Vol. 30, No. 9
From the Courts
Colorado Disciplinary Cases
Colorado Supreme Court
Presiding Disciplinary Judge
The Colorado Supreme Court has adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge, pursuant to C.R.C.P. 251.16, and a new intermediate appellate entity known as the Appellate Discipline Commission, pursuant to C.R.C.P. 251.24. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The Presiding Disciplinary Judge presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the Presiding Disciplinary Judge. See C.R.C.P. 251.18(d).
Beginning with the September 1999 issue, The Colorado Lawyer will publish the summaries and full-text opinions of the Presiding Disciplinary Judge, Roger L. Keithley, and a two-member hearing board, whose members are drawn from a pool appointed by the Supreme Court, and the opinions of the Appellate Discipline Commission.
These Opinions may be appealed in accordance with C.R.C.P. 251.26 and C.R.C.P. 251.27.
The full-text opinions, along with their summaries, are available on the CBA homepage at http://www.cobar.org/tcl/index.htm. See page 112 for details. They are also available on Lexis-Nexis under www.lexis.com/research. The summaries and opinions may then be located by clicking on States Legal U.S./Colorado/Cases and Court Rules/By Court/Colorado Supreme Court Disciplinary Opinions.
Case Number: 00PDJ074
THE PEOPLE OF THE STATE OF COLORADO
JERRY E. CARDWELL.
July 11, 2001
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
OPINION AND ORDER IMPOSING SANCTIONS
Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Robert A. Millman and Sheila K. Hyatt, both members of the bar.
SANCTION IMPOSED: ATTORNEY SUSPENDED FOR THREE YEARS; EIGHTEEN MONTHS STAYED.
This matter was originally heard by a hearing panel pursuant to prior C.R.C.P. 241.14 on February 26, 1998.1 By Order dated October 11, 2000, the Supreme Court, after reviewing the hearing board’s report,2 ordered a new hearing before the Presiding Disciplinary Judge ("PDJ") and Hearing Board members.
A trial was held on April 16, 2001, before the PDJ and two Hearing Board members, Robert A. Millman and Sheila K. Hyatt, both members of the bar. Gregory G. Sapakoff, Assistant Regulation Counsel represented the People of the State of Colorado (the "People"). Gary M. Jackson appeared on behalf of Respondent, Jerry E. Cardwell, ("Cardwell") who was also present.
The People’s exhibits 1 through 5 and Cardwell’s exhibits A, B, C and D were offered and admitted into evidence. The PDJ and Hearing Board heard testimony from the People’s witnesses James McHenry, Judge Ethan D. Feldman, and Jerry E. Cardwell. The PDJ and Hearing Board also heard testimony from respondent’s witnesses Gary Gutterman, M.D., Robert B. Hunter, Curtis R. Henry, Marshall Fogel, David Walbridge, John Wilson, Marie Cardwell, Julie Hamel, and Jerry E. Cardwell, who testified on his own behalf. The PDJ and Hearing Board considered argument of counsel, the testimony of the witnesses and the exhibits admitted, the complainant’s Brief Regarding Issue Preclusion and respondent’s Post Trial Brief on Res Judicata and Collateral Estoppel filed May 11, 2001,3 and made the following findings of fact which were established by clear and convincing evidence.
I. FINDINGS OF FACT
Cardwell has taken and subscribed the oath of admission, was admitted to the bar of this court on May 25, 1983, and is registered upon the official records of the court as attorney registration number 12743. Cardwell is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
In late 1995, James McHenry ("McHenry") retained Cardwell to represent him on charges of driving under the influence of alcohol and illegal use of a weapon in Jefferson County Court, Case No. 95M3674 (the "Jefferson County case") arising from his arrest on September 29, 1995. McHenry later retained Cardwell to represent him on charges of driving under the influence of alcohol in Arapahoe County Court Case No. 95T105557 (the "Arapahoe County case") arising from his arrest on November 9, 1995. Cardwell entered his appearance and represented McHenry in both matters. Cardwell knew McHenry had been arrested in Arapahoe County for an alcohol–related driving offense before McHenry entered a plea in the Jefferson County case.
On February 5, 1996, with Cardwell present and upon Cardwell’s advice, McHenry entered a guilty plea to a reduced charge of driving while ability impaired by alcohol — first offense — ("DWAI") in the Jefferson County case. He received a deferred judgment on a weapons charge for possession of a loaded firearm. That charge was later dismissed after McHenry successfully completed probation. Pursuant to his guilty plea on the DWAI in Jefferson County, McHenry received probation and was sent for an alcohol evaluation. Under the order of the Jefferson County Court, McHenry’s requirement for alcohol education and therapy was to be determined by the court after the alcohol evaluation was performed. McHenry understood that he had entered a plea of guilty to the DWAI charge, and had received a deferred judgment on the weapons charge. McHenry commenced level two alcohol classes.
Thereafter, Cardwell negotiated a plea agreement for McHenry with the Arapahoe County District Attorney. Cardwell did not, however, inform the Arapahoe County district attorney’s office of the Jefferson County case. Cardwell and McHenry both signed a motion to settle the Arapahoe County charges by plea agreement, stating that McHenry had "no prior or pending alcohol-related driving offenses in this or any other state." Cardwell had previously advised McHenry of the mandatory minimum five day jail sentence that would be imposed for a conviction on his second drinking and driving offense. Cardwell knew that McHenry had fears of going to jail. McHenry read the plea agreement and was concerned about signing it. He discussed it with Cardwell, who said he was "trying to keep McHenry out of jail." Cardwell also said the outcome of the Jefferson County case could be affected by the Arapahoe County plea. Cardwell told McHenry that they would inform the judge this was McHenry’s first alcohol-related offense.
On May 6, 1996, three months after the Jefferson County conviction, McHenry and Cardwell appeared before Judge Ethan Feldman in the Arapahoe County case to enter a plea on a plea agreement negotiated by Cardwell on McHenry’s behalf. McHenry entered a plea of guilty to a reduced charge of DWAI – first offense — with respect to the Arapahoe County charges. At the time Cardwell and McHenry signed the motion to settle the Arapahoe County case by plea agreement, both Cardwell and McHenry knew that McHenry had been charged and had entered a guilty plea to the charges in the Jefferson County case and, therefore, had a prior or pending alcohol-related offense.
On May 6, 1996, the day the plea was entered, Cardwell, under questioning by Arapahoe County Judge Feldman, orally represented that McHenry had no prior alcohol-related driving offenses. Cardwell stood by as McHenry confirmed to the judge that this was his first alcohol offense. The following exchange took place between the court, Cardwell and McHenry in the Arapahoe County case:
COURT: All right, and McHenry is going to be entering a plea of guilty today to a charge of driving while impaired, first offense, is that correct?
MR. CARDWELL: That is correct, your honor.
COURT: Have you ever had an alcohol driving offense before?
MR. CARDWELL: No sir.
COURT: Okay, is that your representation, McHenry?
MR. McHENRY: Yes sir.
COURT: Okay, never ever, at any time, any place?
MR. McHENRY: No.
Unaware of McHenry’s prior offense in Jefferson County, and acting on the representations of Cardwell and McHenry, Judge Feldman sentenced McHenry as a first time alcohol offender. The conditions of the Arapahoe County plea agreement required that McHenry comply with the education recommendations of the Probation Department’s alcohol evaluator.
On or about May 17, 1996, McHenry reported to Danielle Velasquez, Probation Officer and Alcohol/Drug Evaluation specialist for Arapahoe County. McHenry informed Ms. Velasquez about the prior Jefferson County conviction and stated that Cardwell recommended that he plead guilty to a first offense DWAI in Arapahoe County despite the earlier Jefferson County conviction. McHenry also informed Ms. Velasquez that Cardwell instructed him not to inform the probation department about the prior Jefferson County case. McHenry was concerned about new charges being brought against him for lying in court. Ms. Velasquez forwarded her report to Judge Feldman detailing McHenry’s statements.
On May 31, 1996, Cardwell, after having been told by McHenry that he wanted to proceed without counsel, moved to withdraw from the Arapahoe County case. Judge Feldman denied the motion to withdraw and held a hearing on June 13, 1996, at which time he confronted Cardwell about his prior representations to the court. Cardwell stated that he mistakenly believed the case in Jefferson County was not final at the time McHenry entered his plea in Arapahoe County. The court had to correct the improper plea and sentence entered on the basis of Cardwell’s and McHenry’s misrepresentations.
The Arapahoe County District Attorney subsequently charged Cardwell with several violations of criminal law. Cardwell pleaded guilty to perjury in the second degree, a class one misdemeanor, in violation of § 18-8-503, 8B C.R.S. (1986), and guilty on a deferred judgment and sentence, to attempting to influence a public servant, a class four felony, in violation of § 18-8-306, 8B C.R.S. (1986). Cardwell was required to pay $4,000 in fines, attend ethics courses and serve two hundred hours of community service. He was subject to four year’s probation and was fully cooperative with his case manager. Cardwell has satisfied all conditions of his probation.
II. CONCLUSIONS OF LAW
The People’s Second Amended Complaint charged Cardwell with the following violations of The Colorado Rules of Professional Conduct ("Colo. RPC"): Colo. RPC 1.1 (claim one)[failure to provide competent representation to a client]; Colo. RPC 1.2(d) (claim two)[assisting a client in engaging in criminal or fraudulent conduct]; Colo. RPC 3.3(a)(1) (claim three)[knowingly making a false statement of material fact to a tribunal]; Colo. RPC 3.3(a)(2) (claim four) [knowingly failing to disclose a material fact when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client]; Colo. RPC 4.1(b) (claim five)[failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client]; Colo. RPC 8.4(c) (claim six)[conduct involving dishonesty, fraud, deceit or misrepresentation]; Colo. RPC 8.4(d) (claim seven)[conduct prejudicial to the administration of justice]; Colo. RPC 8.4(b)[commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness and fitness to practice law] constituting grounds for discipline as provided in C.R.C.P. 251.5(b)(any act or omission which violates the criminal laws of this state or any other state) (claim eight).
The People moved for Judgment on the Pleadings pursuant to C.R.C.P. 12(c) on claims one, seven and eight, alleging violations of Colo. RPC 1.1[failure to provide competent representation to a client]), Colo. RPC 8.4(d)[engaging in conduct prejudicial to the administration of justice]) and Colo. RPC 8.4(b)[commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness and fitness to practice law] and C.R.C.P. 251.5(b)(any act or omission which violates the criminal laws of this state or any other state) respectively. Cardwell confessed the motion. The PDJ entered Judgment on the Pleadings as to those claims on February 5, 2001.
The remaining claims addressed at trial in the Second Amended Complaint were claim two (Colo. RPC 1.2(d)[assisting a client in engaging in criminal or fraudulent conduct]); claim three (Colo. RPC 3.3(a)(1)[knowingly making a false statement of material fact to a tribunal]); claim four (Colo. RPC 3.3(a)(2)[knowingly failing to disclose a material fact when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client]); claim five (Colo. RPC 4.1(b))[failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client]), and claim six (Colo. RPC 8.4(c)[conduct involving dishonesty, fraud, deceit or misrepresentation]).
Colo. RPC 1.2(d) provides:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Through his conduct in the proceedings in Arapahoe County Court as described above, McHenry knowingly made misrepresentations to the court. Cardwell knew that McHenry’s statements, both orally and in writing, were fraudulent and that the court was acting upon McHenry’s fraudulent statements. The Jefferson County case resulted in a final conviction. Cardwell assisted McHenry in his fraudulent course of conduct by advising McHenry to enter into a plea in Arapahoe County as a first time offender and by making his own representations to the court supporting McHenry’s misrepresentations that he had no other pending or prior alcohol-related offenses. Through his conduct as described above, Cardwell violated Colo. RPC 1.2(d) (a lawyer shall not counsel a client to engage in, or assist a client, in conduct the lawyer knows is criminal or fraudulent).
Claim three alleges a violation of Colo. RPC 3.3(a)(1) which provides that "[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal." When Cardwell signed the motion to settle the Arapahoe County case by plea agreement stating that McHenry had "no prior or pending alcohol related driving offenses in this or any other state," Cardwell knew the statement was false. Cardwell’s submission of the motion containing the false statement concerning prior or pending alcohol-related driving offenses was made to the tribunal and was material to the determination of an appropriate sentence in the Arapahoe County proceedings.
By orally representing to Judge Feldman that McHenry had no prior alcohol-related driving offenses, Cardwell made another false statement to the tribunal. Cardwell’s false statement in this regard was also material in that it was relied upon by the court in determining an appropriate sentence. Cardwell knowingly made false statements of material fact to a tribunal in violation of Colo. RPC 3.3(a)(1).
Claim four alleges a violation of Colo. RPC 3.3(a)(2), which provides that "[a] lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." Cardwell knew that McHenry made misrepresentations in the Arapahoe County case, that the misrepresentations were material, and that those representations were relied upon by Judge Feldman in accepting the plea and imposing an appropriate sentence. Cardwell knowingly failed to disclose to the Arapahoe County Court the true facts concerning McHenry’s previous guilty plea in the Jefferson County case. Through his conduct as described above, Cardwell violated Colo. RPC 3.3(a)(2).
Claim five alleges a violation of Colo. RPC 4.1(b), which provides "[i]n the course of representing a client a lawyer shall not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6." In the course of representing McHenry, Cardwell knew that the Arapahoe County Deputy District Attorney was acting in reliance upon representations made by McHenry in entering into a plea agreement in the Arapahoe County case. Cardwell knew that misrepresentations were made to the Arapahoe County District Attorney’s Office concerning McHenry’s prior alcohol-related offenses.4 Disclosure of the true facts concerning McHenry’s plea to charges in Jefferson County was necessary to avoid assisting McHenry in a criminal or fraudulent act. Cardwell failed to disclose to the Arapahoe County District Attorney’s Office material facts concerning the Jefferson County proceedings. Through his conduct, Cardwell violated Colo. RPC 4.1(b).
Claim six alleges a violation of Colo. RPC 8.4(c) which provides that "[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Cardwell made written and oral statements in connection with McHenry’s plea in the Arapahoe County matter that he knew were false. Cardwell’s intent was to keep both the court and the prosecutors ignorant of the Jefferson County offense and conviction in order to succeed in having McHenry sentenced as a first time offender in both cases. Cardwell knew McHenry could not be sentenced as a first time offender in Arapahoe County if he disclosed what he knew about the Jefferson County case, and failed to disclose this information to the Arapahoe County Court. Cardwell’s conduct constitutes dishonesty or deceit in violation of Colo. RPC 8.4(c).
Cardwell argued in this proceeding that his actions were negligent rather than knowing arising from his lack of experience in criminal law,5 his failure to research the meaning of "final conviction," and his zeal to help McHenry. He also alleged that he advised McHenry to disclose the prior Jefferson County matter to the probation officer in the Arapahoe County matter. At the conclusion of trial, the PDJ and Hearing Board questioned counsel whether the panel was precluded from considering Cardwell’s argument that his false representations in the Arapahoe County case were made negligently and were not knowing or intentional. Both complainant and respondent submitted additional written argument on this issue. For the reasons set forth below, the PDJ and Hearing Board conclude that Cardwell is precluded from arguing in this disciplinary matter that his misconduct was negligent or reckless.
Cardwell pleaded guilty to charges of attempting to improperly influence a public servant in violation of § 18-8-306, 8B C.R.S. (1986) and perjury in the second degree, in violation of § 18-8-503, 8B, C.R.S. (1986) as the result of his conduct in the Arapahoe County McHenry case.
Colorado Revised Statute § 18-8-306 provides:
Any person who attempts to influence any public servant by means of deceit . . . with the intent thereby to alter or affect the public servant’s decision, vote, opinion or action concerning any matter which is to be considered or performed by him or the agency or body of which he is a member, commits a class four felony.
See People v. Janousek, 871 P.2d 1189, 1196 (Colo. 1994)(citing Black’s Law Dictionary 405 (5th ed. 1979) which defines deceit as "[a] fraudulent and deceptive misrepresentation . . . used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon," and Webster’s Third New International Dictionary 584 (5th ed. 1986), which defines deceit defined as "any trick, collusion, contrivance, false representation, or underhand practice used to defraud another.").
Colorado Revised Statute § 18-8-503 provides in part:
A person commits perjury in the second degree if, other than an official proceeding, with an intent to mislead, a public servant in the performance of his duty, he makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law. (emphasis added).
Cardwell’s conviction under both of these criminal statutes, of necessity, determined that Cardwell’s conduct was intentional and, therefore, knowing. Notwithstanding those determinations in the criminal case, Cardwell argues in this disciplinary case that his conduct was negligent.
C.R.C.P. 251.20(a) provides that proof that an attorney has been convicted of a crime conclusively establishes the existence of the conviction for purposes of disciplinary proceedings and "shall be conclusive proof of the commission of that crime by the respondent." C.R.C.P. 251.20(a) would be rendered meaningless if Cardwell were permitted to relitigate the issues that have already been conclusively established in the prior criminal proceeding. Cardwell’s entry of guilty pleas in the criminal cases were an admission by him that each element of the crimes to which he pled were legally established. The rules of procedure governing disciplinary proceedings do not allow an attorney to challenge the elements of the crime to which the plea was entered in defending against the disciplinary charges.
Moreover, Cardwell confessed judgment on the pleadings with respect to a violation of Colo. RPC 8.4(b)(it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects) and C.R.C.P. 251.5(b)([a]ny act or omission which violates the criminal laws of this state) based upon Cardwell’s conviction under these two criminal statutes. Further, Cardwell admitted, in response to the allegations in paragraph 67 of the Second Amended Complaint that "the respondent’s conviction on the above-referenced criminal charges is conclusive proof of his commission of the crimes, including all of the elements of those crimes." (emphasis added). That admission, separate and apart from the mandate of C.R.C.P. 251.20(a), established that Cardwell’s conduct was both intentional and knowing for purposes of these disciplinary charges, not negligent.
III. SANCTIONS/IMPOSITION OF DISCIPLINE
The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.
ABA Standard 6.11 provides:
Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
The Commentary to 6.11 provides: "[t]he lawyers who engage in these practices violate the most fundamental duty of an officer of the court."
ABA Standard 5.11 states:
Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion . . .
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
The Commentary to ABA Standards 5.11 states "[a] lawyer who engages in any of the illegal acts listed above has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity." Pursuant to C.R.C.P. 251.20(e), "serious crime" includes any felony and any lesser crime a necessary element of which, as determined by its statutory or common law definition, involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful extortion, misappropriation, or theft; or an attempt or conspiracy to commit such crime; or solicitation of another to commit such crime. Both crimes to which Cardwell pled involve factors identified by ABA Standard 5.11, as warranting disbarment.
Disbarment is the presumptive sanction under both the ABA Standards and Colorado case law for commission of a serious crime. In re Elinoff, 22 P.3d 60, 64-65 (Colo. 2001)(attorney suspended for three years with one year stayed and subject to conditions of probation for engaging in conduct constituting the offense of bribery, a class three felony); People v. Lopez, 980 P.2d 983, 984(Colo. 1999)(disbarring attorney subject to conditional admission for making misrepresentations of material fact on liquor license application, misrepresenting material information to liquor licensing authority, and to prospective investors); People v. Brown, 726 P.2d 638, 642 (Colo. 1986)(disbarring District Attorney for the First Judicial District for engaging in dishonesty and conduct adversely reflecting upon his fitness to practice law by requesting that an employee from the Department of Motor Vehicles remove some points from the attorney’s driving record for insurance reasons).
Similarly, Colorado law provides that, in the absence of substantial mitigating factors, disbarment is the presumed sanction when an attorney knowingly makes a false statement of material fact to a court. Lopez, 980 P.2d at 984(disbarring attorney subject to conditional admission for making misrepresentations of material fact to liquor licensing authority); People v. Kolbjornsen, No. 99PDJ004, slip op. at 7 (Colo. PDJ October 28, 1999), 29 Colo. Law. 114, 115 (May, 2000)(attorney disbarred for knowingly misleading the bankruptcy court by giving false testimony under oath). See also People v. Nienaber, 80 Ohio St. 3d 534, 687 N.E. 2d 678, 681 (Ohio 1997)(attorney suspended indefinitely for affirmatively representing to two courts that his client was a first time DUI offender, knowing this representation to be false). An attorney’s knowing false statement of material fact or law to a tribunal, and failure to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client goes to the very heart of the integrity of the legal system. As this court stated in People v. Kolbjornsen:
An attorney’s misrepresentation of material facts to a court with the aim of benefiting himself or others to the detriment of his adverse party cannot be tolerated under an adversary system which depends upon the honesty of its officers to render fair and just decisions. Judicial officers, members of the profession and the public at large must be able to rely upon the truthfulness of an attorney’s statements to the court. Confidence in the truth-seeking process engendered in our system of justice cannot exist absent such reliance.
Kolbjornsen, No. 99PDJ004, slip op. at 6, 29 Colo. Law. at 115.
The PDJ and Hearing Board considered factors in aggravation and mitigation respectively pursuant to ABA Standards 9.22 and 9.32.
In mitigation, Cardwell had no prior disciplinary record, see id. at 9.32(a); he made a timely good faith effort to rectify consequences of misconduct, see id. at 9.32(d); Cardwell has been cooperative toward these proceedings upon rehearing and the prior proceedings, see id. at 9.32(e); Cardwell was inexperienced in the practice of criminal law at the time of the actions giving rise to this proceeding, see id. at 9.32(f); Cardwell enjoys an excellent character and reputation in the community; see id. at 9.32(g); Cardwell has incurred the imposition of criminal charges and penalties associated therewith for the same misconduct, including two hundred hours of community service, completing courses in ethics, the payment of $4,000 in fines and costs, was subject to four year’s probation during which time he was fully cooperative with his case manager, see id. at 9.32(k), and he has expressed remorse for his conduct, see id. at 9.32(l).
ABA Standard 9.32(i) also provides that the PDJ and Hearing Board may consider delay in disciplinary proceedings as a mitigating factor. Cardwell argued that he has suffered considerable consternation as a result of waiting for resolution to the within disciplinary proceeding for approximately a four year period of time, due to the necessity of a rehearing. During the pendency of these disciplinary proceedings, Cardwell has continued to practice law without further violation of The Colorado Rules of Professional Conduct. In aggravation, Cardwell engaged in a dishonest motive, see id. at 9.22(b) and he committed multiple offenses, see id. at 9.22(d).
McHenry did not suffer significant harm as a result of Cardwell’s misconduct. However, Cardwell’s conduct resulted in significant harm to the public and the legal system: Cardwell’s conduct lessens the trust invested in attorneys by the public. Of particular significance in reaching an appropriate sanction in this case is the mitigating factor of other penalties. The PDJ and Hearing Board conclude that the mitigating factors distinguish this case from cases where disbarment was imposed for similar conduct. See People v. Rudman, 948 P.2d 1022, 1026 (Colo. 1997) (in light of mitigating circumstances, suspension for three years, rather than disbarment is appropriate for lawyer who engaged in intentional pattern of lies); People v Kolbjornsen, 917 P.2d 277, 279(Colo. 1996)(suspending Kolbjornsen for one year and one day for testifying falsely to a tribunal under oath).
Based upon the mitigating factors the PDJ and Hearing Board conclude that disbarment is not warranted in this matter. However, a significant period of suspension is required. Accordingly, the PDJ and Hearing Board find that a three year period of suspension is warranted. However, because Cardwell has not engaged in further misconduct during the five years this proceeding has been pending, eighteen months of the period of suspension will be stayed.6
CONCURRING OPINION by Sheila Hyatt, Hearing Board Member:
I concur in the findings of fact and conclusions of law. I write separately to express some disagreement with the sanction imposed in this case. There is little doubt that the respondent’s conduct merits serious sanction. An attorney’s knowing misrepresentation of material fact to a court cannot be tolerated. However, in this case the trial judge, in addition to notifying the Grievance Committee, also notified prosecutors, which resulted in the filing of criminal charges against the respondent. The respondent was arrested, booked, and charged with six felonies and 2 misdemeanors. He eventually pleaded guilty to perjury in the second degree, a Class I misdemeanor, and guilty to a deferred judgment and sentence on attempting to influence a public servant, a Class IV felony. He paid $4,000 in fines, performed 200 hours of community service, attended ethics courses and satisfied all the conditions of 4 years of felony probation. He and his family endured the impact of that experience along with these proceedings, which have been in progress for nearly 6 years. He incurred thousands of dollars of attorney fees in the criminal matter, as well as the fees occasioned by the hearing, remand and rehearing in this case.
Although the Supreme Court initially immediately suspended respondent from the practice of law as the result of his guilty pleas, it withdrew its Order of Immediate Suspension shortly after its issuance and allowed respondent to continue practicing law. (CRCP Rule 251.8). He has been practicing law without any further complaints since then. Apart from the incident giving rise to this proceeding, he had no prior complaints, he has enjoyed a good professional reputation, and he appears to pose no threat of harm to the public. He has acknowledged the seriousness of the offense and has shown remorse, cooperating fully with this tribunal and during the criminal process. He has sought counseling and engaged in appropriate self-examination to insure against any recurrence. In light of these strong mitigating factors, the Regulation Counsel recommended suspension for a year and a day. By contrast, the opinion of the PDJ and one Hearing Board member imposes a three year suspension, with 18 months suspended. I am not inclined to impose a sanction greater than that sought by the Regulation Counsel. In fact, I see no need for the respondent to have to petition for reinstatement, which would be required if the suspension were for a year and a day, but not for a suspension of one year. Under Rule 251.29, a petitioner for reinstatement would have to show by clear and convincing evidence that he has been rehabilitated and is fit to practice law. This respondent has been proving that for the last 4 years, at least. In my opinion, a sanction suspending him for one year properly recognizes the seriousness of the offense, without adding the further delays and financial burdens attendant to a petition for reinstatement.
It is therefore ORDERED:
JERRY E. CARDWELL, registration number 12743, is suspended from the practice of law for a period of three years, with eighteen months stayed.
Cardwell is ORDERED to pay the costs of these proceedings; complainant shall submit a Statement of Costs within fifteen (15) days of the date of this Order, and respondent may file a response within five (5) days thereafter.
1. The original disciplinary action was denominated Case No. GC96A158.
2. The action before the Supreme Court was denominated Case No. 98SA501.
3. The PDJ closed the record on the trial held April 16, 2001 on May 11, 2001, upon submission of post-trial briefs on a legal issue which arose in the course of the trial.
4. In disciplinary cases, the failure to disclose a material fact may constitute a misrepresentation. See People v. Egbune, No. GC98A13 (Colo. PDJ May 12, 1999), 28 Colo. Law 132, 133 (September 1999) (holding that although silence alone does not normally constitute deceit or misrepresentation, under certain circumstances an affirmative obligation arises to respond to inquiries and the failure to do so and thereafter stand mute rises to the level of deceit and misrepresentation); People v. Campbell, 932 P.2d 312, 313 (Colo. 1997)(respondent admitting to misconduct that constituted a violation of Colo. RPC 8.4 (c) by failing to advise a treating physician that the client’s case had settled where the attorney owed payment for the client’s treatment); People v. Robertson, 908 P.2d 96, 99 (Colo. 1995) (respondent stipulating to fact that he engaged in misrepresentation by failing to inform a provider of the amount of settlement and pay him the agreed upon amount out of the proceeds).
5. Notwithstanding his contention that he was inexperienced in handling alcohol-related traffic cases, Cardwell admitted that he had handled more than a dozen such cases at the time of these events.
6. Because Cardwell will be required to undergo a reinstatement proceeding, the reinstatement board will decide whether conditions should be imposed upon reinstatement and for what period of time based upon evidence available at the time of the reinstatement proceeding. Due to the seriousness of Cardwell’s misconduct, conditions upon reinstatement should be given serious consideration.
Case Number: 00PDJ088
KEITH DWIGHT JOHNSON
THE PEOPLE OF THE STATE OF COLORADO
July 16, 2001
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
OPINION AND ORDER RE: REINSTATEMENT
Opinion by the Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members Marilyn J. David and Gudrun J. Rice.
This reinstatement hearing was heard on March 19, 2001, pursuant to C.R.C.P. 251.29(b) and (c) before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Marilyn J. David and Gudrun J. Rice, both members of the bar. James C. Coyle, Assistant Regulation Counsel, represented respondent, the People of the State of Colorado (the "People"). Leonard M. Chesler represented petitioner Keith Dwight Johnson ("Johnson"). The following witnesses testified on behalf of Johnson: Virginia Butler, John S. Tatum, Richard E. McGinn, and Suzanne M. Rogers. Johnson testified on his own behalf. Johnson’s exhibits 1 through 16 were admitted into evidence by stipulation. At the conclusion of the one-day reinstatement hearing, Johnson requested that the record remain open until May 18, 2001 for the submission of an Independent Medical Evaluation ("IME") and an assessment by the treatment coordinator of the Office of Attorney Regulation Counsel. The People did not object and the PDJ granted Johnson’s request. On May 18, 2001, Johnson submitted the report of Michael H. Gendel, M.D. and a confidential evaluation dated March 21, 2001 by Cathy A. Fox, M.A., CACII, Treatment Coordinator of the Office of Attorney Regulation Counsel. On June 4, 2001, the People filed a Response to Submission of Independent Medical Examination and advised the PDJ and Hearing Board that the People supported Johnson’s request for reinstatement to the practice of law and requested that Dr. Gendel’s recommendations be imposed as conditions of reinstatement.
The PDJ and Hearing Board considered the testimony and exhibits admitted, assessed the credibility of the witnesses, and made the following findings of fact which were established by clear and convincing evidence.
I. FINDINGS OF FACT
Johnson has taken the oath of admission and was admitted to the bar of this court on December 12, 1978, and is registered upon the official records of this court, attorney registration no. 09305. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
Johnson was suspended from the practice of law on October 15, 1997 for a period of one year and one day. See People v. Johnson, 944 P.2d 524 (Colo. 1997). Johnson’s suspension arose from the stipulated facts set forth in the Stipulation, Agreement and Conditional Admission of Misconduct (the "Stipulation") in which Johnson admitted that he neglected client matters, failed to segregate and deposit client funds in a trust account, failed to keep client account records, failed to account for client funds upon request and failed to surrender client property upon termination of representation. The Stipulation also admitted that Johnson engaged in a series of insufficient fund transactions in both his personal and client fund accounts, engaged in conduct adversely reflecting on his fitness to practice law, and engaged in conduct prejudicial to the administration of justice by failing to appear for his deposition, failing to respond to written discovery and failing to pay court-assessed attorney fees in a malpractice action.
The original order of suspension specifically provided that prior to reinstatement, Johnson must establish that there are no medical, psychological, or emotional conditions that impair his ability to fulfill his responsibilities as a lawyer. The order also required that Johnson repay one of his former clients, Douglas Osmon, $240 plus interest prior to reinstatement and, if reinstated, comply with certain conditions.
At the commencement of the reinstatement hearing, the parties stipulated that Johnson has not practiced law since the date of his suspension, has paid all costs of the prior disciplinary proceeding, has paid all costs in the underlying malpractice case, has given notice to his clients of his suspension in accordance with C.R.C.P. 241.21.1 and has given notice to opposing parties in litigation and filed the requisite affidavit with the Supreme Court. Johnson was unable to locate his prior client Douglas Osmon during the period of his suspension and paid the amount due to that client into a trust account held by his attorney, Leonard Chesler, for disbursement to Douglas Osmon once located. Johnson made reasonable efforts to locate Douglas Osmon prior to the reinstatement hearing.2
The misconduct which led to Johnson’s suspension in 1997, in large part, was the result of his abuse of alcohol. Since his suspension, Johnson has received medical and psychiatric treatment for his addiction, has joined Alcoholics Anonymous ("AA"), has faithfully attended their treatment programs and now has been alcohol free for a substantial period of time. Johnson attended AA meetings daily for eighteen months, three times per week during 2000 and presently has daily AA contact. Johnson is sincere in his desire to remain alcohol free.
Johnson has audited courses at the University of New Mexico Law School and listened to Continuing Legal Education courses on audio tape involving family law, beginning a law office practice and managing a sole practice, and demonstrated an understanding of the courses’ contents. The courses taken by Johnson were, in part, focused upon the control of client funds, communication with clients and issues relating to neglect of client matters. Johnson currently understands the need for attention to client matters, the necessity of proper handling of client funds and recognizes that his prior misconduct was improper and detrimental both to his clients and the profession.
The IME report of Dr. Gendel and the Confidential Evaluation of Cathy A. Fox both support Johnson’s self- assessment that he presently suffers from no medical, psychiatric or emotional condition that would impair his ability to fulfill his responsibilities as a lawyer. Dr. Gendel concluded that Johnson’s alcohol dependence is in sustained remission and Johnson acknowledges responsibility for his prior misconduct. Ms. Fox also reports that Johnson is in sustained remission from his alcohol dependence. Neither Dr. Gendel nor Ms. Fox identified any present medical, psychiatric or emotional problems which would prevent Johnson from fulfilling his responsibilities as a lawyer. Both Dr. Gendel and Ms. Fox, however, recommended that Johnson be required to submit to random drug screening for a period of one year following reinstatement to confirm that he remains alcohol free.
The witnesses who testified on Johnson’s behalf all confirmed that he is trustworthy, has engaged in a range of community and support activities during the last three years, displays the character necessary of attorneys and is deserving of reinstatement. Two of the attorneys who testified on his behalf volunteered their efforts to act as Johnson’s monitor if required by the reinstatement board.3 The fact that two of the testifying attorneys volunteered to act as Johnson’s monitor strongly attests to their belief in Johnson’s rehabilitation from his prior alcohol abuse.
II. CONCLUSIONS OF LAW
Initiation of the reinstatement process begins with the submission of a Verified Petition for Reinstatement. C.R.C.P. 251.29(c) requires that the attorney’s Petition for Reinstatement set forth, in part:
(3) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;4
(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;
(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.
The attorney seeking reinstatement must establish the three elements set forth in the rule by clear and convincing evidence. See C.R.C.P. 251.29(d). A petitioning attorney’s failure to satisfy the standard of proof has dire consequences: the attorney who is unable to meet the requisite burden of proof may not reapply for reinstatement for a period of two years following the denial of a previous petition. See C.R.C.P. 251.29(g).
C.R.C.P. 251.29(b) sets forth the test which must be met during a reinstatement proceeding in order to authorize reinstatement to the practice of law. It provides, in relevant part:
An attorney who has been suspended . . . must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.5
Thus, an attorney who has been suspended from the practice of law must bear the burden of proving that he or she is: (1) rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (3) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized. See Goff v. People, No. 99PDJ023 (Colo. PDJ August 4, 2000), 29 Colo. Law 126, 129 (October 2000), 2000 Colo. Discipl. LEXIS 7.
People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988) interprets the language of the prior reinstatement rule, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. The holding in Klein requires:
[A]ny 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.
Johnson has demonstrated by clear and convincing evidence that he is rehabilitated and has complied with all disciplinary orders. Johnson has taken genuine and meaningful efforts to address and correct the substance abuse problem that led to his original misconduct and that substance abuse problem is currently in sustained remission. To the extent rehabilitation from substance abuse can be effected, Johnson has succeeded in doing so.
The Stipulation stating that Johnson has complied with all prior disciplinary orders establishes that portion of the three-part reinstatement test. The only remaining portion of the reinstatement board’s determination is whether Johnson is fit to practice law.
Johnson’s self report, as well as the evidence submitted by the mental health professionals, demonstrate that Johnson currently suffers from no medical, psychiatric or emotional difficulty which would prevent him from fulfilling his duties and responsibilities as an attorney. He has undertaken courses of study to remain current in the law and has focused a portion of those studies upon the nature of the misconduct which resulted in his prior suspension. Assessing fitness to practice law requires the reinstatement board to examine all prior discipline, including discipline which predates the discipline for which the reinstatement hearing is required.
In 1989 Johnson received a Letter of Admonition ("LOA") involving his failure to adequately prepare for a hearing. That misconduct — like the misconduct for which Johnson was eventually suspended — occurred during the period of time when he was abusing alcohol. Because the LOA misconduct is of the same nature and occurred during the same time period as the conduct for which he was suspended, the reinstatement board’s analysis of his rehabilitation is applicable to that prior misconduct.
The evidence admitted in this reinstatement hearing establishes by clear and convincing evidence that Johnson is rehabilitated, has complied with all disciplinary orders and is fit to practice law. Pursuant to C.R.C.P. 251.29 Johnson is eligible to be reinstated to the practice of law. Although conditions should not ordinarily be imposed upon an attorney’s reinstatement to the practice of law, because the Stipulation, Agreement and Conditional Admission of Misconduct was approved by the Supreme Court before the 1999 changes to the attorney regulation system were adopted, the reinstatement board incorporates the conditions outlined in the suspension order as part of Johnson’s reinstatement order.
In addition, based upon the ever-present possibility that Johnson’s alcohol abuse might return, the reinstatement board also imposes two additional conditions upon Johnson’s reinstatement: (1) Johnson shall abstain from all alcohol and non-prescription drug use and (2) Johnson shall submit to random drug testing for a period of twelve months. During the twelve months immediately following reinstatement, Johnson will submit to not more than twelve random drug tests at the discretion of the Office of Attorney Regulation Counsel. In the event any one or more of those tests reflect the use of alcohol or illegal drug use, this reinstatement order is subject to revocation upon the motion of the People and supported by a preponderance of the evidence.
It is therefore, ORDERED:
1. Keith Dwight Johnson is reinstated to the practice of law effective thirty-one days from the date of this order subject to the following conditions:
A. [Johnson shall] submit a plan through which the management of [Johnson’s] clients’ legal matters and his professional progress will be monitored by another lawyer for two years after reinstatement. Any such plan should permit [Johnson] to apply to the [Office of Attorney Regulation Counsel] for termination of monitoring upon [a] showing that it is no longer necessary; and
B. [Johnson] will maintain the following minimum records as to all bank accounts instituted or utilized by him, including specifically a COLTAF trust account, in any fashion whatsoever in the practice of law:
(i) original or duplicate deposit slips and cash receipts book, clearly identifying the date and source of all funds received and the client or matter for which the funds were received;
(ii) original canceled checks, all of which must be numbered consecutively;
(iii) other documentary support for all disbursements and transfers from the account;
(iv) a separate cash receipts and disbursements journal, including columns for receipts, disbursements, transfers and the account balance, and containing at least an identification of the client or matter for which the funds are received, disbursed, or transferred; the date on which all funds were received, disbursed or transferred; the check number for all disbursements; the reason for which all funds were received, disbursed or transferred;
(v) a separate file or ledger with individual entries for each client or matter showing all individual receipts, disbursements, or transfers in any unexpected balance, and containing the identification of the client or the matter for which the funds were received, disbursed or transferred; the date on which all funds were received, disbursed or transferred; the check number for all disbursements; and the reason for which all funds were received, disbursed or transferred; and
(vi) all monthly statements for all accounts.
C. [Johnson] shall also direct any financial institution where he is a signatory on any bank account utilized in the practice of law to notify [the Office of Attorney Regulation Counsel] 600 17th Street, Suite 200-South, Denver, Colorado 80202, in the event any law firm or trust account check is returned due to insufficient funds or uncollected funds, absent bank error. Further, if any such check is returned, [Johnson] shall likewise notify [the Office of Attorney Regulation Counsel].
D. [Johnson] shall file a written report with [the Office of Attorney Regulation Counsel] each year for a period of three years [from the date of this Order] regarding the satisfactory maintenance of the financial aspect of his law practice and demonstrating his compliance with the conditions set forth above. The report shall contain the certificate of a certified public accountant verifying that the procedures set forth above were followed and that an audit demonstrated no irregularities in the handling of the operating and trust accounts. Said audit and report shall be conducted and complied with at [Johnson’s] sole expense.
People v. Johnson, 944 P.2d 524, 528-529 (Colo. 1997).
E. (1) Johnson shall abstain from all alcohol and non-prescription drug use and (2) Johnson shall submit to random drug testing for a period of twelve months. During the twelve months immediately following reinstatement, Johnson will submit to not more than twelve random drug tests at the discretion of the Office of Attorney Regulation Counsel. In the event any one or more of those tests reflect the use of alcohol or illegal drug use, this reinstatement order is subject to revocation upon the motion of the People and supported by a preponderance of the evidence.
2. Johnson shall pay all the costs of the reinstatement proceeding. Respondent shall file a Statement of Costs or Notice that costs have been paid within fifteen (15) days of the date of this Order. Petitioner shall have five (5) days thereafter to file a Response.
KEITH DWIGHT JOHNSON, attorney registration number 09305 is reinstated to the practice of law effective August 16, 2001, thirty-one days from the date of this Order.
1. C.R.C.P. 241.21 was repealed and replaced by C.R.C.P. 251.28 effective January 1, 1999.
2. Mr. Chesler was successful in locating Douglas Osmon before the record closed in this case on May 18, 2001, and Johnson repaid him the $240 plus interest.
3. Johnson’s attorney, Mr. Chesler, also volunteered to act as Johnson’s monitor if necessary.
4. This subsection incorporates the concept that neither the passage of time nor the absence of additional misconduct, standing alone, is sufficient to establish rehabilitation. See In re Sharpe, 499 P.2d 406, 409 (Okla. 1972).
5. Reinstatement proceedings are conducted before a hearing board as required by C.R.C.P. 251.29(d).
Case Number: 00PDJ094
THE PEOPLE OF THE STATE OF COLORADO,
MARK O. TIDWELL
June 25, 2001
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
AMENDED REPORT, DECISION AND IMPOSITION OF SANCTION
Amended Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Deena Raffe, Ph.D , a member of the public, and Jerry W. Raisch, a member of the bar.
SANCTION IMPOSED: ATTORNEY DISBARRED
A sanctions hearing pursuant to C.R.C.P. 251.15(b) was held on May 8, 2001, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Deena Raffe, Ph.D, a member of the public and Jerry W. Raisch, a member of the bar. Gregory G. Sapakoff, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Mark O. Tidwell ("Tidwell"), the respondent, appeared on his own behalf.
The Complaint in this action was filed December 18, 2000. Tidwell did not file an Answer to the Complaint. On February 1, 2001 the People filed a Motion for Default. Tidwell did not respond. On February 22, 2001, the PDJ issued an Order granting default, stating that all factual allegations set forth in the Complaint were deemed admitted and that all violations of The Rules of Professional Conduct ("Colo. RPC") alleged in the Complaint were also deemed established, see e.g., People v. Richards, 748 P.2d 341 (Colo. 1987).
At the sanctions hearing, the People presented no additional testimonial evidence. Tidwell testified on his own behalf. Exhibit 1 was offered by the People and admitted into evidence.
The PDJ and Hearing Board considered the People’s argument, Tidwell’s testimony in mitigation, the facts established by the entry of default, the exhibit admitted, and made the following findings of fact which were established by clear and convincing evidence.
I. FINDINGS OF FACT
Tidwell has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on October 17, 1980 and is registered upon the official records of this court, registration number 10724. Tidwell is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and have therefore been established by clear and convincing evidence. See Complaint attached hereto as attachment 1. The Order entering default also granted default as to all alleged violations of The Rules of Professional Conduct set forth in the individual claims.
II. CONCLUSIONS OF LAW
The Complaint in this disciplinary case asserts nine claims against Tidwell involving three different clients. The first three claims arise from Tidwell’s representation of Frances Merner in post-decree proceedings following a dissolution of marriage. Although Tidwell initially performed the services he agreed to undertake on Merner’s behalf, an additional dispute arose, Tidwell agreed to take specific actions on his client’s behalf and failed to do so. Notwithstanding Merner’s repeated efforts to discuss the progress of the case with Tidwell, he failed to return her phone calls for several months.
In addition, Merner asked Tidwell to represent her in a separate county court civil matter in which she had been named a defendant on a corporate obligation of her business, L & F Merner, Inc. Tidwell had previously represented the corporation and, at the time of the suit, served as corporate secretary. Tidwell agreed to undertake that additional representation, but subsequently took no action on Merner’s behalf, failed to appear in court, allowed a default judgment to be entered against Merner and failed to inform her of the court’s judgment. On August 24, 1999, Merner forwarded correspondence to Tidwell terminating his services and requesting that he make the files in her cases available for new counsel. Tidwell took no action. He neither withdrew in the pending post-decree matters nor returned Merner’s files or otherwise communicated with Merner.
Tidwell’s misconduct violated Colo. RPC 1.3(a lawyer shall not neglect a legal matter entrusted to the lawyer), Colo. RPC 1.4(a)(a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information from a client) and Colo. RPC 1.16(d)(upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect the client’s interests, such as surrendering papers and property to which the client is entitled).
Claims four, five and six arise out of Tidwell’s representation of Claudette Gray in an uncontested divorce. Lorraine Montoya, Gray’s mother, retained Tidwell in August 1998 and paid him $500.00 in advance to represent her daughter. The fee was to cover the entire representation unless a dispute regarding custody arose. Thereafter, Tidwell was informed to delay further action on the divorce until July 1999 at which time he was instructed to proceed. Tidwell forwarded paperwork to Gray’s husband concerning financial matters. The husband completed the forms and returned them to Tidwell. From September 1999 to August 2000, Tidwell took no further action on Gray’s divorce. On August 9, 2000, Gray sent a letter to Tidwell terminating his representation and demanding a refund of the advance payment made on her behalf. At the time the demand was made, Tidwell had not earned the entire $500 fee received on Gray’s behalf. Tidwell did not return any portion of the advance fee.
Although Tidwell testified at the sanctions hearing that he had expended at least six hours of his time and $120 of the funds in connection with the representation, the findings of fact admitted by the entry of default established that the $500 fee was the full fee for completion of the divorce proceeding absent a custody dispute and requires the PDJ and Hearing Board to conclude that some portion of the $500 advance fee was unearned following his termination. Tidwell, however, credibly testified that he understood the $500 fee to be a retainer against which hourly billings were to be deducted. The findings of fact, in light of Tidwell’s expressed understanding of the fee agreement, do not support a conclusion that Tidwell knew, following termination, that some portion of the $500 remained unearned and still belonged to the client. The state of mind of the attorney is a crucial factor in determining whether the conversion is knowing or technical. People v. Varallo, 913, P.2d 1, 11(Colo. 1996). Tidwell’s conversion must be considered technical or negligent, and constitutes a violation of Colo. RPC 8.4(c).
Tidwell’s failure to promptly proceed with the Gray divorce once authorized to do so constituted neglect and violated Colo. RPC 1.3(a lawyer shall not neglect a legal matter entrusted to the lawyer). Tidwell’s failure to promptly refund the unearned portion of the $500 advance fee, even though negligent, violated Colo. RPC 1.16(d)(upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect the client’s interests, such as surrendering papers and property to which the client is entitled).
Claims seven, eight, and nine arise from Tidwell’s representation of Renee St. Peter in a personal bankruptcy matter. In September 1999, St. Peter hired Tidwell to file a personal bankruptcy for her, provided the requisite documentation to him and paid him $550 to cover the bankruptcy filing and to pay the necessary costs. Tidwell recommended that the bankruptcy filing be delayed until after St. Peter had received her 1999 tax refund and St. Peter agreed. By April 2000, she had received her tax refund and there was no further reason to delay the bankruptcy filing. However, as late as early June 2000, Tidwell had not yet made the filing. On June 6, 2000, St. Peter sent a letter to Tidwell complaining about the delay and demanding a refund of her $550. Tidwell did not respond to St. Peter’s correspondence. Thereafter, Tidwell did not file the bankruptcy case nor communicate with St. Peter. Tidwell moved his office to a new location and did not inform St. Peter. On September 8, 2000, St. Peter hand delivered a letter to Tidwell terminating his services and demanding a refund of the $550. As of the date of termination, Tidwell had not earned any portion of the $550 fee. Tidwell failed to promptly refund any portion of the $550 fee.1
As in the Merner and Gray cases, Tidwell’s misconduct in the St. Peter matter violated Colo. RPC 1.3(a lawyer shall not neglect a legal matter entrusted to the lawyer) and Colo. RPC 1.16(d)(upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect the client’s interests, such as surrendering papers and property to which the client is entitled). Tidwell’s failure to promptly refund the $550 fee in the St. Peter matter is, however, much more serious. From September 1999, through the time of the filing of the Complaint in this action, Tidwell knew that he held $550 of St. Peter’s money, knew that he had not earned those funds and, notwithstanding that knowledge, when he was discharged by St. Peter, did not promptly refund the unearned fees. In People v. Varrallo, 913, P.2d 1, 11 (Colo. 1996), the Colorado Supreme Court clearly defined the difference between knowing conversion and "technical" or negligent conversion:
Knowing misappropriation [for which the lawyer is almost invariably disbarred] "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." In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986). Misappropriation includes "not only stealing, but also unauthorized temporary use for the lawyer’s own purpose, whether or not he derives any personal gain or benefit therefrom." In re Wilson, 81 N.J. 451, 455 n. 1, 409 A.2d 1153 (1979). The motive of the lawyer is irrelevant in determining the appropriate discipline for knowing misappropriation.
Moreover, "[i]ntent to deprive permanently a client of misappropriated funds, however, is not an element of knowing misappropriation." In re Barlow, 140 N.J. 191, 657 A.2d 1197, 1201 (1995).
A "technical conversion," usually warranting suspension rather than disbarment, is a conversion or misappropriation where the complainant either concedes that the misappropriation was negligent, People v. Dickinson, 903 P.2d 1132, 1138 (Colo.1995), or it cannot be proven by clear and convincing evidence that the respondent knowingly converted the funds.
Tidwell exercised dominion and control over St. Peter’s money for at least five months after he had been terminated with full knowledge that he had not earned those funds and that he was obligated to refund the money to his former client. Such conduct requires a conclusion that he engaged in the knowing conversion of St. Peter’s funds. Tidwell’s knowing conversion of his client’s finds was dishonest and violated Colo. RPC 8.4(c)(conduct involving dishonesty, fraud, deceit or misrepresentation).
III. SANCTION/IMPOSITION OF DISCIPLINE
The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.
ABA Standard 4.11 provides "[d]isbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client."
ABA Standard 4.41(b) and (c), and 4.42 (a) and (b) provide:
4.41 Disbarment is generally appropriate when:
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
Tidwell’s knowing conversion of St. Peter’s money falls squarely under ABA Standard 4.11. Neither Tidwell’s pattern of neglect nor the individual instances of neglect found in all three cases caused injury to the clients of such a degree to find that the injury sustained to be serious as envisioned by ABA Standards 4.41(b) or (c).
Under the ABA Standards, the presumptive discipline for Tidwell’s knowing conversion is disbarment and the presumptive discipline for neglect and failure to communicate with his clients is suspension.
An examination of Colorado law supports the similar presumptive sanctions of disbarment for knowing conversion of client funds and suspension or disbarment for serious neglect of client matters. See People v. Elliott, 99PDJ059, slip op. at 8 (consolidated with 99PDJ086) (Colo. PDJ March 1, 2000), 29 Colo. Law. 112, 114 (May 2000)(disbarring attorney for his accepting advance fees from two clients, performing some but not all of the services for which he was paid, retaining the fees for one year in one matter and two years in another matter, and abandoning the clients, citing People v. Singer, 897 P.2d 798, 801 (Colo. 1995)(holding that extensive and prolonged neglect is considered willful misconduct)); People v. Reynolds, 933 P.2d 1295, 1305 (Colo. 1997) (respondent attorney suspended for three years and thirty days for, among other rule violations, repeatedly neglecting numerous client matters, and engaging in dishonesty, misusing client funds); People v. Coyne, 913 P.2d 12, 14 (Colo. 1996)(disbarring lawyer who, in one matter, misappropriated client funds for his own use and neglected a legal matter); People v. Young, 864 P.2d 563, 564 (Colo.1993)(holding that disbarment is the presumed sanction for knowing conversion barring significant factors in mitigation); In re Righter, 992 P.2d 1147, 1148 (Colo. 1999)(suspending attorney for three years for neglecting client’s case, failing to communicate, and engaging in misrepresentations).
The PDJ and Hearing Board considered aggravating and mitigating factors pursuant to ABA Standards 9.22 and 9.32 respectively. The People’s evidence in aggravation demonstrated that Tidwell had a prior disciplinary offense (a letter of admonition in 1995 for neglect), see id. at 9.22(a); he had a dishonest or selfish motive, see id. at 9.22(b); he demonstrated a pattern of misconduct; see id. at 9.22(c); he engaged in multiple offenses, see id. at 9.22(d); and had substantial experience in the practice of law, see id. at 9.22(i). and. In mitigation, Tidwell stated and exhibited genuine remorse, id. at 9.32(i). Although Tidwell testified that he suffered from and took medication for depression2, no evidence was presented from which it can be concluded that his depression caused the misconduct, that he has either recovered from the depression or that the depression has been arrested, or that there has been a sustained period of recovery. See id. at 9.32 (i). Absent such proof, a mental disability may not be considered as a mitigating factor in attorney disciplinary proceedings.
In addition, Tidwell testified and the People confirmed that Tidwell refunded the advance fees to both Gray and St. Peter after the Complaint was filed in this action. ABA Standard 9.4(a) provides that forced or compelled restitution should not be considered as either aggravating or mitigating in arriving at the appropriate sanction. Tidwell’s refund to Gray and St. Peter was not "forced" or "compelled." Although there was certainly some incentive to do so as a result of the disciplinary investigation and subsequent prosecution, those events alone did not force or compel Tidwell to refund the advance fees. That he failed to refund the advance fees until after the Complaint was filed in this case, does not deprive Tidwell of the mitigation attendant in his efforts to make restitution; rather, it bears upon the weight to be accorded for the act. Tidwell’s delayed rectification of his misconduct does provide some measure of mitigation, though limited. See id. at 9.32(d).
It is therefore ORDERED:
1. MARK OWEN TIDWELL, registration number 10724, is DISBARRED from the practice of law effective thirty-one days from the date of this Order, and his name shall be stricken from the roll of attorneys licensed to practice law in this state;
2. TIDWELL is ORDERED to pay the costs of these proceedings.
3. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.
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