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TCL > September 2004 Issue > Disciplinary Opinions

The Colorado Lawyer
September 2004
Vol. 33, No. 9 [Page  149]

© 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, William R. Lucero, 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 153 for details. Opinions, including Exhibits, and summaries are also available on LexisNexis
TM 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: 03PDJ066

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

WARD F. LINDEMANN.

ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

June 2, 2004

REPORT, DECISION, AND IMPOSITION OF SANCTION

The Presiding Disciplinary Judge, William R. Lucero, and Hearing Board members Helen R. Stone and Paul J. Willumstad, both members of the bar, issue the following opinion.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. BACKGROUND

On September 18, 2003, the People of the State of Colorado ("People"/ "Petitioner") filed a complaint in this matter and sent the Citation and Complaint to Ward F. Lindemann ("Lindemann"/"Respondent") via regular and certified mail. On October 20, 2003, the People filed Proof of Service. The Proof of Service shows that the Citation and the Complaint were sent to Lindemann’s registered business address (there are no other known addresses for Lindemann) and that the certified copy of the Complaint was delivered on September 19, 2003, at 1:28 p.m. The regular mail copy of the Complaint was not returned. Lindemann failed to file an answer or otherwise respond to the complaint.

The claims against Lindemann1 grew out of complaints from three different clients for whom it was alleged Respondent failed to deliver contracted services in a timely and satisfactory manner, failed to return calls and keep his clients informed of the status of their cases, and engaged in dishonest conduct by knowingly delaying the return of or converting property belonging to clients.

In the first matter, Gregory, the Complaint alleged that Lindemann failed to provide legal services for an action against Gregory’s former husband for which Lindemann had accepted a retainer. After the lapse of many months, when it became apparent that Lindemann either would or could not deliver the contracted services, he was no longer employed and unable to refund to Gregory the retainer.

In the second matter, Mahan, Lindemann represented Raymond Mayhan in a marriage dissolution action in which the final orders were entered on December 6, 2000. Subsequently Mr. Mahan and his former wife litigated disputes arising out of court orders connected with the divorce, which included a court-ordered payment by Mahan to his ex-wife and the processing of a domestic relations order ("DRO") related to Mrs. Mahan’s interest in a public school retirement system. Lindemann did not prepare and file the DRO until December 2001. He filed the order without opposing counsel’s signature and misrepresented the circumstances under which the court could enter the order. Lindemann also did not return to his client until June 2003 a pearl necklace that opposing counsel provided in April or May 2002 as part of the property distribution from the divorce action.

In the third matter, Andreen hired Lindemann to represent him when he was notified by a County Child Support Enforcement Unit that his court-ordered child payment was still owing. According to the client, the payment was made but not credited. Andreen gave Lindemann a retainer. Lindemann failed to notify Andreen of a scheduled hearing and the legal consequences of Andreen’s failure to appear at the hearing. Lindemann also failed to notify Andreen that Lindemann had withdrawn opposition to an amount in arrears.

On November 10, 2003, the People moved for default on the claims set forth in the complaint. The People sent a copy of the Motion for Default to Lindemann at his registered business address via certified mail. Lindemann did not respond.

On December 19, 2003, then Presiding Disciplinary Judge Roger L. Keithley entered an order of default on the Complaint, a copy of which was sent to Lindemann by first class mail at his registered business address. All factual allegations set forth in the Complaint are deemed admitted by the entry of default 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). See also the Complaint attached hereto as Exhibit 1.

On January 2, 2003, the People sent a Confirmation of Sanctions hearing to Lindemann by certified and regular mail at his business address. The confirmation stated that the sanctions hearing was scheduled for April 6, 2003 at 9:00 a.m. for one- half day.

A sanctions hearing pursuant to C.R.C.P. 251.15(b) was held on April 6, 2004, before the hearing board. James C. Coyle, Deputy Regulation Counsel, represented the People. Lindemann did not appear in person or by counsel.

II. FINDINGS AND CONCLUSIONS

The Hearing Board considered the People’s argument, the facts established by the entry of default, and three exhibits offered by the People and admitted into evidence: the Disciplinary Report of Investigation of this matter, a true copy of the Respondent’s attorney registration, and a letter addressed to the Respondent at the address listed with his attorney registration confirming the date and place of the sanctions hearing. Based upon the forgoing the Hearing Board made the following findings and conclusions, which were established by clear and convincing evidence.

Ward F. Lindemann has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on April 27, 1990, and is registered upon the official records of the Supreme Court, registration number 19292. He is therefore 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 1.3

A lawyer shall act with reasonable diligence and promptness
in representing a client and shall not neglect a legal matter
entrusted to that lawyer.

In the Gregory matter, Respondent failed to timely prepare and file Ms. Gregory’s pleadings, failed to communicate adequately with her between September 2001 and June 2002, failed to search for, locate and serve Ms. Gregory’s ex-husband, failed to take any further action or communicate with her on the case after June 2002, and failed to notify her of his change of office location and closing.

In the Mahan matter, Respondent failed to timely prepare and file the domestic relations order and failed to account for or timely return the pearl necklace.

In the Andreen matter, Respondent failed to advise his client of the August 9, 2001 hearing date.

This conduct violated Colo. RPC 1.3.

Colo. RPC 1.4(a)

A lawyer shall keep a client reasonably informed
about the status of a matter and promptly comply
with reasonable requests for information.

In the Gregory matter, Respondent failed to respond to Ms. Gregory’s reasonable requests for information, failed to inform her of his lack of diligence on her case, failed to notify her of his effective termination of representation and his office move and/or closing, and failed to maintain minimum communications with her through the course of the representation.

In the Mahan matter, Respondent failed to respond to the client’s reasonable requests for information between January and July 2001, as well as from July 2001 through December 2001, failed to inform Mahan of the receipt of pearl necklace, and failed to maintain minimum communications with Mahan throughout the course of the representation.

In the Andreen matter, Respondent failed to keep the client informed about the hearing date on August 9, 2001 and failed to inform the client of the potential consequences of his failure to appear at the hearing.

This conduct violated Colo. RPC 1.4(a).

Colo. RPC 1.16(d)

Upon termination, a lawyer shall take steps
to protect a client’s interest and surrender papers
and property to the client.

In the Gregory matter, Respondent effectively terminated the attorney-client relationship by failing to communicate with the client despite the client’s numerous attempts to communicate with Respondent and by failing to provide the services for which the client contracted. The Respondent failed to return the client’s files and papers and any portion of the $1,200 retainer, not all of which had been earned.

This conduct violated Colo. RPC 1.4(a).

Colo. RPC 8.4(c)

A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit or misrepresentation (knowing conversion).

In the Gregory matter, Respondent exercised dominion or ownership over funds held in trust on behalf of the client. Respondent did not earn at least $800 of the $1,200 retainer paid by the client. The client did not consent to Respondent’s use of these funds for any purposes other than on the client’s behalf. The Respondent thus converted or misappropriated funds belonging to the client.

This conduct violated Colo. RPC 8.4(c).

Colo. RPC 1.5(b)

A lawyer shall provide written communication

of the basis or rate of the fee.

Colo. RPC 1.5(b) provides that, where a lawyer has not regularly represented a particular client, the basis or rate of the fee shall be communicated to the client, in writing before or within a reasonable time after commencing representation. In the Mahan matter, Respondent had not previously represented Mr. Mahan. Yet the Respondent did not prepare a written fee agreement for the client, nor did he prepare any other writing that outlined the basis or rate of the fee before or within a reasonable time after commending representation.

The Hearing Board finds that all the foregoing instances of misconduct caused injury or potential injury to Lindemann’s clients.

This conduct violated Colo. RPC 1.5(b).

III. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. ABA Standard 4.11 provides that disbarment is generally appropriate when a lawyer knowingly converts client property and, through his or her misconduct, causes injury or potential injury to a client.

ABA Standard 4.41 provides that disbarment is generally appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client, or engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.

Under prior precedent, the Supreme Court held that the presumed sanction for knowing conversion of client funds is disbarment. (Emphasis added) See People v. Varallo, 913 P.2d 1 (Colo. 1996). Standing alone, however, Lindemann’s conversion of client funds in the Gregory matter might not warrant disbarment. See In the Matter of Fischer, 2004 WL 1041598 (Colo.). In Fischer, the Court stated, "Even ‘knowing conversions’ of funds entrusted to attorneys do not always present the same need for sanctions." Id. at *5. Among the factors considered in Fischer, the Court weighed Respondent’s expressions of remorse, cooperation with the Office of Attorney Regulation, payment of restitution, and personally accepting responsibility for any losses the client suffered.

Respondent did not participate in this proceeding. He also did not pay restitution or present evidence of remorse in this proceeding as he did in the previous case that resulted in the suspension of a year and a day. Further, the timing of the events leading to the present grievance appears to be part and parcel of the events that resulted in the previous discipline.

In his client dealings, Lindemann has demonstrated a pattern of neglect and failure to communicate in the three matters charged in the instant complaint consistent with the five client problems underlying the discipline in the 2002 case. In both cases, Respondent’s conduct demonstrates that he effectively abandoned his clients and responsibilities by failing to perform specific tasks his clients assigned him. Respondent’s withholding of the portion of a retainer he did not earn might not, standing alone, warrant disbarment. However, the totality of facts in the three matters before this Hearing Board taken with the five client problems from the earlier case demonstrates that Respondent has deserted, rejected or relinquished his professional responsibilities owed to the individuals who paid for his services and relied on him. E.g. People v. Murray, 887 P.2d 1016, 1021 (Colo. 1994) and People v. Dulaney, 785 P.2d 1302, 1306 (Colo.1990).

The Hearing Board considered aggravating and mitigating factors pursuant to ABA Standards 9.22–9.32, respectively, in arriving at the appropriate sanction. In aggravation: Lindemann has:

• A prior disciplinary record involving a suspension for one year and one day for similar conduct, id. at 9.22(a). Nevertheless, the Hearing Board did not consider Lindemann’s prior record because the conduct with which he is now charged appears to be part of the same episode during the same timeframe during which he was previously charged and for which he received a year and a day suspension.

• A dishonest or selfish motive, id. at 9.22(b) in that he has not made restitution of the part of the retainer he received in the Gregory matter which he acknowledges he did not earn. However, there is insufficient evidence to find that Respondent acted with the intent to avoid paying restitution. Rather, the evidence suggests that Respondent may have had the ability to pay rather than he refused to pay.

• A pattern of misconduct, id. at 9.22(c) and multiple offenses, id. at 9.22(d), in all client incidents in which he failed to communicate with clients promptly and effectively and failed to handle matters diligently. While Respondent’s prior discipline for similar conduct was not considered pursuant to id at 9.22(a), it demonstrates a clear pattern of misconduct under id at 9.22(c).

In mitigation, though no evidence was presented on this issue, the complaint indicated that after an extended delay Lindemann returned the pearl necklace to his client Mahan. While Lindemann was not present at the hearing to present any other evidence of mitigation, in response to an inquiry from the Hearing Board concerning the Respondent’s physical and/or mental condition, Regulation Counsel indicated that Respondent claimed he suffered from sleep apnea and/or depression as late as September 25, 2002, the date of his prior discipline.

Notwithstanding this, Respondent knowingly took a retainer from his client Ms. Gregory but failed to provide the services for which the retainer was paid and to return the unearned portion of the retainer to his client. Consequently, Respondent converted these funds in violation of Colo. RPC 8.4(c). Respondent also failed to turn over in a timely fashion property belonging to his client Mr. Mahan. Finally, Respondent failed to keep his clients properly informed. The Hearing Board finds that this conduct is part of a pattern and practice of dishonesty, abandonment and neglect in violation of ABA Standard 4.41.

Since the Respondent has failed to participate in this proceeding or otherwise offer some mitigation or explanation for the pattern of abandonment, including the conversion discussed above, the Hearing Board has little choice but to recommend disbarment based upon the record presented.

IV. ORDER

It is therefore ORDERED:

1. Respondent, Ward F. Lindemann, attorney registration 19292, is DISBARRED from the practice of law effective thirty-one days from the date of this Order.

2. Ward F. Lindemann shall pay the costs of these proceedings. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days thereafter to submit a response thereto.

3. Lindemann is further ordered to reimburse Ms. Gregory the sum of $800, plus statutory interest from January 1, 2003, within thirty (30) days of the date of this Order. If the Colorado Attorney Fund for Client Protection has already paid restitution to Ms. Gregory, the Respondent shall reimburse said fund $800, plus statutory costs to the fund within thirty (30) days of this Order.

_______

1. The three client incidents which form the basis for the charges against Respondent in the instant case occurred during the same general time period, 1999–2002, as the client problems charged in the earlier case, People v. Lindemann, 02PDJ073 (2002). In the 2002 proceeding, involving charges related to five separate client incidents, Respondent cooperated with the Office of Regulatory Counsel and entered into a Conditional Admission of Misconduct, filed September 6, 2002, in which Respondent agreed to suspension for a year and a day. The court assumes that had the Office of Regulation Counsel been aware of the client issues charged in the current complaint, it may not have entered into the 2002 Conditional Admission of Conduct, or it may have demanded a greater sanction than suspension for a year a day. In this case, OARC is asking that Respondent be disbarred.

 

 

Case Number: 03PDJ073

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

BRIAN M. SMITH

ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

June 4, 2004

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by the Hearing Board, consisting of Presiding Disciplinary Judge William R. Lucero and Hearing Board Members, Lisa Hogan and Mickey W. Smith, both members of the Bar.

SANCTION IMPOSED: ATTORNEY SUSPENDED
FOR ONE YEAR AND ONE DAY

I. BACKGROUND

On September 25, 2003, the Office of Attorney Regulation Counsel (the "People" or "Complainant") filed a Complaint in this matter. The Citation and Complaint were sent to Respondent Brian Mark Smith ("Smith" or "Respondent") via certified and regular mail at his last known business and home addresses. On October 9, 2003, the People filed a Proof of Service of the Citation showing that Smith received the Citation and Complaint on September 26, 2003. Smith did not file an answer to the complaint or otherwise respond.

On November 5, 2003 the People moved for default on the claims set forth in the Complaint. On November 6, 2003, the Presiding Disciplinary Judge ("PDJ") entered an order of default on the complaint. All factual allegations set forth in the Complaint were therefore deemed admitted and all rule violations set for 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 was held on April 5, 2004. Fredrick J. Kraus of the Office of Attorney Regulation Counsel, appeared on behalf of the People. Smith, did not appear either in person or by counsel.

Before his death, Mr. Jess Waggoner, brother of Pearl Morris, hired Respondent to probate the estate of his sister, Pearl Morris. After Mr. Waggoner’s death, Respondent continued to work on the estate of Pearl Morris at the request of Hope Waggoner, wife of Jess Waggoner. Respondent also represented Mrs. Hope Waggoner in the estate of her late husband, Jeff Waggoner. Thus, Respondent represented Pearl Morris in probating the estate of Jeff Waggoner, her husband, and tax matters concerning, deceased sister in law, Pearl Morris.

Respondent hired an accountant to file an estate tax return on the Jess Waggoner estate and filed a return for the same in 2000. Respondent offered Mr. Jess W. Waggoner’s will for probate in Jefferson County, Colorado, in case number 99-PR-0685. Hope W. Waggoner was appointed as the personal representative of the estate of Jess W. Waggoner shortly after Mr. Waggoner’s will was offered for probate.

In June 2002, Mrs. Waggoner received notice from the Internal Revenue Service of a tax delinquency for the estate of Pearl Morris estate and that a return had not been filed for the Jess Waggoner estate for the period ending on 12/31/00. Mrs. Waggoner turned these tax matters over to the Respondent for resolution. The Respondent agreed to handle both. However, when Hope Waggoner did not hear back from the Respondent on the progress of these matters, she placed several calls to him seeking information. Respondent returned none of these calls.

More than three years after Mrs. Waggoner hired Respondent, the Office of Attorney Regulation Counsel ("OARC") made several attempts to get information from Respondent about the status of the Jess Waggoner and Pearl Morris estates. When the Respondent did not respond to these requests, OARC initiated an investigation pursuant to the Colorado Rules of Civil Procedure 251.9 and gave respondent twenty days to respond. He did not do so within that time period, March 14, 2003. The People filed a complaint in this matter in September 2003.

The Hearing Board considered the People’s argument, the facts established by the entry of default, and Exhibits 1 and 2 offered by the People and admitted into evidence, including the testimony of R. Sterling Ambler, an attorney, testified on behalf of the People. After considering the evidence and the People’s arguments, the Hearing Board made the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

Smith has taken and subscribed to the oath of admission, was admitted to the Bar of the Supreme Court on May 21, 1986, and is registered upon the official records of this Court, registration number 15658. Accordingly, Smith is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

Smith has not participated in these proceedings though proper notice of this disciplinary proceeding has been duly served upon him according to the applicable rules. C.R.C.P. 251.14(b) and C.R.C.P. 251.15(b). All factual allegations set forth in the Complaint deemed admitted by the entry of default and are therefore established by clear and convincing evidence. See the Complaint attached hereto as Exhibit 1.

R. Sterling Ambler testified at the hearing that Mrs. Waggoner hired him to represent her and to retrieve the files from Respondent and complete the work on the Waggoner and Morris estates that Respondent neglected. Mr. Ambler testified at the hearing that he charged her $2,000.00 in attorney’s fees. Mr. Ambler stated that these fees were charged when he was forced to seek sanctions against Respondent for not returning Mrs. Waggoner’s files concerning her husband’s and Pearl Morris’ estates as requested.

III. CONCLUSIONS OF LAW

The facts established by the entry of default prove the following misconduct:

Colo. RPC 1.3

A lawyer shall act with reasonable diligence and promptness
in representing a client and shall not neglect a legal matter
entrusted to that lawyer.

The Hearing Board finds Respondent neglected the legal matters entrusted to him in violation of Colo. R.P.C. 1.3 by failing to complete the probate of the deceased husband’s estate, and by failing to resolve tax deficiencies with the Internal Revenue Service in the Pearl Morris’ estate. The facts established by the entry of default demonstrate that Respondent effectively deserted and/or rejected his client. Such misconduct constitutes abandonment. Smith effectively terminated the attorney-client relationship when he failed to communicate with his client form June of 1999 to September of 2002 and failed to accomplish specific professional tasks for the client: address the tax deficiency of the Pearl Morris estate and probate the estate of Jess Waggoner.

Colo. R.P.C. 1.4(a)

A lawyer shall keep a client reasonably informed
about the status of a matter and promptly comply with
reasonable requests for information.

From June 2002 to June 2003, Respondent failed to maintain meaningful communications with his client Hope Waggoner. Respondent failed to keep Mrs. Waggoner reasonably informed about the status of the case and he failed to comply promptly with reasonable requests for information from her. Respondent did not return his client’s telephone calls nor did he respond to written requests for information. He also failed on numerous occasions between January to June 2003 to respond to verbal and requests from OARC for information about the Waggoner and Morris estates. This conduct was in violation of Colo. R.P.C. 1.4(a).

Colo. R.P.C. 1.16(d)

Upon termination, a lawyer shall take steps
to protect a client’s interests and surrender
papers and property to the client.

After Respondent abandoned his client and was terminated by his client, he should have followed the requirements of Colo. R.P.C. 1.16(d). Respondent should have taken reasonable steps to protect the client’s interest upon termination and surrendered papers and property to which the client was entitled. Respondent did not do so at the request of Mrs. Waggoner and R. Sterling Ambler, the attorney she hired when Respondent failed to complete the tasks he was hired to perform. He only turned over the requested files when the district court ordered him to do so. Mrs. Waggoner paid new counsel, Mr. Ambler $2,000 to accomplish this task. Such conduct was in violation of Colo. R.P.C. 1.16(d).

Colo. R.P.C. 8.1(b)

A lawyer in connection with a disciplinary matter
shall not knowingly fail to respond reasonably to
a lawful demand for information from a disciplinary authority,
except if the information is protected by Colo. R.P.C. 1.6
or there is a good faith challenge to the demand.

C.R.C.P. 251.5(d)

An attorney shall respond to a request by the regulation
counselfor information necessary to carry out the
performance of regulation counsel’s duty.

In September 2002, over three years after Mrs. Waggoner hired Respondent, OARC contacted Respondent and requested information about the status of the Jess Waggoner and Pearl Morris estates. Respondent promised a detailed report on both estates to OARC, but he did not provide one. OARC placed additional phone calls to Respondent, but Respondent did not return them..

In January 2003, the Office of Attorney Regulation Counsel notified the Respondent in writing that it was starting a formal investigation pursuant to C.R.C.P. 251.9 and gave him 20 days to respond. Respondent received the letter, but made no response. OARC made several more attempts to secure a written response from Respondent. Respondent promised to send a response, but he never did so.

Further, after Attorney Regulation Counsel notified Respondent that it was conducting an investigation, he refused to provide certain information and files to Attorney Regulation Counsel for examination. Such conduct was in violation of Colo. R.P.C. 8.1(b) and C.R.C.P. 251.5(b).

IV. IMPOSITION OF SANCTIONS

Under the ABA Standards for Imposing Lawyer Sanctions (1991 and Supp. 1992), neglect arising to the level of abandonment warrants a sanction ranging from suspension to disbarment, depending on the facts of the case. See ABA Standard § 4.42(a) (providing that "[s]uspension is generally appropriate when (a) a lawyer knowing fails to perform services for a client and causes injury or potential injury to the client"); ABA Standard § 4.41(a) (providing that "[d]isbarment is generally appropriate when a lawyer abandons the practice and causes serious or potential serious injury to a client"). Colorado case law is consistent with this range of sanction. In this case, the Hearing Board finds that suspension rather than disbarment is appropriate.

In People v. Paulson, 930 P.2d 582 (Colo. 1997) the attorney was suspended from the practice of law for one year and one day for neglect of client matters and failure to communicate with his clients. In People v. Odom, 914 P.2d 342 (Colo. 1996), the attorney was suspended for three years for failing to keep one client informed regarding an offer by the estranged spouse to increase child support and failing to keep the client informed regarding Social Security benefits, misconduct which resulted in harm to the client. In a separate case, the attorney failed to perform requested services in a criminal matter, failed to refund a retainer, and abandoned the client. The attorney was suspended for three years. In In re McKee, 980 P.2d 506 (Colo. 1999), a reciprocal attorney discipline proceeding, the Colorado Supreme Court upheld the two year suspension imposed by another court for the attorney’s failure to communicate with five clients. In this case, Smith’s misconduct resulted in additional interest and penalties accruing to the Internal Revenue Service on the Pearl Morris estate. His failing to turn over papers of the client necessitated the filing of an action against him costing the client an additional $2,000 in attorney’s fees.

Pursuant to ABA Standards § 9.22 and § 9.32, aggravating and mitigating factors are considered in arriving at the appropriate sanction. Because Smith did not participate in these proceedings, there was no evidence of mitigation. The People informed the Hearing Board, however, that Smith has had no prior disciplinary history, which is considered a mitigating factor pursuant to ABA Standards § 9.32(a). In aggravation, Smith engaged in a pattern of misconduct, See ABA Standard § 9.22(c), and had substantial experience in the practice of law, See ABA Standard § 9.22(i).

Given the mitigating and aggravating factors presented, a one year and one day suspension is warranted in this default proceeding; additionally, restitution to Hope Waggoner for the attorney’s fees she incurred in the sum of $2,000 is appropriate.

IV. ORDER

It is therefore ORDERED:

a. Brian Mark Smith, attorney registration number 15658, is SUSPENDED from the practice of law for a period of one year and one day, effective thirty-one (31) days from the date of this Order.

b. In the event Smith wishes to resume the practice of law in the State of Colorado, he must undergo formal reinstatement proceedings pursuant to C.R.C.P. 251.29(c) and (d).

c. Smith is ordered to pay restitution to his client in the sum of $2,000.00, prior to reinstatement.

d. Smith 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. Respondent shall have ten (10) days thereafter to submit a response thereto.

 

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