes that the injury to Respondent's clients was repeated and ongoing for a period of years prior to his interim suspension. Taken cumulatively, this harm, both actual and potential, raises serious questions relating to Respondent's fitness to practice law.

AGGRAVATION AND MITIGATION

The Hearing Officer finds the following aggravating factors:

1. Pattern of Misconduct.

2. Multiple Offenses.

3. Bad faith, obstruction of disciplinary process.

4. Substantial Experience in the Practice of Law.

5. Indifference to making restitution.

The Hearing Officer, despite Respondent's argument to the contrary, finds no mitigating factors.

The State Bar correctly points out that pursuant to ABA Standards 9.32, a disability is considered a mitigating factor only when; (1) there is medical evidence that the Respondent is affected by a disability; (2) the disability caused the misconduct; (3) the Respondent's recovery from the disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. Citing, In re Augenstein, 178 Ariz. 133. 871 P2d 254 (1994). The evidence here is highly suggestive that the Respondent has suffered from debilitating headaches and depression. Regrettably, there is no evidence to link that depression to the numerous ethical violations to which Respondent has admitted. Similarly, although the medical records are suggestive that Respondent's medical condition has improved, no evidence was presented which would suggest a meaningful and sustained period of successful rehabilitation. Similarly, there is no evidence that the recovery has arrested the misconduct in such a way that a recurrence of misconduct is unlikely. The record does not support a mitigating factor of a physical or mental -disability or impairment.

PROPORTIONALITY ANALYSIS

An appropriate sanction must be proportional to those lawyers who have been disciplined for similar conduct. In this regard, the Hearing Officer has looked at the following decisions. In the matter of Engan 170 Ariz. 409, 825 P.2d 468 (1992), the Respondent was charged with eleven counts of ethical violations including failure to communicate adequately with clients, failure to respond to reasonable requests for information from clients, failure to represent clients diligently and competently, failure to return or provide files to the client, failure to respond and disclose information requested by the State Bar, failure to perform work for which Respondent was hired, failure to remit funds to client, and failure to appear on a client's behalf on a hearing. After applying the ABA Standards to Engan' s conduct, the Supreme Court disbarred him. In its determination of proportionality~ the Court cited In re Nefstead 163 Ariz. 518, 789 P2d 385 (1990), In re Heckstrom 153 Ariz. 286, 736 P.2d 370 (1987), and In re MacAskill 163 Ariz. 354, 788 P.2d 87 (1990). Each of these disciplinary matters involved ethical violations similar to those engaged in and admitted to by Respondent. Under the facts established in this proceeding, disbarment is clearly the appropriate sanction.

RECOMMENDATION

It is the recommendation of the Hearing Officer that Respondent be disbarred, and that he be ordered to pay restitution in the following amounts:

1. Mr. Suarez $3,100
2. Ms. Halterman $3,000
3. Ms. Grijalva $5,000

4. Ms. Morris $729.76

It is further ordered that Respondent be ordered to repay the State Bar the costs of this proceeding.

DATED April 22, 2002

____________________________________

Dwight M. Whitley, Jr.

Hearing Officer 9I

 

SUPREME COURT, STATE OF COLORADO
ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

600 17th Street, Suite 510-South
Denver, Colorado 80202

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

KIRK PATRICK DOUGHERTY

Case Number: 02PDJ105

 

REPORT, DECISION AND IMPOSITION OF SANCTION

 

Opinion by Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members Victoria J. Koury and Barbara Weil Laff, both members of the Bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.18(d) was held on June 17, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Victoria J. Koury and Barbara Weil Laff both members of the bar. Kim E. Ikeler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado ("People"). The respondent, Kirk P. Dougherty ("Dougherty") did not appear in person or by counsel.

The People filed a Complaint in this matter on December 10, 2002. The Citation and Complaint were sent via certified mail to Dougherty¡¯s registered business and last known home address on the same date. The certified mail envelope was returned to the Office of Attorney Regulation Counsel marked "moved, left no address." The documents were also sent via regular mail and were not returned. Dougherty did not accept service and did not file an Answer. Service is therefore proper pursuant to C.R.C.P. 251.32(b).

Upon the People¡¯s Motion, the PDJ entered default on March 6, 2003, deeming the facts set forth in the Complaint admitted, and establishing violations of the rules set forth therein, except for claims 12, 14, and 27, which were dismissed.

At the sanctions hearing, the People offered statements from three complaining witnesses Charlene Walker, Christie Brysacz and Marcus Foster regarding the appropriate sanction:. See C.R.C.P. 251.18(a). Dougherty did not appear at the hearing in person or through counsel. The Hearing Board considered the People¡¯s argument and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Dougherty has taken and subscribed to the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 4, 1994, and is registered upon the official records of the Supreme Court, registration number 23964. He is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

The entry of default deemed the facts set forth in the Complaint admitted and established violations of the Rules of Professional Conduct set forth therein. The facts and rule violations are therefore established by clear and convincing evidence. See Complaint attached hereto as Exhibit "A."

II. CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION

The facts giving rise to this proceeding involved eleven different clients. The following claims are deemed established by the entry of default: claim one, 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); claim two, Colo. RPC 1.1 (an attorney shall provide competent representation to a client); claim three, Colo. RPC 1.3(an attorney shall not neglect a legal matter entrusted to that attorney); claim four Colo. RPC 1.3; claim five, Colo. RPC 1.4(a) (an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); claim six, Colo. RPC 1.1; claim seven, Colo. RPC 8.4(c) (it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); claim eight, Colo. RPC 1.16(d) ) (an attorney shall, upon termination of representation, take steps to protect a client¡¯s interests, including 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 any fee not earned); claim nine, Colo. RPC 1.16(d); claim ten, Colo. RPC 1.1; claim eleven, Colo. RPC 1.4(a) and Colo. RPC 1.4(b); claim thirteen, Colo. RPC 1.4(a); claim fifteen, Colo. RPC 8.4(c); claim sixteen, Colo. RPC 1.16(d); claim seventeen, Colo. RPC 1.3; claim eighteen, Colo. RPC 1.4(a); claim nineteen, Colo. RPC 8.4(c); claim twenty, Colo. RPC 1.3; claim twenty-one, Colo. RPC 1.4(a); claim twenty-two, Colo. RPC 8.4(h) (it is professional misconduct for an attorney to engage in any other conduct that reflects adversely on the attorney¡¯s fitness to practice law) and Colo. RPC 1.7(b) (it is professional misconduct for an attorney to engage in any other conduct that reflects adversely on the attorney¡¯s fitness to practice law); claim twenty-three, Colo. RPC 1.1; claim twenty-four, Colo. RPC 8.4(c); claim twenty-five, Colo. RPC 3.4(c) (the prosecutor in a criminal case shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights); claim twenty-six, Colo. RPC 8.4(c); claim twenty-eight, Colo. RPC 1.3; Claim twenty-nine Colo. RPC 1.4(a); claim thirty, Colo. RPC 8.4(h) and Colo. RPC 1.7(b)(it is professional misconduct for an attorney to engage in any other conduct that reflects adversely on the attorney¡¯s fitness to practice law); claim thirty-one Colo. RPC 8.1(b) (an attorney in connection with a disciplinary or reinstatement matter shall not knowingly fail to respond reasonably to a lawful demand for information from an admission or disciplinary authority);, and claim thirty-two, Colo. RPC 3.4(c).

In his representation of five of the eleven clients giving rise to this proceeding -- Stewart, Foster, Moore, Gamet, and Abundis ¨C Dougherty knowingly exercised unauthorized dominion and control over the clients¡¯ funds by accepting funds from the clients in payment for his services, failing to perform those services, and then failing to return the funds to the clients in violation of Colo. RPC 8.4(c)(it is professional misconduct for a lawyer to engage in conduct involving dishonesty, deceit, fraud or misrepresentation). His failing to return the funds over an extended period of time constitutes conversion. People v. Varallo, 913 P.2d 1, 11 (Colo. 1996).

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

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 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." 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).

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 Standard ¡ì4.11 provides that "[d]isbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client." Dougherty¡¯s knowing conversion of client funds meets the criteria for disbarment under ABA Standard ¡ì4.11.

In addition to engaging in five instances of knowing conversion, Dougherty¡¯s conduct constituted: six violations of Colo. RPC 1.4(a)(the Zinna, Brackeen, Marschel, Foster, Auckly and Abundis matters); two violations of Colo. RPC 1.4(b)(the Brysacz and Brackeen matters); four violations of Colo. RPC 1.1 (the Brysacz, Zinna, Brackeen, Gamet matters); five violations of Colo. RPC 1.3 (the Birchfield, Zinna, Foster, Auckley, Abundis matters); four violations of Colo. RPC 1.16(d)(the Stewart, Brackeen, Marschel and Foster matters); two violations of 1.7(b)(the Gamet and Abundis matters); two violations of Colo. RPC 3.4(c)(the Gamet matter and failing to respond to the Office of Attorney Regulation Counsel), one violation of Colo. RPC 8.4(h)(the Gamet Matter) and one violation of Colo. RPC 8.1(b).

Dougherty violated Colo. RPC 1.3(a lawyer shall act with reasonable diligence in representing a client and shall not neglect a legal matter entrusted to that lawyer) by neglecting four client matters: Zinna, Foster, Auckly and Abundis. Dougherty violated Colo. RPC 1.4(a) in the Zinna, Brackeen, Marschel, Foster, Auckly and Abundis matters by failing to keep the clients reasonably informed about the status of a matter and promptly complying with reasonable requests for information. He violated Colo. RPC 1.4(b) in the Brysacz and Brackeen matters by failing to explain matters to the extent reasonably necessary to permit his clients to make informed decisions about the representation. The extent of Dougherty¡¯s lack of communication and neglect of his clients¡¯ matters warrants an extended period of suspension or disbarment. See ABA Standard ¡ì 4.41(b)(stating that disbarment is generally appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client) and ABA Standard ¡ì 4.41(c)(stating that disbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client). See also People v. Murray, 887 P.2d 1016, 1021 (Colo.1994) (lawyer disbarred for knowingly failing to perform services for clients in ten separate matters constituting a pattern of neglect and causing potentially serious harm to clients); People v. Dulaney, 785 P.2d 1302, 1306 (Colo.1990) (lawyer disbarred for chronic neglect of client matters and use of deceit to cover the neglect).

In three cases -- Stewart, Brackeen, and Foster -- the extent of Dougherty¡¯s neglect rose to the level of abandonment. With regard to each of these three clients, Dougherty failed to allow time for employment of other counsel, failed to surrender papers and/or failed to return the client¡¯s retainer in violation of Colo. RPC 1.16(d)(upon termination of representation, a lawyer shall take reasonably steps to protect the client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned). To find abandonment rather than merely neglect, there must be proof that the attorney--during a given time period--was required to accomplish specific professional tasks for the client, failed to accomplish those tasks, and failed to communicate with the client. The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client. The totality of facts establish that Dougherty deserted, rejected and/or relinquished the professional responsibilities owed to these clients and thereby abandoned them. Abandonment of numerous clients warrants disbarment. People v. Townshend, 933 P.2d 1327, 1329 (Colo. 1997) (lawyer disbarred who effectively abandoned two clients after accepting retainers and failing to account for or return the unearned retainers). See generally ABA Standards

¡ì 4.11 and ¡ì 4.41.

Dougherty violated Colo. RPC 3.4(c)(a lawyer shall not knowingly disobey an obligation under the rules of a tribunal) by knowingly disobeying the Supreme Court¡¯s Order immediately suspending him from the practice of law, by endeavoring to continue to represent one client, Gamet, after that order of immediate suspension had entered, and after he knew of the suspension.

Dougherty violated Colo. RPC 1.1 (an attorney shall provide competent representation to a client) by failing to provide competent legal representation to his clients Gamet and Brysacz in their criminal matters as well as Zinna and Brackeen, demonstrating a lack of understanding of basic legal procedures, a failure to undertake basic preparation necessary for the representation, and a lack of understanding of his appropriate role as an attorney.

Dougherty also violated Colo. RPC 1.7(b) and 8.4(h) by proposing or engaging in sexual relations with clients. Additionally, he failed to cooperate with the Office of Attorney Regulation Counsel during its investigation in violation of Colo. RPC 8.1(b).

Doughtery¡¯s actions resulted in serious injury or potentially serious injury to a number of his clients: Dougherty¡¯s conduct contributed to a delay in closing the sale of Zinna¡¯s residence, with a resulting increase in costs to Zinna, who was required to obtain new counsel to resolve outstanding problems and had to pay additional costs on a vehicle lease. Foster was required to pay additional costs for replacement counsel; Auckly paid additional amounts in additional child support; Brysacz pled guilty to charges, suffered substantial penalties thereby, and her mother was forced to close her day-care business; after having been found in contempt, Brackeen lost her job and her house; Marschel¡¯s efforts to obtain custody of her child were delayed, and Abundis and her husband were delayed in resolving a child support matter.

Pursuant to ABA Standard 9.22, the Hearing Board considered aggravating factors in arriving at the appropriate sanction. Dougherty did not appear or present evidence, so no mitigating factors were considered. The facts established by default established several aggravating factors pursuant to ABA Standards 9.22. Dougherty had a dishonest or selfish motive, see id. at 9.22(b); he exhibited a pattern of misconduct, see id. at 9.22(c) and engaged in multiple offenses; see id. at (d). Dougherty has not acknowledged the wrongful nature of his conduct, see id. at 9.22(g). Many of Dougherty¡¯s victims were vulnerable, see id. at 9.22(h). Finally, Dougherty has made no effort to provide restitution to his former clients, see id. 9.22(j).

Dougherty¡¯s knowing misappropriation of client funds, standing alone, is sufficient to warrant disbarment. The additional rule violations including neglect, failure to communicate, abandonment of clients, disobedience of a court order, incompetence, his endeavors to engage in, and engaging in, inappropriate relationships with clients, and his failure to cooperate in the investigation of his disciplinary violations, confirm that disbarment is warranted. See Murray, supra, Dulaney, supra.

    1. ORDER

It is therefore Ordered:

1. KIRK PATRICK DOUGHERTY, attorney registration number 23964, is DISBARRED from the practice of law effective thirty-one days from the date of this order.

2. Dougherty is ordered to pay the costs of these proceedings; the people shall submit a statement of costs within ten (10) from the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

 

 

 

DATED THIS 25th DAY OF AUGUST, 2003.

 

(SIGNED)

__________________________________

Roger L. Keithley

PRESIDING DISCIPLINARY JUDGE

 

(SIGNED)

____________________________________

Victoria J. Koury

HEARING BOARD MEMBER

 

(SIGNED)

____________________________________

Barbara Weil Laff

HEARING BOARD MEMBER

 

 

 

 

 

 

 

 

EXHIBIT A

 

 

 

SUPREME COURT, STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

600 17th Street, Suite 510-South

Denver, Colorado 80202

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

KIRK PATRICK DOUGHERTY

Kim E. Ikeler, #15590

Assistant Regulation Counsel

John S. Gleason, #15011

Regulation Counsel

Attorneys for Complainant

600 17th Street, Suite 200-South

Denver, Colorado 80202

Telephone: (303) 893-8121 ext. 320

Fax No.: (303) 893-5302

 

 

 

 

 

 

 

 

 

¡øCOURT USE ONLY¡ø

Case Number:

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 4, 1994, and is registered upon the official records of this court, registration no. 23964. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 3773 Cherry Creek North Drive, Suite 575, Denver, Colorado 80209.

General Allegations

THE KRISTI BRYSACZ MATTER

    1. Kristi Brysacz is in her mid-twenties. Respondent represented Ms. Brysacz with regard to child abuse charges brought against her.

       

    2. Ms. Brysacz was charged with having abused a child while working for her mother¡¯s day-care business. Ms. Brysacz believed she was innocent and wanted to take the matter to trial.

    3. It was important to Ms. Brysacz and her mother that Ms. Brysacz be acquitted. The mother conducted a day-care business in her home and Ms. Brysacz lived with her mother. If Ms. Brysacz were convicted of child abuse, her mother would be faced with a choice of either forcing her daughter to move out or shutting down her day-care business. The regulators would not permit the mother to care for children in her home if a convicted child abuser was living there.

    4. Ms. Brysacz and her mother discussed this many times with respondent. Respondent knew that the mother was not only a daycare provider but the President of the Arapahoe County Child Care Association. Respondent understood that Ms. Brysacz¡¯s and her mother¡¯s livelihood was on the line and that it was vital to prove Ms. Brysacz¡¯s innocence.

    5. On the day of trial, the mother was scheduled for surgery. The mother felt that her daughter was in good hands with respondent because he knew the importance of preserving their jobs.

    6. However, when Ms. Brysacz met respondent on the morning of trial, he convinced her to plead guilty. He told her that if she would plead guilty, she would get a suspended sentence, have to go to one anger management class, and be on probation for one year. He said her fine would be under $100 and at the end of the year the conviction would be wiped from her file.

    7. Respondent knew it was likely that, if Ms. Brysacz pled guilty, her mother would be required to close her day-care business. Notwithstanding this substantial risk, respondent convinced Ms. Brysacz that it wouldn¡¯t happen and that her mother was just overreacting and being paranoid. Respondent told Ms. Brysacz that her mother was ill and having surgery and that she was under a lot of stress. Respondent told Ms. Brysacz that if she pled guilty and the day-care regulators did in fact want to shut down the mother¡¯s day-care business because Ms. Brysacz was living at home, then Ms. Brysacz could move in with him.

    8. Ms. Brysacz trusted respondent and pled guilty. After she pled guilty she was told she would have to pay a fine of over $1,000, attend six months of anger management classes costing $25 per class, and be on probation for 2 years. In addition, as a result of Ms. Brysacz¡¯s guilty plea, the mother had to close her day-care business.

      Claim I

      (A Lawyer Shall Explain A Matter To The Extent Reasonably Necessary To Permit The Client To Make Informed Decisions Regarding The Representation-Colo. RPC 1.4(b))

    9. Paragraphs 2 through 9 are incorporated herein as if fully set forth.

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

    11. The respondent failed to explain to Ms. Brysacz the full extent of the possible legal consequences of her pleading guilty to child abuse. In addition, respondent failed to fully explore with Ms. Brysacz the practical consequences of her pleading guilty, including the possibility that Ms. Brysacz¡¯s mother would have to close her day-care business. Each of these failures to explain constitutes a separate violation of Colo. RPC 1.4(b) as do both of them together.

    12. The respondent knew or should have known that he failed to adequately explain the legal matter to the client. Respondent¡¯s failing to explain to Ms. Brysacz the consequences of her pleading guilty to child abuse caused serious or potentially serious injury to Ms. Brysacz, in that, based upon respondent¡¯s inadequate explanation, Ms. Brysacz forewent her opportunity to challenge the child abuse charges brought against her and, as a result, was subjected to substantial sanctions.

    13. 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(b).

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim II

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

    14. Paragraphs 2 through 9 are incorporated herein as if fully set forth.

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

       

    16. Respondent failed to provide Ms. Brysacz competent legal representation. In advising Ms. Brysacz, respondent ignored the substantial risk that, if Ms. Brysacz pled guilty, her mother would be required to close her day-care business. Respondent also inaccurately advised Ms. Brysacz as to the sanctions which would be imposed upon her should she plead guilty. Each of these failures by the respondent constitutes a failure to provide competent legal representation, as do both of them together.

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

    18. Respondent¡¯s failure to provide competent legal representation to Ms. Brysacz caused serious or potentially serious injury to her. Ms. Brysacz was required to pay a fine of over $1,000, attend six months of anger management classes, and be on probation for two years. In addition, Ms. Brysacz¡¯s mother had to close her day-care business, in which Ms. Brysacz had been employed.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE JAMES BIRCHFIELD MATTER

    20. Respondent represented James Birchfield in a divorce case in Arapahoe County District Court, case no. 02DR1156.

    21. Respondent failed to be available for a telephone status conference in Ms. Birchfield¡¯s case which had been scheduled for July 8, 2002. Respondent was aware of the status conference because he had been present in court with his client when it was set.

    22. Judge Juanita Rice, the judge in the case, attempted to reach respondent and left a message to call. She subsequently telephoned the respondent four or five times, also leaving messages. She finally called the Supreme Court attorney registration line to get respondent¡¯s home number. She called that number and left a message. Respondent did not return any of Judge Rice¡¯s calls.

       

       

       

      Claim III

      (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)

    23. Paragraphs 21 through 23 are incorporated herein as if fully set forth.

    24. 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.

    25. Respondent failed to act with reasonable diligence and promptness and neglected Mr. Birchfield¡¯s legal matter by failing to be available for the July 8, 2002 telephone status conference and by failing to return Judge Rice¡¯s calls. Each of these failures by the respondent constitutes a separate incident of lack of diligence and promptness, and/or neglect as do both of them together.

    26. The respondent¡¯s lack of diligence and promptness, and/or neglect caused serious or potentially serious injury to Mr. Birchfield, in that the resolution of Mr. Birchfield¡¯s matter was delayed. Respondent¡¯s misconduct also required Judge Rice to spend time and effort to contact respondent.

    27. 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.

      THE KELLY ZINNA MATTER

    28. On January 24, 2002, Kelly Zinna retained the respondent to file a petition for dissolution. She gave him a $1,000 retainer. The respondent prepared a petition and Ms. Zinna executed it. With the respondent¡¯s knowledge, Ms. Zinna then left to relocate in Maryland because her husband had violated a restraining order she had against him and she was concerned for her safety if she stayed in Colorado.

    29. The respondent never filed the petition for Ms. Zinna. Instead, Ms. Zinna¡¯s husband filed a petition on February 28, 2002 and the respondent accepted service on behalf of Ms. Zinna on March 3, 2002. The respondent failed to respond and a default hearing was set. The respondent finally filed a response on Ms. Zinna¡¯s behalf on May 31, 2002.

    30. Ms. Zinna¡¯s divorce matter was not complicated. The Zinnas had no children. The principal task in the divorce was to liquidate and separate the marital property.

    31. On March 4, 2002, Ms. Zinna received an offer to purchase the marital residence. The home was in Ms. Zinna¡¯s name, marital debts fully encumbered the property, and Mr. Zinna had not filed a notice of lis pendens against the property. The closing was scheduled for April.

    32. The respondent told Ms. Zinna that she would have to obtain her husband¡¯s permission to sell the home. The respondent told Ms. Zinna that he would work on obtaining Mr. Zinna¡¯s permission. Ms. Zinna understood he was taking appropriate action and delayed the closing while awaiting respondent¡¯s negotiation with Mr. Zinna¡¯s counsel on this point.

    33. Respondent failed to negotiate with Mr. Zinna¡¯s counsel to obtain Mr. Zinna¡¯s agreement to release the restraining order which prohibits the sale of marital property while a divorce is pending. Mr. Zinna was willing to give that consent but because respondent never called Mr. Zinna¡¯s counsel, respondent never obtained the wavier and therefore, failed to tell Ms. Zinna to go forward with the sale. As a result, Ms. Zinna delayed the sale of the residence until July, 2002.

    34. During this period of time, Ms. Zinna was responsible for paying the first and second mortgages on the home, which totaled $2,568 per month. Due to the fact that Ms. Zinna had fled Colorado and did not have a full-time job in Maryland, she was unable to make the mortgage payments and her house went into foreclosure.

    35. Due to the delay in the sale and the resultant foreclosure action filed on the home, the first mortgage loan payoff increased from approximately $236,000 in April, when the house could have sold, to $243,893.94 in July, when the house was sold. Ms. Zinna paid $3,066.05 to close the deal.

    36. These damages were caused at least in part by respondent¡¯s neglect. The closing on the home was continued for several months and the sale was not closed until after Ms. Zinna retained new counsel.

    37. In addition to the sale of the residence, the Zinnas also needed to resolve the ownership of a vehicle and payment of the debt associated with that vehicle. Mr. Zinna was driving a vehicle leased in Ms. Zinna¡¯s name. The lease was due to expire in May 2002. Mr. Zinna wanted the vehicle, and Ms. Zinna did not object to this if he assumed payments.

    38. Mr. Zinna¡¯s counsel called the respondent and stated that Mr. Zinna would pay the monthly lease rental if Ms. Zinna would agree to acquiesce to his purchase of the vehicle at the end of the lease period. The respondent never conveyed this information to Ms. Zinna and the respondent never communicated an answer to Mr. Zinna¡¯s counsel. As a result, Mr. Zinna assumed that Ms. Zinna had refused to allow him to purchase the vehicle. Mr. Zinna stopped making the monthly lease payments and the vehicle was repossessed. Ms. Zinna owed $9,638.10 on the vehicle at the end of the contract.

    39. In addition to delaying the sale of the home, and creating problems related to the vehicle, respondent neglected basic litigation tasks. He failed to request information regarding disclosures from Ms. Zinna and failed to forward discovery requests to Ms. Zinna. In addition, he failed to inform Ms. Zinna that her deposition had been set. Opposing counsel filed a motion to compel and a motion for sanctions against Ms. Zinna. The respondent never informed Ms. Zinna that the motions had been filed against her.

    40. Respondent failed to timely communicate with Ms. Zinna. Despite the fact that he had her new address and her home and cell phone numbers, the respondent rarely contacted Ms. Zinna, despite numerous messages from her. Ms. Zinna had increasing trouble getting the respondent to return her telephone calls. Weeks passed before he would return calls.

    41. Finally on July 1, 2002, Ms. Zinna reached the respondent on his cell phone and the respondent told her he did not have time to talk but would call her back. When she called his cell phone the next day, it had been disconnected. She called his office number and left a message on his voicemail. On July 6, 2002, Ms. Zinna wrote to the respondent terminating his representation and requesting a refund of her retainer and the return of her file. Ms. Zinna never heard from the respondent again.

    42. Ms. Zinna then obtained new counsel, who immediately responded to the motion for sanctions and facilitated the closing of Ms. Zinna¡¯s home.

    43. Illustrative of respondent¡¯s incompetent handling of Ms. Zinna¡¯s matters was his ineffectual effort to halt the foreclosure. Respondent filed an ex parte motion to enjoin the sale and obtained an order. However, respondent did not name or join the bank and the public trustee as parties. As a result, the order was without effect and the sale went forward.

      Claim IV

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

    44. Paragraphs 29 through 44 are incorporated herein as if fully set forth.

    45. 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.

    46. The respondent failed to act with reasonable diligence and promptness and neglected Ms. Zinna¡¯s legal matters in each of the following respects:

      1. by failing to file a petition on behalf of Ms. Zinna and by delaying filing a response to Mr. Zinna¡¯s petition for almost three months;

      2. by failing to timely negotiate with Mr. Zinna¡¯s counsel concerning the sale of the marital residence;

      3. by failing to timely negotiate with Mr. Zinna¡¯s counsel concerning the lease of the vehicle;

      4. by failing to request information regarding disclosures from Ms. Zinna and by failing to forward discovery requests to Ms. Zinna;

      5. by failing to adequately coordinate Ms. Zinna¡¯s appearance at her deposition.

      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.

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

    48. The respondent¡¯s lack of diligence and promptness, and/or neglect caused serious injury to Ms. Zinna, who was required to pay over $3,000 to close the sale of her home, who was required to pay approximately $10,000 to the company that leased the vehicle, who was required to pay her new counsel over $1,000 in fees to correct the problems caused by respondent, and who was required to pay other miscellaneous costs which could have been avoided had respondent acted in a diligent fashion.

    49. The respondent¡¯s pattern and practice of failing to accomplish his professional tasks for Ms. Zinna constituted abandonment of the professional responsibilities he owed Ms. Zinna.

    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 1.3.

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim V

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

    51. Paragraphs 29 through 44 are incorporated herein as if fully set forth.

    52. 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.

    53. Respondent failed to keep Ms. Zinna reasonably informed about the status of her legal matters and failed to comply promptly with reasonable requests for information in the following respects:

      1. by failing to promptly and reasonably inform Ms. Zinna about the status of respondent¡¯s efforts (or lack thereof) to negotiate with Mr. Zinna¡¯s counsel concerning the sale of the house and the transfer of the leased vehicle;

      2. by failing to forward discovery Ms. Zinna;

      3. by failing to inform Ms. Zinna that her deposition had been set;

      4. by failing to inform Ms. Zinna that opposing counsel had filed a motion to compel and motion for sanctions against Ms. Zinna; and

      5. by failing to timely respond to Ms. Zinna¡¯s numerous messages to him.

      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.

    54. The respondent knew or should have known that he had failed to communicate adequately with Ms. Zinna over an extended period of months.

    55. The respondent¡¯s pattern and practice of failing to communicate with Ms. Zinna caused Ms. Zinna serious injury, including her having to pay over $3,000 to close the sale of her house, her being liable for approximately $10,000 on the vehicle lease, her being required to pay successor counsel over $1,000 to correct the mistakes made by respondent, and her having to pay other miscellaneous costs which resulted from respondent¡¯s delay.

    56. Respondent¡¯s failure to communicate on these matter constituted abandonment of his professional responsibilities owed to Ms. Zinna.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim VI

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

    58. Paragraphs 29 through 44 are incorporated herein as if fully set forth.

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

    60. Respondent failed to provide Ms. Zinna competent legal representation by failing to name or join the bank and the public trustee in his motion to enjoin the foreclosures sale of Ms. Zinna¡¯s residence. As a result of respondent¡¯s failure to do so, the order which respondent obtained was without effect and the foreclosure sale went forward.

    61. The respondent knew or should have known that he was failing to provide competent legal representation to Ms. Zinna, but made no efforts to remedy the situation.

    62. Respondent¡¯s failure to provide competent legal representation to Ms. Zinna caused serious or potentially serious injury to her, in that it contributed to the delay in the sale of her residence.

       

       

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE GREG STEWART MATTER

    64. Greg Stewart retained respondent in early 2002 to assist in having Mr. Stewart¡¯s child support obligation reduced due to a change in circumstances. Mr. Stewart had lost his job and could no longer afford to pay the child support ordered by the court. Mr. Stewart told respondent he wanted the child support obligation reduced as soon as possible.

    65. Respondent requested a $1,000 retainer. Mr. Stewart borrowed the money from his mother and sent it to respondent. Respondent cashed the check. There is no evidence that respondent did anything to earn the money he received.

    66. Mr. Stewart heard nothing from respondent thereafter. Mr. Stewart and his mother made numerous calls to respondent, leaving messages. None were returned. At one point, Mr. Stewart talked with a secretary who was working for respondent. The secretary was unable to tell Mr. Stewart what respondent was doing on the case. Because Mr. Stewart was unable to contact the respondent, he did not get the chance to ask for his money back or for an accounting.

      Claim VII

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

    67. Paragraphs 65 through 67 are incorporated herein as if fully set forth.

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

    69. Misrepresentation includes knowing conversion.

    70. Respondent knowingly converted Mr. Stewart¡¯s $1,000. Respondent took the retainer entrusted to him from Mr. Stewart without performing services therefor. Respondent knew he was not entitled to keep Mr. Stewart¡¯s retainer without performing services and, nonetheless, did so. Thus, the respondent knew the property still belonged to the client. The respondent also knew that his taking of these funds was not authorized by this client.

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

WHEREFORE, the complainant prays at the conclusion hereof.

    1. Claim VIII

(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))

    1. Paragraphs 65 through 67 are incorporated herein as if fully set forth.

    2. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

    3. Respondent violated this rule by taking money from Mr. Stewart and then abandoning his case. At the time the respondent abandoned the case, the respondent effectively terminated the representation. Respondent took no action to assist Mr. Stewart in reducing his child support obligation. Respondent did not return Mr. Stewart¡¯s and his mother¡¯s calls over a period of several months.

    4. The respondent failed to take steps to protect the client¡¯s interests. The respondent failed to give reasonable notice to the client that he terminated the representation. The respondent failed to allow time for employment of other counsel. The respondent failed to surrender papers and failed to return the retainer. Respondent knew or should have known that he was failing to protect Mr. Stewart¡¯s interests by not communicating with him and by not working on his case.

    5. Respondent caused injury to potential injury to Mr. Stewart, including by depriving him of counsel, by depriving him of the opportunity to reduce his child support obligation, and by delaying his obtaining of competent and diligent counsel to succeed respondent.

    6. The foregoing conduct of the respondent establishes grounds for discipline as provided for and in C.R.C.P. 251.5 and violates Colo. RPC 1.16(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE SHEREE DION BRACKEEN MATTER

    7. Sheree Brackeen retained respondent to represent her on a matter related to Ms. Brakeen¡¯s child support obligation. She paid respondent an $800 retainer, which she borrowed from her uncle. She later made additional payments to respondent, bringing the total to over $1,000. Ms. Brackeen turned over to respondent her file of the divorce case.

    8. During a meeting attended by respondent, Ms. Brackeen and her uncle, respondent made sexually suggestive comments to Ms. Brackeen while her uncle was out of the room. Ms. Brackeen told her uncle never to leave her alone with respondent again.

    9. Sometime later, Ms. Brackeen received a call from respondent¡¯s secretary. The secretary told Ms. Brackeen to meet respondent at the courthouse. When Ms. Brackeen arrived, respondent had already agreed to a settlement with opposing counsel. Respondent entered into this settlement without Ms. Brackeen¡¯s knowledge or consent.

    10. The settlement to which respondent had agreed required Ms. Brackeen to make child support payments prior to the date on which Ms. Brackeen customarily was paid by her employer. This meant that it would be difficult for Ms. Brackeen to make timely payments, because she would not have the money to do so. Instead, she would have to wait to receive her paycheck before making the child support payments.

    11. Ms. Brackeen pointed this out to respondent. He said "just agree to it" and that he would work things out with opposing counsel later. Respondent also told Ms. Brackeen that, if she didn¡¯t agree to the stipulation, she would go to jail. Based on respondent¡¯s statements, Ms. Brackeen agreed to the settlement the respondent had negotiated.

    12. Because she did not receive her paycheck until after the payments were due, Ms. Brackeen¡¯s payments were late. Ms. Brackeen continued making child support payments in this fashion for several months. She assumed the late payments were acceptable because respondent did not inform her of any objections raised by her ex-husband. Nor did respondent tell her that a contempt charge had been filed against her.

    13. However, unbeknownst to Ms. Brackeen, her ex-husband had filed a motion for contempt based on the late payments. Respondent did not inform Ms. Brackeen of this. And, respondent did not return her phone calls making inquires about the divorce case.

    14. Because of respondent¡¯s mishandling of some traffic tickets Ms. Brackeen had received (discussed below), she determined to fire respondent. Ms. Brackeen told respondent he was fired as her lawyer and that she would not pay for the mishandled traffic cases. Ms. Brackeen asked respondent to withdraw as her attorney in the divorce case and the traffic case and asked for her file back.

    15. Respondent did not withdraw and he did not return Ms. Brackeen¡¯s phone calls or respond to her messages that he return her file. She was unable to reach respondent for over two months. As a result she did not have her file of the divorce case and did not know what to do.

    16. Eventually, Ms. Brackeen called the court to ask how to get respondent off her divorce case. The court clerk told her that a hearing on her ex-husband¡¯s contempt motion was scheduled in two days. Respondent had never informed her of this. She filed her own motion for an extension of time, but the judge denied it.

    17. On the day of the hearing, respondent showed up. The judge asked Ms. Brackeen if she had made payments late and she said yes, because it was impossible to make timely payments. Respondent asked to withdraw and the judge granted his request.

    18. The trial of Ms. Brackeen¡¯s alleged contempt went forward without her having counsel. Opposing counsel asked for jail time and the judge sentenced her to 30 days in jail. In addition, she was ordered to pay thousands of dollars to her ex-husband¡¯s attorney, for fees incurred because respondent did not respond to the contempt motion.

    19. Because of this, Ms. Brackeen lost her job and lost her house. She feels that none of this would have happened had respondent listened to her and negotiated a child support payment schedule that she could meet timely.

    20. Respondent also represented Ms. Brackeen on several speeding tickets. She did not ask respondent to do this; he did it on his own. In one instance, respondent handled a speeding ticket for Ms. Brackeen in Englewood. He ended up confessing judgment and, as a result, she lost her license.

      Claim IX

      (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))

    21. Paragraphs 79 through 92 are incorporated herein as if fully set forth.

    22. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

    23. Respondent violated this rule by neglecting Ms. Brackeen¡¯s divorce case over a period of three months. During this time, respondent did not withdraw (as Ms. Brackeen had requested), did not return Ms. Brackeen¡¯s calls, did not return the retainer she had paid him, and continued to retain Ms. Brackeen¡¯s file, ignoring her messages that he return her file. Respondent also left Ms. Brackeen in the difficult position of being unable to retain substitute counsel before the hearing on Ms. Brackeen¡¯s ex-husband¡¯s contempt motion, with the result that Ms. Brackeen was forced to represent herself at that hearing.

    24. Respondent knew or should have known that he was failing to protect Ms. Brackeen¡¯s interest by not working on her case, by not communicating with her, by not moving to withdraw, and by not returning her file. Respondent also knew he had not earned the retainer she gave him, because he had not provided her with competent and diligent representation.

    25. Respondent caused injury or potential injury to Ms. Brackeen, including by depriving her of counsel, by depriving her of her file, and by delaying her obtaining of competent and diligent counsel to succeed him, with the result that, inter alia, Ms. Brackeen was required to represent herself at the contempt hearing.

    26. The foregoing conduct of the respondent establishes grounds for discipline as provided for and in C.R.C.P. 251.5 and violates Colo. RPC 1.16(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim X

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

    27. Paragraphs 79 through 92 are incorporated herein as if fully set forth.

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

    29. Respondent failed to provide Ms. Brackeen with competent legal representation by entering into an agreement with her ex-husband¡¯s counsel without first consulting Ms. Brackeen as to whether the terms of the settlement were feasible and appropriate. As a result of respondent¡¯s failure to discuss the negotiated terms with Ms. Brackeen, and respondent¡¯s failure to obtain authority from Ms. Brackeen to agree to the terms concerning the timing of the child support payments, Ms. Brackeen was exposed to liability for contempt of court and ultimately was found to have been in contempt of court.

    30. The respondent knew or should have known that he was failing to provide competent legal representation to Ms. Brackeen, but made no efforts to remedy the situation.

    31. Respondent¡¯s failure to provide competent legal representation to Ms. Brackeen caused serious or potentially serious injury to her, in that she was unable to make child support payments timely and ultimately was found to be in contempt of court for failing to do so.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XI

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

    33. Paragraphs 79 through 92 are incorporated herein as if fully set forth.

    34. 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.

    35. Respondent failed to keep Ms. Brackeen reasonably informed about the status of her legal matter and failed to comply promptly with reasonable requests for information in the following respects:

      1. respondent failed to inform Ms. Brackeen that a contempt citation had been filed against her;

      2. respondent failed to return Ms. Brackeen¡¯s calls; and

      3. respondent failed to inform Ms. Brackeen that her ex-husband had any objection to her making support payments late.

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

    36. The respondent knew or should have known that he had failed to communicate adequately with Ms. Brackeen over an extended period of months.

    37. The respondent¡¯s pattern and practice of failing to communicate with Ms. Brackeen caused serious or potentially serious injuries to her. Ms. Brackeen did not know that her ex-husband had raised objections to her making late payments of child support and that he had filed a motion for contempt against her, which had been scheduled for hearing without her knowledge. As a result of respondent¡¯s lack of communication, Ms. Brackeen was not able to adequately prepare for the contempt hearing or obtain successor counsel to aid her at the hearing. Ms. Brackeen suffered adverse consequences thereby, including being sentenced to thirty days in jail, being ordered to pay her ex-husband¡¯s attorneys fees, losing her job and losing her house.

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

    39. Respondent failed to explain to Ms. Brackeen her divorce matter and her traffic matters to the extent reasonably necessary to permit Ms. Brackeen to make informed decisions in the following respects:

      1. respondent failed to inform Ms. Brackeen of the consequences which might result from the settlement agreement respondent had negotiated on behalf of Ms. Brackeen;

      2. respondent failed to inform Ms. Brackeen of the consequences which might flow from her ex-husband¡¯s having filed a motion for issuance of a contempt citation;

      3. respondent failed to adequately discuss with Ms. Brackeen respondent¡¯s handling of Ms. Brackeen¡¯s speeding tickets.

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

       

    40. The respondent knew or should have known that he failed to properly explain the legal matters to Ms. Brackeen over an extended period of months.

    41. The respondent¡¯s pattern and practice of failing to explain these legal matters to Ms. Brackeen caused serious or potentially serious injury to her, in that she was held in contempt of court, sentenced to jail for thirty days, ordered to pay her ex-husband¡¯s attorneys fees, lost her driver¡¯s license and suffered economic damages.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE MICHELLE MARSCHEL MATTER

    43. Michelle Marschel retained respondent to represent her in a child custody matter. Ms. Marschel wanted to obtain custody of her child. She paid respondent $800.

    44. Respondent failed to file any motion requesting the court to give custody to Ms. Marschel. She left numerous messages for respondent but he did not return her calls.

    45. Finally, Ms. Marschel told the receptionist at respondent¡¯s office that she wanted her retainer back. Thereafter, respondent called and agreed to return the retainer. He sent a check, but it bounced. He sent a second check, which cleared, returning the $800.

    46. However, because of respondent¡¯s failure to prosecute her action, Ms. Marschel¡¯s efforts to obtain custody of her child likely will be delayed for at least six months. This is in part because she is now residing part time in Jacksonville, Florida and it will take six months to establish residency there. She has not yet been able to find another attorney to take her case, and the matter of her child¡¯s custody is in limbo.

      Claim XII

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

    47. Paragraphs 115 through 118 are incorporated herein as if fully set forth.

       

    48. 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.

    49. Respondent failed to act with reasonable diligence and promptness and neglected Ms. Marschel¡¯s legal matter by failing to file a motion for Ms. Marschel seeking custody of her child.

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

    51. The respondent¡¯s lack of diligence and promptness, and neglect caused serious or potentially serious injuries to Ms. Marschel. As a result of respondent¡¯s neglect, Ms. Marschel¡¯s efforts to obtain custody of her child likely will be delayed for a number of months.

    52. The respondent¡¯s pattern and practice of failing to accomplish his professional tasks for Ms. Marschel constituted abandonment of the professional responsibilities owed to her.

    53. 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 XIII

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

    54. Paragraphs 115 through 118 are incorporated herein as if fully set forth.

    55. 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.

    56. Respondent failed to keep Ms. Marschel reasonably informed about the status of her legal matters and failed to comply promptly with reasonable requests for information. Respondent did not communicate with Ms. Marschel about respondent¡¯s work on her motion requesting that the court give custody of her children to Ms. Marschel. Respondent also failed to return Ms. Marschel¡¯s numerous telephone messages to him. Each of these failures to communicate adequately with Ms. Marschel constituted a separate violation of Colo. RPC 1.4(a) as to do all of them together.

    57. The respondent knew or should have known that he had failed to communicate adequately with Ms. Marschel over a sustained period of time.

    58. The respondent¡¯s pattern and practice of failing to communicate with Ms. Marschel caused serious or potentially injury to Ms. Marschel, in that Ms. Marschel was delayed in obtaining custody of her child.

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XIV

      (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))

    59. Paragraphs 115 through 118 are incorporated herein as if fully set forth.

    60. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

    61. Respondent violated this rule by abandoning Ms. Marschel¡¯s case. Respondent abandoned Ms. Marschel by failing to make efforts to pursue Ms. Marschel¡¯s obtaining custody of her child and by failing to return Ms. Marschel¡¯s calls. By abandoning the client, the respondent effectively terminated the representation. The respondent then failed to take any steps to protect his clients¡¯ interests. In particular, the respondent did not notify the client that he had terminated the relationship.

    62. Respondent knew or should have known that he was failing to protect Ms. Marschel¡¯s interests by not communicating with her, by not working on her case, and in particular, by not filing the motion Ms. Marschel had requested concerning child custody.

    63. Respondent caused injury to potential injury to Ms. Marschel, including by depriving her of adequate counsel, by depriving her of her day in court concerning child custody, and by delaying her obtaining of custody of her children.

    64. The foregoing conduct of the respondent establishes grounds for discipline as provided for and in C.R.C.P. 251.5 and violates Colo. RPC 1.16(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE MARCUS FOSTER MATTER

    65. Mr. Foster hired respondent to defend him against charges including second-degree assault, a class four felony. Mr. Foster¡¯s brother paid respondent $2,000 as a retainer. Respondent prepared a retainer agreement stating that respondent would represent Mr. Foster through disposition or trial, and Mr. Foster signed it.

    66. As part of his bond, Mr. Foster was placed on a global positioning system ("GPS") ankle bracelet. This cost Mr. Foster $15 per day, more than Mr. Foster could afford. Mr. Foster asked respondent to file motions to have the bracelet removed and the bond reduced.

    67. Respondent appeared in Denver County Court and asked that the case be bound over to District Court for arraignment. Prior to the arraignment date, Mr. Foster asked respondent about hiring a private investigator. Respondent agreed to set up a meeting between Mr. Foster, a private investigator and respondent.

    68. As preparation for the meeting, respondent asked Mr. Foster to review the discovery provided by the prosecution and to note inconsistencies between the witnesses¡¯ statements. Respondent also asked Mr. Foster to prepare a statement of his version of the facts, including the witnesses¡¯ inconsistencies therein. This material was to be presented to the private investigator at the scheduled meeting. Mr. Foster did so.

    69. Mr. Foster appeared at the appointed time, but no private investigator attended. Instead, only respondent and his office manager were there. Respondent asked Mr. Foster to advance funds for the private investigator, which he did.

    70. Respondent also asked Mr. Foster to contact witnesses and set up appointments for them to be interviewed by the investigator. Mr. Foster did so, but was surprised that respondent¡¯s office was not handling this.

    71. At the end of the first full month of respondent¡¯s representation, Mr. Foster asked that respondent provide a bill, setting forth the hours respondent had spent on the case. Respondent promised to do so, but did not.

    72. Respondent and Mr. Foster attended the arraignment. Respondent asked for a continuance, on grounds he had not had sufficient time to prepare. The court granted the continuance.

    73. While at the arraignment, Mr. Foster again requested that respondent file a motion to reduce the bond and terminate the GPS ankle bracelet. Mr. Foster was concerned because he had fallen behind in his payments for the ankle bracelet, and the probation department was threatening to have him returned to jail. Respondent agreed to file the motion Mr. Foster requested before the next hearing, but did not do so. Respondent also promised to talk with the head of the GPS program, but apparently never did so.

    74. Prior to the continued arraignment, Mr. Foster spoke with the private investigator. The investigator had conducted a number of interviews, and Mr. Foster reviewed the interview summaries.

    75. At the continued arraignment, respondent entered a plea of not guilty on Mr. Foster¡¯s behalf. Respondent also requested that a motions hearing be set and the court scheduled one for about seven weeks in the future.

    76. Prior to the motions hearing, Mr. Foster tried calling respondent several times to discuss the motions respondent was to file and the interviews which the private investigator had conducted. Mr. Foster left messages, but respondent did not return the calls. Respondent then called Mr. Foster and told him to come to the office to pick up copies of additional interview summaries. Mr. Foster went to respondent¡¯s office twice, but was told that no summaries were available for him.

    77. As the motions hearing was approaching, respondent met with Mr. Foster at a restaurant. Respondent promised to file motions addressing suppression of the evidence, self-defense, and the amount of the bond. Respondent also gave Mr. Foster two witness interview summaries to read.

    78. At the motions hearing, despite Mr. Foster¡¯s requests that motions be filed and despite respondent¡¯s promises to do so, respondent told the court the defense had no motions. Mr. Foster was shocked and angry.

    79. The judge set trial for about ten weeks away. Respondent requested a disposition date prior to trial, and the judge scheduled that as well.

    80. At the disposition, respondent told Mr. Foster he had been unsuccessful at achieving a plea bargain with the prosecutor. Mr. Foster again asked respondent to request that the GPS ankle bracelet be removed.

    81. Respondent told Mr. Foster "it was time to get into trial mode". Respondent asked Mr. Foster for more money. Mr. Foster pointed out that he had never received a bill, and questioned whether respondent had used the entire $2,000 retainer. Respondent told Mr. Foster that the entire amount had been consumed with court appearances (i.e., the arraignment, continued arraignment, the motions hearing and disposition) and the two meetings, one at respondent¡¯s office and one at the restaurant. Mr. Foster gave respondent two post-dated checks for $500 each (the checks were post-dated to give Mr. Foster the time to obtain the funds to pay them).

    82. After the disposition hearing, Mr. Foster learned that the probation department was preparing to file a motion to send Mr. Foster back to jail, because Mr. Foster had fallen further behind on his payments for the GPS ankle bracelet. Mr. Foster called respondent about this; respondent did not return the call.

    83. Mr. Foster also called respondent about his (Mr. Foster¡¯s) reviewing additional witness interview summaries. Respondent did not return the call. Mr. Foster went to respondent¡¯s office, but no summaries were available for his review.

    84. When the date of the first post-dated check arrived, respondent cashed the check right away. However, respondent did not return Mr. Foster¡¯s calls made to respondent¡¯s office and cell phone. When Mr. Foster went by respondent¡¯s office, no one was there. The receptionist told Mr. Foster that respondent had cancelled his lease and removed his personal belongings. Mr. Foster stopped payment on the second post-dated check. Still respondent did not call.

    85. Mr. Foster called the private investigator, who told him that he had not heard from respondent in several weeks. The private investigator recommended that Mr. Foster find other counsel. The investigator gave Mr. Foster several names. As trial was fast approaching, Mr. Foster contacted and hired a new lawyer.

      Claim XV

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

    86. Paragraphs 137 through 157 are incorporated herein as if fully set forth.

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

    88. Respondent violated this rule by taking $500 (see paragraph 153) from Mr. Foster prior to trial for the purpose of preparing for trial, which respondent then failed to do.

    89. Respondent knew that Mr. Foster had given him the $500 as a retainer, to be applied to fees only as respondent earned them. Respondent knew that he was authorized to take the $500 only after he had spent the appropriate amount of time preparing for trial. Notwithstanding his knowledge of this, respondent took Mr. Foster¡¯s $500 retainer without having earned it.

    90. Respondent¡¯s misappropriation of Mr. Foster¡¯s $500 caused injury and potential injury to Mr. Foster in the amount of the converted funds.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XVI

      (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))

    92. Paragraphs 137 through 157 are incorporated herein as if fully set forth.

    93. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

    94. Respondent violated this rule by abandoning Mr. Foster¡¯s case after the disposition hearing, including by failing to give Mr. Foster notice that he was ending his work on Mr. Foster¡¯s case, by failing to return Mr. Foster¡¯s calls, by failing to return Mr. Foster¡¯s $500, by failing to return Mr. Foster¡¯s file, and by closing his office without informing Mr. Foster of his forwarding address. Each of these abandonments constitutes a separate violation of Colo. RPC 1.16(d) as do all of them together.

    95. Respondent knew or should have known that he was failing to protect Mr. Foster¡¯s interests over a sustained period of time by not communicating with him, by not working on his case, including the motions that respondent had promised to prepare, by failing to prepare for trial and, instead, by closing his office and disconnecting his telephone without notice to Mr. Foster and without returning to him his retainer or files.

    96. Respondent caused injury or potential injury to Mr. Foster, by depriving him of adequate and diligent counsel (e.g., for the filing of defense motions), and by delaying Mr. Foster¡¯s obtaining competent and diligent counsel to succeed respondent.

    97. The foregoing conduct of the respondent establishes grounds for discipline as provided for and in C.R.C.P. 251.5 and violates Colo. RPC 1.16(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XVII

      (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)

    98. Paragraphs 137 through 157 are incorporated herein as if fully set forth.

    99. 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.

    100. Respondent failed to act with reasonable diligence and promptness and neglected Mr. Foster¡¯s legal matters by failing to file motions on Mr. Foster¡¯s behalf, by failing to address Mr. Foster¡¯s difficulties related to the ankle bracelet, and by failing to prepare for trial. 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.

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

    102. The respondent¡¯s lack of diligence and promptness, and neglect caused serious or potentially serious injuries to Mr. Foster. Motions were not timely filed on Mr. Foster¡¯s behalf and, as a result, Mr. Foster continued to incur charges for the GPS bracelet that he could not afford. In addition, Mr. Foster was delayed in obtaining diligent and competent counsel.

    103. The respondent¡¯s pattern and practice of failing to accomplish his professional tasks for Mr. Foster constituted abandonment of the professional responsibilities owed Mr. Foster.

    104. 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 XVIII

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

    105. Paragraphs 137 through 157 are incorporated herein as if fully set forth.

    106. 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.

    107. Respondent failed to keep Mr. Foster reasonably informed about the status of his case and failed to comply promptly with Mr. Foster¡¯s reasonable requests for information in the following respects:

      1. respondent failed to return Mr. Foster¡¯s calls, made prior to the motions hearing;

      2. respondent failed to make available to Mr. Foster prior to the motions hearing additional interview summaries;

      3. respondent failed to respond to Mr. Foster¡¯s calls after the disposition hearing concerning the GPS ankle bracelet and concerning Mr. Foster¡¯s reviewing additional witness interview summaries;

      4. respondent did not return Mr. Foster¡¯s calls after respondent cashed the first post-dated check;

      5. respondent did not inform Mr. Foster that respondent has cancelled his lease and removed his personal belongings from his office.

      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.

    108. The respondent knew or should have known that he had failed to communicate adequately with Mr. Foster over an extended period of time.

    109. The respondent¡¯s pattern and practice of failing to communicate with Mr. Foster caused serious or potentially serious injury. Mr. Foster did not know what was happening on his cases, was prevented from participating appropriately in his cases, and was delayed in obtaining diligent and competent successor counsel.

    110. 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.

      THE TROY R. MOORE MATTER

    111. Troy Moore was employed by a construction company. The company accused Mr. Moore of embezzlement. After a sheriff¡¯s investigator contacted Mr. Moore, he retained respondent. He paid respondent a total of $2,800.

    112. Respondent and Mr. Moore met with the investigator. The investigator asked for a written statement from Mr. Moore, and respondent told Mr. Moore to prepare it. Mr. Moore did so and delivered the written statement to the receptionist at respondent¡¯s office.

    113. Mr. Moore never heard from respondent again. After several months, and after speaking with the Office of Attorney Regulation Counsel, Mr. Moore decided to hire a new lawyer. Mr. Moore has learned that the sheriff still has an open investigation on the matter.

      Claim XIX

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

    114. Paragraphs 183 through 185 are incorporated herein as if fully set forth.

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

    116. Respondent violated this rule by taking a total of $2,800 as a retainer from Mr. Moore and doing little or no work on his case.

    117. Respondent knew that Mr. Moore had given him the retainer with the understanding that respondent would be authorized to draw all or part of the retainer out of trust only after respondent had legitimately earned fees from working on the case. Notwithstanding this knowledge, respondent took the $2,800 and converted it to his own use without having performed services for Mr. Moore.

    118. Respondent¡¯s deceit caused injury to Mr. Moore in the amount of $2,800. Respondent¡¯s deceit also delayed and interfered with Mr. Moore¡¯s obtaining competent and diligent counsel.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE MICHELLE AUCKLY MATTER

    120. Michelle Auckly hired respondent to assist in her divorce. While reviewing a child-support worksheet, Ms. Auckly noticed a mathematical error in the number of her children¡¯s overnight visitations with their father. The amount had been calculated greater than the actual visits, resulting in a child-support underpayment to Ms. Auckly of approximately $100 per month.

    121. Ms. Auckly met with respondent and asked that he file a motion seeking to correct the error. Respondent promised to do so. When he did not, Ms. Auckly left messages, asking why. Respondent had his secretary call and ask Ms. Auckly for an additional $500. Ms. Auckly said she did not think an additional payment was appropriate, since respondent should have caught the mistake at the time child support was set.

    122. Ms. Auckly called respondent and left messages asking him to call to discuss the matter. Eventually, she left a message asking him to withdraw. Then, she ran into him at the Adams County Courthouse. Respondent said he would file the motion seeking correction but that he wanted $500 to do so. Respondent said he was willing to accept the $500 and forgive Ms. Auckly¡¯s substantial outstanding balance.

    123. Ms. Auckly protested that she was not aware of any outstanding balance. She had not received a bill from respondent for many months. Respondent promised "he would get all the charges together and get back with [Ms. Auckly] so we can clear this up". Ms. Auckly never heard from respondent again.

    124. After several weeks, Ms. Auckly faxed a letter to respondent terminating his services. She hired new counsel, who applied to the court for correction of the mathematical error. The application was denied due to the passage of time.

      Claim XX

      (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)

    125. Paragraphs 192 through 196 are incorporated herein as if fully set forth.

    126. 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.

    127. Respondent failed to act with reasonable diligence and promptness and neglected Ms. Auckly¡¯s legal matter by failing to file a motion for Ms. Auckly correcting a prior error in her child support calculation.

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

    129. The respondent¡¯s lack of diligence and promptness, and neglect caused serious injury to Ms. Auckly, because she was denied her opportunity to obtain a correction of the mathematical error and recovery of the underpayments.

    130. 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 XXI

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

    131. Paragraphs 192 through 196 are incorporated herein as if fully set forth.

    132. 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.

    133. Respondent violated this rule by failing to respond to Ms. Auckly¡¯s messages asking him to call to discuss the matter. Respondent also failed to contact Ms. Auckly to discuss the supposed outstanding charges.

    134. The respondent knew or should have known that he had failed to communicate adequately with Ms. Auckly over an extended period of time.

       

    135. The respondent¡¯s pattern and practice of failing to communicate with his clients caused serious injury to Ms. Auckly in that she lost her opportunity to obtain a recalculation of child support underpayments, and lost the opportunity to recover those underpayments.

    136. 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.

      THE LILLIAN GAMET MATTER

    137. On April 8, 2002, Lillian Gamet met and retained the respondent. She paid respondent $1,500. Ms. Gamet had been arrested and charged with driving under the influence of alcohol. Ms. Gamet told the respondent that she thought she had defenses to the allegations. In addition, Ms. Gamet believed that the arresting and booking officers had violated her rights.

    138. The respondent told Ms. Gamet that her matter was "a no brainer." He proceeded to talk about himself and to suggest that Ms. Gamet enter into a sexual relationship with him. The respondent and Ms. Gamet talked several more times on the telephone, with the respondent assuring her that she had nothing to worry about. The respondent additionally met Ms. Gamet at her place of business and asked her to hug him.

    139. On June 6, 2002, the respondent picked up Ms. Gamet at her home and they traveled to the Jefferson County Courthouse for a pretrial conference. Ms. Gamet had lost her driver¡¯s license and the respondent offered to take her to the courthouse. On the way there, the respondent asked Ms. Gamet questions about her case. Ms. Gamet realized that the respondent had done no background work on her case and that he did not know the details of her arrest.

    140. When they arrived at court, the respondent privately met with the assistant district attorney assigned to Ms. Gamet¡¯s case. The respondent then approached Ms. Gamet and told her that he wanted her to plead guilty. Ms. Gamet objected, stating that she was not guilty and did not wish to plead guilty. They then went into the courtroom and appeared before the court.

    141. The respondent told the judge that Ms. Gamet would plead guilty to the charges. The judge asked Ms. Gamet how she pled. Ms. Gamet contends that the respondent elbowed her in the side. Ms. Gamet states that she felt pressured and pled guilty. The judge asked if her plea was coerced or if she was under the influence of medication. Ms. Gamet contends she paused for a long time, her eyes filled with tears, and she answered in the negative. A sentencing hearing was then set for August 22, 2002.

    142. On August 8, 2002, the respondent was immediately suspended from the practice of law. The respondent was informed of that fact by telephone shortly thereafter. On August 12, 2002, attorney Kim Ikeler and investigator Karen Bershenyi met with the respondent. Mr. Ikeler informed the respondent of his duty to inform his clients of his suspension.

    143. On the evening of August 12, 2002, the respondent called Ms. Gamet and told her that she was to meet him at the courthouse on August 22, 2002 for her sentencing. He told her that she would be fine. He did not inform her that he had been suspended.

    144. On August 13, 2002, after doing a search of the respondent¡¯s open cases, investigator Karen Bershenyi called Ms. Gamet to inform her that the respondent had been immediately suspended and could no longer represent her and that she would have to retain new counsel if she had any outstanding issues. Ms. Gamet expressed shock and dismay.

    145. On August 22, 2002, Ms. Gamet did not appear at her sentencing due to the fact that she had no counsel and believed that she would be thrown in jail immediately. She received a call from the respondent who stated that he was at the courthouse and told her that she must appear. Ms. Gamet contends that she told the respondent that he was in a lot of trouble and was not supposed to be there. The respondent replied that he was there for her. The respondent did not appear before the court and a warrant was issued for Ms. Gamet¡¯s arrest.

      Claim XXII

      (Engaging In Any Other Conduct That Adversely Reflects On The Fitness To Practice Law ¨C Colo. RPC 8.4(h); Conflict Of Interest-Colo. RPC 1.7(b))

    146. Paragraphs 209 through 217 are incorporated herein as if fully set forth.

    147. 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.

    148. Colo. RPC 1.7(b) provides a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer¡¯s responsibilities to a another client or to a third person, or by the lawyer¡¯s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.

    149. Respondent violated these rules by propositioning Ms. Gamet for sex and by suggesting that she enter into a sexual relationship with him while he was representing her.

    150. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 8.4(h) and 1.7(b).

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XXIII

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

    151. Paragraphs 209 through 217 are incorporated herein as if fully set forth.

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

    153. Respondent failed to provide Ms. Gamet competent legal representation by inadequately advising Ms. Gamet with regard to her defenses to the charges against her. Respondent also failed to investigate Ms. Gamet¡¯s case in order to be reasonably prepared for the pre-trial conference. Each of these failures by the respondent constitutes a separate incident of failure to provide competent legal representation, as do all of them together.

    154. Respondent knew or should have known that he was failing to provide competent legal representation to Ms. Gamet, but made no effort to remedy the situation.

    155. The respondent¡¯s failure to provide competent legal representation to the client caused serious injury to her, in that she entered a plea of guilty without having competent advice available to her.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XXIV

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

    157. Paragraphs 209 through 217 are incorporated herein as if fully set forth.

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

    159. Respondent violated this rule by taking $1,500 from Ms. Gamet and doing little or no work.

    160. Respondent knew that he was authorized to pay himself from the $1,500 retainer given to him by Ms. Gamet only after respondent had performed an appropriate amount of work on the case. Knowing that he was not authorized to take Ms. Gamet¡¯s money without doing work, respondent nonetheless did so.

    161. Respondent¡¯s deceit caused injury to Ms. Gamet because he took $1,500 from her, and because he delayed and interfered with her obtaining competent and diligent counsel.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XXV

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

    163. Paragraphs 209 through 217 are incorporated herein as if fully set forth.

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

    165. Respondent knowingly disobeyed this rule by endeavoring to continue to represent Ms. Gamet after respondent had been immediately suspended from the practice of law, and after the respondent knew of such suspension. Respondent told Ms. Gamet to meet him at the courthouse, where he intended to enter his appearance as her counsel. It was only because Ms. Gamet was alerted to respondent¡¯s suspension and refused his services that respondent did not further violate his immediate suspension.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE MICHELLE ABUNDIS MATTER

    167. On December 4, 2001, Michelle Abundis and her husband Salvador met with the respondent and retained him to handle a child support matter for them. Mr. Abundis had received a letter from California Child Support Services alleging that he owed child support for a child he allegedly had fathered. The Abundis family told the respondent that they wanted a paternity test to be done. The respondent advised them that he would take care of it and Mr. Abundis would not have to travel to California. Michelle Abundis wrote the respondent a $500 check as a retainer. The respondent stated that he would call within two weeks.

    168. The respondent never contacted the Abundises again despite the fact that they have made numerous attempts to contact him. They believe that the respondent did nothing with regard to Mr. Abundis¡¯ case.

      Claim XXVI

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

    169. Paragraphs 239 through 240 are incorporated herein as if fully set forth.

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

    171. Respondent violated this rule by taking $500 from Ms. Abundis and doing little or no work. Respondent knew he was not authorized to pay himself from Ms. Abundis¡¯ $500 retainer until he had performed sufficient services to merit his being paid. Knowing that he was not authorized to take any of Ms. Abundis¡¯ money for himself without performing work, respondent nonetheless did so.

    172. Respondent¡¯s deceit caused injury to Ms. Abundis because he took $500 from her and because he delayed and interfered with her obtaining competent and diligent counsel.

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

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XXVII

      [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)]

    174. Paragraphs 239 through 240 are incorporated herein as if fully set forth.

    175. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

    176. Respondent violated this rule by failing to take action to resolve the Abundis family¡¯s child support matter, including by failing to respond to the letter from California Child Support Services and by failing to arrange to have a paternity test done. Respondent also failed to respond to calls from Ms. Abundis and her husband over a period of months, at the end of which Ms. Abundis and her husband learned that respondent¡¯s phone had been disconnected. Respondent gave Ms. Abundis no notice that he was terminating the attorney-client relationship. Respondent also failed to return to Ms. Abundis the $500 which she had given him as a retainer.

    177. Respondent knew or should have known that he was failing to protect his client¡¯s interests by not communicating with her, by not working on her case, and by closing his office and disconnecting his telephone without notice to her and without returning her retainer.

    178. Respondent caused injury or potential injury to Ms. Abundis, including by delaying the resolution of the child support matter and by delaying her obtaining competent and diligent counsel to succeed him.

    179. The foregoing conduct of the respondent establishes grounds for discipline as provided for and in C.R.C.P. 251.5 and violates Colo. RPC 1.16(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      Claim XXVIII

      (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-Colo. RPC 1.3)

    180. Paragraphs 239 through 240 are incorporated herein as if fully set forth.

    181. 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.

    182. Respondent violated this rule by failing to arrange a paternity test for Mr. Abundis, by failing to respond to the California Child Support Service¡¯s letter to Mr. Abundis, and by failing to perform other work on the case.

    183. Respondent caused injury or potentially injury to Ms. Abundis, including by delaying the resolution of the child support matter and by delaying her obtaining competent and diligent counsel to succeed him.

    184. 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 XXIX

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

    185. Paragraphs 239 through 240 are incorporated herein as if fully set forth.

    186. 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.

    187. Respondent violated this rule by failing to call Ms. Abundis over a period of many months, despite his promise to do so. Respondent also failed to return Ms. Abundis¡¯ numerous calls to him.

    188. Respondent caused injury or potential injury to Ms. Abundis, including by delaying the resolution of the child support matter and by delaying her obtaining competent and diligent counsel to succeed him.

    189. 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.

      RESPONDENT¡¯S AFFAIR WITH A CLIENT

    190. Charlene Walker is a former employee of respondent. She worked for him as his assistant from February through April 2002. During that time she fielded calls from clients and opposing counsel and handled other secretarial tasks in respondent¡¯s criminal law and family law practice.

    191. In the weeks after Ms. Walker began her employment, respondent did not want to talk to anyone except a handful of clients. He had met a new client, Katia Thomas, and was now representing her and sleeping with her. He put off attorneys who called trying to discuss cases; he wouldn¡¯t do "paperwork" on the cases.

    192. Instead, respondent would constantly talk about his girlfriend. She was young, from Brazil and had an 18 month old child. If she called or came by, he would drop everything. Ms. Thomas needed legal help with her divorce and with immigration problems. However, respondent never seemed to find the time to work on her case; he just rescheduled meetings and phone calls. Instead of working for her, he preferred taking her out on dates. He also took a vacation with her.

    1. Claim XXX

(Engaging In Any Other Conduct That Adversely Reflects On The Fitness To Practice Law ¨C Colo. RPC 8.4(h); Conflict Of Interest-Colo. RPC 1.7(b))

    1. Paragraphs 262 through 264 are incorporated herein as if fully set forth.

    2. 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.

    3. Colo. RPC 1.7(b) provides that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer¡¯s responsibilities to a another client or to a third person, or by the lawyer¡¯s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.

    4. Respondent violated these rules by engaging in a sexual relationship with a client, Katia Thomas, a young and vulnerable immigrant,.

    5. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 8.4(h) and 1.7(b).

      WHEREFORE, the complainant prays at the conclusion hereof.

      RESPONDENT¡¯S FAILURE TO COOPERATE WITH THE INVESTIGATION

    6. The Office of Attorney Regulation Counsel ("OARC") made numerous efforts to notify respondent of the above-referenced requests for investigation and to obtain his responses. Although at one point respondent told OARC¡¯s investigators he was hiring counsel, he did not do so and did not otherwise participate in the process.

    7. As a result, undersigned counsel prepared and filed a Petition for Immediate Suspension, which was granted on August 6, 2002. Respondent failed to fulfill the requirements of Rule 251.28 for action after a suspension, including filing an affidavit with the Colorado Supreme Court. This despite two written reminders to do so.

    8. Respondent left for OARC¡¯s investigators the task of contacting his former clients and returning to them what remained of respondent¡¯s files. Respondent left some of these with a former employer (who brought them to OARC) and some in an apartment he vacated (Investigator Bershenyi had to collect these). It took OARC¡¯s investigators a number of weeks and substantial time to contact these persons and return files to those who requested them.

    9. Respondent moved from one address to the next, making it hard to send notices to him. Eventually, he dropped out of sight. In a last effort to locate him, Investigator Bershenyi tracked down respondent¡¯s mother in Arizona. OARC¡¯s investigators called her and she provided a Denver address. Copies of all the requests for investigation were sent to that address. Respondent did not reply.

      Claim XXXI

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

    10. Paragraphs 270 through 273 are incorporated herein as if fully set forth.

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

    12. Respondent knew that investigations were proceeding, including because respondent met with undersigned counsel and an investigator to discuss the transfer of respondent¡¯s files to his client or successor counsel. Respondent said he was retaining counsel (although he did not do so). However, respondent failed to respond to repeated attempts by the Office of Attorney Regulation Counsel to obtain information from the respondent, including numerous mailings by certified and regular mail.

    13. The respondent knew or should have known that he was failing to cooperate and respond to the requests by Attorney Regulation Counsel.

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

    15. Colo. RPC 8.1(b) provides that a lawyer in connection with a disciplinary matter shall not knowingly fail to respond reasonably to a lawful demand for information from a disciplinary authority, except if the information is protected by Colo. RPC 1.6 or there is a good faith challenge to the demand.

    16. Respondent knowingly violated the rule by failing to respond to the demands for information made by Attorney Regulation Counsel during the investigation of the subject matters of this disciplinary proceeding, despite respondent¡¯s knowledge that OARC was investigating him.

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

    18. The respondent made no good faith challenge to the demand by Attorney Regulation Counsel for such information; in fact, the respondent failed to participate at all in the investigation, and was suspended for so doing.

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

WHEREFORE, the complainant prays at the conclusion hereof.

    1. Claim XXXII

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

    1. Paragraphs 270 through 273 are incorporated herein as if fully set forth.

       

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

    3. The respondent knowingly disobeyed this rule by failing to comply with C.R.C.P. 251.28, including by failing to file the required affidavit with the Colorado Supreme Court following a suspension.

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

WHEREFORE, the 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 clients, and/or the client protection fund pursuant to C.R.C.P. 252.14(b); and that the respondent be assessed the costs of this proceeding.

 

 

SUPREME COURT, STATE OF COLORADO
ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

600 17th Street, Suite 510-South
Denver, Colorado 80202

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

GLENDA DODD GIFFFORD.

Case Number: 03PDJ006

REPORT, DECISION AND IMPOSITION OF SANCTION

 

Opinion issued by a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members

John M. Lebsack and Douglas D. Piersel, members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15(b) was held on June 23, 2003, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, John M. Lebsack and Douglas D. Piersel both members of the bar. James C. Coyle, Deputy Regulation Counsel, represented the People of the State of Colorado (the "People"). Glenda Dodd Gifford, the respondent ("Gifford"), appeared on her own behalf.

On January 27, 2003, the People filed a Complaint in the above-entitled matter. Gifford, through counsel, filed an Answer on March 3, 2003. An at-issue conference occurred on March 27, 2003. Pursuant to the at-issue conference order, initial disclosures were required on or before April 7, 2003. The People filed their initial disclosures on April 1, 2003. Gifford failed to file initial disclosures. On April 10, 2003, the Colorado Supreme immediately suspended the respondent from the practice of law based upon some of the facts alleged in the Amended Complaint. On April 23, 2003, counsel for the respondent moved to withdraw. On April 29, 2003, the People filed a motion for order compelling discovery based upon Gifford¡¯s failure to provide initial disclosures. Gifford did not respond to the motion to compel. The PDJ entered an order compelling Gifford to file disclosures. Gifford did not comply with the PDJ¡¯s order. On April 30, 2003, the People filed an unopposed motion for leave to file an Amended Complaint and attached a copy of the proposed amended complaint. On May 1, 2003, the PDJ granted the People¡¯s unopposed motion for leave to file the Amended Complaint which was accepted for filing the same day. Gifford filed no response to her counsel¡¯s motion to withdraw and on May 8, 2003, the PDJ granted the motion to withdraw.

On May 15, 2003, the People filed a motion for default due to Gifford¡¯s failure to file an Answer to the Amended Complaint. Gifford neither responded to the People¡¯s motion for default nor filed an Answer to the Amended Complaint. On June 3, 2003, the PDJ issued an order granting the People¡¯s motion for default. Claims one, two, four, through fourteen, sixteen through twenty, twenty-two and twenty-three were deemed admitted. The People filed a motion to dismiss claim fifteen; that motion was granted on June 4, 2003. Claims three and twenty-one, asserted as alternative claims, were also dismissed.

A sanctions hearing was set in the above-entitled matter for June 23, 2003. At the sanctions hearing, the People¡¯s exhibits 1 through four, six and seven were admitted into evidence. On June 25, 2003, after the conclusion of the sanctions hearing, Gifford filed an unverified pleading captioned "Request for Consideration" seeking to place before the Hearing Board facts not presented at the time of the sanctions hearing. On July 8, 2003, Gifford filed an additional unverified pleading captioned "Motion for Leniency" again seeking to place additional facts before the Hearing Board not presented at the sanctions hearing. These two pleadings were considered by the Hearing Board as argument only. The Hearing Board considered the exhibits, the facts established by the entry of default, and the parties¡¯ argument, and made the following findings of fact which were established by clear and convincing evidence.

  1. FINDINGS OF FACT

Glenda Dodd Gifford has taken and subscribed to the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 23, 1995, and is registered upon the official records of the Supreme Court, registration number 26058. She is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the amended complaint were deemed admitted by the entry of default, and were therefore established by clear and convincing evidence. See the amended complaint attached hereto as Exhibit "1". The entry of default also deemed established the violations of the Rules of Professional Conduct set forth therein, except for two alternative claims asserting a violation of Colo. RPC 1.15(a) (claims three and twenty-one), and one claim asserting a violation of Colo. RPC 1.8(a) (claim fifteen). Claims three, fifteen and twenty-one were dismissed.

  1. CONCLUSIONS OF LAW

    In the Duran matter, the order entering default established that Gifford violated Colo. RPC 1.1 (a lawyer shall provide competent representation to a client), Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information), Colo. RPC 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), Colo. RPC 1.15(c) (a lawyer shall keep disputed property separate until there is an accounting and severance of the disputed interest), Colo. RPC 1.15(g)(1) (a lawyer shall make a trust account withdrawal only by authorized bank or wire transfer or by check payable to a named payee, and not to cash), Colo. RPC 1.16(d) (upon termination, a lawyer shall take steps to protect a client¡¯s interest and surrender papers and property to the client), Colo. RPC 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal), Colo. RPC 3.4(d) (in pre-trial procedure, a lawyer shall not make a frivolous discovery request), Colo. RPC 3.4(e) (a lawyer shall not in trial assert personal knowledge of facts and issue except when testifying as a witness), Colo. RPC 4.2 (in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so), Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation ¨C knowing conversion and other dishonesty), and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to administration of justice).

    In the Phillips matter, the order entering default established that Gifford violated Colo. RPC 1.1 (a lawyer shall provide competent representation to a client), Colo. RPC 1.2(d) (a lawyer shall not counsel a client to engage in conduct that the lawyer knows is criminal), Colo. RPC 1.16(d) (upon termination, a lawyer shall take steps to protect a client¡¯s interest and surrender papers and property to the client), Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation), Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to administration of justice), and Colo. RPC 8.4(h) (it is professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer¡¯s fitness to practice law).

    In the Campanella-Kortobi matter, the order entering default established that Gifford violated Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation ¨C knowing conversion), Colo. RPC 1.16(d) (upon termination, a lawyer shall take steps to protect a client¡¯s interest and surrender papers and property to the client) and Colo. RPC 1.15(b) (upon receiving funds or other property in which the client has an interest, a lawyer shall deliver to the client any funds or other property that the client is entitled to receive and, upon request by the client, render a full accounting regarding such property).

    A review of these three client matters reveals the magnitude of Gifford¡¯s misconduct. In the Duran matter, Gifford misappropriated funds held in escrow for a parenting evaluation and applied them to an outstanding attorney¡¯s fee bill. Gifford took such funds knowing that ownership of said funds was in dispute between the parenting evaluator and the client. Gifford knew that neither the parenting evaluator nor the client had authorized her to take such funds, and knew that her client was in bankruptcy proceedings (which listed Gifford as a creditor) at the time she withdrew the funds. Through her unauthorized exercise of dominion or ownership over the entrusted funds, Gifford knowingly converted or misappropriated funds belonging to others. Gifford also knowingly converted client Marnie Campanella-Kortobi¡¯s retainer prior to earning such funds.

    Gifford engaged in further acts of dishonesty, fraud, deceit and misrepresentation when she submitted false billing statements regarding her representation in the Duran matter to the Office of Attorney Regulation Counsel in October 2002. In addition, Gifford made a false statement of material fact to the district court in the Duran dissolution matter, and recorded false information contained in a notice and claim of lien filed with the Arapahoe County Clerk and Recorder¡¯s Office in the Phillips matter. Gifford also counseled her client in the Phillips matter to engage in conduct that Gifford knew was criminal in nature: offering real estate in exchange for a recantation of testimony by his ex-wife and another witness in a pending criminal matter. Gifford knew such conduct was illegal as she had previously discussed this issue with her client in August 2000 and had discouraged him from following that course of conduct at that time, and had specifically stated to the client at that time that she considered such conduct illegal.

    Gifford also failed to provide her clients in the Duran and Phillips matters with competent legal representation on numerous occasions, including when she informed Duran and her mother that they would get all of their attorneys fees back by court order even if Gifford had to personally "put a padlock" on the husband¡¯s office and sell off his equipment; by violations of the Colorado Rules of Civil Procedure in the preparation and handling of subpoenas in the Duran matter; by filing a motion to compel discovery in the Duran matter without having made formal requests for discovery; and by issuing a "notice of paper deposition" to the opposing party in the Duran matter in lieu of complying with production of document requests under Rule 34; by failing to present evidence on attorney fees at the Duran dissolution hearing; by testifying during her cross-examination and direct examination of witnesses in several hearings in the Duran matter.

    In all three client matters, Gifford failed to take steps to the extent reasonably practicable to protect each of these client¡¯s interests after she was terminated by failing to return client files, provide accountings or return unearned retainers. The record demonstrates that subsequent attorneys were forced to make numerous attempts to communicate with Gifford, and sometimes seek court intervention, in order to obtain client files prior to upcoming hearings.

    Additional misconduct by Gifford included failure to communicate with her client in the Duran matter, writing a check to cash (in the amount of $64,424.75) from her trust account, communicating about the subject of the representation with a party Gifford knew was represented by counsel on two occasions in the Duran matter, and improperly recording a charging lien on real property in the Phillips matter.

  2. SANCTION/IMPOSITION OF DISICIPLINE

    The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for this lawyer¡¯s misconduct. ABA Standard 4.11 provides that disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. The presumed sanction for knowing conversion of client funds is disbarment. See People v. Varallo, 913 P.2d 1 (Colo. 1996). Standing alone, the respondent¡¯s conduct in converting escrowed funds in the Duran matter, and client funds in the Campanella-Kortobi matter, require disbarment. See People v. Varallo, 913 P.2d 1 (Colo. 1996). On the date of the sanctions hearing, Gifford had not returned the converted funds.

    ABA Standard 4.41 provides that disbarment is generally appropriate when: a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client, or engages in a pattern of neglect with respect to client matters and causes serious of potentially serious injury to a client. Gifford¡¯s pattern of neglect in failing to return client files in all three matters caused injury to each of these clients. The injuries Gifford caused the clients were potentially serious.

    Pursuant to ABA Standards 9.22 and 9.32, respectively, the Hearing Board considered aggravating and mitigating factors in arriving at the appropriate sanction. No mitigating factors were established other than absence of a prior disciplinary record, see id. at 9.32(a). The facts deemed admitted in the Amended Complaint established a dishonest or selfish motive, see id. at 9.22(b); a pattern of misconduct, see id. at 9.22(c); Gifford engaged in multiple offenses see id. at 9.22(d); she submitted false evidence during the disciplinary process see id. at 9.22(f), and Gifford demonstrated indifference to making restitution, see id. at 9.22(j).

    Gifford¡¯s other dishonest acts -- incompetence, instances of failure to communicate, failure to properly handle client funds, failure to surrender property, failure to abide by the Colorado Rules of Evidence and Procedure, and mishandling of liens -- amongst other misconduct, reinforce the decision to impose the sanction of disbarment.

     

  3. ORDER

It is therefore ORDERED:

              1. GLENDA DODD GIFFORD, attorney registration 26058, is DISBARRED from the practice of law effective 31 days from the date of this order.
              2. Gifford is Ordered to pay the costs of these proceedings in the amount of $6,870.33, within 60 days of the date of this order.
              3. Gifford is further ordered to reimburse the Colorado Attorney Fund for Client Protection the sum of $2,551.25, plus statutory interest from April 22, 2003, for its April 22, 2003, payment to client Amy Duran, within 30 days of the date of this order; and reimburse the same fund $1,242.10, plus statutory interest from April 22, 2003, for its April 22, 2003, payment to client Marnie Campanella-Kortobi, within 30 days of the date of this order.

 

 

 

DATED THIS 3rd DAY OF SEPTEMBER, 2003.

(SIGNED)
____________________________________
ROGER L. KEITHLEY
PRESIDING DISCIPLINARY JUDGE

 

 

(SIGNED)

____________________________________
JOHN M. LEBSACK

HEARING BOARD MEMBER

 

 

(SIGNED)

____________________________________
DOUGLAS D. PIERSEL

HEARING BOARD MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT "A"

 

 

 

 

 

 

 

SUPREME COURT, STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

600 17th Street, Suite 510-South

Denver, Colorado 80202

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

GLENDA DODD GIFFORD

James C. Coyle, #14970

Deputy Regulation Counsel

John S. Gleason, #15011

Regulation Counsel

Attorneys for Complainant

600 17th Street, Suite 200-South

Denver, Colorado 80202

Telephone: (303) 893-8121 ext. 328

Fax No.: (303) 893-5302

 

 

 

 

 

 

 

 

 

¡øCOURT USE ONLY¡ø

Case Number:

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. 26058. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 621 17th Street, Suite 2210, Denver, Colorado 80202.

General Allegations

THE JACK DURAN/JUANITA RICE/AMY SZOT/PATRICIA BEHRENS MATTERS

    1. Jack E. Duran is an orthodontist. Dr. Duran and Amy Wallace began a relationship in Ohio and continued that relationship when they arrived together in Colorado in July/August 1996. Amy worked as an assistant in Dr. Duran¡¯s orthodontic business. The couple also had a daughter in the spring of 1998 (Jacklynn). Jack and Amy both referred to Amy as "Amy Duran" during the course of their relationship.

    2. At some point in the summer of 1998, Jack Duran believed Amy was embezzling monies from the business. Several matters resulted, including: (a) a criminal complaint filed by Jack Duran against Amy; (b) an unemployment benefits matter involving Amy¡¯s employment with the business; (c) a dissolution of common law marriage action filed by Amy; and (d) a civil action for slander/defamation of character filed by Amy against Jack, Jack¡¯s father, and Jack¡¯s mother.

    3. The respondent represented Amy in the dissolution matter and the unemployment compensation matter, and assisted Amy during the police investigation into potential criminal misconduct regarding the embezzlement allegations.

    4. An attorney-client relationship was entered into on October 21, 1998, thereby forming an obligation on the part of respondent to perform the agreed-upon services. By agreeing to perform the requested services, the respondent inherently represented that she would provide the services in accordance with the Colorado Rules of Professional Conduct.

    5. The client¡¯s mother, Patricia Behrens, paid the respondent¡¯s initial retainer. At an October 1998 meeting, the respondent informed her client and the client¡¯s mother that the mother would get all of her money back by court order even if the respondent had to personally "put a padlock" on Jack Duran¡¯s office and sell off his equipment.

    6. On November 13, 1998, Amy Duran (by and through the respondent) filed a petition for dissolution of common law marriage against Jack Duran in In re the Marriage of Duran, case no. 98DR3077, Arapahoe County District Court. A domestic case management and delay reduction order was entered on that same date, requiring that the parties meet and attempt in good faith to resolve temporary orders, that the matter be submitted to some form of alternative dispute resolution, and that case management, disclosure and discovery be conducted in accordance with C.R.C.P. 16.2 and 26.2.

    7. On December 1, 1998, Jack Duran filed his response, and denied that the parties were married at any time, and filed a counter-petition for custody of Jacklynn.

    8. On December 10, 1998, Jack Duran, though attorney Amy Loper, filed a verified motion for determination of existence of common law marriage.

    9. On December 17, 1998, a hearing on permanent orders before Judge Jack Smith was scheduled for October 18-20, 1999. On January 2, 1999, Judge Smith ordered that the matter of common law marriage also be heard on October 18-20, 1999. A hearing on temporary orders was scheduled for February 19, 1999.

    10. On February 10, 1999, the respondent prepared and signed a subpoena to appear and produce documents that was directed to Jack Duran¡¯s father:

    1. The subpoena directed the father to appear in division M of the Arapahoe County District Court on February 18, 1999 at 10:00 a.m. as a witness for Amy Duran (the subpoena instructed him to arrive at 9:45 a.m.).

    2. The subpoena also directed the father to produce documents that might support his interest in his son¡¯s business, and that "support or refute" any claim that Amy may have embezzled funds from him, his son, or the business.

    3. While there was a temporary orders hearing scheduled on February 19, 1999 at 2:30 p.m., there were no proceedings scheduled for February 18, 1999 in the dissolution matter.

    4. The subpoena was served upon Jack Duran (the son) at approximately 1:45 p.m. on February 17, 1999, and not upon the intended recipient of the subpoena.

    5. No attendance or mileage fee was served with the document, and no notice was given to either attorney Loper or to Jack Duran¡¯s father regarding the subpoena or the February 18 event.

    6. Furthermore, the respondent wrote the following on the face of the document: "failure to appear may result in your arrest."

    1. On February 17, 1999, attorney Loper filed a joint motion to quash on behalf of her client and the client¡¯s father, requesting that the subpoena be quashed because the subpoenas were not served 48 hours before the time of appearance, and no court order was issued permitting the time to be shortened (C.R.C.P. 45(c)); that the requisite attendance fee and mileage were not tendered with said subpoena (C.R.C.P. 45(c)); that five days notice to opposing counsel was not provided, nor had the respondent made any effort to schedule the appearance at a time reasonably convenient to either the father, the son, or attorney Loper (C.R.C.P. 121, ¡ì 1-12(1)); and that the attempted service was made upon the son at his place of business, and not upon the father, and therefore personal service had not been achieved on the father (C.R.C.P. 4(e)(1)). Furthermore, attorney Loper objected to the handwritten statement on the subpoena that stated "failure to appear may result in your arrest" as a "totally false threat given the invalidity of the attempted service."

    2. On February 19, 1999, the first of three temporary orders hearings occurred. At that hearing, the parties stipulated that on an interim basis Amy would be the sole legal custodian of Jacklynn. The court accepted that stipulation and ordered that until a continued temporary orders hearing (scheduled for March 31, 1999) occurred, Amy would have sole legal custody of Jacklynn (Amy had relocated to Great Bend, Kansas).

    3. The court also ordered Amy to immediately sign a release that had already been furnished by attorney Loper for Amy¡¯s First Bank account.

    4. On March 12, 1999, Judge Smith entered an order quashing the respondent¡¯s February 10 subpoena, and granted the protective order and awarded attorney fees against Amy Duran and respondent Gifford. The court further ordered:

      Petitioner and her counsel are ordered to desist from any further discovery which is not conducted in compliance with the Colorado Rules of Civil Procedure.

    5. On March 15, 1999, attorney Loper filed a motion to compel discovery, requesting overdue responses to pattern interrogatories and pattern and non-pattern requests for production of documents, to compel Amy to comply with the mandatory disclosure requirements of C.R.C.P. 26.2(a), and to compel Amy to execute releases for her First Bank account. Prior correspondence amongst attorneys Loper and Gifford demonstrate that Gifford disputed whether the court had ordered Amy to sign the release regarding her bank account.

    6. On March 18, 1999, interim temporary orders submitted by attorney Loper were made an order of court. An alternate form submitted by respondent Gifford was not approved.

    7. On March 24, 1999, the respondent filed a response to attorney Loper¡¯s motion to compel discovery and also filed a "motion to compel discovery and motion to order (Jack Duran) to comply with orders of the court and motion for sanctions/attorney fees." In the response and motions, the respondent stated that the "First Bank release has been dealt with." This statement was false; no release had been signed for the bank account as of the date of said response. Instead, the respondent and her client had produced two months of statements on one account and the 1996 statements from another account. This limited production of documents was in violation of the prior court order that Amy immediately sign the release.

    8. The respondent knew that the above statement contained in her response pleading was false at the time she made such statement.

    9. Respondent Gifford¡¯s March 24, 1999, motion to compel Jack Duran to provide discovery was not based on Jack Duran¡¯s failure to answer any formal discovery, but instead on a claim that documents informally requested had not been produced. Respondent failed to disclose this information to the court in her motion, but instead implied that formal requests were made pursuant to the Colorado Rules of Civil Procedure. The respondent¡¯s motion to compel thus did not comply with the Colorado Rules of Civil Procedure.

    10. On March 29, 1999, the respondent filed a motion for continuance of the March 31 temporary orders hearing, and as grounds therefore stated that the respondent fell and injured herself at the Jefferson County Courthouse. The motion was granted, and the continued temporary orders was set for May 12, 1999.

    11. On April 7, 1999, Judge Smith entered an order deferring the motions to compel filed by both parties to "the [October 18-20, 1999] hearing, in anticipation that counsel will understand their respective obligations and convey them to their respective clients." No further action was taken by Judge Smith on these outstanding motions prior to the October 18-20, 1999 hearing.

    12. Despite the prior March 12, 1999 court order regarding respondent Gifford¡¯s February 10 subpoena, on April 21, 1999, the respondent Gifford again attempted to serve a subpoena on Jack Duran¡¯s father (this time, for the May 12, 1999 temporary orders hearing):

    1. The respondent did not, however, attempt to personally serve the father at his home in Ignacio, Colorado; instead, the respondent served the son¡¯s business.

    2. The respondent failed to tender the proper attendance fee and mileage for the father.

    3. Finally, the subpoena requested the son¡¯s orthodontic business records and appointment book and records for patients, and thus information outside the control of the father and that could be subject to Jack Duran¡¯s assertion of a doctor/patient privilege.

    1. On April 26, 1999 opposing counsel Loper requested that the respondent cease communicating directly with Jack Duran on matters involving either the dissolution proceeding or the unemployment compensation hearing.

    2. On Wednesday, May 12, 1999, a second interim temporary orders hearing occurred. The magistrate again referred to its previous order that Amy Duran sign a release for the First Bank account. The court noted that Amy Duran had not signed the release. The court ordered the Amy Duran sign the release immediately and deliver it to attorney Loper before the end of the day on May 12, 1999.

    3. Temporary orders were not completed on May 12, 1999 and were thus continued to and concluded on August 3, 1999.

    4. On August 13, 1999, respondent Gifford faxed and mailed a "notice of "paper" deposition" to attorney Loper:

    1. The respondent was requesting production of business records, bank records and personal records, presumably from the opposing party Jack Duran and his orthodontic practice (the notice of paper deposition did not indicate to whom it was addressed). There is no provision for such a paper deposition in the Colorado Rules of Civil Procedure. Jack Duran was a party to the proceeding and thus the Colorado Rules of Civil Procedure concerning production of documents applied. This notice of paper deposition did not comply with the rules.

    2. Also the date of the paper deposition (August 20 at 9:30 a.m.) was not scheduled beforehand with attorney Loper, as required pursuant to C.R.C.P. 121 ¡ì 1-12.

On August 18, 1999, attorney Loper filed a motion for protective orders against the August 13, 1999, subpoena.

    1. On August 23, 1999, respondent Gifford filed a motion for forthwith telephone hearing for restraining order and other appropriate relief, alleging that Jack Duran had been harassing Amy Duran through telephone communications.

    2. On August 24, 1999 attorney Loper filed a response on behalf of Jack Duran and asserted that the motion was an attempt to circumvent the August 20, 1999, temporary orders regarding parenting time.

    3. On August 26, 1999 and after a telephone hearing, the magistrate denied respondent Gifford¡¯s motion, finding "no evidence, direct, circumstantial or otherwise to prove the allegations made."

    4. On August 26, 1999, respondent had a subpoena duces tecum served on Jack Duran:

    1. The respondent had the subpoena served without any notice to Dr. Duran¡¯s counsel, attorney Loper.

    2. The subpoena required the production of an extensive list of documents on September 1, 1999.

    3. This subpoena again circumvented the procedures by which one party may obtain documents from another party (C.R.C.P. 34).

On August 30, 1999, attorney Loper filed a motion to quash the most recent subpoena duces tecum and for protective orders and for sanctions.

    1. On September 23, 1999, respondent Gifford issued a subpoena to Dr. Efren Martinez for a deposition on October 1, 1999:

    1. Respondent Gifford made no attempt to give attorney Loper notice that the deposition was going to occur, in violation of C.R.C.P. 30(b)(1) and C.R.C.P. 121, ¡ì 1-12.

    2. The permanent orders hearing was scheduled for October 18, 19 and 20, 1999, and pursuant to C.R.C.P. 16.2(c) discovery was to be completed not less than 30 days before a hearing; the respondent had not sought an extension of time for this deposition.

    3. Dr. Duran and attorney Loper learned of the subpoena only when Dr. Martinez contacted Dr. Duran.

On September 27, 1999, attorney Loper filed a motion for protective orders on said subpoena.

    1. Also on September 23, 1999, respondent Gifford subpoenaed Lynn Kernan to appear and produce documents on October 1, 1999:

    1. Again, the respondent did not attempt to clear the October 1, 1999, date with Dr. Duran¡¯s counsel nor did she provide Dr. Duran¡¯s counsel notice of the deposition. This violates C.R.C.P. 30(b)(1) and C.R.C.P. 121, ¡ì 1-12.

    2. Such conduct also violated C.R.C.P. 16.2(c) as discovery was to be completed not less than 30 days before the October 18-20 hearing, and no motion for extension of discovery period was filed.

Again, attorney Loper filed a motion for protective order for these violations.

    1. On October 16, 1999 the respondent accompanied her client to a parenting exchange event at a local McDonalds:

    1. Opposing counsel was not present.

    2. At that time, the respondent talked to Dr. Duran about several matters concerning the subject of the representation, including: her inability to have delivered certain documents, whether Duran would be willing to provide her client Bronco tickets for the next day, the availability of his attorney over the weekend, and a visitation issue. These statements concerned the subject of attorney Loper¡¯s representation of Dr. Duran.

    3. The incident was videotaped by Dr. Duran. The next day, Attorney Loper again wrote to the respondent (see paragraph 24 above), admonishing her to refrain from contacting Dr. Duran.

    1. The permanent orders hearing occurred on October 18-20, 1999. The court entered its orders on Friday, October 22, 1999. The court found that there was a common-law marriage between the parties. Amy Duran was awarded sole custody of the child, with visitation in Kansas for the father. The court also notified the parties that a special representative would be appointed for the child. Marianne Tims was appointed as the child¡¯s representative.

    2. Hearing on the remaining issues for permanent orders was set for March 15, 2000. On March 4, 2000 Tims filed her report and made recommendations to the court.

    3. After concluding the March 15, 2000 hearing, and on March 17, 2000, the court found the marriage irretrievably broken, and made further orders regarding child visitation and division of property. Despite respondent¡¯s assurances to her client and the client¡¯s mother throughout the representation, the respondent failed to present evidence on attorney fees. The court did not award any attorney fees because the court found it had already placed the parties on an equal footing.

    4. The respondent Gifford filed a post-hearing motion on behalf of her client, asking that the court reconsider its position on several issues, including the failure to award attorney fees. Attorney Loper filed a response that stated that in addition to the court¡¯s rationale on the attorney fee issue, respondent Gifford "completely failed to provide any evidence or testimony related to the amount of her fees, the reasonableness of her fees, and her rationale for why any portion of those fees should be borne by [Jack Duran]." The respondent Gifford¡¯s motion for reconsideration on the attorney fee issue was denied.

    5. Subsequently, and on April 25, 2000 Hillary D. Lipton ("Lipton") became the court-appointed child¡¯s representative. Lipton was to report on compliance issues concerning parenting classes, the visitation plan and expansion of such visitation. Periodic court hearings were also scheduled to ensure compliance. The first review hearing occurred on October 2, 2000.

    6. At some point in 2000, the respondent Gifford instructed her client not to communicate with the child¡¯s representative. This caused great difficulty for everyone involved, and both the child¡¯s representative (Lipton) and the client Amy Duran, believe many of the messages provided by each through the respondent were never received by the other.

    7. Judge Juanita L. Rice became the presiding judge on this matter on or about January 3, 2001.

    8. On January 19, 2001, the child¡¯s representative filed a motion for emergency telephone hearing due to Amy Duran¡¯s attempt to cancel a previously scheduled parenting time for Jack on January 20-21, 2001.

    9. On January 24, 2001, Lipton filed a motion for issuance of contempt citation against Amy Duran. The motion alleged violations of the court-ordered parenting time between the child and Jack Duran in Kansas. Ms. Lipton¡¯s report also noted difficulties in communicating with respondent Gifford:

      On January 19, 2001 ¡­ the child¡¯s representative attempted by motion for emergency hearing to avoid the cancellation of the visit by the petitioner, however, the petitioner and her counsel refused to make themselves available for this hearing ¡­ . Petitioner¡¯s counsel stated to the office of the undersigned that she does not work on Fridays and was unclear of what the issue was or what this ¡®was about¡¯ (despite the petitioner¡¯s indication that her counsel was to be preparing ¡®a letter¡¯ to the parties of the petitioner¡¯s intent to not allow parenting time on January 20 and 21 because she would be attending a wedding in Kansas City. ¡­ Petitioner¡¯s counsel indicated that she would not be available for this case because she did not work on Fridays and was to attend a settlement conference on another case and was not willing to provide any time during the remainder of the day for the 15 minute telephone hearing. ¡­ (emphasis added).

      A citation to show cause was issued by the court, and a hearing was set for February 22, 2001.

    10. Amy Duran failed to personally appear for the February 22, 2001 contempt hearing date. The court set April 17, 2001 as a new date for the contempt matter, and again ordered Amy to be present. A contempt hearing occurred on that date. At that hearing, and while Amy Duran was on the witness stand, the respondent provided a response to her client on a question posed by attorney Lipton. When attorney Lipton asked: "Would it surprise you that Gail Edwards believes you¡¯re pushing autism on Jacklynn?", the client testified "I don¡¯t think that¡¯s adequate," and the respondent then stated in open court the word: ¡®accurate.¡¯" The following exchange then occurred:

      THE COURT: Ms. Gifford.

      MS. GIFFORD: She¡¯s said adequate. I said accurate.

      THE COURT: Ms. Gifford, how could you do that?

      THE WITNESS: I didn¡¯t mean.

      MS. GIFFORD: Your Honor.

      THE COURT: I don¡¯t care what she said.

      MS. GIFFORD: I apologize.

      THE COURT: You know that¡¯s wrong.

      MS. GIFFORD: Well, Your Honor, we¡¯re trying to get through this.

      THE COURT: Oh, that¡¯s not an excuse for a lawyer giving an answer and you know it.

      MS. GIFFORD: She just said adequate and the word was accurate.

      THE COURT: No. No. You know better. I don¡¯t want to ever hear that.

      MS. GIFFORD: I¡¯m sorry.

    11. On September 4, 2001, the court agreed that the parenting time expansion was to include overnights with Jack Duran. The child¡¯s representative prepared a tentative schedule for the upcoming three months. The child¡¯s representative forwarded the proposal to the parties on September 5, 2001.

    12. Respondent Gifford responded with a number of restrictions beyond the times of the visit (which was the only issue left for the stipulation). In a letter dated September 25, 2001, the respondent Gifford advised that contrary to court orders, the visits would be supervised or would be cancelled by the petitioner.

    13. At a subsequent parent visitation in Kansas, and in front of a police officer and the minor child, Amy Duran because upset and assaulted Jack Duran. Amy Duran was arrested at the scene and charged with battery. As a result, on October 30, 2001, the child¡¯s representative requested a forthwith hearing on the matter.

    14. A forthwith hearing occurred on November 8, 2001 before Judge Juanita Rice. A video of the incident was reviewed at the hearing; the video demonstrated that Ms. Duran was speaking to the respondent on the phone at the time Ms. Duran assaulted Jack Duran. The matter was continued until November 20, 2001 and Amy Duran was ordered to appear.

    15. On November 8, 2001, Amy Duran by and through the respondent filed a motion for parenting time evaluation. The motion requested that either Dr. Claire Poole or Dr. Jean LaCrosse be appointed to conduct the evaluation.

    16. Other hearings occurred on November 20, 2001 and December 5, 2001. The other attorneys involved in the matter and Judge Rice state that, at any hearing (from April, 2001 to the present) that Ms. Duran testified, the respondent would supply responses by shaking or nodding her head, or would provide a verbal answer to her client. Judge Rice and the other attorneys also state that the respondent would become very emotional at some of these hearings and would sometimes weep.

    17. Amy Duran married Anthony Szot in December 2001.

    18. On December 31, 2001 Judge Rice appointed Dr. Jean LaCrosse, Ph.D. to do the parenting time evaluation in the matter.

    19. On January 11, 2002, Amy Szot was arrested for a felony theft charge, as well as for failure to appear on another matter. This conduct required another hearing before the court on January 22, 2002.

    20. On January 22, 2002, and after the court hearing, the respondent accompanied her client to another parenting exchange:

      1. The respondent, Amy Szot, and Amy¡¯s new father-in-law came to Dr. Duran¡¯s home. Dr. Duran came out the door with the minor daughter, Jacklynn.

      2. At that time, the respondent stated, "I am going to examine this child."

      3. The respondent then started to lift up the coat and shirt and pant leg; and then had the child turn around for further inspection, to look to see if Jacklynn had any bruises, etc.

      4. It was a cold day. Even the client was bewildered by the respondent¡¯s apparent need to examine the child.

      5. This conduct was outside of the presence of Jack Duran¡¯s attorney and without authorization.

      6. The respondent¡¯s statements were a challenge to Dr. Duran¡¯s parenting, and concerned the subject of representation.

      7. The respondent¡¯s conduct was of a harassing and demeaning nature.

    1. Amy was responsible for the payment of the parenting time evaluation. At some point, Amy provided Dr. LaCrosse with a check for $2,500 that was returned because of insufficient funds.

    2. On March 29, 2002, Dr. LaCrosse informed the respondent, attorney Sean Virnich (another lawyer in Loper¡¯s firm representing Jack Duran) and the child representative Lipton, of the NSF check. Dr. LaCrosse informed the parties that she would cease all work on the case until the financial situation had been rectified to her satisfaction. As a result, a previously scheduled March 29 appointment with Jacklynn and her father (where Dr. LaCrosse would have an opportunity to see them for an extended time) was cancelled.

    3. On March 29, 2002, Dr. LaCrosse received $2,500 via Federal Express from Amy and her family.

    4. Dr. LaCrosse confirmed the receipt of the other $2,500 in a letter dated March 29, 2002. In that letter, Dr. LaCrosse further stated:

      Unfortunately, the events in this particular case have created substantial question about Amy¡¯s ability and/or willingness to pay for the court ordered evaluation. Rather than risk being ¡®stiffed¡¯ for my work in this matter, I am going to require that funds adequate to cover my estimated future work in this matter be guaranteed. Perhaps they can be provided to me. Perhaps they can be held by her attorney. Perhaps they can be provided to the court. Enclosed is my current itemization of accomplished work ¨C and estimated future work ¨C in this case. You will note that I am requesting that $8,000 in guaranteed funds be provided.

       

      Dr. LaCrosse provided a statement that demonstrated $742.50 of the $2,500 deposit remained, and estimated additional time to explain why a further "guaranteed reserve of $8,000" needed to be provided.

    5. On that same date (March 29, 2002), respondent Gifford wrote a letter to Dr. LaCrosse. The respondent informed Dr. LaCrosse that Amy was forwarding to her trust account an additional $8,000 to be received by April 7, 2002. The respondent further stated:

      "If the above method of payment is acceptable, I will provide you with a copy of the deposit into my Lawyer¡¯s Trust Account once I have received it. I directed Amy to send it to me in "good funds" (certified/cashier¡¯s check, etc.).

    6. On about April 8, 2002, the respondent received $8,000 from Amy Szot¡¯s family. These funds were deposited into the respondent¡¯s COLTAF account on April 22, 2002.

    7. During April, 2002, the respondent spoke with Dr. LaCrosse on several occasions and attempted to present her client¡¯s case to Dr. LaCrosse. The respondent also wrote a five page letter to Dr. LaCrosse, again asserting her client¡¯s position regarding Jack Duran¡¯s conduct over the past several years.

    8. On April 22, 2002, Amy Szot filed for bankruptcy. The respondent had been aware of Amy¡¯s efforts to file bankruptcy. The respondent was listed as a creditor in the bankruptcy for attorney fees owed.

    9. On April 26, 2002, Dr. LaCrosse issued her report and recommendations to Judge Rice. In that letter, Dr. LaCrosse confirmed:

      ¡­Ms. Gifford has assured me, on several occasions, that she is holding an additional $8,000 in guaranteed reserve for me, which I requested after discovering Amy had given me a bad check.

      Dr. LaCrosse also informed the judge that the case was difficult because respondent attempted to interject herself in the matter by providing "persuasive" input. The LaCrosse report was extensive (62 pages in length) and recommended change of custody to the father, Jack Duran.

       

    10. On May 1, 2002, a meeting among the parties occurred:

    1. Dr. LaCrosse requested $5,448.75 for her work performed as of that date on the evaluation.

    2. The respondent provided a COLTAF account check (#1151), in the amount of $5,448.75 to Dr. LaCrosse.

    3. As a result, $2,551.25 remained in the COLTAF account earmarked for payment to Dr. LaCrosse¡¯s evaluation.

    4. The respondent informed the parties at the meeting that this remaining amount was still in her trust account and available for LaCrosse¡¯s testimony at the May 8-9, 2002, hearing.

    1. On May 8, 2002, a hearing in front of Judge Rice occurred:

    1. At the hearing, the respondent suggested answers to her client, while her client was on the stand testifying, by shaking or nodding her head during the testimony.

    2. The respondent also testified during her cross-examination and direct-examination of witnesses. Judge Rice was required to admonish the respondent approximately nine times not to testify and told the respondent that if she became a witness, she would changing roles in the matter.

    3. At the conclusion of the hearing, sole custody of the child Jacklynn was awarded to Dr. Duran.

    1. On May 9, 2002, Dr. LaCrosse sent the respondent another billing statement for her time spent in preparation for the hearing and for her testimony at the hearing. These charges amounted to $2,300:

    1. The respondent did not pay these charges, and did not respond to Dr. LaCrosse regarding such billing.

    2. The respondent has produced a "July 31, 2002" billing statement (first provided to the Office of Attorney Regulation Counsel on October 7, 2002); that billing statement has an entry for May 9, 2002 that she "advised client [that she] would apply balance inretainer (sic) on her bill in accordance with our previous discussions."

    3. The respondent¡¯s above statement contained in her "July 31, 2002", billing was false. The client did not give the respondent permission to apply the remainder to her attorney fees. The client states that at some point in May the respondent agreed to return the $2500 so that the client could use the money for the supplemental evaluation and a HARE test. The client did not receive the "July 31, 2002" billing statement until it was provided to her by the Office of Attorney Regulation Counsel in October, 2002.

    1. After the May 8-9, 2002 hearing, Amy Szot decided that she may need to hire another attorney to represent her. Ms. Szot contacted attorney Bette K. Bushell.

    2. On May 13, 2002, attorney Bushell contacted the respondent by letter. Ms. Bushell wanted to meet with the respondent and review the file. Ms. Bushell asked the respondent to contact her immediately so that she could do a proper investigation prior to the next hearing scheduled for July 17, 2002, and noted that supplemental parenting evaluations often take as long as 90 days; thus time was of the essence.

    3. The respondent received this letter. Nevertheless, the respondent failed to respond to Ms. Bushell¡¯s letter and failed to provide access to the client file.

    4. On May 14, 2002, the respondent wrote a check on her trust account and to "cash" for $64,424.75. This money was then turned into a cashier¡¯s check and provided to another client (Showendaller). $551.25 of this money was part of the disputed Duran/LaCrosse funds. The respondent states that this $551.25 error occurred due to an incorrect interest calculation for client Showendaller.

    5. On May 22, 2002, the respondent provided her former client with a copy of Dr. LaCrosse¡¯s billings for the client¡¯s review. Also on May 22, 2002, Dr. LaCrosse wrote to the respondent requesting immediate attention to payment of the bill. The respondent sent a facsimile transmission to Dr. LaCrosse telling her that she had forwarded her invoices to Amy for her review, and that Amy would "voice her concerns" to [Dr. LaCrosse] by the end of the next week.

    6. On May 28, 2002, Amy notified respondent Gifford in writing that respondent should not pay Dr. LaCrosse any monies left in the trust account. Amy further stated, "As you know, I am in the process of filing bankruptcy." Amy also asserted that Dr. LaCrosse may have forced her to be in violation of bankruptcy law by forcing her to pay for the evaluation.

    7. On May 29, 2002, Amy wrote respondent Gifford another letter (dated May 28, 2002) informing respondent Gifford that the respondent was "not to remove [the money remaining in her trust account] under any reason upon instructions from the mental health board." (emphasis added). $2,000.00 of the $2,551.25 was still in the respondent¡¯s COLTAF account on this date.

    8. The respondent knew Dr. LaCrosse believed $2,300 of these funds belonged to her, and that Amy Szot believed the funds needed to stay in the respondent¡¯s COLTAF account.

    9. On May 29, 1999, Dr. LaCrosse notified Judge Rice of her difficulties in receiving the remaining $2,300 in charges from the respondent for her expert witness fees. Dr. LaCrosse provided Judge Rice with a copy of her invoice, her May 9 letter to the respondent, and her May 22 letter to the respondent. Judge Rice forwarded these documents to the Office of Attorney Regulation.

    10. On May 29, 2002, Amy¡¯s mother, Patricia Behrens, wrote to the respondent and requested an accounting of all fees paid to her on behalf of Amy Szot. Ms. Behrens also requested all billing statements since 1998 to the present. Ms. Behrens requested this information on or before June 3, 2002. The respondent received this request. The respondent did not respond to Ms. Behrens¡¯ letter, and did not provide an accounting or billing statements.

    11. On June 11, 2002, the respondent filed a motion to withdraw from the dissolution matter. An order granting the motion to withdraw was entered July 9, 2002.

    12. On June 21, 2002, the respondent transferred the remaining $2,000 of those funds held in escrow for the LaCrosse evaluation to her operating account for payment of outstanding attorney fees owed by Amy;

    1. The respondent did so knowing that ownership of said funds was in dispute by Dr. LaCrosse and the client, knowing that the client had not authorized her to take such funds, and knowing that Amy Szot was in bankruptcy proceedings which listed the respondent as a creditor.

    2. The respondent did not notify her client, Dr. LaCrosse, the bankruptcy court or the district court of her taking this money.

    1. On June 21, 2002 attorney Bushell filed an entry of appearance on behalf of Amy Duran. Attorney Bushell also requested that the district court order a supplemental Parenting Plan Evaluation by William Dahlberg, M.D., additional depositions, and clarification of the court¡¯s May 9, 2002 order on visitation and parenting responsibility issues.

    2. Also on June 21, 2002 attorney Bushell again wrote to the respondent, requesting an appointment to pick up the files that week. The respondent failed to respond to Ms. Bushell¡¯s June 21, 2002 letter.

    3. Subsequently attorney Bushell made multiple attempts to reach respondent at her office and on her cellular telephone. The respondent did not answer, and attorney Bushell could not leave a voicemail message because the respondent¡¯s voice mail boxes were full.

    4. On July 6, 2002 attorney Bushell wrote by facsimile transmission to the respondent. Bushell reminded the respondent of the July 17 hearing date. Bushell again requested immediate release of the client files. The respondent received this correspondence. The respondent did not respond.

    5. On July 8, 2002 attorney Bushell sent another letter to the respondent by facsimile transmission. Bushell again related attempts to telephone respondent, and an attempt to visit the respondent. Bushell demanded immediate release of the file. The respondent received this letter.

    6. The respondent¡¯s July 31, 2002 billing statement contains the following entry for 7/8/02: "Advised Ms. Bushell our firm would be claiming the $2500 in our trust act per permission from Amy, but would get the 12 boxes together, keeping some necessary and attorney-client documents (sic)." This statement was false. (In fact the respondent had already withdrawn these funds).

    7. On July 11, 2002 attorney Bushell received seven boxes of the files from the respondent. The respondent kept three boxes, saying she needed to review them for work product and "other private attorney matters," and would personally deliver them to the Bushell¡¯s office. Despite this assurance, the respondent failed to deliver these materials. None of the seven boxes that were provided that day contained any pleadings.

    8. On July 15, 2002, Amy requested the remainder of her money held in the escrow account, which she believed to be around $2,500. Amy requested that the respondent provide those funds by July 19, 2002. The respondent received this request. The respondent did not provide those funds, and did not respond to Amy¡¯s request.

    9. On July 16, 2002, attorney Bushell again sent a letter to the respondent by facsimile transmission demanding the remaining files before noon the next day. The respondent Gifford responded by letter on July 17 and in that letter stated to attorney Bushell that she could pick up the files at any time. The July 17 letter appears to have been sent by regular mail.

    10. On July 17, 2002, in the afternoon, a review hearing occurred before Judge Rice. The matter had to be continued due to attorney Bushell¡¯s inability to retrieve pleadings and other crucial documents from the respondent.

    11. Attorney Bushell retrieved the remaining files from the respondent¡¯s office on July 26, 2002.

    12. On July 29, 2002, Amy again wrote to the respondent seeking the $2,500 left in the escrow account. Amy requested that the respondent provide her this money by August 2, 2002. The respondent did not respond to Amy¡¯s request and did not tell Amy that she had already taken these funds.

    13. On August 16, 2002, attorney Bushell requested return of the $2500 to the client. The respondent said she intended to keep the money for her own use. The respondent has not returned these funds to the client, nor has she provided them to Dr. LaCrosse as intended.

    14. On October 7, 2002, the respondent provided to this office a billing statement dated July 31, 2002 (discussed hereinabove). This office forwarded the billing statement to Ms. Szot.

    15. The totality of the respondent¡¯s billings to the client are as follows: November 30, 1998; February 15, 1999; October 15, 1999; August 31, 2000; and the "July 31, 2002" billing statement provided in October, 2002. Prior to May 2002, the respondent collected over $56,000 from Ms. Szot and her mother upon request and without accountings for her time.

      CLAIM I

      [A Lawyer Shall Provide Competent Representation to a Client-Colo. RPC 1.1]

    16. Paragraphs 1 through 93 are incorporated herein.

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

    18. The respondent failed to provide her client competent legal representation in the following respects:

    1. By her statements made at the October 1998 meeting with her client and the mother when she informed them that the mother would get all of her money back by court order even if the respondent had to personally "put a padlock" on Jack Duran¡¯s office and sell off his equipment;

    2. By her violations of the Colorado Rules of Civil Procedure in the preparation and handling of the February 10, 1999 subpoena to appear and produce documents directed to Jack Duran¡¯s father;

    3. By her failures over a period of three months to obtain the client¡¯s signature for a release as ordered by the court for Amy Duran¡¯s First Bank months, despite the court¡¯s February 19, 1999 order that it be handled "immediately.";

    4. By her statements in her response to the motion to compel discovery that the "First Bank release has been dealt with," when it had not;

    5. By her filing a motion to compel discovery against Jack Duran without having made formal requests for discovery pursuant to the Colorado Rules of Civil Procedure;

    6. By her violations of the Colorado Rules of Civil Procedure in the preparation and handling of the April 21, 1999 subpoena directed to Jack Duran¡¯s father;

    7. By her violations of the Colorado Rules of Civil Procedure in the preparation and handling of the August 13, 1999 notice of paper deposition involving Jack Duran;

    8. By her preparation and handling of the August 23, 1999 motion for forthwith telephone hearing for restraining order and other appropriate relief, and by her conduct at the August 26, 1999 telephone hearing, when she presented no evidence direct, circumstantial or otherwise to prove the allegations made in said motion;

    9. By her violations of the Colorado Rules of Civil Procedure in her preparation and handling of the August 26, 1999 subpoena duces tecum involving Jack Duran;

    10. By her violations of the Colorado Rules of Civil Procedure in her preparation and handling of the September 23, 1999 subpoena involving Dr. Martinez;

    11. By her violations of the Colorado Rues of Civil Procedure in her preparation and handling of the September 23, 1999 subpoena involving Lynn Kernan;

    12. By her conduct at the October 16, 1999 parenting event;

    13. By her failure to present evidence on attorney fees at the March 15, 2000 hearing;

    14. By her instructions to her client not to communicate with the child¡¯s representative, creating difficulty and confusion for both her client and the child¡¯s representative;

    15. By her providing a response to her client and all others present on a question raised by attorney Lipton to the client on the witness stand at the April 17, 2001 hearing;

    16. By her adding restrictions that had not previously been agreed to or ordered by the court in her letter dated September 25, 2001;

    17. By her supplying responses to her client on the witness stand by shaking or nodding her head or providing verbal answers to her client at other hearings from April 2001 through May 2002;

    18. By her conduct at the January 22, 2002 parenting time event;

    19. By her conduct in interjecting herself into Dr. LaCrosse¡¯s parenting evaluation process;

    20. By her testifying during her cross-examination and direct-examination of witnesses at the May 8, 2002 hearing;

    21. By her conduct in failing to provide the client file upon her termination, or otherwise protect her client¡¯s interests;

    22. By her failure to provide the client with billing statements in a timely manner during the course of her representation; and

    23. By remaining the attorney of record for the client despite lacking the necessary knowledge, skill, thoroughness and preparation reasonably necessary for such representation.

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

    1. The respondent knew or should have known that she was failing to provide competent legal representation to this client, but made no effort to remedy the situation.

    2. The respondent¡¯s failure to provide competent legal representation to the client caused injury or potential injury to the client.

    3. By such conduct, the respondent violated Colo. RPC 1.1.

WHEREFORE, the complainant prays at the conclusion hereof.

  1. 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) and (b)]

    1. Paragraphs 1 through 93 are incorporated herein.

    2. 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.

    3. This respondent failed to keep the client reasonably informed about the status of the legal matter and failed to comply promptly with reasonable requests for information in the following respects:

    1. By failing to communicate adequately with the client concerning her time spent on the client matter, and by failing to provide regular and timely billing statements;

    2. By failing to respond in timely fashion to the requests to review the file or produce the file made by the client and subsequent attorney Bette Bushell;

    3. By failing to notify the client that she intended to dishonor the client¡¯s request that the remaining money held in her trust account was not to be removed upon under any reason;

    4. By failing to notify the client that the respondent intended to withdraw the escrow funds remaining in her trust account and apply said funds for payment of outstanding attorney fees; and

    5. By failing to account for said escrow funds after repeated client requests.

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.

    1. The respondent knew or should have known that her failure to communicate adequately with her client or the subsequent lawyer extended over a period of months (May, June, and July, 2002).

    2. The respondent¡¯s pattern and practice of failing to communicate with the client caused injury or potential injury to the client.

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

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

    1. By failing to explain sufficiently to the client or her mother in October 1998 the court rules concerning attorney fees in dissolution matters, and the evidence that must be established to obtain attorney fees in such matters; and

    2. By failing to explain sufficiently to the client the consequences of not talking to the child representative.

    1. The respondent¡¯s failure to explain these issues caused injury or potential injury to the client.

    2. By such conduct, the respondent violated Colo. RPC 1.4(b).

WHEREFORE, the complainant prays at the conclusion hereof.

  1. CLAIM III

[Alternative Claim to Claim XI - 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)]

    1. Paragraphs 1 through 93 are incorporated herein.

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

    3. By paying the disputed client or third party funds to herself and removing them from the COLTAF account, the respondent failed to keep client or third party funds separate from her own property.

    4. The respondent did not have the consent of the client or anyone else in a position of authority to use any of the funds she removed from the COLTAF account.

    5. The respondent exercised unauthorized dominion or ownership over these funds belonging to a client or third party.

    6. By exercising unauthorized dominion or ownership over client or third party funds, the respondent negligently converted and/or misappropriated such funds prior to them being earned.

    7. By such conduct, the respondent violated Colo. RPC 1.15(a).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM IV

      [Failing to Keep Disputed Property Separate Until There is an Accounting and Severance of the Disputed Interest-Colo. RPC 1.15(c)]

    8. Paragraphs 1 through 93 are incorporated herein.

    9. Rule 1.15(c), Colorado Rules of Professional Conduct, provides: "When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved."

    10. The respondent was in possession of property in which the respondent, Dr. LaCrosse, and the client claimed an interest.

    11. The respondent did not provide an accounting and severance of the interests, and made no other attempt to resolve such issues.

    12. The respondent violated her obligation to keep such disputed funds separate and in her COLTAF account until the dispute between the client, Dr. LaCrosse and the respondent was resolved. Instead, the respondent applied those disputed funds to her outstanding fee bills.

    13. By such conduct, the respondent violated Colo. RPC 1.15(c).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM V

      [Failure to Make a Trust Account Withdrawal Only by Authorized Bank or Wire Transfer or by Check Payable to a Named Payee, and Not to Cash-Colo. RPC 1.15(g)(1)]

    14. Paragraphs 1 through 93 are incorporated herein.

    15. Colo. RPC 1.15(g)(1) provides that all trust account withdrawals shall be made only by authorized bank or wire transfer or by check payable to a named payee and not to cash.

    16. On May 14, 2002, the respondent wrote a check on her trust account and to "cash" for $64,424.75 in direct contravention of Colo. RPC 1.15(g)(1).

    17. By such conduct, the respondent violated Colo. RPC 1.15(g)(1).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM VI

      [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)]

    18. Paragraphs 1 through 93 are incorporated herein.

    19. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that had not been earned.

    20. The respondent knew and understood that Amy Duran was attempting to find another lawyer to replace her. The respondent knew and understood that time was of the essence in her client¡¯s custody battle. The respondent knew and understood that the respondent had an obligation to protect her client¡¯s interest.

    21. Attorney Bette Bushell made requests for the client¡¯s files from the respondent.

    22. The client made requests for the client¡¯s files from the respondent.

    23. The respondent failed to surrender the client¡¯s files and papers in timely fashion, despite repeated written and oral demands and requests to do so by both the client and the subsequent attorney.

    24. The client and attorney Bushell also made requests for surrendering the remaining portion of the escrowed funds.

    25. The respondent failed to return to the client any portion of the escrowed funds, interplead such funds, or notify the client that the respondent intended to keep such funds and apply them to her attorney fees.

    26. By such conduct, the respondent violated Colo. RPC 1.16(d).

WHEREFORE, the complainant prays at the conclusion hereof.

  1. CLAIM VII

[A Lawyer Shall Not Knowingly Make a False Statement of Material Fact or Law to a Tribunal-Colo. RPC 3.3(a)(1)]

    1. Paragraphs 1 through 93 are incorporated herein.

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

    3. On February 19, 1999, the court ordered the respondent¡¯s client to immediately sign a release that had already been furnished by attorney Loper for the client¡¯s First Bank Account Records. The client did not sign such release as ordered by the court.

    4. On March 15, 1999 attorney Loper filed a motion to compel discovery and to compel the client to execute releases for her first bank account.

    5. The respondent filed a response to the motion to compel discovery on March 24, 1999. In the response, the respondent states that the "First Bank release has been dealt with."

    6. The above statement made by this respondent to the court was false; no releases had been signed for the bank account as of the date of said response.

    7. The respondent knew that the above statements made in her response were not true at the time she made such statements to the court.

    8. The respondent¡¯s false statements dealt specifically with the issues raised by attorney Loper¡¯s motion to compel her client to execute the releases, and were therefore of a material fact to the court because such statements directly applied to the issue of whether or not the client had signed such releases.

    9. By such conduct, the respondent violated Colo. RPC 3.3(a)(1).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM VIII

      [A Lawyer Shall Not Knowingly Disobey an Obligation Under the Rules of a Tribunal-Colo. RPC 3.4(c); In Pre-Trial Procedure, a Lawyer Shall Not Make a Frivolous Discovery Request-Colo. RPC 3.4(d)]

    10. Paragraphs 1 through 93 are incorporated herein.

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

    12. The Colorado Rules of Civil Procedure applied to discovery matters in the Duran dissolution proceeding.

    13. A domestic case management and delay reduction order was entered on November 13, 1998, requiring that case management, disclosure and discovery be conducted in accordance with C.R.C.P. 16.2 and 26.2. Discovery must also comply with C.R.C.P. 30-37. In addition, subpoenas must comply with C.R.C.P. 45. Also, C.R.C.P. 121 is applicable in dissolution matters and personal service must be established by C.R.C.P. 4.

    14. The respondent¡¯s conduct involving the February 10, 1999 subpoena duces tecum (see paragraphs 11-12 above) violated the Colorado Rules of Civil Procedure and the domestic case management and delay reduction order. The respondent knew or is presumed to know of her obligations under the Colorado Rules of Civil Procedure and the case management order.

    15. Despite the respondent¡¯s knowledge of her obligations under the Rules of Civil Procedure and the case management and delay reduction order, the respondent knowingly violated said rules by issuing the February 10, 1999 subpoena.

    16. As a result, the Arapahoe County District Court ordered that Amy Duran and the respondent desist from any further discovery that was not conducted in compliance with the Colorado Rules of Civil Procedure. At this point, the respondent had clear knowledge that she must comply with the Colorado Rules of Civil Procedure in any further discovery.

    17. Despite such clear direction by the Colorado Rules of Civil Procedure, the case management and delay reduction order, and the court¡¯s March 12, 1999 order, the respondent continued to violate these rules and orders by filing a motion to compel discovery against the opposing party Jack Duran that was not based on Dr. Duran¡¯s failure to answer any formal discovery, but was instead based on a claim by respondent that documents informally requested had not been produced. Such conduct violated Colo. RPC 3.4(c).

    18. The respondent¡¯s conduct in the preparation and handling of the April 21, 1999 subpoena as above described in paragraph 23; the August 13, 1999 notice of paper deposition as above described in paragraph 27; the August 26, 1999 subpoena duces tecum as above described in paragraph 31; the September 23, 1999 subpoenas to Dr. Martinez and Lynn Kernan as above described in paragraphs 32 and 33; all violated the Colorado Rules of Civil Procedure, the case management and delay reduction order; and the court¡¯s March 12, 1999 order.

    19. The respondent knew or was presumed to know, of her obligations under the Rules of Civil Procedure, case management and delay reduction order, and the March 12, 1999, court order.

    20. Despite the respondent¡¯s knowledge of her obligations, the respondent knowingly violated the Rules of Civil Procedure, the case management and delay reduction order and the March 12, 1999 court order by preparing and handling all the above described subpoenas.

    21. By such conduct, the respondent violated Colo. RPC 3.4(c).

    22. Colo. RPC 3.4(d) provides that a lawyer shall not in pre-trial procedure, make a frivolous discovery request. The respondent¡¯s above-described conduct during the discovery portion of her client¡¯s matter constituted a frivolous discovery request under Colo. RPC 3.4(d).

    23. By such conduct, the respondent violated Colo. RPC 3.4(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM IX

      [A Lawyer Shall Not in Trial, Assert Personal Knowledge of Facts in Issue Except When Testifying as a Witness-Colo. RPC 3.4(e)]

    24. Paragraphs 1 through 93 are incorporated herein.

    25. Colo. RPC 3.4(e) provides that a lawyer shall not in trial, ¡­ assert personal knowledge of facts in issue except when testifying as a witness.

    26. The respondent¡¯s conduct in testifying during her cross-examination and direct-examination of witnesses involved the assertion of her personal knowledge of facts in issue at times when the respondent was not testifying as a witness.

    27. The respondent¡¯s conduct required the presiding district court judge to admonish her on approximately nine occasions.

    28. By such conduct, the respondent violated Colo. RPC 3.4(e).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM X

      [In Representing a Client, a Lawyer Shall Not Communicate About the Subject of the Representation With a Party the Lawyer Knows to be Represented by Another Lawyer in the Matter, Unless the Lawyer has the Consent of the Other Lawyer or is Authorized by Law to do so-Colo. RPC 4.2]

    29. Paragraphs 1 through 93 are incorporated herein.

    30. Colo. RPC 4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

    31. On October 16, 1999, the respondent communicated with the opposing party about the subject of the representation with Dr. Duran at a local McDonald¡¯s restaurant (see paragraph 34 above).

    32. On October 16, 1999, the respondent knew opposing party Dr. Duran was represented by attorney Loper in the matter.

    33. The respondent did not have prior consent of attorney Loper and was not authorized by law to communicate as such with Dr. Duran on October 16, 1999.

    34. By such conduct, the respondent violated Colo. RPC 4.2.

    35. On January 22, 2002, the respondent again communicated about the subject of the representation with Dr. Duran (see paragraph 54 above).

    36. On January 22, 2002, the respondent knew Dr. Duran was represented by attorney Loper¡¯s law firm.

    37. The respondent knew on January 22, 2002 that she did not have the consent of attorney Loper or any other member of attorney Loper¡¯s law firm to speak with Dr. Duran, and was not authorized by law to do so.

    38. In fact, on April 26, 1999, opposing counsel Loper had admonished the respondent to cease communicating directly with Jack Duran on matters involving either the dissolution proceeding or the unemployment compensation hearing. In addition, after the October 16, 1999 incident, attorney Loper again wrote to the respondent, admonishing her to refrain from contacting Dr. Duran personally.

    39. Thus, the respondent knowingly violated Colo. RPC 4.2 despite prior admonitions not to do so.

    40. By such conduct, the respondent violated Colo. RPC 4.2.

WHEREFORE, the complainant prays at the conclusion hereof.

  1. CLAIM XI

[A Lawyer Shall not Engage in Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation (Knowing Conversion and Other Dishonesty)-Colo. RPC 8.4(c)]

    1. Paragraphs 1 through 93 are incorporated herein.

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

    3. On June 21, 2002, the respondent transferred funds held in escrow for the LaCrosse evaluation to her operating account.

    4. The respondent made such transfer knowing that ownership of said funds was in dispute by Dr. LaCrosse and by the client.

    5. The respondent did so knowing that neither the client nor Dr. LaCrosse had authorized the respondent to take such funds, and knowing that her client was in bankruptcy proceedings which listed the respondent as a creditor.

    6. The respondent exercised dominion or ownership over these funds held in escrow. The respondent did not have the consent of the client to use the escrowed funds for payment of attorney fees owed to the respondent, or any other purpose other than that established by the prior escrow agreement.

    7. Through the unauthorized exercise of dominion or ownership over the entrusted funds as described above, the respondent knowingly converted or misappropriated funds belonging to either Dr. LaCrosse or the client.

    8. Through her knowing conversion or misappropriation of escrowed funds, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

    9. By such conduct, the respondent violated Colo. RPC 8.4(c).

    10. The respondent also engaged in dishonesty, deceit and misrepresentation when she submitted a "July 31, 2002" billing statement in October 2002 that contained the false May 9, 2002 (see paragraph 66(b) and (c) above) and July 8 (see paragraph 84 above) entries.

    11. The respondent knew these statements were false at the time she presented them in the "July 31" billing statement, in October, 2002.

    12. By such conduct, the respondent violated Colo. RPC 8.4(c).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM XII

      [A Lawyer Shall not Engage in Conduct that is Prejudicial to the Administration of Justice-Colo. RPC 8.4(d)]

    13. Paragraphs 1 through 93 are incorporated herein.

    14. 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.

    15. The respondent engaged in conduct prejudicial to the administration of justice in the following respects:

    1. By her interjection into the parenting evaluation process, thereby interfering with the ability of the parenting evaluator to conduct an appropriate evaluation for the district court;

    2. By her conduct in providing or suggesting answers to a client while the client was testifying on the witness stand;

    3. By her conduct in testifying during her cross-examination and direct-examination of witnesses; and

    4. By her failure to return the client file in a timely manner, causing delay of the process.

Each instance described above constitute a separate violation of Colo. RPC 8.4(d) as do all of them together.

    1. Each of the above instances all interfered with the ebb and flow of procedures and the function of the Arapahoe County District Court in the dissolution matter.

    2. By such conduct, the respondent violated Colo. RPC 8.4(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      THE PHILLIPS MATTER

      General Allegations

    3. On or about December 22, 1999, Gary Lee Phillips was charged with two counts of second-degree assault (class four felonies), and two counts of violent crimes:

      1. The first count (second-degree assault) involved bodily injury to his wife of two months, Jeanne Anderson, by means of deadly weapons (a porcelain figurine and a can of olives);

      2. The second count involved bodily injury to his wife¡¯s friend, Karen Hahn, by means of a deadly weapon (Clorox bleach); and

      3. The third and fourth counts (violent crimes) related to the same incidents involving Ms. Anderson and Ms. Hahn.

      On December 23, 1999 Jeanne Anderson filed a dissolution of marriage proceeding against Mr. Phillips, In re: the Marriage of Anderson and Phillips, 99DR3758, Jefferson County District Court.

    4. Mr. Phillips had originally been represented by attorney Michael A. Cohen and Thad Oviatt in both the criminal matter and the dissolution matter.

    5. On August 29, 2000, Mr. Phillips had an initial consultation with the respondent about a possible substitution as counsel of record in both the criminal matter and the dissolution matter. At that time, the respondent gave Mr. Phillips a proposed fee agreement to take home, review and return if he chose to accept that agreement.

    6. At the initial consultation, the parties had not discussed the use of property as collateral.

    7. The respondent charged Mr. Phillips $600 for the initial consultation. Mr. Phillips paid the $600 that day.

    8. The fee agreement was signed by both Mr. Phillips and the respondent on August 31, 2000.

    9. The fee agreement covered all legal services provided by the respondent, including the criminal matter and the dissolution matter.

    10. The fee agreement provided that the respondent would receive $175 per hour for legal services. Mr. Phillips was required by the agreement to pay an initial retainer fee of $50,000.

    11. The signed fee agreement also contained the following language in the respondent¡¯s hand writing along the margin of the first page, that was added on August 31, 2000:

      [GP, GG initials] by 9-6-00 $10000 + Title/Lien to 17677 E. Loyola Dr. #F Aurora Co. 80013 valued at 65,000+ with a current lien of approx. $44,000 leaving equity of $25,000 ¨C 30,000 Client to Provide comps [and] Title w/Lien/Deed of Trust to Mrs. Gifford Client to Provide additional $10,000 Collateral on or before 9-6-00 if comps don¡¯t cover the full retainer [GG GP initials] (sic)

      Attny agrees to allow client to purchase/pay off legal costs to reacquire collateral by formal agreement. [GG, G.P. initials] (sic)

      A copy of the first page of this fee agreement is attached to this complaint as Exhibit 1.

    12. This signed fee agreement contemplated that the respondent would take a security interest, and that Mr. Phillips would provide a security interest. While the respondent addressed other ethical considerations in this fee agreement with her client, the respondent did not address Colo. RPC 1.8(a) issues.

    13. An attorney client relationship commenced on or before August 31, 2000 between the respondent and Mr. Phillips, thereby forming an obligation on the part of respondent to perform the agreed-upon services. By agreeing to perform such services, the respondent inherently represented that she would provide the services in accordance with the Colorado Rule of Professional Conduct.

    14. The respondent did not advise Mr. Phillips to seek independent counsel regarding the new language involving the supply of title to and/or a lien on the real property, or use of the real property as collateral.

    15. While the August 31, 2000 agreement contemplated the creation of a contractual lien, the August 31 agreement did not create a contractual lien.

    16. Mr. Phillips did not provide title to, or a lien on, the property by September 6, 2000, and thus no contractual lien was subsequently created.

    17. The respondent entered her appearance in the criminal matter on September 12, 2000. The respondent filed a motion to continue the December 12-15, 2000 trial date. The motion to continue the trial date was granted, and the criminal matter was continued to April 24-30, 2001.

    18. The respondent also entered her appearance in the dissolution matter, and moved for a continuance of the permanent orders hearing. The permanent orders hearing set for November 14-15, 2000 was continued to July 10-12, 2001.

    19. Civil lawsuits were subsequently filed by Ms. Anderson and Ms. Hahn against Mr. Phillips. The respondent started to represent Mr. Phillips on these matters. The respondent filed a counter-suit in the Hahn matter. No new fee agreement was entered into. The respondent combined billings on these personal injury defense matters into the same combined billing for the criminal matter and the dissolution matter.

    20. On January 29, 2001, the respondent took the deposition of Jeanne Anderson in the dissolution matter. During the noon break from that deposition, the respondent counselled Mr. Phillips to give the marital residence located at 17655 W. 44th Avenue, Golden, Colorado in exchange for a possible agreement that the wife, Jeanne Anderson, recant her testimony to the district attorney in the criminal trial. The respondent has admitted:

      ¡­ during the noon break, I felt it was my duty to ask my client if he would consider a settlement if, under some scenario, Jeanne would accept the house and withdraw her many, many false statements that she had made to the police.

      ****

      I went on ad nauseam about how much I knew he was really opposed to losing the house; about how much equity he had in it; that one-half of it was probably going to Jeanne under the divorce; that he might want to weigh the possibility of ten years in Canyon (sic) City against the $125,000 share he would have in the house; the extensive legal cost still ahead of him, etc. I told him to go on to lunch and to not answer me at that time, just think about it and that I could not assure him that even if he wanted to make the offer that it would be accepted. We agreed that all Jeanne really wanted, from the beginning of his relationship with her and throughout their short marriage and the events subsequent, was money. I suggested that if she would recant the false accusations, then maybe he would not be facing jail time. I advised him that vis a vis Jeanne, I was pretty comfortable that I had her impeached; however, we had a different problem with the other victim.

    21. Phillips taped a subsequent February 8, 2001 conversation between the respondent and him in which this issue was further discussed. In that taped conversation, the respondent discussed Jeanne recanting her testimony, and instead saying that she (Jeanne) didn¡¯t see "it" accurately or in fact that she had started or provoked "it"; and that "the document" be exchanged at the same time between the parties to ensure that he was giving her the house. The respondent concluded with the statement:

      It doesn¡¯t, its not as as clean as a whistle but it is ¡­ it has a higher probability of of being done if you¡¯re sitting at a little closing table and you¡¯re saying ¡­ uh well ¡­ I want to see a document that recants and it has to be a document satisfactory to me that the ¡­ that the DA would not pursue Mr. Phillips and which is in, if all you really want Jeannie, is money take your GD money and run away ¡­ .

    22. The relationship between the respondent and the client deteriorated rapidly in March 2001. The respondent filed a motion to withdraw from representation in the criminal matter on March 9, 2001. The respondent appears to have filed a motion to withdraw from the dissolution matter by facsimile transmission in March, 2001; that motion to withdraw (if received) was not placed into the court file. (Nevertheless, both the respondent and Mr. Phillips considered the relationship terminated in March, 2001).

    23. On March 22, 2001, the respondent recorded a "Notice and Claim of Lien" with the Arapahoe County Clerk and Recorder¡¯s Office. A copy of that notice and claim of lien is attached hereto as Exhibit 2. The respondent claims a lien in that document in the amount of $40,000. The respondent had not filed a notice of lien in either the dissolution matter or the criminal matter.

    24. The property that the respondent liened was 17677 E. Loyola Drive, Aurora, CO. 17677 E. Loyola Drive is an address shared by six different town houses, all with different owners. The different town houses are designated by letters A-F. Only unit #F was marital property owned by Phillips and Anderson. Since the respondent liened the address of 17677 E. Loyola Drive without specifying a specific house letter, the lien was against all of these properties.

    25. While the respondent claimed $40,000 as amounts owing under the lien, the respondent¡¯s combined billing statements for the criminal matter, the dissolution of marriage matter, and the personal injury matters demonstrate that at the time of filing the lien (on March 22, 2001 and after moving to withdraw), the client only owed the respondent $28,542.87. The respondent¡¯s billing statements combined billings for all of these different legal matters into one.

    26. The respondent filed such charging lien even though the criminal matter and the personal injury matters that were part of the subject of her legal representation did not involve obtaining this real property or any other property or proceeds for the client.

    27. On March 27, 2001 attorney Arthur S. Nieto entered his appearance on behalf of Mr. Phillips in the criminal matter. Mr. Nieto attempted to contact the respondent by telephone so that he could obtain a copy of the client files from the respondent, but was unsuccessful.

    28. A hearing in the criminal matter occurred on March 28, 2001. At that hearing, attorney Nieto entered his appearance and the respondent moved to withdraw. The district attorney had no objection to the respondent¡¯s motion to withdraw if the motions hearing date (April 19, 2001) and the trial date (April 24-30, 2001) were not affected. The court allowed Mr. Nieto to enter his appearance and the respondent to withdraw. The court affirmed that new or supplemental motions had to be filed by April 9, 2001.

    29. The court further stated on the record:

      Ms. Gifford, as part of your responsibility in conjunction with your withdrawal, I want to ensure that you have delivered to ¡­ Mr. Nieto everything in your file, including he has all these motions.

      The respondent responded: "I¡¯ve given them all to Mr. Phillips as well, your honor."

    30. The respondent had not provided the client files to either Mr. Phillips or Mr. Nieto at the time she made this statement. The respondent did not thereafter timely provide these client files to Nieto or the client.

       

    31. On April 2, 2001 Mr. Nieto called the respondent¡¯s office to get the files, and learned from a voice mail message that the respondent was out of her office from March 30, 2001 until April 9, 2001. The respondent had not informed Mr. Nieto or the court that she would be unavailable during this time period, and made no prior arrangements for the files. Nieto was able to contact the respondent¡¯s assistant, Martha, on that same day; Martha told him she had no authority to make the files available. Thus, Mr. Nieto was forced to photocopy the court file in his attempts to adequately represent his client¡¯s interests and to comply with court deadlines for the upcoming trial.

    32. On April 5, 2001 Nieto faxed and mailed a letter to the respondent asking that she provide a copy of the client files immediately. Respondent received this letter. Respondent did not respond.

    33. On April 6, 2001, Nieto called the respondent¡¯s office and learned the voice mailbox was full. Thus, Mr. Nieto could not leave a message.

    34. On April 9, 2001 Mr. Nieto filed a motion for enlargement of time within which to file or supplement motions on behalf of his client based upon his inability to begin, much less complete, the research and investigation necessary to draft or supplement motions, due to the respondent¡¯s failure to provide the client files.

    35. On April 12, 2001 Mr. Nieto was finally able to make phone contact with respondent. At that time, the respondent informed Mr. Nieto that she was unwilling to tender the files because Mr. Phillips owed her money. Nieto reminded her that the court had ordered her to supply the files. The respondent argued that the court did not order her to do so, but instead only commented that the parties could arrange for the files to be turned over.

    36. On April 17, 2001 Mr. Nieto filed a motion to continue the trial and motions hearing and for an order that the respondent appear and show cause why she should not be sanctioned by the district court for obstructing the defendant¡¯s efforts to become prepared for trial by failing to deliver the client files. Nieto described his independent efforts to obtain discovery from the court, the client, the D.A. and other parties. Nieto also disclosed that the respondent had original photographs, deposition transcripts and expert witness materials, all of which were crucial to his handling of his client¡¯s matter.

    37. April 19, 2001 was the scheduled date for the motions hearing in the criminal matter. The respondent was present. At that hearing, the deputy district attorney expressed dismay from her standpoint, and both victims¡¯ standpoints, regarding another continuance in the criminal matter, but also acknowledged that attorney Nieto had done everything he could to get the files from the respondent and to prepare for the motions hearing and trial.

    38. The court granted the motion to continue the trial and motions hearing for the reasons set forth in Nieto¡¯s motion. The court reminded the respondent that she had informed the court on March 28 that she was going to give everything in her file pertaining to this case to the client and Nieto. The respondent did not deny the court¡¯s statement but instead only argued that she hadn¡¯t been paid by the client.

    39. The court then clearly and specifically ordered the respondent to turn over the respondent¡¯s files in the criminal matter to Nieto, this time by Saturday, April 21, 2001 at noon.

    40. The respondent did not provide the client files by that deadline, but did provide the client files on the criminal matter on April 25, 2001.

    41. The respondent would not provide the files in the dissolution matter or the civil lawsuit matter at that time. Later that day, however, the respondent wrote a letter directly to her former client Gary Phillips, and not copied to attorney Nieto, in which she instructed the former client to contact her on Thursday, April 26, 2001, so that she could arrange delivery of the dissolution files and the two civil suit files.

    42. In the above letter, the respondent also made the following statements:

      Your focus has been excessively, in my opinion, on impeaching Jeanne. I told you over and over again that, in my opinion, we had more than enough to impeach Jeanne. (Karen Hahn was another matter). I hoped you would at least discuss settlement because there was a possibility that Jeanne could/would talk Karen into taking a piece of the house and, if they would recant their claim that you intentionally assaulted them, you would have a higher probability that the D.A. would drop the charges or let you plead to a much lesser offense. There is, of course, no guarantee that Jeanne or Karen, or, the D.A. would go along with anything. Jeanne certainly hates you, and as I told you, she is applying great pressure to the D.A.

    43. The client requested that respondent provide the files to Nieto. In a facsimile transmission dated May 3, 2001 but not sent until May 7, 2001, the respondent stated that she would prepare all of the remaining client files for transport to Nieto. Despite such statement, the respondent failed to provide these files to Nieto.

    44. On May 14, 2001 a hearing on a motion for contempt filed by the wife and against Phillips in the dissolution matter was scheduled before Magistrate DeVita in Division S of the Jefferson County District Court. Nieto entered a limited appearance therein based on the fact that, as of the date of the show cause hearing, the respondent had neither filed nor prosecuted a motion to withdraw, nor transmitted the client file in the dissolution matter to Nieto, despite many requests.

    45. The magistrate had his clerk call the respondent and ordered her to file a motion to withdraw. Because the underlying motion for contempt involved documents that had not been produced to counsel for the wife, the magistrate suggested that a show cause order be prepared that would require the respondent to produce the documents. The magistrate further stated:

      I have had previous dealings with this attorney and I understand your quandary and your wondering and your hearing noises about one particular thing but nothing definite. Been there and done that. And that¡¯s why I would go to the extent of offering show cause for her to appear and tell me why this should not happen and why she¡¯s delaying the court process.

    46. The show cause hearing in the underlying contempt matter was rescheduled to June 20, 2001. Nieto subsequently notified the respondent that Magistrate DeVita was disposed to issuing an order to the respondent requiring her personal appearance to show cause why she should not be held in contempt for her failure to turn over the files in the dissolution matter.

    47. Nieto advised the respondent that he would draft and file the contempt papers by the end of that day in the event the respondent had not made good on her representation that she would transport the files to him. Nieto emphasized that he hoped he would not have to go to the expense and waste of time to do so, but that he was left with few alternatives.

    48. Subsequently, the respondent turned over the remaining files to Nieto.

    49. On May 16, 2001 the respondent filed a motion to withdraw from the dissolution matter (dated March 16, 2001, with a certificate of mailing to opposing counsel dated March 19, 2001). The court granted the respondent¡¯s motion to withdraw on May 18, 2001.

    50. Nieto entered his appearance in the dissolution matter on June 25, 2001, and got a continuance for the July permanent orders hearing.

    51. Mr. Phillips was subsequently convicted on or about September 14, 2001 on the criminal charges, and received six years in the Colorado Department of Corrections on convictions for counts one and two.

    52. The permanent orders hearing in the dissolution matter occurred on October 31 and November 1, 2001, and a decree of dissolution and permanent orders were entered.

    53. Attorney Nieto was required to acquire a judgment against Mr. Phillips for nonpayment of his attorney fees in the dissolution of marriage action. When attorney Nieto attempted to file a lien, he learned that the respondent had filed her March, 2001, charging lien.

    54. Attorney Nieto wrote the respondent on March 22, 2002, informing her that the recording of such lien was improper citing C.R.S. ¡ì 12-5-119 and In re the Marriage of Mitchell, 00CA0396 (Colo. App. 2002). The respondent has not released the lien as of December, 2002.

      CLAIM XIII

      [A Lawyer Shall Provide Competent Representation To A Client-Colo. RPC 1.1]

    55. Paragraphs 192 through 243 are incorporated herein.

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

    57. The respondent failed to provide her client competent legal representation when she advised her client that he should give his ex-wife the marital residence in exchange for the ex-wife (and possibly the other victim, Karen Hahn) recanting their prior statements on the assault incident.

    58. The respondent failed to fully consider and then discuss with her client the potential for violating C.R.S. ¡ì 18-8-703 (bribing a witness) and/or ¡ì 18-8-707 (tampering with a witness) if the respondent and/or the client made such offer to the wife or her attorney in the dissolution matter. See People v. Aron, 962 P.2d 261 (Colo. 1998) (attorney was disciplined for failing to tell a client that keeping the client¡¯s children in violation of the custody order could result in a felony charge, and also failed to tell the client that another state would not assume jurisdiction if the children were in that state in violation of the custody order).

    59. The client refused to accept the respondent¡¯s advice to offer the marital residence in exchange for the wife recanting her testimony to the district attorney in the criminal trial. Thus, no actual harm was suffered. Nevertheless, the respondent¡¯s advice on this issue had a potential for creating potentially serious harm to this client.

    60. By such conduct, the respondent violated Colo. RPC 1.1.

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM XIV

      [A Lawyer Shall not Counsel a Client to Engage in Conduct that the Lawyer Knows is Criminal-Colo. RPC 1.2(d)]

    61. Paragraphs 192 through 243 are incorporated herein.

    62. Colo. RPC 1.2(d) provides that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of action with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

    63. The respondent provided legal advice to her client where she attempted to influence him to give the marital residence in exchange for the wife recanting her testimony to the district attorney in the criminal trial.

    64. The respondent knew at the time she provided this advice that Jeanne Anderson and Karen Hahn were primary witnesses in the criminal matter. The respondent knew or should have known that offering real property in exchange for a recant of testimony had the potential for violating C.R.S. ¡ì 18-8-703 (bribing a witness) and/or ¡ì 18-8-707 (tampering with a witness) if the respondent and/or the client made such offer to the wife or her attorney in the dissolution matter.

    65. The respondent knew such conduct was illegal as she had previously discussed this issue with her client in August 2000 and had discouraged him from following that course of conduct at that time, as she considered such conduct illegal.

    66. The respondent counseled her client to engage in conduct that the lawyer knew was criminal. Such advice was not simply discussing the legal consequences of her proposed course of action and was not done in a good faith effort to determine the validity scope meaning or application of the law.

    67. By such conduct, the respondent violated Colo. RPC 1.2(d).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM XV

      [Conflict of Interest: Prohibited Transactions-Colo. RPC 1.8(a)]

    68. Paragraphs 192 through 243 are incorporated herein.

    69. Colo. RPC 1.8(a) provides that a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possesory, security or other pecuniary interest adverse to a client unless (1) the transaction and terms on which the lawyer acquires the interest are fair an reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) the client is informed that use of independent counsel may be advisable and is given a reasonable opportunity to seek the advice of such independent counsel in the transaction; and (3) the client consents in writing thereto.

    70. The respondent entered into an agreement with her client whereby the client would provide title and/or a lien and/or a deed of trust to the respondent as "collateral" for the attorney-client fee agreement.

    71. The respondent failed to disclose to the client the ramifications of providing the security interest in the property, and failed to transmit such disclosure in writing in a manner that could be reasonably understood by the client.

    72. The respondent failed to inform the client that use of independent counsel may be advisable, and failed to provide the client a reasonable opportunity to seek the advice of such independent counsel.

    73. The respondent failed to obtain a written consent to the conflict disclosure required under this rule.

    74. The respondent had the obligation to be certain that her client was made aware of the protections under Colo. RPC 1.8(a), but failed to discharge that obligation.

    75. By such conduct, the respondent violated Colo. RPC 1.8(a).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM XVI

      [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)]

    76. Paragraphs 192 through 243 are incorporated herein.

    77. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client¡¯s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that had not been earned.

    78. The attorney-client relationship was effectively terminated by the parties in March, 2001.

    79. On March 27, 2001, attorney Arthur S. Nieto entered his appearance on behalf of Mr. Phillips in the criminal matter. Time was of the essence in ensuring that this client¡¯s interests in the criminal matter were protected.

    80. Mr. Nieto attempted to obtain a copy of the client files from the respondent in timely fashion.

    81. The respondent failed to surrender the client files and papers despite numerous demands and requests to do so. The court ordered the respondent to produce the client files.

    82. The respondent failed to comply with the court order to surrender the client files and papers in timely fashion.

    83. By the above-described conduct, the respondent failed to take steps to protect the client¡¯s interests in the criminal matter, causing a continuance of the criminal trial. Furthermore, the respondent¡¯s conduct could have potentially caused serious harm to the client had the criminal trial not been continued due to the respondent¡¯s failure to provide the files and papers.

    84. Attorney Nieto also made requests for the client¡¯s dissolution files from the respondent.

    85. The respondent failed to surrender these client files and papers despite demands and requests to do so.

    86. The respondent¡¯s conduct in failing to surrender the dissolution files occurred over a period of time, and eventually required intervention by the court.

    87. Only after the respondent was threatened with contempt action did the respondent turn over the dissolution files to Nieto.

    88. The respondent¡¯s conduct in failing to return the dissolution files caused harm or potentially serious harm to the client.

    89. By such conduct, the respondent violated Colo. RPC 1.16(d).

WHEREFORE, the complainant prays at the conclusion hereof.

  1. CLAIM XVII

[A Lawyer Shall Not Engage in Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation-Colo. RPC 8.4(c)]

    1. Paragraphs 192 through 243 are incorporated herein.

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

    3. On March 22, 2001, the respondent recorded a "notice and claim of lien" with the Arapahoe County Clerk and Records Office.

    4. The respondent asserted a lien in the amount of $40,000.

    5. At that time the respondent filed said lien, the respondent knew that her representation of this client had ended, and knew that the client only owed her $28,542.87 as she had just prepared a contemporaneous billing statement for this client.

    6. Nonetheless, the respondent filed the notice of claim of lien that contained the language: "client has incurred legal costs at or near the remaining balance due of $40,000," when the client only owed the respondent $28,542.87.

    7. This statement made in a recorded document affecting real estate was not true, and overstated even her own records by $11,000.

    8. As stated above, the respondent knew this statement was not true at the time she made such statement.

    9. By providing this false information to a government agency and recording the same, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

    10. By such conduct, the respondent violated Colo. RPC 8.4(c).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM XVIII

      [It is Professional Misconduct for a Lawyer to Engage in Conduct that is Prejudicial to the Administration of Justice-Colo. RPC 8.4(d)]

    11. Paragraphs 192 through 243 are incorporated herein.

    12. 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.

    13. The respondent failed to deliver to her client or the successor attorney all papers and property to which the client was entitled.

    14. The respondent knew of the upcoming deadlines in both the criminal matter and the dissolution matter at the time she refused to deliver these files.

    15. The respondent attempted to use the upcoming deadlines to leverage her client into paying her additional attorney fees.

    16. The respondent¡¯s conduct in failing to surrender these files caused delay and other potentially serious injury in both proceedings, and interfered with the ebb and flow of justice, by causing unnecessary continuances.

    17. Such conduct is prejudicial to the administration of justice.

    18. Such conduct violates Colo. RPC 8.4(d).

    19. The respondent also recorded a charging lien on client property.

    20. The respondent knew at the time she filed said lien that such lien was improper, and was subsequently told that said lien was improper.

    21. Despite such knowledge and notice, the respondent has failed and refused to release said charging lien.

    22. This conduct had and continues to have the potential of interfering with real estate transactions on these properties without any justification or basis.

    23. By such conduct, the respondent violated Colo. RPC 8.4(d). See People v. Smith, 830 P.2d 1003 (Colo. 1992).

      WHEREFORE, the complainant prays at the conclusion hereof.

      CLAIM XIX

      [It is Professional Misconduct for a Lawyer to Engaging in Any Other Conduct That Adversely Reflects on the Lawyer¡¯s Fitness to Practice Law-Colo. RPC 8.4(h)]

    24. Paragraphs 192 through 243 are incorporated herein.

    25. 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.

    26. On March 22, 2001, the respondent recorded a "notice and claim of lien" with the Arapahoe County Clerk and Recorder¡¯s Office.

    27. That lien was improper and excessive for the following reasons:

        1. The lien was for an amount in excess of the respondent¡¯s legal fees in all matters;

        2. The respondent had no contractual lien;

        3. The respondent was not entitled to assert a charging lien on property for the criminal matter or the personal injury matters, as the property was not a basis of the litigation in either of those matters. See C.R.S. ¡ì 12-5-119 (2001);

        4. The respondent failed to obtain a judgment in either the underlying dissolution matter or a separate proceeding. See People v. Smith, 830 P.2d 1003 (Colo. 1992) and In re the Marriage of Mitchell, 55 P.3d 183 (Colo. App. 2002).

        5. The respondent also created a cloud on title for the other five homeowners at this address, and has failed to correct the situation to date.

    28. The totality of the above conduct demonstrates that this respondent lacks the personal or professional ethical qualifications required of those individuals authorized to practice law, and violates every notion of client trust and of fair and efficient dealing.

    29. The respondent ignored statutory and case law, the rights of her client (to whom she owed a duty of loyalty) and the rights of third party homeowners in an overreaching attempt to leverage payment of her asserted fees, plus an extra $11,000.

    30. Such conduct adversely reflects on the respondent¡¯s fitness to practice law.

    31. By such conduct, the respondent violated 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 Amy Szot, and/or the client protection fund pursuant to C.R.C.P. 252.14(b), and/or provide restitution to third parties; that the respondent release the lien filed with the Arapahoe County Clerk and Recorder¡¯s Office; 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.

Dated this 27th day of January, 2003.

 

 

_____________________________________

James C. Coyle, #14970

Deputy Regulation Counsel

John S. Gleason, #15011

Regulation Counsel

Attorneys for Complainant

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