Vol. 35, No. 1
From the Courts
Colorado Disciplinary Cases
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: 04PDJ073
(consolidated with 04PDJ088, 04PDJ098 and 04PDJ105)
THE PEOPLE OF THE STATE OF COLORADO,
CHISTOPHER BRADLEY CALBO.
October 3, 2005
REPORT, DECISION, AND ORDER IMPOSING SANCTIONS
On August 4, 2005, William R. Lucero, the Presiding Disciplinary Judge ("the Court"), held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Cynthia D. Mares appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Christopher Bradley Calbo ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions:
SANCTION IMPOSED: ATTORNEY DISBARRED
Disbarment is generally an appropriate sanction when a lawyer knowingly converts client property, or knowingly fails to perform services and engages in a pattern of neglect, which causes serious or potentially serious injury to his clients. Respondent knowingly converted several thousands of dollars in client funds, knowingly failed to perform services for several clients, and failed to present any evidence to mitigate his misconduct. Is the presumptive sanction of disbarment appropriate under these circumstances?
Respondent failed to participate in these consolidated1 proceedings, and the Court granted the People’s Motions for Default on October 15, 2004, December 10, 2004, and January 31, 2005. Upon the entry of a default, all facts in the Complaint are deemed admitted and all rule violations in the Complaint are deemed established. People v. Richards, 748 P.2d 341, 346 (Colo. 1987). At the Sanctions Hearing, the People presented a record of their efforts to locate Respondent, which included a statewide search of the county jails.2
The factual background in this case is fully detailed in the Complaints, which are hereby adopted and incorporated by reference.3 Respondent essentially failed to meet his professional responsibilities in twelve separate client matters. Respondent engaged in very serious misconduct that included neglect, failure to communicate, knowing violation of court orders, failure to return client files and retainer, conduct prejudicial to the administration of justice, conversion, abandonment of clients, and failure to cooperate in these disciplinary proceedings.
The facts admitted through the entry of default in these cases constitute multiple violations of Colo. RPC 1.3 (neglect of a client matter); Colo. RPC 1.4(a) (failure to keep a client reasonably informed about the status of a matter); Colo. RPC 1.16(d) (failure upon termination of representation to take steps to the extent reasonably practicable to protect a client’s interests); Colo. RPC 3.4(c) (knowing failure to comply with a court order); Colo. RPC 5.5 (a) (practicing law in violation of the regulations of the legal profession); Colo. RPC 8.1(b) (knowing failure to respond reasonably to a lawful demand for information from a disciplinary authority) and Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); Colo RPC 8.4(d) (conduct prejudicial to the administration of justice).
The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client under ABA Standard 4.11. Disbarment is also generally appropriate when a lawyer knowingly fails to perform services or engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client under ABA Standard 4.41. Therefore, disbarment is the presumptive sanction for Respondent’s misconduct in this case.4 The Court must also, however, examine the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating and mitigating evidence pursuant to ABA Standard 3.0.
Respondent’s failure to participate in these proceedings in a meaningful way leaves the Court with no other option but to consider only the allegations and rule violations set forth in the Complaints in evaluating the factors listed above. The Court finds Respondent breached his duties to his clients, the public, and the legal profession. The entry of default in these cases establish Respondent’s knowing mental state when he converted funds entrusted to him by clients, and a knowing failure to perform services and pattern of neglect with respect to client matters. Finally, the facts established by the entry of default in these cases also support a finding of actual and potential harm to Respondent’s clients and the legal profession.
The People allege several aggravating factors including dishonest or selfish motive, a pattern of misconduct, multiple offenses, and indifference to making restitution to most clients. Due to an absence of evidence to the contrary, the Court finds clear and convincing evidence of these aggravating factors. It may be fairly presumed Respondent used client funds for his own purposes, failed his professional duties to multiple clients, and engaged in a pattern of neglect, deceit, and abandonment. In support of these allegations, the People offered statements from two former clients. The first client lost decision-making in a child custody case, and the second client suffered a $67,000.00 default judgment as a result of Respondent’s negligence and abandonment. Finally a representative of the Client Protection Fund testified this fund paid $20,500.00 in claims to Respondent’s abandoned clients for unearned retainers.
The People also offered that they were prepared to negotiate a sanction short of disbarment with Respondent if he would make restitution to his former clients and complete a drug rehabilitation program. Although Respondent apparently received funds from his federal court appointment work in an amount sufficient to pay restitution to his former clients, he did not do so.
Respondent’s failure to appear at the Sanction Hearing precluded significant evidence of mitigating factors. The Court notes, however, that Respondent does not have a prior disciplinary record, and the People offer that Respondent cooperated with them to the limited extent that he attended and completed a drug rehabilitation program.
Colorado Supreme Court case law applying the ABA Standards holds disbarment is the presumptive sanction for conversion of client funds. Knowing conversion or misappropriation of client money "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. Significant mitigating factors may overcome the presumption of disbarment, however, none are presented in this case. See In re Fischer, 89 P.3d 817 (Colo. 2004).
Disbarment is also considered an appropriate sanction in cases involving a lawyer who knowingly fails to perform services and engages in 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 Supreme Court disbarred the attorney. See also People v. Williams, 845 P.2d 1150 (Colo. 1993) (disbarment warranted when lawyer neglects legal matter, fails to return client’s retainer, evades service of process, fails to respond to request for investigation, and abandons practice).
One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. The facts established in the Complaints reveal the serious danger Respondent poses to the public. Abandoning clients and converting client funds warrants serious discipline. Absent extraordinary factors in mitigation not presented here, the ABA Standards and Colorado Supreme Court case law applying the ABA Standards both support disbarment. Thus, upon consideration of the nature of Respondent’s misconduct, his mental state, the significant harm and potential harm caused, and the absence of mitigating factors, the Court concludes there is no justification for a sanction short of disbarment.
It is therefore ORDERED:
1. CHRISTOPHER BRADLEY CALBO, attorney registration number 29149, 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.
2. CHRISTOPHER BRADLEY CALBO SHALL reimburse the Colorado Attorneys’ Fund for Client Protection $20,500.00, and pay restitution to any unpaid clients including Ron Phinney ($3,000.00).
3. CHRISTOPHER BRADLEY CALBO SHALL 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. On November 29, 2004, the Court granted the People’s Motion to Consolidate 04PDJ088 with 04PDJ073, and Motion to Consolidate 04PDJ098 with 04PDJ073. On December 10, 2004, the Court granted the People’s Motion to Consolidate 04PDJ105 with 04PDJ073.
2. The People offered Exhibits 9-13 (pending criminal complaints against Respondent, including one class 3 felony) to demonstrate the People’s efforts to locate and once again advise Respondent of his right to participate in these proceedings. Although it may be argued that this evidence shows a pattern of misconduct, the conduct alleged in these complaints is not related to the allegations set forth in the consolidated complaints. The Court will not consider this evidence of aggravation under ABA Standard 9.3. The allegations in the consolidated complaints are alone sufficient to warrant disbarment.
3. The consolidated Complaints are attached to this Report as Exhibit A.
4. Since disbarment is the presumptive sanction based upon Respondent’s knowing conversion and neglect of multiple clients, the Court deems it unnecessary to discuss in detail the other rule violations contained in the Complaints.
Case Number: 03PDJ060
THE PEOPLE OF THE STATE OF COLORADO,
ROBERT J. SCHUBERT.
November 3, 2005
DECISION RE: SANCTIONS PURSUANT TO C.R.C.P. 251.15(b)
The Presiding Disciplinary Judge William R. Lucero, and Hearing Board Members LaRae Orullian, a bank officer, and David A. Roth, a member of the Bar, issue the following findings of fact and decision.
SANCTION IMPOSED: ATTORNEY DISBARRED
I. PROCEDURAL BACKGROUND
This case concerns the Respondent’s conduct in six separate cases involving conversion, mishandling client funds, and effectively abandoning client matters.
A complaint was filed on November 7, 2003. The citation and complaint were served on November 7, 2003 upon Respondent Robert James Schubert ("Respondent/Schubert") by certified mail at his registered business and home addresses, in accordance with C.R.C.P. 251.32(b). The People filed proof of service of the citation and complaint on November 13, 2003.
The Respondent did not answer the complaint. On March 10, 2004 the Presiding Disciplinary Judge entered a default as to each claim pled. The effect of the entry of default is that all factual allegations and rule violations set forth in the Complaint are deemed admitted and proved by clear and convincing evidence. C.R.C.P. 251.15(b); People v. Richards, 748 P.2d 341 (Colo. 1987). The complaint is attached as Exhibit A. This opinion summarizes the facts and rule violations charged in the complaint. For the details of underlying facts, see the attached Complaint [available on PDJ website].
The Respondent failed to appear at the sanctions hearing, and no evidence regarding mitigation was offered or received by the Hearing Board. Evidence of the Respondent’s prior discipline, a three-year suspension, was admitted, as were the reports of investigation prepared pursuant to C.R.C.P. 251.12, regarding the Prince, Shimatsu, Aguirre (ARC), Narans and Fernandez client matters alleged in the Complaint and a statement from one client, Sherri L. Ware, pursuant to C.R.C.P. 251.18(a).
II. SUMMARY OF FINDINGS AND CONCLUSIONS
Respondent has taken and subscribed the oath of admission, was admitted to the Bar on May 29, 1985, and is registered upon the official records of this Court, registration number 14695. Respondent is, therefore, subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).
The claims against the Respondent established by the entry of default arise from six client matters involving the following rule violations:
(1) Knowing conversion of client funds based on Respondent’s failure to earn fees paid as retainers and using these funds for his own purposes in violation of Colo. RPC 8.4(c) (all six client matters);
(2) Failure to hold property of clients separately by depositing funds belonging to them into a trust account in violation of Colo. RPC 1.15(a) (five client matters); and
(3) Failure to return to clients unearned portions of client retainers in violation of Colo. RPC 3.4(c) (five client matters).
In the Ware matter, Sherri L. Ware retained the Respondent to collect past due and unpaid child support from her former husband. Respondent accepted a $450 retainer from Mrs. Ware but did not deposit it into his trust account. After she asked Respondent to cease performing services, he admitted owing Ms. Ware $407.50. Respondent, nevertheless, has never responded to any of Ms. Ware’s requests for reimbursement.
In the Prince matter, William Prince retained the Respondent to file post-decree motions in a dissolution of marriage action. Mr. Prince paid the Respondent a retainer of $1,000, which Respondent failed to deposit into his trust account. Respondent performed a small amount of work on Mr. Prince’s behalf, and then ceased communicating with him and thus did not earn most of the advance fee paid by Mr. Prince. Despite Mr. Prince’s demand, the Respondent failed to refund any amount to him.
In the Shimatsu matter, Leah Shimatsu retained the Respondent to pursue a contempt citation. Ms. Shimatsu paid the Respondent a retainer of $600, which Respondent failed to deposit in his trust account. Respondent did not earn the advanced fee. Despite her demands, Respondent failed to return any of Ms. Shimatsu’s retainer.
In the Aguirre matter, Donald Martinez paid the Respondent $200 for a filing fee for the Chapter 7 bankruptcy for his aunt, Naomi Aguirre. Respondent did not deposit these funds into his trust account. Respondent filed bankruptcy pleadings on behalf of Ms. Aguirre on November 8, 2002. Subsequently, the bankruptcy was dismissed because the filing fee check tendered by Respondent and payable to the Bankruptcy Court was returned for insufficient funds.
In the Narans matter, a husband and wife retained the Respondent to file a Chapter 7 bankruptcy on their behalf, paying a retainer of $800 cash, which included $600 as an advanced legal fee and $200 as an advanced filing fee. The advanced funds were not deposited in the Respondent’s trust account. Respondent told Mr. and Mrs. Narans that a member of his staff had stolen the filing fee and he needed an additional $200 to file the bankruptcy. The Narans paid the second filing fee. However, Respondent had knowingly converted the Narans’ filing fee to his own use and benefit. Respondent did file a bankruptcy petition for the Narans but it was legally deficient. Later, Respondent abandoned the Narans case. Thus, he neither earned the advanced legal fee the Narans paid, nor did he refund the fee.
In the Fernandez matter, Virginia Fernandez paid the Respondent a $1,000 retainer to defend her son, Benny Ruiz, on a charge of a parole violation. As in the other client matters raised in the complaint, the Respondent did not deposit the retainer into his trust account, in violation of Colo. RPC 1.15(a). The Respondent failed to appear at the first hearing scheduled for Ruiz and appeared late at a rescheduled hearing without having any advance contact with the court, the District Attorney, the defendant, or Ms. Fernandez. The court indicated concern about Respondent’s preparation and readiness for trial and ordered Respondent to refund $500 to Ms. Fernandez, who tried to collect the refund over many weeks. The court thereafter ordered Respondent to pay the refund to Ms. Fernandez forthwith. Several weeks later, when the Respondent still had not reimbursed Ms. Fernandez, the court issued an order to show cause, from which Respondent was held in contempt. The Respondent ultimately mailed a letter and a check to Ms. Fernandez, which she received on or about March 3, 2003. The check, which was not drawn on the Respondent’s trust account, was returned for insufficient funds. Subsequently, the Respondent did pay Ms. Fernandez cash. Ms. Fernandez is the only complaining client in this case who received restitution from Respondent.
The American Bar Association Standards for Imposing Lawyer
Sanctions (1991 and Supp. 1992) ("ABA Standards" are the guiding authority for determining sanctions for disciplinary violations in Colorado. Pursuant to ABA Standards § 3.0, the Court considers the following factors in imposing sanctions:
(a) Duty violated;
(b) Lawyer’s mental state;
(c) Actual or potential injury caused by the lawyer’s misconduct; and
(d) Aggravating or mitigating factors.
Pursuant to § 9.22(a)(b)(c)(d)(i) and (j), factors in aggravation in this proceeding include:
• Prior disciplinary offense, § 9.22(a) (Respondent was previously suspended for three-years for conduct that included commingling and using client funds for personal and business expenses);1
• Dishonest or selfish motive, § 9.22(b) (Respondent failed to deposit advanced fees into a trust account and converted them to his own use);
• Pattern of misconduct, § 9.22(c) and multiple offenses, §9.22(d) (Respondent’s misconduct of converting and mishandling client funds involved seven client incidents occurring over a significant span of time between early 2001 and mid-2003);
• Substantial experience in the practice of law § 9.22(i) (Respondent was admitted to the bar in 1985); and,
• With the exception of the Fernandez matter, Respondent was indifferent to making restitution, § 9.22 (j).
Under ABA Standard 4.11: "disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client." In this case, Respondent converted client property and caused injury to his clients in six separate incidents. Moreover, the Colorado Supreme Court has upheld disbarment where a lawyer is determined to have knowing converted client funds.
In People v. Kuntz, 942 P.2d 1206 (Colo. 1997), for example, a lawyer took advanced fees from eight clients, did a small amount of work for each, and then ceased communicating with the clients and converted their funds. In Kuntz, the lawyer was disbarred. See also People v. Towshend, 933 P.2d 1327 (Colo.1997) (lawyer disbarred who accepted advance fees from two clients then effectively abandoned them, and failed to account for or return the unearned retainers she collected, thereby converting those funds to her own use.
Similarly, in the instance case, the Respondent was retained by each of the clients and paid advanced to perform specific work. He did not deposit the funds in his trust account. He performed certain small, inconsequential tasks on his clients’ behalf but never completed the work. Ultimately, the Respondent effectively abandoned these clients without earning the advanced fees or conferring a benefit to them. Though Respondent did make restitution in the Fernandez matter; it was the court’s threat of contempt, and not his concern for the client, that motivated him to do so.
Given the nature of Respondent’s offenses in converting client funds to his own benefit, the presence of such aggravating factors as Respondent’s prior discipline, the injuries his clients suffered, and his failure to make restitution, except in the Fernandez matter, and the lack of mitigating circumstances, the Hearing Board concludes that disbarment is appropriate in this case.
It is there ORDERED:
1. Robert James Schubert, attorney registration number 14695, is DISBARRED from the practice of law in the State of Colorado effective thirty-one days from the date of this Order and his name shall be stricken from the list of attorneys licensed to practice law.
2. Robert James Schubert is also ORDERED to pay restitution to the following individuals and in the following amounts, within 90 days of the date of this Order:
Shari L. Ware $ 407.50
William Prince $1,000.00
Lea Shimatsu $ 600.00
Donald Martinez $ 200.00
Annette and Darcy Narans $1,000.00
3. Robert James Schubert is ORDERED to pay the costs of these proceedings. The People shall submit a Statement of Costs within 15 days of the date of this Order. Respondent shall have ten (10) days thereafter to submit a response thereto.
1. People v. Schubert, 799 P.2d 388, 392 (Colo. 1990).
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