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TCL > February 2005 Issue > Disciplinary Opinions

The Colorado Lawyer
February 2005
Vol. 34, No. 2 [Page  115]

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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). These Opinions may be appealed in accordance with C.R.C.P. 251.27.
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, Exhibits, Complaints, and Amended Complaints may not be printed.
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 142 for details. Opinions, including Exhibits, Complaints, and Amended Complaints and summaries, are also available at the Office of Presiding Disciplinary Judge website: http://www.coloradosupremecourt.com/PDJ/pdj.htm; and 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: 03PDJ093

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

ROBERT MELVIN HOHERTZ.

ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

October 13, 2004

DECISION RE: SANCTIONS
PURSUANT TO C.R.C.P. 251.15(b)

The Hearing Board, consisting of Melinda M. Harper, CPA, Henry C. Frey, a member of the bar, and Presiding Disciplinary Judge, William R. Lucero, conducted a sanctions hearing in this matter on August 16, 2004. Fredrick J. Kraus appeared on behalf of the People of the State of Colorado ("Complainant") and tendered a proposed stipulation. Respondent, Robert Melvin Hohertz ("Respondent"), pro se, did not appear. After reviewing the stipulation and Respondent’s disciplinary history, the Presiding Disciplinary Judge ("PDJ") rejected the stipulation. Because the Hearing Board was concerned that Respondent may have failed to appear at the August 16, 2004 hearing due to believing the stipulation would be accepted, it continued the matter until September 7, 2004 to give Respondent the opportunity to appear. After sending notice to Respondent of the continuance and giving him the opportunity to appear, the Hearing Board reconvened the sanctions hearing on September 7, 2004. Fredrick J. Kraus appeared on behalf of Complainant. Respondent did not appear.

The Hearing Board issues the following opinion.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. PROCEDURAL HISTORY AND BACKGROUND

Complainant charged Robert M. Hohertz, Respondent, with neglecting several client matters entrusted to him, violating a client confidence, failing to return fees and other client property after termination, and deceiving a client by saying he had taken steps to correct an error when he had not done so. Respondent did not answer the Complaint, leading to entry of default. After considering Respondent’s conduct, the serious injuries he caused clients, aggravating factors, including prior discipline, and the potential mitigating factor of depression on which no evidence was offered, the Hearing Board concluded Respondent should be disbarred.

On November 20, 2003, Complainant filed a complaint in this matter and sent the Citation and Complaint to Robert Melvin Hohertz, Respondent, via regular and certified mail. On November 21, 2003, Complainant filed Proof of Service. The Proof of Service shows that the Citation and Complaint were sent to Robert Melvin Hohertz, 301 South Weber Street, Colorado Springs, CO 80903. This was the address Respondent provided to the Colorado Supreme Court Office of Attorney Registration as required by C.R.C.P. 227. This certified letter and its contents were returned on November 24, 2003 with the notation "Moved Left No Address." The regular mail copy of the Complaint was not returned.1

Respondent did not file an answer to the Complaint. On February 2, 2004, Complainant filed a motion for default pursuant to C.R.C.P. 251.15(b) and C.R.C.P. 121, Section 1-14. On June 7, 2004, the PDJ granted this motion. By the entry of default under C.R.C.P. 251.15(b), all factual allegations and rule violations set forth in the Complaint are deemed admitted and are therefore established by clear and convincing evidence. People v. Richards, 748 P.2d 341, 347 (Colo. 1987). See also the Complaint, attached as Exhibit 1.

The Complaint enumerates five separate client matters, which are fully detailed. In summary, the Complainant alleges Respondent failed to deliver contracted services, failed to return fees he did not earn, and, in all but one case, failed to surrender fees, papers, and property belonging to clients. Since Respondent failed to appear at the sanctions hearing or otherwise contest Complainant’s recommendation, the Hearing Board heard no evidence from Respondent neither on these issues, nor on the issues of the proper sanction and potential mitigation.

The factual background in this case is fully detailed in the Complaint. The Hearing Board adopts and incorporates by reference the Complaint and the facts and rule violations alleged therein.

II. FINDINGS AND CONCLUSIONS

The Hearing Board considered the Complainant’s argument, the facts established by the entry of default, and exhibits offered and admitted into evidence. These included the Disciplinary Report of Investigation, a true copy of Respondent’s attorney registration, and two letters addressed to the Respondent in Colorado Springs, Colorado. Both letters notified Respondent of the date and place of the sanctions hearing. One of these letters was sent by certified mail to the address Respondent provided to the Attorney Registration Office of the Colorado Supreme Court as required by C.R.C.P. 227.

Based upon the forgoing, the Hearing Board makes the following findings and conclusions by clear and convincing evidence:

(1) Respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on July 13, 1984, and is registered upon the official records of this court, registration no. 13910. He is therefore subject to the jurisdiction of this Court in these disciplinary proceedings.

(2) As set forth in the Complaint in the Heitz, Cantrell, Morris, Becker, and Gancarski matters, the Hearing Board finds by clear and convincing evidence Respondent violated Colo. RPC 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client and shall not neglect an entrusted legal matter). Respondent failed in these matters to act with reasonable diligence and neglected these clients. See People v. Holmes, 951 P.2d 477 (Colo. 1998).

(3) As set forth in the Complaint in the Heitz matter, Claim II, Respondent violated Colo. RPC 1.6(a) (lawyer shall not reveal client confidences) when he disclosed without Heitz’s consent information to her friend about his representation. Client information is broadly interpreted. The comment to Colo. RPC 1.6(a) provides: "The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."

(4) As set forth in the Complaint in the Heitz, Cantrell, and Gancarski matters, Claims III, IV, VI, VII, IX, XII, and XIV, the Hearing Board finds Respondent violated Colo. RPC 1.15(b) (failing to promptly deliver client funds and render accounting after termination) and 1.16(d) (failing to take steps to protect and surrender client papers and property). Holmes, id.

(5) As set forth in the Complaint in the Morris matter, Claim X, the Hearing Board finds Respondent violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) when he told his client he had corrected an inaccurate child support order and was waiting to hear from the court, but this was not true.

III. SANCTIONS

When imposing sanctions for violations as found above, ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") 3.0 (1992) directs the Hearing Board to consider the following factors:

(1) Duty violated;

(2) Lawyer’s mental state;

(3) Actual or potential injury caused by the lawyer’s misconduct;

(4) Existence of aggravating or mitigating factors.

(1) Duty

Respondent violated the duty to professionally represent clients by failing to preserve client property and confidences and to act with diligence and competence.

(2) Mental State

While it is clear Respondent has been diagnosed with clinical depression in the past and the Hearing Board suspects Respondent was probably suffering from depression at the time he represented the clients in this case, there is no evidence to determine what role, if any, depression had on his state of mind. What is undisputed, however, is that Respondent consciously took on these clients and failed to act with diligence in their cases even when they prompted him to do so.

(3) Injury

Respondent’s failure to professionally represent his clients caused them emotional and financial injury. In all but the Morris matter, Respondent took money from his clients, failed to do the work he promised, and caused damage to their business and personal interests. Mr. Gancarski testified defendant’s failure to act on his bankruptcy caused harm in that he could no longer obtain supplies on credit. Further, when Respondent failed to answer their calls, the Gancarskis were forced to complete their bankruptcy without counsel because they did not have funds to hire another lawyer.

Michelle Becker wrote to the Hearing Board to complain of the great injury she suffered because of Respondent’s neglect. While representing Mrs. Becker in a divorce action, Respondent failed to seek a restraining order against her physically abusive husband. Her husband threatened to kill the family dog and ultimately did so. Eventually, Mrs. Becker and her children were forced to leave the state to protect themselves.

(4) Aggravating and Mitigating Factors

The Hearing Board finds the following aggravating factors under ABA Standards 9.22:

1. Prior discipline:

A. Letters of admonition:

  • 1990 (failure to render an accounting)
  • 1992 (neglect of client matter)
  • 1994 (case 1—improper contact with represented party, conflict of interest; case 2—neglect of client matter)
  • 1996 (inappropriate conduct adversely reflecting on fitness to practice law)

B. Suspensions:

  • 1995 (suspension for three months for neglect of client matter, failure to keep client informed, misrepresenting to client status of promised work)
  • 1996 (suspension for three years for neglect of several client matters, failure to keep clients informed, unreasonable fee charges)
  • 1999 (suspension for three months for an incident of domestic violence)
  • 2003 (suspension of a year and a day for neglect of a client matter, failing to keep a client informed, failing to submit an accounting)

2. Pattern of misconduct: As outlined above, Respondent has a history of neglecting client matters, mishandling fees, and misrepresenting whether he completed certain tasks.

3. Multiple offenses: In the instant case, Respondent was charged with multiple claims involving representation of five clients.

4. Vulnerability of victims: Michelle Becker and her children were especially vulnerable due to Respondent’s failure to obtain a restraining order against Mrs. Becker’s abusive husband. Mrs. Becker and her children were forced to leave the state as a result. The Gancarskis were forced to handle their own bankruptcy because they were unable to hire and pay for alternative representation when Respondent neglected their case over an extended period. As a result of Respondent’s neglect, Mr. Gancarski, a house painter, had difficulty purchasing supplies on credit to operate his business.

5. Substantial experience in the law: Respondent has practiced law for approximately 20 years and has ample experience.

6. Indifference to making restitution: Respondent made full restitution in the amount of $1,500 to one client, Margaret Cantrell. Other clients to whom Respondent owes restitution are:

Heitz $2,500
Becker $ 800
Gancarski $1,040

The Hearing Board finds the following mitigating factors under ABA Standards 9.32:

Physical or emotional problems: Respondent’s disciplinary history, which was offered and accepted into evidence, shows chronic severe depression. There is no evidence, however, that the depression "directly caused" the misconduct in this matter. See Commentary, ABA Standards 9.32.

Absent aggravating or mitigating circumstances, disbarment is generally appropriate for failing to act with reasonable diligence. The Hearing Board must consider the following factors set out in ABA Standards 4.1 to decide whether disbarment is appropriate:

(a) Did Respondent abandon the practice and cause injury to a client?

(b) Did Respondent knowingly fail to perform services and causes injury to a client?

(c) Did Respondent engage in a pattern of neglect? See Commentary, ABA Standards 4.41; People v. Williams, 845 P2d 1150 (Colo. 1993). See also People v. Dulaney, 785 P2d 1302 (Colo. 1990).

Here Respondent abandoned clients, failed to perform services he was hired to complete, and engaged in a pattern of neglect. This pattern is likewise consistent with the neglect he has demonstrated in the past as documented in his prior discipline.

Respondent’s conduct in this case warrants serious discipline. His misconduct can be characterized as a pattern of client neglect, as well as a pattern of deceit in an effort to conceal his neglect. His history of continued misconduct neglect demonstrates a danger to the public. Respondent has been given multiple opportunities to address this pattern of neglect and has not done so. Without the long-standing pattern of neglect, the Hearing Board might have considered a suspension. E.g. People v. Paulson, 930 P.2d 582 (Colo. 1997). The aggravating factors, however, substantially outweigh any mitigation in this case.

The Hearing Board therefore concludes disbarment is the appropriate sanction in this case.

IV. ORDER

It is therefore ORDERED:

1. Robert Melvin Hohertz, attorney registration no. 13910, is DISBARRED from the practice of law in the State of Colorado effective 31 days from the date of this Order and his name shall be stricken from the list of attorneys licensed to practice in Colorado.

2. Within 90 days from the date of this Order, Respondent shall pay restitution to the following individuals in these amounts:

Heitz $2,500
Becker $ 800
Gancarski $1,040

3. Respondent shall pay the costs of these proceedings. Complainant shall submit a Statement of Costs within 15 days of the date of this Order. Respondent shall have ten days thereafter to submit a response.

_______

1. Complainant served notice to Respondent of the Motion for Default and both sanctions hearing dates at his registered office address and his home and other addresses. The notices for the Motion for Default were returned as undeliverable. On July 14, 2004, Complainant reached Respondent by cell phone and informed him of the August 16, 2004 hearing date. This Court sent its Order Re: Continuance of Hearing Date by Certified and first-class mail, which were returned. Respondent did not appear on August 17, 2004 nor at the September 7, 2004 reconvened hearing.

 

 

 

Case Number: 04PDJ004

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

SAMUEL J. STOORMAN.

ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

September 28, 2004

OPINION AND ORDER
RE: DISMISSAL PURSUANT TO C.R.C.P. 41(b)(1)

Presiding Officer Douglas D. Piersel and Hearing Board members Marilyn J. David and E. Steven Ezell, both members of the bar, conducted a hearing in this matter on August 30 – September 1, 2004. Kim E. Ikeler appeared on behalf of Complainant ("People/Complainant"). Michael Berger appeared on behalf of Respondent Samuel J. Stoorman ("Respondent"), who also was present.

The Hearing Board considered the testimony of witnesses called by Complainant, exhibits admitted into evidence, and the Parties’ arguments on the Motion to Dismiss under C.R.C.P. 41(b)(1)(involuntary dismissal) made by Respondent at the conclusion of Complainant’s case. The Board concluded Complainant had not met its burden of establishing by clear and convincing evidence that Respondent engaged in fraud or other professional misconduct as charged in the Complaint.

Based on the forgoing, the Hearing Board now issues its decision announced in open court on September 1, 2004 and makes the following written findings:

I. BACKGROUND

On January 21, 2004, the People of the State of Colorado ("Complainant") filed a complaint against Respondent Samuel J. Stoorman charging him with fraud. Complainant charged Respondent with violating Colo. RPC 3.3(a)(1) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 3.1 (bringing or defending a proceeding when there is no legitimate basis for doing so), and 3.4(c) (disobeying an obligation under the rules of a tribunal).

In the summer of 2000, Rhonda Bell ("Bell") hired Respondent Samuel Stoorman to represent her in Bell v. Reivas, an action against her former live-in partner. Bell was suing her former partner because he would not compensate her for an interest in a house she claimed the couple jointly owned. The case was tried in Jefferson County District Court on August 7-9, 2000. Judgment was entered for Bell for $41,442. The attorney fees and costs incurred by Bell exceeded the judgment. Respondent asked Bell to execute an assignment of the judgment to Respondent’s firm, Stoorman and Friednash. Bell executed an assignment but claims to have later revoked it. Reivas then paid to Respondent’s firm the money on the judgment pursuant to the assignment.

On September 21, 2000, Bell filed a Chapter 7 bankruptcy proceeding. The bankruptcy trustee demanded that Respondent turn over the fees the firm had collected in the Bell case. In the summer of 2001, Respondent told the bankruptcy trustee he had perfected an attorney’s lien in Bell’s case before she filed bankruptcy that would avoid the trustee’s claim to the funds. The bankruptcy trustee initiated an adversary proceeding to collect the funds. The adversary proceeding was later settled. The discipline proceeding grew from these facts.

Complainant alleges that sometime in the summer of 2001, Respondent created the attorney’s lien and backdated it to August 7, 2000 and placed it in the Jefferson County District Court case file in Bell v. Reivas. Complainant contends that Respondent relied upon this fraudulent lien to attempt to defeat the claim by the bankruptcy trustee.

Respondent’s version of the events is that he instructed his assistant, Loren Daly ("Daly"), to prepare a letter-lien on Thursday August 4, 2000 to be filed on the morning of trial. Daly testified that she prepared the letter-lien the next day, August 5, 2000. The Bell matter was scheduled for trial in Jefferson County District Court the following Monday, August 7, 2000.

After the trial in the Bell case, Respondent’s firm sent Bell a fee statement dated August 9, 2000 for attorneys fees and costs in the amount of $53,142.78. The letter-lien Respondent says he filed on August 7th contains that same amount as owing. The fee statement contains charges for the trial arising after the letter-lien was supposed to have been filed.

On August 30, 2000, Respondent and the firm’s associate, Ken Buechler, met with Bell to discuss the fees and the firm’s request that she assign the proceeds from the judgment to the firm. Bell executed the assignment on that date, had it notarized, and faxed it to the firm. Bell states she then had a change of heart and faxed a revocation of the assignment the same day. Buechler and Respondent both testified they do not recall ever receiving the revocation. In fact, a few days later Buechler sent a copy of the assignment to the attorney for Reivas with no mention that it’s validity was being questioned. It seems unlikely that Buechler would have done so if he were aware of a purported revocation of the assignment. On September 1, 2000, Respondent and Reavis’ counsel executed a stipulation regarding the payment of the judgment.

On the morning of August 7, 2000, shortly before the trial was to begin, Respondent claimed to have hand-delivered to Jefferson County District Court staff the letter-lien dated August 7, 2000, expecting it would be date-stamped and filed into the court’s record in Bell v. Reivas. In the summer of 2001, the letter-lien was located in the court’s Bell v. Reivas file, stapled to the back of a response submitted by Respondent to a motion in limine. The response to the motion was file-stamped August 7, 2000, but the letter-lien was never file-stamped as a separate document nor was it logged in as a separate document by court staff. Respondent testified at the disciplinary hearing that he did not realize until sometime in 2001 that the lien document was attached to the back of another pleading. Respondent also testified he did not know how this happened.

Jeanine Silence was the Jefferson County District Court clerk who actually placed into the Bell v. Reivas court file the response to which the letter-lien was later found attached. She testified she logged the response into the court computer system but did not review the document and typically would not know if the letter-lien was attached to the document when she received it.

Respondent testified he decided to file an attorney’s lien in Bell’s case because he was concerned, based on statements Bell made to him and Buechler, she may need to file bankruptcy. The letter-lien Respondent purportedly filed in the Bell case on August 7, 2000 contained a caption with the name and address of Jeanne Jagow ("Jagow"), one of many local U.S. Bankruptcy Court trustees. Her name appears on the letter-lien even though she was not yet appointed Trustee. Respondent claims he was given Jagow’s name during a phone call he placed to the Bankruptcy Court before the preparation of the letter-lien. He placed this call to obtain the name of a trustee to whom he could send a copy of the letter-lien before Bell filed for bankruptcy, which he thought prudent. Daly testified Respondent gave her the name and address for Jagow and she was directed to add the information to the letter-lien she prepared on August 5, 2000, which she said she did. Coincidentally, Respondent claims, Jagow was actually appointed the trustee after Bell filed her bankruptcy case on September 21, 2000. Complainant asserts this can’t have been a coincidence and shows the lien was not created until much later.

In November 2000, Jagow wrote to Respondent’s firm demanding turnover of the funds the firm received from the Bell judgment but she received no response. Jagow sent a follow-up letter to Respondent’s firm in June 2001. Respondent quickly replied, explaining he had not received the previous correspondence. He thereafter spoke with Jagow by telephone. He took the position that even if Bell’s assignment to the firm of the Bell judgment could be voided in the bankruptcy case as a preference, the firm had perfected an attorney’s lien pursuant to C.R.S. 12-5-119 by filing a notice with the Jefferson County District Court on August 7, 2000. Respondent followed up with a letter to Jagow citing legal authority in support of his position, but he did not enclose a copy of the letter-lien.

On July 2, 2002, Jagow wrote to Respondent requesting he send her a copy of the August 7, 2000 letter-lien. Respondent sent the document to Jagow on July 3, 2002. On September 17, 2002, Jagow, in her capacity of trustee, brought an adversary proceeding against Respondent. The trustee claimed entitlement under 11 U.S.C. § 549 to avoid the Respondent’s firm’s lien, as well as its receipt of money from the judgment in the Bell v. Reivas case.

Respondent and Jagow settled the adversary proceeding when Respondent’s firm turned over to the trustee $37,000 of the fees collected from the Bell v. Reivas case. On January 17, 2003, Jagow moved to dismiss the adversary proceeding.

II. FINDINGS, ANALYSIS, AND CONCLUSIONS OF LAW

Respondent has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 17, 1982, and is registered upon the official records of the Supreme Court, registration number 11894. He is therefore subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

At the conclusion of Complainant’s case, Respondent made a motion to dismiss the case under C.R.C.P. 41(b)(1). That provision states:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section . . . operates as an adjudication upon the merits.

In American Guarantee and Liability Ins. Company v. King, 2003 WL 22413835 (Colo.App.2003), the Colorado Court of Appeals explained the criteria a court sitting as the trier of fact must apply to dismiss a case pursuant to C.R.C.P. 41(b)(1). The Court stated:

Under C.R.C.P. 41(b)(1), the standard is whether judgment in favor of the defendant is justified on the evidence presented, not whether the plaintiff established a prima facie case, citing Teodonno v. Bachman 158 Colo. 1, 404 P.2d 284 (1965). Thus, the trial court sitting as trier of fact may determine the facts and render judgment against the plaintiff, citing Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966).

In Teodonno, id at 285, the Supreme Court clarified the application of Rule 41(b) when a court sits as the trier of fact. There the Court stated: "If reasonable men could differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of the plaintiffs’ case, then we cannot interfere with the findings and conclusions of the trial court," citing Blair v. Blair, 144 Colo. 442, 357 P.2d 84 (1960); Niernberg v. Gavin, 123 Colo. 1, 224 P.2d 215 (1950).

Complainant’s burden in disciplinary cases against an attorney is proof by clear and convincing evidence. C.R.C.P. 251.18(d). Clear and convincing evidence is proof persuading the trier of fact that contentions a party seeks to establish are highly probable. People v. Distel, 759 P.2d 654 (Colo.1988).

The Hearing Board must therefore decide under C.R.C.P. 41(b)(1) and C.R.C.P. 251.18(d) whether reasonable minds can conclude that Complainant has established the violations of the Code of Professional Conduct with which Respondent is charged at the level of high probability that proof by clear and convincing evidence demands.

The charges against Respondent turn on whether Complainant has established by clear and convincing proof that at a date after learning of the bankruptcy and believed to be in the summer of 2001, Respondent created and backdated the letter-lien and placed it into the Jefferson Count District Court file and thereafter sought to use it to defraud the bankruptcy court. The evidence consists primarily of documents and witness testimony upon which Complainant relies to suggest a compelling inference of Respondent’s fraud and related misconduct. The case law makes clear when assessing the quality of evidence there is no difference between direct and circumstantial evidence. See People v. Bennett, 515 P.2d 466, 469 (Colo. 1973) (same test for measuring sufficiency of evidence applicable whether evidence is direct or circumstantial).

The documentary evidence in this case supports a variety of inferences. The evidence includes: (1) the letter-lien itself, which was not filed stamped on August 7, 2000, the date Respondent claimed to have filed it in the Bell v. Reivas case; (2) the reference on the face of the letter-lien to Jeanne Jagow purportedly prepared the month before Bell filed bankruptcy and Jagow’s appointment; (3) Jagow’s actual appointment as trustee in September 2000; (4) the fact that the letter-lien was stapled to the back of another pleading filed on August 7, 2000; (5) the fact that the letter-lien contains the same amount claimed as owing before trial as the actual billing statement prepared after trial.

Complainant offered the testimony of numerous witnesses, including Respondent’s former law partner, Douglas J. Friednash ("Friednash"), his former associate Buechler, opposing counsel in Bell v. Reivas, Jefferson County District Court staff, Jeanne Jagow, the trustee appointed in Rhonda Bell’s bankruptcy proceedings, and several other witnesses. None of these witnesses could explain through first-hand knowledge how the letter-lien got into the Bell Court file attached to another pleading and lacking a separate date stamp.

No witnesses gave testimony, and no documentary evidence was offered, from which the inference could be drawn by clear and convincing proof to support Complainant’s theory of the events. Three witnesses, however—Friednash, Jagow, and Bell—testified to facts inferring Respondent committed fraud by backdating the letter-lien and placed it into the Court file.

Friednash testified that when he learned about the bankruptcy trustee’s efforts to collect the firm’s fees in the Bell litigation, he did not recall ever hearing about the lien around the time of the trial. When he learned of the trustee’s efforts to recover the fees in the summer of 2001, he went to the Jefferson County District Court, reviewed the file, and found the letter-lien without a separate file stamp but attached to another pleading dated August 7, 2000. Friednash testified when he confronted Respondent, he acted strangely and made vague statements about filing the lien. This confirmed for Friednash his suspicions Respondent had committed fraud and he insisted Respondent remove the lien. Later, Friednash stated, he again went to the Clerk’s office to review the file and could not find the letter-lien.

Jagow testified she became suspicious of the authenticity of the letter-lien when she saw for the first time in the summer of 2001 that the lien was dated August 7, 2000 and showed a caption with her name and address on it. The date on the letter-lien preceded Bell’s bankruptcy filings and her appointment by two months. Jagow stated she had no other evidence that Respondent backdated the lien and later inserted it into the Court file to gain a preference in Bell’s bankruptcy. She also testified that if she had actually received a copy of the lien prior to her appointment she may very well have paid no attention to it and discarded it.

Bell testified she did not know Respondent had filed an attorney’s lien in her case until Jagow told her in the summer of 2001. Thereafter, Bell visited the Jefferson County courthouse, reviewed the file and found the letter-lien, with the reference to Jagow but without a separate file stamp, attached to the response to the motion in limine.

The Hearing Board found the testimony of Loren Daly most persuasive. Daly was the only witness with firsthand knowledge of the events related to the creation of the lien. Daly testified that she was instructed to prepare the letter-lien on August 4, 2000 by Respondent. She prepared the letter-lien on August 5, 2000 according to Respondent’s instructions, which included adding the name and address of Jeanne Jagow. Her handwritten notes made at the time confirm this account of events. She also testified that she was the one who determined the amount of money to claim in the lien by calculating the fees and costs owed to that time and estimating the additional fees and costs to be incurred during the trial. Respondent states that after trial he adjusted the actual billing statement to equal the lien amount. This evidence lends support to Respondent’s version of events about how and when the lien document came into existence. It is not, however, conclusive on the issue of when the letter-lien was filed with the District Court.

Support for the contention that Respondent at least believed he filed the letter-lien sometime during or around the morning of trial is found in a deposit slip with a "Stoorman and Friednash" imprint dated October 24, 2000. On the face of the slip is a deposit dated October 24, 2000 for $32,070.62 referenced to the Bell case with a note, apparently from Respondent to his partner Friednash. The note states: "Doug, FYI. Let’s leave alone till we know outcome of lien and assignment. Your thoughts?" From this it appears Respondent believed that he had a valid lien in place at least as of the date of October 24, 2000.

After considering all testimony and other evidence, the Hearing Board concludes that the inferences subject to being drawn from the evidence offered lead to several explanations for the events at issue here, all of which are speculative and perhaps equally plausible, including the one suggested by Respondent. In these circumstances, Complainant has not met the test of "high probability" required to prove by clear and convincing evidence that Respondent committed fraud or otherwise violated the Rules of Professional Conduct as charged.

Accordingly, the Hearing Board GRANTS Respondent’s Motion under C.R.C.P. 41(b)(1) and dismisses Case No. 04PDJ004 with prejudice.

III. ORDER

For the reasons set forth above, the Hearing Board herein Orders:

(1) Respondent’s Motion for Involuntary Dismissal under C.R.C.P. 41(b)(1) is GRANTED. Case No. 04PDJ004 is dismissed with prejudice.

(2) Costs shall not be assessed against Respondent pursuant to C.R.C.P. 251.32(d)(1).

 

 

Case Number: 99PDJ077
(consolidated with 99PDJ110 and 00PDJ080)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

VINCENT C. TODD.

ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

November 25, 2004

ORDER RE: MOTION TO REVOKE PROBATION
AND MOTION TO REVOKE REINSTATEMENT

This matter is before the Presiding Disciplinary Judge ("PDJ") on complainant’s Motion to Revoke Probation and Motion to Revoke Reinstatement filed December 26, 2002. On January 22, 2003, respondent Vincent Todd ("Todd") filed a Response to complainant’s motions and filed a Motion to Strike Paragraph 29 of complainant’s Motion. On January 24, 2003, complainant filed a Reply. An evidentiary hearing was held on April 21, 2003. James S. Sudler appeared on behalf of complainant. Daniel J. Schendzielos appeared on behalf of Todd, who was also present. At the hearing the testimony of Kathleen Harrington, William Retrum and Todd was presented. Complainant offered exhibits 1 through 5 and Todd offered exhibit A, which were admitted into evidence.

The PDJ took judicial notice of the files in case nos. 99PDJ077, 99PDJ110, 00PDJ080 and 02PDJ096. At the commencement of the evidentiary hearing, the PDJ denied Todd’s Motion to Strike Paragraph 29 of complainant’s Motion. The PDJ, being fully advised in the issues presented, having considered the evidence presented and assessed the credibility of the witnesses, makes the following findings of fact by a preponderance of the evidence and the following conclusions of law.

Findings of Fact

On August 21, 2000, Todd and complainant filed a Stipulation, Agreement and Affidavit Containing the Respondent’s Conditional Admission of Misconduct ("Conditional Admission") in case no. 99PDJ077 (Case No. 99PDJ110 was consolidated into 99PDJ077). The Conditional Admission set forth facts establishing misconduct by Todd which he stipulated violated various provisions of the Colorado Rules of Professional Conduct and specified an agreed upon sanction of "One Year and One Day Suspension, all but Thirty Days Stayed with Conditions During a Two Year Probation." On August 22, 2000 the PDJ entered an order approving the Conditional Admission and imposing the agreed upon sanction. The order provided, in part:

The respondent shall not engage in any conduct which results in the imposition of any form of discipline as provided in C.R.C.P. 251.6 or C.R.C.P. 251.7; an order of immediate suspension as provided in C.R.C.P. 251.8 or C.R.C.P. 251.8(5), or the filing of a Complaint as provided in C.R.C.P. 251.14 during a period of two years after the date of this Order.

The August 22 order made the effective date of the suspension September 22, 2000. Thereafter, Todd requested that the effective date of the suspension be delayed to October 9, 2000. Complainant did not object in the delay of the effective date of the suspension and the PDJ entered an Amended Order specifying the effective date of the suspension to be October 9, 2000.

On November 2, 2000, less than a month after the Amended Order in case no. 99PDJ077 (Consolidated with case no. 99PDJ110) had become effective, complainant filed a new complaint against Todd, case no. 00PDJ080. On August 1, 2001, complainant filed a Motion to Consolidate case no. 99PDJ077 (Consolidated with case no. 99PDJ110) with case no. 00PDJ080. Todd did not object to the motion. The Motion to Consolidate stated, in part:

1. People v. Todd, 00PDJ080 is a second and related case to the initial one, People v. Todd, 99PDJ077.

2. Discovery in the second matter has now occurred and the parties are willing to settle the second matter on terms and conditions, which extend the probationary period in the initial case.

The PDJ granted the Motion to Consolidate on August 1. On August 28, 2001, Todd and complainant filed a second Stipulation, Agreement and Affidavit Containing the Respondent’s Conditional Admission of Misconduct ("Second Conditional Admission"). The Second Conditional Admission contained the parties’ stipulation to a sanction of "Extension of Probation for an Additional One-Year Period."

On September 18, 2001, the PDJ entered an order approving the Second Conditional Admission. The Order stated:

Vincent C. Todd, Attorney Registration No. 12955 is placed on probation for an additional one year period which shall commence upon the completion of the sanction imposed upon respondent in Case No. 99PDJ077 (consolidated with 99PDJ110) to wit, one year and one day period of suspension, with all but thirty days stayed, followed by a two year period of probation.

The two orders approving the two Todd Conditional Admissions had the following effect. On October 9, 2000, Todd was suspended from the practice of law. Upon proper application for reinstatement by Todd pursuant to C.R.C.P. 251.29(b), Todd could be summarily reinstated to the practice of law on November 8, 2000. Upon reinstatement, Todd would be placed upon probation for a period of two years.

On October 30, 2000, Todd filed an Affidavit of Compliance with C.R.C.P. Rule 251.29(b) with complainant. The affidavit stated, in part:

I have fully complied with the Order of suspension and with all of the provisions of C.R.C.P. Rule 251.29.

The affidavit was signed by Todd under oath. On November 9, 2000, complainant filed a Certificate of Satisfactory Compliance pursuant to Rule 251.29(b) with the PDJ attesting that Todd had filed the required affidavit of compliance with C.R.C.P. 251.29. On November 14, 2000, the PDJ issued an order reinstating Todd to the practice of law effective November 14, 2000, upon the terms and conditions of his probation. The order of reinstatement specifically provided that Todd’s two-year period of probation would commence on November 14, 2000. That period of probation would not terminate, absent a subsequent order modifying the term of probation, earlier than November 13, 2002.

On November 6, 2002, complainant filed a new Complaint against Todd alleging various violations of the Colorado Rules of Professional Conduct, case no. 02PDJ096. That case remains pending.

The Motion to Revoke Probation and Motion to Revoke Order of Reinstatement was filed by complainant on December 26, 2002. The Motion seeks to revoke the probation and impose the remainder of the one-year and one day period of suspension based upon the fact that Todd allegedly violated a term of the probation by engaging in conduct during the period of probation which resulted in the filing of a formal Complaint pursuant to C.R.C.P. 251.14. The Complaint filed in case no. 02PDJ096 is incorporated into the Motion. The Motion also seeks an order revoking the reinstatement order dated November 14, 2000.

Following Todd’s suspension from the practice of law, he was required to notify opposing counsel in pending litigation of the suspension. C.R.C.P. 251.28(c). Todd failed to notify Kathleen Harrington of the suspension order. Todd had filed two cases against Harrington’s client prior to the effective date of the suspension order. In one of those cases Harrington had entered her appearance but not the other. Todd did not notify Harrington in either case that he would be suspended from the practice of law. Notwithstanding that failure, Todd filed an affidavit with the Office of Attorney Regulation Counsel on October 18, 2000, stating under oath that he had notified all opposing counsel in pending matters of the order of suspension and his inability to act as an attorney after the effective date of the order. A similar affidavit was filed with the PDJ on October 30, 2000.

The affidavit which Todd filed with the Office of Attorney Regulation Counsel provided a list of all pending matters in which he served as counsel. The list did not disclose his participation in the two cases against Harrington’s client. Todd admitted that he erroneously failed to include the Harrington cases on the list or to notify Harrington of the order in conformity with the requirements of C.R.C.P. 251.29(c). Todd testified that Harrington knew of the order of suspension from other sources, however, and that neither she nor her client were adversely impacted by his failure to disclose.

Based upon Todd’s incomplete affidavits, an order reinstating him to the practice of law was entered on November 14, 2000. Todd did not correct the representations set forth in either affidavit even after he was fully aware that they were not accurate.

The Complaint filed on November 6, 2002, in case no. 02PDJ096 alleges six claims of alleged attorney misconduct. The allegations set forth in that complaint arise out of Todd’s representation of a single client in a criminal matter.

Todd’s client was charged with harassment in the Edgewater Municipal Court. Prior to Todd’s involvement in the matter, the client pled guilty to the charge. During the same hearing in which the client entered the guilty plea, the court issued a temporary restraining order against the client. Thereafter, the client contacted the person which the restraining order precluded him from contacting and he was charged with violating the restraining order. Todd was retained, filed a motion in the violation of the restraining order criminal case attacking the validity of the restraining order and filed a declaratory judgment action in the Jefferson County District Court seeking to attack the action of the Edgewater Municipal Court in issuing the restraining order. Todd also filed an appeal of the Edgewater Municipal Court decision accepting the client’s guilty plea and issuing the restraining order.

A Motion to Dismiss was filed in the declaratory judgment action. Todd did not respond to the motion. The Jefferson County District Court dismissed the complaint and ruled "that, pursuant to C.R.S. § 13-17-102(4) it finds the bringing of this action lacked substantial justification." The Jefferson County District Court awarded attorney fees against both the client and Todd.

In the appeal of the guilty plea of the client, Todd failed to timely post costs for the appeal, failed to timely file an opening brief and after being advised that the case would be dismissed untimely sought an extension of time to file the opening brief. The extension of time was denied and the appeal was dismissed.

Conclusions of Law

The Motion to Revoke Probation is premised upon the filing of case no. 02PDJ096. Todd’s disciplinary probation order specifically provided:

The respondent shall not engage in any conduct which results in the imposition of any form of discipline as provided in C.R.C.P. 251.6 or C.R.C.P. 251.7; an order of immediate suspension as provided in C.R.C.P. 251.8 or C.R.C.P. 251.8(5), or the filing of a Complaint as provided in C.R.C.P. 251.14 during a period of two years after the date of this Order.

Complainant contend that because the filing of a disciplinary complaint was authorized by the Attorney Regulation Committee during the period of Todd’s probationary status, probation must be revoked. The analysis is not that direct.

The filing of a disciplinary Complaint under C.R.C.P. 251.14 is authorized if the Attorney Regulation Committee finds there is reasonable cause to believe grounds for discipline exist. C.R.C.P. 251.12. The standard of review by the Attorney Regulation Committee in authorizing the filing of a formal Complaint is reasonable grounds to believe grounds for discipline exist. Revocation of probation requires a finding by preponderance of the evidence. C.R.C.P. 251.7(c). Thus a grant of authority by the Attorney Regulation Committee to file a Complaint does not satisfy the burden of proof necessary to revoke probation. To interpret the condition of probation at issue in this case as requested by complainant would effectively allow the revocation of probation on evidentiary proof based on reasonable cause to believe rather than by a preponderance of the evidence as specifically set forth in C.R.C.P. 251.7(c).

The evidence presented at the evidentiary hearing, however, does meet the preponderance of evidence test for at least two of the six claims advanced in case no. 02PDJ096. The evidence presented established by a preponderance that Todd neglected the appeal of the Edgewater Municipal Court matter to the point it was dismissed for failure to prosecute. In addition, Todd admitted that he failed to list the declaratory judgment action on the list of pending cases attached to his affidavit filed under C.R.C.P. 251.28(d) and that he did not notify Harrington of his suspension from the practice of law as required by C.R.C.P. 251.28(c). See Claims Two and Claim Five.

The evidence presented at the revocation hearing established by a preponderance of the evidence that at least two of the six claims set forth in the complaint in case no. 02PDJ096 were supported, Todd has violated a condition of probation imposed upon him in case no. 99PDJ077(consolidated with 99PDJ110 and 00PDJ080).

The Motion filed by complainant also requests that the PDJ vacate the Order of Reinstatement issued November 14, 2000, on the grounds that the affidavit filed by Todd was false. Reinstatement after suspension for less than one year or less is governed by C.R.C.P. 251.29(b). Reinstatement is premised upon the submission of an affidavit by the respondent lawyer. Of necessity, the information set forth in the affidavit is presumed to be both complete and accurate. In this case it was not and reinstatement should not have been granted.

Order

It is therefore ORDERED:

1. The stay imposed on the imposition of ELEVEN MONTHS AND ONE DAY of the one year and one day sanction ordered in case no. 99PDJ077 (Consolidated with 99PDJ110) and later consolidated with 00PDJ080, is vacated.

2. The Order of Reinstatement issued November 14, 2000, is vacated effective thirty-one days from the date of this order.

3. VINCENT C. TODD will be SUSPENDED from the practice of law, commencing thirty-one days from the issuance of this order for a period of ELEVEN MONTHS AND ONE DAY.

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