Search



Not a CBA Member? Join Now!
Find A Lawyer Directory
Find A Lawyer Directory
STRATUM
Find A Lawyer Directory
Know Your Judge

TCL > October 2007 Issue > Disciplinary Opinions

October 2007       Vol. 36, No. 10       Page  159
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. Opinions, including exhibits, complaints, amended complaints, and summaries, also are available at 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. 06PDJ085

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JAMES F. DONALDSON.

June 29, 2007

OPINION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(b)

On April 30, 2007, a Hearing Board composed of Mark K. Achen, a citizen board member; Boston H. Stanton, Jr., a member of the Bar; and William R. Lucero, the PDJ (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) and James F. Donaldson (Respondent) appeared pro se. The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b).

I. ISSUE/SUMMARY

Suspension is appropriate when a lawyer knowingly violates a court order or rule and causes potential injury to a client. Respondent filed a petition for reinstatement to the practice of law following his administrative suspension for failing to satisfy CLE requirements. The Colorado Supreme Court clerk advised Respondent that his petition would not be acted on until he paid his attorney registration fees. Is suspension appropriate if Respondent represented a client before paying registration fees?

Although he eventually paid his fees, Respondent knowingly practiced law without a license in violation of the Colorado Supreme Court’s administrative order of suspension for failing to comply with CLE requirements. Whereas a public censure might normally accomplish the goals of protecting the public and rehabilitating Respondent, such a sanction is not appropriate in light of Respondent’s past disciplinary record. Therefore, the Hearing Board concludes that a three-month suspension is appropriate in this matter.

SANCTION IMPOSED: THREE-MONTH SUSPENSION

II. PROCEDURAL HISTORY

On October 25, 2006, the People filed their complaint in this matter and Respondent filed his answer on November 27, 2006. On February 6, 2007, the People filed "Complainant’s Motion for Judgment on the Pleadings." Respondent did not file a responsive pleading. On April 30, 2007, the Court granted the People’s motion for judgment on the pleadings and concluded that Respondent violated Colo. RPC 5.5(a) by practicing law after suspension for failing to comply with CLE requirements.

III. FINDINGS OF MATERIAL FACT

The following facts have been established by clear and convincing evidence.1

Respondent has taken and subscribed the oath of admission and gained admission to the Bar of the Colorado Supreme Court on September 29, 1978. He is registered on the official records of the Colorado Supreme Court, Attorney Registration No. 08951, and is therefore subject to the jurisdiction of the Court. His registered business address is 936 E. 18th Ave., Denver, CO 80218.

Summary of Facts Based on Judgment on the Pleadings

On June 21, 2006, the Colorado Supreme Court suspended Respondent from the practice of law until further order of the court based on his failure to comply with CLE requirements pursuant to Rule 260.6(10) (emphasis added).

On June 28, 2006, Respondent filed a petition for reinstatement.

On July 5, 2006, Marcia Kerr of the Colorado Supreme Court wrote Respondent and informed him that the Court could not act on his petition for reinstatement until he paid his attorney registration fee of $375.

On July 13, 2006, Respondent entered his appearance and filed pleadings in the case of Jacalyn Marie Roberts v. Richard Terrance Roberts, Denver County Court, Case No. 06W0914. In the matter, Respondent filed a Verified Complaint for Civil Protection Order. Judge Robert Crew entered a Temporary Civil Protection Order the same day.

On July 19, 2006, a clerk of the Denver County Court reported Respondent’s entry of appearance to the People. The People sent the request for investigation to Respondent on July 20, 2006. On July 20, 2006, Respondent paid his attorney registration fees.

IV. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

Based on the Court’s order granting the People’s motion for judgment on the pleadings, it has been established that Respondent violated Colo. RPC 5.5, which prohibits a lawyer from practicing law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction. In summary, the Court found that the undisputed facts showed that Respondent practiced law after his administrative suspension for failing to complete his CLE obligations. The Hearing Board must, nevertheless, decide what sanction, if any, is the appropriate sanction for violating Colo. RPC 5.5.

V. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards) and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the 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.

A. Duties Breached

Respondent breached his duty to the Colorado Supreme Court to follow its order of suspension. Instead of fully complying with all conditions precedent to his reinstatement, Respondent practiced law despite the fact that he had been notified in writing that he would have to pay his attorney registration fees before his petition for reinstatement would be acted on. While Respondent ultimately paid his attorney fees, he nevertheless practiced law before he was reinstated.

B. State of Mind

Respondent acted knowingly, that is, he was aware of his conduct and the likely consequence of his actions. He had been previously disciplined for practicing law while on administrative suspension for failing to complete CLE requirements.

C. Injury

Respondent did not cause injury to the client he represented while practicing law without a license. To the contrary, he obtained a crucial restraining order for her. However, Respondent did not preserve the respect due the Colorado Supreme Court and its approved processes in attorney regulation matters, specifically the reinstatement process. Respondent’s view was that he would likely be reinstated when he later paid his attorney fees. This no harm, no foul approach misses the point that Respondent is required to follow the rules. In flouting them, he injures the integrity of the process.

D. Aggravating and Mitigating Factors—
ABA Standard 9.22 and 9.32 Prior Disciplinary Offenses—9.22(a)

On December 16, 1994, Respondent received a Letter of Admonition for representing clients with conflicting interests.

On July 30, 1999, Respondent received a sixty-day suspension, stayed on the condition that he successfully complete a two-year period of probation. Respondent received this sanction, in part, for continuing to practice law after he was suspended for noncompliance with CLE requirements.

On April 25, 2001, Respondent received a ninety-day suspension, all but thirty days stayed on the successful completion of a one-year period of probation with conditions. Respondent received this sanction, in part, for failing to obey a court order requiring him to find an independent attorney to advise a client on whether he had a conflict of interest.

On November 29, 2004, Respondent received a one-year and one-day suspension, stayed on the condition that he complete a three-year period of probation, with conditions. Respondent had neglected a matter, which resulted in the entry of a default judgment against his client. The Hearing Board notes, however, that Respondent had suffered a minor stroke during this time and had been diagnosed with high blood pressure and diabetes. Similar to stipulations and admissions of misconduct submitted to the Court in the past, Respondent agreed that he would not engage in any conduct that would result in the imposition of discipline.

On January 25, 2005, Respondent received a thirty-day suspension, stayed on successful completion of a one-year period of probation, with conditions. Respondent lacked diligence in a client matter, failed to communicate with his client, and made an overdraft of funds from his COLTAF account. Again, Respondent agreed not to engage in any conduct that would result in the imposition of any form of discipline.

Substantial Experience With the Law—9.22(i)

Respondent has practiced law since 1978. Furthermore, based on his experience with the attorney regulation process, he was well aware of his duty to refrain from violating any disciplinary rules. In spite of this, Respondent chose to practice law at a time when he knew he had not yet received a favorable ruling on his petition for reinstatement. Furthermore, this was not the first time Respondent had been sanctioned for practicing law after being suspended for failure to comply with CLE requirements. Thus, he was well aware of the consequences of doing so.

Personal or Emotional Problems—9.32(c)

Respondent’s wife suffered from cancer during this period and Respondent’s own health problems with diabetes and high blood pressure, as well as financial strife, were conditions that prevailed during this time period.

Remorse—9.32(i)

The Hearing Board finds that Respondent’s remorse for his actions is genuine.

Analysis of ABA Standards and Case Law

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the facts and rule violations in this case is suspension. Respondent knowingly practiced law when he remained under administrative suspension. ABA Standard 6.22 states, "suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding."

The Colorado Supreme Court previously imposed a public censure upon an attorney who failed to withdraw and obtain substitute counsel for clients following an administrative suspension. See People v. White, 951 P.2d 483 (Colo. 1998). However, the Colorado Supreme Court in that case considered significant mitigating factors not present under the facts of this case.

VI. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to it. The facts establish, at minimum, a problem with Respondent’s ability to recognize his responsibility to the legal profession and those who serve it. Prior disciplinary proceedings and attempts to rehabilitate Respondent have not served their purpose. On consideration of the ABA Standards and Colorado Supreme Court case law, the Hearing Board concludes that Respondent should be suspended from the practice of law for a period of three months.

VII. ORDER

The Hearing Board therefore ORDERS:

1. JAMES F. DONALDSON, Attorney Registration No. 08951, is SUSPENDED FOR THREE (3) MONTHS effective thirty-one (31) days from the date of this order.

2. JAMES F. DONALDSON SHALL pay the costs of these proceedings. The People shall submit a Statement of Costs within fifteen (15) days of the date of this order. Respondent shall have ten (10) days within which to respond.

________

1. The findings of material fact incorporate the Court’s "Order Re: Motion for Judgment on the Pleadings" dated April 30, 2007.

_______________

Case No. 06PDJ086

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

DENNIS L. EAMICK.

June 21, 2007

OPINION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19

On April 16, 2007, a Hearing Board composed of Sherry A. Caloia and Marna M. Lake, both members of the Bar, and William R. Lucero, the PDJ (the Court), held a hearing pursuant to C.R.C.P. 251.18(d). Kim E. Ikeler and Lisa E. Frankel appeared on behalf of the Office of Attorney Regulation Counsel (the People) and Dennis L. Eamick (Respondent) appeared pro se. The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19.

I. ISSUE/SUMMARY

Reprimand is appropriate when a lawyer negligently engages in conduct that violates a duty owed to the profession and causes injury. Respondent ordered a deposition transcript on behalf of a client and later refused to pay for it. The custom and practice in Colorado is that attorneys are responsible for the payment of transcripts they order in the absence of another agreement with the court reporter. Did Respondent violate Colo. RPC 8.4(d) or (h)?

The Hearing Board concludes that when Respondent ordered a deposition transcript on behalf of a client without disclosing that neither he nor his client would assume the responsibility for its preparation, he assumed responsibility for the costs. The Hearing Board rejects Respondent’s argument that the reporter should have protected herself by making inquires or otherwise obtaining a written agreement for payment in advance of completing the work. Respondent’s conduct was both prejudicial to the administration of justice and adversely reflects on his fitness to practice law. His conduct violated Colo. RPC 8.4(d) and (h) and warrants the imposition of a public censure with the condition that he pays restitution to the reporter in the amount of $528.85.

SANCTION IMPOSED: PUBLIC CENSURE WITH CONDITIONS

II. PROCEDURAL HISTORY

On October 25, 2006, the People filed a complaint in this matter. Respondent filed an answer on November 15, 2006. The parties chose not to file any dispositive motions, but they filed a joint "Stipulation of Facts" on March 30, 2007.

III. FINDINGS OF MATERIAL FACT

The Hearing Board finds that the following facts have been established by clear and convincing evidence.

Respondent took and subscribed the oath of admission and gained admission to the Bar of the Colorado Supreme Court on October 29, 2002. He is registered on the official records of the Colorado Supreme Court, Attorney Registration No. 34259, and is therefore subject to the jurisdiction of the Court. His registered business address is 3000 Highway 84, Unit D, Pagosa Springs, CO 81147.

Stipulated Facts

In July 2005, Respondent engaged Sherry L. Rowe, doing business as Animas Reporting Service, to report depositions for Respondent. At the time he did so, Respondent did not tell Ms. Rowe that the client would be responsible for paying her fees and that he would not.

Respondent ordered copies of four of the depositions. Ms. Rowe transcribed the depositions and sent them to Respondent. Ms. Rowe sent Respondent a statement for $528.85 for this work.

Respondent failed to pay Ms. Rowe for her services. Ms. Rowe sent Respondent a letter requesting payment. Respondent did not contest the amount of the bill. Respondent continued not to pay.

Ms. Rowe placed the matter with a collections bureau. Respondent disputed his obligation to pay for the services. Respondent contends that he is not obligated to pay for Ms. Rowe’s services; rather, only the client is obligated. Respondent has not paid the court reporter to date and does not have plans to do so.

Respondent contends that, during the events described in paragraphs 1 and 2 above, he was engaged as the attorney for and acting as a disclosed agent for his client.

Testimony of Sherry L. Rowe

Sherry L. Rowe has worked as a certified court reporter for Animas Reporting in Durango, Colorado since 1986. Ms. Rowe previously served as a court reporter for Judge Knous and Judge Plank in the Denver District Court. She has transcribed and reported thousands of transcripts for attorneys over the past twenty years. In her experience, attorneys, rather than clients, typically pay for her court reporting services.

In May 2002, Respondent telephoned Ms. Rowe and requested that she prepare a deposition transcript for one of his cases. When Respondent ordered the transcript, neither he nor Ms. Rowe discussed who would pay the costs. Ms. Rowe completed the deposition transcript and sent it to Respondent with an invoice for $528.85. The total cost included an appearance fee and a charge of $3.95 per page for the transcription of 435 pages.1

Respondent thereafter refused to pay the invoice for Ms. Rowe’s services and claimed that the responsibility belonged to his client. However, Respondent never advised Ms. Rowe about his belief that Colo. RPC 1.8(e) required his client to pay the deposition transcript costs. After sending him five monthly invoices, Ms. Rowe wrote to Respondent and told him that if he failed to pay the invoice, she would report him to the People.2 Finally, Ms. Rowe turned her claim over to a collection agency.3

When the collection agency failed to collect the deposition transcript costs from Respondent, Ms. Rowe contacted Mr. Crane, her business lawyer and a mediator in Durango. Mr. Crane attempted to resolve the matter with Respondent, but was unsuccessful. Ms. Rowe decided against filing a lawsuit against him because of the costs and Respondent’s threats to file a countersuit against her. Finally, Ms. Rowe reported Respondent’s conduct to the People.4 To date, Respondent refuses to pay Ms. Rowe for the deposition transcript costs.

Testimony of Jason Meadows

Jason Meadows has been a court reporter for over thirty years. He presently owns Meadows Court Reporting in Larimer County. He has taken more than five thousand depositions in his career. He has twice been elected president of the Colorado Court Reporter Association and has been a leader in that organization. Mr. Meadows has also participated in the Colorado Bar Association Interdisciplinary Committee as a court reporter.

Mr. Meadows testified that in his practice in Colorado and elsewhere, the custom and practice among attorneys and court reporters is that lawyers are ultimately responsible for the cost of any transcript they order in the absence of another agreement. After reading the depositions Ms. Rowe prepared, the complaint and answer in these proceedings, the correspondence between Ms. Rowe and Respondent, and the citations of law made by Respondent, it is Mr. Meadows’ expert opinion that Respondent, based on custom and practice in Colorado, was responsible for the costs of preparing the deposition transcripts.

Testimony of Respondent

Respondent received his law license in October 2002 after attending night school and graduating in 1997. Before attending law school, he served in the United States Air Force. After leaving the service, Respondent worked as a defense contractor for two and a half years. In 2002, Respondent drew unemployment, and in 2003, he and his wife settled in Pagosa Springs. They divorced shortly thereafter. Respondent’s current practice consists of divorce cases and other civil matters. His taxable income in 2006 was $7,000.00.

In 2002, a Mrs. Heinrick was charged with cruelty to animals. Although Respondent was not her lawyer at that time, Respondent took an interest in the case and convinced Mrs. Heinrick to file a lawsuit against certain individuals who participated in an investigation, which resulted in a criminal prosecution and conviction of Mrs. Heinrick. Respondent agreed to represent Mrs. Heinrick in the proposed civil suit on a contingency basis because she did not have the money to pay for the litigation. As Respondent describes it, Mrs. Heinrick was "land rich but cash poor." Respondent testified that other than filing fees and $450.00 Mrs. Heinrick paid Respondent in advance, he represented her pro bono.

Respondent’s testified that he did not have a duty to disclose to Ms. Rowe the fact that his client did not have the money to pay for the deposition transcript. Likewise, he did not have a duty to tell Ms. Rowe that he would not pay for the deposition transcript. Respondent further argues that it was up to Ms. Rowe to protect herself and clarify who was going to pay for the deposition transcript. Finally, Respondent holds the People responsible for creating a legally unfounded expectation among court reporters that they should look to lawyers for payment under these circumstances.

IV. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

In Claim I, the People charged Respondent with violation of Colo. RPC 8.4(d), conduct prejudicial to the administration of justice, and 8.4(h), conduct that adversely reflects on a lawyer’s fitness to practice law.

The Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 8.4(d) by ordering a transcript when he knew neither he nor his client could afford to pay for the same and without disclosing these facts to Ms. Rowe. Had Respondent made such a disclosure, Ms. Rowe would not have prepared the deposition transcript in the first instance.

Respondent’s argument that he would have violated his duty of confidentiality to his client had he told Ms. Rowe that neither he nor his client could pay for her services is misplaced. Respondent had a duty to act honestly and openly with others, especially those so closely associated with the judicial process. More important, Respondent would not have had to disclose confidential information about his client’s financial condition to Ms. Rowe when he ordered the deposition transcript. He could have told Ms. Rowe that he would not be responsible for the payment of costs or that she would have to look to Mrs. Heinrick for payment.

Respondent also argues that Colo. RPC 1.8(e) excuses him from paying the costs for transcript he ordered from Ms. Rowe. This rule states as follows:

While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the lawyer’s client except expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses. A lawyer may forego reimbursement of some or all of the expenses of litigation if it is or becomes apparent that the client is unable to pay such expenses without suffering substantial financial interests.

Colo. RPC 1.8(e).

Though a lawyer shall not guarantee financial assistance for a client, he or she may advance the cost of obtaining evidence as long as the client is ultimately responsible. Here, Ms. Rowe relied on a well-established custom and practice when she prepared the deposition transcript at Respondent’s request. Respondent’s position that it was up to Ms. Rowe to make inquiries of him ignores this well-recognized practice. Most important, however, is Respondent’s understanding that neither he nor his client could pay the costs of Ms. Rowe’s labor when he ordered the deposition transcript.

Such conduct is prejudicial to the effective administration of justice and diminishes the ability of other attorneys to easily and economically obtain court reporter cooperation and assistance in obtaining transcripts. Respondent’s interpretation of the ethical rules and belief that he acted properly does not excuse his conduct. See In re Attorney D, 57 P.3d 395, 400 (Colo. 2002).

The Hearing Board also finds that Respondent violated Colo. RPC 8.4(h) by clear and convincing evidence for the same reasons stated above. If Respondent cannot operate openly and fairly with a court reporter who provided a deposition transcript at his request, this does not bode well for him in other matters routinely encountered in the practice of law.

V. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards) and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the 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.

A. Duties Breached

Respondent breached his duty to the legal profession by failing to acknowledge any responsibility for the cost of the deposition transcript Ms. Rowe prepared for him. Respondent also failed to act openly and fairly when he dealt directly with Ms. Rowe and thereby breached his duty to the public. Citizens should be able to rely on the good faith and integrity of lawyers licensed to practice law in Colorado.

B. State of Mind

Respondent acted knowingly when he ordered the deposition transcript. He also acted knowingly when he refused to pay Ms. Rowe for the cost of the deposition transcript. Respondent acted negligently in assessing his responsibility to pay the cost of the preparation of the deposition transcript. However, his mistaken belief that he has no responsibility does not excuse this ethical lapse.

C. Injury

Respondent caused actual financial injury to Ms. Rowe in the amount of $528.85 and potential injury to the good standing of lawyers who rely on the services provided by court reporters in this state.

D. Aggravating and Mitigating Factors—ABA Standard 9.22 and 9.32
Dishonest or selfish conduct—9.22(b)

Respondent failed to disclose that neither he nor his client would be responsible for paying the costs for the deposition transcript. This was misleading given the fact that Respondent knew when he ordered the deposition transcript that neither he nor his client could or would likely pay the costs for the court reporter’s services. Even if his actions were not intentionally misleading, they were selfish in that he was more concerned about his financial interests and not the predicament in which he placed Ms. Rowe.

Refusal to acknowledge wrongful nature of conduct—9.22(g)

Respondent testified that he would not accept the custom and practice that the attorney pays for transcripts. The Hearing Board views this position as a failure to accept the wrongful nature of his conduct.

Indifference to making restitution—9.22(j)

Based on the evidence presented, the Hearing Board finds that Respondent not only failed to recognize the wrongful nature of his conduct, he also is indifferent to making the court reporter whole. Respondent testified that he could not pay the reporter even a small portion of the amount owed monthly until the debt is paid. Because Respondent so firmly believes in his legal and ethical analysis that he owes no nothing to the court reporter, he is indifferent to paying the same.

Absence of a prior disciplinary record—9.32(a)

Respondent has no prior disciplinary record.

Inexperience in the law—9.32(f)

At the time Respondent ordered the deposition transcript in question, he had practiced in Colorado less than three years.

Analysis of ABA Standards and Case Law

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the facts and rule violations in this case is public reprimand. ABA Standard 7.3 states "reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public or the legal system."

Respondent’s conduct warrants public discipline. Ordering a deposition transcript and refusing to pay for it under the circumstances demonstrated here shows a disregard for the integrity of the legal profession and its processes. This conduct was both prejudicial to the administration of justice and reflects adversely on his fitness to practice law. See People v. Whitaker, 814 P.2d 812 (Colo. 1991).

VI. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to it. The facts establish, at a minimum, a problem with Respondent’s ability to recognize his ethical responsibility to the legal profession and those who serve it. On consideration of the ABA Standards and Colorado Supreme Court case law, the Hearing Board concludes that Respondent should be publicly reprimanded and ordered to pay restitution to Ms. Rowe in the amount of $528.85.

VII. ORDER

The Hearing Board therefore ORDERS:

1. DENNIS L. EAMICK, Attorney Registration No. 34259, is hereby PUBLICLY CENSURED effective thirty-one (31) days from the date of this order.

2. DENNIS L. EAMICK shall pay restitution to Sherry L. Rowe in the amount of $528.85.

3. DENNIS L. EAMICK 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 Exhibit 7.

2. See Exhibit 11.

3. See Exhibit 14.

4. See Exhibit 19.

_______________

Case No. 06PDJ096

Petitioner:

THOMAS RICHARD LEFLY,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

August 2, 2007

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

On June 26-27, 2007, a Hearing Board composed of Lee Medina, Barbara Weil Laff, both members of the Bar, and William R. Lucero, the PDJ, held a Readmission Hearing pursuant to C.R.C.P. 251.29(d) and 251.18. Eugene L. Deikman represented Thomas Richard Lefly (Petitioner) and Margaret Funk represented the Office of Attorney Regulation Counsel (the People) in these proceedings. The Hearing Board now issues the following Opinion and Order Re: Readmission Pursuant to C.R.C.P. 251.29.

I. ISSUE

An attorney subject to readmission proceedings under C.R.C.P. 251.29 must prove rehabilitation by clear and convincing evidence. Much of the testimony at the hearing pertained to Petitioner’s mental health at the time of the events leading up to his disbarment, and the possibility that the stress of practicing law might trigger a relapse of mental illness. The issue before the Hearing Board is whether Petitioner has made the necessary changes in his life so that the stress of law practice is less likely to trigger a relapse of the actions that led to his disbarment in 1995.

DECISION OF HEARING BOARD: ATTORNEY READMISSION GRANTED

II. PROCEDURAL HISTORY

Petitioner was disbarred from the practice of law in case number 94SA0406 on August 28, 1995, effective September 28, 1995.1 Petitioner filed a "Verified Petition for Readmission" on November 28, 2006, more than eight years from the effective date of his disbarment. The People filed an "Answer to Verified Petition for Readmission" and agreed to the technical sufficiency of the petition, but took no position regarding Petitioner’s readmission pending an investigation regarding whether Petitioner had undertaken the steps necessary to show that he possessed all of the qualifications required of an applicant for admission to the Bar of Colorado. Prior to the Readmission Hearing, the People stipulated that Petitioner had provided clear and convincing evidence of compliance with all applicable disciplinary orders and with all provisions of the requirements of C.R.C.P. 251.29(a) and (c).2 Following the Readmission Hearing, the People stipulated that Petitioner had provided clear and convincing evidence of rehabilitation, and requested that his petition for readmission be granted.

At the Readmission Hearing, the PDJ admitted Stipulated Exhibits 1–13 and A–M. The Petitioner also offered Exhibit 14, which the PDJ accepted into evidence. Petitioner testified on his own behalf and presented ten witnesses, both lay and professional, in support of his petition. Among those was John Martinez, a clinical psychologist. The People presented one witness, David S. Wahl, M.D., a physician who is a board-certified neurological psychiatrist.

III. FINDINGS OF FACT

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

The Petitioner took and subscribed the Oath of Admission and was admitted to the Bar of the State of Colorado on May 19, 1975. Petitioner is subject to the jurisdiction of the Colorado Supreme Court and the PDJ in these readmission proceedings.

As part of this readmission proceeding, Petitioner agreed to and participated in an independent medical evaluation by Davis S. Wahl, MD, a licensed Colorado psychiatrist whose name was pre-approved by the People. Dr. Wahl has opined, and the People stipulate, that Petitioner is capable of returning to the practice of law from a psychiatric perspective.

Petitioner possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action against him. Petitioner has complied with all applicable disciplinary orders and with all provisions of the Colorado Rules of Civil Procedure regarding attorney discipline. Furthermore, he has no medical or psychological bases that impair his abilities to fulfill his responsibilities as an attorney.

Petitioner has maintained professional competence through employment as a claims adjuster for independent claims adjusting companies, work as a paralegal for a law firm, study in preparation for the Bar examination, successful completion of the Bar examination, and attendance at numerous adjuster and continuing legal education courses.

Petitioner’s History Leading to Disbarment

1. Petitioner stipulated before the hearing panel that disbarred him that he had converted client trust funds. The only issue was the appropriate sanction. The panel heard the testimony of Petitioner, two members of the Church of Scientology, and a psychologist. The panel and the Supreme Court found Petitioner’s witnesses sincere and credible. These witnesses testified to the extent and severity of Petitioner’s emotional problems that they evaluated and treated intensively, resulting in marked improvement.

2. Petitioner, a personal injury lawyer, mismanaged his trust accounts in which he had deposited client settlement funds since 1982. Recognizing he was experiencing severe mental and emotional difficulties in 1983, Petitioner counseled with two psychologists. In 1984, he asked to withdraw from two cases, citing disability as the reason. Opposing counsel filed a request for a disability investigation from the Supreme Court Grievance Committee and Petitioner was evaluated by a psychiatrist in 1984. He thought he had recovered from his emotional difficulties, but did not disclose his trust account deficiencies to the psychiatrist. He continued seeing a psychologist until 1986 or 1987. In 1985, he brought his trust accounts in balance, but again began using funds from those accounts in 1988, while he was suffering severe emotional distress. He again obtained counseling, but perceived that it made him worse.

3. In 1990, Petitioner joined the Church of Scientology, in part because he believed traditional psychotherapy and medication were not helpful to him. To the time of the hearing, he participated in a structured program provided by the church including a form of counseling called "auditing" to address his emotional and economic problems. He devised a plan to repay his trusts accounts, but the plan failed. Through funds from loans and inheritance, he again brought his trust accounts into balance in December 1991.

4. In June 1991, Petitioner received a $175,000.00 settlement on behalf of Mr. Aravelo, who could not speak English. Exploiting the language barrier, Petitioner told Mr. Aravalo that the funds had not been received and transferred $87,000.00 from his trust to his operating account. Petitioner deposited $65,000.00 of that into an account directed by a loan agent to obtain a lender or lenders to loan him sufficient funds to bring the trust accounts into balance. This effort failed, but the loan agent retained $6,000.00 as a commission. He deposited the balance in Mr. Aravalo’s trust account. Using client funds in part on June 11 and August 22, 1991, Petitioner paid Mr. Aravalo the client’s share of the settlement.

5. In January 1991, Petitioner settled a workers’ compensation claim on behalf of Doris Mitchell for $55,000.00. He endorsed the check as his client’s attorney in fact and deposited it into a trust account. He withdrew $11,000.00 in attorney fees in January and February 1991, but did not notify Ms. Mitchell until she informed the Colorado Compensation Insurance Division in September that she had not received her funds. On October 25, 1991, using personal funds, Petitioner paid Ms. Mitchell a sum representing her share plus interest. He also refunded a retainer she had paid him.

6. The Supreme Court affirmed the panel’s findings that these acts violated DR 1-102(A)(1) (violation of a disciplinary rule); DR 1-102(A)(4) (conduct involving fraud, dishonesty, deceit or misrepresentation); DR 6-101(a)(3) (neglect of a legal matter entrusted to him); DR 6-102(B)(1) (neglect of a legal matter entrusted to him); DR 9-102(A) (all funds paid to a lawyer or law firm shall be deposited in one or more interest-bearing insured depository accounts); DR 9-102(B)(1) (failure to properly notify a client of the receipt of funds . . . and render appropriate accounting to his clients regarding them); DR 9-102(B)(3) (failure to maintain complete records of all funds . . . and render appropriate accounting to his clients regarding them); and DR 9-102(B)(4) (failure to promptly pay or deliver to the client as requested by a client the funds . . . in possession of the lawyer which the client is entitled to receive).

7. Two of the three hearing panel members recommended disbarment. One member recommended a three-year suspension. The differences of opinion revolved around the mitigating factor of whether Petitioner’s misconduct was caused by, or affected by, a mental disability. The Supreme Court, though finding that Petitioner’s "personal and emotional problems were certainly severe," in view of the numerous and grave instances of the misconduct including misappropriation of client funds, determined that the appropriate sanction was disbarment.

Evidence Presented in Support of the Petition for Readmission

Petitioner testified on his own behalf in these proceedings. Though trained as a teacher, he began working as an insurance adjuster in the 1970s, while attending law school at night. He became a licensed attorney in 1975, handling personal injury cases. He candidly discussed the issues that led to his mishandling of client funds in the 1980s. As Petitioner’s practice grew, he hired more staff to handle the workload, and used client funds to pay office expenses. His trust accounts first fell out of balance in December 1982. He knew it was a serious offense, and tried to bring those funds back into balance.

In 1983, Petitioner knew he was suffering from serious mental health issues, including depression. He sought counseling from Edward A. Steinberg, Ph.D., approximately twice a week for six months, and then weekly until 1986. Petitioner did not disclose his trust account deficiencies to Dr. Steinberg. Although Dr. Steinberg prescribed him an antidepressant, Petitioner did not take the medication.

In 1984, difficulties in Petitioner’s second marriage led to a mental breakdown, which caused him to withdraw from two cases, citing disability. Opposing counsel in one of those cases filed a request for disability investigation with the Grievance Committee, and Petitioner was ordered to see Frederick Miller, a psychiatrist. Dr. Miller found Petitioner to be "normal." Petitioner did not discuss his trust fund issue with Dr. Miller because he "did not talk about it" with others.

Petitioner once more began using funds from client trust accounts in approximately 1988, again describing relationship problems as the cause of the overspending, which led to the perceived need to use that money. Petitioner did not confront his trust account issues until he began the process of "life auditing" through the Church of Scientology in 1990. Petitioner turned to the Church of Scientology after reading the book Dianetics by L. Ron Hubbard, the founder of the Church of Scientology. Petitioner testified that he found the "auditing" process, similar to psychotherapy, to be very helpful to him in facing his ethical and personal issues.

In 1990, a Church of Scientology staffer helped Petitioner create a plan to repay his trust account. The plan did not work, according to Petitioner, largely because he had to pay so much money to the Church of Scientology for his auditing classes. He did, however, manage to bring his trust account into balance by January 1992, largely by borrowing money and cutting costs in his law practice. By November 1991, all clients had been repaid, with interest, and all costs were repaid by January 1992.

Petitioner also took classes to become an auditor himself. He performed audits on approximately 10-25 other people. He left the Church of Scientology in 1997, finding that it was very expensive, and no longer serving his needs.

Following his disbarment, Petitioner renewed his teaching license. He advised the Colorado Department of Education of his disbarment, and the reasons for it.3 Petitioner worked as a substitute teacher in Jefferson County, Colorado and at Catholic schools around the Denver metropolitan area. He also worked as a telemarketer. Although he was hired as a full-time math teacher at a Catholic school, he found that he could not control the classroom, and quit the job after one month.

Petitioner thereafter returned to the insurance adjusting field, working as a Senior Claims Adjuster for Gates Claims Service from September 1998 to September 1999, for Custard Insurance Adjusters until April 2001, for Crum & Forster Insurance Company as a Claims Representative and Liability Examiner until January 2004, and for Western Guaranty Fund until August 2004. During this time, Petitioner attended seminars regarding insurance law and mediation, and worked with attorneys to settle client claims. He never handled any client funds himself.

Petitioner did not advise any of these employers of his disbarment, because they did not ask him a direct question about why he left the practice of law. When he did tell a prospective employer about his disbarment, he was not hired. When he applied for an insurance adjuster’s license in Wyoming,4 he answered, "no" to the question, "Has any previous license or application for license been refused, suspended, revoked or renewal or continuance denied?" because he believed the question to refer only to insurance licenses.

After he filed his Application for Admission to the Bar in December 2004, Petitioner worked part-time for Crocker Claims Service as a senior claims adjuster in January 2005. Petitioner took the February 2005 Bar examination, but did not pass. In June 2005, Petitioner began working as a law clerk and paralegal for David R. Calvert, performing legal research and drafting pleadings, motions, discovery, and memoranda of law. He also filed documents on behalf of Mr. Calvert, using the LexisNexis File and Serve (state court) and PACER (federal court) systems.

Petitioner took the July 2005 Bar examination, and did not pass. Petitioner worked full-time for Mr. Calvert from June 2006 through December 2006. He advised Mr. Calvert of the reasons for his disbarment. During that time, he also attended continuing legal education programs including ethics programs. Petitioner devoted himself full-time to studying for the February 2006 Bar examination, which he passed. He continues to work part-time for Mr. Calvert, and occasionally as an adjuster for Crocker Claims Service as needed.

If he is readmitted, Petitioner would like to work as an associate with a personal injury or bankruptcy firm, but understands that this is not likely, given his disciplinary history. He would rather not practice alone, unless there were other attorneys available for advice and/or monitoring. Petitioner testified that James F. Pamp, an attorney in good standing, has offered to monitor Petitioner’s practice and trust accounts if he is readmitted.

Petitioner testified that he believes that he is rehabilitated, a more ethical person, and able to control stressors in his life better than when he was disbarred. First, through his auditing and the experience of disbarment, he understands that client money belongs to clients. Second, he is very careful in his personal relationships with women, and is trying to stay away from relationships that are not healthy. Although his most recent relationship has ended, the termination did not cause the type of emotional breakdown he experienced in the late 1980s. Third, he does not have the financial pressures he had in the late 1980s with judgments, tax liens, child support, and high business overhead. He knows how to handle his finances differently, having had to live so frugally over the past twelve years. Fourth, he is reconnecting with his Jewish roots, and is currently in the process of converting to Judaism. Fifth, he recognizes the need for counseling, and has made arrangements to see Dr. Martinez to "check in" if he feels stress in connection with work or his personal life, or if required to do so as a condition of his readmission.

John Martinez, PhD, was offered, and accepted by the PDJ, as an expert witness on behalf of Petitioner. Dr. Martinez performed an evaluation of Petitioner both prior to his disbarment, and again in preparation for the readmission hearing. Dr. Martinez testified that he first saw Petitioner in 1983. At that time, Dr. Martinez administered the Minnesota Multiphasic Personality Inventory (MMPI), and found that Petitioner showed deviant responses, demonstrating impulsivity and thought disorganization. When he saw Petitioner for an evaluation in 2005, he administered the MMPI-II assessment, and found Petitioner to be functioning normally.5 Dr. Martinez attributes the change to psychotherapy and medication. In Dr. Martinez’s opinion, Petitioner is mentally qualified to practice law, and does not need mandated counseling. Although there is a possibility of a relapse in patients who have had a breakdown such as Petitioner suffered, he has not had a relapse in fourteen years, and the chance of relapse decreases with treatment.6

Petitioner presented testimony of witnesses with whom he had worked as an insurance adjuster during his disbarment. Charles Peek, Senior Vice President and District Manager of Custard Insurance, testified that he supervised Petitioner full-time for one year, and part-time for part of another. He testified that he found Petitioner to be highly trustworthy, honest, and a person of integrity. Petitioner had not told Mr. Peek that he had been disbarred. Mr. Peek understood that Petitioner had left the practice of law because he was not successful, though Mr. Peek did not hear this from Petitioner. Had Mr. Peek known of the disbarment before hiring Petitioner, he would have spoken with his company’s attorneys to determine whether it would have been a bar to hiring Petitioner. It was not Mr. Peek’s practice to ask about licenses other than the adjuster’s licenses required by Wyoming and some states other than Colorado.

Julie Ann Christensen testified by deposition.7 She was formerly the Claims Director of Crum & Forster, and supervised Petitioner in January of 2003. She testified that she gave Petitioner a performance evaluation in February of 2003 showing that he met expectations. During the time she supervised him, he never fell below her expectations. She felt that Petitioner was a good, solid performer, and she promoted him. The company conferred $25,000.00 settlement authority on each of its adjusters automatically, though they never handled the money personally. Ms. Christensen testified that she did not know that Petitioner had been disbarred, and might not have hired him if she had known. It is not, however, a question that the company asks applicants.

Gary Hale, a claims supervisor at Western Guaranty Fund Services, testified that he supervised Petitioner. Western Guaranty Fund Services adjusts claims for defunct insurance companies. Petitioner was a very good adjuster, who understood the statutes, and could explain the case status to attorneys and insureds. Mr. Hale did not know that Petitioner had been disbarred until these proceedings, but stated that it would not have mattered to him. Petitioner did not handle money in his work for Western Guaranty.

Frank Boissoneau testified that he had also supervised Petitioner at Western Guaranty Fund Services. He testified about Petitioner’s good organizational skills. He did not know that Petitioner had been disbarred, but it did not affect his high opinion of Petitioner.

Mark Spradlin testified that he employed Petitioner as a claims adjuster at Custard Insurance in the Denver office, and had daily contact with the two adjusters and one clerk in the office. Petitioner handled between 25 and 40 cases at any one time, dealt with lawyers and insureds, and handled the cases well. Mr. Spradlin knew prior to the hearing that Petitioner had been disbarred, and believes that he is now fit to practice law.

David Calvert, an attorney in good standing in the community, testified on behalf of Petitioner. Mr. Calvert testified that Petitioner worked for him as a full-time law clerk, until Mr. Calvert needed an associate who could go to court, and then part-time. Mr. Calvert reviewed and signed all pleadings and documents prepared by Petitioner, who never overstepped his boundaries as a law clerk. Petitioner was honest, trustworthy, and had integrity. Petitioner told Mr. Calvert about his disbarment and Mr. Calvert acted as a mentor through the readmission process. Mr. Calvert testified that he believes Petitioner is professionally competent and rehabilitated, and fit to practice law.

Diane Lefly, Petitioner’s ex-wife, testified that Petitioner was devastated by the consequences of his actions and the subsequent disbarment, and has worked as hard as he could to provide for his son. He has met his child support obligations and contributed what he could to his son’s education, though that was not very much while his son was in college. She believes that Petitioner has done much to rehabilitate himself, including studying ethics through the Church of Scientology, counseling, and going through the readmission process.

Elliott Lefly, Petitioner’s son, testified that he has seen a change in his father as a result of his disbarment. Petitioner is adamant about taking care of his finances, discusses ethics, and is very clear about the mistakes he made. He believes that his father is rehabilitated.

Finally, the Hearing Board heard from James F. Pamp, an attorney in good standing in the community. Mr. Pamp testified that he has known Petitioner as an insurance adjuster. He has been a friend to Petitioner following his disbarment, making sure that Petitioner attended social gatherings and cultural events, and supporting his efforts to find work. Mr. Pamp has agreed to act as a practice and financial monitor for Petitioner, should Petitioner be readmitted to the practice of law.

The People’s Evidence, David S. Wahl, MD

Dr. Wahl conducted a psychiatric evaluation of Petitioner and completed a report on May 3, 2007.8 In Dr. Wahl’s opinion, there is no current psychiatric condition that interferes with Petitioner’s ability to practice law. However, Dr. Wahl believes Petitioner may be vulnerable to a recurrence of the condition that caused him to commit the acts that led to his disbarment.

Dr. Wahl feels that Petitioner suffered a significant psychiatric break of several years in the late 1980s that affected him socially and professionally. He therefore lives with a moderate risk of the return of his symptoms. This means that Petitioner is vulnerable to the stresses of a renewed law practice, and Dr. Wahl would urge careful monitoring of work responsibilities, and introduce medication early at the first sign of trouble, because of Petitioner’s age.

Nevertheless, because there is no active illness at present, Dr. Wahl believes Petitioner is fit to practice law, with some monitoring. The psychological monitor should be someone who is open to using medication if necessary to manage the risk of relapse. Because mental illness can affect brain functioning at all levels, it is important that Petitioner seek help at the first sign of distress, before his judgment becomes impaired. A practice monitor should be able to assist Petitioner in this, but the practice monitor must be willing to tell Petitioner when the monitor thinks Petitioner is having trouble.

IV. LEGAL ANALYSIS

C.R.C.P. 251.29. provides in relevant part:

(a) Readmission After Disbarment.

A disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment. To be eligible for readmission the attorney must demonstrate the attorney’s fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission, properly verified, with the PDJ, and furnish a copy to the Regulation Counsel. Thereafter, the petition shall be heard in procedures identical to those outlined by these rules governing hearings of complaints, except it is the attorney who must demonstrate by clear and convincing evidence the attorney’s rehabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter. A Hearing Board shall consider every petition for readmission and shall enter an order granting or denying readmission.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1998) interprets the language of the prior rule governing readmission to the Bar, C.R.C.P. 241.22, and sets forth criteria that must be considered in readmission proceedings in order to evaluate an attorney’s rehabilitation. Klein requires:

Any determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the respondent’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 respondent, the personal and community service aspects of the respondent’s life, and the respondent’s recognition of the seriousness of his previous misconduct.

Rehabilitation for purposes of attorney reinstatement and readmission to the Bar has been defined as "the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society." Goff v. People, 35 P.3d 487, 494-95 (Colo. PDJ, August 4, 2000), citing Avrom Robin, Character and Fitness Requirements for Bar Admission in New York, 13 Touro L. Rev. 569, 583 (1997) (quoting In re Cason, 249 Ga. 806, 294 S.E.2d 520, 522-23 (1982). Other factors that are considered are the applicant’s age at the time of the offense and the likelihood that the applicant will repeat the behavior in the future. Id. Courts, including those in Colorado, focus on the applicant’s current mental state. Id.; See Klein, 756 P.2d at 1016.

Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed on which the discipline is premised. Goff, 35 P.3d at 495-96; Avila v. People, 52 P.3d 230, 234 (Colo. PDJ, July 22, 2002). The shortcoming may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. Id. It necessarily follows that the analysis of rehabilitation should be directed at the professional or moral shortcoming which resulted in the discipline imposed. Id.

Readmission, however, will not be granted automatically because the applicant has not engaged in further misconduct following disbarment. See In re Sharpe, 499 P.2d 406, 409 (Okla. 1972). The foremost concern must be protecting the public welfare. Each case for readmission must be reviewed on its own merits, and will fail or succeed on the evidence presented and the circumstances peculiar to that case. Goff, 35 P.3d at 495, citing In re Cantrell, 785 P.3d 312, 313 (Okla. 1989). The Hearing Board must determine that rehabilitation has already occurred, not that it may occur in the future. While an order granting readmission may include conditions, which must be followed by the readmitted attorney, it is a prerequisite to any such order that the attorney has already been successfully rehabilitated. See C.R.C.P. 251.29(b). Proof of anticipated changes will not satisfy this requirement. See Goff, 35 P.3d at 495.

Nevertheless, the readmission process itself recognizes that no offense "is so grave that a disbarred attorney is automatically precluded from attempting to demonstrate through ample and adequate proofs, drawn from conduct and social interactions, that he has achieved a ‘present fitness,’ to serve as an attorney and has led a sufficiently exemplary life to inspire public confident [sic] once again, in spite of his previous actions." Avila, 52 P.3d at 235, citing In re Kone, 90 Conn. 440, 442, 97 A. 307 (1916) and In the Matter of Allen, 400 Mass. 417, 509 N.E.2d 1158, 1160-61 (1987). "Rehabilitation . . . is a ‘state of mind’ and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved ‘reformation and regeneration.’" Id., citing March v. Committee of Bar Examiners, 67 Ca.2d 718, 732, 433 P.2d 191, 63 Cal. Rptr. 399 (1967).

Petitioner has offered his own testimony, that of his family, and other attorneys, regarding his remorse over his prior actions, his efforts to face his ethical and personal issues, and his efforts to stay connected with the legal profession in ways other than practicing law.

Petitioner sought counseling through the Church of Scientology’s auditing process, which helped him confront his business and personal issues, and eventually bring his trust account back into balance. He took training to become an auditor himself, taking many classes in ethics. By November 1991, he had repaid all of his clients, with interest, and all costs were repaid by January 1992.

Petitioner recognizes that the stressors of financial difficulties and poor relationship choices led to his mental breakdown. He has made arrangements to call on a therapist should he need to talk about mental health issues. The Hearing Board accepts the opinion of Dr. Wahl that Petitioner’s psychological condition should be monitored for at least the beginning of his readmission, due to the moderate probability of relapse.

Recognizing that he may end up in a solo practice following readmission, Petitioner has consulted with an attorney in good standing to act as a practice monitor. The Hearing Board finds that James F. Pamp understands the seriousness of such a position, and is impressed with the careful thought he gave to the position before agreeing to undertake it.

These facts convince the Hearing Board by clear and convincing evidence that Petitioner understands that he must seek help when he becomes overwhelmed by practice responsibilities or financial pressures, and cannot take client funds to satisfy personal obligations. Because he has demonstrated that change in character, the Hearing Board finds that he is rehabilitated.

Petitioner’s passage of the Colorado Bar Examination and the Multistate Professional Responsibility Examination establishes his competence to practice law. By stipulation, the Office of Attorney Regulation Counsel has agreed that Petitioner has substantially complied with all disciplinary orders.

Although not controlling in this readmission proceeding, it is important to note and significant to the Hearing Board that at the conclusion of all testimony in this proceeding that Ms. Funk, the Assistant Regulation Counsel, stipulated that Petitioner should be readmitted to the practice of law.

The Hearing Board therefore grants Petitioner’s petition for readmission. As a condition of his readmission, Petitioner’s practice shall be monitored by James F. Pamp,9 who will report to the Office of Attorney Regulation at least every six months regarding the status of Petitioner’s client trust accounts and client files for a period of one year following readmission.

As a further condition of his readmission, Petitioner will consult with a psychotherapist satisfactory to both Petitioner and the People every six months for one year following readmission.

V. ORDER

The Hearing Board GRANTS the Verified Petition for Readmission filed by Petitioner Thomas Richard Lefly. Petitioner SHALL contact the Office of Attorney Registration within twenty (20) days of the date of this order and comply with all necessary conditions of readmission required of a "newly admitted attorney," which include the payment of registration fees, completion of requisite paperwork, obtaining a new attorney registration number, and appearing before the Presiding Disciplinary Judge to take the oath of admission. The Court will issue an "Order and Notice of Readmission Pursuant to C.R.C.P. 251.29(a) on Petitioner’s successful compliance with the above conditions.

1. James F. Pamp, or another practice monitor satisfactory to the People, SHALL monitor Petitioner’s practice and trust accounts every six months for a period of one year.

2. Petitioner SHALL consult with a psychotherapist satisfactory to Petitioner and the People every six months for a period of one year.

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. Petitioner shall have ten (10) days thereafter to submit a response thereto.

________

1. See Stipulated Exhibit D.

2. On April 28, 2006, the Colorado Supreme Court Board of Law Examiners Petitioner notified Petitioner that he had satisfactorily performed the Colorado Bar Examination given on February 21, 2006. Petitioner has also passed the Multistate Professional Responsibility Examination.

3. See Stipulated Exhibit 2.

4. See Stipulated Exhibit 6.

5. See Stipulated Exhibit 3.

6. See Stipulated Exhibit 5.

7. See Stipulated Exhibit 14.

8. See Stipulated Exhibit 4.

9. If Mr. Pamp is unable to fulfill his responsibilities, another monitor satisfactory to Petitioner and the People may be selected.

_______________

Case No. 06PDJ010

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

MICHAEL T. MIRANDA.

July 10, 2007

OPINION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(b)

On May 8, 2007, a Hearing Board composed of Michael B. Lupton, a citizen board member; Richard P. Holme, a member of the Bar; and William R. Lucero, the PDJ (the Court), held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Nancy L. Cohen appeared on behalf of the Office of Attorney Regulation Counsel (the People) and Michael T. Miranda (Respondent) appeared pro se. The sole issue for the Hearing Board is the appropriate sanction to impose in light of the Court’s finding that Respondent violated C.R.C.P. 251.5(b) and Colo. RPC 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s fitness to practice law). Accordingly, the Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b).

I. ISSUE/SUMMARY

Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct that seriously adversely reflects on his fitness to practice law. Respondent collided with a motorcyclist while operating a motor vehicle under the influence of alcohol. The motorcyclist later died from his injuries. Respondent argues that a public censure is sufficient because of the unintentional nature of his crime. Is public censure appropriate when a lawyer knowingly violates the law and causes overwhelming emotional harm?

The Hearing Board finds that public censure is an insufficient sanction for a lawyer who causes the death of another while operating a vehicle after knowingly consuming alcohol to excess. Colorado lawyers are sworn to abide by the laws of this state. When they do not, the integrity of the legal profession is rightfully questioned. Even if Respondent did not intend the death of another, a public censure would allow Respondent to continue practicing law on his release from the Department of Corrections, an event that will likely occur within the next two years. Under such circumstances, he could practice law without any review of his fitness to practice law or other issues raised in this case about his physical and mental status or his abuse of alcohol. Furthermore, a public censure would unduly undermine the seriousness of the crime.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR TWO (2) YEARS

II. PROCEDURAL HISTORY

On February 16, 2006, the People filed a complaint in this matter and Respondent filed an answer on March 13, 2006. On April 19, 2006, the People filed a motion for judgment on the pleadings and Respondent filed a response on May 8, 2006. On May 25, 2006, the Court issued an order granting the People’s motion for judgment on the pleadings on the single claim, violation of C.R.C.P. 251.5(b) and Colo. RPC 8.4(b) (it is professional misconduct for a lawyer to commit a crime that reflects adversely on his fitness to practice law). Therefore, the only issue before the Hearing Board is the appropriate sanction for Respondent’s violation of C.R.C.P. 251.5(b) and Colo. RPC 8.4(b).

III. FINDINGS OF MATERIAL FACT

The Hearing Board finds that the following facts have been established by clear and convincing evidence and hereby adopts and incorporates by reference the Court’s factual findings from its "Order Re: Motion for Partial Judgment on the Pleadings" dated May 25, 2007. As noted in the Court’s order, Respondent admitted that he was convicted of vehicular homicide, a class 3 felony, in violation of CRS § 18-3-106(l)(b)(I). Further, Respondent’s conviction adversely affects his fitness to practice law.

In addition to the findings of fact in the Court’s order granting judgment on the pleadings, the Hearing Board notes the following summary of matters that bear on its decision that Respondent should be suspended from the practice of law.

Respondent took and subscribed the oath of admission and he gained admission to the Bar of the Colorado Supreme Court on October 14, 1994. He is registered on the official records of the Colorado Supreme Court, Attorney Registration No. 28946, and is therefore subject to the jurisdiction of the Court.

In the early evening of September 4, 2004, Respondent was driving his motor vehicle northbound on South Colorado Boulevard. As he turned left into a parking lot, Respondent’s motor vehicle collided with a motorcycle traveling southbound and ridden by Kristopher Mansfield, a 23-year-old senior airman with the United States Air Force stationed at Buckley Air Force Base who had recently returned from a tour of duty in Iraq. Following the collision, Mr. Mansfield was taken to Denver Health Medical Center and was later pronounced dead at 4:45 p.m. on September 6, 2004.

Denver police arrested Respondent and tested his blood alcohol level from a blood sample. An initial test showed a blood alcohol content of .217. A second test showed a blood alcohol content of .198. At the time of the incident, a blood alcohol content of .10 was the threshold level for the criminal charge of driving under the influence of alcohol.

On September 29, 2005, Respondent entered a guilty plea to vehicular homicide/DUI, a class 3 felony in violation of CRS § 18-3-106(1)(b)(I). On December 2, 2005, the trial court sentenced him to eight years in the Department of Corrections plus five years of mandatory parole. On April 14, 2006, the Colorado Supreme Court immediately suspended Respondent from the practice of law without objection. As of the date of this hearing, Respondent remains in the custody of the Department of Corrections and he has not practiced law for over fifteen months.

IV. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards) and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, as the Court did here as a matter of law, 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.

Duties Breached

Respondent breached his duty to the public to abide by the criminal laws of the State of Colorado and thereby seriously adversely affected his fitness to practice law. By driving a vehicle with a .217 blood alcohol content, Respondent failed to maintain the standards of personal integrity upon which the community relies. Lawyers above all others are sworn to respect and honor the law. In addition, Respondent’s actions breached his duties to the legal profession and its members.

State of Mind

Even though the crime of vehicular homicide does not contain an element of knowing or reckless conduct, the Hearing Board finds that Respondent acted knowingly when he consumed an excessive amount of alcohol. This knowing conduct resulted in an extremely high level of intoxication and he voluntarily drove a motor vehicle in this condition. Anyone who happened to be on a public street at the time he drove was at risk.

For purposes of sanctions analysis, knowing conduct is conduct that demonstrates Respondent’s awareness of what he was doing, but without the conscious objective to produce a certain result. It is undisputed that Respondent was aware that he consumed alcohol and drove a car thereafter. He did not intend the tragic death of Kristopher Mansfield, but he knowingly and voluntarily created the circumstances that resulted in his death.

Three days before this accident, according to testimony Respondent offered through Kathey Verdeal, PhD,1 doctors placed a stint in Respondent’s heart as a result of cholesterol blockage he suffered. During this same period of time, Respondent had also been taking blood-thinning medication and cholesterol medication, and he had lost more than twenty pounds. Respondent had also reduced his consumption of alcohol in advance of the stint operation.

As Dr. Verdeal testified, these circumstances compromised Respondent’s physiological ability to process alcohol. Nevertheless, Dr. Verdeal acknowledges that even under normal circumstances Respondent’s blood alcohol content would have been as high as .115 at the time of the accident.

Although these circumstances may mitigate, they also reveal that Respondent should have been particularly careful about drinking alcohol given his physical condition. Respondent either knew or should have known that to drink alcohol to excess and then drive a vehicle was dangerous not only to himself but to others.

Injury

Respondent’s misconduct resulted in the death of Kristopher Mansfield. There is no way to mend this injury and its impact on his family and friends. Craig and Marilyn Mansfield, and Julianne and Donald Legg, the parents of Kristopher Mansfield, provided detailed testimony and victim statements about the emotional injury they and their families and friends have suffered as a result of Respondent’s misconduct.2

Aggravating Factors—ABA Standard 9.22

The Hearing Board finds a single aggravating factor: substantial experience in the practice of law. See ABA Standard 9.22 (i). Respondent had practiced nearly ten years at the time of his misconduct.

Mitigating Factors—ABA Standard 9.32

Respondent presented evidence and the People conceded a number of the following factors the Hearing Board finds in mitigation: absence of a prior disciplinary record; absence of a dishonest or selfish motive; timely and good faith effort to make monetary restitution to the victim’s family; full and free disclosure to the People; good character and reputation; imposition of other penalties in the criminal process; and remorse. See ABA Standards 9.32 (a), (b), (d), (e), (g), (k), and (l).

Analysis of ABA Standards and Case Law

The ABA Standards suggest that the presumptive sanction is suspension. Respondent knowingly engaged in criminal conduct and that conduct adversely reflects on his fitness to practice law. If Respondent’s conviction involved an intentional criminal act, disbarment would have been the appropriate sanction. ABA Standard 5.11.

The Hearing Board finds Justice Quinn’s dissent in People v. Fahselt, 807 P.2d 586 (Colo. 1991), helpful in its analysis of the appropriate sanction. In Fahselt, Justice Quinn dissented from the majority’s opinion approving a public censure for a lawyer found guilty of vehicular assault, a class 5 felony. In his dissent, Justice Quinn stated that suspension of two to three years for a vehicular assault would normally be appropriate. In that case, as in this case, there were a number of mitigating factors. Given those mitigating factors, Justice Quinn opined that a suspension of one year and one day was appropriate.

The Hearing Board determines that a two-year suspension is appropriate in this case, in part because Respondent’s level of intoxication was more than twice the legal limit in Colorado. Furthermore, Respondent’s crime resulted in the death of another. The public’s outcry against those who drive while under the influence of alcohol or any other substance is well recognized and accepted. Most important, any sanction less than a suspension would unduly depreciate the seriousness of Respondent’s crime in the eyes of the public and the profession.

VI. 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 establish a serious breach of a duty to maintain personal integrity, a matter that directly concerns public safety. Respondent’s knowing state of mind and the substantial injury, despite the numerous factors in mitigation, call for a suspension.

The purpose of the attorney regulation system is not to punish lawyers; instead it is to protect the public. Whenever possible, however, the attorney regulation system also recognizes that some lawyers may be rehabilitated, even after suspension based on a breach of personal integrity as established here. Respondent was sentenced to eight years imprisonment and five years of mandatory parole in the criminal court; under these circumstances rehabilitation will be difficult. At the end of his suspension Respondent may petition for reinstatement of his license to practice law.

In the reinstatement process, Respondent may demonstrate that he is remorseful and has taken positive steps toward rehabilitation, as he demonstrated in these proceedings. If he can demonstrate by clear and convincing evidence that he is again fit to practice law and has addressed and resolved any physical, emotional, or alcohol abuse issues that brought him to this Court, he may be reinstated. Reinstatement, however, is not automatic.

Ultimately, the hearing board that hears Respondent’s petition for reinstatement must determine not only whether he is rehabilitated but more important, whether the public will be protected if he is reinstated to the practice of law. Protection of the public is of paramount concern in attorney regulation matters, including petitions for reinstatement.

VII. ORDER

The Hearing Board therefore ORDERS:

1. MICHAEL T. MIRANDA, Attorney Registration No. 28946, 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. MICHAEL T. MIRANDA 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. Dr. Verdeal is a forensic toxicologist.

2. Marilyn Mansfield did not testify, but did provide a victim statement.

© 2007 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2007.


Back