Vol. 33, No. 8
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 201 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: 03PDJ069
THE PEOPLE OF THE STATE OF COLORADO,
M. ASHLEY ALBRIGHT
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
May 11, 2004
REPORT, DECISION AND IMPOSITION OF SANCTION
The Presiding Disciplinary Judge, William R. Lucero, and Hearing Board Members Mary Deganhart and Andrew A. Saliman, both members of the bar, issue the following opinion. Mary Deganhart participated via telephone.
SANCTION IMPOSED: ATTORNEY DISBARRED
The People filed a Complaint in this matter on September 23, 2003. The Citation and Complaint were sent via certified mail to M. Ashley Albright, Respondent ("Albright" or "Respondent") at her last known business and home addresses. The People filed a Proof of Service of Citation and Complaint on October 9, 2003. The Proof of Service shows that the Citation and the Complaint were sent both to Albright’s registered business and home addresses. The envelopes sent to Albright were returned on September 30, 2003 as "attempted, not known" and "unknown left no address." Albright did not file an answer to the complaint or otherwise participate in these proceedings.
On November 20, 2003, the People filed a motion for default. Albright did not respond. On December 19, 2003, the Presiding Disciplinary Judge ("PDJ") entered an order of default on the complaint. All factual allegations set forth in the Complaint were deemed admitted and all rule violations set forth in the Complaint were deemed proven pursuant to C.R.C.P. 251.15(b) and are therefore established by clear and convincing evidence. E.g. People v. Richards, 748 P.2d 341 (Colo. 1987). The complaint is attached as Exhibit A.
A Sanctions Hearing pursuant to C.R.C.P. 251.15 (b) was held on March 22, 2004 before the Hearing Board. Gregory G. Sapakoff, Office of Attorney Regulation Counsel, represented the People of the State of Colorado ("People" or "Complainant"). Albright did not appear either in person or by counsel.
In approximately December 1998, Denise Klimas and Duane K. McDermond ("Klimas and McDermond") entered into a standard real estate contract to purchase Albright’s house. The contract included an inspection contingency. The contract further provided for a process by which the parties could attempt to resolve issues raised as a result of the inspection. If problems identified through the inspection were not resolved by agreement of both parties within a specified period of time, the contract would lapse and would no longer be enforceable.
Klimas and McDermond had the property inspected and notified Albright of unsatisfactory conditions in a timely matter. Although Albright made proposals to attempt to rectify the unsatisfactory conditions, the parties could not reach an agreement to resolve the issues identified in the inspection and, therefore, the closing did not take place. The unsatisfactory conditions as identified through the inspection were not resolved within the period of time provided in the contract and the contract lapsed by its own terms.
In executing the contract, Klimas and McDermond paid an earnest money deposit of $4,000.00, which was held in escrow by the listing broker. Pursuant to the express terms of the contract, Klimas and McDermond were entitled to a refund of their earnest money deposit if the closing did not take place because of an uncorrected problem identified during the inspection.
Klimas and McDermond demanded that Albright refund their earnest money deposit after the closing did not take place. Albright refused to refund the earnest money deposit, contending that Klimas and McDermond had breached their contract to purchase Albright’s property.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Hearing Board considered the People’s argument, the facts established by the entry of default, and the exhibits admitted, and made the following findings of fact and conclusions of law.
Albright has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on January 10, 1985, and is registered upon the official records of the Supreme Court, registration number 14467. Albright is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).
The facts established by the entry of default prove the following misconduct:
Colo. RPC 3.1
Bringing or Defending a Proceeding and
Asserting Issues Therein that were Frivolous
Klimas and McDermond filed suit against Albright in small claims court in Denver County, seeking recovery of their earnest money deposit. Albright later caused the case to be removed to county court, at which time Klimas and McDermond retained James Black, Esq., to represent them in the matter. In responding to the allegations in the civil action, Albright asserted counterclaims against Klimas and McDermond, as well as a third-party claim against Vicki Manton ("Manton"), who was Klimas’ and McDermond’s broker.
The civil action went to trial to the court beginning on April 22, 1999. At the conclusion of the trial, the court ruled in favor of Klimas and McDermond on their claim against Albright and against Albright on all of her counterclaims. In addition, the court awarded to Klimas and McDermond their reasonable attorney fees incurred in pursuing the action, pursuant to a provision in the real estate contract. The court also found in favor of Manton on Albright’s third-party claim against Manton. The court further found that Albright’s claim against Manton was substantially groundless and frivolous and, therefore, awarded attorney fees in favor of Manton and against Albright, pursuant to the provisions of C.R.S. § 13-17-102. Following further proceedings in the county court, Albright was ordered to pay Manton the sum of approximately $8,300.00.
Albright appealed the trial court’s orders to the Denver District Court. On September 28, 1999, the District Court issued an opinion, order and judgment affirming the judgment of the county court. The Court stated: "This appeal is also frivolous; however, sufficient attorney fees have already been awarded against the appellant."
After receiving the district court’s ruling, Albright filed a petition for writ of certiorari in the Colorado Supreme Court. The Supreme Court accepted the case for review and, following briefing by the parties, issued an opinion in November 2000, affirming the judgment of the district court upholding the county court’s judgment. Pursuant to a motion filed by Klimas and McDermond, the Supreme Court also remanded the case to the trial court to determine if Klimas and McDermond were entitled to additional attorney fees on appeal pursuant to the real estate contract. On remand, additional fees were awarded to Klimas and McDermond as further damages under the contract.
The contractual attorney fees awarded to Klimas and McDermond at the conclusion of the initial trial court proceedings were satisfied from proceeds of a bond Albright was required to post at the time of her appeal to the district court. No money has since been paid toward satisfaction of the judgment for additional fees incurred on appeal.
Albright’s defense of the claims asserted by Klimas and McDermond was not supported by any law or facts and, therefore, was frivolous. Albright did not articulate a good faith argument for an extension, modification or reversal of existing law with respect to that claim. Albright also asserted claims against Klimas and McDermond, and against Manton, which were supported neither by law nor fact.
Albright’s attempts to appeal the rulings entered against her in the trial court were also frivolous and did not include good faith arguments for an extension, modification, or reversal of existing law. Albright’s actions in pursuing frivolous claims, defenses, and appeals caused significant harm to Klimas and McDermond and to Manton, including substantial attorney fees incurred in defending the frivolous claims and issues Albright asserted.
The Hearing Board finds the forgoing conduct violates Colo. RPC 3.1.
Colo. RPC 3.4 (c)
Knowingly Failing to Comply with Obligations
Under the Rules of a Tribunal
At least a portion of the attorney fees assessed against Albright were assessed by Denver County Court as a sanction, pursuant to C.R.S. §13-17-102, for asserting a groundless and frivolous claim. Albright has known of the court’s order of judgment requiring her to pay the reasonable attorney fees incurred by Manton since 1999. Albright also has known since November 2000, that all of her appellate rights with respect to that order have been exhausted. Notwithstanding this knowledge, Albright has knowingly failed to comply with her obligations by failing to pay the ordered sanctions.
The Hearing Board finds the forgoing conduct violates Colo. RPC 3.4(c).
Colo. RPC 3.3 (a)(1)
Knowingly Making False Statements of Fact to a Tribunal
Colo. RPC 3.3 (a)(4)
Knowingly Offering Evidence a Lawyer Knows to be False
Colo. RPC 8.4(c)
Conduct Involving Dishonesty, Fraud,
Deceit or Misrepresentation
On or about February 9, 2001, Albright filed a Chapter 13 bankruptcy petition with the United States District Court for the District of Colorado as well as a statement of financial affairs and various schedules. On or about July 19, 2001, Albright converted her Chapter 13 case to a case under Chapter 7 of the bankruptcy code. Accordingly, she sought a discharge of all of her debts, including the debts flowing from the orders entered by the Denver County Court as described above. In both the Chapter 13 and 7 bankruptcy petitions, she filed substantially the same statements of financial affairs and schedules.
On October 25, 2001, Klimas and McDermond and Manton filed adversary proceedings in the U.S. Bankruptcy Court challenging Albright’s attempt to discharge attorney fees they were awarded. The trial in the adversary proceedings was conducted before the Honorable Bruce Campbell on August 19 and 20, 2002, November 18, 19, and 26, 2002, and on March 14, 2003. The evidence introduced during these proceedings established numerous omissions and misrepresentations in the documents that Albright filed with the court. Based upon the evidence, Judge Campbell entered an order denying the discharge of Albright’s debts to Klimas and McDermond, and to Manton.
In her statement of financial affairs filed in the bankruptcy court, Albright represented that she did not have a safe deposit box. In fact, she did. This was a knowing misrepresentation or a knowing misrepresentation by omission.
Albright also filed a statement of financial affairs with the bankruptcy court that called for disclosure of financial institutions to which Albright issued financial statements within two years prior to the bankruptcy. In completing and submitting this form, Albright failed to disclose she had given a financial statement to Norwest Bank in April of 1999 that listed significant assets and liabilities that were not disclosed in the bankruptcy proceedings. She knew that she had given a financial statement to Norwest Bank in April 1999. Her failure to disclose the financial statement in her statement of financial affairs was a knowing misrepresentation or a knowing misrepresentation by omission.
With respect to her income on the statement of financial affairs, Albright failed to disclose all the income she received during the two years preceding the bankruptcy. Albright was aware that she had received monthly rent payments from a tenant who leased a basement apartment in her home throughout the two-year period before filing bankruptcy, yet she did not disclose this information. Albright’s failure to list the income received from such rent payments was a knowing misrepresentation or a knowing misrepresentation by omission in connection with the bankruptcy proceedings.
The statement of financial affairs submitted in connection with her bankruptcy also required Albright to disclose any businesses in which she owned five percent or more during the two years immediately preceding the bankruptcy case. Albright listed none, when she actually owned 100% of a limited liability company (LLC). The LLC held title to property that cost more than $60,000.00 originally and was worth at least that amount during the course of the bankruptcy proceedings.
For many years immediately preceding the filing of the bankruptcy, Albright also maintained a bank account in the name of the LLC into which she deposited approximately $700.00 per month through direct deposits from her paycheck. After servicing mortgage debt on the LLC’s undeveloped but subdivided realty, the LLC made distributions over the two years immediately preceding the bankruptcy of approximately $150.00 per month to Albright. Albright neither disclosed the bank account nor the payments therefrom in any schedule she submitted in her statement of financial affairs filed with the bankruptcy court.
Albright knew of her ownership interest in the LLC and of the nature of property owned by the LLC at the time she completed and submitted her statement of financial affairs. Through her failure to disclose her ownership interest in the LLC and the distributions she received therefrom, Albright made a knowing misrepresentation or a knowing misrepresentation by omission in connection with the bankruptcy proceedings.
The Hearing Board finds the forgoing conduct violates Colo. RPC 3.3(a)(1), 3.3(a)(4), and 8.4(c).
Colo. RPC 8.4(a)
Attempted Violation of the Rules of Professional Conduct
Prior to the trial in the adversary proceedings in the bankruptcy court, Albright became aware that the tenant who leased Albright’s basement apartment would be called to testify at the time of trial. Prior to the date the tenant was to testify, Albright contacted the tenant and tried to persuade him not to mention $350.00 of accrued but unpaid rent because Albright had not listed the rent on her bankruptcy schedules.
Albright knew that such evidence, if presented, would be false and would constitute an act of dishonesty or deceit. Through her conduct, Albright attempted to submit false evidence to a tribunal and to perpetrate a fraud upon the bankruptcy court. At the trial, in spite of Albright’s efforts to the contrary, the tenant testified honestly and disclosed Albright’s attempt to persuade him to testify falsely.
The Hearing Board finds the forgoing conduct violates Colo. RPC 8.4(a).
III. SANCTIONS BASED UPON
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The following ABA Standards apply. Pursuant to ABA Standards § 6.21, "[d]isbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious interference with a legal proceeding."
ABA Standards § 6.11 also provide that "[d]isbarment is generally appropriate when a lawyer, with 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."
Finally, under ABA Standards § 6.22, "Suspension is 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."
The Hearing Board considered the following factors in determining the issue of sanctions:
DUTY: In the instant case, Albright violated duties owed as an officer of the court and legal duties to act with honesty and integrity. The findings establish that Albright acted knowingly in violating these duties as shown by the following facts:
• Pursuing frivolous claims and defenses;
• Failing to comply with a court order; and,
• Engaging in dishonest conduct in the bankruptcy proceedings.
MENTAL STATE: There is no evidence to suggest a mental or physical disability that would, perhaps, explain Albright’s conduct. In violating a succession of court orders starting with the Denver County Court and terminating with the Colorado Supreme Court, Albright was aware of her conduct and acted with the conscious object to avoid paying sanctions she was ordered to pay. The Hearing Board specifically finds that she acted with intent and knowledge of the consequences of her actions.
The Hearing Panel specifically finds that Albright knowingly engaged in an escalating course of conduct starting before April 1999 and continuing until at least March of 2003 that demonstrated her abuse of the legal system and the public. Her conscious objective during this course of conduct was to avoid paying the earnest money due to Klimas and McDermond and the sanctions the court had ordered. She was aware that the defense and claims she brought against Klimas, McDermond, and Manton were groundless and frivolous. Nevertheless, she continued to pursue them. While there may be some question as to whether Albright’s behavior was appropriate immediately after Klimas and McDermond demanded that she return their earnest money, such was not the case by the time Klimas and McDermond brought suit against her. By that time, Albright’s conduct demonstrated a firm resolve to pay neither judgment nor sanctions. Ultimately, she intentionally misled the Bankruptcy Court, hid material information that should have been included in her filings, and attempted to suborn perjury in an apparent attempt to avoid paying a lawful debt.
HARM: Albright caused significant harm
• To Klimas, McDermond, and Manton by forcing them to defend her frivolous claims and defenses and generating substantial attorneys fees as a result;
• To Klimas, McDermond, and Manton by fraudulently and dishonestly thwarting their legitimate attempts to collect their judgments; and
• To the legal system by unnecessarily multiplying and expanding the course of proceedings within the state court system and in the Federal Bankruptcy Court.
MITIGATION: Albright has not appeared to present evidence of any factors in mitigation. Thus, the Hearing Board must rely solely on the matters in the record the People have presented. The only factor in mitigation applicable here is the absence of a prior disciplinary record. ABA Standards §9.32(a).
AGGRAVATION: In aggravation, Albright’s conduct demonstrates:
• She acted with a dishonest or selfish motive. ABA Standards §9.22(b)
• She engaged in a pattern of misconduct by continuing to deny her liability while escalating the dispute to higher and higher levels of frivolous litigation. Id. at 9.22(c)(d) and People v. Rudman, 948 P.2d 1022, 1026 (Colo 1997).
• She committed multiple offenses by submitting false and misleading documents to the Bankruptcy Court and attempting to suborn perjury. Id. at 9.22(d).
• She has failed to cooperate or participate in good faith in these disciplinary proceedings. Id. at 9.22(e).
• She has substantial experience in the practice of law. Id. at 9.22(i).
Considering the applicable factors in mitigation and aggravation, disbarment is the appropriate sanction for Albright’s misconduct pleaded and proved in Claims 3 and 4. See In re Cardwell, 50 P.3d 897, 901 (Colo. 2002)(disbarment generally appropriate when lawyer, with the intent to deceive, makes false statement, submits false document, or improperly withholds material information from court, causing serious or potentially serious injury to party, or significant or potentially significant adverse effect on legal proceeding).
As to conduct in Claims 1 and 2, the Hearing Board determines that suspension for 1 year and a day is the appropriate sanction. See People v. Huntzinger, 967 P.2d 160, 162 (Colo. 1998) and People v Hanks, 967 P.2d. 144, 145, 146 (Colo. 1998). Based upon the Hearing Board’s determination that disbarment is the appropriate sanction, the sanction for Claims 1 and 2 are subsumed in Claims 3 and 4.
It is therefore ORDERED:
M. Ashley Albright, attorney registration 14467, is DISBARRED from the practice of law in the State of Colorado effective thirty-one days from the date of this Order and her name shall be stricken from the roll of attorneys licensed to practice law in the state.
Albright is Ordered to comply with all orders and to satisfy all judgments entered against her in the Denver County Court, in the litigation with Klimas, McDermond and Manton, as a condition to any readmission to the practice of law in this state.
Albright is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Albright shall have ten (10) days thereafter to submit a response thereto.
Case Number: 03PDJ076
THE PEOPLE OF THE STATE OF COLORADO
CLYDE E. HOOK
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
April 30, 2004
OPINION AND ORDER IMPOSING SANCTIONS
Opinion by the Hearing Board, consisting of Presiding Officer John M. Lebsack and Hearing Board Members, Paul Willumstad and Robert A. Millman, both members of the Bar. Fredrick J. Kraus, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Craig L. Truman represented the respondent, Clyde E. Hook ("Hook"), who was also present.
SANCTION IMPOSED: ATTORNEY SUSPENDED FOR THREE-YEARS, ALL STAYED PENDING SUCCESSFUL COMPLETION OF A THREE-YEAR PERIOD OF PROBATION WITH CONDITIONS
On October 1, 2003, the People filed a Complaint against Hook. On October 21, 2003, Hook filed his Answer. On November 10, 2003, the People filed a motion for judgment on the pleadings. Hook did not contest that motion. On December 13, 2003, the Presiding Officer entered judgment on the pleadings on respondent’s violation of Colo. R.P.C. 8.4(b), constituting grounds for discipline as set forth in Claims I, II, and III of the original complaint. A sanctions hearing was held on March 19, 2004.
The People and Hook jointly stipulated into evidence Exhibits 1-11, 12(A)-(C), 13(A)-(B), and 14. The Hearing Board heard testimony from the People’s witnesses, Michael H. Gendel, M.D., and John DeJohn. Hook testified on his own behalf. The Hearing Board considered all admissions in the pleadings, the Order granting judgment on the pleadings, the exhibits, and the testimony of the witnesses, and made the following findings of fact, which were established by clear and convincing evidence.
I. FINDINGS OF FACT
1. Clyde Edward Hook has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 9, 1979, and is registered upon the official records of the Supreme Court, Attorney registration no. 09773. Hook maintained a law practice in Colorado during all times relevant to the events in question.
2. On the evening of April 7, 2002, Hook arrived at a neighborhood bar, known as the Pub on Pearl, in a highly intoxicated condition. The bar is located in a residential area of Denver. Upon entering the bar, Hook was refused service after the waitress and the bartender determined that he was too intoxicated. After being offered a non-alcoholic beverage, the respondent went to the back poolroom in the bar for a short time. He returned and began harassing customers. The bartender requested that Hook leave the bar. After a brief verbal exchange, he did.
3. Later in the evening, Hook returned to the bar. He was eventually spotted by the bartender and again was asked to leave. A longer verbal exchange occurred, but Hook left the bar for a second time.
4. Sometime later, Hook returned to the Pub on Pearl looking for his coat. The bartender did not want Hook in the bar, and immediately confronted him, requesting that he leave. After a pointed verbal exchange where profanities were used, Hook left the bar.
5. Hook walked home from the bar, went into his basement, retrieved his loaded .357 revolver from a desk, and drove back to the Pub on Pearl. By the time Hook returned, the bar had closed. The bartender and the waitress were in the front area of the bar cleaning. Hook tapped on the window next to the front door of the bar, attempting to gain the attention of the bartender and the waitress, who he could clearly see. Although the bartender and the waitress saw Hook at the front door, they chose to ignore him.
6. Hook then withdrew his .357 revolver and fired a bullet into the front door. Hook could see the occupants moving in the bar and then fired two or three additional shots into the lock in the front door of the bar. Bullet fragments entered the bar and ricocheted around the the inside of the bar. The bartender and waitress quickly retreated to the rear of the bar and called police. After trying the front door to see if he could gain entrance, Hook left the scene when the door would not open. Police arrived and photographed the scene. Police could not apprehend Hook at that time, since neither the bartender nor the waitress knew Hook’s name or where he lived.
7. The bartender was traumatized by the event and continues to have fears as a result of Hook’s misconduct.
8. Hook did not turn himself in and did not inquire as to the injuries he may have caused his victims. After the incident, he went home, put the gun away, told no one, and stayed away from the Pub on Pearl for fear that he would be recognized by patrons or employees.
9. On August 30, 2002, the waitress was in another bar close to the Pub on Pearl. She saw Hook and recognized him as the person who shot into the Pub on Pearl. She called the police. On September 4, 2002, Hook was arrested. He eventually entered a plea of guilty to the misdemeanor crimes of carrying a concealed weapon (C.R.S. § 18-12-105) and reckless endangerment (C.R.S. § 18-3-208) in the County Court for the City and County of Denver, Colorado. As a result of those convictions, he was sentenced to and completed probation.
10. Claims II and III of the People’s Complaint allege that Hook’s mis-conduct also meets the elements for the felony crimes of illegal discharge of a firearm (C.R.S. § 18-12-107.5(1)) and menacing with a deadly weapon (C.R.S. § 18-3-206) (the crime becomes a felony when a deadly weapon is used). This was admitted in Hook’s answer and judgment on the pleadings was granted as to these counts.
11. At all times material to this case, Hook suffered from alcoholism. Prior to the incident of April 7, 2002 Hook did not seek treatment for this condition. Hook’s alcoholism was principally responsible for the incident of April 7, 2002 and his subsequent failure to take remedial measures. Since the time of his arrest, September 4, 2002, Hook has stopped drinking alcohol. He has undergone the intensive outpatient treatment program for alcohol dependence at Exempla West Pines Hospital. He has maintained monitored, random urinanalysis and other tests to verify his sobriety. After graduation from the intensive outpatient treatment program, Hook continued in the aftercare program at Exempla West Pines, alternating weekly sessions with a program under the Colorado Lawyers Assistance Program. Hook successfully completed the anger management group therapy as required by the terms of his probation in the underlying criminal case. Hook attends five to six Alcoholics Anonymous meetings per week, has a sponsor, and is working on the 12-Step Program. He has also been undergoing weekly individual therapy sessions with Dr. Spencer Friedman, a psychologist for issues including anger management. Hook continues to see his primary care physician and psychiatrist to assure that his medications are appropriate. Additionally, Hook has volunteered work at the Denver Rescue Mission as a kitchen worker since January 2003, and was awarded the Volunteer of the Month by that institution in February 2004. Hook has also done volunteer work for both the Salvation Army and Goodwill Industries as a regular laborer.
12. Dr. Michael H. Gendel performed an independent psychiatric evaluation at the request of the People. He rendered a diagnosis that Hook was alcohol dependent in sustained remission; that he suffered from major depression, moderate severity, in remission; and that he suffered from anxiety disorder NOS with features of generalized anxiety and panic anxiety. He further testified that Hook suffers from problems managing anger. Hook engages in passive-aggressive behavior. The anger problems most clearly manifest themselves when Hook uses alcohol. Dr. Gendel opined that the incident probably would not have occurred were it not for the fact that Hook was intoxicated, but Hook knew the difference between right and wrong at the time of the incident. Dr. Gendel made several recommendations for further treatment and monitoring of Hook’s long-standing alcohol dependence problems. The Board finds those recommendations are reasonable and adopts them for the period of monitoring.
II. CONCLUSIONS OF LAW
AND IMPOSITION OF SANCTIONS
The Hearing Board is very concerned with the serious nature of the misconduct, the discharge of a deadly weapon in a public place, and the potential for serious injury or death to two persons. Only by chance was that potential avoided. The board does not mean to diminish the serious nature of the act, but needs to impose an appropriate sanction for Hook in the context of lawyer discipline. The criminal law system has already addressed the criminal behavior. This proceeding is to determine the appropriate sanction for Hook’s ability to practice law. The board has determined that the goals of lawyer discipline would best be served by imposing a set of quite stringent conditions of probation, but that no period of served suspension is warranted provided Hook complies with all the conditions of probation. The conditions are crafted to protect the public by assuring, to the greatest extent possible, that Hook will maintain sobriety.
Hook violated Colo. R.P.C. 8.4(b) by committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, and C.R.C.P. § 251.5 by committing an act which violates the criminal laws of this State or any other state. Hook was convicted of the misdemeanor crimes of carrying a concealed weapon (C.R.S. § 18-12-105) and reckless endangerment (C.R.S. § 18-3-208). As determined by the order for judgment on the pleadings, his actions constituted the felony crimes of illegal discharge of a firearm (C.R.S. § 18-12-107.5(1)) and menacing (C.R.S. § 18-3-206) (the crime becomes a felony when a deadly weapon is used). The Board is aware for the purpose of imposing sanctions, that Hook’s conduct may be considered felonious although he was not convicted of these crimes. See People v. Brailsford, 933 P.2d 592 (Colo. 1997). The Board concludes that it is not determinative, in evaluating the appropriate sanction under these circumstances, whether Hook’s misconduct constituted felonies.
The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards") are used as guidance to determine the suitable sanction for Hook’s misconduct. ABA Standard 1.1 gives this statement of the purpose of sanctions:
The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.
The comment to this standard points out that punishment is not the goal of sanctions in lawyer discipline cases:
While courts express their views on the purpose of lawyer sanctions somewhat differently, an examination of reported cases reveals surprising accord as to the basic purpose of discipline. As identified by the courts, the primary purpose is to protect the public. Second, the courts cite the need to protect the integrity of the legal system, and to ensure the administration of justice. Another purpose is to deter further unethical conduct and, where appropriate, to rehabilitate the lawyer. A final purpose of imposing sanctions is to educate other lawyers and the public, thereby deterring unethical behavior among all members of the profession. As the courts have noted, while sanctions imposed on a lawyer obviously have a punitive aspect, nonetheless, it is not the purpose to impose such sanctions for punishment. [Emphasis added]
ABA Standard 3.0 requires an analysis of the lawyer’s misconduct, including the duty the lawyer violated, the lawyer’s mental state, and the actual or potential injury caused. Hook intentionally engaged in criminal conduct that caused psychic traumatic injury to the bartender and waitress. His misconduct had the potential of causing serious physical injury or death. It is also significant that Hook was an alcoholic and his misconduct occurred while he was intoxicated.
The applicable ABA Standard is 5.12. It states: "Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice." This is the presumptive level of discipline, and the Board may increase or decrease this presumed sanction based on the existence of aggravating or mitigating factors.
ABA Standard § 9.2 outlines the factors in aggravation. The factors in aggravation that are present include a dishonest or selfish motive, in that after shooting into the bar, Hook made a conscious decision to hide the gun and to avoid the bar so those present at the bar could not identify Hook, id at 9.22(b); and substantial experience in the practice of law, id at 9.22(i). The Board does not place great weight on the relevance of any of the listed aggravating factors to the circumstances of this case.
ABA Standards § 9.3 outline factors in mitigation. In mitigation, there is an absence of a prior disciplinary record, id at 9.32(a); full and free disclosure to the disciplinary authorities and a cooperative attitude toward the proceedings, id at 9.32(e); imposition of other penalties and sanctions, consisting of a criminal sentence, id at 9.32(k); and mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely, id at 9.32(i)
The Board finds that the last of these mitigating factors, chemical dependency, is the most important factor to be considered in determining the appropriate sanction. In this regard, the Board notes this comment to ABA Standards § 9.3:
Issues of physical and mental disability or chemical dependency offered as mitigating factors in disciplinary proceedings require careful analysis. Direct causation between the disability or chemical dependency and the offense must be established. If the offense is proven to be attributable solely to a disability or chemical dependency, it should be given the greatest weight. If it is principally responsible for the offense, it should be given very great weight; and if it is a substantial contributing cause of the offense, it should be given great weight. In all other cases in which the disability or chemical dependency is considered as mitigating, it should be given little weight. A showing of rehabilitation from chemical dependency may be considered but should not, in and of itself, be a justification for a recommendation for discipline less than that which would have been imposed upon an attorney in similar circumstances where a chemical dependency was not present.
Because the Board finds that Hook’s alcoholism was principally responsible for his misconduct, the Board places very great weight on that mitigating factor. Therefore the Board declines to follow the presumptive discipline of a served suspension (that is, without a stay) and decides to order a stayed suspension of three years pending a three-year probation with conditions designed to assure Hook’s continued sobriety. The Board concludes that provided Hook remains sober, he is not a threat to the public. Protection of the public, as noted, is the primary goal of lawyer discipline. The secondary goals, such as deterring unethical conduct and educating other lawyers, would not be served in this case by an actual served suspension. The paramount objective of the sanction in this case is to protect the public by assuring that Hook’s rehabilitation from alcoholism is closely monitored.
The Colorado Supreme Court has stated: "All lawyers must, of course, obey the law, but we consider it particularly serious when a lawyer engages in criminal conduct that involves the knowing infliction of harm on another person or persons. . . ." People v. Martin, 897 P.2d 802, 804 (Colo. 1995). In People v. Brailsford, 933 P.2d 592 (Colo. 1997), the respondent was convicted of third degree sexual assault on his wife, which warranted suspension for one year and one day. In In re Hickox, 57 P.3d 405 (Colo. 2002), the respondent was suspended from the practice of law for six months after having grabbed his estranged wife by her wrist and then twisting her arm behind her back while pushing her up the stairs. The wife stumbled and fell. In the case In re Van Buskirk, 981 P.2d 607 (Colo. 1999), the respondent received a three-year suspension for burglary and third degree assault. In People v. McCaffrey, 925 P.2d 269 (Colo. 1996), the respondent was suspended for three years after having fired a shotgun in a residential area. The respondent was also found to have abandoned clients. In People v. Littlefield, 893 P.2d 772 (Colo. 1995), the respondent pointed a shotgun at his landlord and the landlord’s companion and told them to leave. They got in their car and drove away. Upon their leaving, the respondent fired two shotgun rounds, one of which hit the rear of the landlord’s vehicle. Mr. Littlefield was disbarred.
It is significant to note, however, that none of these cases involved misconduct attributable principally to chemical dependency.
The disability or chemical dependence was principally responsible for the offenses committed by Hook. This requires the panel to apply very great weight to the mitigating factor of chemical dependency. Given the mitigating factor presented, the appropriate sanction is a three year suspension, with strict conditions of probation for a period of three years. All of the suspension should be stayed provided Mr. Hook satisfactorily complies with all the conditions of probation.
1. Clyde Edward Hook is hereby suspended from the practice of law for a period of three years. All three years are stayed pending the successful completion of a three year period of probation, subject to the following conditions:
A. Hook shall not engage in any conduct that results in the imposition of any form of discipline as provided in C.R.C.P. 251.6 or 251.7, an order of immediate suspension as provided in C.R.C.P. 251.8, 251.8.5, or 251.8.6, for three years from the date of this order. Hook shall also comply with all local, state and federal criminal laws for three years from the date of this order.
B. Hook shall comply with all terms and conditions of the sentence imposed in People v. Clyde Edward Hook, court case no. 02F03665-12, County Court City and County of Denver.
C. Hook shall abstain from the use of any alcohol or any non-prescribed controlled substance during the three-year period of probation.
D. Hook will submit to full screen random urinalysis testing one time per week for a period of one year after the effective date of this order. One time per month Hook shall submit to a urine test known as ethylglucuronide, the other monthly tests shall be standard tests. Thereafter, during the second and third years of the probation Hook shall submit to random urine tests two times per month, with one of the tests being the ethylglucuronide test. For urinalysis testing, the respondent shall provide a sufficient urine sample so that a portion may be tested immediately and the remaining amount preserved for future testing in the event the first test is positive. It shall be the responsibility of the respondent to inform the laboratory and collection agency that the urine sample must be split and an amount preserved for future testing in the event of a positive test. Respondent shall bear the cost of any test and any retest necessitated by a positive test result. The results of the testing shall be provided directly to Hook and the Office of Attorney Regulation Counsel by the testing facility. Hook shall specifically advise the Office of Attorney Regulation Counsel of the outcome of the monthly test in his monthly report. The Office of the Attorney Regulation Counsel has the authority, if sufficient technological advances occur, to further monitor Hook through electronic means. Any technological advance for further monitoring shall be paid for by Hook.
E. Hook shall continue with the weekly alcohol aftercare program at Exempla West Pines, or such other facility approved by the Division of Alcohol and Drug Abuse, for a period of one year, or longer if any mental health professional or evaluator at the program determines he shall attend such program more frequently or for a longer period. Hook may substitute every other weekly meeting at Exempla West Pines with attendance at the Colorado Lawyer Assistance Program weekly meeting or similar peer support meeting as approved by the Office of Attorney Regulation Counsel.
F. Hook shall continue with his weekly anger management therapy sessions with Dr. Spencer Friedman, or another psychologist approved by the Office of Attorney Regulation Counsel, for three years or a shorter period of time if recommended by Dr. Friedman.
G. Hook shall attend an Alcohol Anonymous or other equivalent recovery program meeting at least two times per week for the three-year probation. If any mental health professional or evaluator requires that Hook attend such a recovery program more frequently, Hook shall comply with that recommendation.
H. Hook shall file a monthly report with the Office of Attorney Regulation regarding the status of his compliance with the conditions in this order.
I. Hook shall pay the costs of any treatment, testing or reporting.
J. Hook shall attempt with his psychiatrist to change his medications to drugs that do not activate the part of the brain that affects an addictive illness.
K. Hook shall neither use, possess, nor have any contact with any firearm of any type during the period of probation.
2. It is anticipated this probation will end in May 2007. Hook must comply with all requirements of C.R.C.P. 251.7, including the timely filing of an affidavit. Hook acknowledges that he carries the burden to establish that all conditions of probation have been fully and timely met to avoid the remainder of his three year suspension being imposed.
3. Hook’s violation of any above condition of probation may result in the full three year suspension being imposed as provided in C.R.C.P. 251.7 (e).
4. Pursuant to C.R.C.P. 251.32, Hook shall pay all costs and administrative costs in conjunction with this matter. Complainant shall file a Statement of Costs within fifteen (15) days of the date of this Order; Hook shall have ten (10) days thereafter to file a Response.
© 2004 The Colorado Lawyer
and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer
provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2004