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TCL > February 2004 Issue > Disciplinary Opinions

The Colorado Lawyer
February 2004
Vol. 33, No. 2 [Page  103]

© 2004 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Colorado Disciplinary Cases

Disciplinary Opinions

The Colorado Supreme Court has adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge, pursuant to C.R.C.P. 251.16. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The Presiding Disciplinary Judge presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the Presiding Disciplinary Judge. See C.R.C.P. 251.18(d).
The Colorado Lawyer publishes the summaries and full-text Opinions of the Presiding Disciplinary Judge, Roger L. Keithley, and a two-member hearing board, whose members are drawn from a pool appointed by the Supreme Court. For space purposes, accompanying Exhibits may not be printed.
These Opinions may be appealed in accordance with C.R.C.P. 251.27.
The full-text Opinions, along with their summaries, are available on the CBA home page at http://www.cobar.org/tcl/index.htm. See page 122 for details.Opinions, including Exhibits, and summaries are also available on LexisNexisTM at http://www.lexis.com/research by clicking on States LegalU.S./Colorado/Cases and Court Rules/By Court/Colorado Supreme Court Disciplinary Opinions.

 

Case Number: 03PDJ037

Petitioner:

TIMOTHY A. BULLOCK,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

October 28, 2003

OPINION AND ORDER READMITTING TIMOTHY BULLOCK

TO THE PRACTICE OF LAW

Opinion Issued by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Melinda M. Harper, a representative of the public, and John E. Hayes, a member of the Bar.

ATTORNEY READMITTED TO THE PRACTICE OF LAW

On August 29, 2003, a Readmission Hearing was held pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, John E. Hayes, a member of the bar, and Melinda M. Harper, a representative of the public. Jeffrey S. Pagliuca appeared on behalf of petitioner Timothy A. Bullock ("Bullock") who was also present. James C. Coyle, Deputy Regulation Counsel, represented the People of the State of Colorado (the "People").

At the Readmission Hearing, Bullock testified on his own behalf. The Hearing Board considered the Stipulation and Agreement Concerning Petition for Reinstatement After Discipline (the "Stipulation") filed by the parties on August 20, 2003.1 The Hearing Board considered the argument of counsel, assessed Bullock’s credibility, considered his testimony and the Stipulation, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Timothy A. Bullock has taken the oath of admission, was admitted to the Bar of the Supreme Court on May 9, 1991, and was registered under attorney registration number 20377.

By Order dated October 24, 1994, the Supreme Court disbarred Bullock based on a Conditional Admission of Misconduct submitted by the parties agreeing to the sanction of disbarment.2 Petitioner’s disbarment arose from his representation of a client on a pro bono basis during the first year of his having been licensed to practice law.

On June 25, 1992, Bullock’s client was found guilty of criminally negligent child abuse, a class 4 felony, and was sentenced to six years in the Colorado Department of Corrections. In post-conviction proceedings,3 Bullock’s prior client was granted a new trial based on ineffective representation at trial. The prior client then accepted a plea bargain, pled guilty to the class 4 felony of criminally negligent child abuse, and was sentenced to four years in community corrections at the Alpha Center in Denver.

In June 1993, the client escaped from the Alpha Center. Knowing that the client was an escapee and a fugitive from justice, Bullock aided the client in his escape by arranging to supply the client with money. Bullock was subsequently indicted on three counts of aiding an escape, § 18-8-201(5), 8B C.R.S. (1986), a class 3 felony. Under a plea agreement, Bullock pled guilty to, and was convicted of, one count of felony aiding an escape, § 18-8-201(5), 8B C.R.S. (1994 Cum. Supp.) and one count of misdemeanor aiding an escape, § 18-8-201(6), a class 1 misdemeanor. Bullock admitted in the Conditional Admission of Misconduct that his conduct violated C.R.C.P. 241.6(5)(any act or omission violating the criminal laws of a state or of the United States constitutes ground for lawyer discipline).4

As a result of the convictions, Bullock was sentenced to probation on both the deferred judgment and misdemeanor. He successfully completed the deferred judgment, and the felony conviction was withdrawn and dismissed. Bullock completed one hundred and fifty-six hours of community service. The conviction and disbarment radically changed his life.

More than eight years have passed since the effective date of the Order of Disbarment. See C.R.C.P. 251.29(a)(stating that a disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment). Bullock sat for and successfully passed the February 2003 Colorado Bar Exam. He sat for and passed the Multistate Professional Responsibility Exam on August 9, 2002. See C.R.C.P. 251.29(a). Bullock has taken Continuing Legal Education courses in Colorado and Tennessee totaling in excess of 60 hours of general credits and 18.5 hours of ethics within the last three years.

Bullock has been employed for the last year as a law clerk with the law firm of Todd & Dossett, P.C. in Kingsport, Tennessee. Both supervising attorneys, Mr. Todd and Mr. Dossett, have confirmed that Bullock is of sound character. They also confirmed that Bullock has been an exceptional employee, is hard working, loyal and trustworthy and would be an excellent lawyer. Bullock currently resides in Tennessee. He has obtained four different licenses/certifications all of which have some legal requirement of proof of good character, including: a Florida Real Estate License; a Florida Mortgage Brokers License; a USCG Merchant Marine Captain’s License, and a NFL Players Agent Certification. Bullock is currently enrolled in science courses which will eventually qualify him to sit for the Patent Bar Exam in approximately one year. Bullock has remained informed in the areas of law in which he hopes to practice by reading current legal publications.

At the time of his representation of the criminal defendant, Bullock had been admitted to the bar in Colorado for less than one year. It was his nature at that time to become over-involved with his clients and attempt to fix problems for others, leading to a blurring of boundaries. Bullock arranged to provide funds to the prior client after learning that he had unlawfully left the correctional facility. Bullock did so based on the prior client’s representation that he needed funds to provide bus fare to his son to return home. Bullock believed the prior client and provided the funds. He did so because he felt guilty about the outcome of the proceeding as a result of his representation. He had grown close to the prior client’s family and particularly to the prior client’s son. Bullock described the conviction as an "atomic bomb" in his life.

In the past ten years, through work, self-examination, and personal growth, Bullock has demonstrated that he has learned from his mistake and fundamentally changed his approach to relationships with others. Bullock understands the need to enforce personal and professional boundaries and the importance of these boundaries in a professional relationship. He has maintained his marriage of nineteen years. Individuals who are familiar with Bullock believe he is trustworthy, loyal and competent. He has been an active member of his church and supporter of charitable events in his community.

Bullock has accepted full responsibility for his actions. He recognizes the seriousness of his previous misconduct. Bullock has been candid and remorseful about the circumstances that resulted in the disbarment.

Bullock has complied with all past orders and disciplinary orders; he paid the $49.25 in costs required pursuant to the Supreme Court’s Order of disbarment. He paid the $1,240 he was ordered to pay in the criminal proceeding.

II. CONCLUSIONS OF LAW

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

Readmission After Disbarment. A disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment. To be eligible for readmission the attorney must demonstrate the attorney’s fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission, properly verified, with the Presiding Disciplinary Judge, and furnish a copy to the Regulation Counsel . . . the attorney . . . must demonstrate by clear and convincing evidence the attorney’s rehabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter.

C.R.C.P. 251.29(c) further provides in part:

The petition for reinstatement must set forth:

(3) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;

(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended lawyers;

(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension; and

(6) A statement of restitution made as ordered to any persons and the Colorado Attorneys’ Fund for Client Protection and the source and amount of funds used to make restitution.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988), interprets the language of the prior readmission rule, C.R.C.P. 241.22, and sets forth criteria which must be considered in readmission proceedings in order to evaluate an attorney’s rehabilitation. Klein requires:

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

Under the factors set forth in Klein, 756 P.2d at 1016, the Hearing Board finds that Bullock established by clear and convincing evidence that he is rehabilitated. Bullock has established his professional competence by passing the Colorado Bar Exam and the Multistate Professional Responsibility Exam. He has been employed as a law clerk with a firm in Tennessee and has garnered the respect from his supervising attorneys, both with regard to the quality of his work and his good character. In addition to his work in the field of law, he has taken appropriate steps to remain current with the law, having met and surpassed the required number of credits of Continuing Legal Education courses in Colorado. He has also kept abreast of the current law by reading legal periodicals.

Bullock demonstrated with candor and sincerity that he has given a great deal of careful thought over the last nine years to his conduct which gave rise to the disbarment. He accepts complete responsibility for his error in judgment. He recognizes the seriousness of his previous misconduct.

Bullock has established that he is of good moral character. He has maintained a stable relationship with his wife and is active in his community. Bullock has established that future similar misconduct is unlikely. Bullock fully complied with the terms and conditions of the criminal matters and fully complied with all disciplinary orders and the requirements of C.R.C.P. 251.29.

The People stipulate that Bullock has demonstrated rehabilitation, professional competence and compliance with all disciplinary orders. The People further stipulated to Bullock’s readmission to the practice of law in Colorado. The evidence having established by a clear and convincing standard that Bullock has been rehabilitated, the Hearing Board herein Orders that Bullock shall be readmitted to the practice of law.

III. ORDER OF REINSTATEMENT

IT IS THEREFORE ORDERED:

1. Timothy A. Bullock is READMITTED to the practice of law effective upon the satisfaction of the following conditions:

A. Payment of all necessary Attorney Registration fees and completion of all necessary forms required by the Colorado Office of Attorney Registration; and

B. Taking of the Oath of Admission before an appropriate judicial officer.

2. Bullock shall pay costs of the readmission proceeding. The People shall file a Statement of Costs within fifteen (15) days of the date of this Order; Bullock shall have ten (10) days thereafter to file a Response;

3. Bullock shall be assigned a new attorney registration number.

_______

1. Upon the parties’ motion, the PDJ took judicial notice of the Stipulation.

2. Bullock was immediately suspended by Order of the Supreme Court on May 20, 1994 for the same facts giving rise to the disbarment.

3. Bullock’s prior client was represented by new counsel during the post-conviction proceedings.

4. C.R.C.P. 241.6(5) was replaced by C.R.C.P. 251.5(b) effective January 1, 1999.

 

 

Case Number: 03PDJ048

Petitioner:

KALLMAN S. ELINOFF,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

November 14, 2003

OPINION AND ORDER REINSTATING KALLMAN S. ELINIOFF TO THE PRACTICE OF LAW

Opinion Issued by a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley, Hearing Board Members Annita M. Menogan and Boston H. Stanton, Jr., both members of the Bar.

ATTORNEY REINSTATED TO THE PRACTICE OF LAW

On October 15, 2003, a reinstatement hearing was held in the within matter pursuant to C.R.C.P. 251.29 before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Annita M. Menogan and Boston H. Stanton, Jr., both members of the bar. W. Daniel Mahoney appeared on behalf of Petitioner Kallman S. Elinoff ("Elinoff"), who was also present. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People").

Elinoff was the sole witness, and he testified on his own behalf. Elinoff’s exhibits A through J were admitted into evidence. A Stipulation of the Parties Concerning Petitioner’s Compliance With All Disciplinary Orders and Actions Required of Suspended Attorneys and Petitioner’s Fitness to Practice Law had previously been submitted and was accepted by the Hearing Board. The Hearing Board considered the argument and exhibits admitted, the Stipulation submitted by the parties, assessed the credibility of the witness, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Kallman S. Elinoff took the oath of admission and was admitted to the Bar of the Supreme Court in 1989, and is registered under attorney registration number 18677. He was suspended from the practice of law on June 1, 2001, by Order of the Colorado Supreme Court dated April 30, 2001. People v. Elinoff, 22 P.3d 60 (Colo. 2001). In its decision, the Supreme Court affirmed the Hearing Board’s factual findings concluding that on March 17, 1998, Elinoff represented Douglas Rathbun in a County Court hearing on felony charges. At the conclusion of the hearing, Denver detectives arrested Elinoff’s client on unrelated domestic violence charges. Rathbun became upset and pleaded with the officers not to take him to jail right then, as he wanted to see his girlfriend before she was sentenced to prison. The detectives refused to let him go, but allowed him to smoke outside the courthouse. While the four of them where outside, Rathbun continued to plead with the officers for a delay in his incarceration. Elinoff struck up an informal conversation with the detectives and at one point told the detectives that they needed to talk about his client at a level that they all could understand. He reached into his shirt pocket and removed several bills of currency (including a $100 bill), extended the bills toward a detective, and stated that if the detectives would forget the matter for the day, Rathbun would turn himself in the next day. One detective told Elinoff that his conduct was unacceptable, and the detectives took Rathbun to jail. Elinoff himself was not arrested, nor was he charged with violation of any criminal law.

In the Complaint filed against Elinoff, the People charged Elinoff with conduct constituting the criminal offense of bribery, a class three felony. The Hearing Board originally found that Elinoff’s conduct warranted disbarment, but at rehearing determined that a three-year suspension, with one year stayed, was appropriate. The Supreme Court affirmed that decision. In its opinion, the Supreme Court noted that the crime of bribery strikes at the heart of a lawyer’s duty to uphold the administration of justice.

After his suspension was made a final order, Elinoff moved with his wife and child to Israel where he had the opportunity to help build and work at an outdoor adventure program for children with disabilities, at-risk youth, and school age children of all backgrounds from around the country. His role as an outdoor counselor included team building activities, assisting young people to elevate their self-esteem, and challenging their physical limitations. Throughout his twenty-month stay in Israel, he continually confronted the bribery incident and its impact on his life through discussion with his peers as well as many of the young people with whom he counseled.

Due to the terror crisis in Israel and the demands on the regional police units, Elinoff was asked to join the regional police force as a volunteer police officer. He was selected because of his prior combat experience and exemplary military record. He received training in the classroom and in the field and was deputized to perform the same duties and was held to the same responsibilities as a regular police officer. He was legally authorized to make probable cause determinations, effectuate arrest procedures, investigate crimes and testify at trials. He was held accountable as a professional in all regards. He accompanied regular police officers on calls, set-up and manned security checkpoints and roadblocks, and patrolled the area for both criminal and terrorist threats. His opportunity to stand in a police officer’s shoes afforded him a tremendous insight on how difficult an officer’s job can be and how the public perceives their roles. Elinoff now understands the two officers he offended during the bribery incident and the disrespectful behavior that led to his suspension.

Elinoff was also a volunteer assisting the sex assault unit of the prosecution office in Haifa, Israel. Although his role was very limited in nature, his primary objective was to stay active in the profession and by doing so, learned about the Israeli legal system from investigation through trial, lectured to the sex assault investigators of the Department of Social Services, and provided to the unit sorely needed literature available only in the United States.

Upon his return to the United States, Elinoff found full-time employment as a juvenile offender counselor for Arapahoe County’s Residential Work Program, an alternative sentencing program for youth. The program provides an outdoor work and camping experience to juvenile offenders as an alternative to detention. His role as counselor includes providing supervision, acting as a positive role model, and mentoring the at-risk youth through process groups. Elinoff applies his life experiences and the lessons he has learned through his suspension to counsel these young people on the importance of making responsible decisions in order to stay out of trouble and out of the system. He now understands the consequences of making poor decisions, including the loss of his profession, the loss of many professional friendships, and the loss of his reputation. Through these hard lessons, Elinoff is resolved to helping young people at an age when they can still change the course of their future avoid making poor decisions as adults.

Elinoff is also a full-time professor of Homeland Security at Parks College. He teaches a broad range of subjects including Criminal Law and Procedure, counter terrorism procedures and protocols, security management, and current topics involving Homeland Security on a local, national and international level. Elinoff organizes guest lecturers through the police, fire, HAZMAT, FBI, and other agencies. He has created a community outreach program that provides terror awareness training to businesses and community groups at no cost.

In April of 2003, Elinoff initiated and helped organize a fundraiser for Jacob’s Journey, a non-profit organization that sends ill children on wilderness trips.

Since October of 1999, Elinoff has sought and received mental health counseling from Dr. Ralph Grasso. During his therapy, he has explored the causes as to why he placed his profession and family at risk and has worked through the behavioral changes needed to prevent a recurrence in the future. Elinoff’s therapist provided credible and substantial information that Elinoff has made long strides in recognizing and changing the basis for his poor decision-making in the past and learning how to prevent a recurrence in the future. Elinoff expressed that no day passes that he does not feel remorse for what he did and for the distress he caused the officers. He has previously apologized in person to one of the officers, has expressed publicly his culpability, and acknowledged the damage that he has caused the profession. Following the introduction of all evidence in this proceeding, the People stipulated that Elinoff was rehabilitated and should be reinstated to the practice of law in Colorado.

II. CONCLUSIONS OF LAW

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

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

C.R.C.P. 251.29(c) further provides in part:

The petition for reinstatement must set forth:

(3) the facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;

(4) evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended lawyers;

(5) evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

Additionally, certain criteria must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. People v. Klein, 756 P. 2d 1013, 1016(Colo. 1988) interprets the language of the prior reinstatement rule, C.R.C.P. 241.22. Klein requires:

[A]ny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the [petitioner’s] state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the [petitioner], the personal and community service aspects of the [petitioner’s] life, and the [peti tion er’s] recognition of the seriousness of his previous misconduct.

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

The parties stipulated that Elinoff has complied with all prior disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline. The parties also stipulated that Elinoff is fit to practice law based upon his continuing legal education and past and current work in the legal field. The facts acknowledged by these Stipulations are accepted. The sole issue at hearing was whether Elinoff has been rehabilitated.

Elinoff had made a fundamental change in his character and his perception of the role of attorneys in our society. His objective undertakings, both the activities engaged in and the results obtained, reveal genuine efforts to restructure those professional shortcomings which culminated in the prior discipline. His efforts have been exemplary. Elinoff has established by clear and convincing evidence that he is, in fact, rehabilitated. Elinoff has testified and the evidence has shown that he has not merely taken responsibility and shown remorse for his conduct, but that he has used the suspension in a positive way to learn to be a different individual and a better professional.

III. ORDER OF REINSTATEMENT

It is therefore ORDERED:

KALLIMAN S. ELINOFF, attorney registration number 18677, is reinstated to the practice of law effective immediately. Elinoff shall pay all costs of this reinstatement proceeding. Respondent shall file a Statement of Costs or Notice that costs have been paid within fifteen (15) days of the date of this Order. Petitioner shall have five (5) days to file a Response.

 

 

Case Number: 03PDJ049

Petitioner:

RICHARD J. GOFF,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

December 17, 2003

OPINION AND ORDER REINSTATING

RICHARD J. GOFF’S LICENSE TO PRACTICE LAW

Opinion by A Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members Corinne Martinez-Casias and J. D. Snodgrass, both members of the Bar.

Attorney Reinstated to the Practice of Law

This reinstatement hearing was heard on October 28, 2003, pursuant to C.R.C.P. 251.29(b) and (c) before the Presiding Disciplinary Judge ("PDJ") and Corinne Martinez-Casias and J. D. Snodgrass, both members of the bar. Nancy L. Cohen, Chief Deputy Regulation Counsel, represented the People of the State of Colorado (the "People") and Richard J, Goff ("Goff") appeared pro se. Testimony was received from Rex H. McGehee, M.D., John Scherling, Jack Pernitz and Goff. Exhibits 1 through 15 were introduced into evidence. The People did not object to Goff’s reinstatement and acknowledged that he had met his burden of proof on each element necessary for reinstatement.

I. FINDINGS OF FACT

The Hearing Board made the following findings of fact by clear and convincing evidence:

Richard J. Goff has taken the oath of admission and was admitted to the bar of this court on May 16, 1990 and is registered as an attorney upon the official records of this court, attorney registration number 19348. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b). Goff was suspended from the practice of law effective October 11, 1999 by Order of the PDJ. The Order approved a Stipulation and Agreement Containing the Respondent’s Conditional Admission of Misconduct ("Conditional Admission"), pursuant to which the People and Goff agreed to a six-month suspension with conditions. One of the express conditions was the requirement that Goff undergo a reinstatement proceeding. In addition, Goff was ordered to pay the costs of the disciplinary proceeding, which he paid in a timely fashion. Goff gave notice to his clients of his suspension in accordance with C.R.C.P. 251.28(b), notice to opposing parties in litigation pursuant to C.R.C.P. 251.28(c) and filed the requisite affidavit under C.R.C.P. 251.28(d).

On May 17, 2000, Goff’s first reinstatement hearing was conducted. The Hearing Board in that proceeding issued its decision denying reinstatement on August 4, 2000. See Goff v. People, 35 P. 3d 487 (Colo. O.P.D.J. 2000). That decision sets forth Goff’s disciplinary history and will not be repeated here.

In August 2002, Goff again applied for reinstatement. On October 6, 2002, a reinstatement hearing commenced before another Hearing Board. Prior to the conclusion of Goff’s presentation of evidence, Goff moved to withdraw his Petition for Reinstatement. The People did not object and the PDJ granted Goff’s motion to withdraw the petition.

On July 10, 2003, Goff filed the present Petition for Reinstatement.

Prior to October 2002, Goff entered therapy with Maureen McKenzie, L.C.S.W., for depression. In addition, Goff was under the care of Rex H. McGehee, M.D., a psychiatrist. Eventually, Dr. McGehee diagnosed Goff as suffering from Bi-Polar Disorder and prescribed appropriate medication. After a significant period of medication adjustment, Goff’s Bi-Polar Disorder and depression are under control.

During the year immediately preceding this reinstatement hearing, Goff made dramatic improvement. The report of Gregory A. Wilets, M.D., the People’s independent medical evaluator states:

In fact, in my twenty-two years of practicing psychiatry, [Goff’s] overall change in presentation over the last year has been one of the more remarkable changes that I have witnessed in my practice in this relatively short period of time.

More precisely, Mr. Goff’s narcissism has been confronted and he has been humbled, and with much contrition has realized that there are limits to what he can do. Germane to his history of abusing the legal system, he is able to acknowledge that in the past he was "Way out of line," and needed to be reeled in and controlled . . . . [h]e now sees these attitudes as being entirely dysfunctional and unacceptable behaviors.

No longer does he see [others] as the source of his professional problems, but now appropriately sees himself as the source of the disciplinary action taken against him . . . [r]ather than externalize his previous dysfunction, he now takes ownership of his improper behavior.

Dr. McGehee concurred with Dr. Wilets conclusions. The medical control of Goff’s Bi-Polar Disorder and depression now allows Goff to exercise appropriate personal and professional judgment. Goff’s need for appropriate medication will likely be life long in duration.

Goff has maintained competence in the law. Since 2000, Goff has completed 47 hours of Continuing Legal Education and has worked as a paralegal under the supervision of an attorney preparing pleadings and conducting legal research.

II. CONCLUSIONS OF LAW

The reinstatement process begins with the submission of a Verified Petition for Reinstatement. C.R.C.P. 251.29(c) requires that the attorney’s Petition for Reinstatement set forth, in part:

(3) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;

(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;

(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

The attorney seeking reinstatement must establish the three elements set forth in the rule by clear and convincing evidence. See C.R.C.P. 251.29(d). C.R.C.P. 251.29(b) sets forth the test which must be met during a reinstatement proceeding in order to authorize reinstatement to the practice of law. It provides, in relevant part:

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

Thus, an attorney who has been suspended from the practice of law must bear the burden of proving that he or she is: (1) rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (3) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988) interprets the language of the prior reinstatement rule, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. Klein requires:

[A]ny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the respondent’s state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the respondent, the personal and community service aspects of the respondent’s life, and the respondent’s recognition of the seriousness of his previous misconduct.

Goff has established that during the period of his suspension he has undergone a fundamental change in character. Due in part to both his medical treatment and his recognition of the seriousness of his prior misconduct, Goff is a very different person than the one who engaged in the original misconduct or appeared before the prior reinstatement Hearing Boards. Goff has demonstrated rehabilitation and fitness to practice law as required by C.R.C.P. 251.29.1

The Hearing Board is required to protect the public interest in allowing Goff to resume the practice of law. The evidence presented in this proceeding was uncontroverted that Goff’s rehabilitation, and in particular, his ability to exercise informed judgment, is dependent
upon proper medical management. Indeed, Goff acknowledged that proper medical management of his condition will likely be a life long undertaking. Accordingly, the Hearing Board concludes that the imposition of conditions pursuant to C.R.C.P. 251.29(e) is appropriate in authorizing Goff to resume the practice of law.

III. ORDER OF REINSTATEMENT

It is therefore ORDERED:

1. RICHARD J. GOFF is reinstated to the practice of law effective immediately, and subject to the following condition:

2. Richard J. Goff will continue to receive medical treatment for his mental condition, shall comply with all recommendations of his treating medical providers and shall take all medications as prescribed so long as required by the treating medical professionals.

3. Richard J. Goff shall pay the costs of this proceeding. The People shall submit a Statement of Costs within fifteen days of the date of this Order. Goff shall have ten days thereafter to submit a response thereto.

_______

1. The parties stipulated that Goff has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline.

 

Case Number: 02PDJ007

(consolidated with 02PDJ015)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

ROBERT E. WOODFORD.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

October 29, 2003

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members Laird T. Milburn and Douglas D. Piersel, both members of the bar.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR FIFTEEN MONTHS

A trial pursuant to C.R.C.P. 251.18(d) was held on November 25, 2002 before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley and two Hearing Board Members, Laird T. Milburn and Douglas D. Piersel, both members of the bar. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Robert E. Woodford, the respondent, ("Woodford") failed to appear in person or by counsel.

In Case No. 02PDJ007, the People filed a Complaint on January 24, 2003. On February 19, 2002, Woodford filed an Answer to the Complaint. On March 22, 2002, the People filed an Amended Complaint and Woodford did not file an Answer thereto. The matter was initially set for trial on July 15 and 16, 2002 and, upon Woodford’s unopposed motion, was continued to November 25 and 26, 2002. On November 15, 2002, the People moved for default on Case No. 02PDJ007, which was denied on the grounds that it was not timely filed.

On March 5, 2002, the People filed a Complaint in Case No. 02PDJ015. Upon motion of the People, the PDJ consolidated the two cases on April 4, 2002.

At the trial on November 25, 2002, the following witnesses testified on behalf of the People: Erwin Gemmer, D.C. via telephone; James Ingraham; John DeBruyn; Hollie Wieland; Magistrate E. David Griffith, and John Edward Smith. The People’s exhibits 1 through 10 were admitted into evidence. Woodford’s letter dated November 18, 2002 was marked as exhibit A and admitted into evidence.1 The Hearing Board considered the People’s argument, the testimony of the witnesses, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Woodford has taken and subscribed the oath of admission, was
admitted to the bar of the Supreme Court on January 9, 1987, and is registered upon the official records of the Court under attorney registration number 16379. He is subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1(b).

Case No. 02PDJ007

In 1998, John Edward Smith ("Smith") consulted Woodford regarding the protection of his assets from taxes and creditors. Woodford advised Smith that by placing his home and vehicle in a trust, he could avoid paying taxes in the future, and could protect his assets from creditors. Woodford told Smith the tax code was illegal. He advised Smith to write a letter to the United States Attorney General stating that Smith desired to stop paying taxes. Woodford said he would structure the trust so that Smith was to manage the trust and have control and use of the trust property including the ability to remove and utilize funds and to refinance his home. Smith paid Woodford $2,500 for preparing the trust documents.

On March 10, 1998, Smith executed trust documents prepared by Woodford. On the same day, Smith and his wife executed a Quit Claim Deed prepared by Woodford intended to transfer Smith’s home to the trust. The deed was recorded on September 25, 1998. Woodford did not explain the documents, the procedure, or the effect of the procedure to Smith. The trust instrument stated in part that the trust property could not be "held under attachment for Trustee(s) personal debts." See People’s exhibit 1, Article XI. The trust instrument further stated in part that "[t]his ‘Trust Estate’ shall have no tax liability in any jurisdiction which is foreign to the freely associated compact state of America, in which this ‘Trust Estate’ is domiciled." See People’s exhibit 1, Article XXIII. Smith’s mother, mother-in-law and Woodford were appointed as trustees of the trust.

At the time he performed these services for Smith, Woodford had an outstanding debt to a law firm for unpaid attorneys’ fees. The law firm reduced the obligation to judgment and filed a lien on all real property held by Woodford in El Paso County. Because Woodford had drafted the Smiths’ Quit Claim Deed so that it transferred their home to the trustees as individuals, including Woodford, the law firm’s judgment against Woodford encumbered the Smiths’ property.

Smith discovered the judgment the day the loan to refinance his home was to close. Smith informed Woodford who, in turn, wrote a letter to the title company explaining the situation. Woodford drafted and recorded a subsequent Quit Claim Deed which was supposed to correct the encumbrance upon Smith’s property. Woodford’s actions did nothing to correct the encumbrance his actions had imposed upon Smith’s property.

Woodford did not take any meaningful steps available to clear title to the Smiths’ home. Significantly, he did not make efforts to pay the judgment. Smith retained counsel to terminate the trust, who filed Case No. 99PR0599 in El Paso District Court, captioned In the Matter of: Schaal Smith Family Trust. By Order dated October 8, 1999, the trust was terminated and the assets distributed. Smith expended $2,300 in attorney’s fees to terminate the trust Woodford had provided to Smith. Smith thereafter filed for bankruptcy protection.

Woodford has not refunded any portion of the fees paid to him for the erroneous legal work and advice he rendered to Smith, nor has he made efforts to pay restitution to Smith for the $2,300 paid to correct the encumbrance imposed against his property by Woodford’s actions.

In connection with the judgment obtained by the law firm against Woodford, the law firm conducted at least three C.R.C.P. 69 proceedings against Woodford.2 Woodford gave testimony in the C.R.C.P. 69 proceedings that although he had income during 1996, 1997 and 1998 he had not filed tax returns for those years and may owe taxes.

Case No. 02PDJ015

In June 2000, Erwin Gemmer, D.C. ("Gemmer") retained Woodford to assist him in sheltering his assets from tax liability. Woodford agreed to prepare the documents Gemmer requested for $4,500 and requested $3,000 up front. On June 2, 2000, Gemmer paid Woodford $2,000 and paid him an additional $1,000 on June 6, 2000.

On June 16, 2000, Gemmer provided written direction to Woodford outlining how he envisioned structuring a trust. On the same day, Woodford wrote to Gemmer stating that he would draft a trust, assist in transferring property into the trust, provide Gemmer with trust management training, render advice on restructuring his business activities, and assist with problems should they develop.

Over the next several months, Gemmer repeatedly attempted to reach Woodford but was able to speak with him only twice. In late October 2000, Gemmer reached Woodford’s assistant and informed her that Gemmer had drafted some documents which he wished Woodford to review. By undated letter, Gemmer wrote to Woodford and requested that he review documents.3

On November 10, 2000, Woodford provided Gemmer with information which Gemmer had not requested, and stated that he had not yet received the materials Gemmer wanted him to examine.

On November 27, 2000, Woodford wrote Gemmer a letter stating that he had studied Gemmer’s documents and described his understanding of how the trust would function. Woodford requested that Gemmer confirm this was the arrangement he desired. Gemmer promptly telephoned Woodford and confirmed that it was.

Thereafter, Gemmer was able to reach Woodford one time out of approximately forty times Gemmer attempted to contact him from November 27, 2000, to April 13, 2001. Gemmer informed Woodford’s secretary that he would file a request for investigation if Woodford did not return Gemmer’s funds. Shortly thereafter, Woodford wrote to Gemmer stating that he had been waiting for a written confirmation to proceed with the work Gemmer requested.

Woodford spent an unknown amount of time reviewing documents Gemmer had sent. Gemmer never received a written record of the time Woodford had expended.

On April 20, 2001, Gemmer again requested that Woodford refund his payments. On April 20, 2001, Gemmer provided notice to Woodford that he had obtained other counsel and again requested a refund of the $3,000.

To date, Woodford has not refunded any portion of the $3,000 to Gemmer.

II. CONCLUSIONS OF LAW

Case No. 02PDJ007

The Amended Complaint in Case No. 02PDJ007 alleges that Woodford violated Colo. RPC 1.1(an attorney shall provide competent representation to a client) by preparing an invalid trust for clients; Colo. RPC 1.2(a)(an attorney shall abide by a client’s objectives) by failing to pursue the objectives of his client; Colo. RPC 1.3 (an attorney shall act with reasonable diligence and promptness in representing a client) by neglecting legal work entrusted to him; Colo. RPC 1.5(a)(an attorney’s fee shall be reasonable) by charging an excessive fee for the work he performed for the Smiths; and Colo. RPC 8.4(b)(it is professional misconduct for an attorney to commit a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects) by failing to file tax returns for the years 1996, 1997 and 1998 as required by 26 U.S.C. § 7203 (1982).4

In the Smith matter, the trust created by Woodford was not recognized by the IRS and did not address or accomplish the purposes Smith paid Woodford to achieve. The trust agreements prepared by Smith served no useful purpose whatsoever. Woodford violated Colo. RPC 1.1 by preparing unenforceable trust documents.5 Woodford’s actions accomplished no tax objectives or asset protection for Smith.

Woodford failed to advise Smith of available legal methods to minimize tax liability and provide some measure of protection of his assets against existing debt and creditors. Rather, Woodford directed Smith down a course of action incapable of satisfying his intended objectives and posing a significant risk of serious harm. By doing so, Woodford violated Colo. RPC 1.2(a).

When Woodford’s scheme resulted in a lien attaching to Smith’s property, Smith asked Woodford to remedy the problem before his anticipated refinancing took place. Woodford issued a second Quit Claim Deed which had no effect upon the problem he had created. Smith’s refinancing failed due, in part, to that encumbrance. Woodford took no further action to remedy the legal difficulties his course of action had triggered. Woodford’s failure to undertake prompt corrective action subsequent to his client’s request to do so constitutes neglect and violated Colo. RPC 1.3.

The alleged violation of Colo. RPC 1.5(a) is more difficult. Woodford charged a fee of $2,500 for the work he did on Smith’s case. Examination of the factors normally considered in determining whether a fee is reasonable do not realistically assist in this case.6 The work Woodford performed, however, was not in accord with his client’s objectives, was, in virtually every respect, incompetent, and was completely lacking in value of any kind to the client. Although a fee of $2,500 may well be reasonable for the preparation of a trust providing tax and asset protection benefits upon a client, under circumstances such as those present in this case, where the documents neither address the client’s objectives, evidence some measure of meaningful legal analysis for the client, or confer some legally recognizable benefit upon the client, such a fee is not reasonable. See People v. Gordon, 607 P.2d 995 (Colo. 1980). The fee charged by Woodford in this case is a violation of Colo. RPC 1.5(a).

Finally, Woodford’s failing to file tax returns for the years 1996, 1997 and 1998 constitutes a misdemeanor pursuant to 26 U.S.C. § 7203 (1982) and a violation of Colo. RPC 8.4(b).7

Case No. 02PDJ015

The Amended Complaint in Case No. 02PDJ015 alleges that Woodford violated Colo. RPC 1.3 (neglect of a legal matter); Colo. RPC 1.16(d)(an attorney shall, upon termination of representation . . . refund any advance payment of any fee not earned) and Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Woodford failed to structure the trust Gemmer requested over a ten month period constituting neglect of a legal matter in violation of Colo. RPC 1.3. The sparse evidence before the Hearing Board establishes that Woodford completed some work for Gemmer by reviewing the documents Gemmer had provided to him and rendering an opinion on those documents. Because Woodford performed an unknown amount of work reviewing the documents provided to him by Gemmer, the evidence did not establish by a clear and convincing standard that there were funds owing to Gemmer upon Gemmer’s termination of Woodford. Accordingly, the alleged violation of Colo. RPC 1.16(d) is dismissed.

Similarly, the alleged violation of Colo. RPC 8.4(c) is based on Woodford’s conversion of Gemmer’s funds. Based on the evidence presented at the trial in this matter, it was not established that funds remained unearned and were owed to Gemmer at the time of termination. Accordingly, the alleged violation of Colo. RPC 8.4(c) is dismissed.

III. IMPOSITION OF SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 4.52 provides that "[s]uspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client." In the Smith matter, Woodford demonstrated lack of competence in preparing a trust inconsistent with the objectives of his client. Woodford’s misconduct required Smith to employ other counsel to correct Woodford’s actions and, thereby, caused injury to Smith. Woodford has not paid restitution to Smith.

ABA Standard 4.42(a) provides that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. In the Gemmer matter, Woodford failed to complete the work requested over a ten-month period.

Pursuant to ABA Standard 5.12, suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.118 and that seriously adversely reflects on the lawyer’s fitness to practice. Woodford’s failure to file tax returns for three years, although a misdemeanor, does seriously adversely reflect on his fitness to practice law. People v. Perkell, 969 P.2d 703, 704 (Colo. 1998); People v. Borchard, 825 P.2d 999, 1000 (Colo. 1992); People v. Emeson, 638 P.2d 293, 295 (1981). Accordingly, a period of suspension is warranted.

Aggravating and mitigating factors were considered pursuant to ABA Standards 9.22 and 9.32, respectively, in arriving at the appropriate sanction. Woodford did not appear at the trial in this consolidated matter; therefore, no mitigating factors were presented.

In aggravation, Woodford has prior discipline, considered an aggravating factor pursuant to ABA Standards 9.22(a). In March 1993, Woodford received a letter of admonition for engaging in a conflict of interest by representing opposing parties. In August 1997, pursuant to a Conditional Admission of Misconduct, Woodford stipulated to a private censure for failing to communicate with the client and failing to provide an accounting when requested upon termination. Smith’s motive in both the Smith and Gemmer cases was selfish. See id. at 9.22(b). Woodford engaged in a pattern of misconduct,9 see id. at 9.22(c), he failed to participate in this consolidated disciplinary proceeding, see id. at 9.22(e), and he has demonstrated an indifference to making restitution, see id at 9.22(j).

Woodford states in a letter to Attorney Regulation Counsel that he has permanently closed his law practice. ABA Standard 9.4(d) provides that resignation from the practice of law prior to the completion of disciplinary proceedings is irrelevant for purposes of the imposition of the appropriate sanction.

IV. ORDER

It is therefore ORDERED:

1. ROBERT E. WOODFORD is suspended from the practice of law for a period of fifteen (15) months effective thirty-one (31) days from the date of this Order.

2. Woodford shall refund to John Edward Smith the fee paid by him in the amount of $2,500, plus statutory interest from March 10, 1998 to the date of payment, within ninety (90) days from the date of this Order.

3. Woodford shall pay the costs of this disciplinary proceeding. The People shall file a Statement of Costs within fifteen (15) days of the date of this Order; Woodford shall have five (5) days to file a Response thereto.

_______

1. On November 22, 2002, the PDJ received a letter from Woodford dated November 18, 2002, addressed to Attorney Regulation Counsel stating that he would not be attending trial and was closing his office permanently.

2. C.R.C.P. 69 authorizes a judgment creditor to place the judgment debtor under oath and make inquiry into the amount and location of assets that may be available to satisfy the judgment.

3. It is unclear from the evidence when the documents were provided to Woodford for his review.

4. An alleged violation of Colo. RPC 8.4(h) is listed in the heading of claim one only and not discussed in the Amended Complaint thereafter. Accordingly, the alleged violation of Colo. RPC 8.4(h) is not properly charged and is not addressed.

5. Woodford’s failure to provide competent representation went far beyond the preparation of the useless trusts. He rendered erroneous advice regarding Smith’s continuing duty to pay taxes, and the methods available to minimize Smith’s taxes and methods to protect Smith’s assets from existing debts and creditors. Those actions, however, were not alleged as violations of Colo. RPC 1.1 and are not considered in arriving at an appropriate sanction.

6. The factors normally considered are:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

7. 26 U.S.C. § 7203 provides in relevant part:

Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.

8. ABA Standard 5.11(a) provides that { d]isbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice; false swearing; misrepresentation; fraud; extortion; misappropriation; or theft, or the sale of distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses.

9. The Complaint in 02PDJ015 alleged that Woodford "has prepared 25 to 30 trusts similar to the one he prepared for Smith." No evidence, however, was offered to support that allegation.

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