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TCL > November 2005 Issue > Disciplinary Opinions

November 2005       Vol. 34, No. 11       Page  137
From the Courts
Colorado Disciplinary Cases

Disciplinary Opinions

The Colorado Supreme Court 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, together with a two-member hearing board, issues orders 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 accessible from the CBA website: http://www.cobar.org (click on The Colorado Lawyer tab, then the appropriate issue). Opinions, including Exhibits, Complaints, and Amended Complaints and summaries, also are 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: 05PDJ013

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

GEORGE A. BODE.

July 21, 2005

REPORT, DECISION, AND IMPOSITION OF SANCTION

This matter is before the Presiding Disciplinary Judge ("PDJ" or "the Court") on the issue of sanctions. In this case, April M. Seekamp represented the People. Respondent George A. Bode did not participate.

SANCTION IMPOSED: THREE-YEAR SUSPENSION

I. ISSUE

Under the rules for imposing reciprocal discipline, this Court must impose the same discipline as the foreign jurisdiction unless deemed inappropriate under the circumstances. This action is based upon Respondent’s seven-year suspension from practice before the U.S. Patent and Trademark Office (with four years stayed). Respondent failed to appear and failed to challenge the validity of the PTO’s suspension order. Should the Court therefore impose a three-year suspension, the Colorado equivalent to the PTO’s sanction?

The PDJ finds that reciprocal discipline is appropriate.

II. PROCEDURAL HISTORY AND BACKGROUND

On January 27, 2005, the People filed the present Complaint, requesting that the Court suspend Respondent from the practice of law in Colorado based upon a Final Decision of the Director of the United States Patent and Trademark Office ("PTO"), issued on July 28, 2004 on behalf of the Under Secretary of Commerce for Intellectual Property. The Final Order affirmed the findings, conclusions, and imposition of discipline contained in an Initial Decision rendered by an Administrative Law Judge on August 21, 2003. The People sent the Complaint, with the Initial and Final Decisions attached, to Respondent via regular and certified mail. Respondent did not file an answer.

On May 9, 2005, the People filed a Motion for Default. On June 6, 2005, the PDJ granted this motion pursuant to C.R.C.P. 251.15(b) and C.R.C.P. 121 § 1-14. Upon entry of default, all facts in the Complaint are deemed admitted, and all rule violations in the Complaint are deemed established. See People v. Richards, 748 P.2d 341 (Colo. 1987).

In the Motion for Default, the People requested that the Court impose a three-year suspension without a hearing on sanctions. However, the PDJ determined that Respondent must be given an opportunity to challenge the reciprocal discipline through the presentation of evidence and argument. ABA Standards for Imposing Lawyer Sanctions 2.9, Commentary (1991 & Supp. 1992) ("ABA Standards"). Therefore, the PDJ ordered Respondent to state his position on sanctions and request a hearing, if desired, on or before June 21, 2005. Respondent did not file any response or request a hearing. Accordingly, the Court will impose discipline in this matter without a hearing and upon the existing record. The People argue that a three-year suspension is appropriate reciprocal discipline in this case.

III. FACTS AND RULE VIOLATIONS

For sanction purposes, the PDJ considered the following: the facts and rule violations established by the entry of default,1 the August 21, 2003 Initial Decision by the PTO in proceeding number D02-14,2 the July 28, 2004 Final Decision by the PTO in proceeding number D02-14,3 and the People’s argument for reciprocal discipline under 251.21.4

Respondent has taken and subscribed the Oath of Admission in Colorado, was admitted to the bar of this Court on February 4, 1991, and is registered upon the official records of this Court, registration no. 20224. He is therefore subject to the jurisdiction of this Court in these disciplinary proceedings. C.R.C.P. 251.1(b).

The admitted Complaint is attached to this Report as Exhibit 1, and the PTO Decisions are attached to this Report as Exhibit 2. These documents contain all factual findings and rule violations, and are incorporated as if set forth fully herein. In brief summary, the PTO found by clear and convincing evidence that Respondent engaged in professional misconduct. Respondent backdated certificates of mailing for matters pending before the5 which constitutes misrepresentation and knowing misuse of certificates of mailing, and adversely reflects upon his fitness to practice law. Respondent failed to communicate with clients, which resulted in the abandonment of eight patent and trademark applications. Respondent also neglected legal matters, failed to carry out professional contracts of employment, and failed to respond to the PTO’s disciplinary authority.

The Initial Decision declared that all of Respondent’s violations were "serious" and some of them reflect an "on-going pattern and practice." The Initial Decision also discussed a "thread of dishonesty," as well as Respondent’s apparent lack of remorse. In mitigation, the Initial Decision stated that Respondent is a bright, capable, and experience practitioner without previous discipline. The Final Decision upheld these findings on appeal. Thus, the PTO suspended Respondent from practice before that Office for a period of seven years. The final four years of the suspension is stayed, and Respondent will be placed on probation during that period.

IV. SANCTIONS

The Colorado Rules of Civil Procedure and the ABA Standards are the guiding authorities for imposing reciprocal discipline for lawyer misconduct. Reciprocal discipline is the imposition of a sanction for conduct that already gave rise to discipline in another jurisdiction. C.R.C.P. 251.21(a) provides:

Except as otherwise provided by these Rules, a final adjudication in another jurisdiction of misconduct constituting grounds for discipline of an attorney shall, for purposes of proceedings pursuant to these Rules, conclusively establish such misconduct.

The purpose of this rule is to enhance public confidence in the profession by preventing lawyers admitted to practice in more than one jurisdiction from avoiding the effect of discipline by simply practicing in another jurisdiction. ABA Standard 2.9, Commentary. For reciprocal discipline purposes, a federal agency such as the PTO can be considered a "jurisdiction." See People v. Hartman, 744 P.2d 482 (Colo. 1987) (reciprocal discipline for sanctions imposed by tax court). In this case, reciprocal discipline is appropriate because Colorado has an interest in preventing the conduct that gave rise to Respondent’s suspension by the PTO. Also, the conduct was measured by essentially the same standards. Thus, adjudication by the PTO conclusively establishes the misconduct for discipline in Colorado.

Under C.R.C.P. 251.21(d), the same discipline should be imposed in Colorado as in the foreign jurisdiction. However, respondent attorneys have the opportunity to challenge the validity of discipline imposed elsewhere on any of the following bases: (1) the procedure in the other jurisdiction did not comport with due process requirements; (2) the proof upon which the other jurisdiction relied is so infirm that the Court cannot accept the determination as final and remain consistent with its duty; (3) the imposition of the same discipline would result in "grave injustice"; or (4) the misconduct proved warrants a "substantially different" form of discipline. C.R.C.P. 251.21(d)(1)-(4).

Respondent failed to make any appearance in this action. Respondent did not contest the validity of the PTO Decisions. Respondent did not make any claim that the PTO denied him due process or relied upon infirm evidence. Respondent did not show the Court that a suspension in Colorado would result in "grave injustice." Respondent did not present any evidence or argument that the misconduct, established by the PTO Decisions, warrants a different form of discipline.

The People seek a three-year suspension. This sanction is proper under the circumstances. First, Colorado law does not provide for a seven-year suspension. C.R.C.P. 251.6(b) ("Suspension . . . shall be for a definite period of time not to exceed three years."). Second, the PTO stayed the final four years of the suspension, and will place Respondent on probation during that period. Therefore, the Court concludes that a three-year suspension complies with the "same discipline" requirement of C.R.C.P. 251.29(d).

V. CONCLUSION

The discipline ordered by the PTO is reciprocally appropriate in this case. The PTO provided Respondent with due process by affording him the opportunity to respond to the disciplinary charges against him. After that case was fully adjudicated, the PTO found by clear and convincing evidence that Respondent committed multiple ethical violations under the PTO disciplinary rules. As a result, the PTO suspended Respondent from practice before that Office. Respondent was also afforded ample opportunity to respond to the Complaint filed with this Court, based upon his conduct before the PTO. Respondent declined to do so, and thus there is no basis upon which to conclude that reciprocal discipline in Colorado is inappropriate under C.R.C.P. 251.21(d). Accordingly, the PDJ finds that the imposition of a three-year suspension, a similar sanction to that imposed by the PTO, is proper under 251.21.

Accordingly, the Court concludes that Respondent should be suspended from the practice of law in the State of Colorado for a period of three years.

VI. ORDER

It is therefore ORDERED:

GEORGE A. BODE, attorney registration 20224, is SUSPENDED from the practice of law for a period of three years, effective thirty-one (31) days from the date of this Order.

GEORGE A. BODE 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 within which to file a response.

_______

1. Contained in the Complaint, which is attached to this Report as Exhibit 1.

2. Attached to the Complaint as the People’s Exhibit A; attached to this Report as Exhibit 2.

3. Attached to the Complaint as the People’s Exhibit B; attached to this Report as Exhibit 2.

4. Contained in the Motion for Default.

5. In actions before the PTO, the certificate of mailing date is deemed the filing date and can have substantial legal implications.

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