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TCL > February 2006 Issue > Disciplinary Opinions

February 2006       Vol. 35, No. 2       Page  121
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 LexisNexis® 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: 05PDJ023

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

WILHEMENA LAWRENCE MITCHELL.

October 28, 2005

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.15(b)

On September 19, 2005, William R. Lucero, the Presiding Disciplinary Judge ("the Court"), held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). April M. Seekamp and James C. Coyle appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Wilhemena Lawrence Mitchell ("Respondent") did not appear, nor did counsel appear on her behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. ISSUE

Disbarment generally is the appropriate sanction when a lawyer knowingly converts client property and causes injury or potential injury to a client. Respondent knowingly converted the funds of three separate clients, treated the funds as her own, and failed to refund any portion of the funds upon the termination of her representation. Respondent also failed to present any evidence to mitigate her misconduct. Is the presumptive sanction of disbarment appropriate under these circumstances?

II. PROCEDURAL HISTORY AND BACKGROUND

Respondent failed to participate in any meaningful way from the outset of these proceedings. On April 4, 2005, after Respondent failed to show cause why she should not be immediately suspended, the Supreme Court approved the People’s Petition for Immediate Suspension pursuant to C.R.C.P. 251.8. On August 18, 2005, the Court granted the People’s Request for Sanctions in light of Respondent’s willful failure to participate in the deposition process, file an adequate Answer,1 and meaningfully participate in these proceedings as provided by the rules. The Court entered default in case number 05PDJ023, but stayed its order for ten days to give Respondent a final opportunity to participate. Respondent failed to take advantage of this final opportunity. Upon the entry of default, the Court deems all facts in the complaint admitted and all rule violations established. People v. Richards, 748 P.2d 341, 346 (Colo. 1987).

The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted Complaint.2 Respondent essentially failed to meet her professional responsibilities when she knowingly converted client funds in three separate client matters. Respondent accepted funds from her clients pursuant to flat-fee agreements, failed to complete the worked promised in these agreements, and treated the funds as her own by exchanging client checks for cash. In each client matter, Respondent failed to refund or provide an accounting for any portion of the unearned funds paid by her clients. The facts admitted through the entry of default constitute a violation of Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

III. 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 and imposing sanctions for lawyer misconduct. Disbarment generally is appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. ABA Standard 4.11. Disbarment is therefore the presumptive sanction in this case. The Court, however, must also 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 Complaint in evaluating the factors listed above. The Court finds Respondent breached her duties of diligence and honesty to her clients, the public, and the legal profession. The entry of default established that Respondent knowingly converted funds entrusted to her by her clients and treated them as her own. The facts established by the entry of default also support a finding of actual and potential harm to Respondent’s clients, the public, and the legal profession.

The People alleged several aggravating factors including dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceedings, refusal to acknowledge the wrongful nature of her conduct, substantial experience in the practice of law, and indifference to making restitution. At the Sanctions Hearing, the People presented testimony as to each of these aggravating factors from the three complaining former clients. They each reaffirmed the facts set forth in the People’s Complaint, testified to the specific manner in which Respondent took advantage and treated them, and detailed the impact of their injuries. One of the former clients commented that Respondent not only failed to perform tasks she asked Respondent to complete, but also failed to show any respect for this Court or its orders. In the end, each former client asked the Court to disbar Respondent. Due in part to the absence of any contradictory evidence, the Court finds clear and convincing evidence to support each aggravating factor alleged by the People.

In the absence of significant mitigating factors, 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). 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) (finding significant facts in mitigation).

IV. CONCLUSION

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 Complaint reveal the serious danger Respondent poses to the public. She repeatedly failed to deal fairly and honestly with client funds. 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. Upon consideration of the nature of Respondent’s misconduct, her 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.

V. ORDER

The Court therefore ORDERS:

WILHEMENA LAWRENCE MITCHELL, Attorney Registration No. 03526, 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 list of attorneys licensed to practice law in the State of Colorado.

WILHEMENA LAWRENCE MITCHELL SHALL pay full restitution to her former clients and the Colorado Attorneys’ Funds for Client Protection in an amount to be determined at a future date. Timely payment of these amounts shall be a condition of readmission.

WILHEMENA LAWRENCE MITCHELL 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 within which to respond.

_______

1. Respondent filed a letter she previously submitted to the Attorney Regulation Committee as her answer to the People’s complaint. When the Court denied the People’s Motion for Judgment on the Pleadings, the Court ordered Respondent to file an amended Answer in compliance with the rules. She failed to file an amended Answer.

2. The Complaint is attached to this Report as Exhibit A.

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