Vol. 34, No. 7
From the Courts
Colorado Disciplinary Cases
Case Numbers: 03PDJ033
(consolidated with 04PDJ078)
THE PEOPLE OF THE STATE OF COLORADO,
STEVEN MARTIN SEGALL.
March 24, 2005
REPORT, DECISION AND IMPOSITION OF SANCTIONS
On January 19, 2005, the Presiding Disciplinary Judge ("PDJ" or "the Court"), William R. Lucero, conducted a Sanctions Hearing pursuant to C.R.C.P. 251.15(b). James C. Coyle, Deputy Regulation Counsel, appeared on behalf of the People of the State of Colorado ("the People"). Respondent Steven Martin Segall ("Respondent") did not appear, nor did counsel appear on his behalf. The PDJ issues the following Report.
SANCTION IMPOSED: ATTORNEY DISBARRED
As established by default, Respondent knowingly failed to perform agreed-upon legal services in eight client matters, effectively abandoned the practice by engaging in a continuous pattern of neglect, misappropriated client funds by keeping unearned fees, and violated several court orders (including his own child support obligation). Under the law for imposing lawyer discipline, such conduct can result in disbarment. As Respondent did not participate in the Sanctions Hearing, there is no mitigating evidence. Is disbarment the appropriate sanction?
II. PROCEDURAL HISTORY AND BACKGROUND
On May 5, 2003, the People filed a Complaint in case number 03PDJ033 ("First Complaint"; attached as Exhibit A). Respondent did not file an Answer to the First Complaint within the designated time frame. On June 18, 2004, the People filed a motion for default. On September 15, 2004, the PDJ determined that Respondent had been properly served pursuant to C.R.C.P. 251.32(b), and entered a default on all claims in the First Complaint. Upon entry of default under C.R.C.P. 251.15(b), all alleged facts are deemed admitted and all alleged rule violations are deemed established. People v. Richards, 748 P.2d 341 (Colo. 1987).
On August 2, 2004, the People filed a Complaint in case number 04PDJ078 ("Second Complaint"; attached as Exhibit B). Respondent did not file an Answer to the Second Complaint. On September 23, 2004, the People filed a motion for default. On October 18, 2004, the PDJ determined that Respondent had been properly served pursuant to C.R.C.P. 251.32(b), and entered a default on all claims in the Second Complaint. Upon entry of default under C.R.C.P. 251.15(b), all alleged facts are deemed admitted and all alleged rule violations are deemed established. Id.
On October 21, 2004, the People filed a Motion to Consolidate case numbers 03PDJ033 and 04PDJ078. On November 29, 2004, the PDJ granted the Motion to Consolidate. The Court scheduled a Sanctions Hearing on January 19, 2005. The People sent a Confirmation of Sanctions Hearing to Respondent. In addition, on November 17, 2004, counsel for the People discussed the Sanctions Hearing with Respondent by telephone and through email.1
The People recommend disbarment. Respondent failed to appear at the Sanctions Hearing or otherwise contest the People’s recommendation. At the Sanctions Hearing, the People did not present any witnesses. The People offered and the PDJ admitted three exhibits. Complainant’s Exhibits 1 and 2 are the Office of Attorney Regulation Counsel’s Combined Reports of Investigation, while Complainant’s Exhibit 3 is an email correspondence from counsel for the People to Respondent. Due to this sparse record, the Court must rely primarily on the facts and rule violations found in the First and Second Complaints in determining the appropriate sanction.
III. FINDINGS AND CONCLUSIONS
Respondent has taken and subscribed the Oath of Admission, was admitted to the Bar of the Colorado Supreme Court on October 17, 1980, and is registered upon the official records of the Colorado Supreme Court, registration number 10692. Respondent is therefore subject to the jurisdiction of this Court in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b).
For the purpose of determining the appropriate sanction, the Court has considered the facts established by the entry of default, the exhibits offered and admitted, and the People’s argument for disbarment. The factual background in this case is fully detailed in each of the admitted Complaints, which are hereby adopted and incorporated by reference.2 A brief synopsis follows.
The First Complaint enumerates Respondent’s misconduct with respect to four separate client matters (all domestic, involving divorce or child custody and support). In summary, Respondent neglected several cases, failed to file required items with the court, failed to provide discovery, failed to communicate with the clients for extended periods of time, failed to appear for appointments, hearings, and depositions, misrepresented his progress on a case to a client, misrepresented the status of an issue to an opposing party, failed to promptly provide a detailed accounting of fees, failed to participate in a suit brought against him by one of the clients for the return of the client’s retainer, and failed to respond to a request for investigation.
Thus, the First Complaint establishes that Respondent violated: Colo. RPC 1.3 (failure to act with reasonable diligence and neglect of entrusted legal matters); 1.4(a) (failure to keep client reasonably informed and respond to reasonable requests for information), 1.4(b) (failure to explain a matter to the extent reasonably necessary to permit client to make informed decisions); 1.16(d) (failure to take steps to protect client’s interest upon termination of representation); 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal); 8.1(b) (knowing failure to respond reasonably to a lawful demand for information from a disciplinary authority); and C.R.C.P. 251.5(d) (failure to respond to request by Regulation Counsel).
The Second Complaint enumerates Respondent’s misconduct concerning four additional client matters (all domestic, involving divorce or child custody and support) and one matter involving Respondent’s ex-wife. In summary, Respondent neglected several cases, failed to file required items with the court, failed to ensure that items filed complied with the rules, failed to communicate with clients, failed to advise clients of important issues and deadlines, failed to appear in court, failed to promptly return client files upon termination, failed to return unearned fees upon termination, and failed to respond to requests for investigation. In addition, Respondent failed to make court-ordered child support payments to his ex-wife.
Thus, the Second Complaint establishes that Respondent violated: Colo. RPC 1.3 (failure to act with reasonable diligence and neglect of entrusted legal matters); 1.4(a) (failure to keep client reasonably informed and respond to reasonable requests for information); 1.15(b) (failure to refund or account for retainer funds paid); 1.16(d) (failure to take steps to protect client’s interest upon termination of representation and failure to surrender papers and property to the client); 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal); 8.1(b) (knowing failure to respond reasonably to a lawful demand for information from a disciplinary authority); 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); 8.4(d) (conduct prejudicial to the administration of justice); and C.R.C.P. 251.5(d) (failure to respond to request by Regulation Counsel).
The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court caselaw are the guiding authorities for selecting and imposing sanctions for lawyer misconduct in Colorado. The appropriate sanction depends upon the facts and circumstances of each case.
Analysis Under the ABA Standards
Under the circumstances established in the Complaints, the appropriate sanction can range from a lengthy period of suspension to disbarment. According to ABA Standard 4.11, disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. However, suspension is generally appropriate, under ABA Standard 4.12, when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. According to ABA Standard 4.41, disbarment is generally appropriate when a lawyer abandons the practice, knowingly fails to perform services for a client, or engages in a pattern of neglect with respect to client matters, and the result is serious or potentially serious injury to a client. However, suspension is generally appropriate, under ABA Standard 4.42, when a lawyer knowingly fails to perform services or engages in a pattern of neglect, and the result is injury or potential injury to a client. According to ABA Standard 6.21, disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit and the result is serious or potentially serious (1) injury to a party or (2) interference with a legal proceeding. However, suspension is generally appropriate, under ABA Standard 6.22, when a lawyer knowingly violates a court order or rule and the result is (1) injury or potential injury to a client or party or (2) interference or with a legal proceeding.
In determining the appropriate sanction, ABA Standard 3.0 directs the Court to consider the following factors:
(1) the duty violated;
(2) the lawyer’s mental state;
(3) the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of aggravating and mitigating factors.
1. Duties Violated
First and foremost, Respondent violated the duties owed to his clients. These clients sought his counsel, trusted his judgment, and expected him to competently represent their interests. Respondent’s numerous egregious failures to act with diligence and honesty are set forth in the admitted Complaints, which are incorporated into this Report. In summary, Respondent allowed his clients to rely on him in matters affecting very personal aspects of their lives (divorce and child custody and support), and then deserted them. In some cases, Respondent attempted to conceal his neglect, while in other cases Respondent simply ceased all communication. Respondent’s clients also entrusted their money to him, which Respondent did not account-for or return. Respondent breached his duty to the courts by failing to abide by court orders, both on behalf of his clients and on his own behalf. Because Respondent violated his duties to his clients and the courts, he also breached his duties to the public and the legal profession. "Attorney misconduct perpetuates the public’s misperception of the legal profession and breaches the public and professional trust." In re DeRose, 55 P.3d 126, 131 (Colo. 2002) (paraphrasing In re Paulter, 47 P.3d 1175, 1178 (Colo. 2002)).
2. Mental State
Due to the fact that Respondent defaulted in this action, the PDJ is limited to the Complaints in determining Respondent’s state of mind. Entry of default established that Respondent acted knowingly when he neglected numerous client matters and failed to communicate with clients over an extended period of time. Respondent also acted knowingly when he misappropriated client funds and failed to pay court-ordered child support.
3. Injury Caused
The facts established by the entry of default support a finding that Respondent caused serious harm and potential harm to his clients and to his ex-wife and child(ren). For example, in one matter, Respondent cost his client $14,144 when he failed to represent her rights regarding child support.3 In other matters, Respondent neglected to assert his clients’ rights regarding the allocation of parental responsibility and parenting time, potentially harming the parent-child relationship.4 In addition, Respondent still owes a number of his clients several thousands of dollars in unearned attorney fees, causing financial harm to those clients.5 Finally, Respondent has financially harmed his former wife and child(ren) as a result of his failure to pay child support.
4. Aggravating and Mitigating Factors
A. Matters in Aggravation, ABA Standard 9.2
i. Prior Disciplinary Offenses
Respondent received a letter of admonition in 1997 for violating Colo. RPC 1.16(d), 1.14(a), and 1.15(b). In that matter, Respondent retained the entirety of a $7,500 flat fee, including any unearned portion, after the client terminated his services. Respondent also failed to provide an accounting despite written requests.
ii. Dishonest or Selfish Motive
As Respondent did not appear at the Sanctions Hearing, his actual motive is unclear. However, because Respondent has retained client funds,6 it is reasonable to draw the inference that he acted selfishly. And because Respondent made misrepresentations of fact to both a client7 and an opposing counsel’s staff member,8 it is reasonable to draw the inference that Respondent acted dishonestly.
iii. Pattern of Misconduct
As demonstrated in the admitted Complaints and outlined above, Respondent has developed a history (beginning in approximately 1999) of neglecting client matters, mishandling fees, failing to comply with court orders, and misrepresenting his progress on cases.
iv. Multiple Offenses
Through default, Respondent has admitted to 37 individual claims involving eight separate clients, and five additional claims involving his ex-wife.
v. Substantial Experience in the Practice of Law
Respondent was admitted to the Bar of this Court in 1980, and has been practicing law for nearly 25 years. Thus, he has substantial experience, and should understand his professional responsibilities as an attorney.
vi. Indifference to Making Restitution
Respondent owes four clients for unearned and unreturned retainer fees,9 and his ex-wife for a considerable amount of unpaid child support. Respondent has not made restitution. Nevertheless, there is no evidence in the record to show that his failure to do so is the result of indifference rather than a lack of ability. Therefore, the PDJ finds no aggravation for this factor.
B. Matters in Mitigation, ABA Standard 9.3
Under ABA Standard 9.31, mitigating circumstances are considerations that may justify a reduction in the degree of discipline to be imposed. However, Respondent did not appear at the Sanctions Hearing. Thus, there is no evidence in mitigation.
Analysis Under Colorado Supreme Court Caselaw
Colorado Supreme Court cases applying the ABA Standards fall into three general categories regarding the appropriate sanction for client neglect and abandonment:10
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).
In fact, disbarment is the presumptive sanction for knowing conversion alone. Knowing conversion "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 lawyers intent regarding whether the deprivation is temporary or permanent, are relevant for disciplinary purposes. Id. at 10-11. The Colorado Supreme Court has indicated that a lawyer’s knowing misappropriation of funds, whether belonging to a client or third party, warrants disbarment except in the presence of extraordinary factors in mitigation. Id. at 11; People v. McGrath, 780 P.2d 492, 493 (Colo. 1989); People v. Lavenhar, 934 P.2d 1355, 1359 (Colo. 1997); In re Thompson 991 P.2d 820, 823 (Colo. 1999); In the Matter of Fischer, 89 P.3d 817 (Colo. 2004). However, the Court has also recognized the relevance of the specific type of conversion at issue (i.e. stealing funds, commingling funds, retention of unearned funds, etc.). E.g. Fischer, 89 P.3d at 821. In Townshend, 933 P.2d 1327, the conversion consisted of failure to return unearned fees, which was part of a pattern of neglect and abandonment. The respondent in that case was disbarred. Id.
Respondent’s conduct involves more than a simple case of client neglect. The admitted Complaints reveal a pattern of neglect affecting numerous clients, effective abandonment of those clients, and misappropriation of funds tendered for the performance of specific services. This combination of client abandonment plus the failure to return unearned fees warrants serious discipline. Both the ABA Standards and Colorado Supreme Court caselaw support disbarment under such circumstances, absent extraordinary factors in mitigation. No mitigating evidence has been presented. Thus, upon consideration of the nature of Respondent’s misconduct, his mental state, the significant harm and potential harm caused, the presence of several aggravating factors, along with the absence of mitigating factors, the Court concludes that there is no justification for a sanction short of disbarment.
It is therefore ORDERED:
1. STEVEN MARTIN SEGALL, attorney registration number 10692, is DISBARRED from the practice of law in the State of Colorado, 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.
2. Respondent shall pay the costs of these proceedings. The People shall submit a Statement of Costs within fifteen (15) days from the date of this Order. Respondent shall have ten (10) days thereafter to submit a response.
1. Complainant’s Exhibit 3.
2. The Complaints in 03PDJ033 and 04PDJ078 are attached to this Report as Exhibits A and B.
3. First Complaint, Exhibit A (Stambaugh Matter).
4. First Complaint, Exhibit A (Edelman Matter); Second Complaint, Exhibit B (Wineinger-Deming and Casperson-Salensky Matters).
5. Second Complaint, Exhibit B (Wineinger-Deming, Cummings, Casperson-Salensky, Butler Matters).
6. Second Complaint, Exhibit B (Wineinger-Deming, Cummings, Casperson-Salensky, Butler).
7. First Complaint, Exhibit A (Kirk Matter).
8. First Complaint, Exhibit A (Edelman Matter).
9. The four clients are: Wineinger-Deming, Cummings, Casperson-Salensky and Butler.
10. While the distinction between neglecting clients and abandoning them is not clear, 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). The PDJ’s opinions offer guidance in these matters, but they do not have precedential value. In the Matter of Roose, 69 P.3d 43, 48-49 (Colo.2003).
Case Number: 04PDJ080
THE PEOPLE OF THE STATE OF COLORADO,
CLARK S. SPALSBURY, JR.
April 12, 2005
OPINION AND ORDER IMPOSING SANCTIONS
On February 7, 2005, a Hearing Board consisting of William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), and Linda Kato and Bruce Sattler, both members of the bar, conducted a Trial on the issue of sanctions pursuant to C.R.C.P. 251.18. Fredrick J. Kraus, Assistant Regulation Counsel, appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Respondent Clark S. Spalsbury, Jr. did not appear, nor did counsel appear on his behalf.
ATTORNEY SUSPENDED FOR ONE YEAR & ONE DAY
Respondent and his wife divorced in November 2002 and the district court ordered him to pay monthly child support. Although Respondent is aware of this obligation, he has not made a payment since September 2003 and now owes over $10,000. Generally, suspension is the appropriate sanction if a lawyer knowingly violates a court order and thereby causes injury. Respondent claims he is unemployed and cannot pay. Has he nevertheless violated the court’s order?
The Hearing Board heard no evidence about Respondent’s ability to pay child support because Respondent did not participate in the Sanctions Hearing. The Hearing Board therefore concludes that suspension for a year and a day is the appropriate sanction.
II. PROCEDURAL HISTORY AND BACKGROUND
On April 12, 2004, the People petitioned the Court to immediately suspend Respondent under 251.8.5 for nonpayment of child support. On June 17, 2004, the PDJ granted this request. Suspension under this provision, however, is not discipline.1
On August 17, 2004, the People filed a Complaint against Respondent, initiating the present action and charging violation of the Colorado Rules of Professional Conduct based upon his failure to pay child support. On September 9, 2004, Respondent filed a Response to Complaint. Respondent did not contest his non-payment of child support. Rather, he denied the validity of the most recent child support order (increasing his obligation from $569 per month to $650 per month) and denied that his violation of the order was willful or voluntary, claiming an inability to pay due to his ex-wife’s wrongful actions and the resulting loss of his job. On November 10, 2004, the People filed two related motions: a Motion for Summary Judgment and a Motion in Limine. Both motions concerned Claim I, charging violation of Colo. RPC 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal). The People argued that inability to pay child support is irrelevant to 3.4(c). On December 13, 2004, Respondent filed responses to both motions. On December 16, 2004, the Court granted both the Motion for Summary Judgment and the Motion in Limine. However, the Court specifically found that Respondent’s state of mind and any inability to pay have relevance to the appropriate sanction. The Court set the Sanctions Hearing for February 7, 2005.
After the entry of summary judgment, the People filed two motions complaining that Respondent was not cooperating in discovery, as he had failed to attend his deposition and failed to produce requested documents. Respondent filed no response, but the Court was aware that Respondent was residing in Kansas and may have had limited funds to come to Colorado for the deposition. Therefore, on January 12, 2005, the PDJ ordered Respondent to submit a written statement detailing his proposed testimony, accompanied by any documents he planned to present in mitigation. Failure to do so would result in the preclusion of his testimony and the withheld documents pursuant to C.R.C.P. 37(b). Respondent did not supply the People with the ordered discovery, and he failed to appear at the Sanctions Hearing on February 7, 2005.
Based upon the summary judgment in favor of the People, there is no dispute as to the material facts relating to Claim I of the Complaint, and thus Respondent’s violation of Colo. RCP 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal) is established as a matter of law. Subsequently, the People moved to dismiss Claims II and III of the Complaint, a request that the Court granted on March 28, 2005.
Respondent has taken and subscribed the Oath of Admission, was admitted to the bar of this Court on November 3, 1981, and is registered upon the official records of this Court (registration number 11656). He is therefore subject to the jurisdiction of this Court in these disciplinary proceedings. Respondent’s registered business address is P.O. Box 2008, Estes Park, Colorado 80517. Other addresses Respondent has used include: P.O. Box 4601, Lawrence, KS 66045 and 8505 East Alameda Ave., Suite 3234, Denver, Colorado 80230-6069.
Undisputed Facts Established by Summary Judgment
On November 19, 2002, the district court in Larimer County, Colorado issued Permanent Orders in Respondent’s divorce case, 2001 DR 1411, styled In re: The Marriage of Spalsbury. Under the Permanent Orders, Respondent was required to pay $569.00 per month child support beginning December 2002. On August 15, 2003, the Respondent filed an Emergency Motion to Terminate, Modify, and Abate Child Support.
On November 14, 2003, a magistrate heard evidence on Respondent’s request to terminate the child support order. The magistrate considered evidence presented by Respondent and his ex-wife during a three-hour hearing, and then allowed both parties to file closing arguments in writing. After reviewing the evidence and the arguments of the parties, the magistrate issued an order on December 2, 2003, denying Respondent’s motion to terminate child support and increasing his obligation to $650.00 per month. The increase was retroactive to September 2003. This order has not been modified and remains in effect to date.
Respondent knew of the permanent order and the order of modification shortly after they were entered in the case. Evidence of his knowledge is contained in the attorney registration form filed with the Colorado Supreme Court on February 25, 2004. Therein, he admitted that he was not in compliance with his child support obligation.
Respondent made a child support payment of $569.00 in September 2003. This was the last voluntary payment he made. In May 2004, the child support unit in Larimer County intercepted Respondent’s state income tax refund and applied $301.00 to his child support obligation. No further credits have been made.
Findings of Fact by Clear and Convincing Evidence
At the Sanctions Hearing, the People offered and the PDJ admitted Exhibits 1-5, which constitute documentary evidence of Respondent’s child support obligation and his failure to meet that obligation. Respondent currently owes in excess of $10,000. The People also called Cynthia Sisson, Respondent’s former wife, to testify. Ms. Sisson testified to events leading up to Respondent’s most recent unemployment. She also testified to the hardships that the family has endured as a result of Respondent’s failure to pay child support. However, she did not express any position on the sanction to be imposed.
Respondent and Ms. Sisson have a son and a daughter, ages 12 and 18, respectively. They reside with Ms. Sisson in Estes Park, Colorado. Prior to February 2003, Respondent was employed as a Deputy District Attorney in Burlington, Colorado. He voluntarily quit that job, without having other employment. In late June 2003, Respondent accepted a job as a Deputy District Attorney in Grand, Routt and Moffat Counties. However, he was terminated from that job one month later, as a result of an incident with Ms. Sisson. As found by the district court magistrate, Respondent drove to Ms. Sisson’s home for a parenting time exchange. They argued about when their son would be returned to Ms. Sisson, and Respondent pushed Ms. Sisson away from his vehicle. Respondent called the police. The police arrived and arrested him. Although the criminal charges were later dropped, Respondent lost his job due to his resulting inability to handle domestic violence cases. The district court magistrate found that Respondent voluntarily terminated the position because the dispute was a voluntary act and Respondent should have known the likely consequences, based upon his legal training and experience.
Since Respondent ceased paying child support, money has been a constant worry for Ms. Sisson and their family. They have had to do without or save up for necessities, such as shoes. In addition, they have accepted help from friends and charities in the form of food, clothing, Christmas gifts, and home repairs. The children have had to drop certain extra-curricular activities or find a sponsor for the activities. Ms. Sisson is a physical therapist. To make ends meet, she had to leave her school district job for a position at a local hospital.
Respondent has asserted in pleadings that he has not willfully violated the child support order. Rather, Respondent claims that his failure to pay is simply the result of his present lack of employment, a fact for which he blames Ms. Sisson. However, Respondent did not appear at the Sanctions Hearing. Thus, he did not present any evidence, either testimonial or documentary, regarding his inability to pay child support. In fact, the Hearing Board did not hear any evidence in mitigation. The People request the Hearing Board to suspend Respondent for one year and one day, with the possibility of early termination if Respondent either (1) pays all child support owed or (2) fashions a repayment plan with the district court and demonstrates at least three months of compliance.
IV. IMPOSITION OF SANCTIONS
The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting the appropriate sanction to impose for lawyer misconduct. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). The appropriate sanction depends upon the facts and circumstances of each case.
"Willful failure to pay court-ordered child support is serious professional misconduct," which ordinarily warrants a period of suspension from the practice of law. People v. Primavera, 904 P.2d 883. 885 (Colo. 1995); People v. Tucker, 837 P.2d 1025 (1992). In fact, under ABA Standard 6.22, the presumptive sanction relevant to Respondent’s conduct is suspension: "Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or party." A lawyer acts with knowledge when he is aware of his conduct, but is without a conscious objective to produce a particular result. ABA Standards, Black Letter Rules and Commentary. In determining whether the presumptive sanction is suitable in a particular case, 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.
1. Duties breached
The issue of Respondent’s child support obligation has been fully litigated twice. Each time, the district court has issued binding orders. A judicial declaration, entered during Respondent’s unemployment, obligates him to pay $650 per month. This order is still outstanding. By failing to pay, Respondent abandoned his duties to his children, to support them and ensure that their needs are met. In addition to this social duty, Respondent has also breached his duty to honor court orders. As an officer of the court, Respondent’s has a special duty to respect and adhere to court orders, even when they involve private rather than professional matters. Because Respondent violated his duty to the court, he also breached a duty owed to the public and the legal profession. "Attorney misconduct perpetuates the public’s misperception of the legal profession and breaches the public and professional trust." In re DeRose, 55 P.3d 126, 131 (Colo. 2002) (paraphrasing In re Paulter, 47 P.3d 1175, 1178 (Colo. 2002)).
2. Mental state of the lawyer
As he is aware of his obligation to pay child support to Ms. Sisson, Respondent acted knowingly when he failed to do so. Although Colo. RPC 3.4(c) requires only a knowing mental state, there is evidence that Respondent acted willfully. For example, when the district court magistrate decided to increase Respondent’s child support obligation, it was determined that he is voluntarily unemployed. Respondent was given the chance to present mitigating evidence of his mental state in these proceedings; he declined this opportunity.
3. Actual or potential injury caused
Respondent’s children and ex-wife have suffered the financial consequences of not receiving child support from Respondent. The family has struggled to make ends meet. They have had to seek outside assistance, including from charities whose resources could have been used to help other families. Respondent has certainly injured his relationship with his children, as they are old enough to be aware of the situation. In addition, Respondent has caused injury to our system of justice, by failing to honor court orders.
4. Aggravating and mitigating evidence
a. Mitigating Factors, ABA Standard 9.3
1. No Prior Discipline
Respondent has no prior discipline in the approximately 24 years that he has been licensed to practice law.
2. Imposition of Other Penalties
Respondent is currently suspended under C.R.C.P. 251.8.5(a) for failure to pay child support. While suspension under this provision is not discipline, it is a forfeiture suffered for the same conduct charged in these proceedings.
b. Aggravating Factors, ABA Standard 9.2
1. Selfish Motive
Respondent has made claims that the reason for his failure to pay child support is his unemployment. However, the district court magistrate determined that this unemployment is voluntary. In addition, there is no evidence in the record that Respondent is currently unable to work or otherwise incapable of honoring his child support obligation. Given this background, the Hearing Board finds that Respondent has a selfish motive in not paying child support.
2. Refusal to Acknowledge Wrongful Conduct
Respondent did not appear at the Sanctions Hearing, and nothing in the record indicates an acknowledgement by Respondent that his conduct is wrongful. Given these circumstances, the Hearing Board finds that Respondent has refused to acknowledge the wrongfulness of his conduct.
3. Vulnerability of Victim
Respondent’s children are most affected by his failure to pay child support, and they are vulnerable. Both require Respondent’s financial assistance, for immediate necessities and for future educational expenses. Respondent’s failure to contribute to the family directly impacts his children and places additional burdens on his former wife.
4. Substantial Experience in the Practice of Law
As noted above, Respondent was admitted to the Colorado bar in 1981. He thus has approximately 24 years experience in the practice of law, and should be well-aware of his duty to obey court orders.
Upon consideration of the duties breached, the resulting injuries, Respondent’s mental state, and the mitigating and aggravating factors, the Hearing Board finds this case to be similar to People v. Hanks, 967 P.2d 144 (Colo. 1998), in which an attorney was suspended for one year and one day for willful failure to satisfy child support obligations. The Hearing Board thus concludes that there is no reason to depart from the presumption that Respondent should be suspended for knowing disobedience of the district court’s child support order. The People have requested a one-year-and-one-day suspension, to terminate earlier upon payment of all child support or upon a showing of "some" compliance with a payment plan arranged with the district court. See In the Matter of Green, 982 P.2d 838 (Colo. 1999). The Hearing Board finds this to be a reasonable and appropriate sanction.
It is therefore ORDERED:
1. CLARK S. SPALSBURY, attorney registration no. 11656, is SUSPENDED from the practice of law in Colorado for a period of ONE YEAR AND ONE DAY, effective thirty-one (31) days from the date of this Order.
2. CLARK S. SPALSBURY may petition for early reinstatement upon either (1) payment of all child support currently due and owing or (2) negotiation of a repayment plan with the district court and demonstration of compliance for at least three consecutive months. Payment of all support due or compliance with a repayment plan is an express condition of reinstatement, regardless of whether the entire suspension period has elapsed.
3. CLARK S. SPALSBURY 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 within which to respond.
1. Application of 251.8.5 does not bar a disciplinary action for violation of the Colorado Rules of Professional Conduct.
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