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TCL > June 2007 Issue > Disciplinary Opinions

June 2007       Vol. 36, No. 6       Page  107
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. 06PDJ019
(consolidated with 06PDJ043)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

DOUGLAS SCOTT ENGLER.

February 26, 2007

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS

PURSUANT TO C.R.C.P. 251.19(c)

On December 14, 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"). Douglas Scott Engler ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c).

I. ISSUE

Disbarment is generally appropriate, absent significant evidence of mitigation, when a lawyer knowingly converts client funds and causes injury. Respondent knowingly converted settlement proceeds belonging to one client and engaged in several additional instances of misconduct with other clients. 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 06PDJ019 on March 16, 2006, and in 06PDJ043 on July 20, 2006. Respondent failed to file an answer in either case and the Court granted motions for default on June 8, 2006 (06PDJ019) and September 14, 2006 (06PDJ043). The Court consolidated these cases on October 3, 2006. On the entry of default, the Court deems all facts set forth in the complaints 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 and gained admission to the Bar of the Colorado Supreme Court on November 14, 1986. He is registered on the official records of the Colorado Supreme Court, Attorney Registration No. 15972, and is therefore subject to the jurisdiction of the Court.

Case No. 06PDJ019

On February 28, 2005, the People received notice from Wells Fargo Services Co. that Respondent’s trust account was overdrawn in the amount of $105.15. The People attempted to contact Respondent on numerous occasions and left several messages for him, but he never responded over the course of several months.

On December 6, 2005, the People filed a Petition for Immediate Suspension with the Colorado Supreme Court, pursuant to C.R.C.P. 251.8.6, requesting that it administratively suspend Respondent for his repeated failure to cooperate with the request for investigation. The Colorado Supreme Court suspended Respondent from the practice of law pursuant to C.R.C.P. 251.8.6 on December 21, 2005.

Respondent violated C.R.C.P. 251.5(d) when he failed to respond to repeated requests from the People for information. He also knowingly disobeyed his obligation without an open refusal to obey based on an assertion that no valid obligation existed and in turn violated Colo. RPC 3.4(c). Finally, Respondent knowingly violated Colo. RPC 8.1(b) by failing to respond to the lawful demands for information made by the People during the investigation of the subject matter of this disciplinary proceeding. Respondent knew or should have known that he was failing to cooperate and respond to the requests by the People.

Case No. 06PDJ043

Albright Matter

Caroline Albright retained Respondent in January 2002 to assist her with a personal injury claim. Respondent apparently communicated with Allstate Insurance during the next nineteen months, but failed to file a complaint before the statute of limitations date of November 14, 2003.

By the end of 2004, Ms. Albright began experiencing difficulty communicating with Respondent. He assured her on the occasions they met that he was working on her case and that he would get back to her. In January 2006, Ms. Albright contacted the People and learned that Respondent had been immediately suspended from the practice of law. Accompanied by Lakewood Police, Ms. Albright recovered her file from Respondent’s office. The file did not show any activity after 2004.

Ms. Albright suffered injuries by Respondent’s neglect in the amount of her time-barred claim for which the insurance company had been willing to pay as much as $20,000.00. Respondent violated Colo. RPC 1.3 by failing to file a complaint on Ms. Albright’s behalf and by otherwise failing to prosecute her case. Respondent also violated Colo. RPC 1.4(a) by failing to timely respond to Ms. Albright’s calls, by failing to advise her of his failure to timely file a complaint, and by failing to inform her of his failure to diligently work on her case.

MOMI Matter

Respondent represented Haliz Zakholi in a workers’ compensation case. He contracted with Medical Ops Management, Inc. ("MOMI") for an independent medical examination (IME) for Ms. Zakholi. MOMI arranged for the IME with Dr. J. Wunder and the services totaled $675.00. Respondent failed to pay MOMI and in turn violated Colo. RPC 8.4(h) by engaging in conduct that adversely reflects on his fitness to practice law.

Seiner Matter

Respondent represented George Siener in a personal injury case arising out of an automobile accident that occurred in September 2002. On September 23, 2005, Respondent filed a complaint in Denver District Court on Mr. Siener’s behalf. Respondent last communicated with Mr. Siener in November 2005.

On December 22, 2005, Judge Martin Egelhoff of the Denver District Court issued a show cause order and directed Respondent to show cause why Mr. Siener’s complaint should not be dismissed for failure to prosecute. Respondent failed to respond to the show cause order and failed to notify Mr. Siener that the case had been dismissed.

Without his knowledge, Respondent settled Mr. Siener’s case with the insurance carrier for $25,000.00 in November 2005. The insurance carrier sent Respondent a check for that amount and a release form. Respondent cashed the check in early January 2006. Mr. Siener did not sign the check and it appears that Respondent forged Mr. Siener’s signature. Respondent failed to tender any of the $25,000.00 in settlement proceeds to Mr. Siener.

In March 2006, Mr. Siener called Respondent’s office and learned that Respondent’s telephone had been disconnected. Respondent has not communicated with Mr. Siener, nor has he returned Mr. Siener’s file or tendered any portion of the settlement proceeds to him. The statute of limitations has since run on Mr. Siener’s personal injury claim.

Through his conversion of client funds, Respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and violated Colo. RPC 8.4(c). He also violated Colo. RPC 1.3 when he failed to prosecute Mr. Siener’s case and failed to respond to Judge Egelhoff’s show cause order. Respondent violated Colo. RPC 1.4(a) and (b) when he failed to keep Mr. Siener reasonably informed about the status of his case and failed to comply promptly with reasonable requests for information. Finally, Respondent violated Colo. RPC 1.16(d) when he failed to give Mr. Siener notice that he had abandoned the representation, failed to return Mr. Siener’s file despite his immediate suspension, and failed to return any of the settlement proceeds.

Vonderschulenburg Matter

In February 2004, Gunther Vonderschulenburg retained Respondent to represent him in an appeal of the denial of his claim for Social Security disability benefits. Mr. Vonderschulenburg provided records and completed forms as requested by Respondent and authorized him to act as his representative before the Social Security Administration.

In March 2004, Respondent prepared a Request for Hearing, but apparently failed to send it to the Social Security Administration within the sixty days required for filing appeals. When contacted by Mr. Vonderschulenburg, Respondent explained that the process would take several months, but that he promised to write the Social Security Administration on a monthly basis to inquire as to the status of the appeal. Respondent did not communicate any further with Mr. Vonderschulenburg.

Mr. Vonderschulenburg eventually contacted the Social Security Administration to inquire about the status of his appeal. He found out that Respondent had not filed his appeal. After hearing Mr. Vonderschulenburg’s story, a Social Security Administration claims representative allowed him to submit his appeal late. However, Respondent failed to send Mr. Vonderschulenburg his medical records or any other documents.

Respondent violated Colo. RPC 1.3 and 1.4(a) by failing to file Mr. Vonderschulenburg’s appeal and by failing to communicate with him. Respondent also violated Colo. RPC 1.16(d) by failing to give Mr. Vonderschulenburg notice that he had abandoned the representation and failing to return his file. Finally, Respondent violated Colo. RPC 8.4(c) when he knowingly misled Mr. Vonderschulenburg about filing his appeal and giving him the impression that the delay in the appeal was due to the administrative process of assigning the appeal to an appeal judge.

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). When 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 evaluating the first three factors listed above. The Court finds Respondent violated duties owed to his clients, the public, and the legal system. Respondent specifically violated his duty to preserve the property of his clients, failed to act with reasonable diligence while representing his clients, and failed to maintain his personal integrity. The entries of default established that Respondent knowingly engaged in this conduct and caused significant actual harm to his clients.2

The Court finds several aggravating factors exist, including multiple offenses, substantial experience in the practice of law, and indifference to making restitution. See ABA Standards 9.22(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. Respondent presented no evidence in mitigation.

The ABA Standards suggest that the presumptive sanctions for the misconduct evidenced by the admitted facts and rule violations in this case range from suspension to disbarment. However, the most egregious conduct was Respondent’s theft of settlement funds belonging to Mr. Siener. Respondent knowingly converted at least a portion of the settlement funds belonging to his client. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. ABA Standard 4.11.

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).

Respondent’s theft of his client’s settlement funds alone warrants disbarment. His additional misconduct in abandoning his clients 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 abandoned his clients 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. On 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 SCOTT ENGLER, Attorney Registration No. 15972, 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 SCOTT ENGLER SHALL pay restitution to the Attorney’s Fund for Client Protection, in the amount of $25,000.00.

3. DOUGLAS SCOTT ENGLER 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 filed March 16, 2006 and July 20, 2006.

2. George Siener and Gunther Vonderschulenburg each presented statements at the Sanctions Hearing. Mr. Siener has been reimbursed $25,000.00 by the Attorney’s Fund for Client Protection.


Case No. 06PDJ072

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

TIMOTHY JENSEN TUTHILL.

March 14, 2007

REPORT, DECISION, AND ORDER IMPOSING SANCTIONS

PURSUANT TO C.R.C.P. 251.19(c)

On March 1, 2007, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). April M. Seekamp appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Timothy Jensen Tuthill ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions Pursuant to C.R.C.P. 251.16(c)(9) and 251.19(c).

I. ISSUE AND SUMMARY

Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct that does not contain the elements listed in ABA Standard 5.11, and that seriously adversely reflects on the lawyer’s fitness to practice. Respondent was convicted in two separate criminal matters: felony possession of a controlled substance and driving under the influence. Is suspension the appropriate sanction?

On May 17, 2005, Respondent was arrested following a routine traffic stop. When the police searched Respondent’s vehicle they found baggies containing methamphetatmine, along with approximately $800.00 in cash. After obtaining bond on this arrest, Respondent violated the terms of his bond by testing positive for amphetamines and the court thereafter revoked his bond.

On January 3, 2006, Respondent failed a roadside sobriety test and was arrested for Driving Under the Influence of Drugs. During a search of his vehicle, officers found approximately $500.00 in cash and a baggie that tested positive for amphetamines. These facts are sufficient to warrant a suspension. The only question is the length of suspension to be imposed.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR TWO YEARS

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

This matter originally came before the Court on the People’s complaint filed September 13, 2006. Respondent did not answer the complaint. On October 31, 2006, the People filed "Complainant’s Motion for Default." On November 21, 2006, the Court entered an order of default. The Court then set the matter for a sanctions hearing on March 1, 2007.

Because the Court has granted a default judgment, the Court adopts and incorporates by reference the factual background detailed in the admitted complaint.1

Respondent took and subscribed the oath of admission and gained admission to the Bar of the Colorado Supreme Court on October 25, 1989. He is registered on the official records of the Colorado Supreme Court, Attorney Registration No. 19014, and is therefore subject to the jurisdiction of the Court. His registered business address is P.O. Box 850, Cortez, Colorado 81321.2

Respondent was suspended for one year and one day, effective July 8, 2004, in People v. Tuthill, 03PDJ111; he has not sought reinstatement and remains suspended on that matter.

People v. Timothy J. Tuthill, Case No. 05CR862, Mesa County

On May 17, 2005, law enforcement officers stopped Respondent’s vehicle based on a stolen car report. The officers later discovered the car Respondent was driving in fact belonged to him. However, Respondent had failed to report to the police that his car had been returned.

Officers conducted a pat-down search after Respondent was taken into custody and found three baggies in a larger baggie in Respondent’s left front pants pocket. Two of these baggies tested positive for methamphetamine. Officers also found $497.00 in cash in Respondent’s shirt pocket.

While out on bond on this case, Respondent tested positive for amphetamines on August 10, 2005 and on December 24, 2005. The district attorney filed a motion to revoke the bond. The motion was granted, and on January 11, 2006, a warrant issued for Respondent’s arrest. On January 13, 2006, as part of a plea agreement, Respondent pled guilty to possession of a controlled substance—schedule II, more than 1 gram, C.R.S. 18-18-405(1), (2)(a)(I)(A)(F4)—in the Mesa County District Court.

Respondent violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b) by committing a criminal act that violates the criminal laws of the State of Colorado and reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

People v. Timothy J. Tuthill, Case No. 06CR019, Mesa County

On January 3, 2006, officers stopped Respondent’s car when they saw his vehicle drifting across lanes. Respondent failed a roadside sobriety test and was arrested for suspicion of Driving Under the Influence/Driving Under the Influence of Drugs.

Officers searched Respondent’s car incident to the arrest and found an envelope beneath the driver’s seat, containing $500.00 in cash (four $100.00 bills and five $20.00 bills). Next to the envelope was a 3"x 2" zip-lock bag containing a white powder, which later tested positive for amphetamines. The officer also found a $20.00 bill rolled up as a snort tube under the driver’s seat next to the envelope containing the money.

At the time of the stop, there was an outstanding municipal warrant for Respondent’s failure to appear on a dog violation. Respondent was arrested and charged as follows:

  • Possession of a controlled substance, schedule II, more than one gram, C.R.S. 18-18-405(1), (2)(a)(I)(A)(F4);
  • Possession of drug paraphernalia, C.R.S. 18-18-428(1)(PO-2);
  • Driving under the influence, C.R.S. 42-4-1301(1)(a)(M);
  • Changing of lanes, C.R.S. 42-4-1007(1)(a)(TI-A); and
  • Violation of bail bond conditions—felony, C.R.S. 18-8-212(1)(F6).

As part of a plea agreement on both criminal matters discussed above, 05CR862 and 06CR019, Respondent pled guilty to one count of possession of a controlled substance—schedule II, more than one gram, C.R.S. 18-18-405(1), (2)(a)(I)(A)(F4) and driving under the influence of drugs, C.R.S. 42-4-1301(1)(a)(M) on January 13, 2006. The remaining counts were dismissed and the district attorney agreed not to file bond violation charges for Respondent’s prior positive drug tests.

Respondent violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b) by committing a criminal act that violates the criminal laws of the State of Colorado and reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

Respondent Failed to Report his Convictions

Respondent also violated C.R.C.P. 251.20(b) when he failed to report his convictions within ten days after pleading guilty in case numbers 05CR862 and 06CR019.

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). When 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, the public, and the legal system. Respondent specifically failed to maintain his personal integrity and abide by the law. The entry of default established that Respondent knowingly engaged in this conduct and caused harm to the integrity of the legal profession.

The Court finds several aggravating factors exist, including prior disciplinary offenses, bad faith obstruction of the disciplinary proceedings, substantial experience in the practice of the law, and illegal conduct involving the use of controlled substances. See ABA Standards 9.22(a), (e), (i), and (k). Due in part to the absence of any contradictory evidence, the Court finds clear and convincing evidence to support each aggravating factor. Respondent presented no evidence in mitigation. However, the People concede that Respondent received penalties in the criminal process. See ABA Standard 9.32(k).

The ABA Standards and Colorado Supreme Court case law suggest that the presumptive sanctions for the misconduct evidenced by the admitted facts and rule violations is suspension. ABA Standard 5.12 states:

Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct that does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.

Likewise Colorado Supreme Court case law concerning lawyer misconduct in the possession of controlled substances indicates a suspension is appropriate. See People v. Robinson, 839 P.2d 4 (Colo. 1992) and People v. Abelman, 804 P.2d 859 (Colo. 1991).

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 that Respondent has violated the criminal law of the State of Colorado on two separate occasions. The evidence also shows that Respondent is currently under suspension for one year and one day for misconduct, which occurred before the events outlined above. On consideration of the nature of Respondent’s misconduct, his mental state, the significant harm and potential harm caused to the profession, and the absence of significant mitigating factors, the Court concludes that a suspension of two years is appropriate.

V. ORDER

The Court therefore ORDERS:

1. TIMOTHY JENSEN TUTHILL, Attorney Registration No. 19014 is SUSPENDED from the practice of law for a period of TWO (2) YEARS, effective thirty-one (31) days from the date of this Order.

2. TIMOTHY JENSEN TUTHILL 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 September 13, 2006.

2. Mailings to Respondent’s registered address have been returned. The post office listed a forwarding address for Respondent, but noted the forwarding time had expired. The address listed as the forwarding address is: 2842 Scott Street, Grand Junction, CO 81503. Respondent has signed for certified mail at this address and mail sent to this address via regular mail has not been returned. Since learning of the Scott Street address, the People send all correspondence to Respondent at both the registered address and the Scott Street address.


Case No. 06PDJ006

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

RICHARD TELL WEHRLE.

March 20, 2007

OPINION AND ORDER IMPOSING SANCTIONS

PURSUANT TO C.R.C.P. 251.19

On January 16, 2007, a Hearing Board composed of Michael B. Lupton, a member of the public; Mickey W. Smith, a member of the Bar; and William R. Lucero, 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"). Richard Tell Wehrle ("Respondent") did not appear, nor did counsel appear on his behalf. The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19.

I. ISSUE

Disbarment is generally appropriate, absent significant evidence of mitigation, when a lawyer knowingly converts client funds and causes injury. Respondent, the personal representative of an estate, directly and indirectly deposited $515,285.00 into his personal account from an estate’s account without authority or explanation. 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 this matter on June 6, 2006. Respondent filed an answer on July 25, 2006. The Court granted summary judgment in favor of the People on the lone count in the complaint on January 4, 2007.

The Hearing Board hereby adopts and incorporates by reference the Court’s factual findings from the "Order Re: Motion for Summary Judgment" dated January 4, 2007. Respondent took and subscribed the oath of admission and gained admission to the Bar of the Colorado Supreme Court on April 23, 1968. He is registered on the official records of the Colorado Supreme Court, Attorney Registration No. 03369, and is therefore subject to the jurisdiction of the Court.

In December of 2003, Respondent was appointed personal representative for the Estate of Marjorie M. Elliott ("the Estate"). Helene Hebenstreit was the sole beneficiary of the Estate pursuant to a will left by Ms. Elliott. Respondent admitted that he transferred funds from the Estate’s account to his business or trust accounts without authority.

By letter accounting dated May 10, 2004, Respondent advised interested parties that deposits on behalf of the Estate totaled $476,885.25. These funds were placed in an account at American National Bank. By letter dated September 17, 2004, Respondent advised interested parties that an additional $210,796.03 in Estate funds had been deposited into the Estate account at American National Bank. The total value of the assets of the Estate reported by Respondent was approximately $687,681.28.

Respondent produced documents showing total Estate expenses, including attorney fees for himself, of approximately $104,688.12. Subtracting the Estate expenses [$104,688.12] from Estate deposits made to the Estate’s account at American National Bank [$687,681.28], the Estate account should have approximately $582,993.16.

Respondent opened two bank accounts for the Estate, a money market account and a checking account, at American National Bank. Based on the investigation performed by investigator Laurie Ann Seab, including review of bank records related to accounts owned by Respondent at Centennial Bank and Trust, Compass Bank, and Community Bank:

1. Funds belonging to the Estate could be traced into various accounts owned by Respondent, including accounts maintained at Compass Bank, Centennial Bank, and Community Banks of Colorado.

2. During the time period from January 1, 2004 to May 1, 2006, Respondent transferred $141,900.00 directly from the Estate accounts into his personal account at Centennial Bank.

3. During the time period from February 12, 2004 to December 27, 2004, Respondent transferred, via check and wire, the total amount of $401,520.97 from the Estate accounts into his COLTAF account at Compass Bank. During the time period from January 2004 to February 2005, Respondent transferred $150,370.00 of those funds from his Compass Bank COLTAF account to his personal account at Centennial Bank. The remaining Estate funds deposited in the Compass COLTAF account have been transferred out of that account to unknown recipients.

4. During the time period from June 2005 to April 2006 Respondent transferred $212,720.00 into a COLTAF account at Community Bank. During the time period from June 2005 to April 2006 Respondent transferred $208,015.00 from the Community Bank COLTAF account to his personal account at Centennial Bank.

5. During the time period from June of 2005 to January of 2006, Respondent transferred $173,610.00 from his personal account to the Estate accounts. However, by December 23, 2005, the total amount on deposit in the Estate accounts was $138.06, due to withdrawals of $173,610.00 out of the Estate accounts, which cannot be traced.

6. A total of $515,285.00 in deposits into Respondent’s personal account at Centennial Bank can be traced to Estate Funds.

Respondent admitted, under oath, that he exercised personal dominion and control over property belonging to the Estate by transferring money from the Estate account to his trust or business account. Respondent testified that he intends to pay back the money from the Estate he used "appropriately or inappropriately." Respondent exercised his Fifth Amendment privilege when asked during the deposition to account for missing Estate funds.

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). When imposing a sanction after a finding of lawyer misconduct, the Hearing Board 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 Hearing Board with no alternative but to consider only the established facts and rule violations set forth in the summary judgment order in evaluating the first three factors listed above. The Hearing Board finds Respondent violated duties owed to his clients, the public, and the legal system. Respondent specifically violated his duty to preserve the property of his client and failed to maintain his personal integrity. The entry of summary judgment established that Respondent knowingly engaged in this conduct and caused significant actual harm to his client.

The People alleged and the Hearing Board finds several aggravating factors exist, including dishonest or selfish motive, a pattern of misconduct, and substantial experience in the practice of law. See ABA Standards 9.22(b), (d), and (i). Due in part to the absence of any contradictory evidence, the Court finds clear and convincing evidence to support each aggravating factor. Respondent presented no evidence in mitigation. However, the Hearing Board notes Respondent has no prior disciplinary record. See ABA Standard 9.32(a).

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the admitted facts and rule violations in this case is disbarment. The undisputed facts show Respondent knowingly converted at least a portion of the funds belonging to the Estate. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. ABA Standard 4.11.

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).

Respondent’s conversion of the Estate funds alone warrants disbarment. His 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 this misconduct adversely reflects on his fitness to practice law. On consideration of the ABA Standards and Colorado Supreme Court case law, the Hearing Board concludes there is no justification for a sanction short of disbarment.

V. ORDER

The Court therefore ORDERS:

1. RICHARD TELL WEHRLE, Attorney Registration No. 03369, 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. RICHARD TELL WEHRLE SHALL pay restitution to the Estate of Marjorie M. Elliott, in the amount of $582,993.16, with credit for any amount Respondent has already paid.

3. RICHARD TELL WEHRLE 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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