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TCL > March 2004 Issue > Disciplinary Opinions

The Colorado Lawyer
March 2004
Vol. 33, No. 3 [Page  117]

© 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 140 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: 02PDJ039

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

CHARLES C. CORBIN

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE OFFICE OF THE PRESIDING

DISCIPLINARY JUDGE

November 20, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Helen R. Stone and Paul Willumstad, both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. BACKGROUND

The People filed a Complaint in this matter on May 17, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The People filed a Proof of Service of Citation and Complaint on June 6, 2002. The Proof of Service showed that the Office of Attorney Regulation Counsel sent Respondent Charles C. Corbin ("Corbin") a certified mailing of the Citation and the Complaint at his registered address in Denver, Colorado. Respondent failed to file an Answer or otherwise respond to the Complaint.

On July 10, 2002, upon the People’s motion, the PDJ entered 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. On October 22, 2002, the PDJ vacated the entry of default and the hearing, based on a question of law which remained unresolved by the Complaint: whether an attorney could continue to practice before the United States Patent and Trademark Office although suspended from the practice of law in Colorado.

The People filed an Amended Complaint on January 13, 2003. The Amended Complaint was sent via regular mail to Corbin on the same date. Corbin failed to file an Answer or otherwise respond to the Amended Complaint. On March 5, 2003, upon the People’s Motion, the PDJ entered default as to the facts set forth in the Complaint, which were deemed admitted, and as to three claims set forth in the Amended Complaint — Colo. RPC 5.5(a) in Claim I; Colo. RPC 8.4(c) in Claim II; Colo. RPC 3.4(c) in Claim III, which were deemed established. Corbin had adequate notice of the hearing and did not appear in person or through counsel.

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on October 22, 2002, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Helen R. Stone and Paul Willumstad, both members of the bar. A continued hearing was held on June 16, 2003. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado at both hearings. Corbin did not appear either in person or by counsel at the hearing. At the Sanctions Hearing on October 22, 2002, the People’s exhibits 1 through 9 were admitted into evidence. Subsequently, on June 16, 2003, the People’s exhibits 10 and 12 were admitted into evidence. The Hearing Board considered the People’s argument, the facts established by the entry of default, and the exhibits, and made the following findings of fact, which were established by clear and convincing evidence.

II. FINDINGS OF FACT

Corbin has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on January 14, 1987, and is registered upon the official records of the Colorado Supreme Court, registration number 16382. Corbin 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 are therefore established by clear and convincing evidence. See the Amended Complaint attached hereto as exhibit 1. The entry of default as to violations of Colo. RPC 5.5(a), 3.4(c) and 8.4(c) determined that the alleged violations of the Rules of Professional Conduct set forth in the order were established.

III. CONCLUSIONS OF LAW

Corbin was immediately suspended from the practice of law in Colorado on September 18, 1997, and has not applied for reinstatement. Corbin’s practice included appearances in twelve trademark matters before the United States Patent and Trademark Office ("Office") despite his suspension in Colorado. Under the relevant federal regulations, and the case law interpreting them, such practice was in violation of the rules governing the practice of law. The relevant federal regulations provide that a trademark owner1 may only be represented by an attorney or other individual authorized to practice in trademark cases; the provision does not include agents (non-lawyers).

37 C.F.R. § 2.11 (2003). Definitions pertaining to practice before the Office specify what is meant by the term "attorney" or "lawyer":

Attorney or lawyer means an individual who is a member in good standing of the bar of any United States court or the highest court of any State. A "non-lawyer" is a person who is not an attorney or lawyer.

37 C.F.R. § 10.1(c). There is no category of non-lawyer agents in trademark matters.

Practitioners before the Office include (1) an attorney or agent in patent cases or (2) an individual authorized under 5 U.S.C. § 500(b)2 or otherwise3 to practice before the Office in trademark or other non-patent cases. 37 C.F.R. § 10.1(r).(emphasis supplied). Thus, attorneys in good standing in a state or other court may represent others before the Office in trademark cases, while non-lawyers (with an exception inapplicable here) may not.4 Id. § 10.14(b).

The framework for practice before the Office in patent cases is differentiated from that in trademark cases. Non-lawyers are specifically permitted to practice in patent cases, but are not permitted to practice in trademark cases. Failure to specifically include non-attorneys in trademark matters while including them in the patent area supports the conclusion that the omission was intentional. Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001) (under rule of interpretation expressio unius exclusio alterius, the inclusion of certain items implies the exclusion of others).

According to these regulatory provisions, the respondent could only practice before the Office in trademark cases if he was in good standing of the bar of any United States court or the highest court of any state. Evidence was presented that showed the respondent was not in good standing in any court at the time of the incidents in question.5 Having been suspended by the Colorado Supreme Court, the respondent’s continued practice in trademark cases constituted the unauthorized practice of law.

In Marinangeli v. Lehman, 32 F. Supp.2d 1 (D.D.C. 1998), the subject attorney had been suspended in New York and New Jersey for disciplinary reasons related to felony theft. When an investigator for the Office received this information, the investigator informed Marinangeli that he could no longer practice before the Office in trademark cases because of his suspension in New York and New Jersey. Marinangeli was, however, able to continue practicing before the Office as a patent agent, because he did not need bar membership to do so. The Office filed a disciplinary complaint against Marinangeli in 1995 in relation to the felony theft conviction. Thereafter, Marinangeli was suspended for two years for practicing before the Office in patent and trademark cases, even though he had been reinstated from his suspensions in New York and New Jersey. The District Court determined that the subsequent suspension was appropriate. The court noted that it was undisputed that Marinangeli continued to practice trademark law despite being suspended from the New York and New Jersey bars. The court pointed out that attorneys are expected to know and abide by the disciplinary rules, which Marinangeli had not done.

The respondent initiated at least 12 separate applications for trademarks on behalf of others after February 10, 1998, the date of his suspension in Ohio. Each of the 12 trademark applications lists Charles C. Corbin as the attorney of record and lists the respondent’s address as 1306 South Parker Road, #375, Denver, Colorado 80231. Thus, the respondent continued to hold himself out as an attorney properly licensed in Colorado even after his suspension in Colorado and Ohio.

By the foregoing acts, respondent violated Colo. RPC 5.5, which provides that a lawyer shall not practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction. The respondent’s filing of trademark applications and representation of trademark owners before the Office constituted the practice of law. Under the Office’s regulations, the respondent was only authorized to practice in that jurisdiction if he was in good standing in a United States court or in the highest court of some state. The respondent was not in good standing in a United States Court or a state court from February 10, 1998, through 2002. Therefore, he was not authorized to practice trademark law during that time frame. The respondent’s practice of law violated the Office’s regulations and thus violated Colo. RPC 5.5(a).

Colo. RPC 8.4(c)

The respondent represented Space Research Corporation ("Space Research") in a trademark matter before the Office. Space Research sought registration of the trademark "STARDUST" in connection with jewelry, application number 75/367346. On or about November 9, 1999, Space Research, through its president Jeff Murphy, appointed the respondent to prosecute Space Research’s trademark application. At that time, the respondent had been suspended from the practice of law in both Colorado and Ohio. He was not in good standing with the bar of any United States or state court. He was, therefore, not authorized to practice trademark law before the Office.

The respondent did not notify Space Research that he was suspended from the practice of law in Colorado and Ohio. The respondent did not notify Space Research that he could not practice before the Office in the area of trademark law. By his omission, the respondent acted dishonestly and deceitfully. His omission constituted misrepresentation. Through his conduct, the respondent violated Colo. RPC 8.4(c).6

Colo. RPC 3.4(c)

The respondent’s entry of appearance in the Space Research trademark application for Stardust occurred on or about November 9, 1999. This date is after the respondent’s suspension in Ohio, a time when the respondent could no longer practice in trademark matters. The respondent knowingly disobeyed C.R.C.P. 251.28(a)7 by accepting the Stardust trademark application for Space Research at a time that he was prohibited from accepting any new employment as an attorney in any new case or legal matter. By such conduct, the respondent violated Colo. RPC 3.4(c).8

IV. IMPOSITION OF SANCTION

Disbarment is generally appropriate when a lawyer knowingly practices law in violation of an order of suspension, and causes injury or potential injury to a client. ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") § 8.1. See, also, People v. Zimmerman, 960 P.2d 85 (1998) (attorney was disbarred for, inter alia, practicing law while suspended); People v. Wilson, 832 P.2d 943 (Colo. 1992)(attorney disbarred for practicing law while suspended). Here, respondent’s practice of law while under suspension warrants disbarment.

The presumed sanction is disbarment where an attorney knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client. ABA Standards § 4.61.

Pursuant to ABA Standards 9.22 to 9.32 respectively, the Hearing Board considered aggravating and mitigating factors in arriving at the appropriate sanction. Since Corbin did not participate in these proceedings, no mitigating factors were established. The facts deemed admitted in the Complaint established several aggravating factors pursuant to ABA Standards § 9.22. Corbin had a dishonest or selfish motive. ABA Standards § 9.22(b). Corbin engaged in a pattern of misconduct. ABA Standards § 9.22(c). Corbin failed to respond reasonably to a lawful demand for information from the disciplinary agency, thereby obstructing the disciplinary proceeding. ABA Standards § 9.22(e). An additional aggravator is Corbin’s substantial experience in the practice of law. ABA Standards § 9.22(i).

Moreover, Corbin has had prior discipline, an aggravating factor under ABA Standards 9.22(a). On February 16, 1999, Corbin was suspended for three years for neglect, failure to communicate with clients, misrepresentation, and excessive fees. Corbin practiced law while suspended by filing trademark applications and a motion for reconsideration with the Office. In addition, he ignored the suspension order and misrepresented to clients that he was still authorized to practice law. Corbin’s failure to participate in these proceedings confirms that disbarment is warranted.

V. ORDER

It is therefore ORDERED:

1. CHARLES C. CORBIN, attorney registration 16382, is DISBARRED from the practice of law effective thirty–one days from the date of this Order.

2. Corbin is ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT 1

AMENDED COMPLAINT

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

Jurisdiction

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on January 14, 1987, and is registered upon the official records of this court, registration no. 16382. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent’s registered business address is 777 Grant Street, Suite 300, Denver, CO 80203. Another known address is 1306 S. Parker Road, #375, Denver, CO 80231-2146.

General Information

2. The respondent was immediately suspended from the practice of law in Colorado on September 18, 1997. People v. Corbin, slip op., case no. 97SA338 (Colo. 1997). A copy of the Colorado Supreme Court’s order was mailed to the respondent at his home and registered addresses. The records indicate that the envelope to his registered address (777 Grant Street, #300, Denver, CO 80203) was not returned as undeliverable. The respondent has not applied for reinstatement from this or any other suspension in Colorado.

3. On February 10, 1998, pursuant to reciprocal discipline provisions, the respondent was immediately suspended in Ohio, where he was also registered. Disc. Counsel v. Corbin, 81 Ohio St.3d 1231, 690 N.E. 2d 9 (1998). The respondent has not applied for reinstatement from this or any other suspension in Ohio.

4. Thereafter, a stipulation was reached between the respondent and the People for the respondent’s misconduct in Colorado. As a result, the respondent was suspended from the practice of law in Colorado for three years on February 16, 1999, effective that date. People v. Corbin, 973 P.2d 1273 (Colo. 1999). The respondent participated in the stipulation which resulted in this three-year suspension. The respondent’s address provided on the stipulation was 1306 So. Parker Rd., Apt. 375, Denver, CO 80231-2146 ("the Parker Road address").

5. The order of suspension was mailed via certified mail to the respondent on or about February 16, 1999, to the Parker Road address, but was returned unclaimed. The letter sent by regular mail to the Parker Road address which provided a copy of the Colorado Supreme Court order of a three-year suspension was not returned as undeliverable.

6. The respondent’s suspension in Ohio has remained in effect, and shall remain in effect, until he is reinstated in the State of Colorado. See Letter of Jonathan W. Marshall, Secretary to the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, Exhibit A, attached hereto and incorporated by reference. As the respondent has not been reinstated in Colorado, he is not eligible for and has not been reinstated in Ohio.

7. Upon information and belief, from February 1998 to the present time, the respondent has not been in good standing in any federal court or in the highest court of any state.

Claim I

[Practice of Law in a Jurisdiction in Violation of the
Legal Profession Regulations in that
Jurisdiction — Colo. RPC 5.5(a)]

8. Paragraphs 1 through 7 are incorporated herein by reference.

9. Public information documents accessed through the U.S. Patent and Trademark Office ("the Office") website on the Internet indicate that at least 12 separate applications for trademarks were initiated by respondent Charles C. Corbin after February 10, 1998, the date of his suspension in Ohio. Each of the 12 trademark applications lists Charles C. Corbin (the respondent) as the attorney of record and lists the respondent’s address as 1306 South Parker Road, #375, Denver, Colorado 80231. Thus, the respondent continued to hold himself out as an attorney properly licensed in Colorado even after his suspension in Colorado and Ohio.

10. 37 C.F.R. § 2.11 provides that a trademark applicant9 may only be represented by an attorney or other individual authorized to practice in trademark cases; the provision does not include agents (non-lawyers).

11. An attorney or lawyer means an individual who is a member in good standing of the bar of any United States court or the highest court of any State. A "non-lawyer" is a person who is not an attorney or lawyer. 37 C.F.R. § 10.1(c).

12. Individuals who are not attorneys but were recognized to practice before the Office in trademark cases prior to January 1, 1957, are recognized as agents who may continue to practice before the Office in trademark cases. The respondent’s date of birth is January 8, 1946. The respondent was less than 11 years old on January 1, 1957, and was not recognized by the Office as an authorized practitioner.

13. At the time the respondent filed the trademark applications referenced in paragraph 9 above, he was not in good standing with either the Colorado or Ohio Supreme Court.

14. The respondent was not admitted and in good standing with the bar of any United States court during 1998 through 2002.

15. The respondent was not admitted and in good standing with the bar of any state court during 1998 through 2002.

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

17. The respondent’s filing of trademark applications and representation of trademark owners before the Office constituted the practice of law. Under the Office’s regulations, the respondent was only authorized to practice in that jurisdiction if he was in good standing in a United States court or in the highest court of some state.

18. The respondent was not in good standing in a United States Court or a state court from February 10, 1998, through 2002. Therefore, he was not authorized to practice trademark law during that time frame. The respondent’s practice of law violated the Office’s regulations.

19. The respondent’s practice of trademark law while he was suspended was in violation of a jurisdiction’s regulations of the legal profession, in violation of Colo. RPC 5.5(a).

20. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5; and violates Colo. RPC 5.5(a) (practice of law in violation of a jurisdiction’s legal profession regulations).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim II

[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;
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); 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); A Lawyer Shall Not
Engage in Conduct Involving Dishonesty, Fraud, Deceit or
Misrepresentation — Colo. RPC 8.4(c)]

21. Paragraphs 1 through 15 are incorporated herein by reference.

22. Space Research Corporation ("Space Research") is a small business that markets products that include jewelry and novelty items relating to space themes, and to meteor particles in particular.

23. On or about September 29, 1997, Space Research filed an application seeking registration of the trademark "STARDUST" in connection with jewelry, application number 75/367346.

24. On or about November 9, 1999, Space Research, through its president Jeff Murphy, appointed Charles C. Corbin, the respondent in this disciplinary proceeding, to prosecute Space Research’s trademark application referenced above.

25. Thus, an attorney-client relationship was formed, thereby creating an obligation to perform the agreed-upon services. By agreeing to perform the agreed-upon services, the respondent inherently represented that he would provide such services in accordance with the Colorado Rules of Professional Conduct.

26. At that time, the respondent had been suspended from the practice of law in both Colorado and Ohio. He was not in good standing with the bar of any United States or state court. He was, therefore, not authorized to practice trademark law before the Office.

27. The respondent did not notify Space Research that he was suspended from the practice of law in Colorado and Ohio. The respondent did not notify Space Research that he could not practice before the Office in the area of trademark law.

28. In letters dated November 23, 1993, and December 9, 1999, the respondent indicated that he had conducted various activities with the Office on behalf of Space Research, directed to obtaining registration of the trademark Stardust.

29. A notice of publication under 12(a) was issued January 7, 2000, in regard to Space Research’s application. The respondent forwarded the notice of publication to Space Research on or about January 17, 2000.

30. On or about March 7, 2000, Stardust Diamond Corporation ("Stardust Diamond") filed a request for extension of time to file its notice of opposition to registration of Space Research’s trademark Stardust. The respondent received a copy of this notice. The respondent did not forward these documents to Space Research until approximately April 25, 2000.

31. Stardust Diamond filed a request for further extension of time, which was granted by the Trademark Trial and Appeal Board. The respondent forwarded to Space Research a copy of the Board’s grant of the extension.

32. On or about June 6, 2000, Stardust Diamond filed a notice of opposition to the application of Space Research. On June 21, 2000, the Board mailed notification to the respondent indicating that Space Research’s answer was due 40 days after the mailing date of that notice (or approximately July 31, 2000). The respondent received this notification. The respondent did not forward these documents to Space Research, and he did not inform Space Research that Stardust Diamond had filed a notice of opposition and that an answer was due to the notice of opposition.

33. On or about July 31, 2000, Stardust Diamond served its first set of requests for production of documents and interrogatories by sending them to the respondent. On or about August 11, 2000, the respondent forwarded copies of these documents to Space Research. In the cover letter, the respondent did not mention that an answer in response to the notice of opposition was overdue, or whether an answer had been filed.

34. On or about September 12, 2000, the respondent provided Space Research with a letter detailing the status of Space Research’s various trademark applications being prosecuted by the respondent. The respondent did not indicate that an answer should have been filed in response to Stardust Diamond’s notice of opposition. The respondent did not indicate whether any discovery had been conducted or whether any discovery responses had been filed.

35. On or about October 18, 2000, the Board mailed to the respondent an order to show cause why judgment by default should not be entered against Space Research in accordance with F.R.C.P. 55(b) for failing to answer or file a motion for extension of time. The order indicated that a notice of default had previously entered against Space Research, and provided 30 days as the deadline for responding to the show cause order. The respondent received a copy of this order. The respondent did not forward this order to Space Research.

36. In late October, 2000, Space Research requested that a different law firm review its various trademark cases being prosecuted by the respondent. Attorneys from the firm Timothy J. Martin, P.C. attempted to contact the respondent numerous times over several weeks to obtain copies of Space Research’s trademark files.

37. On at least one occasion, an attorney from the firm T.J. Martin, P.C., was able to reach the respondent by telephone. At that time the respondent indicated that he would forward Space Research’s trademark files promptly. However, the respondent failed to do so.

38. On or about November 18, 2000, one month after the order to show cause was issued, the respondent forwarded Space Research’s files regarding several trademark matters, including the one involving Stardust, to the Law Offices of Timothy J. Martin, P.C. The file was not received by the Law Office of Timothy J. Martin, P.C., until several days thereafter.

39. The file provided by the respondent appeared to be missing various documents relating to the trademark case of Stardust. Upon organizing and reviewing the file from the respondent, Space Research became aware for the first time that (1) an answer had not been filed to the opposition notice, (2) the order to show cause had already issued by the Board, and (3) no response to the order to show cause had been filed by the respondent on behalf of Space Research.

40. 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.

41. The respondent failed to file any response to the Notice of Opposition, and the respondent did not file a response to the Show Cause Order. The respondent did not withdraw from the representation based on his inability to provide legal representation to Space Research.

42. The respondent was required to complete each of the specific tasks described above. 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.

43. 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.

44. The respondent’s lack of diligence and promptness, and/or neglect caused potentially serious injury to the client.

45. By such conduct, the respondent violated Colo. RPC 1.3.

46. Colo. RPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter.

47. The respondent failed to keep his client reasonably informed about the status of a legal matter by failing to inform his client that it needed to (1) file an answer in response to the notice of opposition or (2) request an extension of time within which to file such an answer.

48. The respondent knew or should have known that his failure to keep his client reasonably informed about the status of the matter and advise the client of the steps which needed to be taken continued over a period of months. During that time the respondent received information from the Board, but the respondent did not inform his client that it needed to obtain authorized counsel to prepare and file an answer.

49. The respondent’s lack of communication caused potentially serious injury to the client.

50. The respondent’s failure to communicate with his client violated Colo. RPC 1.4(a).

51. 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.

52. The respondent failed to provide adequate explanation to the client so that the client knew that it needed to obtain authorized counsel to (1) file an answer and response to the notice of opposition or (2) request an extension of time within which to file such an answer.

53. The respondent knew that his failure to explain the matter to the extent reasonably necessary continued over a period of months.

54. The respondent’s failure to provide a reasonable explanation of the client’s matter caused potentially serious injury to the client.

55. The respondent’s failure to provide reasonable explanation to his client violated Colo. RPC 1.4(b).

56. Colo. RPC 8.4(c) provides that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

57. The respondent failed to inform the representative of Space Research that the respondent was no longer authorized to practice trademark law before the Office.

58. The respondent knew or should have known that he was no longer authorized to practice trademark law before the Office, and he had an obligation to inform the client of this.

59. The respondent intentionally or knowingly or recklessly failed to tell his client that the respondent was no longer authorized to practice trademark law before the Office. The respondent engaged in such knowing failure for a dishonest or selfish reason.

60. By his omission, the respondent acted dishonestly and deceitfully. His omission constituted misrepresentation.

61. Through his conduct, the respondent violated Colo. RPC 8.4(c).

WHEREFORE, the complainant prays at the conclusion hereof.

Claim III

[Upon Termination of Representation, a Lawyer Shall Take
Steps to the Extent Reasonably Practicable to Protect a
Client’s Interest — Colo. RPC 1.16(d); A Lawyer Shall Not
Knowingly Disobey an Obligation Under the Rules of a
Tribunal — Colo. RPC 3.4(c)]

62. Paragraphs 1 through 15 and paragraphs 22 through 39 are incorporated herein by reference.

63. 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 interests, such as surrendering papers and property to which the client is entitled.

64. When the respondent was no longer in good standing with any federal or state court’s bar, he was no longer authorized to practice law before the Office. Such lack of authorization constituted a termination of the respondent’s representation of Space Research.

65. Upon such termination, the respondent should have taken steps to the extent reasonably practicable to protect the client’s interests.

66. When Space Research retained other counsel and requested its files, the respondent failed to provide the files timely. Time was of the essence, as an answer to the notice of opposition had not been filed on behalf of Space Research, and an order to show cause had issued which required answer by a date certain.

67. The respondent did not take steps to the extent practicable to protect the interests of Space Research.

68. Through his conduct, the respondent violated Colo. RPC 1.16(d).

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

70. C.R.C.P. 251.28(a) provides that, after the entry of an order of suspension, an attorney may not accept any new retainer or employment as an attorney in any new case or legal matter.

71. The respondent knew, or is presumed to have known, of his obligations under said rule of a tribunal.

72. The respondent’s entry of appearance in the Space Research trademark application for Stardust occurred on or about November 9, 1999. This date is after the respondent’s suspension in Ohio, a time when the respondent could no longer practice in trademark matters. The respondent knowingly disobeyed C.R.C.P. 251.28(a) by accepting the Stardust trademark application for Space Research at a time that he was prohibited from accepting any new employment as an attorney in any new case or legal matter.

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

WHEREFORE, it is prayed 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 described above; the respondent be appropriately disciplined for such misconduct; the respondent be required to take any other remedial action appropriate under the circumstances; and the respondent be assessed the costs of this proceeding.

_______

1. The owner of a trademark may file or prosecute his or her own application for registration of a trademark.

2. 5 U.S.C. § 500(b) provides that any individual who is a member in good standing of the bar of the highest court of a State may represent a person before an administrative agency on filing with the agency a written declaration that he is currently qualified and is authorized to represent a particular person in whose behalf he acts (emphasis supplied).

3. Individuals who are not attorneys but were recognized to practice before the Office in trademark cases prior to January 1, 1957, are recognized as agents who may continue to practice before the Office in trademark cases. There is no evidence that the respondent qualifies for this exception.

4. An attorney is not required to apply for registration or recognition to practice before the Office in trademark and other non-patent cases. 37 C.F.R. § 10.14(a).

5. On February 10, 1998, pursuant to reciprocal discipline provisions, the respondent was immediately suspended in Ohio, where he was also registered. Disc. Counsel v. Corbin, 81 Ohio St.3d 1231, 690 N.E. 2d 9 (1998). The respondent has not applied for reinstatement from this or any other suspension in Ohio.

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

7. C.R.C.P. 251.28(a) provides that, after entry of an order of suspension, an attorney may not accept any new retainer or employment as an attorney in any new case or legal matter.

8. Colo. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

9. The owner of a trademark may file or prosecute his or her own application for registration of a trademark.

 

 

Case Number: 03PDJ050

Petitioner:

RONALD S. FITZKE,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

December 17, 2003

OPINION OF READMISSION

Opinion by a Hearing Board consisting of the Presiding Officer, Mickey W. Smith, and Hearing Board Members, John M. Lebsack, a member of the bar, and Frances L. Winston, a representative of the public.

ATTORNEY READMITTED TO THE PRACTICE OF LAW

A Readmission Hearing in the within matter was held on November 18 and 19, 2003 pursuant to C.R.C.P. 251.29(d) before a Hearing Board consisting of the Presiding Officer, Mickey W. Smith, and Hearing Board Members, John M. Lebsack, a member of the bar, and Frances L. Winston, a representative of the public. John J. Astuno, Jr. appeared on behalf of Petitioner Ronald Scott Fitzke, ("Fitzke") who was also present. Fredrick J. Kraus appeared on behalf of respondent the People of the State of Colorado (the "People"). Fitzke offered exhibits A through Q, including the addendum to exhibit F, (curriculum vitae of Bennett S. Aisenberg), and including the addendum to exhibit G, (curriculum vitae of Leslie Jordan, Ph.D), which were admitted into evidence. The following witnesses testified on behalf of Fitzke: Leslie Jordan, Ph.D., Bennett S. Aisenberg, Curtis W. Shortridge, Robert R. Stewart, Barry Rothman, Tod E. Fitzke, Leigh H. Singleton, Tracy Lee Fitzke, James C. Kennedy, Jr. (by telephone), Taylor Owen, Timothy Mitchell, Dennis Storhaug, P. Donahue Shortridge, Eric Malinksi, Ann Stoyle, Claire Plouff, Dwight A. Larsen and Pastor Donald Marxhausen. Fitzke testified on his own behalf. The Hearing Board assessed the credibility of the witnesses, considered the exhibits offered into evidence, the Joint Stipulation of Facts submitted by the parties, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Fitzke was admitted to practice law in Colorado in 1981. He relocated to his home state of Nebraska and, in April 1982, obtained his license to practice law in Nebraska and went into practice with his father.

In early 1983, while practicing with his father, Fitzke was appointed guardian and conservator for Allie Marie Boontjer, who was elderly and incapacitated. While serving as conservator for Ms. Boontjer, Fitzke took approximately $19,000 from the estate and converted it to his own use to support a cocaine addiction. Thereafter, on October 23, 1983, Fitzke returned to Colorado to check himself in to a residential substance abuse program for cocaine addiction and alcohol abuse. At about that time, he disclosed to his father that he had taken the funds. With his father’s help, Fitzke made complete restitution including interest to the estate. Upon discharge from the rehabilitation program, Fitzke entered the Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA") programs. On June 1, 1984, Fitzke met with the Veteran’s Administration which supervised the Boontjer conservatorship and tendered to them a written confession of his embezzlement. Immediately afterwards Fitzke informed the appropriate law enforcement authorities and the Nebraska Supreme Court of the embezzlement. He did so to act on his commitment to the NA and AA programs, requiring truthfulness and honesty.

Following these events in Nebraska, in 1984, Fitzke returned to Colorado and was employed by a law firm in Denver, Colorado. Fitzke admitted to converting in excess of $3,000.00 of client monies from the firm to his own use and to having forged a client’s signature on a client refund check for $420.00 and appropriated that amount for himself. Fitzke used the funds to purchase cocaine. While he was employed at the firm, he was arrested for possession of a controlled substance, and his employment with the firm was terminated. Fitzke pled guilty to a class four felony of unlawful possession of a controlled substance, in People v. Fitzke, 84CR1892, in Denver District Court.

Fitzke began his commitment to remaining drug free and sober on July 24, 1984. He began attending at least one AA or NA meeting each day. On August 30, 1984, Fitzke was immediately suspended from the practice of law in Colorado during the pendency of disciplinary proceedings against him.

On August 27, 1984, the Nebraska Supreme Court temporarily suspended Fitzke from practicing law in Nebraska. Fitzke voluntarily surrendered his license and consented to the entry of disbarment against him in Nebraska. The Supreme Court of Nebraska vacated his admission to practice law in that state on January 23, 1985.

On September 26, 1984, Fitzke entered a plea of nolo contendere to the Nebraska theft charges. Approximately one year later, Fitzke was sentenced in that case. He was placed on probation for four years under certain conditions including restitution (which had already been made) and compliance with all conditions of probation supervised through the Denver Office of Adult Parole.

On March 11, 1985 Fitzke was charged in 84CR1892 and sentenced to four years in the Colorado Department of Corrections, suspended under certain terms and conditions including payment of restitution to the law firm and therapy for drug and alcohol abuse.

The law firm brought criminal charges against Fitzke in a case captioned People v. Fitzke, 84CR1461, in Arapahoe County District Court. Fitzke was charged with theft, a class four felony. On March 21, 1985, the case was dismissed based on the disposition reached in the criminal action, 84CR1892, in Denver District Court.

On January 13, 1986, the Colorado Supreme Court disbarred Fitzke from the practice of law. People v. Fitzke, 716 P.2d 1065 (Colo. 1986). He was ordered to pay costs of $162.35 within sixty days from the date of the Opinion. At the time of his disbarment, Fitzke was twenty-eight years old.

Following his disbarment in Colorado and Nebraska, Fitzke filed the required affidavits affirming that he had complied with the rules in both jurisdictions required of disbarred attorneys. Fitzke successfully complied with and completed the terms and conditions of probation in the case involving theft of the Boonjter estate in Nebraska. Fitzke’s probation was terminated by court order on October 28, 1988. He has successfully discharged and completed the terms and conditions of probation imposed in People v. Fitzke, 84CR1892, in Denver District Court. The People stipulated with regard to the pending cases against Fitzke — including the disciplinary action — that he has paid and fulfilled all restitution and monetary requirements.

Fitzke has undergone significant treatment for his drug and alcohol addictions. Initially, Fitzke completed a thirty-day inpatient treatment program at St. Luke’s Hospital in Denver in October-November 1983. Thereafter, he resided in a halfway house, Sobriety House, for two months after leaving the in-patient program, from December 1983 through January 1984. He also completed an aftercare program at St. Luke’s Hospital from December 1983 through April 1984. It was during this time period that he suffered a relapse. Following the relapse, from July 1984, Fitzke has maintained complete sobriety and has not used non-proscription drugs or alcohol from that date to the present.

Fitzke’s history demonstrates a firm commitment to sobriety. Starting in July 1984, he regularly attended meetings, completing the "ninety meetings in ninety days" regime recommended by NA and AA. Fitzke has been a member of NA and AA for over nineteen years. He was a very active member for a period of about ten years, and lessened his active commitment following the birth of his children in order to commit himself to their activities. During the initial ten years, he worked with his sponsors through the 12-Step process and attended meetings on a daily basis. He led and participated in recovery centered workshops. He attended and spoke at conferences and conventions. He has sponsored and assisted other alcoholics and addicts, and continues his commitment to assisting others with similar problems, particularly young people and professionals. He regularly attended and spoke at institutional and treatment meetings devoted to helping youth avoid the consequences of drug and alcohol abuse. Fitzke served as Group Service Representative for both AA and NA. He served as a Central Committee member for NA. Fitzke was instrumental in fund raising for various AA and NA functions, and he served as a Committee Chair for the NA World Conference and the International Conference of Young People in AA. He helped found the NA area office and Drug hotline. He volunteered at the AA Central Office and answered the information line. His spouse has been very supportive of his recovery and his many activities in AA and NA.

In addition to his commitment to NA and AA, Fitzke followed through with all required counseling and treatment he was ordered to undergo. He received private counseling during the term of his probation through Colorado Counseling Services. He continued with this private counseling on his own initiative for a lengthy time period even after his discharge from probation. He submitted to frequent regular and random urinalysis throughout the period of his supervision with no indications of drug or alcohol usage.

Fitzke’s personal life has radically changed since his early days of alcohol and cocaine addiction. He met his wife in 1984 and they were married in 1988. They have two children. Fitzke is an active member of the community and engages in substantial volunteer work in his children’s school, in his church, in scouting organizations, in his children’s sports and extracurricular activities, and as President and past Director of a non-profit organization, the Colorado Blues Society. He is held in high regard in the community as a father who actively participates in his children’s activities.

Fitzke has maintained employment since his disbarment. Initially, Fitzke assisted his sponsor in AA with a used car business. He then began working for a company selling photocopying and facsimile machines in August 1985. He worked for that company and its successor until 1998, starting at an entry level position and eventually handling large state and national accounts. He developed a reputation with long-standing clients as being reliable, honest and hard-working. He later became involved in a smaller photocopy company. In the course of this employment, he has been entrusted with substantial amounts of company and client funds, as well as with valuable company inventory, which trust he always fulfilled without incident or complaint.

Fitzke has demonstrated that he is able to remain drug and alcohol free under stressful conditions. Since July 1984 when he began his sobriety, he has dealt with the difficult consequences of disbarment in two states, he complied with the conditions of the criminal cases pending against him in Nebraska and Colorado, he has maintained employment with the same company or its successor for the major part of that period, he married and became a father of two children, and he dealt with the deaths of both parents — his father in 1997 and his mother in 1999.

In 2002, Fitzke determined that he would execute on his long-held dream of returning to the practice of law. Although proving himself successful in business, he missed the intellectual challenge of a law practice. His decision to seek employment as a law clerk/paralegal was fully supported by his family.

Since September 1, 2002, Fitzke has worked as a legal assistant at the firm of Stewart, Shortridge and Rothman, P.C. Under the supervision of the managing attorneys, he had conducted legal research, engaged in trial preparation, and has prepared pleadings, briefs, discovery, disclosures and other legal documents. He has communicated with clients and witnesses on behalf of his employer. He has appropriately followed the Rules of Professional Conduct applicable to a non-lawyer assistant. He is considered to be reliable, hard-working, scrupulously honest about his past, and diligent in his research and paralegal work. Fitzke’s supervising attorney has known him for twenty-three years and will offer Fitzke employment with the firm as an attorney if he is readmitted.

In addition to his work as a paralegal, Fitzke has demonstrated competence in law by successfully passing the Colorado Bar Exam on February 25, 2003. He sat for and passed the Multi-State Professional Responsibility Examination on March 8, 2003. Fitzke has also remained current in the law by completing ninety-eight hours of Continuing Legal Education. He also completed many computer courses published by various law schools in the fundamental fields of law.

Fitzke has a much better understanding now of the flaws in his character as a young man in the early 80’s causing his disbarment. He remains remorseful for his conduct and takes full responsibility for his actions. He maintains a network of supportive friends, family and colleagues. He continues to use the tools he acquired through AA and NA to remain sober. He is determined to make a positive contribution to the legal community.

In April 2002, Fitzke submitted to an examination with Leslie Jordan, Ph.D., who concluded that there is no risk at the present time that Fitzke will suffer a relapse in drug or alcohol addiction.

II. CONCLUSIONS OF LAW

C.R.C.P. 251.29 governs the readmission of an attorney to the practice of law following a disbarment. Under C.R.C.P. 251.29(a), Fitzke must demonstrate that he is rehabilitated, that he is fit to practice law, that he is professionally competent, and that he has complied with all applicable disciplinary orders and relevant rules.

C.R.C.P. 251.29 provides in relevant part:
(a) Readmission After 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 . . . [which] shall be heard in procedures identical to those outlined by these rules governing hearings of complaints, except it is the attorney who 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.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988) interprets the language of the prior rule governing readmission to the bar, 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.

Rehabilitation for purposes of attorney reinstatement and readmission to the bar has been defined as the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society. Avrom Robin, Character and Fitness Requirements for Bar Admission in New York, 13 Touro L. Rev. 569, 583 (1997)(quoting In re Carson, 294 S. E. 2d 520, 522-23 (Ga. 1982)). Other factors which are considered are the applicant’s age at the time of the offense and the likelihood that the applicant will repeat the behavior in the future. Id. Courts, including those in Colorado, focus upon the applicant’s current mental state. Id., See Klein, 756 P.2d at 1016.

Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed upon which the discipline is premised. The shortcoming may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. It necessarily follows that the analysis of rehabilitation should be directed at the professional or moral shortcoming which resulted in the discipline imposed. See C.R.C.P. 251.29(c)(5); Tardiff v. State Bar, 612 P.2d 919, 923 (Cal. 1980)(citing Roth v. State Bar, 253 P.2d 969, 972 (Cal. 1953)(holding that in an application for reinstatement . . . the proof presented must be sufficient to overcome the court’s former adverse judgment of [the] applicant’s character).

It is rare that an attorney who engages in criminal conduct and is subsequently disbarred seeks readmission to the bar. It should be rarer still that readmission should be granted. See In the Matter of the Petition For Reinstatement of David J. Trygstad, 435 N.W.2d 723; 724 (S.D. 1989)(stating that "[a] court should be slow to disbar, but it should be even slower to reinstate; it should endeavor to make certain that it does not again put into the hands of an unworthy petitioner that almost unlimited opportunity to inflict wrongs upon society possessed by a practicing lawyer."). "If a Court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." Statewide Grievance Committee v. Alan Spirer, 725 A.2d 948 (Conn. 1999), see, e.g., Hubbard v. Kentucky Bar Association, 66 S.W. 3d 684 (Ky. 2001)(attorney readmitted after having been convicted of three felonies, including conspiracy to impede and impair the Federal Election Commission, one count of theft of government property, and one count of obstruction of justice, the attorney having proven that his conduct since disbarment had been of a positive proactive nature and he was worthy of the trust and confidence of the public).

A prior disbarment based upon felonious conduct requires a close examination of the actual misconduct. See In the Matter of Wegner, 417 N.W. 2d 97, 100 (Minn. 1987)(holding that the present fitness to practice law of an attorney seeking [readmission] must be considered in light of the offenses for which he or she was disbarred, citing Matter of Peterson, 274 N.W. 2d 922, 926 (Minn. 1979)). In this case, Fitzke’s disbarment arose from his commission of several felonies involving possession of a controlled substance, embezzlement of funds and theft of funds from his law firm. Each of these criminal episodes reveal character deficits present at the time the events transpired. Each episode arose from Fitzke’s addiction to cocaine and alcohol. In order to be readmitted to the practice of law, Fitzke must establish that those character deficits present at the time of his misconduct have now been removed so as to insure that similar misconduct does not recur.

Fitzke has established that he has undergone a fundamental character change. From the date of his sobriety in July 1984, Fitzke has maintained a long-standing commitment to AA and NA, has acted as a sponsor and served in other leadership positions involving a great deal of time commitment. He has remained committed to his family and his community and actively participates in his children’s activities. He gives a great deal of his time to volunteer activities in his church and children’s schools. Fitzke has maintained employment from the date of his disbarment. He has an outstanding reputation for reliability, trustworthiness and good character in the business community in which he functioned. He has responsibly handled large sums of money and company property without incident. He is committed to assisting others with addiction problems with their recovery, and is open and honest about his past. He is candid in admitting — as he did initially in Nebraska and Colorado — that he was at fault in engaging in drug and alcohol abuse. He takes full responsibility for his actions. The Hearing Board concludes by a clear and convincing standard that the character deficits giving rise to Fitzke’s disbarment have now been removed so as to insure that similar misconduct does not recur.

The evidenced established and the People stipulate that Fitzke is in compliance with all past orders of court, including the disciplinary actions, Fitzke has compliance with all relevant rules governing disbarred attorneys, and Fitzke has demonstrated professional competence in the practice of law.

The evidence having established by a clear and convincing standard that Fitzke has been rehabilitated, is professionally competent, is fit to practice law, and has complied with all past orders of court, the Hearing Board herein Orders that Fitzke shall be readmitted to the practice of law.

III. ORDER

It is therefore ORDERED:

1. That the Petition for Readmission of RONALD S. FITZKE is GRANTED and Fitzke is readmitted to the practice of law effective upon his complying with the requirements set forth in section (2) below;

2. Fitzke is ORDERED to tender $195.00 to the Office of Attorney Registration, fill out an attorney registration form and a COLTAF form, obtain a new attorney registration number, and appear before the Presiding Disciplinary Judge to take the oath of admission before December 31, 2003;

3. Fitzke is ORDERED to pay the costs of these proceedings;

4. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Petitioner shall have five (5) days thereafter to submit a response thereto.

 

 

Case Number: 03PDJ010

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

WILLIAM E. PETERS and EDWARD C. KUSICK, JR.

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

December 23, 2003

OPINION AND ORDER IMPOSING SANCTIONS

Opinion issued by a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley and Jerry D. Otero and John M. Lebsack, both members of the bar.

Sanction: Re: William E. Peters: PUBLIC CENSURE

Re: Edward C. Kusick: PUBLIC CENSURE

A trial in this matter was held on August 4, 2003, before a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley and two Hearing Board Members, Jerry D. Otero and John M. Lebsack, both members of the bar. Fredrick J. Kraus, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). William E. Peters ("Peters") appeared pro se. Alexander R. Rothrock appeared on behalf of Edward C. Kusick, Jr., ("Kusick") who was also present.

At the trial, the People’s exhibits 1, 5 and 6 (except page 2), and Kusick’s exhibits A and B were admitted into evidence. Judge Claudia Jordan testified on behalf of the People. Peters and Kusick testified on behalf of themselves. The Hearing Board considered the testimony of the witnesses and the exhibits admitted into evidence, the argument of the parties, the Joint Stipulation of Facts submitted by the parties on July 31, 2003, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

William E. Peters and Edward C. Kusick, Jr. have taken and subscribed the oath of admission, and were admitted to the bar of the Supreme Court on October 19, 1981 and October 28, 1989 respectively. Peters is registered upon the official records of the Court, attorney registration number 11326, and Kusick is registered under attorney registration number 18876. They are subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Peters is a friend and former law partner of Kusick. Kusick was suspended from the practice of law for thirty-six months beginning on July 7, 2001. Immediately prior to the effective date of his disciplinary suspension, Kusick through his professional corporation, Edward C. Kusick, Jr., P.C. filed numerous suits against his former clients for fees owing. After the effective date of suspension, Peters agreed to represent Kusick and Edward C. Kusick, Jr. P.C. in all pending suits and agreed to file any additional suits to collect Kusick’s fees. The suits were filed in the County Court for the City and County of Denver.

Harry Gerlock ("Gerlock") was a former client of Kusick who owed money to Kusick for attorney fees. Kusick had a judgment against Gerlock for fees owing. Kusick had also obtained a judgment against Gerlock’s son-in-law, Richard Jiron, for checks given to Kusick to pay Gerlock’s attorney fees which did not clear the bank.

Peters employed Gerlock as a process server commencing in June 2001. An arrangement was made that Gerlock would receive a flat fee for serving each set of papers. Gerlock was only paid for his efforts when service upon a defendant was complete. One half of Gerlock’s fee would be credited toward the outstanding judgment of Richard Jiron and one-half would consist of a payment to Gerlock. Kusick agreed to this arrangement.

Peters knew that Gerlock was a taxi driver, had no previous experience as a process server but was familiar with the local streets, and had worked for a traffic accident videographer. Peters knew that Gerlock had previously testified in court. Peters did not seek references for Gerlock and did not conduct a criminal background check on him.

Because there were numerous papers to be served in these many lawsuits, Peters devised a method for completing an affidavit of service by devising a form entitled "Affidavit/Certificate of Service." The affidavit forms were preprinted and contained blanks for the case caption, the case number, the person served, the documents served, the method of service, where service was effected, and the date of service. The affidavits also contained blanks indicating the date the "Affidavit/Certificate of Service" was sworn in front of the notary public, a blank for the notary public’s signature, and the date the notary public’s commission expired.

Peters and Gerlock also set up a process for serving papers. Peters prepared a second form called a "service sheet," which consisted of the name, home and work address, telephone numbers, date of birth, age, Social Security number, height, weight, hair color, eye color, vehicle description, a space for any other information, and the auto license number of the person to be served. The service sheet was then attached to the documents to be served. Gerlock picked up the documents to be served from Kusick or Peters with the service sheet attached.

Gerlock traveled around the metropolitan Denver area and served documents for Peters. On a regular basis, Gerlock would come to Peters’ office and report to Peters whom he had served, how he served them, and when and where the service took place. Gerlock would write on the bottom of the service sheet the name of the person, time, place and date of service. Gerlock would then sign one blank Affidavit/Certificate of Service document for every person he had served since his last visit.

Peters did not accompany Gerlock while he was performing service of process. On more than one occasion, however, Peters went over with Gerlock the fundamentals of process service, including how to handle himself with the defendants, who qualified for substitute service, and where to locate public information on elusive defendants. Peters instructed Gerlock that in serving contempt citations, service must be effected on the named respondent and substitute service would not be adequate. On occasion Gerlock took photos of the defendants he had served. At Peter’s request, another employee of Peters occasionally rode with Gerlock to make sure Gerlock understood how to accomplish proper service.

Peters went over the service sheets with Gerlock in person in order to confirm the details of service so that he could prepare the affidavits for filing with the court, and to confirm each successful service before he paid Gerlock.

In order to expedite the process, Peters had Gerlock pre-sign the affidavit forms in batches of ten or twenty. Peters would then cause the signed affidavit forms to be completed based upon the information Gerlock supplied on the informal service sheet forms. Peters did not have Gerlock review the pre-signed forms after their completion.

Three women who worked for a law firm next to Peter’s office were notaries public. In June, 2001, at the outset of the arrangement, Gerlock executed an Affidavit/Certificate of Service in front of two of the three notaries public so that they could confirm that he was indeed the person he purported to be by his signature.

Thereafter, Kusick, Peters or both of them took completed, pre-signed affidavits to the three notaries to have Gerlock’s signature notarized without Gerlock being present. Peters knew that Gerlock had signed the affidavits when they were blank, and knew that Gerlock had not reviewed the "filled in" portions of the affidavit. Kusick knew that Gerlock had signed the affidavit in blank.

Peters caused the notarized, pre-signed Affidavits/Certificates of Service to be filed with the Denver County Court approximately 349 times in approximately 187 separate lawsuits pending in the Denver County Court.

Peters knew the affidavits were required by the Colorado Rules of Civil Procedure, Rule 4(h)(2), and that the affidavits were material to demonstrating service of process in the lawsuits. Peters filed the affidavits with the court to show the defendants were served with the described documents.

On several occasions Kusick took documents to the notaries public for notarization. On those occasions, Kusick requested that the notaries notarize the documents although the person whose signature was being notarized was not physically present before the notary.

Some of lawsuits in which the pre-signed affidavits were used were assigned to the Honorable Claudia Jordan of the Denver County Court. In one matter assigned to Judge Jordan, the defendant appeared in court to state that she had not been served with the legal papers in question. Judge Jordan held a hearing on November 15, 2001, and learned of Peters’ method of completing the affidavits. When the court made inquiry into proper service in several other cases, Peters acknowledged the arrangement he had devised with Gerlock and the notaries. Recognizing that the service in those cases were based upon defective affidavits of service, Peters confessed the dismissal of those cases or agreed to vacate hearings scheduled with the court.

At the time Peters filed the defective affidavits with the court he did not recognize that the notarization arrangement he had devised would affect the validity of service. Peters was not trying to deceive the court. To Peters’ knowledge, the information supplied by Gerlock on the service sheets which was transferred to the pre-signed affidavits was true and correct and reflected that the persons identified as being served were, in fact, served with the necessary documentation.

Peters lost confidence in Gerlock in mid to late October 2001 because Gerlock was entrusted with funds by Peters and the funds disappeared. Peters contacted the police to investigate the possible theft of those funds. The employment relationship between Gerlock and Peters terminated in October 2001.

In December 2001, Gerlock filed a request for investigation against Kusick with the Office of Attorney Regulation Counsel. Gerlock’s report suggested that he had not served everyone he had previously told Peters he had served. Upon learning that Gerlock had suggested that the information set forth on the service sheets provided to him by Gerlock might be false, Peters moved to vacate all matters in which a default judgment had entered based upon service by Gerlock. Peters moved to dismiss without prejudice any case in which Gerlock had served a complaint. If service involved a contempt citation or bench warrant, Peters moved to strike the warrant and in some cases moved to dismiss the complaint. Peters took remedial steps in all divisions of Denver County Court where matters were pending involving service by Gerlock. Peters undertook this remedial action voluntarily and at his own expense.

Peters expressed remorse for the service arrangement he had set up with Gerlock. His reasoning in setting up the procedure with Gerlock was only to expedite the process and he recognizes now that it was short sighted and incorrect to take these shortcuts. His rationale in setting up the procedure was to lessen the impact on the notaries from the law firm next door. He did not pay them; rather, he bought them lunch every week. He apologized to the notaries who notarized Gerlock’s signature in his absence. Peters apologized to the presiding judges in all divisions where the matters were pending.

II. CONCLUSIONS OF LAW

The Amended Complaint in this matter consists of six claims alleging violations of the Rules of Professional Conduct ("Colo. RPC") against one or both of the respondents.

The Amended Complaint alleges that Peters violated Colo. RPC 3.3(a)(1)(knowingly making a false statement of material fact or law to a tribunal) in claim one; Peters and Kusick violated 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 claim two; Peters violated Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) in claim three; Peters violated Colo. RPC 8.4(d)(it is professional misconduct for an attorney to engage in conduct prejudicial to the administration of justice) in claim four; Peters violated Colo. RPC 5.3(b)(a lawyer having direct supervisory authority over a non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer) in claim five,1 and Peters violated Colo. RPC 1.8(a)(an attorney shall not enter into a business transaction with a client) in claim six.2

On July 31, 2003, the PDJ granted the People’s Motion for Summary Judgment as to Kusick on claim two of the Amended Complaint as to Kusick’s actions constituting a violation of Colo. RPC 8.4(b), and the violation was established as a matter of law. The PDJ also granted the People’s Motion for Summary Judgment as to claim two against Peters, establishing a violation of Colo. RPC 8.4(b), claim three, establishing a violation of Colo. RPC 8.4(c), and claim four establishing a violation of Colo. RPC 8.4(d). The PDJ denied the People’s Motion for Summary Judgment as to Peters with regard to Colo. RPC 3.3(a)(1) in claim one and Colo. RPC 5.3(b) in claim five. At the time of trial it remained for the Hearing Board to determine if Peters’ conduct violated Colo. RPC 3.3(a)(1) and Colo. RPC 5.3(b) and the appropriate discipline to be imposed against both respondents.

The relevant portions of the PDJ’s ruling on the People’s Motion for Summary Judgment are attached as Attachment A analyzing the violations found. See Attachment A.

Colo. RPC 3.3(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal. The evidence presented at trial established that Peters prepared forms for his process server, Gerlock, to fill out when he effected service. Peters would use the information inserted in the forms by Gerlock to complete blank pre-signed affidavits by filling in the case caption, the case number, the person served, the documents served, the method of service and where service was effected. He would then have the pre-signed affidavits notarized by notaries who had witnessed Gerlock’s signature on a prior occasion. No evidence was presented that the information regarding the defendants upon whom service was effected or the manner of service was known by Peters or Kusick to be false.

The alleged violation of Colo. RPC 3.3(a)(1) relies upon the fact that the affidavit contained a jurat stating "subscribed and sworn to" by the notaries when in fact Gerlock was not present when they affixed their notary seal. The Complaint alleges that Peters’ filing of those affidavits with the court constitutes a material misrepresentation of fact to a tribunal by Peters. The jurat, however, was a written statement made by the notaries, not Peters. In order to find a violation of Colo. RPC 3.3(a)(1) on these facts, it is necessary to conclude that by filing the completed affidavits, Peters adopted the notaries’ statements to the court as his own. Attorneys frequently file the affidavits of third parties with courts. In so doing, they do not adopt the statements made in those affidavits as their own statements. The Hearing Board is unwilling to find that an attorney is accountable under Colo. RPC 3.3(a)(1) for the veracity of statements made in an affidavit by a third person and filed with a tribunal. To do so would make the attorney filing an affidavit a guarantor of statements made in an affidavit.3

Peters reviewed the information pertaining to service with Gerlock and used the information to fill out the affidavit. He had no reason to believe that the information in the body of the affidavits contained material misrepresentations at the time they were filed with the court. Peters and Gerlock talked about each and every service sheet. Information in the service sheet was taken verbatim and transferred to the affidavits/certificates of service.

Further, although evidence was presented that Peters knew the court would rely upon the affidavits to establish that proper service was effected in the case, no evidence was presented that would establish Peters knew at the time he filed the affidavits that their substantive content was untrue. On the contrary, Peters’ testimony was credible that he believed that the persons represented to have been served were in fact served and that his devised arrangement for completing the affidavits could expedite the service of process by having the affidavits notarized by individuals who had previously witnessed the process server’s signature. Peters did not believe that an incorrectly notarized jurat would void the validity of the affidavit. Accordingly, the Hearing Board finds that no violation of Colo. RPC 3.3(a)(1) was proven by a clear and convincing standard and that claim against Peters is dismissed.

Claim five alleges a violation of Colo. RPC 5.3(b)4 against Peters which provides with respect to a non-lawyer employed or retained or associated with a lawyer, the lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

The evidence presented at trial established that Peters explained to Gerlock what he must do to comply with the Rules of Civil Procedure in effecting service. He explained what information was required to obtain about the defendant, when substitute service could be used, required another employee to travel with Gerlock to ensure he was achieving proper service of process and reviewed every form filled out by Gerlock to confirm the correct individual was served. The steps Peters took to inform Gerlock how to effect service of process were both reasonable and adequate to assure that Gerlock’s conduct was compatible with Peter’s professional obligations. Accordingly, the Hearing Board finds that the People failed to prove by a clear and convincing standard that Peters failed to make reasonable efforts to ensure that the process server’s conduct was compatible with Peters’ professional obligations and dismiss claim five against Peters.

III. IMPOSITION OF SANCTION

Peters’ conduct in the within matter violated Colo. RPC 8.4(b), Colo. RPC 8.4(c) and Colo. RPC 8.4(d). The conduct of Peters and Kusick in attempting to quickly process affidavits of service by having the notaries notarize Gerlock’s signature when he was physically present would amount to a class 2 misdemeanor. See § 12-55-116, 4 C.R.S. (2002).

The ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") are the guiding authority for imposing sanctions. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). Each element of the ABA Standard must be established to impose the sanction specified by a clear and convincing standard. See id. The People contend that the appropriate ABA Standard under which to impose discipline is Standard 6.11 which provides:

Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

The evidence presented at trial did not establish that Peters had the requisite intent to deceive the court, nor that Peters himself made a false statement to the court. Peters believed at the time he submitted the affidavits to the court that a faulty jurat would not impact the validity of the information contained in the affidavit. Accordingly, ABA Standard 6.11 does not apply to the rule violations established against Peters.5

ABA Standard 6.13 provides:6

Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

ABA Standard 7.3 provides:

Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public or the legal system.

Reprimand, or public censure is the presumed sanction under the ABA Standards applicable to the conduct of both Peters and Kusick. Both Peters and Kusick were negligent in failing to ensure that their method of expediting execution on the affidavits would not impact the veracity of the documents. Peters’ actions caused an adverse effect on the legal proceedings in which the affidavits were filed by necessitating the court to vacate prior orders or dismiss cases, and by requiring the court to spend additional time on the matters. Peters took remedial action in each case in which an affidavit had been filed to rectify any erroneous service that was effected or may have been effected by Gerlock. Kusick’s actions in bringing the documents to the notaries assisted Peters’ actions which — in turn — caused an adverse effect on the legal proceedings in which Gerlock served affidavits. In the case In re Confidential, D.N. 235-78 (Bd.Pro.Resp. November 29, 1979) the District of Columbia Court of Appeals issued a public censure against the respondent attorney who, on four separate occasions, obtained signatures for affidavits which he then filed with the court. The notarization of the signature did not occur while the signatory was present. In finding that a private admonition was warranted, the court considered mitigating factors including the respondent attorney’s energetic advocacy on behalf of his client, and the fact that he was held in high regard in the legal community. The court further stated:

[A]lthough we firmly believe that as long as the notarization requirements are a part of our law, no lawyer may ignore them with impunity, we also note the growing movement to replace the once inviolable notarized affidavit with a simple signed declaration under penalty of perjury.

Id. at p. 5, citing, e.g., 28 U.S.C. § 1746 (1976); Fed. R. Civ. P. 11, 26 U.S.C. §§ 6065, 7026.

See also Cincinnati Bar Assoc. v. Reisenfeld, 701 N.E. 2d 973, 974 (Ohio 1998)(respondent attorney received public reprimand was appropriate for one attorney who on two occasions submitted improperly notarized affidavits to the court by having clients sign blank sheets of paper before attorney completed the affidavits, but affidavits were accurate renditions of clients’ statements and six month suspension with the full period stayed appropriate for another attorney who on six occasions, submitted improperly notarized affidavits to the court by having the clients sign blank sheets of paper before attorney completed the affidavits and where attorney added to one of the affidavits a statement that the client allegedly had never made but where affidavits were otherwise correct); In re Celsor, 499 S.E. 2d 809 (S.C. 1998)(respondent attorney was given a public censure for multiple acts of misconduct, including signing a client’s name and then notarizing the signature on the documents filed with the court); Florida Bar v. Farinas, 608 So. 2d 22, 24 (Fla. 1992)(respondent attorney received public reprimand for requesting that a notary notarize the signatures of his out-of-state client on interrogatories when the clients were not present before the notaries); In the Matter of the Application for the Discipline of John T. Finley, 261 N.W. 2d 841 (Minn. 1978)(respondent attorney received public censure for falsely notarizing documents not signed in his presence, relying solely on assurances of a friend and business associate that the information was accurate, where attorney had no intent to defraud, was unaware of the forgeries, was cooperative in the disciplinary proceedings, and had no prior discipline).

Aggravating and mitigating factors must be considered in arriving at the appropriate sanction. See ABA Standards 9.22 and 9.32. With regard to Peters, he has had several prior disciplinary offenses, an aggravating factor pursuant to Standard 9.22(a): he received a letter of admonition in February 1989 for neglect of one legal matter, in March 1993, he received a suspension of forty-five days pursuant to a Conditional Admission of Misconduct for failing to withdraw from representation and collecting fees improperly from his clients. Most recently, in July 1997, Peters received a private censure pursuant to a Conditional Admission of Misconduct for advertising which contained misleading information about the lawyer’s services which one of Peters’ non-lawyer partners created without Peters’ review. Peters terminated the advertisement when it was brought to his attention. This is the fourth disciplinary matter against Peters. None of the prior matters involved conduct similar to the conduct here. However, because Peters acted negligently rather than with a culpable mental state, public censure is warranted rather than a more severe sanction. See People v. Hickox, 889 P.2d 47, 49 (Colo. 1995)(holding that considering prior disciplinary matters, it was a "close call" whether public censure or a more severe sanction was warranted, but determining that public censure was appropriate where mental state was negligent).

The Hearing Board may also consider whether the prior misconduct was remote in time, see Standard 9.32(m). The misconduct in the present case occurred in 2001. Peters’ prior misconduct occurred in 1989, 1993 and 1997 respectively. Although the first incident of misconduct may be remote in time from the present, the other two instances are not, having occurred eight years and four years prior to the conduct at issue. See In re Hickox, 57 P.3d 403, 407 (Colo. 2002)(noting that where respondent’s prior disciplinary offenses were only seven, five, and four years old, they were not remote in time for purposes of mitigation). The Hearing Board also considered that Peters engaged in a pattern of misconduct, Standard 9.22(c) and had, at the time of the conduct giving rise to this proceeding, substantial experience in the practice of law. Standard 9.22 (i).

In mitigation, the evidence established an absence of a dishonest or selfish motive, Standard 9.32(b). Importantly, Peters expended a great deal of time and his own finances to rectify the consequence of his filing the affidavits with the court: in each case, he took appropriate steps to vacate orders or dismiss cases where service had been effected by Gerlock. Peters’ actions are considered as a mitigating factor pursuant to Standard 9.32(d). Peters also engaged in full and free disclosure to the People and a cooperative attitude toward the disciplinary proceedings, Standard 9.32(e). Finally, Peters evidenced remorse for his conduct, Standard 9.32(l). The mitigating factors weigh against imposing a greater sanction against Peters.

With regard to Kusick, he has one prior disciplinary matter, a three year suspension pursuant to a Conditional Admission of Misconduct which commenced in June 2001. The Stipulation arose from the following conduct and rule violations: in one matter, Kusick violated Colo. RPC 1.3 by neglecting a client’s personal injury matter for over two years, and violated Colo. RPC 1.4(a) by failing to communicate with insurance representatives, engage in settlement discussions, gather adequate medical information and keep the client reasonable informed. Kusick violated Colo. RPC 1.5(a) by failing to honor the fee agreement, and Colo. RPC 5.1(b) by failing to adequately supervise associate attorneys. On two occasions, Kusick undertook representation of clients seeking reinstatement of their driver’s licenses, accepted payment for the matters and subsequently did nothing on their matters in violation of Colo. RPC 1.3, respondent failed to keep the clients reasonably informed in violation of Colo. RPC 1.4(a), he charged an unreasonable fee by accepting payment from the clients and failed to render any services in the matters in violation of Colo. RPC 1.5(a). In one of the two matters, Kusick failed to surrender the client’s advance payment fee upon termination when requested by the client and failed to provide an accounting in violation of Colo. RPC 1.16(d). In a separate matter, Kusick undertook representation of a client, failed to timely file an entry of appearance and waiver of arraignment and failed to take further action after filing an entry of appearance in violation of Colo. RPC 1.3, and failed to communicate with the client in violation of Colo. RPC 1.4(a). Kusick charged an unreasonable fee in violation of Colo. RPC 1.5(a) by accepting an advance fee and taking no action in the matter. In another matter, Kusick accepted a retainer in a matter involving a client with multiple driving offenses, but failed to enter his appearance in either case pending against him, failed to notify the jails where his client was incarcerated of his representation, failed to obtain release information, failed to take action on the client’s motion for reconsideration of the sentence until over three months after he was hired, and failed to confer any benefit on the client. In another matter, Kusick accepted a retainer for representation of the client, failed to communicate with the client in violation of Colo. RPC 1.4(a) and failed to refund the retainer when requested in violation of Colo. RPC 1.16(d). Additionally, Kusick has had extensive experience in the practice of law, Standard 9.22(i). In mitigation, Kusick’s misconduct did not demonstrate a selfish or dishonest motive, see id. at 9.32(b).

Although the disciplinary history of both Peters and Kusick might warrant a suspension of their licenses to practice law for a short period of time, the fact that substantial remedial measures were undertaken by them to rectify their misconduct convinces the Hearing Board that no suspension is necessary to adequately protect the public. Considering the aggravating and mitigating factors, the Hearing Board concludes that a public censure is the appropriate sanction for both Peters and Kusick.

IV. ORDER

It is therefore ORDERED:

1. WILLIAM E. PETERS, attorney registration number 11326 is given a PUBLIC CENSURE effective thirty-one days from the date of this Order.

2. EDWARD C. KUSICK. JR., attorney registration number 18876 is given a PUBLIC CENSURE effective thirty-one days from the date of this Order.

3. Pursuant to C.R.C.P. 251.32, respondents shall pay the costs in conjunction with this matter; those costs pertaining to both Peters and Kusick shall be divided evenly against them; those costs which pertain only to one of the respondents shall be assessed against that respondent only. Complainant shall file a Statement of Costs within fifteen (15) days of the date of this Order; respondents shall have ten (10) days thereafter to file a Response.

Attachment A

I. Standard for Summary Judgment

Summary judgment is appropriate only if the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Cissell Mfg. Co. v. Park, 6 P.3d 85, 87 (Colo. App. 2001), citing Cung La v. State Farm Automobile Insurance Co., 830 P.2d 1007 (Colo.1992). The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-1340 (Colo.1988). A party against whom summary judgment is sought is entitled to the benefit of all favorable inferences that may be drawn from the facts. Id., citing Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 718 (Colo.1987); Mount Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 239 (Colo.1984).

II. PENDING MOTIONS

1. Complainant’s Motion for and Brief in Support of Summary Judgment as to Respondent Edward C. Kusick, Jr., filed June 30, 2003, respondent’s Response thereto filed July 14, 2003, and complainant’s Reply filed July 25, 2003.

Complainant moves for summary judgment stating that there is no genuine issue as to any material fact and complainant is entitled to judgment as a matter of law on claim two of the Complaint, alleging that respondent’s conduct violated Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b).

Colo. RPC 8.4 (b) provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness. Violation of Colo. RPC 8.4(b) does not depend upon either the actual charging of a criminal violation or conviction thereupon. In re Egbune, 971 P.2d 1065, 1072 (Colo. 1999)(noting that grounds for lawyer discipline include: [a]ny act or omission which violates the criminal laws of this state or of the United States; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings, and provided further that acquittal in a criminal proceeding shall not necessarily bar disciplinary action, citing prior rule C.R.C.P. 241.6(5) and People v. Morley, 725 P.2d 510, 514 (Colo. 1986)(conviction of criminal offense is not a condition precedent to attorney disciplinary proceedings involving the offense) (emphasis in original).

The Complaint and Answer in this action, along with the affidavits submitted in support of the complainant’s Motion for Summary Judgment establish the following undisputed material facts:

On numerous occasions Kusick took documents to notaries public Michelle Sailor, Nicole Peterman or Nanette Leali for attestation. The documents had already been signed by a third person. Kusick requested that the notaries notarize the documents although the person whose signature was being notarized was not physically present before the notary. (See Paragraph 55 of Amended Complaint).

§ 18-1-603, 6 C.R.S. (2002) provides a person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense. Section 18-1-603 C.R.S. is commonly referred to as the complicity statute under Colorado law. Complicity is not a separate and distinct crime or offense under the criminal code. Complicity is merely a theory by which a defendant becomes accountable for the criminal offense committed by another. People v. Hart, 787 P.2d 186, 189 (Colo. App. 1989), citing People v. Thompson, 655 P.2d 416 (Colo. 1982). The Complaint in this action alleges that Kusick aided and abetted one or more notaries public to violate § 12-55-110(4), 4 C.R.S. (2002). That section provides:

No notary shall sign a certificate or other statements as to a notarial act to the effect that a document or any part thereof was attested by an individual, unless:

(a) Such individual has attested such document or part thereof while in the physical presence of such notary; and

(b) Such individual is personally known to such notary as the person named in the certificate, statement, document, or part thereof, or such notary receives satisfactory evidence that such individual is the person so named. For purposes of this paragraph (b), "satisfactory evidence" includes but is not limited to the sworn statement of a credible witness who personally knows such notary and the individual so named, or a current identification card or document issued by a federal or state governmental entity containing a photograph and signature of the individual who is so named.

Section 12-55-116, 4 C.R.S. (2002) makes a violation of §12-55-110(4) a class 2 misdemeanor. The false attestation of a document adversely reflects upon the integrity and honesty of the person falsely attesting. See generally People v. Barringer 61 P.3d 495, 500 (Colo. O.P.D.J. 2001)(respondent attorney’s notarizing a settlement document when he was not an active notary constituted the criminal act of official misconduct and willful impersonation, § 12-55-116 C.R.S. and § 12-5-117 C.R.S. respectively, constituting a violation of C.R.C.P. 251.5(b) and
Colo. RPC 8.4(b)).

Respondent Kusick in his response to the Motion for Summary Judgment argues that there is no evidence of specific intent to aid or abet the commission of a violation of §12-55-110(4). Specific intent, however, is not required under the complicity statute for general intent crimes. People v. Fisher, 9 P.3d 1189, 1191 (Colo. 2000). Section 12-55-110 makes it a crime for a notary to attest the signature of another unless that person signs the documents in the physical presence of the notary. The undisputed facts in this case establish that notarizations were performed by notaries and encouraged by Kusick where the person whose signature was notarized was not in the physical presence of the notary at the time he placed his signature on the document. Kusick’s request of the notaries to notarize those signatures satisfies the common meaning of "intent" required under the complicity statute.

The undisputed facts establish that Kusick aided, abetted and encouraged notaries public to attest the signature of third parties without those third parties being physically present at the time of the attestation. Accordingly, the undisputed facts establish that Kusick violated Colo. RPC 8.4(b) by such conduct.

Complainant’s Motion for Summary Judgment as to respondent
Edward C. Kusick, Jr. on claim two of the Amended Complaint is GRANTED.

2. Complainant’s Motion for Summary Judgment as to Respondent William E. Peters filed June 25, 2003, respondent’s Response filed July 24, 2003, and complainant’s Reply filed July 29, 2003.

Complainant moves for summary judgment on the alleged violation of Colo. RPC 3.3(a)(1) in claim one; Colo. RPC 8.4(b), constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) in claim two; Colo. RPC 8.4(c) in claim three, Colo. RPC 8.4(d) in claim four, and Colo. RPC 5.3(a) in Claim five.

Complainant’s Motion for Summary Judgment as to the alleged violation of Colo. RPC 3.3(a)(1) in claim one is DENIED; genuine issues of fact remain as to whether respondent Peters made "a false statement of material fact or law to a tribunal."

Complainant’s Motion for Summary Judgment as to the alleged violation of Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) in claim two is GRANTED. No genuine question of fact remains as to respondent Peters encouraging the notaries public to attest to Harry Gerlock’s signature on the purported affidavits when Gerlock was not physically present before them. Complainant is entitled to summary judgment as a matter of law on respondent Peters’ actions constituting a violation of Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b). Such conduct reflects adversely on the lawyer’s honesty. See generally Barringer 61 P.3d at 500(respondent attorney’s actions regarding notarizing a settlement document when he was not an active notary reflected adversely on the lawyer’s honesty). The "numerous occasions" on which Peters sought the notaries’ attestations reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. See Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering, § 65.4 3rd ed. 2002 (stating that "a pattern of conduct might yield an assessment of unfitness that would not follow from an isolated incident"); see also Comment to Model Rule 8.4(stating that "[a] pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.").

Complainant’s Motion for Summary Judgment as to Peters’ alleged violation of Colo. RPC 8.4(c) in claim three is GRANTED. Peters filing affidavits with the court, knowing at the time he filed them they had not been sworn to by the affiant and knowing that the affidavits had been improperly notarized, and knowing that the court would rely upon the affidavits for jurisdictional purposes constituted conduct involving dishonesty and deceit, in that Peters failed to disclose to the court that the affidavits were defective. Absent proof of service through submission of valid service affidavits, or otherwise, personal jurisdiction over the opposing party would not attach. The fact that the service affidavits were defective was, as a matter of law, material to a finding of personal jurisdiction over a party.

Complainant’s Motion for Summary Judgment as to the alleged violation of Colo. RPC 8.4(d) in claim four is GRANTED. No genuine question of fact remains as to whether Peters’ conduct constitutes a violation of Colo. RPC 8.4(d) and complainant is entitled to judgment as a matter of law on claim four.

Complainant’s Motion for Summary Judgment as to the alleged violation of Colo. RPC 5.3(a) is DENIED. Genuine issues of fact remain as to whether Peters failed to supervise or take reasonable steps to ensure Gerlock’s conduct was compatible with the professional obligations of a lawyer.

_______

1. Claim five actually alleges a violation of Colo. RPC 5.3(a) not Colo. RPC 5.3(b). The parties, however, referred throughout the proceeding to an alleged violation of Colo. RPC 5.3(b) and the Hearing Board considered the allegations under Colo. RPC 5.3(b).

2. Claim six was dismissed upon the People’s motion.

3. The Complaint did not allege a violation of any other provision of Colo. RPC 3.3(a).

4. See footnote 1.

5. This Standard does not apply to Kusick insofar as there is no allegation that Kusick filed or aided and abetted the filing of false statements or documents with the court.

6. ABA Standard 6.12 which provides for suspension requires proof that no remedial action was taken. The proof in this case demonstrates that Peters and Kusick took significant remedial action.

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