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TCL > April 2005 Issue > Disciplinary Opinions

The Colorado Lawyer
April 2005
Vol. 34, No. 4 [Page  141]

© 2005 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). 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 154 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: 03PDJ094
(consolidated with 03PDJ106, 04PDJ005, and 04PDJ070)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

TAMATHA ANN BLASÉ.

January 10, 2005

REPORT, DECISION AND IMPOSITION OF SANCTION

On November 10, 2004, a Hearing Board consisting of E. Steven Ezell and Sisto J. Mazza, both members of the bar and William R. Lucero, Presiding Disciplinary Judge ("PDJ") conducted a sanctions hearing pursuant to C.R.C.P. 251.15(b). Kim E. Ikeler appeared on behalf of the People, Tamatha Ann Blasé, Respondent, was not present. The Hearing Board issues the following opinion:

SANCTION IMPOSED: ATTORNEY DISBARRED

Respondent defaulted on a complaint charging that she engaged in a pattern of neglect, made misrepresentations to clients, failed to communicate with clients, misappropriated their funds, and abandoned her practice without protecting them. Under the ABA Standards and Colorado Supreme Court cases, disbarment is the presumptive sanction for such conduct when the client is harmed. Should this Court impose a lesser sanction than disbarment if Respondent has no prior discipline?

Upon consideration of the evidence, the Hearing Board finds that the facts and circumstances of this case support the presumptive sanction, disbarment.

I. PROCEDURAL HISTORY AND BACKGROUND

This action arises out of four separate complaints. On November 20, 2003, the People initiated 03PDJ094, concerning Respondent’s alleged misconduct on five client matters (the Boyd, Bertrand, Smith, White, and Sylvester matters). The People sent the Citation and Complaint to Respondent via regular and certified mail. The certified mailing was not claimed. Respondent did not file an answer.

On December 17, 2003, the People initiated 03PDJ106, concerning Respondent’s alleged misconduct on a single client matter (the Coventry Farms matter). The People sent the Citation and Complaint to Respondent via regular and certified mail. The certified mailing was not claimed. Respondent did not file an answer.

On January 21, 2004, the People initiated 04PDJ005, concerning Respondent’s alleged misconduct on two client matters (the McCormick and Salgado matters). The People sent the Citation and Complaint to Respondent via regular and certified mail. The certified mailing was not claimed. Respondent did not file an answer.

On June 28, 2004, the People initiated 04PDJ070, concerning Respondent’s alleged misconduct on two client matters (the Buckley and West matters). The People sent the Citation and Complaint to Respondent via regular and certified mail. Someone other than Respondent accepted the certified mailing. Respondent did not file an answer.

On July 27, 2004, pursuant to C.R.C.P. 251.15(b) and C.R.C.P. 121 § 1-14, the PDJ entered default judgment in 03PDJ094, 03PDJ106, and 04PDJ070. On October 15, 2004, the PDJ issued an order entering default judgment in 04PDJ070 and consolidating the four actions into the present case. The Office of Attorney Regulation Counsel ("OARC") sent a copy of this order, containing notice of the sanctions hearing, to Respondent via first class mail.

By the entry of default, 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 Complaints, attached to this Opinion as Exhibits A. The underlying facts of this case are detailed in the Complaints and incorporated in this Opinion by reference. On the date of the sanctions hearing, Respondent failed to appear before the Hearing Board and offer evidence in mitigation. The People presented no additional evidence.

II. FINDINGS AND VIOLATIONS

The Hearing Board considered the facts and violations established by the entry of default, as well as the People’s argument for disbarment. Based on the foregoing, the Hearing Board makes the following findings and conclusions:

Respondent has taken and subscribed the oath of admission, was admitted to the bar of this Court on October 21, 1993, and is registered upon the official records of this Court (registration no. 23107). She is therefore subject to the jurisdiction of this Court in these disciplinary proceedings. C.R.C.P. 251.1(b).

In the Boyd matter, Mr. and Mrs. Boyd hired Respondent to represent them in a dispute over their home. When the opposing party filed a quiet title action against them, Respondent did file an answer and counterclaim on their behalf. After that, however, Respondent failed to provide disclosures, failed to participate in the case management order, failed to appear at status conferences, failed to comply with court orders, and failed to file critical motions.

As a result of Respondent’s neglect, the trial court entered a default judgment against the Boyds, quieting title to the property in favor of the opposing party and evicting the Boyds from their home. In addition, the court entered a monetary judgment of nearly $40,000 against them. Respondent filed a motion to set aside the default judgment, but this motion was denied for failure to show good cause.

Despite her assurances to the Boyds, Respondent did not file an appeal and did not refer their case to another attorney. In fact, the Boyds never spoke with Respondent again, although they made daily attempts to contact her for at least a month and a half. Ultimately, the Boyds were forced to hire alternate counsel, who had to act quickly to preserve their appeal rights. Respondent has failed to return the Boyds’ files and papers, and she has kept the unearned portion of their retainer.

In the Bertrand matter, Ms. Bertrand hired Respondent to represent her in a challenge to the ownership of her horse. Respondent advised Ms. Bertrand to wait for the opposing party to take action, and to contact her immediately if anything happened. When Ms. Bertrand received a demand letter threatening criminal theft charges and imposing an imminent deadline, she repeatedly attempted to contact Respondent. Respondent never answered Ms Bertrand’s urgent messages or ever communicated with her again. Respondent retained new counsel, who immediately filed a lawsuit on her behalf and eventually succeeded in gaining full ownership of the horse for Ms. Bertrand.

In the Smith matter, Ms. Smith hired Respondent to initiate and complete her divorce. Respondent took no action other than filing the petition for dissolution and a certification regarding parenting classes. She did not serve Mr. Smith, although he eventually filed a waiver of service. When the trial court issued a notice of dismissal for failure to prosecute, Respondent assured Ms. Smith that she would contact the court. She did nothing and, as a result, the case was dismissed for lack of prosecution. Thereafter, Respondent failed to assist Ms. Smith in moving forward with the divorce. After Ms. Smith retained a new attorney, she requested an accounting as well as the return of the unearned portion of her retainer. Respondent did not reply.

In the White matter, Mr. and Mrs. White hired Respondent when their horse was injured at a stable. Nearly one month after they agreed to issue a demand letter, Respondent sent the Whites a poorly written draft demand letter for their review. Thereafter, the Whites explicitly instructed Respondent to allow them to approve the final draft. They never received a copy of the final product, and had difficulty reaching Respondent. Respondent communicated with the Whites two more times, but then ceased all contact. Mr. White left her numerous messages via phone and fax. Eventually, he discovered that her voice mail was full and that her phone had been disconnected.

In the Sylvester matter, Ms. Sylvester hired Respondent to collect payment of approximately $40,000 for services that her construction company provided under a subcontractor agreement. Ms. Sylvester gave Respondent a file containing all the materials she had collected concerning the matter, without retaining any copies of these materials. Respondent assured Ms. Sylvester that they had plenty of time in which to file an action. But after Ms. Sylvester moved to Nebraska, Respondent ceased all communication. Ms. Sylvester repeatedly left messages for Respondent and received no response. When she returned to Colorado for the holidays, she unsuccessfully attempted to meet with Respondent to retrieve her materials and her retainer.

In the Coventry Farms matter, Respondent represented Coventry Farms in defending a lawsuit initiated by two other entities. After the parties reached a settlement agreement, Coventry Farms principals had difficulty contacting Respondent and were unable to retrieve the Coventry Farms files. As a result of Respondent’s neglect of the case, there was a delay in executing the settlement agreement. Therefore, Coventry Farms was required to seek new representation to complete the settlement. In addition, Coventry Farms principals disputed Respondent’s billing. They believed that Respondent had failed to account for a $6,500 payment. Instead of keeping the disputed amount separate, Respondent withdrew it from Coventry Farms’ trust account for her own use. Coventry Farms brought suit against Respondent, alleging that she took $6,772.26 more than was owed to her from the trust account. In that case, Respondent failed to participate in court-ordered mediation. As sanction, the trial court entered a default judgment against her. Coventry Farms has not been able to collect this judgment.

In the McCormick matter, Mr. McCormick hired Respondent to file an agister’s lien and/or a collection lawsuit on behalf of his business when boarding charges for two horses were not paid. Upon collection of her retainer fee, Respondent ceased all communication with Mr. McCormick. Eventually, he hired another attorney to inquire about the matter. Both Mr. McCormick and his new attorney’s paralegal attempted to reach Respondent on numerous occasions, but Respondent did not reply. By letter, Mr. McCormick requested the return of his file, which included the boarding contract, and the retainer he had paid. The letter was returned as undeliverable. Respondent did not return the file or the retainer.

In the Salgado matter, Ms. Salgado hired Respondent to represent her and her daughter in a person injury case arising out of a car accident. Ms. Salgado gave Respondent the original documents relating to the case. For months, Ms. Salgado attempted to contact Respondent with no success. When she was able to make contact, she received no meaningful information from Respondent. Finally, Respondent informed Ms. Salgado that the insurance company had not responded to her letters. In fact, Respondent had never notified the insurance adjuster of the Salgados’ injuries. Respondent then filed a civil action against the other driver on behalf of Ms. Salgado. Although Respondent represented to Ms. Salgado that she properly served the defendant, she had not. Thereafter, Respondent ceased all communication with Ms. Salgado, failing to respond to repeated efforts to contact her. As a result of Respondent’s inaction, the trial court dismissed Ms. Salgado’s case.

In the Buckley matter, Mr. Buckley hired Respondent to represent him in defending criminal charges involving the medical treatment of animals, as well as in defending related civil claims. Mr. Buckley pled guilty in the criminal case, an apparently satisfactory disposition. However, in the civil case, Respondent did not file an answer until well-after the plaintiff had moved for default judgment. Ultimately, the trial court struck the answer and entered default judgment against Mr. Buckley, with damages to be determined at a hearing. Despite her assurances to Mr. Buckley, Respondent failed to file a motion to vacate the default. In addition, she failed to notify Mr. Buckley of the damages hearing. Neither Respondent nor Mr. Buckley appeared, and thus the court entered judgment against Mr. Buckley for over $700,000 plus approximately $70,000 in interest. Mr. Buckley discovered the judgment when he was served with a Rule 69 deposition subpoena. Mr. Buckley then retained new counsel, who has filed a motion requesting relief from the default judgment and a stay on enforcement of the judgment.

In the West matter, Ms. West hired respondent to represent her in prosecuting a malpractice case against a veterinarian. After Respondent contacted the defendant’s insurer, the insurer requested information about the claim a number of times. Respondent made no substantive response, and did not provide an updated address and telephone number where she could be reached. Ms. West was also unsuccessful in her efforts to contact Respondent. As a result of Respondent’s inaction, the insurance company denied Ms. West’s claim. Thereafter, Ms. West wrote a letter to Respondent, which included a request for the return of her retainer. Ms. West received no reply.

On these ten client matters, the Hearing Board finds that Respondent violated the following rules:

1. Colo. RPC 1.3 (neglect of an entrusted legal matter)

a. Boyd matter, Claim I;
b. Smith matter, Claim VI;
c. Sylvester matter, Claim X;
d. Coventry Farms matter, Claim I;
e. McCormick matter, Claim I;
f. Salgado matter, Claim V;
g. Buckley matter, Claim I; and
h. West matter, Claim IV.

2. Colo. RPC 1.4(a) (failure to keep client reasonably informed)

a. Boyd matter, Claim II;
b. Bertrand matter, Claim IV;
c. White matter, Claim VIII;
d. Sylvester matter, Claim XI;
e. McCormick matter, Claim II;
f. Salgado matter, Claim VI;
g. Buckley matter, Claim II;
h. West matter, Claim V.

3. Colo. RPC 1.15(c) (failure to keep disputed property separate until there is an accounting and severance of the disputed interest)

a. Coventry Farms matter, Claim II.

4. Colo. RPC 1.16(d) (failure to take steps to protect a client’s interest and surrender papers/property upon termination)

a. Boyd matter, claim III;
b. Bertrand matter, Claim V;
c. Smith matter, Claim VII;
d. White matter, Claim IX;
e. Sylvester matter, Claim XII;
f. Coventry Farms matter, Claim III;
g. McCormick matter, Claim III;
h. Salgado matter, Claim VII;
i. Buckley matter, Claim III;
j. West matter, Claim VI.

5. -Colo. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation)

a. Coventry Farms matter, Claim IV;
b. McCormick matter, Claim IV;
c. Salgado matter, Claim VIII.

In each of these matters, Respondent’s conduct caused injury or potential injury to her clients. The Hearing Board also finds a pattern and practice of failing to accomplish professional tasks for clients and failing to communicate with clients. The totality of the facts demonstrates that Respondent effectively deserted, rejected, and relinquished her professional responsibilities. Thus, her conduct constitutes abandonment.1 In addition, when Respondent kept unearned fees2 and made unauthorized withdrawals from a client trust account, she engaged in knowing conversion or misappropriation. People v. Varallo, 913 P.2d 1, 11 (Colo. 1996) (knowing misappropriation occurs when a lawyer takes client money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking).

III. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the authorities for selecting and imposing sanctions for lawyer misconduct. The appropriate sanction depends upon the specific facts and circumstances of the particular case.

Analysis Under ABA Standards

ABA Standard 4.4 describes appropriate sanctions for "lack of diligence" (absent aggravating or mitigating circumstances). ABA Standard 4.41 provides that disbarment is generally appropriate when:

a. a lawyer abandons the practice and causes serious or potentially serious injury to a client; or

b. a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or

c.  a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.

ABA Standard 4.1 describes appropriate sanctions for "failure to preserve the client’s property" (absent aggravating or mitigating circumstances). ABA Standard 4.11 provides that "[d]isbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client."

However, the Hearing Board must carefully consider whether disbarment is proper for this particular case. In making this determination, ABA Standard 3.0 directs the Hearing Board to consider the following four factors:

(a) the duty violated;

(b) the lawyer’s mental state; and

(c) the actual or potential injury caused by the lawyer’s misconduct; and

(d) the existence of aggravating or mitigating factors.

1. Duty

By neglecting legal matters entrusted to her as outlined above, Respondent violated one of the most fundamental duties an attorney owes to a client, the duty to professionally perform legal services on behalf of the client. In addition, Respondent’s retention, in many cases, of documents and unearned or disputed fees constitutes a violation of the important duty to preserve client property. Respondent’s actions also implicate her duties to the public, the profession, and the legal system, because her conduct was prejudicial to the administration of justice and involved dishonesty, fraud, deceit, or misrepresentation.

2. Mental State

Respondent’s actual awareness is unknown, as she did not appear in this action. However, it has been established by default that Respondent knowingly agreed to represent ten clients and then neglected their cases. In addition, Respondent intentionally ignored client requests for the return of property. In the Coventry Farms matter, Respondent also intentionally ignored the client’s claimed interest in funds withdrawn from the client’s trust account. Thus, it is clear that Respondent should have been aware of the consequences of her actions.

3. Injury

Respondent’s misconduct caused injury or potential injury to her clients, and in many cases the consequences of her actions were serious. In the Boyd matter, the clients lost their home and owe a monetary judgment in excess of $40,000 as a result of default entered on account of Respondent’s neglect. In addition, the Boyds might have lost their right to appeal the judgment, if not for quick action by alternate counsel.

In the Bertrand matter, the client faced the potential loss of her horse. In the Smith matter, Respondent delayed the client’s divorce. In the White matter, Respondent could have adversely affected the clients’ settlement position. In the Sylvester matter, the client faced the loss of her right to relief, in part because Respondent retained all the materials concerning the case. In the Coventry Farms matter, Respondent delayed execution of the settlement agreement.

In addition, it has been established by default that Respondent took more than $6,000 in unauthorized funds from the client’s trust account, forced the client to file suit in order to retrieve those funds, and left the resulting judgment unsatisfied.

In the McCormick matter, the client faced the loss of her right to relief, in part because Respondent did not return the contract entrusted to her. Mr. McCormick also had to hire another attorney to attempt to make contact with Respondent. In the Salgado matter, the trial court dismissed the client’s case as a result of Respondent’s inaction. In the Buckley matter, the client suffered a default judgment of over $770,000. In the West matter, the insurance company denied the client’s claim because Respondent failed to provide the required information. In the Boyd, Smith, Sylvester, McCormick, and West matters, the clients lost the portion of their retainers that Respondent kept but did not earn.

4. Aggravating and Mitigating Factors

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

A. Multiple offenses/Pattern of misconduct: This matter involves ten separate client matters and numerous violations of the Rules of Professional Conduct. These facts constitute multiple offenses and a pattern of misconduct.

B. Vulnerability of victims: Clients are always vulnerable when a lawyer neglects the legal matters she was retained to handle. The Boyds were particularly vulnerable, as they faced eviction from their home and were ultimately given only 48 hours to vacate the premises. A large monetary judgment against them compounded their problems. Mr. Buckley was also notably vulnerable, for he faced liability for over half a million dollars. And Ms. Salgado and her daughter were injured in an automobile accident, yet they were left without legal recourse because the trial court dismissed their case. At a minimum, Respondent owed these especially vulnerable clients notice that she would no longer represent them.

C. Substantial experience in the practice of law: Respondent was admitted to the bar in 1993. Thus, she has over ten years experience in the practice of law.

D. Dishonest or selfish motive: On the limited record before the Hearing Board, Respondent’s motive is not particularly clear. However, the fact that Respondent’s misconduct included taking client funds (unearned retainers and disputed amounts) for her own use supports the inference that Respondent had a dishonest or selfish motive.

E. Indifference to making restitution: While the People did not prove restitution amounts; Respondent has shown no indication of informally making restitution to her clients.

The Hearing Board does not find a bad faith obstruction, despite the fact that Respondent did not participate in OARC’s investigation or these proceedings. According to the Colorado Rules of Civil Procedure, the People are entitled to a default under these circumstances. C.R.C.P. 251.15(b). The PDJ granted the People’s motion for default. However, the record is insufficient to support a finding that Respondent’s failure to participate was motivated by an effort to intentionally obstruct these proceedings.

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

A. No prior discipline. Respondent has no prior disciplinary record.

Analysis Under Case Law

Colorado Supreme Court cases applying the ABA Standards support disbarment when there is abandonment plus other factors, such as numerous client incidents and/or other serious misconduct.3

When an attorney knowingly misappropriates client funds, the presumptive sanction is disbarment. In fact, lawyers are "almost invariably disbarred" for such conduct. Varallo, 913 P.2d at 11; People v. McGrath, 780 P.2d 492, 493 (Colo. 1989) (the Court would not hesitate to enter an order of disbarment if there was no doubt that the attorney engaged in a knowing conversion of his client’s funds); People v. Dice, 947 P.2d 339 (Colo. 1997) ("[w]e have repeatedly held that a lawyer’s knowing misappropriation of funds . . . warrants disbarment except in the presence of extraordinary mitigating factors").

In addition, disbarment is considered an appropriate sanction in cases involving a pattern of neglect. In People v. Murray, 887 P.2d 1016 (Colo. 1994), the Supreme Court determined that knowing failure to perform services for clients in ten separate matters constituted a pattern of neglect. As a result, and because the attorney caused potentially serious harm to the clients, the attorney was disbarred. See also People v. Dulaney, 785 P.2d 1302 (Colo. 1990) (lawyer disbarred for chronic neglect of client matters and use of deceit to cover the neglect).

Hearing boards have also disbarred attorneys when the misconduct includes failure to communicate with clients. E.g. People v. Miller, 35 P.3d 689 (Colo. O.P.D.J. 2001) (attorney disbarred for misconduct including failure return client phone calls and failure to keep clients reasonably informed). While these opinions are not binding upon this Court, they do provide guidance. In the Matter of Roose, 69 P.3d 43, 48-49 (Colo. 2003).

IV. CONCLUSION

Although the record in this case is sparse, consisting only of the admitted Complaints, there is no question that Respondent violated her professional responsibilities to ten clients, thus posing a danger to the public. Respondent engaged in a pattern of neglect, made misrepresentations to clients regarding actions taken, ceased communicating with clients, abandoned practice without protecting client interests, misappropriated client property, and failed to participate in these proceedings. There is also no question that, as a result of her misconduct, Respondent caused her clients harm or potential harm. In fact, the harm faced by some clients was quite serious. Under such circumstances, the ABA Standards and the Supreme Court cases support disbarment. In view of the extent of Respondent’s misconduct and the number of clients affected, the absence of prior discipline as the sole mitigating factor is insufficient to warrant a lesser sanction.

Therefore, upon consideration of the duties violated, Respondent’s mental state, the actual or potential injuries caused, and the aggravating and mitigating circumstances, the Hearing Board concludes that Respondent should be disbarred from the practice of law.

V. ORDER

It is therefore ORDERED:

TAMATHA ANN BLASÉ, attorney registration 23107, is DISBARRED from the practice of law, effective thirty-one (31) 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 of Colorado.

TAMATHA ANN BLASÉ 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 in which to file a response.

_______

1. The Presiding Disciplinary Judge’s opinions provide a test for abandonment in attorney discipline cases. E.g. People v. Segal, 62 P.3d 173, 176 (Colo. O.P.D.J. 2002) (proof of abandonment requires, in addition to failure to accomplish specific tasks for clients and failure to communicate, evidence that attorney has deserted, rejected, or relinquished professional responsibilities). While the PDJ’s opinions offer guidance in these matters, they do not have precedential value. In the Matter of Roose, 69 P.3d 43, 48-49 (Colo. 2003).

2. Advances of unearned fees are the property of the client. Colo. RPC 1.5(f).

3. E.g. People v. Williams, 845 P.2d 1150 (Colo. 1993) (lawyer disbarred for neglecting legal matter, failing to return client’s retainer, evading service of process, failing to respond to request for investigation, and abandoning practice); People v. Tucker, 904 P.2d 1321 (Colo. 1995) (lawyer disbarred after abandoning clients while continuing to collect fees for work never performed); People v. Steinman, 930 P.2d 596 (Colo.1997) (lawyer disbarred for accepting fees then abandoning clients and causing serious harm while failing to return the fees); People v. Kuntz, 942 P.2d 1206 (Colo.1997) (lawyer disbarred after accepting legal fees in eight separate client matters, performing minimal services, and then abandoning the clients while misappropriating the unearned fees); People v. Townshend, 933 P.2d 1327 (Colo. 1997) (lawyer who had previously received letter of admonition and private censure disbarred for accepting advance fees from two clients then abandoning them without returning or accounting for unearned fees); People v. Valley, 960 P.2d 141 (Colo. 1998) (lawyer disbarred for abandoning law practice, disregarding court orders, and making misrepresentations to clients, where aggravating factors included previous discipline, dishonest or selfish motive, indifference to restitution, vulnerable victims, substantial legal experience, multiple offenses, a pattern of misconduct, and bad faith obstruction of disciplinary proceedings).

 

Case Number: 04PDJ047

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JAMES M. FRANKLIN.

January 12, 2005

REPORT, DECISION AND IMPOSITION OF SANCTION

On November 17, 2004, the Hearing Board consisting of Robert A. Millman and Frederick Y. Yu, both members of the bar, and William R. Lucero, Presiding Disciplinary Judge ("PDJ"), conducted a hearing pursuant to C.R.C.P. C.R.C.P. 251.18(d). Kim E. Ikeler appeared on behalf of the People. Neither Respondent nor counsel on his behalf appeared at the sanctions hearing. The Hearing Board issues the following opinion:

SANCTION IMPOSED: DISBARMENT

I. ISSUE

Absent mitigating circumstances, disbarment is generally appropriate when a lawyer converts client property and the client is injured. ABA Standards for Imposing Lawyer Sanctions, 4.1 ("ABA Standards"). Here, Respondent took $10,900 from a client with instructions to post bond for the client. After posting bond, the client asked Respondent to return the money not used, $9,900. Respondent did not do so. However, in 29 years of practice, Respondent has never before been disciplined. Is this mitigating fact sufficient to warrant a sanction short of disbarment?

The Hearing Board concludes that disbarment is the appropriate sanction based upon its finding of one mitigating factor, four aggravating factors, and the need for public protection.

II. PROCEDURAL HISTORY AND BACKGROUND

On April 29, 2004. Kim E. Ikeler, counsel for the Office of Attorney Regulation ("People") filed a Complaint with the Office of the Presiding Disciplinary Judge against attorney, James M. Franklin, ("Respondent"). On May 12, 2004, the People filed an Acceptance of Service of the Complaint. On June 14, 2004, the People moved for Default alleging Respondent had not filed an Answer to the Complaint. On July 14, 2004, the PDJ granted the People’s Motion for Default. On August 10, 2004, the People filed a notification of Sanctions Hearing scheduled for November 17, 2004 on the Respondent. Respondent received this notification on September 7, 2004.

The record is clear that the People made multiple attempts, in addition to the formal service of the notice of sanctions, to communicate with the Respondent about his response to the allegations of the Complaint and to seek his cooperation in the disposition of these proceedings.

Since a default has been entered, all factual allegations and rule violations set forth in the Complaint are deemed admitted by clear and convincing evidence. People v. Richards, 748 P.2d 341, 347 (Colo. 1987) See also the complaint, attached as Exhibit A. The Hearing Board must nevertheless determine the appropriate sanction.

III. FINDINGS OF VIOLATIONS

Respondent has taken and subscribed the oath of admission, was admitted to the bar of this Court on May 19, 1975, and is registered as an attorney upon the official records of this Court, registration number 06368. The Respondent is thus subject to the jurisdiction of this Court.

On December 4, 2002, Respondent received $10,900 from a client, Mr. Junior. Mr. Junior directed Respondent to use this money to post Mr. Junior’s bond in a pending criminal case, and to return the balance. The court set Mr. Junior’s bond at $1,000. After Respondent posted the bond, this left $9,900 in Respondent’s possession to return to Mr. Junior.

On the same day Respondent posted the bond for Mr. Junior, Respondent needed money to post bond on his own case after he was taken into custody on an outstanding warrant. Without his client’s permission, Respondent used $1,000 of Mr. Junior’s funds to post his own bond.

Two days later, Mr. Junior met with Respondent and asked for the return of his money, $9,900. Respondent returned a portion of Mr. Junior’s money, $4,800, in cash. Respondent, however, told Mr. Junior that he did not have the entire amount to return. Respondent and Mr. Junior then agreed that Mr. Junior would pay Respondent $500.00 for his services at the bail bond hearing and a subsequent hearing in Arapahoe District Court. Respondent agreed to pay Mr. Junior the $4,600 he still owed him. Respondent gave Mr. Junior a check for $3,600 and said he would later pay him the balance of $1,000. Respondent’s check bounced. Respondent later paid Mr. Junior an additional $2,000 in January 2003. After this payment Respondent still owed $2,600 of the $10,900 Mr. Junior originally entrusted to the Respondent. Since January 2003, Mr. Junior has made numerous attempts to accommodate Respondent in the repayment of these funds. Respondent, however, has failed to repay the $2,600 he still owes Mr. Junior.

After the People initiated an investigation of this matter, they sought the Respondent’s cooperation. He has not cooperated with them, nor has he provided the Hearing Board any explanation for his conversion of Mr. Junior’s money.

IV. SANCTIONS

Analysis Under ABA Standards 3.0

1. Duty

The Respondent violated ethical duties to his client, the public, and profession. His duty of loyalty to his client required that he preserve property entrusted to him by the client. He owed a duty to the public to exhibit the highest standards of honesty and integrity. He also owed a duty to the profession to maintain its integrity. He breached each of these duties.

2. Mental state

Respondent was aware that he had misappropriated funds belonging to Mr. Junior. Two days after receiving $10,900 from him, Respondent acknowledged that he owed Respondent $9,900, the balance after posting a $1,000 bond for Mr. Junior. He has not paid Mr. Junior the full amount he owes him, although Mr. Junior has tried numerous times to work out a payment schedule.

3. Injury

Respondent’s client suffered actual injury. Respondent failed to account for the monies entrusted to him, failed to return the $9,900 when requested, and then presented an insufficient funds check to his client as a partial payment of funds he owed. As of the date of the sanctions hearing, Respondent still had not paid back the final $2,600 he owed to Mr. Junior.

4. Aggravating and Mitigating Factors

Aggravating Factors, Standards 9.2

As in all default cases, the Hearing Board must rule on the evidence presented. Respondent has offered nothing in defense of the charges against him.

A. Dishonest or Selfish Motive

Respondent retained client money that did not belong to him and used $1,000 of his client’s money for his own bond without authority to do so. Keeping client money under these circumstances is patently dishonest and selfish.

B. Vulnerability of Victim

Mr. Junior was especially vulnerable to a breach of trust because he had been a friend of the Respondent. Therefore, he trusted the advice that Respondent gave him, did not press him for the return of the funds immediately, and waited some period before coming forward with a complaint against the Respondent.

C. Substantial Experience in the Law

Respondent has more than 29 years experience in the practice of the law as a deputy district attorney and a member of the district court bench in El Paso County, Colorado.

D. Indifference to Making Restitution

Respondent has failed to pay his client the full amount owed, despite the latter’s willingness to work out a payment schedule with Respondent. Moreover, Respondent appears to be indifferent to making restitution. Despite the constant efforts on the part of Mr. Junior and the People to secure payment of the remaining $2,600 Respondent owes, a significant amount of time has lapsed from the date Respondent should have returned the money.

Mitigating Factors, Standards 9.3

A. No Prior Discipline

Respondent has had no prior discipline in 29 years in practice.

Analysis Under Case Law

ABA Standards 4.1 states that disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. Our case law on this point is in accord with the Standards. The Colorado Supreme Court stated in People v. Varallo, 913 p.2d 1, 10-11 (Colo. 1996) as follows:

As the New Jersey Supreme Court held in In re Roth, 140 N.J. 430, 658 A.2d 1264, 1272 (1995): Knowing misappropriation [for which the lawyer is almost invariably disbarred] "consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking." In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986). Misappropriation includes "not only stealing, but also unauthorized temporary use for the lawyer’s own purpose, whether or not he derives any personal gain or benefit therefrom." In re Wilson, 81 N.J. 451, 455 n. 1, 409 A.2d 1153 (1979). The motive of the lawyer is irrelevant in determining the appropriate discipline for knowing misappropriation. Moreover, "[i]ntent to deprive permanently a client of misappropriated funds, however, is not an element of knowing misappropriation." In re Barlow, 140 N.J. 191, 657 A.2d 1197, 1201 (1995).

The Hearing Board distinguishes this case from People v. Fischer, 89 P.3d 817 (Colo. 2004). In Fischer, the Supreme Court found many mitigating factors not present here. These include the Respondent’s recognition of his ethical violations, acceptance of responsibility for the injuries he caused to others and the judicial system, cooperation with Attorney Regulation Counsel, his genuine remorse, and repayment of all misappropriated funds. Id at 82. In light of these mitigating factors, the Supreme Court reversed the Hearing Board’s order of disbarment and suspended the Respondent for one year and a day.

V. CONCLUSION

After reviewing the factors listed in ABA Standards 3.0, the Hearing Board finds that disbarment is the appropriate sanction. When a lawyer converts client funds and offers no explanation for his conduct, the Hearing Board is left with no basis to vary from the Standards. The Respondent’s lack of prior discipline is the sole mitigating factor. This factor, standing alone, is insufficient to warrant a lesser sanction where the evidence shows the lawyer has converted client funds and has been indifferent, at best, to repaying all the money owed his client.

VI. ORDER

It is therefore ORDERED:

JAMES M. FRANKLIN, attorney registration 06358, is DISBARRED from the practice of law effective thirty-one (31) days from the date of this Order and his name shall be stricken from the list of attorneys licensed to practice law in the State of Colorado.

JAMES M. FRANKLIN is ORDERED to pay the costs of this proceeding; the People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days in which to respond.

 

 

 

Case Number: 04PDJ077

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

LAWRENCE C. RIDER.

January 3, 2005

OPINION AND ORDER IMPOSING SANCTIONS

On July 30, 2004, the Office of Attorney Regulation Counsel ("OARC") filed a Complaint against attorney Lawrence C. Rider ("Respondent"). Respondent answered the Complaint on September 1, 2004, admitting all factual allegations, but reserving the right to be heard on the issue of sanctions. On September 23, 2004, the People moved for judgment on the pleadings, which Respondent did not oppose. On September 24, 2004, the Presiding Disciplinary Judge ("PDJ") granted the People’s motion on the only Claim in the Complaint, violation of Colo. RPC 8.4(c), engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation. Thus, the only remaining issue is the appropriate sanction for the misconduct Respondent admits.

On November 2, 2004, a Hearing Board consisting of Thomas J. Overton, a member of the bar, Frances L. Winston, a representative of the public, and William R. Lucero, the Presiding Disciplinary Judge, heard and deliberated on evidence presented under C.R.C.P. 251.18(d). Charles E. Mortimer, Assistant Regulation Counsel, represented the Office of Attorney Regulation (the "People"). E. Gregory Martin represented Respondent Lawrence C. Rider.

The following witnesses testified on behalf of Respondent: former Colorado Supreme Court Justice Jean Dubofsky, District Court Judge Morris Sandstead, John R. Mehaffy, Esq., Lane Earnest, Esq., Martha Ridgway, Esq., and Pastor John Hess. The Hearing Board also heard and considered testimony from Respondent. In addition, Respondent offered and the PDJ admitted trial Exhibits A (a letter from James T. Dunn, the Complainant) and B (an affidavit from Melody Fuller, the President of the Boulder County Bar Association). The People presented no evidence.

The Hearing Board considered the parties’ Trial Briefs and oral arguments, their Stipulation of Facts, and the evidence presented at trial, including the credibility of witnesses.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. ISSUE

A lawyer who knowingly misappropriates $148,000 from the estate of an ill and elderly woman, over eight years and while acting as her conservator, egregiously violates his duties to his client and the legal system. Under these circumstances disbarment would normally be the appropriate sanction. But is a lesser sanction appropriate if the lawyer expresses genuine remorse, makes full restitution, presents evidence of excellent character and reputation, and has no prior disciplinary record?

Despite the mitigation presented, the Hearing Board concludes that the disbarment is appropriate in this case

II. FINDINGS OF FACT

The Hearing Board finds that the People proved the following facts by clear and convincing evidence:

Respondent has taken and subscribed the Oath of Admission, was admitted to the Bar of this Court on October 4, 1968, and is registered as an attorney upon the official records of this Court, registration number 771. Hence, Respondent is subject to the jurisdiction of this Court and the Office of the Presiding Disciplinary Judge in these proceedings. Throughout his career, Respondent has practiced law from offices located in Boulder, Colorado.

In the early 1990’s, Mr. James Dunn, an attorney in Utah, called Respondent to ask if he would be willing to represent Mary Halverson, an elderly women who suffered from a bipolar disorder. Ms. Halverson required the services of counsel in a variety of matters, including fraud claims relating to the sale of horses and a breach of contract claim involving horse trailers. At the time, Ms. Halverson was living near Chimney Rock in Archuleta County, Colorado.

With knowledge of her bipolar condition, Respondent agreed to represent Ms. Halverson. Thereafter, he met with her and discovered that she did not trust the lawyers in Archuleta County. Respondent also soon discovered that Ms. Halverson was a client who required much of his time, particularly because he traveled from Boulder to Chimney Rock to tend to her legal needs. For example, Ms. Halverson, according to the Respondent, had challenged the sheriff to a gunfight and he had to go to Chimney Rock to resolve the matter. On other occasions, the Respondent helped Ms. Halverson deal with other matters including disputed credit card charges.

As time passed, Ms. Halverson’s mental condition deteriorated and she needed someone to assist her in handling a portion of her financial affairs. In 1993, Mr. Dunn suggested, and Respondent agreed, that the Respondent would act as Ms. Halverson’s conservator. Accordingly, in 1993, the district court in Archuleta County appointed Respondent conservator for Ms. Halverson. Nevertheless, she continued to carry on day-to-day financial activities, including maintaining her own bank accounts and making her own purchases. Eventually, however, Ms. Halverson needed to leave her ranch in Archuleta County. As conservator, Respondent assisted with the sale of Ms. Halverson’s 63-acre ranch and its contents. Likewise, he then maintained control over the proceeds.

Following his appointment as conservator in 1993 and through November 1996, Respondent filed inventory and accounting reports with the district court each year. During this time, he also applied twice for payment from Ms. Halverson’s estate for legal fees incurred as conservator. The court approved both requests. Thus, he received a total of $35,430.87 for services he provided through 1996. Though he should have, Respondent filed no reports with the district court after November 1996. He testified that he provided an additional $16,000 in legal work after 1996, but did not submit these fees to the court for payment.

After Ms. Halverson left her ranch, she lived in Boulder County for a brief time. Then, in 2000, because her mental and physical condition worsened, she moved from Boulder to an assisted living facility in Utah. Shortly thereafter, the district court dismissed the conservatorship.

When Ms. Halverson died on March 1, 2002, Mr. Dunn was both the beneficiary and executor of her estate. In April 2002, Respondent gave Mr. Dunn a check for $300,000, funds that Respondent represented were due the estate. Respondent provided no accounting with the check. He explained to Mr. Dunn that there were a few matters he needed to complete in order to close the estate, and that there was a remainder of $9,000 due the estate.

Following Ms. Halverson’s death, Mr. Dunn worked with Mr. Russell Whitehouse, CPA, to administer the estate. Mr. Dunn and Mr. Whitehouse made at least nine written requests to Respondent for complete accountings. As of November 3, 2003, Respondent had not given Mr. Dunn accountings for calendar years 1999, 2000 and 2001, or for January and February of 2002. Mr. Dunn told Respondent that he would report this matter to the OARC if Respondent did not provide an accounting as requested. Nevertheless, Respondent did not do so. Respondent testified that he attempted several times to prepare an accounting for Mr. Dunn, but could not. He described himself as "paralyzed" and unable to act. Mr. Dunn reported these grievances against Respondent to the OARC on November 3, 2003.

The OARC mailed Mr. Dunn’s request for investigation to Respondent on November 12, 2003, and asked him to respond. Respondent received this mailing and asked for three enlargements of time to answer Mr. Dunn’s complaint. The OARC granted these requests. Ultimately, Respondent promised he would respond by February 2, 2004, but he did not. As a consequence, the OARC subpoenaed Respondent to be deposed on February 17, 2004.

Respondent appeared at the deposition and answered questions about his appointment and role as conservator for Ms. Halverson’s estate. Specifically, Respondent testified under oath that his failure to provide an accounting was due to the lack of certain records necessary to complete it. He swore under penalty of perjury that the problem rested with an outside investment firm, which had failed to provide him with account statements on the conservatorship. In fact, this was not true. Respondent had most, if not all, of the records needed to complete an accounting. These records, however, would have revealed his misappropriation of $148,000 from Ms. Halverson’s estate.

At trial, Respondent testified that he thought he could "out-smart" everyone. He believed that he could pay back the money in the long run, without anyone discovering his misconduct. Before attending the deposition, Respondent designed his defense and considered creating false documents to substantiate his story about the investment firm error.

However, Respondent never acted on the impulse to create false documents. Instead, he attended the deposition with a plan to delay the process further by claiming that he just did not have the necessary documents. The deposition started at 8:58 a.m. and finished at 9:56 a.m. After Respondent left the OARC offices, he sat in his parked truck and struggled with his conscience. He realized the gravity of lying under oath, and felt that he could no longer hide what he had done. He returned to the OARC offices and admitted to Mr. Mortimer that he had not told the truth during his deposition. He confessed that he had misappropriated funds belonging to Ms. Halverson. At the time, he was visibly distressed and the OARC referred him to a grief counselor.

A few days after his disclosure, Respondent provided the OARC with two boxes of documents , primarily bank records, showing activity on accounts belonging to the conservatorship. Respondent reported that at the time, his records were in a state of "chaos." The OARC supplied copies of these records to Mr. Dunn and Mr. Whitehouse. Upon review of the records, they confirmed that Respondent had misappropriated approximately $148,000. The records showed that Respondent wrote approximately 80 checks to himself or his creditors from Ms. Halverson’s estate over a period of eight years while he was her conservator. Most important, the records also showed that Respondent wrote the first of the unauthorized checks within one month of his appointment as conservator.

The records also detailed how and when Respondent misappropriated Ms. Halverson’s money. In one instance, Respondent sold a truck belonging to Ms. Halverson to a company his son owned for $7,500. He did not, however, collect the full purchase price at the time of sale. After his son’s company failed, Respondent neglected to pursue payment of the remaining $2,800 for the benefit of Ms. Halverson’s estate.

When he wrote unauthorized checks, Respondent justified his actions by convincing himself that he would pay the estate back. He further justified his actions by reasoning that his legal fees would cover the amounts taken. When asked what he spent the money on, Respondent testified that it was initially to pay taxes he urgently needed to pay. Later, he took money when he needed it, even for groceries. Respondent offered no other evidence to explain why he took the money.

While Respondent had access to the Halverson funds, he had no meaningful oversight. Though he had a duty to account to the court regarding his activities as a conservator, he did not do so after November 2003. Even when he did, he provided no information disclosing his misappropriation of estate funds. Meanwhile, Mr. Dunn and Ms. Halverson trusted Respondent to handle the estate honestly.

Following his admission of misconduct to the OARC on February 17, 2004, Respondent told counsel for Mr. Dunn that he intended to repay the funds he misappropriated. Respondent then met with Mr. Dunn in Salt Lake City and reached an agreement on restitution. Respondent refinanced his house and paid the restitution to Ms. Halverson’s estate with the loan proceeds.

On or about August 6, 2004, the People received a letter from Mr. Dunn. Mr. Dunn reported that the Respondent had made a complete accounting of the conservatorship funds, as well as money due and owing to the estate. Mr. Dunn "supports reinstatement" of the Respondent’s license to practice law.

Respondent has no prior disciplinary history. He enjoys a sterling reputation in the legal community. The witnesses who testified on behalf of Respondent believe the misappropriation described above was an aberration, and will not likely recur. They point out that, apart from these events, Respondent has been an exemplary lawyer. They urge the Hearing Board to consider a lengthy suspension instead of disbarment.

III. IMPOSITION OF SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. In determining the appropriate sanction, ABA Standard 3.0 directs the Hearing Board to examine the following factors:

(1) the duty breached;

(2) the mental state of the lawyer;

(3) the injury or potential injury caused; and

(4) the aggravating and mitigating evidence.

The act of knowing misappropriation "consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking." People v. Varallo, 913 P.2d 1, 11 (Colo. 1996) (quoting In re Noonan, 506 A.2d 722, 723 (N.J. 1986)). Neither the lawyer’s motive in taking the money, nor the lawyer’s intent regarding whether the deprivation is temporary or permanent, are relevant for disciplinary purposes. Id. at 10-11.

The presumptive sanction for knowing conversion of client property entrusted to an attorney is disbarment. ABA Standard 4.11 states: "Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client." Generally, suspension is reserved for misconduct, such as commingling funds, that does not amount to misappropriation or conversion of funds for the attorney’s own use. ABA Standard 4.12 (commentary). Likewise, the Colorado Supreme Court has indicated that lawyers are "almost invariably disbarred" for knowing misappropriation of client funds. Varallo, 913 P.2d at 11; People v. McGrath, 780 P.2d 492, 493 (Colo. 1989)("the Court would not hesitate to enter an order of disbarment if there was no doubt that the attorney engaged in a knowing conversion of his client’s funds").

Nevertheless, the Supreme Court has always deemed extraordinary mitigating factors an important part in determining an appropriate sanction, even in cases involving conversion of client funds; People v. Dice, 947 p.2d 339 (Colo. 1997)("[w]e have repeatedly held that a lawyer’s knowing misappropriation of funds . . . warrants disbarment except in the presence of extraordinary mitigating factors").

More recently the Supreme Court reminded hearing boards not to overlook significant mitigating factors that may overcome the presumption of disbarment. In the Matter of Fischer, 89 P.3d 817 (Colo. 2004). Thus, it is incumbent upon hearing boards to properly consider evidence in mitigation, and to recognize that each case presents unique facts and perhaps a different need for sanctions.

In Fischer, the Court disapproved disbarment. That case, however, did not involve stealing client money. Rather, the attorney had deviated from a separation agreement disbursement schedule without first obtaining court approval. Mitigating factors included lack of an attempt to falsify, deceive or conceal the misconduct. In addition, the attorney accepted personal responsibility for all debts subject to the separation agreement and all additional expenses. Finally, the Court believed that, while the attorney admitted knowingly misappropriating third party funds, he thought he was simply attempting to overcome hurdles in liquidating assets and it had not occurred to him that he was violating a court order. Fisher is thus readily distinguishable from cases in which the attorney flagrantly abuses a client’s trust by treating client funds as his own. Id. at 821.

The Hearing Board finds the following evidence relevant to determining the appropriate sanction.

A. MATTERS IN MITIGATION

1. CHARACTER AND REPUTATION

-Respondent has been a lawyer with strong moral character and a solid reputation for more than 35 years. A host of highly respected members of the legal community, who know Respondent professionally and personally, offered credible testimony in this regard.

-One of the witnesses described Respondent, his wife, and his children as the "quintessential American family." Respondent’s law partner for over 30 years testified that he would "never question" Respondent’s honesty. A well-respected Boulder lawyer with 35 years of legal experience testified that Respondent’s reputation was "superb." An 18-year attorney, who practices in Boulder County and has tried a number of contentious divorce cases against Respondent, described his reputation as "outstanding." In addition, the Assistant Pastor of the First Presbyterian Church of Boulder testified about the pro bono and charitable work Respondent had done for clients and members of the church, describing him as always "available and credible." Finally, a Boulder District Court Judge testified that Respondent was "one of the great guys" and a man of "great integrity," based upon his knowledge of Respondent as a lawyer and a friend.

2. REMORSE

-Respondent is remorseful for the harm he caused his family, his colleagues, and the legal profession. His demeanor shows the depth of his contrition. He recognizes his ethical violations and has accepted full responsibility for his actions. Although he delayed eight years in admitting his wrongdoing, he ultimately did so, and thereafter fully cooperated with the OARC. On the other hand, the Hearing Board also notes that Respondent does not fully acknowledge the harm to his client, Ms. Halverson. Instead, Respondent offers that he took care of her needs.

3. NO PRIOR DISCIPLINE

-Respondent has no prior discipline. To the contrary, he has served the legal community honorably throughout his career. Exhibit B, an affidavit executed by Melody K. Fuller, the President of Boulder County Legal Services, details the contributions Respondent has made to the profession. They include a wide range of pro bono services, particularly in the areas of family law and children’s issues. Respondent has represented a family that was victimized by a mortgage scam, mobile home owners seeking justice against a mobile home park owner, and a mentally disabled adult who needed assistance in recovering funds from a bank.

4. RESTITUTION

-The Complainant, Mr. Dunn, states that Respondent has "completed restitution and has paid all amounts due and owing to the estate." The Hearing Board notes, however, that restitution was made only after Mr. Dunn lodged a complaint with the OARC.

5. PERSONAL AND EMOTIONAL PROBLEMS

-Respondent presented no expert evidence on this issue. However, one lay/fact witness did offer her perspective on this point. This witness felt that Respondent’s actions were a call for help because Respondent was overwhelmed with the practice of law.

-Respondent also testified that he sought psychiatric assistance to understand why he took the money from Ms. Halverson’s estate. He briefly saw two psychiatrists, but soon stopped meeting with them. He did not think the first psychiatrist was helpful, and he discontinued meeting with the second due to a lack of money.

B. MATTERS IN AGGRAVATION:

1. DISHONEST OR SELFISH MOTIVE

-Respondent testified that, while he took money from Ms. Halverson’s estate for "urgent" needs including taxes, he also took money simply for whatever he needed. There was no detailed testimony with respect to how he spent the $148,000. Undoubtedly, he put his own needs and desires ahead of the needs and desires of Ms. Halverson, an elderly woman who suffered from health and psychological problems and who depended upon him for protection.

More important, this was not an instance of immediate disclosure and restitution following a single act or series of acts of conversion within a short period of time. Respondent concealed his actions and carried on his deceit for eight years, misleading the court, Mr. Dunn, and Ms. Halverson. A number of witnesses candidly stated that, knowing what they know about this case, they would not likely recommend Respondent as a conservator for one of their clients.

2. MULTIPLE OFFENSES

-This was not a single instance of misappropriation. Respondent misappropriated money from Ms. Halverson’s estate within a month of his appointment as conservator. From that point on, Respondent took money whenever he needed it. Respondent ultimately wrote 80 unauthorized checks over a period of eight years.

3. SUBSTANTIAL EXPERIENCE IN THE PRACTICE OF LAW

-Respondent has practiced law for over 36 years. He is and was well aware of his duties as a fiduciary.

4. SUBMISSION OF FALSE STATEMENTS

-During his deposition and while under oath, Respondent submitted false and misleading statements to the People regarding estate funds.

5. VULNERABILITY OF VICTIM

-Respondent knowingly took advantage an elderly woman with serious mental and physical infirmities. Respondent misappropriated $148,000 from Ms. Halverson while acting under a court order to protect her interests as conservator of her estate. In addition, Respondent does not believe that his actions caused harm to Mrs. Halverson in the "classic sense." Rather, Respondent testified that he took care of all her financial needs. This view is particularly troubling to the Hearing Board.

C. DUTIES BREACHED

Respondent had a duty to deal professionally, honestly, and openly with Ms. Halverson and her estate. As an officer of the court, he had a duty to render an honest and accurate accounting on the funds entrusted to him as conservator. In addition, he had a duty to promote confidence, not distrust, in our system of justice. Respondent blatantly breached each of these duties.

D. INJURY CAUSED

Respondent unquestionably stole $148,000 from Ms. Halverson’s estate. This fact alone demonstrates serious injury. Respondent also caused injury to our system of justice, by obstructing the effective administration of Ms. Halverson’s estate.

E. MENTAL STATE

Respondent admits that he acted knowingly when he took Ms. Halverson’s money. He was fully aware of his actions and their consequences. Nevertheless, he continued his misconduct for eight years, deceiving his client, the court, and Mr. Dunn in the process. Respondent abused the trust that he knew others placed in him and engaged in a pattern of deceit for his own benefit.

IV. CONCLUSION

Upon consideration of the mitigating and aggravating factors, as well as the duties breached, the injuries caused, and Respondent’s mental state, the Hearing Board finds that the gravity of Respondent’s conduct substantially outweighs any justification for leniency. To his credit, Respondent has no prior discipline, has maintained an exemplary reputation, has also demonstrated remorse, and has made full restitution. These mitigating factors, however, are overshadowed by the degree of damage Respondent knowingly caused to his client, to the legal profession, and to our system of justice. See, e.g.,Varallo, 913 P.2d at 12 (good reputation in the local legal community and absence of prior discipline insufficient mitigation to warrant sanction less than disbarment).

Over an extended period of time, Respondent committed numerous acts of theft against an elderly woman who suffered from physical and mental infirmities. Respondent first stole from Ms. Halverson within one month of his appointment as conservator of her estate. Thereafter, he wrote eighty unauthorized checks to himself and his creditors. As a fiduciary, Respondent was trusted to protect Ms. Halverson and to promote her best interests. Instead, Respondent took advantage of the authority he had over her affairs and converted a large amount of money from her estate for his own personal use.

Under the circumstances of this case, any personal justification for taking the money or intention to repay the funds is rendered irrelevant. Throughout the period in question, Respondent engaged in deceit to conceal his wrongdoing. His dishonesty extended to the point of lying under oath during the OARC’s investigation. This case is distinguishable from Fisher, as it involves the actual, intentional, and concealed conversion of substantial funds from a vulnerable client over an extended period of time. 89 P.3d at 820-822.

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. Respondent harmed his client, his colleagues, and our judicial system. On these facts, any sanction short of disbarment would be a disservice to our stated goal of protecting the public. The Hearing Board therefore finds that disbarment is the appropriate sanction.

V. ORDER

It is therefore ORDERED:

LAWRENCE C. RIDER, attorney registration 00771, is DISBARRED from the practice of law, effective thirty-one (31) days from the date of this Order, and his name shall be stricken from the roll of attorneys licensed to practice law in the State of Colorado.

LAWRENCE C. RIDER is ORDERED to pay the costs of this proceeding; the People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days in which to respond.

 

 

Case Number: 04PDJ043

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JOEL E. URBANIAK.

December 13, 2004

REPORT, DECISION AND IMPOSITION OF SANCTION

On October 6, 2004, a Hearing Board consisting of Victoria J. Koury, a member of the bar, B. LaRae Orullian, a citizen member, and William R. Lucero, Presiding Disciplinary Judge ("PDJ"), conducted a sanctions hearing under C.R.C.P. 251.15(b). Kim E. Ikeler appeared on behalf of the People of the State of Colorado ("the People"). Attorney respondent Joel E. Urbaniak ("Respondent") did not appear, either pro se or represented by counsel. The Hearing Board issues the following opinion:

SANCTION IMPOSED: ATTORNEY SUSPENDED THREE YEARS.

The People initiated this disciplinary action against Respondent for misconduct with respect to three clients. Respondent defaulted in these proceedings, thus admitting that he abandoned one civil client and neglected two criminal clients. Respondent did not engage in other serious misconduct, such as misappropriation of funds. He has practiced law for over 15 years without prior discipline. Under the ABA Standards for Imposing Lawyer Sanctions and Colorado Supreme Court cases, appropriate sanctions for client neglect/abandonment range from suspension to disbarment. What is the appropriate sanction here?

Upon consideration of the evidence, the Hearing Board finds that the facts and circumstances of this case support a three-year suspension, and not disbarment.

I. PROCEDURAL HISTORY AND BACKGROUND

On April 28, 2004, the People filed a Complaint in this matter concerning Respondent’s disregard of three client matters, one for a civil plaintiff and two for criminal defendants. The People sent the Citation and Complaint to Respondent via regular and certified mail. On May 3, 2004, the People filed a Proof of Service showing that, on April 28, 2004, Respondent signed the return receipt for the Citation and Complaint.

Respondent did not answer the Complaint. On May 26, 2004, the People filed a motion for default under C.R.C.P. 251.15(b) and C.R.C.P. 121, Section 1-14. On July 7, 2004, the PDJ granted this motion. By the entry of default, 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 Complaint, attached to this Opinion as Exhibit A. The factual background in this case is detailed in the Complaint and incorporated by reference in this Opinion. In summary, Respondent neglected/abandoned three clients and failed to cooperate in these proceedings. On the date of the sanctions hearing, Respondent failed to appear before the Hearing Board and offer evidence in mitigation. The People argue that Respondent must be disbarred.

II. FINDINGS AND VIOLATIONS

The Hearing Board considered the facts and violations established by the entry of default, the People’s argument, the statement of Mr. Harmes (principal complaining witness), and People’s Exhibit 1 (Order re: Motion to Dismiss issued by the trial court in the Harmes case).

Based on the foregoing, the Hearing Board makes the following findings and conclusions:

(1) -Respondent has taken and subscribed the oath of admission, was admitted to the bar of this Court on May 26, 1988, and is registered upon the official records of this Court, registration no. 17513. He is therefore subject to the jurisdiction of this Court in these disciplinary proceedings.

(2) -Mr. Harmes was a civil client, whom Respondent abandoned after professionally litigating his case for over two years.

A. -Mr. Harmes was severely injured in an automobile accident and soon thereafter, in February 1999, retained Respondent to represent him in an action against the other driver. Respondent took Mr. Harmes’ case on contingency. He conducted some discovery, including taking the deposition of the driver of the other vehicle, a Sinton’s Diary truck driver. In addition, he helped Mr. Harmes process his medical claims through the no-fault provisions of his automobile insurance. In June 2003, he also represented Mr. Harmes in an attempt to mediate the case with the Judicial Arbiter Group. Mr. Harmes indicated that during the mediation proceedings, he felt "insulted" and believed that the opposing party had not entered the process in "good faith." As a result, he declined their settlement offer. The amount of this offer is unknown. Following the mediation, Respondent told Mr. Harmes that he would set the matter for trial and notify him of the trial date. However, Respondent had no further contact with Mr. Harmes (until Mr. Harmes retrieved his case file from Respondent after he was forced to retain another lawyer).

B. -In the summer of 2003, Respondent stopped communicating with Mr. Harmes and stopped prosecuting his case. Respondent failed to inform Mr. Harmes that the defense had served discovery requests and had attempted to schedule an independent medical examination. Because the case was not moving forward, the defense moved to dismiss it.

C. -On October 7, 2003, the district court ordered either Respondent or Mr. Harmes to show cause why the Harmes case should not be dismissed for failure to prosecute. People’s Exhibit 1. This order could not be properly served on either Respondent or Mr. Harmes because both had moved, and Respondent failed to notify the court and the defense of the new addresses.

D. -Mr. Harmes learned of the district court’s order to show cause when he picked up mail at his old address. He responded to the court’s order by letter, stating that Respondent had ceased communicating with him and that he had not been aware that his case was not being prosecuted. The court did not dismiss the case and gave Mr. Harmes time to retain new counsel, which he did.

E. -Mr. Harmes told the Hearing Board that, upon the advice of his new counsel, he eventually settled the case. However, he was not satisfied with the settlement amount of $42,000.00. It is not clear whether the amount he actually received was higher or lower than what he had been offered at the June 2003 mediation.

F. -Mr. Harmes stated that Respondent advanced the expenses for the pre-trial work in his case, but never sought reimbursement. In addition, Mr. Harmes acknowledges that Respondent did work diligently on his case from February 1999 until June 2003.

G. -Mr. Harmes told the Hearing Board that he was both mystified and devastated when Respondent stopped communicating with him after the mediation hearing. Mr. Harmes described the tremendous stress he experienced upon learning that the trial court might dismiss his case for failure to prosecute. He was forced to work quickly on his own to prevent the dismissal, hire new counsel, and obtain his case file from Respondent. It took him several months to retrieve his file from Respondent.

H. -Mr. Harmes filed a request for investigation with the Office of Attorney Regulation Counsel ("OARC") on October 27, 2003. Thereafter, the OARC wrote to Respondent, asking for information about the Harmes matter, on three separate occasions. Two of the letters were not returned. The Respondent accepted the third, certified letter. However, he made no response. The OARC also served him with a subpoena for his investigative deposition. Respondent did not call OARC to acknowledge service or otherwise participate in the investigation. In addition, counsel for the People unsuccessfully attempted contact with Respondent, once by mail and three times by telephone message.

I. -As set forth in the Complaint, Claims I–III and V, in the Harmes matter, the Hearing Board finds that Respondent violated Colo. RPC 1.3 (neglect of an entrusted legal matter), 1.4(a) (failure to keep client reasonably informed), 1.16(d) (failure to protect client’s interest and surrender papers upon termination), and 8.4(d) (conduct prejudicial to the administration of justice).

J. -As to Claim IV of the Complaint, the Hearing Board also finds that Respondent violated C.R.C.P. 251.5(d) (failure to respond to request by Regulation Counsel for information) and Colo. RPC 3.4(c) (disobeying an obligation under the rules of a tribunal) and 8.1(b) (knowingly failing to respond to lawful demand for information from disciplinary authority).

(3) -Mr. Hernandez and Mr. Elder were criminal defendants whom Respondent was apparently court-appointed to represent. Respondent failed to appear at court proceeding on behalf of these clients. It was not alleged, nor was there any evidence presented, that Respondent caused harm to them as a result.

A. -In the Hernandez matter, Respondent entered an appearance on behalf of Mr. Hernandez on December 15, 2003, and participated in a district court hearing three days later. The court then continued the case until December 29, 2003. Both Respondent and Mr. Hernandez failed to appear in court on that date. Respondent did not file a motion to withdraw. The district court issued a bench warrant for Mr. Hernandez, though there is no evidence that he was arrested on this warrant. On January 8, 2004, Hernandez appeared at a court hearing without Respondent. At that time, he informed the district court that he would hire other counsel.

The OARC wrote to Respondent, asking for information about the Hernandez matter. Respondent accepted the certified letter, but made no response. The OARC also served him with a subpoena for his investigative deposition. Respondent did not call OARC to acknowledge service or otherwise participate in the investigation. In addition, counsel for the People unsuccessfully attempted contact with Respondent, once by mail and three times by telephone message.

As set forth in the Complaint, Claims VI and VIII, in the Hernandez matter, the Hearing Board finds that Respondent violated Colo. RPC 1.3 (neglect of an entrusted legal matter) and 8.4(d) (conduct prejudicial to the administration of justice).

As to Claim VII of the Complaint, the Hearing Board also finds that Respondent violated C.R.C.P. 251.5(d) (failure to respond to request by Regulation Counsel for information), as well as Colo. RPC 3.4(c) (disobeying an obligation under the rules of a tribunal) and 8.1(b) (knowingly failing to respond to lawful demand for information from disciplinary authority).

B. -In the Elder matter, Respondent appeared with Mr. Elder in district court on January 5, 2004. The court continued the matter until January 12, 2004. Respondent and the defendant both failed to appear. However, Mr. Elder called the court on that date to explain that he could not appear because of a medical problem.

The OARC wrote to Respondent, asking for information about the Elder matter. The certified letter was returned unclaimed. Respondent accepted the certified letter, but made no response. The OARC also served him with a subpoena for his investigative deposition. Respondent did not call OARC to acknowledge service or otherwise participate in the investigation. In addition, counsel for the People unsuccessfully attempted contact with Respondent, once by mail and four times by telephone message.

As set forth in the Complaint, Claim IX, in the Elder matter, the Hearing Board finds that Respondent violated Colo. RPC 1.3 (neglect of an entrusted legal matter).

As to Claim X of the Complaint, the Hearing Board also finds that Respondent violated C.R.C.P. 251.5(d) (failure to respond to request by Regulation Counsel for information), as well as Colo. RPC 3.4(c) (disobeying an obligation under the rules of a tribunal) and 8.1(b) (knowingly failing to respond to lawful demand for information from disciplinary authority).

III. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the authorities for selecting and imposing sanctions for lawyer misconduct. Both support a range of sanctions, from suspension to disbarment, in cases involving neglect or abandonment. The distinction between neglecting clients and abandoning them is not clear.1 The appropriate sanction depends upon the facts and circumstances of each case.

Analysis Under the ABA Standards

ABA Standard 4.4 describes the appropriate sanctions for "lack of diligence" (absent aggravating or mitigating circumstances). ABA Standard 4.41 provides that disbarment is generally appropriate when a lawyer (1) abandons the practice, (2) knowingly fails to perform services, or (3) engages in a pattern of neglect, and the misconduct results in serious or potentially serious injury to a client. ABA Standard 4.42 provides that suspension is generally appropriate when a lawyer (1) knowingly fails to perform services for a client or (2) engages in a pattern of neglect of client matters, and the misconduct results in injury or potential injury to a client.

When imposing sanctions for violations as found above, ABA Standard 3.0 directs the Hearing Board to consider the following four factors:

(a) the duty violated;
(b) the lawyer’s mental state; and
(c) the actual or potential injury caused by the lawyer’s misconduct; and
(d) the existence of aggravating or mitigating factors.

(1)Duty

By neglecting legal matters entrusted to him, Respondent violated one of the most fundamental duties an attorney owes to a client, the duty to professionally perform legal services on behalf of the client. In the Harmes matter, Respondent failed to prosecute his client’s case, which would have resulted in its dismissal but for the client’s intervention. He also failed to keep his client reasonably informed, give notice to terminate representation, assist his client in finding new counsel, and promptly return the case file. Respondent thus abandoned Mr. Harmes and his case. In the Hernandez and Elder matters, Respondent failed to appear in court and failed to give notice to terminate representation, thus neglecting those clients. Finally, he failed to cooperate or participate in the investigation of these matters by the OARC. In addition to the duties owed his clients, Respondent’s actions implicate his duties to the profession and the legal system, in the administration of justice.

(2)Mental State

Respondent knowingly agreed to represent three clients and neglected their cases. While Respondent presented no evidence of his mental state, as he did not appear in this action, it is clear that he should have been aware of the consequences of neglecting his duties to these clients. Of the three clients, Respondent’s mental state is most apparent in the Harmes case. There, Mr. Harmes needed an attorney to advance his claims, yet Respondent ceased all action on the case without notice and without returning his file or helping him to find other counsel.

(3)Injury

By neglecting and abandoning Mr. Harmes’ case, Respondent certainly caused potential emotional harm and financial injury. Regarding actual injury, Mr. Harmes experienced severe stress upon learning of Respondent’s lack of action and the resultant possibility of dismissal. However, on the meager record before the Hearing Board, there is no evidence of financial harm caused by Respondent. Ultimately, Mr. Harmes settled his case for $42,000, but it is unclear whether he accepted less or more than was offered at the mediation hearing, and whether any difference was the result of Respondent’s inaction.

In representing Mr, Hernandez and Mr. Elder, Respondent did not appear for scheduled hearings (one preliminary hearing and one unspecified hearing). In both cases, other than delay, there is no evidence of actual or potential harm to these clients.

(4)Aggravating and Mitigating Factors

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

1. Multiple offenses/Pattern of misconduct: This matter involves three clients and multiple violations of the Rules of Professional Conduct. From summer 2003 to October 2003, Respondent failed to take action in Mr. Harmes’ case. From late 2003 to early 2004, he failed to appear in the Hernandez and Elder matters.
These facts constitute multiple offenses and a pattern of misconduct. Nevertheless, the Hearing Board determines that Respondent is less culpable than the lawyers in other reported abandonment and neglect cases. Disbarment is appropriate where there is abandonment in addition to other factors, including prior discipline, numerous client incidents, and other serious acts of misconduct. E.g. People v. Kuntz, 942 P.2d 1206 (Colo.1997) (disbarment warranted where attorney accepted legal fees in eight separate client matters, performed minimal services, and then abandoned the clients while misappropriating the unearned fees).

2. Vulnerability of victims: Clients are always vulnerable when a lawyer neglects the legal matters he or she was retained to handle. In this case, Mr. Harmes was especially vulnerable. He told the Hearing Board that he suffered a serious back injury from an automobile accident, which left him in severe pain, struggling to make a living, and burdened with heavy debt. These circumstances led him to hire Respondent. Mr. Harmes relied on Respondent’s diligence and professionalism. At a minimum, Respondent owed Mr. Harmes and his other clients notice that he would no longer represent them. Such notice would have given Mr. Harmes the opportunity to find new counsel before the potential dismissal of his case.

3. Substantial experience in the practice of law: Respondent was admitted to the bar in 1988. Thus, he has ample experience in the practice of law.

The Hearing Board does not find a bad faith obstruction, in spite of the fact that Respondent did not participate in OARC’s investigation or these proceedings. According to the Colorado Rules of Civil Procedure, the People are entitled to a default under these circumstances. C.R.C.P. 251.15(b). Default was granted, which included a finding that Respondent violated Colo. RPC 8.1(b) (knowingly failing to respond to lawful demand for information from disciplinary authority). However, the record is insufficient to support a finding that Respondent’s failure to participate was motivated by an effort to intentionally obstruct these proceedings.

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

1. No prior discipline. At the sanctions hearing, the People informed the Hearing Board that Respondent has no prior disciplinary record.

2. No dishonest or selfish motive. There is no evidence that Respondent accepted a retainer or other funds from clients and failed to return them. To the contrary, Respondent took one or more depositions and engaged in other pre-trial activities on behalf of Mr. Harmes and never sought to recoup expenses.

Analysis Under Colorado Supreme Court Cases

Colorado Supreme Court cases applying the ABA Standards have three general categories regarding the appropriate sanction for client neglect and abandonment:

(1) One-year-and-one-day suspension for neglect. E.g. People v. Rishel, 956 P.2d 542 (Colo. 1998) (attorney suspended for one year and one day with special conditions for reinstatement for seriously neglecting two client matters); People v. Regan, 831 P.2d 893 (Colo. 1992) (attorney with no prior history of discipline, no dishonest or selfish motive, and significant personal and emotional issues suspended for one year and one day based on stipulated pattern of neglect and misrepresentation).

(2) Three-year suspension for abandonment. E.g. People v. Odom, 914 P.2d 342 (Colo. 1996) (attorney with prior history of similar discipline who defaulted in disciplinary proceedings suspended for three years for failing to keep civil client informed about important developments and, in another matter, for abandoning criminal client, creating a conflict of interest, and failing to perform requested services or return retainer); People v. Shock, 970 P.2d 966 (Colo. 1999) (attorney with no prior discipline suspended for three years following default for effectively abandoning two clients when aggravating factors included the presence of dishonesty or selfish motive, multiple offenses, a pattern of misconduct, and indifference to making restitution); In the Matter of Demaray, 8 P.3d 427 (Colo. 1999) (inexperienced attorney with no prior discipline suspended for three years for abandoning criminal client and causing potential serious harm, then failing to cooperate with investigation where no evidence of misappropriation of funds).

(3) Disbarment for abandonment plus other serious misconduct. E.g. People v. Townshend, 933 P.2d 1327 (Colo. 1997) (lawyer who had previously received letter of admonition and private censure disbarred for accepting advance fees from two clients then abandoning them without returning or accounting for unearned fees); People v. Valley, 960 P.2d 141 (Colo. 1998) (attorney who defaulted in disciplinary proceeding disbarred for abandoning law practice, disregarding court orders, and making misrepresentations to clients, where aggravating factors included previous discipline, dishonest or selfish motive, indifference to restitution, vulnerable victims, substantial legal experience, multiple offenses, a pattern of misconduct, and bad faith obstruction of disciplinary proceedings); People v. Steinman, 930 P.2d 596 (Colo.1997) (lawyer disbarred after accepting fees then abandoning clients and causing serious harm while failing to return the fees); People v. Tucker, 904 P.2d 1321 (Colo. 1995) (lawyer disbarred after abandoning clients while continuing to collect fees for work never performed).

As outlined above, the Supreme Court has approved sanctions ranging from suspension to disbarment in cases involving lawyers who have abandoned clients. In Demaray, for example, the Court found that a three-year suspension was appropriate for a lawyer who had abandoned his criminal client by failing to inform the client of his trial date and failing to appear for the trial. 8 P.3d at 427-28. The Hearing Board who heard that case, like the one here, found it difficult to make specific findings based upon the "the abbreviated record in these default proceedings."

The cases cited by the People in support of their argument for Respondent’s disbarment fall into the third category of neglect and abandonment cases outlined above. In these cases, there is other serious misconduct, including misappropriation of funds, in addition to client neglect or abandonment. These cases also involve aggravating factors such as prior discipline and dishonest motive. Such factors are not present here.

Moreover, disbarment is not always the appropriate sanction when an attorney neglects or abandons clients and then fails to participate and defaults in the disciplinary proceedings. As the Court stated in Rishel:

The respondent’s apparent abandonment of his clients makes it problematical whether a period of suspension, rather than disbarment, is adequate. As we said in People v. Odom, 914 P.2d [at 345], "[p]rior case law would sustain either a long period of suspension or disbarment in this case. However, ‘[g]iven the abbreviated record in these default proceedings, and the facts and circumstances of this particular case, we elect to [. . .] impose a period of suspension rather than disbarment.’ "

956 P.2d at 544 (internal quotation not cited is People v. Crimaldi, 854 P.2d 782, 786 (Colo. 1993)).

Though the record in this case is sparse, there is no doubt that Respondent abandoned his civil client, Mr. Harmes. Nor is there any doubt that he caused him emotional distress and potential financial injury. Respondent also neglected his criminal clients, Mr. Hernandez and Mr. Elder, and caused delay in their cases, although there is no evidence of actual or potential injury to these clients.

Respondent’s extensive legal experience is an aggravating factor. However, it can be considered a mitigating factor, as well, as he has no prior disciplinary record. There is no evidence that Respondent acted out of selfishness or dishonesty, or that he engaged in converting client funds or other egregious conduct. He did, however, abandon three clients and fail to participate in the disciplinary proceedings and must be appropriately sanctioned.

For these reasons, the Hearing Board concludes that Respondent should be suspended for a period of three years.

IV. ORDER

It is therefore ORDERED:

Joel E. Urbaniak, attorney registration no. 17513, is SUSPENDED from the practice of law in the State of Colorado for a period of three years, effective 31 days from the date of this Order.

Respondent 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.

_______

1. The Presiding Disciplinary Judge’s opinions provide a test that differentiates abandonment from neglect in attorney discipline cases. E.g. People v. Segal, 62 P.3d 173, 176 (Colo. O.P.D.J. 2002) (proof of abandonment requires, in addition to failure to accomplish specific tasks for clients and failure to communicate, evidence that attorney has deserted, rejected, or relinquished professional responsibilities). While the PDJ’s opinions offer guidance in these matters, they do not have precedential value. In the Matter of Roose, 69 P.3d 43, 48-49 (Colo. 2003).

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