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TCL > December 2006 Issue > Disciplinary Opinions

December 2006       Vol. 35, No. 12       Page  133
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 Legal-U.S./Colorado/Cases/CO Supreme Court Disciplinary Opinions from 1999.


Case No. 06PDJ018

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

DOUGLAS R. ASMUS.

September 15, 2006

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)

On August 23, 2006, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). James C. Coyle appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Douglas R. Asmus ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions.

I. ISSUE

Disbarment is generally appropriate when a lawyer engages in a pattern of neglecting client matters and causes serious injury. Disbarment is also generally appropriate, absent significant evidence of mitigation, when a lawyer knowingly converts client property and causes injury. Respondent neglected two clients, knowingly converted their funds, and engaged in other misconduct. Respondent failed to participate in these proceedings and provided no evidence of mitigation to offset several aggravating factors. Is disbarment the appropriate sanction?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The People filed a complaint with the Court on March 15, 2006. Respondent failed to file an answer in this case and the Court granted the People’s Motion for Default on June 7, 2006. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence. 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.1 Respondent took and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 26, 1988, and is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 17397. The allegations in this case arise from Respondent’s representation in two client matters.

The Jelle Matter

On March 9, 2004, Todd Jelle retained Respondent to defend him in a lawsuit filed by Mr. Jelle’s siblings. The lawsuit alleged that Mr. Jelle, as the personal representative for their grandfather’s estate, had failed to properly distribute assets. Mr. Jelle paid Respondent a $10,000.00 retainer fee, but never signed a written fee agreement. Respondent never placed the retainer fee into a COLTAF or other trust account.

Respondent filed a response and jury demand on behalf of Mr. Jelle. However, he thereafter failed to file C.R.C.P. 26 disclosures and failed to prepare responses to discovery on behalf of Mr. Jelle. On August 31, 2004, the court ordered Mr. Jelle to provide all requested discovery to the plaintiffs on or before September 15, 2004. Respondent failed to respond to the order and never contacted Mr. Jelle with regard to the order. On October 15, 2004, the court ordered Mr. Jelle to pay $533.25 to plaintiffs’ counsel on or before November 1, 2004.

Plaintiffs thereafter filed a Motion to Continue Trial based on Respondent’s failure to produce discovery and filed a Verified Motion for Issuance of Citation and Order to Show Cause requesting that the court order Mr. Jelle to state why he had not complied with previous court orders regarding discovery. On December 6, 2004, the court reset the trial and ordered that Mr. Jelle would be precluded from presenting evidence at trial that had not been disclosed as previously ordered by the court. Respondent did not contact Mr. Jelle about any of these events or consequences.

On August 19, 2005, Respondent was administratively suspended from the practice of law. Respondent failed to withdraw from the Jelle case and failed to notify Mr. Jelle, opposing counsel, or the court of his suspension. The court and opposing counsel tried to contact Respondent on a number of occasions without success.

On October 19, 2005, the clerk of court called Mr. Jelle at home and left a voicemail stating that the trial would commence on Thursday, October 20, 2005. The clerk also informed Mr. Jelle that it appeared Respondent had been suspended from the practice of law. Mr. Jelle knew nothing about the suspension or the trial date. He subsequently filed a hand-written Motion for Continuation of Trial and asked for a continuance until he could secure new counsel.

The parties all appeared on the trial date of October 20, 2005. Mr. Jelle’s sister had traveled from out-of-state to attend the trial. Respondent failed to appear. The court granted Mr. Jelle’s motion to continue and then awarded the plaintiffs costs, attorney fees, and travel expenses. On November 1, 2005, the court ordered Mr. Jelle and Respondent to pay $1,484.68 to the plaintiffs before January 5, 2006 for the attorney fees and costs associated with delays in the matter. Respondent did not pay the $1,484.68 before the deadline.

Respondent violated Colo. RPC 1.3 when failed to act with reasonable diligence and promptness and completely neglected Mr. Jelle’s case. He also violated Colo. RPC 1.4(a) and (b) when he failed to keep Mr. Jelle reasonably informed about the status of his case and failed to comply promptly with reasonable requests for information.

On November 1, 2005, the trial court ordered Respondent to pay $1,484.68 to the plaintiffs on or before January 5, 2006. Respondent knowingly violated this court order and in the process Colo. RPC 3.4(c) by failing to make any payment or request an extension of time.

When Respondent failed to keep the $10,000.00 in trust for Mr. Jelle he violated Colo. RPC 1.15(a). He also failed to provide any accounting that shows he earned the $10,000.00, or a substantial majority of the sum, and failed to return any portion of the retainer to Mr. Jelle despite numerous requests. Respondent knowingly exercised dominion or ownership over funds held on behalf of Mr. Jelle, and continued to exercise such dominion or ownership even after he was administratively suspended and unable to represent the legal interests of Mr. Jelle. Such misconduct constitutes a violation of Colo. RPC 8.4(c).

The Pletcher Matter

In June 2004, Respondent agreed to represent Amber Pletcher in a matter to remove her name as a co-borrower on a loan administered by the Colorado Housing and Finance Authority ("CHFA"). Respondent told Ms. Pletcher he would need a $1,000.00 retainer fee.

Ms. Pletcher mailed Respondent a check for $1,000.00 on or about June 3, 2004. Respondent never placed Ms. Pletcher’s funds into a COLTAF or other trust account. During the next few months, Ms. Pletcher spoke to Respondent over the phone. He told her that he had left messages with the CHFA, but that he had not received a return call. Thereafter, Ms. Pletcher left numerous voicemail messages for Respondent and he failed to return any of her calls.

In March 2005, Ms. Pletcher began leaving messages for Respondent stating that she was terminating his service and that she requested a refund of her retainer. Respondent did not return any of Ms. Pletcher’s telephone messages. Ms. Pletcher’s name was not removed from the mortgage and therefore she received no benefit from Respondent. Respondent has failed to refund the unused portion of Ms. Pletcher’s retainer despite her requests.

Respondent violated Colo. RPC 1.3 when he failed to act with reasonable diligence and promptness and completely neglected Ms. Pletcher’s case. He also violated Colo. RPC 1.4(a) and Colo. RPC 1.16(d) when he failed to comply promptly with reasonable requests for information and failed to protect Ms. Pletcher’s by returning her file or otherwise protecting her interests upon his termination.

When Respondent failed to keep the $1,000.00 in trust for Ms. Pletcher he violated Colo. RPC 1.15(a). He also failed to provide any accounting that shows he earned the $1,000.00, or a substantial majority of the sum, and failed to return any portion of the retainer to Ms. Pletcher despite numerous requests. Respondent knowingly exercised dominion or ownership over funds held on behalf of Ms Pletcher, and has continued to exercise such dominion or ownership even after he was administratively suspended and unable to represent the legal interests of Ms. Pletcher. Such misconduct constitutes a violation of Colo. RPC 8.4(c).

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. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the Court must first consider 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 leaves the Court with no alternative but to consider only the established facts and rule violations set forth in the complaint in evaluating the first three factors listed above. The Court finds Respondent violated duties owed to his clients and the legal system. Respondent violated his duty to diligently and honestly represent his clients and preserve their property as well as his duty to obey obligations under the rules of a tribunal. The entry of default established that Respondent knowingly neglected two client matters, knowingly converted funds entrusted to him by his clients, and knowingly disobeyed the rules of a tribunal when he failed to pay $1,484.68 to the plaintiffs before January 5, 2006. The facts established by the entry of default also supports a finding of actual financial and emotional harm to Respondent’s clients and to the legal profession in the delay of court proceedings.

The People alleged that several aggravating factors exist including prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of conduct, substantial experience in the practice of law, and indifference to making restitution. See ABA Standards 9.22(a), (b), (c), (d), (g), (i), and (j). 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. Respondent presented no evidence in mitigation.

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the admitted facts and rule violations in this case is disbarment.2 Respondent completely neglected two clients and knowingly converted at least a portion of the advanced fees they paid to him. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client and is also generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious injury or potentially serious injury to a client. ABA Standards 4.11 and 4.41(c).

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 alone. 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).

Additional Colorado Supreme Court case law applying the ABA Standards holds disbarment is the presumptive 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 Colorado 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. 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).

Respondent’s failure to properly handle and refund the advanced fees alone likely warrants disbarment. His additional misconduct in completely neglecting two client matters and violating a court order reinforces the conclusion that disbarment is the appropriate sanction in this case. Finally, Respondent’s complete failure to participate in these proceedings further precludes any deviation from the presumptive sanction.

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, without explanation or mitigation, reveal the serious danger Respondent poses to the public. He neglected two clients, knowingly converted their funds, and engaged in other misconduct that adversely reflects on his fitness to practice law. 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, 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.

V. ORDER

The Court therefore ORDERS:

1. DOUGLAS R. ASMUS, Attorney Registration No. 17397, 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. DOUGLAS R. ASMUS SHALL pay restitution to the Todd Jelle in the amount of $10,000.00 and the Attorney’s Fund for Client Protection in the amount of $1,000.00 for the Amber Pletchler matter. Such payment of restitution SHALL be a condition precedent to the filing of any petition for readmission.

3. DOUGLAS R. ASMUS 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. See the People’s complaint filed March 15, 2006.

2. Respondent also engaged in other serious misconduct including violation of a court order. The sanctions for his additional acts of misconduct range from public censure to disbarment.

_______________

No. 05PDJ084

(Consolidated with 06PDJ020)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

DONALD R. CARWIN.

August 22, 2006

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)

On July 26, 2006, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Lisa E. Frankel appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Donald R. Carwin ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions.

I. ISSUE

Disbarment is generally appropriate, absent significant evidence of mitigation, when a lawyer knowingly converts client funds or knowingly violates the terms of a prior disciplinary order and causes injury. Respondent knowingly converted funds in two client matters and knowingly practiced law with a suspended license in one client matter. Respondent did not participate in these proceedings and provided no evidence of mitigation to offset several aggravating factors. Is disbarment the appropriate sanction in this case?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The People filed a Complaint in 05PDJ084 on November 29, 2005. On March 17, 2006, the People filed a Complaint in 06PDJ020. Respondent failed to file an answer in either of these cases and the Court granted the People’s motions for default on February 17, 2006 (05PDJ084) and June 7, 2006 (06PDJ020). The Court also consolidated these cases on June 7, 2006. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence. 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 complaints.1 Respondent took and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 17, 1976, and is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 7265. The allegations in this case arise from Respondent’s representation in two client matters.

The Truninger Matter

On April 23, 2004, Connie Truninger and her husband Robert Hanley retained Respondent to represent them in the investigation of potential civil claims against the Arapahoe County Department of Human Services and paid him a fee of $3,000.00. Respondent did not enter into a written fee agreement with his clients, nor did he communicate the basis or rate of his fee to them in writing, even though he had not previously represented them. Respondent, however, orally advised them that he would bill for his time at a rate of $175.00 per hour. Respondent did not place the fees into a trust account.

On June 8, 2004, Ms. Truninger met with Respondent at the Arapahoe County Justice Center to allow him access to certain juvenile records. Ms. Truninger and Mr. Hanley also provided Respondent with all of the records and documents in their possession concerning the potential claim. Thereafter, Respondent failed to communicate with his clients or provide them with any work product, despite their repeated efforts to contact him. When the clients asked for a refund of the fees and return of their file, Respondent did neither though he acknowledged that he owed Ms. Truninger $812.50.

Respondent engaged in serious misconduct and violated several rules of professional conduct in his representation of Ms. Truninger and Mr. Hanley. He failed to communicate with them and neglected their case in violation of Colo. RPC 1.3, 1.4(a) and 1.4(b). Respondent also failed to communicate the basis or rate of his fees, failed to return their retainer fees in a timely manner, failed to provide a timely accounting, and failed to return their file in violation of Colo. RPC 1.5(b), 1.15(b), 1.15(f)(1), and 1.16(d). However, Respondent’s most serious conduct was his knowing conversion or misappropriation of funds belonging to his clients. He exercised unauthorized dominion and control over all or a portion of their advanced retainer for over one year without their permission and in the process violated Colo. RPC 8.4(c).

The Prott Matter

In February 2005, Respondent agreed to represent Travis Prott in a court case. Respondent advised Mr. Prott that he would charge $2,500.00 for his services. Respondent agreed Mr. Prott could pay the fee in installments as long as he received the entire retainer before the court hearing.2

Mr. Prott made regular payments and Respondent accepted the final $500.00 installment payment on May 30, 2005, nearly two weeks after Respondent had been immediately suspended from the practice of law in State of Colorado. Respondent never notified Mr. Prott of his suspension as required by C.R.C.P. 251.28. In the meantime, Respondent represented Mr. Prott in a matter before the Department of Motor Vehicles on June 22, 2005.

On August 11, 2005, the date of the court hearing, Respondent advised Mr. Prott for the first time that he could no longer represent him. The same day, Respondent deposited the final $500.00 installment payment made by Mr. Prott on May 30, 2006. Respondent never returned this final payment or any other payment despite knowing he could no longer represent Mr. Prott.

On September 20, 2005, Mr. Prott wrote a letter to Respondent and requested an accounting, a refund of his retainer and the return of his file. Respondent failed to respond to this letter. Mr. Prott never received an accounting, a refund of his retainer, or the return of his file as of the date of the filing of the Complaint.

Respondent engaged in serious misconduct and violated several rules of professional conduct in the Prott matter. He failed to communicate with Mr. Prott and caused delay in the resolution of his case in violation of Colo. RPC 1.4(a) and 1.4(b). Respondent again engaged in knowing conversion or misappropriation of funds belonging to his client and in the process violated Colo. RPC 8.4(c). Finally, Respondent practiced law with a suspended license and engaged in deceit in violation of Colo. RPC 5.5(a) and Colo. RPC 8.4(c).

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. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the Court must first consider 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 leaves the Court with no alternative but to consider only the established facts and rule violations set forth in the complaints in the consolidated cases in evaluating the first three factors listed above. Respondent violated duties owed to his clients and the legal system. Respondent violated his duty to preserve the property of his clients and his duty to obey professional rules and obligations as an officer of the court. The entries of default established that Respondent knowingly converted funds entrusted to him by his clients and knowingly practiced law with a suspended license. The facts established by the entries of default also support a finding of actual harm to Respondent’s clients in their loss of funds and to the legal profession in the delay of court proceedings.3

The People alleged that several aggravating factors exist including prior disciplinary offenses,4 a dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceedings, substantial experience with the law, and indifference to making restitution. See ABA Standards 9.22(a), (b), (c), (e), (i), and (j). 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.

Respondent presented no evidence in mitigation, but the People conceded the following: Respondent was separated from his wife of thirty years at or about the time of these events; she died on January 29, 2005; two of Respondent’s children suffer from cystic fibrosis; and one child has been hospitalized for the same in 2003, 2004, and 2005 for this cystic fibrosis and diabetes. Furthermore, in 2004 Respondent was diagnosed with high cholesterol and diabetes.

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the admitted facts and rule violations in this case is disbarment. Respondent knowingly converted at least a portion of the advanced fees paid to him by his clients. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client and suspension is generally appropriate when a lawyer knowingly fails to perform services for a client or engages in a pattern of neglect and causes injury or potential injury to a client. ABA Standards 4.11 and 4.42(b).

Respondent also knowingly practiced law with a suspended license. Disbarment is generally appropriate when a lawyer intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession. ABA Standard 8.1.

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 alone. 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, however, the People’s representation of Respondent’s emotional difficulties alone are not sufficient mitigation to warrant a sanction less than disbarment in this case. See In re Fischer, 89 P.3d 817 (Colo. 2004) (finding significant facts in mitigation).

Additional Colorado Supreme Court case law applying the ABA Standards holds disbarment is the presumptive sanction for Respondent’s misconduct. See In re Hugen, 973 P.2d 1267 (Colo. 1999) (attorney disbarred for knowingly misappropriating client funds and continuing to practice law while under suspension); People v. Redman, 902 P.2d 839 (Colo. 1995) (unauthorized practice of law during administrative suspension and after discipline for continuing to practice after suspension warrants disbarment); and People v. Ebbert, 925 P.2d 274 (Colo. 1996) (disbarment warranted for misconduct which included practicing law during suspension period).

Respondent’s failure to refund the advanced fees alone likely warrants disbarment. His additional misconduct in practicing law with a suspended license reinforces the conclusion that disbarment is the appropriate sanction in this case. Finally, Respondent’s complete failure to participate in these proceedings further precludes any deviation from the presumptive sanction.

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, without explanation or mitigation, reveal the serious danger Respondent poses to the public. Respondent failed to deal diligently or honestly with two separate clients and this misconduct seriously adversely reflects on his fitness to practice law. 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, his mental state, the significant harm and potential harm caused, and the absence of substantial mitigating factors, the Court concludes there is no justification for a sanction short of disbarment.

V. ORDER

The Court therefore ORDERS:

1. DONALD R. CARWIN, Attorney Registration No. 7265, 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. DONALD R. CARWIN SHALL pay restitution to the Attorney’s Fund for Client Protection in the amount of $5,500.00.

3. DONALD R. CARWIN 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. See the People’s complaints in 05PDJ084 and 06PDJ020.

2. Travis Prott stated at the Sanctions Hearing that at the time he hired Respondent, he was 21 years old and worked as a server in a restaurant.

3. The Court considered a written statement from Connie Truninger and Robert Hanley, and an oral statement from Travis Prott in its consideration of the appropriate sanction in this matter pursuant to C.R.C.P. 251.18(a).

4. Respondent received a private admonition on December 12, 1995, and was suspended for six months on August 2, 2000, effective September 2, 2005.

_______________

Case No. 05PDJ075

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

DANIEL PAUL D’ACQUISTO.

August 9, 2006

OPINION AND ORDER IMPOSING SANCTIONS

On June 23, 2006, a Hearing Board composed of E. Steven Ezell and Sisto J. Mazza, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a Sanctions Hearing pursuant to C.R.C.P. 251.18. April M. Seekamp appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Daniel Paul D’Acquisto ("Respondent") appeared pro se. The Hearing Board issues the following Opinion and Order Imposing Sanctions.

I. ISSUE

Disbarment is generally appropriate when a lawyer knowingly converts client property for his own benefit,1 while suspension is appropriate when a lawyer knows or should know he is dealing improperly with client property. Respondent failed to refund or account to one of his clients for $3,500.00 in fees tendered for pre-trial representation and failed to appear for scheduled events on six client matters. Is disbarment the appropriate sanction when there is significant evidence of mitigation?

SANCTION IMPOSED:
ATTORNEY SUSPENDED FOR THREE (3) YEARS

II. PROCEDURAL HISTORY AND BACKGROUND

On October 24, 2005, the People filed a Complaint that outlined twenty-three separate claims related to six separate client matters. Respondent filed an "Answer with Affirmative Defenses" on January 3, 2006. On March 14, 2006, the People filed a "Motion and Brief in Support of Summary Judgment." Respondent failed to respond in any way and the PDJ granted the motion and entered judgment as to all twenty-three claims on April 20, 2006.

The entry of summary judgment proved, as a matter of law, the facts and rule violations outlined in the People’s Complaint, which included multiple violations of Colo. RPC 1.3, 1.4, 1.16(d), 3.4(c) and 8.4(d). The most serious claim involved a violation of Colo. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, knowing conversion).

The PDJ originally scheduled this matter for a Sanctions Hearing on May 8, 2006. On that date, Respondent appeared for the first time since the At-Issue Conference and requested a continuance in order to present evidence he believed would be helpful to the Hearing Board’s consideration of the appropriate sanction. The PDJ granted Respondent’s request and continued the Sanctions Hearing to June 23, 2006.

III. FINDINGS OF MATERIAL FACT

The following facts have been established by clear and convincing evidence.2 The Hearing Board considered these findings of fact and heard additional evidence of aggravating and mitigating factors in order to determine the appropriate sanction for Respondent’s misconduct.3

Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on October 16, 2000. He is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 32376. Respondent is therefore subject to the jurisdiction of this court in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b).

The Nathan Winzenried Matter

In June 2004, Respondent agreed to represent Nathan Winzenried in two separate criminal cases and prepared a written fee agreement to that end.4 Pursuant to his oral agreement and the written fee agreement, Respondent charged Mr. Winzenried the sum of $3,500.00 for "all fees up to trial" on both cases as well as the cost of an offense-specific report. Mr. Winzenried’s father, Allan Winzenried, tendered a $3,000.00 check to Respondent. This check and an earlier $500.00 payment represented full-payment for Respondent’s pre-trial representation of Mr. Winzenried.

Though Respondent agreed to represent Mr. Winzenried, Respondent failed to appear and failed to prepare him for return dates in both cases. Mr. Winzenried failed to appear for a motions hearing, because Respondent advised him that he did not need to appear since Respondent would appear on his behalf. Mr. Winzenried was later arrested for this failure to appear. As a result, the court increased Mr. Winzenried’s bond in both cases.

Based upon Respondent’s failure to appear on behalf of his client, the court appointed successor-counsel who requested Mr. Winzenried’s file. Respondent failed to provide the file. Successor-counsel had to reorder the discovery and pay for the previously completed offense-specific report, because Respondent had not paid the doctor with the funds he received from Allan Winzenried.

Although Allan Winzenried asked Respondent to return the $3,000.00, Respondent did not return any portion of money he collected, a total of $3,500.00. Respondent testified at the Sanctions Hearing that he placed these funds into his trust account, but there is nothing in the record to show what portion of the $3,500.00, if any, Respondent earned under the fee agreement or what portion he used for his benefit.5

The Julia Munoz Matter

In March 2004, Julia Munoz hired Respondent to represent her in a criminal matter. Respondent appeared in court with Ms. Munoz at her plea hearing, but later failed to appear for the sentencing hearing. The judge continued the matter and wrote Respondent a letter expressing his concern over the failure to appear. The judge advised Respondent to appear on December 14, 2004. Respondent again failed to appear for Ms. Munoz’s sentencing hearing and the judge reported the matter to the People.

The Jerina Blea Matter

In September 2004, Respondent agreed to represent Jerina Blea in a custody matter. Respondent appeared with Ms. Blea in court and the judge ordered the parties to attempt mediation before it set the matter for hearing. The court set the matter for hearing on December 22, 2004, and for mediation on December 17, 2004.

Ms. Blea did not attend the mediation because Respondent assured her that he would continue the mediation and hearing dates to accommodate her. However, Respondent never rescheduled these matters nor did he appear for the mediation or hearing dates. At the hearing, the judge found Ms. Blea failed to abide by the court’s orders and granted temporary custody of her daughter to the petitioner. Ms. Blea attempted, but could not reach Respondent, and later went forward on her case without the assistance of counsel.

The Scott Glaser Matter

In the summer of 2004, Scott Glaser retained Respondent to defend him in a criminal matter. The court set the matter for trial on February 4, 2005. Respondent assured Mr. Glaser that he would contact him to discuss pretrial motions. Respondent never contacted Mr. Glaser. Mr. Glaser then attempted to reach Respondent by telephone, but Respondent did not answer the calls or return the messages.

Respondent failed to appear for a pre-trial conference in Mr. Glaser’s case and later failed to appear for trial. Respondent filed a written motion to vacate the trial date, but the motion did not reach the court until after the scheduled trial date. After Respondent failed to appear for trial, Mr. Glaser asked the court to appoint new counsel on his case.

The judge issued a show cause order for Respondent to appear in court and explain his absence on the trial date. Respondent failed to appear as ordered by the court.

The Curtis Escamilla Matter

In the summer of 2004, Respondent agreed to represent Curtis Escamilla in a criminal matter. The court scheduled the case for a pre-trial conference and Respondent advised Mr. Escamilla he did not need to appear. When neither Respondent nor Mr. Escamilla appeared, the court issued a bench warrant for Mr. Escamilla’s arrest. Respondent assured Mr. Escamilla that he would take care of the costs incurred due to the warrant, but Mr. Escamilla ultimately paid the costs.

The court continued Mr. Escamilla’s case for an offense-specific report and Respondent assured Mr. Escamilla that he would appear at the future date. Respondent failed to appear for this court date. Mr. Escamilla appeared without counsel and the court continued the matter. Respondent failed to appear for a second time. Mr. Escamilla ultimately asked the court for additional time to seek other legal advice. The court granted him a thirty-day continuance.

The judge issued a contempt citation for Respondent and set the matter for a show cause hearing. Respondent failed to appear as ordered by the court. The judge then issued an arrest warrant for Respondent. Respondent was arrested and the judge ordered that he serve ten days in jail. Respondent testified that he served several, but not all ten days of this sentence.

The Christopher Broughton Matter

In the early fall of 2004, Respondent represented Christopher Broughton in a case involving a restraining order. The court set the matter for a pre-trial conference and Respondent advised Mr. Broughton that he would not need to appear at the conference. When neither Respondent nor Mr. Broughton appeared, the court issued a warrant for Mr. Broughton’s arrest. When Mr. Broughton had not heard from Respondent for several weeks, he called the court and learned for the first time that the court had issued a warrant for his arrest. The court vacated the warrant after Mr. Broughton explained the circumstances surrounding his failure to appear and then continued the matter twice for a pre-trial conference.

Although the court called Respondent while on the record and left him a voicemail, Respondent failed to appear and the court issued a show cause order. When Respondent again failed to appear, the court issued a warrant for Respondent’s arrest. Mr. Broughton ultimately represented himself and entered into a plea agreement without counsel.

IV. SANCTIONS

The American Bar Association 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. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).

Analysis Under the ABA Standards

ABA Standard 3.0 directs the Hearing Board to first consider the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating and mitigating evidence in determining the appropriate sanction for lawyer misconduct.

Generally, sanctions are more onerous the greater the injury to the client and the more culpable a lawyer’s conduct. For example, disbarment is generally appropriate when a lawyer knowingly converts client property for his own benefit and causes injury or potential injury to a client. ABA Standard 4.11.

Suspension, on the other hand, is generally appropriate when a lawyer knows that he is dealing improperly with client funds and causes injury to the client. ABA Standard 4.12. In addition, disbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious injury to a client. ABA Standard 4.41. But suspension is generally appropriate when a lawyer engages in a pattern of neglect and causes injury to a client. ABA Standard 4.42.

A. THE DUTY VIOLATED

Respondent violated duties to his client, the public, and the legal profession. He failed to appear at scheduled court dates on behalf of six clients and in one instance failed to account to a client for money tendered as a fee for Respondent’s anticipated services. "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)).

B. THE LAWYER’S MENTAL STATE

According to the ABA Standards, "knowledge is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." Here, Respondent acted with awareness when he failed to appear at scheduled hearings and failed to account to his client for money he received for representation of his clients.

C. THE ACTUAL OR POTENTIAL INJURY

Respondent’s misconduct led to the delay of court proceedings, the incarceration of one client, the temporary loss of custody of another client’s child, and the loss of money entrusted to him by another client. The Hearing Board specifically considered the letter Nathan Winzenried tendered to the Hearing Board in its determination of the appropriate sanction.

In addition to causing his clients significant injury, Respondent also caused injury to the legal profession and the effective administration of justice when he failed to appear on behalf of clients with pending court matters.

D. AGGRAVATING AND MITIGATING FACTORS

1. MATTERS IN AGGRAVATION, ABA STANDARD 9.2

The Hearing Board considered evidence of the following aggravating circumstances in deciding the appropriate sanction to impose. Aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline imposed. ABA Standard 9.21.

Pattern of Misconduct/Multiple Offenses—9.22(c) & (d)

The Hearing Board finds that Respondent engaged in a pattern of misconduct by failing to professionally represent clients and by failing to appear in court on six separate client matters, in some instances, multiple times in the same case.

2. MATTERS IN MITIGATION, ABA STANDARD 9.3

The Hearing Board considered evidence of the following mitigating circumstances in deciding what sanction to impose. Mitigating circumstances are any considerations, or factors that may justify a reduction in the degree of discipline imposed. ABA Standard 9.31.

Absence of a Prior Disciplinary Record—9.32(a)

Respondent received his license to practice law in the State of Colorado on October 16, 2000. He has no prior disciplinary record.

Personal or Emotional Problems—9.32(c)6

Although Respondent offered no expert evidence on this point, he testified to the severe emotional stress he felt at the time he represented the six clients listed in the Complaint. The woman he has shared a home with for over eight years also testified about Respondent’s compulsive behavior, which has caused conflict in their relationship. She also testified to Respondent’s inability to focus on his legal practice, especially after he opened an office as a sole practitioner in their home. On January 21, 2004, Respondent volunteered to a court clerk that he "pretty much had a complete mental breakdown" but was trying to get things straightened out for clients who had missed court dates.7 While this evidence falls short of proving that an obsessive-compulsive disorder caused his misconduct, this evidence nevertheless sheds light on Respondent’s behavior. See People v. Lujan, 890 P.2d 109-112 (Colo. 1995); ABA Standard 9.32(h).

Inexperience in the Practice of Law—9.32(f)

Respondent began his legal career in a law firm and worked closely with a senior lawyer on civil cases for nearly two years. Respondent then opened his own general practice, which included criminal cases. He had little or no criminal litigation experience. Furthermore, he took these cases without associating with experienced counsel. While Respondent should have known that indiscriminately taking on all clients and charging them low fees compromised his ability to professionally represent all of them, the Hearing Board cannot find by clear and convincing evidence that Respondent did so with a dishonest or selfish motive. What is better established by the evidence is that Respondent’s inexperience and naiveté, and not a selfish motive or dishonesty, contributed to his inability to live up to his client responsibilities.

Imposition of Other Sanctions or Penalties—9.32(k)

Respondent spent several days in jail for his failure to appear and show cause why he should not be held in contempt of court arising out of one of the disciplinary matters addressed in this opinion. Furthermore, Respondent has been administratively suspended for failing to cooperate in the investigation since June 22, 2005.

Remorse—9.32(l)

Respondent’s remorse for his misconduct is genuine. He recognizes that serious consequences must follow his egregious neglect of client matters. Furthermore, he recognizes the need to address what he describes as an obsessive-compulsive disorder before he ever represents another member of the public as a lawyer. While Respondent expressed remorse, he should have paid restitution to Alan Winzenried or made arrangements. However, it is obvious that his ability to generate money to pay restitution has been limited since his administrative suspension. He now works as a cabinet installer.

Analysis Under Case Law

Here, by virtue of the summary judgment entered in favor of the People, the Hearing Board must find that Respondent knowingly converted funds as charged in the complaint and that he engaged in a pattern of neglect in client matters and causes serious injury to a client. Generally, these rule violations could call for disbarment.

However, the presumption of disbarment under the ABA Standards does not always apply. Each case is unique and calls for an analysis based upon more than the presumption alone. The Colorado Supreme Court has cautioned Hearing Boards to carefully weigh any mitigating factors that might overcome what might otherwise be the presumed sanction of disbarment. In re Fischer, 89 P.3d 817 (Colo. 2004).

Like Fischer, Respondent genuinely acknowledged responsibility for his ethical violations to his clients and the legal system, a factor the Colorado Supreme Court found to be the "foremost" among the numerous mitigating factors warranting a suspension of a year and a day rather than disbarment.

Unlike Fischer, however, Respondent has not been cooperative with the People or diligent in presenting his case in these proceedings. Even with his license to practice law in jeopardy, Respondent failed to focus on important procedures and issues. For example, Respondent failed to file a response to the People’s motion for a summary judgment. Respondent’s misconduct charged in the complaint, his subsequent failure to address the damage he caused the courts and his clients, and his failure to cooperate with the investigation in these proceedings all demonstrate a blatant violation of ethics and need to protect the public.

V. CONCLUSION

Even serious breaches of ethics, including "knowing conversions" don’t always present the need to disbar an attorney. See In Re Fischer, 89 P.3rd 817-822 (Colo. 2004). While the gravamen of the People’s complaint is Respondent’s knowing conversion of client funds and engaging in a pattern of neglect in dealing with clients, both serious matters, there is considerable evidence of mitigation including the specter8 of a mental health problem contributing to Respondent’s failure to act professionally.

Though Respondent failed to prove mitigation under ABA Standards 9.32(h), mental disability or impairment, the evidence as a whole establishes that Respondent is a young, naïve, and inexperienced lawyer with substantial personal and emotional problems, rather than a lawyer who is fundamentally dishonest or beyond rehabilitation. See In re DeRose, 55 P.3d 126, 130 (Colo. 2002) (the Colorado Supreme Court found that attorney’s dishonest motive supported disbarment rather than a suspension); In re Roose, 69 P.2d 43, 47 (Colo. 2003) (Colorado Supreme Court noted that attorney’s actions and motives were misguided, rather than fundamentally dishonest).

Furthermore, we do not have clear and convincing evidence for purposes of sanctions that the conversion here was of the type that almost always calls for disbarment despite substantial mitigating factors. Compare People v. Rhodes, 107 P.3d 1177, 1180 (Colo.O.P.D.J. 2005) (an attorney clearly converted $50,000.00, as opposed to negligently or mistakenly handling money belonging to his clients and clients of other lawyers in order to meet Respondent’s financial obligations). Finally, there is no clear and convincing evidence that Respondent engaged in a pattern of taking client money. The only case involving client money is the Winzenried case.

The Hearing Board concludes that protection of the public can be accomplished while giving Respondent an opportunity to educate and rehabilitate himself. Respondent recognizes that he is not ready practice law and might never be. He further recognizes that if he ever practices law again, he must first deal with the issues addressed in this opinion. Weighing the mitigating factors against the aggravating factors, the Hearing Board finds that a lengthy suspension with strict conditions precedent to reinstatement will protect the public.

VI. ORDER

It is therefore ORDERED:

1. DANIEL PAUL D’ACQUISTO, Attorney Registration Number 32376, is SUSPENDED FROM THE PRACTICE OF LAW FOR THREE YEARS, effective thirty-one (31) days from the date of this Order.

2. DANIEL PAUL D’ACQUISTO, 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.

3. DANIEL PAUL D’ACQUISTO, as a condition precedent to his petition for reinstatement, SHALL pay full restitution to Nathan and Alan Winzenried in the amount of $3,500.00 plus statutory interest and/or the Attorney’s Fund for Client Protection in the event the Fund already provided full or partial restitution to the Winzenrieds.

4. DANIEL PAUL D’ACQUISTO, as a condition precedent to his petition for reinstatement, SHALL submit with his petition for reinstatement proof that he has met with a mental health professional monthly for the year preceding his petition for reinstatement.

5. DANIEL PAUL D’ACQUISTO, as a condition precedent to his petition for reinstatement, SHALL submit to an Independent Medical Examination by a qualified doctor agreeable to the People. Respondent, not the People, shall be responsible for the cost of the IME. Once a qualified expert is chosen, it is Respondent’s duty to advise the PDJ so that an appropriate order may be drafted and presented to the doctor as to what issues to address in a report to this court. The doctor shall have access to all records in the People’s possession as well as this opinion before meeting with Respondent for the scheduled IME.

6. Prior to the commencement of this hearing, the PDJ DENIED a Motion to Strike and a Motion in Limine filed by the People on June 13, 2006.

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1. ABA Standard 4.1, Commentary.

2. See Order Re: Motion for Summary Judgment dated April 20, 2006.

3. While the facts and rule violations have been established by clear and convincing evidence, the People still bear the burden of proving aggravating factors by clear and convincing evidence at the sanctions hearing. See ABA Standard 3.0 and C.R.C.P. 251.18(d).

4. The text of the fee agreement only referenced one of Nathan Winzenried’s cases. Mr. Winzenried’s affidavit in support of the People’s Motion for Summary Judgment stated that Respondent orally agreed to represent Mr. Winzenried on both cases. Mr. Winzenried stated that he did not want both cases referenced in the fee agreement, because he did not want his parents to know he had been charged with two cases.

5. Respondent disputed in his "Answer and Affirmative Defenses" that he represented Mr. Winzenried in both cases and that Mr. Winzenried was entitled to any refund. The PDJ finds that the facts established by virtue of summary judgment settles this issue on the rule violations. However, summary judgment does not preclude the Hearing Board from considering Respondent’s duties, mental state, injury, and mitigation/aggravation in determining the appropriate sanction under ABA Standand 3.0.

6. C.R.C.P. 251.23(c) allows the PDJ to take whatever action necessary when it appears a respondent is so incapacitated as to be unable to proffer a defense. While Respondent presented a relatively substandard case of mitigation, he offered some evidence and clearly understood the nature of these proceedings.

7. Exhibit F of the People’s Motion and Brief in Support of People’s Motion for Summary Judgment.

8. While the Hearing Board finds that Respondent failed to establish mitigation under ABA Standards 9.32(h), the Hearing Board finds that Respondent’s evidence sufficiently established personal or emotional problems. The issue of potential serious mental health problems that affected his failure to tend to his ethical duties was not fully addressed by either party. Respondent raised the issue but failed to carry his burden of proof on the issue and the People offered no evidence on Respondent’s mental health. Current testimony on this issue would have been helpful to the Hearing Board.

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Case No. 05PDJ071

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JAMES HENRY HAHN.

August 22, 2006

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS

On June 22, 2006, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Charles E. Mortimer, Jr. appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). James Henry Hahn ("Respondent") did not appear, nor did counsel Arthur F. Pansing appear on his behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions.

I. ISSUE

Disbarment is generally appropriate, absent significant evidence of mitigation, when a lawyer knowingly converts client funds or knowingly violates the terms of a prior disciplinary order and causes injury. Respondent knowingly converted funds in one client matter and knowingly practiced law with a suspended license in another. Respondent did not participate in these proceedings and provided no evidence of mitigation to offset several aggravating factors. Is disbarment the appropriate sanction in this case?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The People filed a Complaint with the Court on October 5, 2005. Respondent failed to file an answer in this case and the Court granted the People’s Motion for Default on January 3, 2006. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence. 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.1 Respondent took and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 25, 1983, and is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 12811. The allegations in this case arise from Respondent’s representation in two client matters.

The Peterson Matter

Respondent agreed to represent Laura and Robert Peterson in two bankruptcy cases. The Petersons signed an individual fee agreement and paid Respondent a $1,500.00 retainer fee on July 24, 2003. The Petersons also signed a fee agreement for Respondent to provide legal services on behalf of their corporation R&L Peterson Corp. d/b/a/ Vista Electric Co. and paid him a $4,500.00 retainer fee on July 14, 2003.2 The fee agreements required monthly accounting statements from Respondent.

Respondent deposited the retainer fee checks in a personal savings account in his name at Commercial Federal Bank and took immediate cash withdrawals rather than depositing them into a trust account. The Petersons terminated Respondent’s services in January 2004 and hired a new attorney after Respondent failed to respond to their requests for accountings. Respondent eventually provided a partial accounting to the Petersons’ new counsel that showed he had earned $4,430.00 in fees in November and December of 2003. The Petersons again demanded a refund of their money, but Respondent never provided accountings or otherwise responded to their requests.

Respondent knowingly exercised unauthorized dominion and control over the funds by immediately depositing them into his personal savings account and by taking immediate case withdrawals from some of those deposits. Respondent knowingly violated Colo. RPC 8.4(c) when he knowingly converted the property of his clients, the Petersons and R&L Peterson, Corp. d/b/a/ Vista Electric Co. He also violated Colo. RPC 1.15(a) and 1.15(b) when he failed to hold the Petersons’ property separate from his own and when he failed to promptly deliver funds entitled to them or render an accounting of these funds.

The admitted facts also reveal that Respondent violated Colo. RPC 1.15(c) when he failed to keep property in which both he and the Petersons claimed an interest separate until an accounting. Finally, Respondent violated Colo. RPC 1.16(d) when he failed to protect the interests of the Petersons upon termination of his services.

The Ward Matter

Respondent represented Tom Ward in an Eagle County District Court civil action. On January 17, 2005, Respondent’s license to practice law in the State of Colorado was suspended for a one-month period of time. Respondent subsequently failed to give notice of his suspension to opposing counsel in the Ward matter as required by C.R.C.P. 251.28, and in the process knowingly violated Colo. RPC 3.4(c).

Despite his actual knowledge of the rule, Respondent also never sought reinstatement of his license to practice law as required by C.R.C.P. 251.29(b). Instead, he negotiated with a representative of opposing counsel and responded to a motion for summary judgment filed by opposing counsel in the Ward matter. Respondent knowingly violated Colo. RPC 5.5(a) when he practiced law with a suspended license.

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. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the Court must first consider 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 leaves the Court with no alternative but to consider only the established facts and rule violations set forth in the complaint in evaluating the first three factors listed above. The Court finds Respondent violated duties owed to his clients and the legal system. Respondent violated his duty to preserve the property of his clients and his duty to obey professional rules and obligations as an officer of the court. The entry of default established that Respondent knowingly converted funds entrusted to him by his clients and knowingly practiced law with a suspended license. The facts established by the entry of default also supports a finding of actual harm to Respondent’s clients in their loss of funds and to the legal profession in the delay of court proceedings.3

The People alleged that several aggravating factors exist including prior disciplinary offenses, a dishonest or selfish motive, multiple offenses, substantial experience in the practice of law, and indifference to making restitution. See ABA Standards 9.22(a), (b), (d), (i), and (j). 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. Respondent presented no evidence in mitigation.

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the admitted facts and rule violations in this case range from suspension to disbarment. Respondent knowingly converted at least a portion of the advanced fees paid to him by his clients. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client and suspension is generally appropriate when a lawyer knowingly fails to perform services for a client or engages in a pattern of neglect and causes injury or potential injury to a client. ABA Standards 4.11 and 4.42(b).

Respondent also knowingly practiced law with a suspended license. Disbarment is generally appropriate when a lawyer intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession. ABA Standard 8.1.

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 alone. 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).

Additional Colorado Supreme Court case law applying the ABA Standards holds disbarment is the presumptive sanction for Respondent’s misconduct. See In re Hugen, 973 P.2d 1267 (Colo. 1999) (attorney disbarred for knowingly misappropriating client funds and continuing to practice law while under suspension); People v. Redman, 902 P.2d 839 (Colo. 1995) (unauthorized practice of law during administrative suspension and after discipline for continuing to practice after suspension warrants disbarment); and People v. Ebbert, 925 P.2d 274 (Colo. 1996) (disbarment warranted for misconduct which included practicing law during suspension period).

Respondent’s failure to refund the advanced fees alone likely warrants disbarment. His additional misconduct in practicing law with a suspended license reinforces the conclusion that disbarment is the appropriate sanction in this case. Finally, Respondent’s complete failure to participate in these proceedings further precludes any deviation from the presumptive sanction.

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, without explanation or mitigation, reveal the serious danger Respondent poses to the public. He knowingly converted client funds and practiced law with a suspended license and this misconduct adversely reflects on his fitness to practice law. 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, 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.

V. ORDER

The Court therefore ORDERS:

1. JAMES HENRY HAHN, Attorney Registration No. 12811, 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. JAMES HENRY HAHN SHALL pay restitution to the Petersons and/or the Attorney’s Fund for Client Protection, in an amount to be determined, as a condition precedent to the filing of any petition for readmission.

3. JAMES HENRY HAHN 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.

4. The Court GRANTS the People’s "Motion to Dismiss Claim Without Prejudice" filed on June 23, 2006. The Court DISMISSES the reciprocal discipline claim set forth in paragraphs 39, 40, and 41 of the Complaint.

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1. See the People’s complaint filed October 5, 2005.

2. The Petersons also paid Respondent an advanced fee of $1,500.00 on August 13, 2003. On September 4, 2003, the Petersons paid Respondent an additional advanced fee of $4,500.00. On September 22, 2003, the Petersons paid Respondent a final advanced fee of $830.00 for use as a bankruptcy court filing-fee.

3. The Court considered a written statement from Laura J. Peterson in its consideration of the appropriate sanction in this matter pursuant to C.R.C.P. 251.18(a).

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Case No. 99PDJ116

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

WILLIAM B. KIESEWETTER.

September 7, 2006

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)

On August 30, 2006, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). James C. Coyle appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). William B. Kiesewetter ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision and Order Imposing Sanctions.

I. ISSUE

If Regulation Counsel does not seek substantially different discipline and the respondent does not challenge an order based on any of the grounds set forth in C.R.C.P. 251.21(d), the Presiding Disciplinary Judge may impose the same discipline imposed by a foreign jurisdiction. The Pennsylvania Supreme Court disbarred Respondent for fraudulent misconduct and the People seek the reciprocal sanction. Respondent failed to participate in these proceedings. Is disbarment the appropriate reciprocal discipline?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY AND BACKGROUND

The People filed their original Complaint in this matter on November 8, 1999. On January 20, 2000, the Court granted a stipulated motion of the parties to place the matter in abeyance pending the outcome of disciplinary proceedings in Pennsylvania.

On March 29, 2006, the Court removed the case from abeyance and granted a Motion for Leave to File Amended Complaint filed by the People. Respondent failed to file an Answer to the Amended Complaint and the Court granted the People’s Motion for Default on June 7, 2006. Upon the entry of default, the Court deems all facts in the Complaint admitted and all rule violations established by clear and convincing evidence. 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 Amended Complaint and its attachment. On December 27, 2005, the Pennsylvania Supreme Court disbarred Respondent for violating Pa. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation).1 The Pennsylvania Supreme Court found that Respondent had defrauded his sisters and nephews of family assets and misappropriated such entrusted funds.

The allegations in Pennsylvania initially arose from a civil verdict entered against Respondent in the United States District Court for the Western District of Pennsylvania. The civil litigation stemmed from a dispute between Respondent and his sisters over the ownership of family assets with a principal value exceeding $2.4 million. On December 5, 1994, the jury returned a verdict against Respondent, finding him liable for breach of fiduciary duty, unjust enrichment, and fraud.

The Pennsylvania Supreme Court found that Respondent’s actions in defrauding his sisters and nephews of family assets clearly violated Pa. RPC 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The Pennsylvania Supreme Court also held that such misconduct warranted disbarment from the practice of law.

"A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere." Colo. RPC 8.5. 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. C.R.C.P. 251.21(a). The adopted facts establish that Respondent violated Colo. RPC 8.4(c) (engaged in conduct involving dishonesty, fraud, deceit or misrepresentation).

III. SANCTIONS

At the conclusion of proceedings brought under C.R.C.P. 251.21, a Hearing Board shall issue a decision imposing the same discipline imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:

(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;

(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;

(3) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or

(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

C.R.C.P. 251.21(d)(1-4). However, if Regulation Counsel does not seek substantially different discipline and if the respondent does not challenge the order based on any of the grounds set forth in (d)(1-4) above, then the Presiding Disciplinary Judge may, without a hearing or Hearing Board, issue a decision imposing the same discipline as imposed by the foreign jurisdiction. C.R.C.P. 251.21(e). The People did not seek a substantially different discipline and Respondent did not challenge the order from the Pennsylvania Supreme Court. Accordingly, the Court issues this decision imposing the same discipline as imposed by the Pennsylvania Supreme Court.

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 Colorado Rules of Professional Conduct specifically protect the public from lawyers licensed in Colorado but who practice in other jurisdictions. Here, Respondent defrauded his sisters and nephews of family assets and misappropriated such entrusted funds. Further, his failure to participate in these reciprocal proceedings or challenge the order of disbarment from Pennsylvania leaves the Court with no option but to impose the same discipline. Accordingly, the Court concludes disbarment is the appropriate sanction in this case.

V. ORDER

The Court therefore ORDERS:

1. WILLIAM B. KIESEWETTER, Attorney Registration No. 14503, 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. WILLIAM B. KIESEWETTER 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.

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1. The Court attaches the Opinion of the Pennsylvania Supreme Court to this report.

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Case No. 06PDJ033

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

BOBBY O. WHEELER.

September 7, 2006

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)

On August 2, 2006, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Bobby O. Wheeler ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision and Order Imposing Sanctions.

I. ISSUE

If Regulation Counsel does not seek substantially different discipline and the respondent does not challenge an order based on any of the grounds set forth in C.R.C.P. 251.21(d), the Presiding Disciplinary Judge may impose the same discipline imposed by a foreign jurisdiction. The California Supreme Court disbarred Respondent for violating a court rule and order and the People seek the reciprocal sanction. Respondent failed to participate in these proceedings. Is disbarment the appropriate reciprocal discipline?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY AND BACKGROUND

The People filed a Complaint in this matter on May 1, 2006. Respondent failed to file an Answer and the Court granted the People’s Motion for Default on June 23, 2006. Upon the entry of default, the Court deems all facts in the Complaint admitted and all rule violations established by clear and convincing evidence. 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 and its attachments. The Complaint outlined the extensive efforts the People took to provide Respondent with actual notice of these proceedings. On April 8, 2005, the California Supreme Court disbarred Respondent based on the recommendation of the Honorable Richard A. Honn, Judge of the State Bar Court.1 The disbarment was based on Respondent’s failure to comply with a court rule and a court order. Respondent did not participate either in-person or through counsel.

On January 23, 2004, the California Supreme Court filed an order and suspended Respondent for forty-five days and until the court granted a motion to terminate his suspension pursuant to the rules of procedure. If Respondent remained suspended beyond ninety days, he had to comply with CRC 955(a) by June 21, 2004, and CRC 955(c) by July 1, 2004. As of November 8, 2004, Respondent had not filed with the State Bar Court the affidavit required by CRC 955(c) and had not offered an explanation for his failure to comply with this rule. Therefore, Judge Honn found that Respondent willfully violated the order of January 23, 2004 when he failed to comply with CRC 955(c). This constituted a violation of section 6103, which requires attorneys to obey court orders.

"A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere." Colo. RPC 8.5. 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. C.R.C.P. 251.21(a). The adopted facts establish that Respondent violated Colo. RPC 3.4(c) (knowingly disobeyed an obligation under the rules of a tribunal).

III. SANCTIONS

At the conclusion of proceedings brought under C.R.C.P. 251.21, a Hearing Board shall issue a decision imposing the same discipline imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:

(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;

(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;

(3) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or

(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

C.R.C.P. 251.21(d)(1-4). However, if Regulation Counsel does not seek substantially different discipline and if the respondent does not challenge the order based on any of the grounds set forth in (d)(1-4) above, then the Presiding Disciplinary Judge may, without a hearing or Hearing Board, issue a decision imposing the same discipline as imposed by the foreign jurisdiction. C.R.C.P. 251.21(e). The People did not seek a substantially different discipline and Respondent did not challenge the order from the California Supreme Court. Accordingly, the Court issues this decision imposing the same discipline as imposed by the California Supreme Court.

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 Colorado Rules of Professional Conduct specifically protect the public from lawyers licensed in Colorado but who practice in other jurisdictions. Respondent’s failure to participate in these reciprocal proceedings or challenge the order of disbarment from California leaves the Court with no option but to impose the same discipline. Accordingly, the Court concludes disbarment is the appropriate sanction in this case.

V. ORDER

The Court therefore ORDERS:

1. BOBBY O. WHEELER, Attorney Registration No. 21059, 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. BOBBY O. WHEELER 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. The Court attaches the "Decision Including Disbarment Recommendation and Order of Involuntary Inactive Enrollment" issued by the Honorable Richard A. Honn and the Order of Disbarment from the California Supreme Court to this report.

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