|The Colorado Lawyer|
Vol. 33, No. 5 [Page 125]
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From the Courts
Colorado Disciplinary Cases
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 146 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: 03PDJ051
THE PEOPLE OF THE STATE OF COLORADO
KEVIN DEREK PERNELL
ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE
February 12, 2004
REPORT, DECISION AND IMPOSITION OF SANCTIONS
Opinion issued by a Hearing Board consisting of Presiding Officer Edward L. Zorn, and Hearing Board members Corinne Martinez-Casias and Mark D. Sullivan, both members of the bar.
SANCTION IMPOSED: ATTORNEY DISBARRED
A sanctions hearing pursuant to C.R.C.P. 251.15 was held on January 15, 2004, before a Hearing Board consisting of Presiding Officer Edward L. Zorn, and two Hearing Board members, Corinne Martinez-Casias and Mark D. Sullivan, both members of the bar. James S. Sudler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Respondent Kevin Derek Pernell ("Pernell") did not appear either in person or by counsel.
The Complaint in this action was filed July 22, 2003. The Citation and Complaint were sent by regular and certified mail to Pernell on July 22, 2003. A proof of service was filed August 14, 2003, establishing that service was effected via regular and certified mail to Pernell’s registered business and home addresses. Service was therefore proper pursuant to C.R.C.P. 251.32(b). Pernell did not file an Answer to the Complaint. On August 15, 2003, the People filed a Motion for Default. Pernell did not respond. On October 15, 2003, the PDJ issued an Order granting the Motion in part and denying the Motion in part. Default was denied on claim five and claim fourteen both alleging violations of Colo. RPC 1.16(d), which were thereafter dismissed.1 Default was granted on the remaining claims, which were deemed established, and establishing all factual allegations. See People v. Richards, 748 P.2d 341 (Colo. 1987).
At the sanctions hearing, exhibits 1 through 3 were offered by the People and admitted into evidence. The Hearing Board considered the People’s argument, the facts established by the entry of default, the exhibits admitted, assessed the testimony and credibility of the witnesses and made the following findings of fact which were established by clear and convincing evidence.
I. FINDINGS OF FACT
Pernell has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on December 17, 1993, and is registered upon the official records of this court, registration number 23626. Pernell is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b). Pernell was administratively suspended from the practice of law effective June 13, 2003 for failing to comply with his Continuing Legal Education requirements.
All factual allegations set forth in the Complaint were deemed admitted by the entry of default. The facts set forth in the Complaint are therefore established by clear and convincing evidence. See Complaint attached hereto as exhibit 1.
II. CONCLUSIONS OF LAW
The within disciplinary matter arises from Pernell’s representation of five separate clients. The entry of default established the following violations of the Colorado Rules of Professional Conduct ("Colo. RPC") involving the five clients: claims one, nine, and seventeen alleged three separate violations of Colo. RPC 1.1 (an attorney shall provide competent representation to a client); claim two, six, ten, thirteen, and eighteen alleged five separate allegations of Colo. RPC 1.3 (an attorney shall not neglect a legal matter entrusted to that attorney)2; claims three, seven, and eight, alleged three separate violations of Colo. RPC 1.4(a)3 (an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); claim four alleged a violation of Colo. RPC 1.15(a)(in connection with a representation, an attorney shall hold property of clients or third persons that is in the attorney’s possession separate from the attorney’s own property); claims four, eleven, twelve, and sixteen alleged four separate violations of Colo. RPC 8.4(c)(engaging in dishonesty, deceit, fraud or misrepresentation), and claim fifteen alleged a violation of Colo. RPC 3.4(c)(an attorney shall not knowingly disobey an obligation under the rules of a tribunal) and Colo. RPC 8.1(b)(an attorney in connection with a disciplinary . . . matter shall not knowingly fail to respond reasonably to a lawful demand for information from an admission or disciplinary authority) constituting grounds for discipline pursuant to C.R.C.P. 251.5(d).
In the Thomas-Criswell Matter (claims one, two, three, and four), the client hired Pernell to represent her in an adoption matter against a state entity. She paid Pernell an advance cost retainer. Pernell filed a notice of claim and sent it to the state authorities but did not advise the client that he had done so. The client endeavored to communicate with Pernell without success for five months. Approximately five months following his acceptance of the case, Pernell met with the client and informed her that he would file the complaint within the next two weeks. At no time did Pernell file the complaint. One month later the client wrote to Pernell requesting to know his intentions with regard to his representation, stating that if he did not intend to represent her he should return her file and the cost retainer. Following the client’s filing a Request for Investigation with the Office of Attorney Regulation Counsel, Pernell called the client and left a message stating that he needed additional help on the case and admitting that he did not have the cost retainer she had paid him. The client subsequently terminated Pernell’s representation and requested the return of her advance cost retainer and file by a date certain. Approximately one month later, Pernell refunded the cost retainer to the client and returned her file. By failing to associate with competent co-counsel or decline representation, by failing to file a complaint and remaining the client’s attorney when he knew he lacked the necessary skills to represent her, Pernell violated Colo. RPC 1.1. By failing to fully investigate the matter and failing to file a complaint, Pernell violated Colo. RPC 1.3. By failing to respond to the client’s attempts to contact him and failing to respond to her letters and advise her of the status of the case, Pernell violated
Colo. RPC 1.4(a). By accepting a cost deposit, failing to perform the agreed upon tasks over an extended period of time, including the filing of a complaint, and failing to return the funds to the client when requested, Pernell engaged in knowing conversion of the client’s funds in violation of Colo. RPC 8.4(c).4 Pernell failed to hold the client funds separate from his own in violation of Colo. RPC 1.15(a).
In the Green Matter, the client hired Pernell to have certain liens removed from the client’s property. The client tendered a fee retainer to Pernell. Thereafter, over a period of two months, the client attempted to contact Pernell by various means. He left Pernell approximately fifteen voicemail messages and Pernell did not respond to them. Following the client’s filing a Request for Investigation, Pernell returned the full fee retainer to the client. By neglecting to take the legal action requested by the client, Pernell violated Colo. RPC 1.3. By failing to communicate with the client following his acceptance of the case, Pernell violated Colo. RPC 1.4(a).
In the Mason Matter, the client first hired Pernell to represent him in a C. R. Crim. P. 35(b) matter and paid him a fee retainer. Pernell filed a motion on the client’s behalf to request that the court reconsider the sentence. The court ruled on the motion but Pernell was unaware that the court had ruled because he had moved his offices and failed to advise the court. The client tendered an additional amount of funds after Pernell affirmed that additional funds would assist him in resolving the matter. Pernell promised to provide an itemized bill of his services. He failed to do so. For the next six months, Pernell informed the client that he had not heard from the court. The client finally wrote directly to the court and found out that the motion had been denied some six months earlier. During Pernell’s representation of the client on the 35(b) motion, Pernell agreed to handle a paternity matter for the client. Pernell accepted an additional amount for the paternity matter. The client requested that Pernell confirm to the authorities that the client was not contesting paternity. Pernell assured the client that he would take care of the matter. Thereafter, an order issued stating that the client had defaulted in the proceeding. The client attempted to reach Pernell over several weeks, requesting return of his funds. Pernell confirmed that he would return the amount requested by the client. Pernell did not return the funds and never contacted the client. Pernell’s failing to adequately communicate with the client in both the criminal action and the paternity action constituted a violation of Colo. RPC 1.4(a). Pernell’s failing to check the court’s file to determine what action was taken in the criminal case and failing to take any action in the paternity case constituted a violation of Colo. RPC 1.1. Pernell’s failing to take any action in the paternity case, and to take the necessary steps to determine whether there had been a ruling in the criminal case constituted neglect in violation of Colo. RPC 1.3. Pernell
accepted additional funds in the criminal matter to assist him in resolving the case for his client, accepted funds in the paternity action, performed no services for the amount tendered, and failed to return the funds when requested. Pernell’s handling of the client’s funds constituted knowing conversion in violation of Colo. RPC 8.4(c).
In the Roundtree Matter, the client hired Pernell to defend his company in a lawsuit. Pernell filed an answer and counterclaim on behalf of Artistic. Four days prior to the trial date, Pernell moved for a continuance based on his busy calendar and his inability to adequately prepare. At the same time, Pernell moved to withdraw based on a conflict of interest with the client. The court granted the motion to continue but did not rule on the motion to withdraw. Eight months later, a few days before the trial was set to commence, Pernell filed another motion to continue raising again the issue he initially raised in the motion to withdraw. The motion was granted and the trial was rescheduled. The court granted the request for an award of attorney’s fees against Pernell and his client based on Pernell’s waiting to raise the conflict of interest issue until a few days before trial and causing the opponent’s costs of trial preparation. By failing to prepare for trial and failing to move to withdraw until shortly before the second trial setting, Pernell neglected the client’s matter in violation of Colo. RPC 1.3. By failing to respond to a request for information from a disciplinary agency, Pernell knowingly disobeyed an obligation under the rules of a tribunal in violation of Colo. RPC 3.4(c) and Colo. RPC 8.1(b).
In the Barrington Matter, the client hired Pernell to represent him in a case involving his receiving a citation for driving under the influence of alcohol. Pernell agreed to perform the services for a certain sum, and the client tendered that amount. A date had been set requiring the client to appear in court. Pernell informed the client that he would change the date, and assured him he did not need to appear. The client did not appear. Thereafter the client made repeated attempts to contact Pernell without success. He finally discovered from the court that it had issued a bench warrant for his arrest. The client was fined and ordered to perform community service. The client requested that Pernell return his funds. Pernell has not refunded to the client the funds he was paid. Pernell’s accepting funds from the client, failing to perform the requested work, and failing to refund the monies paid to him by the client when requested amounts to knowing conversion in violation of Colo. RPC 8.4(c). Pernell failed to provide competent representation to the client in violation of Colo. RPC 1.1. He neglected the client’s matter in violation of Colo. RPC 1.3 by failing to take any action on the client’s behalf.
III. SANCTION/IMPOSITION OF DISCIPLINE
The ABA Standards for Imposing Lawyer Sanctions (1991 and Supp. 1992) ("ABA Standards") are the guiding authority for selecting the appropriate sanction to oppose for lawyer misconduct. In re Roose, 69 P.3d 43, 47 (Colo. 2003), modified, reh’g denied.
ABA Standards §4.11 provides:
Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
Pernell’s knowing conversion of funds in the Thomas-Criswell matter, the Mason matter, and the Barrington matter meets the criteria for disbarment under ABA Standard §4.11. Colorado case law is consistent with the ABA Standards in holding that disbarment is the presumed sanction for knowing conversion of the client’s property. See People v. Varallo, 913 P.2d 1, 11 (1996). See also, People v. Wiedman, 36 P.3d 785, 788 (Colo. 1999) (holding that a lawyer’s knowing misappropriation of funds, whether belonging to a client or a third party, warrants disbarment except in the presence of extraordinary factors in mitigation).
In each of the three incidents, Pernell accepted client funds, failed to perform the work the client had requested, and failed to return the funds. In each of the three cases, the client suffered injury or potential injury. In the Thomas-Criswell matter, the client’s claim was barred by the statute of limitations. Pernell’s failing to reasonably pursue her matter, including filing a complaint on her behalf, forever barred her ability to pursue the matter.5 In the Mason matter, Pernell’s actions resulted in the court’s entering a default against the client in a paternity proceeding with financial consequences that may have been impacted if the client were adequately represented. In the Barrington matter, a bench warrant issued for the client’s arrest due to Pernell’s failing to change a court date and advising the client that it was unnecessary that he appear.
The remaining violations of the Rules of Professional Conduct do not impact the sanction of disbarment based on Pernell’s three incidents of knowing conversion of client funds. They do, however, underscore that disbarment is warranted. See ABA Standard 4.41(b)(stating that disbarment is generally appropriate where a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client); ABA Standard §6.22 (stating that suspension is generally appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding).
Determination of the appropriate sanction requires the Hearing Board to consider aggravating and mitigating factors pursuant to ABA Standards 9.22 and 9.32 respectively. Since Pernell did not participate in these proceedings, no mitigating factors were established, although the People confirmed that Pernell did not have a prior disciplinary history, considered a mitigating factor pursuant to ABA Standard 9.32(a). The lack of a prior disciplinary history does not lessen the Hearing Board’s decision that disbarment is warranted. In aggravation, Pernell engaged in a pattern of misconduct, ABA Standard 9.22(c); he engaged in multiple offenses, see id. at 9.22(d); he has demonstrated indifference to making restitution, see id. at 9.22(j); and he failed to cooperate in the disciplinary proceeding, see id. at 9.22(e).
The Hearing Board further finds that restitution is warranted. The entry of default established that Pernell was paid $5,750 for his representation in the criminal matter and the paternity matter. Of this amount, the People request that Pernell pay Mr. Carlos Mason $3,250 of this amount. The People further request the amount of $500 to be paid as restitution to Mr. Scott Barrington, an amount that is supported in the Complaint.
It is therefore ORDERED:
1. -KEVIN DEREK PERNELL, attorney registration 23626, is DISBARRED from the practice of law effective thirty-one days from the date of this order, and his name shall be stricken from the roll of attorneys licensed to practice law in this state.
2. -KEVIN DEREK PERNELL is Ordered to pay the costs of these proceedings within sixty (60) days of the date of this order. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Pernell shall have five (5) days thereafter to submit a response thereto.
3. -Within twelve months of the date of this Order, Pernell shall pay to Mr. Carlos Mason the amount of three thousand, two-hundred and fifty dollars ($3,250). Pernell shall contact the Client Protection Fund and determine whether Mr. Mason has been paid this amount out of the fund. If Mr. Mason has been paid, Pernell shall pay restitution to the Client Protection Fund as assignee of Mr. Mason.
4. -Within twelve months of the date of this Order, Pernell shall pay to Mr. Scott Barrington the amount of five hundred dollars ($500). Pernell shall contact the Client Protection Fund and determine whether Mr. Barrington has been paid this amount out of the fund. If Mr. Barrington has been paid, Pernell shall pay restitution to the Client Protection Fund as assignee of Mr. Barrington.
1. A portion of claim nine alleging a violation of Colo. RPC 1.1 was also denied in part. See Paragraph 104(d) of the Complaint.
2. The Complaint did not allege that the extent of Pernell’s neglect and/or failure to communicate rose to the level of abandonment; accordingly, the Hearing Board does not address the issue of abandonment.
3. Claim three references a violation of Colo. RPC 1.4(b) but only in the paragraph heading; accordingly it was not addressed in the Order of Default and is not addressed here.
4. In the Thomas-Criswell matter, Pernell did refund the full amount paid to him following the client’s filing a Request for Investigation with the Office of Attorney Regulation Counsel. The payment of restitution following a client’s filing a Request for Investigation is considered neither as aggravation or mitigation. See People v. Brady, 923 P.2d 887, 890 (Colo. 1996), citing People v. Pittman, 889 P.2d 678, 680 (Colo. 1995); ABA Standard 9.4(a).
5. The fact that Ms. Thomas-Criswell suffered this harm was brought to the Hearing Board’s attention through Ms. Thomas-Criswell’s oral complaining witness statement at the sanction hearing. Although not included in the Complaint or introduced into evidence, the Hearing Board may consider this fact in aggravation in deciding the appropriate sanction.
[Note: For space reasons, accompanying Exhibit A is not printed here. The Opinion, including Exhibit A, can be found on the CBA home page at: http://www.cobar.org/tcl/index.htm; or on LexisNexis™ 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: 03PDJ077
MICHAEL J. GUYERSON,
THE PEOPLE OF THE STATE OF COLORADO
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
February 19, 2004
OPINION AND ORDER READMITTING
MICHAEL J. GUYERSON TO THE PRACTICE OF LAW
Opinion issued by a Hearing Board consisting of Presiding Officer Ralph G. Torres, and Hearing Board members Madeline A. Collison and Rober M. Maes, both members of the bar.
ATTORNEY READMITTED TO THE PRACTICE OF LAW
On January 7, 2004, a readmission hearing was held pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Officer Ralph G. Torres and Hearing Board members Madeline A. Collison and Robert M. Maes, both members of the bar. Kim E. Ikeler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Michael J. Guyerson ("Guyerson") appeared on his own behalf. The following witnesses testified on behalf of Guyerson: Theodore A. Borrillo, Lauren Quiat, Paul D. Rubner, James B. Dean, S. Kirk Ingebretsen (by telephone), Phillip D. Barber, David E. Graven, Rev. Larry J. Donoghue, Robert Mosher, and Wendy Guyerson. Michael Guyerson testified on his own behalf. Petitioner’s exhibits A, E, F, I, K, Q, U, V, W, and X were admitted into evidence in their entirety. The following exhibits consisting of affidavits were admitted for the limited purpose of establishing they were filed: exhibits B, D, H, J, L, M, N, and O. The first page of exhibit G was admitted into evidence. Pages 1 through 12 of exhibit P were admitted into evidence to establish that Guyerson submitted a statement in mitigation in the underlying disciplinary proceeding. Exhibit R was admitted for the limited purpose of establishing that Guyerson collected and transmitted checks to the recipients on behalf his church for a special collection involving Columbine High School.
The Hearing Board considered the testimony and exhibits admitted, the Stipulation of Facts submitted by the parties, considered the credibility of the witnesses, and made the following findings of fact, which were established by clear and convincing evidence.
I. FINDINGS OF FACT
Michael J. Guyerson took the oath of admission and was admitted to the bar of the State of Colorado on October 10, 1981, attorney registration number 11279. Guyerson was disbarred from the practice of law in Colorado by Order of the Supreme Court on June 30, 1995, effective thirty days thereafter. People v. Guyerson, 898 P.2d 1062 (Colo. 1995).
Beginning in approximately 1987, Guyerson and his wife determined to start a family. Numerous miscarriages occurred over a two-year period. Guyerson and his wife underwent costly infertility treatments and artificial insemination procedures, none of which were
covered by insurance. Faced with the possibility of never being able to conceive, the Guyersons adopted a child, incurring additional expenses in adoptions fees and birthmother medical expenses. Surprisingly, during this period of time, Mrs. Guyerson was able to conceive a child and despite tremendous health risks to the mother, a healthy child was born in 1989. Less than one year later, Mrs. Guyerson conceived another child. Consequently, over a very short span of time, the Guyerson family unexpectedly grew to include three infants. The miscarriages, medical problems, infertility, and adoption expenses created physical and emotional difficulties and were devastating to the family’s financial resources. Eventually, Guyerson exhausted all savings and his family went into significant debt. Guyerson rationalized that he could obtain funds from his law firm through the submission of fraudulent expense reimbursement requests.
Beginning in late 1990 and continuing through part of 1993, Guyerson began to make certain falsified requests to his law firm for travel and other out-of-pocket expenses. Most of the requests were in amounts of $200 to $300. As a result of the fraudulent billing statements, Guyerson improperly received a total amount of approximately $13,500 from his law firm. Guyerson concealed his embezzlement from his wife. Guyerson’s conduct continued until July 1993, when he was asked for receipts to substantiate certain items for which he had received funds. Guyerson, 898 P.2d 1062. He initially said he would look for related billing receipts, and subsequently submitted unrelated receipts for the funds in question. When confronted, Guyerson finally admitted he had submitted improper expense requests and assisted the law firm in reconciliation of all accounts and records. He made full restitution to the firm and forfeited his capital account.1 Guyerson disclosed his misconduct to the then Office of Disciplinary Counsel. He declared bankruptcy in September 1993. After leaving the firm, Guyerson became affiliated with another law firm as special counsel and continued to practice law without incident for approximately two years during the period his disciplinary action was pending.
Thereafter, Guyerson was charged with and pled guilty to felony theft and received a one-year unsupervised deferred judgment. Guyerson, 898 P.2d 1063. He fully complied with all terms of the stipulation in the criminal matter and charges were ultimately dismissed by court order in May 1995.
The Order of Disbarment required that Guyerson pay costs arising out of the underlying disciplinary proceeding. He paid all costs of the disciplinary action and filed the requisite affidavit with the Colorado Supreme Court indicating his compliance with all disciplinary orders pursuant to C.R.C.P. 241.21.2 Guyerson fully complied with all past disciplinary orders.
Following his disbarment, Guyerson sought and obtained employment in a variety of positions. He worked as a paralegal on a contract basis for several different attorneys and organizations. As part of his contract paralegal work, Guyerson billed for his services and sought reimbursement for out-of-pocket expenses, mileage, and costs. Attorneys for whom Guyerson performed contract paralegal work attested to Guyerson’s accuracy with regard to his paralegal billing statements, and his honesty and integrity in his dealings with others. At one point, Guyerson sought and obtained a position with a company as a full time paralegal, a position he coveted in order to provide health benefits to his family. However, when he believed the actions of one of the company officers were potentially unethical, he immediately resigned the position.
Guyerson also worked in the loan department of a local bank for approximately eleven months in 1999 and 2000 and prepared loan documentation. He was trusted with access to the bank’s collateral vault, he routinely issued checks for closing costs and other disbursements, and filed and recorded collateral documents, liens, and releases. He also worked for American Express handling financial transactions. Both in his position at the bank and his employment with American Express, he was entrusted to handle valuable documents and assets.
Guyerson also attended night classes and, after an eighteen-month period, obtained a Certificate in Financial Planning, including several hours of business and personal ethics. Thereafter, Guyerson provided business and personal financial consulting to clients and to members of his church and community. He also presented seminars on responsible financial management through his church. In this capacity, clients routinely entrusted original documents and items of value to him for safekeeping and he handled them responsibly.
Guyerson anonymously published an article in The Docket, a publication of the Denver Bar Association, on the experiences of a disbarred attorney in the January 2003 issue. His intent in doing so was to dissuade other attorneys from engaging in the conduct that has resulted in his being disbarred, while preserving the anonymity of his family in the interests of his children.
Guyerson has been and continues to be active in his church and community. He has served as an usher collecting contributions for the church and was entrusted with the unsupervised counting of church collections. Guyerson also served on the building and bishop’s committee of his church and was actively involved in fund raising and budgeting for church construction and operations. He gained the trust of his church community to ethically handle funds on behalf of the church community. Guyerson presented numerous seminars and programs on financial stewardship, personal money management, and making the right ethical and moral decisions regarding money and finances through his church.
Guyerson has been active in his community, volunteering as a parent and coach for the Southwest YMCA, the South Jeffco Sports Association, and Apache League Baseball. He has helped deliver Thanksgiving baskets to the needy and participated in a Habitat for Humanity Project in Longmont, through his church. He is an involved and attentive parent to his three children.
The Guyerson family remained together throughout the difficulties arising from Guyerson’s misconduct. They are now able to live within their means and have good income and a positive net worth, and have purposefully eradicated the financial pressures that resulted in Guyerson’s misconduct. Guyerson now communicates with his wife where before he did not share financial and other concerns with her. He previously believed that because clients seek a lawyer’s help in resolving problems, lawyers could not have problems themselves and could not share the problems with others. He no longer adopts this way of thinking.
Guyerson underwent therapy to assist in discovering and resolving the character deficit that led to his disbarment. He realized that he believed at the time he was entitled to the funds, and justified taking them because of the personal stress he and his wife experienced as a result of the attempts to start a family. He rationalized his behavior, thinking the amounts he took from various clients would not harm them and would help his family. During the eight years following his disbarment, he matured considerably. Stripped of his identity as a lawyer, he evaluated the character flaws that caused the misconduct. Through this process, he realized that it is acceptable to fail and move on from a position of failure. He realized the magnitude of his actions and the disrespect this brought upon the profession and his family. He is determined to set an example for his children and the profession. Guyerson demonstrated remorse for his conduct.
II. CONCLUSIONS OF LAW
Michael J. Guyerson, is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
C.R.C.P. 251.29(a) provides:
Readmission After Disbarment. A disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment. To be eligible for readmission the attorney must demonstrate the attorney’s fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission, properly verified, with the Presiding Disciplinary Judge, and furnish a copy to the Regulation Counsel. Thereafter, the petition 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. A Hearing Board shall consider every petition for readmission and shall enter an order granting or denying readmission.
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 readmission proceedings in order to evaluate an attorney’s rehabilitation. Klein requires:
[A]ny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the 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.
An attorney seeking readmission following disbarment must establish compliance with the provisions of C.R.C.P. 251.29(c). Those provisions are as follows:
The facts other than the passage of time and the absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;
Evidence of compliance with all applicable disciplinary orders and with all provisions of this chapter regarding actions required of suspended attorneys;
Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.
Guyerson has complied with all prior court orders, has filed the required affidavit, and paid all costs of the underlying disciplinary action. He paid full restitution with interest to his law firm.
Guyerson has demonstrated through his employment and his volunteer activities that he can be trusted to collect and account for funds. In his employment as a contract paralegal, he submitted billing statements to the attorneys for whom he worked, who attested to his forthrightness and honesty in his billing practices. In his other employment as a loan document specialist and at American Express, he was entrusted with securities, promissory notes, and other valuable documents and assets. He has worked diligently to stabilize his difficult personal financial situation, and has obtained a degree in financial planning in order to maintain his business and personal finances.
Through his church and other community commitments, he presented financial planning seminars, counseling others to avoid the same type of mistakes he made. Guyerson anonymously wrote an article about his misconduct and the consequences resulting from the disbarment as a means of deterring other members of the bar from similar misconduct. Through these actions, Guyerson has attempted to demonstrate his sincere remorse for his misconduct. He also openly acknowledged the wrongfulness of his actions with attorneys for whom he worked as a paralegal.
Guyerson sat for and passed the July 2003 Colorado Bar Exam and the August Multistate Professional Responsibility Exam. He has continued to maintain his legal skills and abilities. He has taken numerous Continuing Legal Education courses to update his understanding of the law. He has endeavored to improve his paralegal services and to keep his analytical skills sharp and focused by regularly reading The Colorado Lawyer and The Annual Survey of Colorado Law.
Guyerson has made a contribution to his community through volunteer activities: he volunteers regularly at his church, and he is
active in his children’s activities through the YMCA and local sports associations as a coach and volunteer parent.
Guyerson candidly admits the wrongfulness of his actions. He is determined to act as a roll model for his children. He believes that the approach he took to his disbarment — to admit the gravity of his misconduct and pursue the long road of readmission to the bar — has provided his children with an example of his admitting his grave mistake and demonstrating rehabilitation through action. The Hearing Board finds based on the analysis set forth above that Guyerson has established rehabilitation by a clear and convincing standard.
However, insofar as the Hearing Board is charged with the important responsibility of protecting the public, the Hearing Board finds that given the seriousness of Guyerson’s prior misconduct, a practice monitor is warranted to oversee Guyerson’s initial representation of clients after readmission. The Hearing Board therefore imposes the condition of a practice monitor on Guyerson’s practice for a period of one year. The practice monitor shall be selected by Guyerson and paid by him for his services. The practice monitor shall review any and all financial transactions involving Guyerson’s legal representation of clients, and shall review Guyerson’s trust and operating accounts in the event he is in a sole practice. The practice monitor shall then submit a quarterly report with the Office of Attorney Regulation Counsel for a one-year period of time effective ninety-one days from the date of this Order.
It is therefore ORDERED:
1. MICHAEL J. GUYERSON’S Petition for Readmission is GRANTED.
2. Within thirty-one days of the date of this Order, Guyerson shall arrange for a practice monitor to oversee his financial transactions with his clients. The practice monitor shall oversee Guyerson’s practice for a one year period commencing thirty-one days from the date of this Order.
3. Guyerson is ordered to appear at the Office of Attorney Registration or appear before Presiding Officer Torres to be sworn in. Guyerson shall pay all necessary dues to the Office of Attorney Registration within thirty-one days of the date of this Order. Guyerson shall be given his original attorney registration number.
4. If any costs are due and owing arising from Guyerson’s readmission, Guyerson shall pay all reasonable costs within sixty (60) days of the date of this Order. If any amounts are due Guyerson, they shall be tendered to him within sixty (60) days of the date of this Order. In the event there is a dispute over costs, the parties shall file motions to that effect with the Office of the Presiding Disciplinary Judge forthwith.
1. Guyerson had become a partner at the firm in 1988.
2. C.R.C.P. 241.21 was replaced with and renumbered as C.R.C.P. 251.28 effective January 1, 1999.
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