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TCL > February 2007 Issue > Disciplinary Opinions

February 2007       Vol. 36, No. 2       Page  119
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 (PDJ), 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 PDJ 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 PDJ. 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 PDJ William R. Lucero and the 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, amended complaints, and summaries, also are available at the Office of the PDJ 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. 06PDJ028

Petitioner:

JERRY E. CARDWELL,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

November 21, 2006

OPINION AND ORDER RE: REINSTATEMENT
PURSUANT TO C.R.C.P. 251.29

On August 28-29, 2006, a Hearing Board composed of Marna M. Lake, William R. Gray, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a reinstatement hearing pursuant to C.R.C.P. 251.18 and 251.29(d). Alexander R. Rothrock represented Jerry E. Cardwell ("Petitioner") and James C. Coyle represented the Office of Attorney Regulation Counsel ("the People"). The Hearing Board issues the following Opinion and Order Re: Reinstatement Pursuant to C.R.C.P. 251.29.

I. ISSUE

An attorney seeking reinstatement under C.R.C.P. 251.29 must prove compliance with all disciplinary orders, fitness to practice, and rehabilitation by clear and convincing evidence. The People stipulated that Petitioner complied with all applicable disciplinary orders and that he is professionally competent. Petitioner provided substantial evidence of a meaningful and sustained change in his character since the time of his original suspension. Should the Hearing Board reinstate Petitioner’s license to practice law?

DECISION OF HEARING BOARD:
REINSTATEMENT GRANTED

II. PROCEDURAL HISTORY

On July 24, 2002, the Colorado Supreme Court affirmed the findings of fact and order of discipline from a Hearing Board in case number 00PDJ074 and suspended Petitioner from the practice of law for a period of three years with eighteen months of the suspension stayed.1 On August 2, 2004, the PDJ suspended Petitioner for a period of ninety days in case number 04PDJ015.

On April 11, 2006, Petitioner filed "Respondent’s Verified Petition for Reinstatement." On April 24, 2006, the People filed an "Answer To Verified Petition For Reinstatement" and agreed to Petitioner’s eligibility with regard to reinstatement, but took no position on the merits of the petition pending their investigation of the matters alleged therein. On August 22, 2006, Petitioner filed a "Verified Supplement to Petition for Reinstatement." The People did not file a response.

On August 22, 2006, the parties filed a joint exhibit list and the PDJ accepted and admitted stipulated exhibits 1-11 into evidence at the commencement of the reinstatement hearing. The PDJ also accepted and admitted a supplemental stipulation, a stipulated chronology of events, and a timeline of events as exhibits 12-14 during the hearing.

At the reinstatement hearing, the People stipulated that Petitioner had complied with all applicable disciplinary orders related to his suspension and that he is professionally competent.2 Petitioner testified on his own behalf and presented six additional witnesses, both lay and professional, in support of his petition. The People did not present any witnesses and at the close of the case agreed that Petitioner should be reinstated with certain conditions.

III. FINDINGS OF FACT

The Hearing Board finds the following facts by clear and convincing evidence.3

Petitioner has taken and subscribed the Oath of Admission, was admitted to the Bar of the State of Colorado on May 25, 1983, and is registered as an attorney upon the official records of the Colorado Supreme Court, Attorney Registration No. 12743. Petitioner is subject to the jurisdiction of the Colorado Supreme Court and the Office of the Presiding Disciplinary Judge in these proceedings.

Petitioner’s First Suspension

On June 24, 2002, the Colorado Supreme Court suspended Petitioner’s license to practice law in the State of Colorado for three years, with eighteen months stayed.4 The factual basis for Petitioner’s first suspension involved his dishonesty in an oral colloquy with a judge and his submission of written documents filed on behalf of his client in Arapahoe County Court.

On February 5, 1996, Petitioner appeared with his client, James McHenry, in Jefferson County Court. On that date, Mr. McHenry pled guilty to DWAI and the court later sentenced him to probation with a referral for an alcohol evaluation.

On May 6, 1996, Petitioner appeared with Mr. McHenry in Arapahoe County Court on a second DUI charge. Petitioner negotiated a plea agreement with the deputy district attorney without informing him about the Jefferson County Court conviction. Petitioner and Mr. McHenry signed a plea agreement attesting that Mr. McHenry had "[n]o prior or pending alcohol related driving offenses in this or any state." Petitioner had advised Mr. McHenry about the mandatory five-day jail sentence that would be imposed for a conviction of a second alcohol-related driving offense.5 When he signed the document, Petitioner knew that Mr. McHenry had been previously charged with an unrelated DUI and had entered a guilty plea to DWAI in Jefferson County Court, but somehow "convinced" himself that Mr. McHenry had not been convicted of an alcohol offense in Jefferson County.

After Petitioner tendered the written plea agreement, Judge Ethan Feldman asked Petitioner and his client the following questions in open court before accepting the plea:

Court: Have you ever had an alcohol driving offense before?

Petitioner: No sir.

Court (to client): Okay, is that your representation?

Mr. McHenry: Yes sir.

Court: Okay, never ever, at any time, any place?

Mr. McHenry: No.

Based on these untruthful representations, Judge Feldman sentenced Mr. McHenry to twelve months of probation, with no jail time, as a first time offender.6 In these reinstatement proceedings, Petitioner acknowledged that this statement to Judge Feldman was a lie.

On June 13, 1996, after discovering that Petitioner’s client was previously convicted of an alcohol driving offense, Judge Feldman confronted Petitioner about his untruthful comments regarding his client’s driving record. The matter was then reported to the People and Petitioner was ultimately suspended on order of the Colorado Supreme Court for three years, with eighteen months stayed. Petitioner also was eventually charged with six felonies and two misdemeanors.

On April 23, 1997, pursuant to a deferred sentencing plea agreement, Petitioner tendered a plea of guilty to attempting to influence a public servant, a Class 4 felony,7 and to perjury in the second degree, a Class 1 misdemeanor. Pursuant to the plea agreement, Petitioner received a four-year deferred judgment and sentence on the felony count. Petitioner satisfied all terms of probation, which included a $4,000.00 fine, ethics class attendance, 200 hours of community service, and the felony charge was dismissed.

Petitioner’s Second Suspension

On August 2, 2004, the PDJ suspended Respondent from the practice of law for ninety days, based upon a conditional admission of misconduct filed on July 20, 2004. The factual basis for the second suspension concerned Petitioner’s representation of a client in two automobile accident cases.

Petitioner acknowledged that he represented a client in two accident cases and allowed the statute of limitations to lapse in one of these cases. Petitioner contacted his client in 2002 and asked her to pick up the active case file. When his client asked Petitioner what happened on the second accident case, he told her the case had been dismissed. In fact, Petitioner had filed the case in the wrong jurisdiction and it had been dismissed for failure to prosecute. By that time the statute of limitations had also lapsed.

Petitioner’s Testimony

Petitioner testified on his own behalf and described the following background leading to his practice of law in Colorado. He graduated from Drake University Law School in 1982, clerked for Judge Zita Weinshenk in the United States District Court for the District of Colorado, and later went into private practice with his father-in-law, George T. Ashen, in Denver. Petitioner practiced workers’ compensation and personal injury law and later started a business section of the firm. By the late 1980s, Petitioner became a partner in the firm. The law firm later dissolved and Petitioner started his own firm.

At his own firm, Petitioner primarily practiced business and transactional law while handling a few criminal matters. He typically used the criminal work as a training opportunity for the younger lawyers in his office. Petitioner only handled smaller criminal matters and maintained a policy of not accepting cases involving second-time offenders. He nevertheless continued to represent Mr. McHenry after his second arrest for DUI.

Petitioner testified in great detail with regard to his representation of Mr. McHenry. He also testified to the events that led to his discipline and admitted that he lied twice to Judge Feldman.

Petitioner worked for a number of different companies during his suspension. He initially worked for a friend and former client, Richard Hansen, who owned an Internet marketing firm for undeveloped land called US Lots. Petitioner ran this company for approximately one year before accepting a new business opportunity in Oregon in January 2004. Petitioner also spent six to seven months as a car salesman for Kuni Lexus in the summer of 2005.8

Since April 2006, Petitioner has worked for a mergers and acquisitions firm as vice-president and operations manager. Petitioner has also maintained his competence in the law by working for George T. Ashen as a part-time law clerk the past fifteen months.

Petitioner testified to his significant financial difficulties in recent years.9 He stated that these difficulties began in 2000-01 when he started losing attorneys and cases at his firm. Petitioner dipped into retirement and education accounts, as well as various lines of credit in attempt to pay salaries and financially stay afloat. He paid off approximately $500,000 in outstanding debt, leaving approximately $150,000 to $175,000 in personal debt as of 2003. The total current amount of Petitioner’s debts is well in excess of $200,000.10

Petitioner has not filed bankruptcy as of the date of the reinstatement hearing. However, a number of friends and relatives have come to Petitioner’s aid in recent years by loaning him funds. He has attempted to negotiate payment arrangements and consolidate debts with several of his creditors.

Petitioner testified that he has learned from his mistakes. He admitted that early on in his career, he was an "arrogant" attorney who felt he could solve any problem. Petitioner now can admit it when he does not know the answer to an issue and feels he would be much more open and candid. He also now realizes the importance of seeking advice from other attorneys and friends. Petitioner stated that the greatest thing he learned throughout this process is the value of his friends.

Petitioner’s misconduct caused a "tremendous" strain on his family. However, he believes his religious faith is stronger now and he believes he is "more real." Petitioner testified that he enjoys helping people with their legal problems and that he has a great passion for the practice of law. If he is reinstated, Petitioner stated that he would ease back into the profession, and would ensure compliance with case deadlines through a new computer program designed to assist with scheduling.

Additional Testimony in Support of Petition for Reinstatement

Douglas Coon, M.D., is a board-certified doctor of emergency medicine. He met Petitioner through a mutual friend in 2002. Petitioner initially helped Dr. Coon deal with the hostile takeover of his company. He testified to Petitioner’s "cocky" and "brash" but highly effective manner in those matters. They remained in contact following the takeover and Dr. Coon later sought Petitioner’s assistance in another business transaction in April 2004. Dr. Coon testified that Petitioner initially appeared "neutral" about his misconduct, but later opened up and accepted full responsibility for his actions. He believes Petitioner is an honest person who has learned his lesson from his past conduct.

Richard Hansen is a real estate redeveloper who operates an Internet marketing firm called US Lots. He met Petitioner through a mutual friend in the mid 1990s. Petitioner performed legal work in past years and ran Mr. Hansen’s company for a year after his suspension from the practice of law. Mr. Hansen testified that Petitioner had changed from a cocky and arrogant man to a remorseful person who could admit his mistakes. Mr. Hansen also testified that he would hire Petitioner to perform legal work in the future.

Richard Klamper is a real estate developer and appraiser. He met Petitioner in the early 1980s when they lived in the same subdivision. Mr. Klamper hired Petitioner to perform legal work for his various businesses. He also depicted Petitioner as cocky and "the type of lawyer everyone hated." However, Petitioner provided Mr. Klamper with effective legal services for his businesses over the years. He stated that Petitioner discussed his disciplinary troubles over time and eventually accepted full responsibility for his actions. Mr. Klamper said Petitioner became a more compassionate, believable, and humble person in recent years.

Joseph Murr is a Colorado commercial litigation attorney. He met Petitioner as opposing counsel in a real estate case thirteen years ago. Mr. Murr has observed Petitioner’s recognition that he made a terrible mistake and a change in his overall conduct. He stated that Petitioner is the type of lawyer he would consider hiring at his own firm.

David Moss is an engineer who designs and sells large gas compressor systems. He met Petitioner seven or eight years ago and they attend the same church while their children attend the same school. Mr. Moss described Petitioner as initially "gregarious" but later accepting of responsibility for his conduct. Mr. Moss testified that he would refer people to Petitioner because he believes Petitioner is more down to earth, compassionate, caring, and trustworthy.

Gabrielle Cardwell is Petitioner’s wife of over twenty-six years. Ms. Cardwell and Petitioner have two young children and they have lived in Castle Rock, Colorado for over twenty years. Ms. Cardwell described the experience of living through these disciplinary proceedings. She testified to returning to work as a result of the difficult financial circumstances the family went through following Petitioner’s suspension. Ms. Cardwell believes Petitioner has changed over the years from someone who used to have a big ego, to someone who is more humble. She believes Petitioner is very honest, is prepared to practice law again, and that he will be a better attorney today.

Gary S. Gutterman is a licensed psychiatrist. Petitioner underwent an independent medical evaluation ("IME") by Dr. Gutterman, M.D. on June 7, 2006.11 Dr. Gutterman opined that Petitioner is capable of returning to the practice of law from a psychiatric perspective. Dr. Gutterman also recommended that Petitioner receive some psychotherapeutic follow-up on a monthly basis for approximately six months. He stated that there will probably be various stressors during the transition phase, and meeting with a therapist on a monthly basis during that initial period will allow Petitioner the opportunity to more effectively manage and master this transition and remain aware of his need to more objectively interact with clients.

IV. LEGAL ANALYSIS AND CONCLUSIONS OF LAW

The Hearing Board must first look to the rules applicable to the reinstatement process and then to case law, particularly Colorado Supreme Court case law, which provides considerable guidance in interpreting these rules. Pursuant to C.R.C.P. 251.29(b), an attorney subject to reinstatement proceedings must prove the following by clear and convincing evidence:

1. He has been rehabilitated;

2. He has complied with all applicable disciplinary orders and with all provisions of Chapter 20 of the Colorado Rules of Civil Procedure concerning attorney discipline; and

3. He is fit to practice law.

C.R.C.P. 251.29(c) sets forth the formal requirements for a petition for reinstatement and C.R.C.P. 251.29(d) requires the party seeking reinstatement to prove the averments in the petition by clear and convincing evidence. The People stipulated that Petitioner complied with all applicable disciplinary orders related to his suspension and that he is competent in his knowledge of the law. Therefore, the only issue before this Hearing Board is whether Petitioner proved by clear and convincing evidence that he has been rehabilitated and is otherwise fit to practice law as provided in C.R.C.P. 251.29(b).

The Colorado Supreme Court declared that in assessing rehabilitation we "must include the consideration of numerous factors bearing on the [attorney’s] state of mind and ability."12 These issues include but are not limited to:

. . . numerous factors bearing on the Petitioner’s state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the Petitioner, the personal and community service aspects of the Petitioner’s life, and the Petitioner’s recognition of the seriousness of his previous misconduct.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988); see also Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000); and Lockley v. People, 96 P.3d 236 (Colo. O.P.D.J. 2004).13

Petitioner engaged in serious misconduct when he lied to a district court judge. However, the Hearing Board finds that Petitioner has learned from this experience and believes he is a changed person. The Hearing Board therefore finds by clear and convincing evidence that Petitioner is now rehabilitated, has complied with all the applicable rules in the reinstatement, is otherwise fit to practice law, and should be reinstated to the practice of law.

The People argued that debt is a substantial issue in this case. The Hearing Board agrees that Petitioner faces significant financial hurdles as he returns to the practice of law. However, the Hearing Board also finds there was no order of restitution made in either case number 00PDJ074 or case number 04PDJ015; and the Colorado Attorneys’ Fund for Client Protection was not required to make any reimbursements to any of Petitioner’s clients.14

The Hearing Board finds Petitioner’s rehabilitation is complete and he has demonstrated such rehabilitation by clear and convincing evidence. Therefore, the Hearing Board finds the conditions for reinstatement offered by the parties unnecessary for Petitioner’s successful transition back into the practice of law.

The Hearing Board commends Petitioner for the zeal and passion for the practice of law he demonstrated in these proceedings, and encourages him to maintain the same enthusiasm and respect for the practice of law in the future.

V. ORDER

It is therefore ORDERED:

1. The Hearing Board GRANTS Petitioner’s Verified Petition for Reinstatement. Petitioner Jerry E. Cardwell, Attorney Registration Number 12743, SHALL be reinstated to the practice of law effective immediately.

2. Petitioner 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, and Petitioner may submit a response within ten (10) days thereafter.

_______

1. See In re Cardwell, 50 P.3d 897 (Colo. 2002).

2. See Stipulated Exhibits 1, 5, 7, 8, 11 and 12.

3. See Stipulated Exhibit 13.

4. See In re Cardwell, 50 P.3d 897 (Colo. 2002).

5. See C.R.S. § 42-4-1301(9)(b)(II).

6. See C.R.S. § 42-4-1301(9)(b)(I) and In re Cardwell, 50 P.3d 897 (Colo. 2002).

7. See C.R.S. § 18-8-306.

8. See Stipulated Exhibit 2.

9. See Stipulated Exhibit 6.

10. See ¶¶13-14, Partial Stipulation of Facts filed August 22, 2006.

11. See Stipulated Exhibit 4.

12. While this case interpreted the previous rule, C.R.C.P. 241.22, it looks to the ABA factors for determining rehabilitation and provides valuable guidance in this area.

13. The PDJ cites O.P.D.J. cases only for guidance and not as precedent.

14. See ¶4, Partial Stipulation of Facts filed August 22, 2006.

__________

Case No. 06PDJ027

Petitioner:

MICHAEL P. FOSSENIER,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

November 20, 2006

OPINION AND ORDER RE: REINSTATEMENT
PURSUANT TO C.R.C.P. 251.29

On August 14-15, 2006, a Hearing Board composed of Sheila K. Hyatt, Bruce W. Sattler, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a Reinstatement Hearing pursuant to C.R.C.P. 251.29(d) and 251.18. Michael P. Fossenier ("Petitioner") appeared pro se and Nancy L. Cohen represented the Office of Attorney Regulation Counsel ("the People") in these proceedings. The Hearing Board issues the following Opinion and Order Re: Reinstatement Pursuant to C.R.C.P. 251.29.

I. ISSUE

An attorney subject to reinstatement proceedings under C.R.C.P. 251.29 must prove compliance with all disciplinary orders, fitness to practice, and rehabilitation by clear and convincing evidence. The People stipulated that Petitioner complied with all applicable disciplinary orders and that he is professionally competent. Petitioner provided substantial evidence of a meaningful and sustained change in his character since the time of his original suspension. Should the Hearing Board reinstate Petitioner’s license to practice law?

DECISION OF HEARING BOARD:
REINSTATEMENT GRANTED

II. PROCEDURAL HISTORY

On April 29, 2004, the PDJ transferred Petitioner to disability inactive status in case number 04PDJ042.1 On July 15, 2004, the PDJ issued an "Order Approving Conditional Admission and Imposing Sanctions" in case number 04PDJ068 and suspended Petitioner from the practice of law for a period of six months with the requirement that he petition for reinstatement.2

On March 2, 2006, Petitioner requested consolidation of his disability and disciplinary cases for the purpose of filing a single petition for reinstatement. The PDJ held a hearing, questioned Petitioner on the issue, and found that he knowingly wished to waive his right to confidentiality regarding the disability matter. The PDJ granted Petitioner’s request for consolidation on March 17, 2006.3

Petitioner thereafter filed a "Verified Petition for Reinstatement" on April 11, 2006. On April 13, 2006, the People filed an "Answer to Verified Petition for Reinstatement" and agreed to the technical sufficiency of the petition, but took no position regarding reinstatement pending an investigation.

At the Reinstatement Hearing, the People stipulated that Petitioner had complied with all applicable disciplinary orders related to his suspension and that he is professionally competent.4 The PDJ accepted and admitted stipulated exhibits 1-7 and 11-18 into evidence at the hearing. Petitioner testified on his own behalf and presented nine additional witnesses (one by affidavit), both lay and professional, in support of his petition. The People did not present any witnesses and at the close of the case agreed that Petitioner should be reinstated with certain conditions.

III. FINDINGS OF FACT

The Hearing Board finds the following facts established by clear and convincing evidence. Petitioner has taken and subscribed the Oath of Admission, was admitted to the Bar of the State of Colorado on October 27, 1988, and is registered as an attorney upon the official records of the Colorado Supreme Court, Attorney Registration No. 17804. Petitioner is therefore subject to the jurisdiction of the Colorado Supreme Court and the Office of the Presiding Disciplinary Judge in these proceedings.

Petitioner cooperated with the People throughout the investigation, disciplinary process, and petition for reinstatement.5 He voluntarily sought and obtained a "hair follicle" drug test (negative result) from A.B. Counseling on June 17, 2006.6 Petitioner also had no instances of ethical misconduct from the date of his suspension through the date of his reinstatement hearing.7

Prior Misconduct

On May 28, 2003, Petitioner engaged in conduct leading to the suspension of his license to practice law. Petitioner, while intoxicated, forced open the doors to an apartment belonging to someone he did not know and attacked the occupant. Petitioner ended up in the hospital with critical injuries after sustaining a blow to the head from a baseball bat. Police arrested Petitioner and took him into custody upon his release from the hospital.

In June 2003, Petitioner was charged in Arapahoe County with first-degree burglary in violation of C.R.S. § 18-4-202, and criminal mischief in violation of C.R.S. § 18-4-501. Petitioner pled guilty to second-degree burglary (F4) and misdemeanor criminal mischief (M2). Petitioner was sentenced to one year of probation for the criminal mischief and a three-year deferred sentence for the second-degree burglary.

Petitioner’s Testimony

Petitioner grew up in Grand Junction, Colorado, and presently resides in Golden, Colorado. He graduated from Mesa State College in May 1985, and the University of South Dakota Law School in May 1988. His legal background includes experience in private practice, specializing mostly in commercial and personal injury litigation. Petitioner considers himself a "very good trial attorney" with experience in over thirty district court trials. Since his suspension, Petitioner has maintained his competence in the law by attending thirty-nine hours of CLE programs as evidenced by the stipulated exhibits.

Petitioner testified that he began experiencing problems with alcohol in the late 1990s. He could not define a particular event that precipitated his problem, but speculated it could have been related to his deteriorating relationship with his fiancée and/or his declining ability to play competitive rugby on a national level. Petitioner testified that during this time, he felt unsuccessful, became less social, and compensated with alcoholism.

In December 2000, Petitioner was arrested for Driving Under the Influence ("DUI") in Douglas County. He pled guilty and was sentenced to one year of probation. On January 22, 2001, Petitioner entered a 28-day in-patient treatment program at the Rio Grande Treatment Center in New Mexico. Upon his release, Petitioner spent time in and out of various treatment programs in New Mexico and Colorado, including the Cenikor program, with varying degrees of success.

In May 2003, Petitioner was arrested for the misconduct that led to his suspension from the practice of law. Shortly after his release from jail, Petitioner was again arrested for DUI.

Petitioner entered the Cenikor program for a second time on June 13, 2003.8 Cenikor is a highly intensive and highly structured residential treatment program that offered Petitioner a "therapeutic community" approach to his treatment. This approach involved "tearing down" the residents and building them back up over a period of eighteen to twenty-four months. Petitioner remained in the Cenikor program until May 28, 2004, and then transferred to the Wright Center Residential Treatment Center.

The Wright Center is a transitional facility designed to take individuals coming from a residential program. Petitioner described it as a "3/4 house" where he was expected to maintain full-time employment and attend on-sight and off-sight classes and counseling sessions. He remained at the Wright Center until May 2005.9

By this time, Petitioner had been sober for approximately two years. However, shortly after leaving the Wright Center in May 2005, Petitioner suffered a relapse. He went on a four-day drinking binge after arrangements for an apartment fell through and he was laid-off from his job. During this time, Petitioner testified that he experienced a "moment of clarity." Petitioner stated that he "woke up" during this relapse and saw what he was doing to himself. An EMT friend he called for help took him to the West Pines Facility, a combination detoxification/rehabilitation facility. Here, Petitioner met his current AA sponsor and made the serious commitment to the AA program he continues to this day.

On June 22, 2005, Petitioner voluntarily entered therapy with David J. Muller, M.D. He initially met with Dr. Muller every couple of weeks and the frequency of meetings decreased over time. Dr. Muller diagnosed Petitioner as a chronic alcoholic in remission with intermittent depression. Dr. Muller provided counseling and general monitoring of Petitioner’s other forms of care.

On May 15, 2006, Petitioner began working for the law firm of Underhill & Underhill, P.C. and remains there to the date of this reinstatement hearing.10 He spends his limited spare time playing golf and playing rugby on a less competitive level. Now when he is alone, he does not feel depressed and does not feel any urge to take a drink.

Petitioner candidly testified about the conduct that directly led to the suspension of his license to practice law. He accepted the serious nature of his past behavior and accepts full responsibility for his excessive use of alcohol. Although suspended for only six months, Petitioner waited over two years to seek reinstatement, knowing he was not ready earlier. Petitioner believes he has experienced the necessary fundamental or "psychic" change in his character. Petitioner acknowledged that he is not cured from alcoholism and that his continued sobriety depends on maintaining a positive lifestyle. He is willing to do everything to maintain his rehabilitation, because he wants to practice law again and be a productive member of society.

Additional Testimony in Support of Petition for Reinstatement

Jeffrey Weiskopf manages property for the Colorado School of Mines campus. He met Petitioner at the Wright Center Residential Treatment Center approximately 2-1/2 years ago. Mr. Weiskopf served as Petitioner’s "buddy" in the program and testified to the structured environment of the Wright Center. He also testified to a "fundamental change in character" in Petitioner over that time, including his attitude, sincerity, humility and willingness to work on "his issues." Mr. Weiskopf recommended reinstatement of Petitioner.

Leo Peltier is a self-employed home-improvement consultant. He met Petitioner at the West Pines detoxification facility approximately fourteen months ago and is presently Petitioner’s AA sponsor. Mr. Peltier has seen Petitioner take initiative in his recovery and acknowledge "his issues." He has also seen a spiritual change and a change in the way in Petitioner treats others and himself. Mr. Peltier believes Petitioner can be a constructive member of the community and recommends his reinstatement to the practice of law.

Petitioner’s parents, Lornah and Jerome Fossenier, each testified to their own experiences in dealing with Petitioner and his alcoholism over the past several years. Their support played an integral part in Petitioner’s recovery from his alcoholism. They both believe Petitioner underwent amazing changes and now is a different person. The Fosseniers both recommend Petitioner’s reinstatement to the practice of law.

David J. Muller, M.D. is a board-certified psychiatrist who regularly treats individuals with substance abuse problems, including alcoholism.11 The PDJ admitted Dr. Muller as an expert witness in this regard. Dr. Muller testified he first met Petitioner on June 22, 2005. Petitioner had voluntarily sought his counsel. Dr. Muller found Petitioner to be open and honest about his past and observed that Petitioner acknowledged the serious nature of his past conduct. He diagnosed Petitioner with chronic alcohol dependence (or alcoholism) in "sustained remission." Dr. Muller concluded that Petitioner is committed to his sobriety, his prognosis is "good" and that future therapy could be scheduled on an "as-needed basis." He recommended that Petitioner abstain from alcohol and continue with his AA program. Dr. Muller opined that Petitioner would be a responsible member of the Bar.

Mark Barnes is Chief Probation Officer for the Eighteenth Judicial District. He served as Petitioner’s probation officer and first met Petitioner on May 11, 2004. Mr. Barnes found Petitioner cooperative, productive, compliant, and easy to work with in part because Petitioner never missed an appointment. He testified that Petitioner self-disclosed his May 2005 relapse. Mr. Barnes believes Petitioner moved forward and made a lot of progress in the two years they worked together and believes he would make "a heck of an attorney."

Mark A. Hanson is lead counsel for Allstate Staff Counsel in Denver, Colorado. He met Petitioner when they worked together in the Staff Counsel’s office on April 30, 1993. Mr. Hanson testified that he witnessed Petitioner’s trial work and found him to be a very good and responsible attorney. He has witnessed a "psychic change" in Petitioner over the past several years. Mr. Hanson believes Petitioner is now a constructive member of society and recommends his reinstatement to the practice of law.

Maggie Bazan-Gleeson is Petitioner’s former fiancée. They met in 1993 and spent the next seven years together as a couple. She witnessed the beginning of Petitioner’s troubles with alcoholism in the late 1990s and attempted to help him. Ms. Bazan-Gleeson remained supportive after their break-up and she and her husband continue to provide Petitioner with both financial and emotional support. She is "happily surprised" with Petitioner’s success to date, considering Petitioner’s condition at the end of their relationship, and is grateful they continued to remain friends. Ms. Bazan-Gleeson has witnessed a fundamental change in Petitioner’s character and claims he is a different person. Ms. Bazan-Gleeson emphasized that she trusts Petitioner with her children and that they enjoy a great relationship together. She also recommends Petitioner’s reinstatement to the practice of law.

Jamey Ellerbe is a manager for Oreck Floor Care Center in Boulder, Colorado.12 He met Petitioner on September 5, 2005. Petitioner worked for Mr. Ellerbe on a full-time basis in the capacity of a floating manager and assisted in all aspects of the business. Mr. Ellerbe stated that Petitioner "was completely up front as a new employee regarding his issues involving alcohol and substance abuse and his efforts at recovery." He also stated that Petitioner appears completely committed to his recovery and to being a productive and positive member of the community.

IV. LEGAL ANALYSIS AND CONCLUSIONS OF LAW

The Hearing Board must first look to the rules applicable to the reinstatement process and then to case law, particularly Colorado Supreme Court case law, which provides considerable guidance in interpreting these rules. Pursuant to C.R.C.P. 251.29(b), an attorney subject to reinstatement proceedings must prove the following by clear and convincing evidence:

1. He has been rehabilitated;

2. He has complied with all applicable disciplinary orders and with all provisions of Chapter 20 of the Colorado Rules of Civil Procedure concerning attorney discipline; and

3. He is fit to practice law.

C.R.C.P. 251.29(c) sets forth the formal requirements for a petition for reinstatement and C.R.C.P. 251.29(d) requires the party seeking reinstatement to prove the averments in the petition by clear and convincing evidence. The People stipulated that Petitioner complied with all applicable disciplinary orders related to his suspension and that he is competent in his knowledge of the law. Therefore, the only issue before this Hearing Board is whether Petitioner proved by clear and convincing evidence that he has been rehabilitated and is otherwise fit to practice law as provided in C.R.C.P. 251.29(b).

The Colorado Supreme Court declared that in assessing rehabilitation we "must include the consideration of numerous factors bearing on the [attorney’s] state of mind and ability."13 These issues include but are not limited to:

. . . numerous factors bearing on the Petitioner’s state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the Petitioner, the personal and community service aspects of the Petitioner’s life, and the Petitioner’s recognition of the seriousness of his previous misconduct.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988); see also Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000); and Lockley v. People, 96 P.3d 236 (Colo. O.P.D.J. 2004).14

The Hearing Board finds by clear and convincing evidence that Petitioner is now rehabilitated, has complied with all the applicable rules in the reinstatement, and therefore should be reinstated subject to the conditions set forth at the conclusion of this opinion and order.

While the Hearing Board finds Petitioner established rehabilitation by clear and convincing evidence, the Hearing Board’s primary concern is protection of the public. Therefore, the Hearing Board deems the condition that Petitioner meet with Dr. Muller one more time necessary to ensure his successful transition back into the practice of law.

The Hearing Board commends Petitioner for the zeal he demonstrated in these proceedings, and trusts he will maintain his enthusiasm and respect for the practice of law in the future. The Hearing Board also commends Petitioner for his candor concerning his prior alcohol usage. Petitioner’s honesty about, and desire to overcome, these problems speak to his integrity, and the good faith he brought to these proceedings.

V. ORDER

1. The Hearing Board GRANTS Petitioner’s Verified Petition for Reinstatement. Petitioner Michael P. Fossenier, Attorney Registration Number 17804, SHALL be reinstated to the practice of law effective immediately. The PDJ also TRANSFERS Petitioner from disability inactive status to active status effective immediately.

2. Petitioner SHALL undergo an evaluation by Dr. Muller in April 2007. Dr. Muller shall provide a copy of his findings and recommendations to the Court and the People on or before May 31, 2007. The Hearing Board will consider additional conditions of reinstatement, if any, at that time.

3. Petitioner 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, and Petitioner may submit a response within ten (10) days thereafter.

_______

1. See Stipulated Exhibit 1.

2. See Stipulated Exhibits 2 & 3.

3. See Stipulated Exhibit 4.

4. See Stipulated Exhibits 7 & 11-14.

5. See Stipulated Exhibit 17.

6. See Stipulated Exhibits 15 & 16.

7. See Stipulated Exhibit 17.

8. See Stipulated Exhibit 17.

9. See Stipulated Exhibit 6.

10. See Stipulated Exhibit 17.

11. See Stipulated Exhibit 5.

12. The PDJ accepted the Affidavit of Jamey Ellerbe (Stipulated Exhibit 18) in lieu of live testimony.

13. While this case interpreted the previous rule, C.R.C.P. 241.22, it looks to the ABA factors for determining rehabilitation and provides valuable guidance in this area.

14. The PDJ cites O.P.D.J. cases only for guidance and not as precedent.

__________

Case No. 06PDJ044

Petitioner:

DAVID HOFER,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

December 13, 2006

OPINION AND ORDER RE: REINSTATEMENT
PURSUANT TO C.R.C.P. 251.29

On October 10-11, 2006, a Hearing Board composed of Corinne Martinez-Casias, a member of the Bar, Frances L. Winston, a member of the public, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a reinstatement hearing pursuant to C.R.C.P. 251.18 and 251.29(d). David Hofer ("Petitioner") appeared pro se and April M. Seekamp appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). The Hearing Board issues the following opinion and order pursuant to C.R.C.P. 251.29.

I. ISSUE

An attorney seeking reinstatement under C.R.C.P. 251.29 must prove compliance with all disciplinary orders, fitness to practice, and rehabilitation by clear and convincing evidence. The People stipulated that Petitioner complied with all applicable disciplinary orders. Petitioner provided substantial evidence as to his fitness to practice and the meaningful and sustained change in his character since the time of his original suspension. Should the Hearing Board reinstate Petitioner’s license to practice law?

DECISION OF HEARING BOARD:
REINSTATEMENT GRANTED

II. PROCEDURAL HISTORY

On January 23, 2003, the PDJ approved a Conditional Admission of Misconduct and suspended Petitioner from the practice of law for a period of one year and one day, effective February 23, 2003.1

Petitioner filed a "Verified Petition for Reinstatement" on June 14, 2006.2 On July 3, 2006, the People filed an "Answer To Verified Petition For Reinstatement" and agreed that Petitioner had complied with all applicable disciplinary orders including the payment of costs,3 but took no position on the merits of the petition pending an investigation of the matters alleged therein.

On September 29, 2006, the parties each filed a set of stipulated exhibits. During the reinstatement hearing, the PDJ accepted and admitted Petitioner’s Stipulated Exhibits 1-22 and the People’s Stipulated Exhibits A-K into evidence. The PDJ also accepted and admitted Petitioner’s Exhibit 23 during the hearing.

Petitioner testified on his own behalf and presented three additional witnesses, both lay and professional, in support of his petition. The People did not present any witnesses and at the close of the case agreed that Petitioner should be reinstated with certain conditions.

III. FINDINGS OF FACT

The Hearing Board finds the following facts by clear and convincing evidence.

Petitioner has taken and subscribed the Oath of Admission, was admitted to the Bar of the State of Colorado on October 31, 1983, and is registered as an attorney upon the official records of the Colorado Supreme Court, Attorney Registration No. 13280. Petitioner is subject to the jurisdiction of the Colorado Supreme Court and the Office of the Presiding Disciplinary Judge in these proceedings.

Petitioner’s Prior Discipline

Prior to his 2003 suspension, Petitioner had received eight letters of admonition, one private censure, and one stayed suspension dating back to 1985.4 Petitioner engaged in multiple instances of neglect and failure to communicate with his clients in these matters. Petitioner also failed to pay a bill for court reporting services, threatened to grieve another attorney in order to obtain an advantage in a civil matter, and charged an inappropriate flat-fee for a simple dissolution of marriage case.

On January 23, 2003, the PDJ approved a conditional admission of misconduct and suspended Petitioner from the practice of law for a period of one year and one day. The factual basis for Petitioner’s 2003 suspension involved his conduct in three client matters. In the first client matter, Petitioner failed to prepare written permanent orders as ordered by a court and failed to communicate with his client. In the second and third client matters, Petitioner failed to provide services in a timely manner and failed to communicate with his clients.5

Petitioner’s Testimony

Petitioner testified on his own behalf and described the following background. He is a graduate of the University of Colorado School of Law who has been licensed to practice law in Colorado since October 31, 1983. Petitioner immediately entered private practice, initially out of his home and later an office, while primarily practicing family and domestic relations law. Near the time of his 2003 suspension, Petitioner decided to move to Florida due to a chronic cough. Petitioner returned to Colorado in January 2005.

Petitioner discussed the ways he maintained his professional competence since returning to Colorado in January 2005. He completed 79 credits of continuing legal education.6 He also worked for several attorneys including Rebecca Winters, Gary Filosa, Michael Grills, and Craig Chambers on an "as-needed" contract basis. Working for these attorneys gave Petitioner the opportunity to witness how other attorneys deal with clients and deadlines. Petitioner expressed his eagerness to use the new skills he learned from these attorneys.

Petitioner also discussed in detail his previous disciplinary history and described it as "painful." He expressed remorse for letting down his former clients and acknowledged that each instance of misconduct was preventable. Petitioner used to believe he could not make everyone happy and that it was this attitude that led to his discipline. He also attributed some of his past conduct to jumping into a busy private practice directly from law school without supervision from an experienced attorney. It took the loss of his license for Petitioner to realize its value and to understand how others relied on him as a professional to competently handle their legal matters.

Petitioner testified in detail as to his past alcohol abuse. He discussed how his failure to make any drastic changes following a DUI in 1996 ultimately resulted in a second DUI in 2003. Following his second DUI, a Florida court ordered that Petitioner abstain from alcohol for 12 months.7 However, he returned to drinking following that 12-month period. Petitioner still considered each DUI as an "isolated incident."

Petitioner views his first meeting with Charles Hazelhurst, PhD, ABPP, a licensed clinical psychologist, as the point in time when his attitude about his alcohol abuse began to change. Shortly thereafter, Petitioner began participating in the Rational Recovery and Smart Recovery programs.8 Both programs are Internet-based programs that provide a toolbox of techniques and skills to deal with cravings for alcohol. They also allow members to chat on-line about their experiences. Petitioner stated that he gained the skills and knowledge necessary to stop drinking in these programs and further asserted that he has not taken a drink since this time. He understands that drinking poses a great danger to his well-being.

Petitioner now recognizes that he always had a problem with alcohol that he never recognized in the past. He acknowledged that he disgraced himself, his family, and the legal community with his actions. Petitioner understands he injured people and embarrassed the legal profession and he is sorry for his past conduct.

Finally, Petitioner discussed the pro bono work he did for Gary Filosa in a personal injury case, the mock trial work he intends to start with local high school students, and the volunteer work he did in the wake of the Hurricane Katrina to secure formula for lactose-intolerant babies.9 He also testified to his positive experience working for customers at a Hyundai dealership in Florida.10

Petitioner wants to be reinstated to the practice of law because he enjoys working with people and he enjoys challenging legal issues. He initially intends to talk to other attorneys about contract work and he eventually wants to reestablish a solo practice. Petitioner believes he will be a different attorney going forward because he understands how he minimized his alcohol issue in the past and because he intends to implement changes to his practice including a triple calendaring system and redrafted fee agreements.11

Additional Testimony in Support of Petition for Reinstatement

Craig Chambers is a Colorado attorney and friend of Petitioner. He met Petitioner when they worked together on the same case in April 1997. Mr. Chambers has observed changes in Petitioner’s character and practice habits since that time. Petitioner has worked 5-10 hours/week for Mr. Chambers as a paralegal since January 2005. In that time, Petitioner has helped with cases, conducted legal research, drafted motions, and provided strategic advice. Mr. Chambers believes Petitioner should be reinstated to the practice of law.

Gary Filosa is a Colorado attorney and friend of Petitioner. He met Petitioner in law school and they later shared an office. Mr. Filosa believes Petitioner "burned out" and lost an appreciation for his license to practice law. He also observed a confrontational attitude in Petitioner’s character in the past that has since changed. Petitioner has worked 60-80 hours for Mr. Filosa since returning from Florida. Mr. Filosa hopes the Hearing Board reinstates Petitioner to the practice of law because he would like to refer cases to Petitioner.

Charles Hazelhurst, PhD, ABPP is the licensed clinical psychologist who evaluated Petitioner on two occasions.12 In his report of May 16, 2005, Dr. Hazelhurst diagnosed Petitioner as someone with an alcohol problem, Alcohol Abuse (DSM IV, 305.00), and recommended that Petitioner abstain from drinking alcohol for a period of one year and participate in a program on a weekly basis.13 Dr. Hazelhurst concluded that Petitioner’s alcohol abuse likely would not directly interfere with his professional demeanor or judgment, but also noted that Petitioner did not view himself as someone with an alcohol problem.

In his report of March 31, 2006, Dr. Hazelhurst concluded that Petitioner had complied with his prior recommendations.14 Dr. Hazelhurst "strongly" supported Petitioner’s reinstatement to the practice of law, because he believes Petitioner has made a "substantial" change in his attitude and behavior regarding his use of alcohol. Petitioner acknowledged his alcohol problem and learned techniques to deal with it. On August 18, 2006, Dr. Hazelhurst recommended that Petitioner continue to abstain from alcohol and that he schedule a follow-up appointment in April 2007.15

IV. LEGAL ANALYSIS AND CONCLUSIONS OF LAW

The Hearing Board must first look to the rules applicable to the reinstatement process and then to case law, particularly Colorado Supreme Court case law, which provides considerable guidance in interpreting these rules. Pursuant to C.R.C.P. 251.29(b), an attorney subject to reinstatement proceedings must prove the following by clear and convincing evidence:

1. He has been rehabilitated;

2. He has complied with all applicable disciplinary orders and with all provisions of Chapter 20 of the Colorado Rules of Civil Procedure concerning attorney discipline; and

3. He is fit to practice law.

C.R.C.P. 251.29(c) sets forth the formal requirements for a petition for reinstatement and C.R.C.P. 251.29(d) requires the party seeking reinstatement to prove the averments in the petition by clear and convincing evidence. The People stipulated that Petitioner complied with all applicable disciplinary orders related to his suspension. Therefore, the only issues before this Hearing Board are whether Petitioner proved by clear and convincing evidence that he has been rehabilitated and he is otherwise fit to practice law as provided in C.R.C.P. 251.29(b).

The Colorado Supreme Court declared that in assessing rehabilitation we "must include the consideration of numerous factors bearing on the [attorney’s] state of mind and ability."16 These issues include but are not limited to:

. . . numerous factors bearing on the Petitioner’s state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the Petitioner, the personal and community service aspects of the Petitioner’s life, and the Petitioner’s recognition of the seriousness of his previous misconduct.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988); see also Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000); and Lockley v. People, 96 P.3d 236 (Colo. O.P.D.J. 2004).17

The Hearing Board finds that Petitioner experienced a sustained change in his character since the time of his original suspension. Petitioner addressed his alcohol abuse and the character issues that led to his past discipline. He was candid, sincere, and remorseful in these proceedings. The Hearing Board also finds that Petitioner maintained his professional competence during his suspension and that he has implemented adequate measures to better deal with client matters. Therefore, the Hearing Board finds clear and convincing evidence that Petitioner is now rehabilitated, has complied with all the applicable rules in the reinstatement, is otherwise fit to practice law, and should be reinstated to the practice of law.

The People were also satisfied with the techniques Petitioner implemented to deal with his neglectful conduct and his alcohol issues and generally supported his petition for reinstatement. However, they seek a number of conditions of reinstatement that include his continued abstinence from alcohol, random urine-analysis until February 2007, a follow-up appointment with Charles Hazelhurst, PhD, APBB in April 2007, attendance at one ethics CLE annually for each of the next three years, and a practice monitor for one year.18 The Hearing Board also agrees that these conditions of reinstatement will help ensure Petitioner’s continued success.

V. ORDER

It is therefore ORDERED:

1. The Hearing Board GRANTS Petitioner’s Verified Petition for Reinstatement. Petitioner David Hofer, Attorney Registration Number 13280, SHALL be reinstated to the practice of law effective immediately.

2. Petitioner SHALL continue his abstinence from alcohol.

3. Petitioner SHALL schedule an appointment with Dr. Hazelhurst in April 2007. Dr. Hazelhurst shall provide a copy of his findings and recommendations to the Court and the People on or before May 31, 2007. The Hearing Board will consider additional conditions of reinstatement, if any, at that time.

4. Petitioner SHALL undergo random urine-analysis at his own expense on a monthly basis until May 31, 2007. Petitioner shall provide the results to the Office of Attorney Regulation Counsel. The Hearing Board will consider extending this time based on the findings and recommendations of Dr. Hazelhurst.

5. Petitioner SHALL attend and successfully pass the one-half-day Trust Account School sponsored by the Office of Attorney Regulation Counsel within one year of the date of this order, and pay all costs associated therewith. Petitioner shall register for and pay the costs of Trust Account School within thirty days of the date of this order.

6. Petitioner SHALL attend one ethics CLE annually for each of the next three years.

7. Respondent shall abide by the practice monitor conditions outlined in Petitioner’s Stipulated Exhibit 22.

8. Petitioner 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, and Petitioner may submit a response within ten (10) days thereafter.

_______

1. See the People’s Stipulated Exhibit K.

2. Petitioner also filed an "Amended Verified Petition for Reinstatement" on June 26, 2006.

3. See also Stipulated Facts filed September 29, 2006.

4. See the People’s Stipulated Exhibits A through J.

5. See the People’s Stipulated Exhibit K.

6. See Petitioner’s Stipulated Exhibit 23.

7. See Petitioner’s Stipulated Exhibits 11 through 15.

8. See Petitioner’s Stipulated Exhibits 7 through 10.

9. See Petitioner’s Stipulated Exhibit 21.

10. See Petitioner’s Stipulated Exhibit 16.

11. See Petitioner’s Stipulated Exhibits 17 and 19-20.

12. See Petitioner’s Stipulated Exhibits 3-5.

13. See Petitioner’s Stipulated Exhibit 4.

14. See Petitioner’s Stipulated Exhibit 5.

15. See Petitioner’s Stipulated Exhibit 6.

16. While this case interpreted the previous rule, C.R.C.P. 241.22, it looks to the ABA factors for determining rehabilitation and provides valuable guidance in this area.

17. The PDJ cites O.P.D.J. cases only for guidance and not as precedent.

18. See Petitioner’s Stipulated Exhibit 22 and "Stipulation to Conditions Concerning Petitioner’s Alcohol Use" filed September 29, 2006.

__________

Case No. 06PDJ047

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JOSH P. TOLIN.

November 3, 2006

REPORT, DECISION AND ORDER GRANTING DEFAULT
AND IMPOSING RECIPROCAL DISCIPLINE PURSUANT
TO C.R.C.P. 251.21(e)

This matter is before the Presiding Disciplinary Judge ("the Court") on "Complainant’s Motion for Default" filed by James C. Coyle, Office of Attorney Regulation Counsel ("the People"), on October 5, 2006. Josh P. Tolin ("Respondent") did not file a response. The Court therefore issues the following Report, Decision and Order Imposing Reciprocal Discipline Pursuant to C.R.C.P. 251.21(e).

I. ISSUE

If the People do not seek substantially different discipline and Respondent does not challenge an order based on any of the grounds set forth in C.R.C.P. 251.21(d), the Court may impose the same discipline imposed by a foreign jurisdiction. The Supreme Court of Missouri disbarred Respondent for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation. Respondent failed to participate in these proceedings and the People seek reciprocal discipline. Is disbarment the appropriate reciprocal sanction?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY AND BACKGROUND

The People filed a complaint in this matter on June 26, 2006. They also filed a proof of service on September 15, 2006, which detailed their extensive efforts to obtain service of process by certified mail.1

Respondent failed to file an answer in a timely manner, but did file "Respondent’s Response to Delay Reduction Order" on August 2, 2006. In this response, Respondent requested that the Court allow him to "retire and/or surrender his license to practice in order to save both the time and costs of both parties." On October 5, 2006, the People filed a motion for default. Under the circumstances set forth above, C.R.C.P. 251.15(b) requires the Court to enter a default:

If the respondent fails to file an answer within the period provided by subsection (a) . . . the Presiding Disciplinary Judge shall enter a default, and the complaint shall be deemed admitted[.]

The Court finds that the complaint meets the requirements of C.R.C.P. 251.14(a) (a complaint shall set forth clearly and with particularity the grounds for discipline with which the respondent is charged and the conduct of the respondent which gave rise to those charges). Accordingly, the Court GRANTS the People’s motion for default. The entry of default now establishes the facts and rule violations set forth in the complaint. People v. Richards, 748 P.2d 341, 346 (Colo. 1987); C.R.C.P. 251.15(b).

The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted complaint and its attachments. Respondent has taken and subscribed the Oath of Admission in Colorado, was admitted to the bar of this Court on May 16, 1996, and is registered upon the official records of this Court, Attorney Registration No. 26899. He is therefore subject to the jurisdiction of this Court in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b).

On April 11, 2006, the Supreme Court of Missouri disbarred Respondent for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation.2 Respondent participated in the Missouri proceedings.

Respondent’s client, Brenda Dietrich, gave Respondent copies of her driver’s license and birth certificate during the course of Respondent’s representation of her in a wrongful death case. This personal information was later stolen from the client file by an acquaintance of Respondent, Amy Lennen, with whom Respondent was intimately involved. Ms. Lennen obtained this information when she was provided after-hours solitary access to Respondent’s office suite where his client files were kept.

Respondent subsequently learned that Ms. Lennen had stolen Ms. Dietrich’s identity. However, he consciously and intentionally withheld information from Ms. Dietrich concerning the identity theft. Respondent also consciously abetted Ms. Lennen’s scheme by making a payment on a loan and paying off a cancelled credit card account fraudulently obtained by Ms. Lennen using Ms. Dietrich’s identity. At no time did Respondent tell Ms. Dietrich that personal information had been stolen from her client file and used by Ms. Lennen for fraudulent purposes.

"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 engaged in conduct constituting grounds for the imposition of discipline pursuant to C.R.C.P. 251.5 and C.R.C.P. 251.21(a).

III. SANCTIONS

The Colorado Rules of Civil Procedure and the ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") are the guiding authorities for imposing reciprocal discipline for lawyer misconduct. Reciprocal discipline is the imposition of a sanction for conduct that already gave rise to discipline in another jurisdiction. C.R.C.P. 251.21(a) provides:

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

The purpose of this rule is to enhance public confidence in the profession by preventing lawyers admitted to practice in more than one jurisdiction from avoiding the effect of discipline by simply practicing in another jurisdiction. ABA Standard 2.9, Commentary.

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

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). In this case, the People do not seek a substantially different discipline and Respondent did not challenge the order from the Supreme Court of Missouri. Accordingly, the Court issues this decision imposing the same discipline as imposed by the Supreme Court of Missouri.

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 Supreme Court of Missouri leaves the Court with no option but to impose the same discipline, which it finds reciprocally appropriate. Accordingly, the Court concludes disbarment is the appropriate sanction in this case.

V. ORDER

The Court therefore ORDERS:

1. The Court GRANTS "Complainant’s Motion for Default" filed by the People on October 5, 2006.

2. JOSH P. TOLIN, Attorney Registration No. 26899, 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.

3. JOSH P. TOLIN 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 acknowledged receipt of the Complaint in phone conversations with the People.

2. The Court attaches to this report the order of disbarment from the Supreme Court of Missouri and the "Findings of Fact and Conclusions of Law and Decision of the Disciplinary Hearing Panel."

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