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TCL > May 2008 Issue > Disciplinary Opinions

The Colorado Lawyer
May 2008
Vol. 37, No. 5 [Page  123]

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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). Disciplinary 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.

 

Case No. 07PDJ024

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

GRAFTON MINOT BIDDLE.

December 17, 2007

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

On October 18, 2007, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Kim E. Ikeler and Julie M. Schmidt appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Grafton Minot Biddle ("Respondent") did not appear nor did counsel appear on his behalf.1 The People presented extensive legal authority and argued for the disbarment of Respondent. The Court issues the following "Report, Decision, and Order Imposing Sanctions pursuant to C.R.C.P. 251.19(c)."

I. ISSUE

Disbarment is appropriate when a lawyer in an official position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another. Suspension is appropriate when a lawyer in an official position knowingly fails to follow proper procedures or rules and causes injury or potential injury to the integrity of the legal process. Respondent engaged in an affair with a deputy district attorney who practiced in his courtroom. When judicial officials asked about the affair he denied it. What is the appropriate sanction?

SANCTION IMPOSED:
ATTORNEY SUSPENDED FOR THREE YEARS.

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The People filed a complaint with the Court on April 20, 2007. Respondent failed to file an answer and the Court entered a default judgment on July 17, 2007. The People charged Respondent with the following rule violations: Colo. RPC 8.4(c) (a lawyer shall not engage in Conduct involving dishonesty, fraud, deceit or misrepresentation); Colo. RPC 8.4(a) (a lawyer shall not violate or attempt to violate the rules of professional conduct or knowingly assist or induce another to do so); and Colo. RPC 8.4(d), (a lawyer shall not engage in conduct that is prejudicial to the administration of justice).

Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established. People v. Richards, 748 P.2d 341, 346 (Colo. 1987). Thus, the Court adopts and incorporates by reference the factual background and rule violations detailed in the complaint.2 The Court briefly summarizes the facts below.

Respondent took and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 9, 1979, and is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 09638. Respondent is therefore subject to the jurisdiction of the Colorado Supreme Court and the Office of the Presiding Disciplinary Judge.

The need for sanctions in this case arise from Respondent’s behavior while acting as a magistrate with the Eighteenth Judicial District and later as a judge for the Douglas County Court.3 Respondent served approximately fifteen years as a magistrate for the Eighteenth Judicial District before his appointment to the Douglas County Court bench in July 2006.

In the spring of 2006, Respondent began an affair with Laurie A. Hurst, f/k/a Laurie A. Steinman, a deputy district attorney for the Eighteenth Judicial District.4 Ms. Hurst occasionally appeared in the First Arraignment Center ("FAC") where Respondent sat as a magistrate during this time. She assisted with the dispositions of FAC cases, which included appearing in front of Respondent for plea agreements and sentencing recommendations. The affair ceased for a period of time and then resumed again when Respondent transitioned to the position of County Court Judge in July/August 2006.

After Respondent was appointed to the county court bench, he and Ms. Hurst engaged in various trysts both inside and outside the confines of the Douglas County Courthouse where both served as public officials. Eventually, their activities were reported to the Chief Judge and the Court Administrator for Douglas County. Respondent knew his relationship with Ms. Hurst raised serious ethical questions that could jeopardize both of their licenses. But instead of ending the relationship or disclosing the same, Respondent continued the affair for nearly six months. At Respondent’s behest, Ms. Hurst engaged superiors in the district attorney’s office, as well as court personnel, in an effort to dispel unconfirmed rumors of their affair. She also attempted to destroy e-mail revealing the nature of their relationship.5

While carrying on their affair, Respondent, acting as a magistrate, failed to recuse himself when Ms. Hurst presided over matters of course in his court. Following his appointment to the county court bench, Respondent presided over two trials Ms. Hurst prosecuted. She won one and lost one. Respondent failed to recuse himself or advise the party opposing Ms. Hurst in these two cases of a conflict of interest. Nevertheless, the People concede that Respondent’s conduct in these cases did not result in any favorable treatment to Ms. Hurst or anyone else.

When Chief Judge William Blair Sylvester and Judicial Administrator Laurie McKager initially phoned Respondent and questioned him about the reports of an affair between Respondent and Ms. Hurst, Respondent denied any impropriety. Later, when Judge Sylvester and Ms. McKager informed Respondent that his wife had delivered a letter to them reporting Respondent’s affair with Ms. Hurst, Respondent immediately submitted his resignation and moved to Tennessee.

III. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the Court must first consider the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating and mitigating evidence pursuant to ABA Standard 3.0.

In applying factors found in ABA Standards 3.0, the Court finds Respondent violated duties to the public, the legal profession, and fellow members of the bench by breaching the trust bestowed him as a lawyer entrusted with a public office. The entry of default established that Respondent knowingly engaged in the conduct alleged in the complaint; that is, he was aware of his conduct. The facts also support a finding that Respondent’s conduct caused actual injury and serious potential injury to the integrity of the legal process.

The Court finds evidence of the following aggravating factors under ABA Standards 9.22: dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience with the law. See ABA Standards 9.22(b), (c), (d), and (i). The Court also finds Respondent’s failure to participate in these proceedings troubling.6 The only mitigating factor presented by the People in this matter is the absence of a prior disciplinary record. See ABA Standards 9.32(a).

The ABA Standards suggest that the presumptive sanction for the misconduct established in this case ranges from suspension to disbarment.

Disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another, or with the intent to cause serious or potentially serious injury to a party or to the integrity of the legal process.

ABA Standards 5.21 (emphasis added).

Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedure or rules, and causes injury or potential injury to a party or to the integrity of the legal process.

ABA Standards 5.22.

The People argued that Respondent received a "significant benefit" in the form of the gratification he received while presiding over a case in which his paramour served as a party. However, they also concede that no evidence exists to show Respondent exercised his authority as a public official to "tip the scales of justice" or otherwise provide favorable treatment to Ms. Hurst at any time. See ABA Standards 5.21, commentary ("The public officials who are subject to disbarment generally engage in conduct involving fraud and deceit, and are generally subject to criminal sanctions as well."); In re Rosenthal, 382 N.E.2d 257 (Ill. 1978) (Assistant Attorney General participated in an extortion scheme to benefit their client as part of a zoning request).

Although there is no evidence of favorable treatment to Ms. Hurst, the Court finds that Respondent caused actual injury and serious potential injury to the integrity of the legal process because of the appearance of favoritism to Ms. Hurst. Nevertheless, the Court cannot find based upon the established facts that Respondent misused his public office with the intent to obtain a significant benefit or advantage for himself or Ms. Hurst, or that he intended to cause serious or potentially serious injury to a party or to the integrity of the legal process as contemplated by ABA Standards 5.21. See People v. Brown, 726 P.2d 638 (Colo. 1986) (Elected district attorney disbarred for abusing public office by causing his traffic records to be deleted from an official database). Neither the personal satisfaction of presiding over Ms. Hurst’s cases, nor the mere appearance of impropriety is sufficient to warrant disbarment under ABA Standards 5.21.

This is a case of first impression in Colorado. At the Court’s request, the People provided extensive legal authority from other jurisdictions supporting sanctions ranging from public censure to disbarment. The People believe the strongest sanction is necessary to protect the public’s confidence in the integrity of the legal process. The cases supporting disbarment cited by the People generally involved more egregious conduct than the conduct presented in this case. See In re Mendenhall 447 S.E.2d 858 (S.C. 1994) (Judge disbarred after conviction for official misconduct after giving favorable rulings in exchange for sexual favors); In re Edwards, 694 N.E.2d 701 (Ind. 1998) (Part-time judge disbarred when he used his law license to barter for sex from a client, created a fraudulent divorce and custody decree, and thereafter lied to other judges, court staff, and his client).

The Court finds that the facts in cases supporting a suspension more analogous to this case than those calling for disbarment under ABA Standards 5.21. See In re Gerard, 31 N.W.2d 271 (Iowa 2001) (Judge’s secret intimate relationship with associate county attorney, who appeared before him on a daily basis, warranted a sixty-day suspension without judicial pay); In re Adams, 932 So.2d 1025 (Fla. 2006) (County court judge stipulated to a public reprimand after he entered into a romantic relationship with a lawyer who practiced before him and then continued to preside over matters in which the lawyer appeared as counsel.). The Court therefore concludes that the plain-language of the ABA Standards and the relevant case law support a finding that ABA Standards 5.22 is the appropriate standard in this case.7

The People also argued that Respondent knowingly lied to Chief Judge Sylvester and Ms. McKager about his affair with Ms. Hurst and that this conduct warrants disbarment.8 However, ABA Standards 5.11 typically deals with dishonesty in the context of serious criminal conduct (regardless of whether a criminal charge has been brought against the lawyer) whereas ABA Standards 5.13 typically deals with dishonesty arising out of the infirmities of human nature short of criminal conduct. See ABA Standards 5.13, commentary.

Nevertheless, deceiving court officials, even if the deceit occurred outside the context of an official proceeding, is a serious matter. As the Colorado Supreme Court noted in In re Pautler 47 P.3d 1175, 1176 (Colo. 2002), intentional deception by a licensed attorney in our state will not be tolerated, even when the deception is for an arguably valid law enforcement purpose. However, the evidence falls short of the requirements set forth in ABA Standards 5.11. Even if a lawyer is deceptive and fails to fully and honestly answer the court’s questions in a formal proceeding, such conduct does not necessarily mandate disbarment. See In re Cardwell, 50 P.3d 897 (Colo.2002).

IV. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. The facts established in the complaint reveal the danger Respondent poses to the public by way of his brazen disregard of his ethical duties both as a lawyer and a public official. By engaging in this conduct, Respondent caused actual injury and serious potential injury to the integrity of the legal profession and our system of justice.

In the American system of justice, fairness, impartiality, stability, and wisdom of our legal system depend in major part on the integrity of the men and women serving as judges [and public officials]. We expect those to whom we entrust our lives, fortunes, and honor to exemplify those virtues. Respect for the rule of law is necessary for a democracy to function and flourish. As a consequence, respect for the rule of law by those we select as judges is mandatory.

In re Discipline of Harding, 104 P.3d 1220 (Utah 2004).

The actual injury and serious potential injury caused to the integrity of the legal process is the most disturbing factor in this case. An independent and honorable judicial system is crucial to our system of justice. Indeed, the integrity of our judicial system is at the core of our democratic system of government. When a public official flagrantly abandons his ethical duties, he necessarily damages the public’s confidence in the rule of law and the integrity of our judicial system.

After considering the ABA Standards, the relevant Colorado Supreme Court case law, as well as case law from other jurisdictions, the Court concludes that the lengthiest suspension permitted by the C.R.C.P. 251.6(b) is appropriate in this case. Accordingly, the Court suspends Respondent from the practice of law for a period of three years.

While Respondent’s suspension is limited to three years, this does not mean he will be allowed to practice law after serving this suspension. Unless and until Respondent demonstrates clear and convincing evidence in a public hearing to a Hearing Board that he has been rehabilitated and is fit to practice law, he shall remain suspended from the practice of law.

V. ORDER

The Court therefore ORDERS:

1. GRAFTON MINOT BIDDLE, Attorney Registration No. 09638, is SUSPENDED from the practice of law for a period of THREE (3) YEARS, effective thirty–one (31) days from the date of this order.

2. GRAFTON MINOT BIDDLE 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.

3. GRAFTON MINOT BIDDLE shall complete and pass the Office of Attorney Regulation Counsel’s Ethics School six months before filing any Petition for Reinstatement.

__________

1. Counsel initially entered an appearance on behalf of Respondent, but withdrew before the Sanctions Hearing. Although Respondent received notice of the hearing, no one appeared on his behalf.

2. See the People’s complaint filed April 20, 2007.

3. "The Supreme Court Attorney Regulation Counsel shall also have jurisdiction over the conduct of a lawyer that occurred prior to the time the lawyer held judicial office, as well as the conduct of a lawyer who is no longer a judge that occurred during the time the lawyer held judicial office, with reference to alleged violations of the Colorado Rules of Professional Conduct, if the commission did not investigate and resolve the matter during the judge’s tenure in office." C.R.J.D. Rule 4(a).

4. Ms. Hurst was a co-respondent in these proceedings. On September 6, 2007, the People and Ms. Hurst tendered a Conditional Admission of Misconduct in which Ms. Hurst admitted violations of Colo. RPC 8.3(b), 8.4(c), 8.4(d), and 8.4(f). The Court approved the stipulation and suspended Ms. Hurst for a period of three years, all but six months stayed upon the successful completion of a two and one-half years period of probation.

5. The Court notes that Respondent had been practicing law for nearly thirty years at the time these events took place. Ms. Hurst, on the other hand, had just begun her legal career as a deputy district attorney.

6. At this point Respondent has failed to demonstrate regret or recognition of the actual and serious potential harm he has caused the integrity of the legal process.

7. ABA Standard 5.2 states, "[a]bsent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving public officials who engage in conduct that is prejudicial to the administration of justice or who state or imply an ability to influence improperly a government agency or official."

8. "Disbarment is generally appropriate when . . . 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." ABA Standards 5.11(b). "Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law." ABA Standards 5.13.

_______________

Case No. 06PDJ083

Petitioner:

DAVID M. DOERING,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

February 29, 2008

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

On June 12 and 18, 2007, a Hearing Board composed of Sheila K. Hyatt and Wendy S. Shinn, both members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), conducted a Reinstatement Hearing pursuant to C.R.C.P. 251.29(c) and 251.18.1 Gary M. Jackson represented David M. Doering ("Petitioner") and Charles E. Mortimer, Jr. represented the Office of Attorney Regulation Counsel ("the People"). The Hearing Board now issues the following Opinion and Order Re: Reinstatement Pursuant to C.R.C.P. 251.29(b).

I. ISSUE

An attorney seeking reinstatement must prove rehabilitation, compliance with disciplinary orders, and fitness to practice by clear and convincing evidence. Petitioner neglected three clients while suffering from depression, defaulted in the subsequent disciplinary proceedings, and moved to California where he supports himself as a taxi driver. Petitioner is now in good mental health, studying for the California Bar Examination, remorseful for his past neglect, and in substantial compliance with disciplinary orders. Should Petitioner be reinstated?

After considering the evidence presented by Petitioner, the Hearing Board finds clear and convincing evidence of rehabilitation, compliance with disciplinary orders, and fitness to practice, despite the fact it took him nearly five years to begin the process of demonstrating rehabilitation and fitness to practice law.

HEARING BOARD DECISION: ATTORNEY REINSTATED

II. PROCEDURAL HISTORY

A Hearing Board suspended Petitioner from the practice of law for a period of one year and one day, effective October 22, 2001. Petitioner filed his "Verified Petition for Reinstatement" on October 23, 2006. On November 6, 2006, the People filed their "Answer to Verified Petition for Reinstatement" and took the position that they were without sufficient information to form a belief as to the truth or falsity of the allegations in the petition. The People also took no position concerning the petition for reinstatement in their trial brief filed on May 30, 2007.

The People offered no evidence during the reinstatement proceedings, but nevertheless argued at the conclusion of Petitioner’s case that he should not be reinstated to the practice of law. Petitioner asserts that he has demonstrated clear and convincing of his rehabilitation and fitness to practice law as provided in C.R.C.P. 251.29.

III. FINDINGS OF FACT

The Hearing Board finds the following facts by clear and convincing evidence. Petitioner has taken and subscribed the Oath of Admission, was admitted to the Bar of the Colorado Supreme Court on October 17, 1977, and is registered as an attorney upon the official records, Attorney Registration No. 08258. While Petitioner’s license to practice law is currently suspended, he nevertheless is subject to the jurisdiction of the Colorado Supreme Court and the PDJ in these proceedings.

Background

Petitioner attended New York University, Washington Square College, where he earned undergraduate and masters degrees in political science and served as student government president before graduating in 1972. Petitioner later attended Boston University School of Law where he graduated in 1976. As a law student, Petitioner participated on the national moot court team. Respondent took and passed the Colorado Bar Examination in 1977, and held his license for twenty-four years before his suspension in 2001.

From 1977 to 1980, Petitioner worked as a staff attorney with the Legislative Drafting Office where he helped draft legislative proposals. While working with the legislature, Governor Richard Lamm appointed Petitioner to the Air Quality Commission. From approximately 1980 to 1987, Petitioner engaged in the private practice of law in Denver.

Petitioner closed his law practice in 1987 following his election to the Denver City Council. His peers elected him president of the council during his term and he continued to serve as a Denver City Councilman until 1995. At that point, he ran an unsuccessful campaign for Auditor of the City and County of Denver. This defeat had profound emotional and professional effects on Petitioner.

Following the election, Petitioner was unable to find employment, which eventually led to the foreclosure of his house. During the same period of time, his father suddenly died in Connecticut following a surgery that had been expected to go well. Petitioner had delayed visiting his father before the operation, because he thought it was more important to tend to client matters and because he anticipated visiting him after the surgery. Petitioner fell into a deep depression following his father’s death.

After his father’s death, Petitioner continued to practice law as a sole practitioner without a staff. But by 2000 he had decided to leave the practice of law and had stopped taking on any new cases. It was during this time frame that Petitioner neglected three clients and came to the attention of the People. This neglect eventually resulted in the sanction of suspension from the practice of law for a period of one year and one day.

Anderson Matter

The suspension for one year and one day was based upon misconduct in three client matters, all of which occurred at or near the same time. In the first client matter, Petitioner met with his client, Benjamin Anderson, in March 2000 and agreed to represent Mr. Anderson on a substantial construction contract awarded to Mr. Anderson. Mr. Anderson paid Petitioner $300.00 and Petitioner told Mr. Anderson that he would charge $50.00 an hour until he earned the $300.00 and then he would charge an hourly rate of $100.00 an hour. Thereafter, Petitioner met one additional time with Mr. Anderson, but failed to complete work as promised and failed to answer Mr. Anderson’s calls. As a result, Mr. Anderson delayed in meeting with the parties to the contract and encountered problems. Petitioner failed to return Mr. Anderson’s $300.00.

Miles Matter

In July 1999, Alicia Miles retained Petitioner to represent her in a divorce action and paid him $600.00. Petitioner filed the divorce action and served Ms. Miles’ husband. Thereafter, over a three-month period of time, Ms. Miles attempted to contact Petitioner, but he never responded. Ms. Miles’ husband obtained counsel and the court set a permanent orders hearing. Petitioner failed to notify Ms. Miles of the hearing and when she obtained new counsel, Petitioner failed to promptly withdraw and return her file.

Jones Matter

On March 6, 2000, Mary Jones retained Petitioner, paid him $1,000.00 to represent her in a "legal matter," and tendered documents related to the matter. The following month, Ms. Jones asked Petitioner for an "accounting" and when he did not answer her, she hired a new attorney. Petitioner withdrew from her case, but did not return the $1,000.00 retainer.

Disciplinary Proceedings

On February 2, 2001, the People filed a complaint against Petitioner for the three client matters discussed above. Petitioner failed to answer the complaint and the PDJ subsequently entered an order of default. Following the entry of default, a hearing board convened, heard the People’s evidence, and suspended Petitioner from the practice of law for a period of one year and one day as a sanction, effective October 22, 2001.

In the PDJ’s order granting default, the Court concluded Petitioner violated the following rules of professional conduct:

In the Benjamin Anderson matter: Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter); Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); and Colo. RPC 1.16(d) (upon termination, a lawyer shall take steps to protect a client’s interests).

In the Alicia Miles matter: Colo. RPC 1.4(a) (failure to communicate); Colo. RPC 1.16(a)(3) (a lawyer shall not represent a client or shall withdraw from representation if the lawyer is discharged); and Colo. RPC 1.16(d) (upon termination, a lawyer shall take steps to protect a client’s interests).

In the Mary Jones matter: Colo. RPC 1.15(b) (upon receiving property in which a client or third person has an interest, a lawyer shall promptly deliver to the client any funds or other property that the client is entitled to receive and Colo. RPC 1.16(d) (upon termination, a lawyer shall take steps to protect a client’s interests).

Petitioner failed to participate in the disciplinary proceedings that led to his suspension. Nevertheless, he communicated with the People and said he never intended to practice law again. Shortly thereafter, Petitioner moved to California and began working as a taxi driver.

Petitioner admits that he left Colorado without addressing the disciplinary proceedings, neglected advising the Office of Attorney Registration of his new address, and essentially "threw up his hands and walked away from it all." He now regrets his failure to deal with these matters and realizes he should have sought help for what he now understands was a serious depressive episode.

Activities Since Suspension

Since leaving Colorado, Petitioner has resided in San Francisco and has worked as a taxi driver. His supervisor finds him to be reliable, conscientious, and hardworking. He presently works approximately eighty hours a week in an effort to save enough funds to take the California Bar Examination. He also is a part owner of a taxi driving school and teaches approximately 100 students a year at the school. Petitioner often drives a taxi seven days a week.

Petitioner has now paid restitution in the total amount of $1,000.00 plus $586.85 in statutory interest to the Attorneys’ Fund for Client Protection in the Jones matter. Petitioner also paid restitution with interest in the Anderson matter. Petitioner is on a plan to pay a back-tax liability of $2571.00, and social security taxes of approximately $10,000.00, exclusive of owed interest. He paid the IRS $637.00 in September 2007, and $295.00 in July, August, September, October, and November 2007.

Legal Studies

In anticipation of the need to present evidence of his fitness to practice law in these proceedings, Petitioner has purchased and studied materials in preparation for the California Bar Examination. He has also purchased CLE materials and has now completed approximately 121 hours in these materials, including 18 hours of ethics credit. However, he does not have the funds to pay the costs of taking the California Bar Examination at this time. He is currently saving money and plans on taking it when he has the funds to do so.

Testimony of Professor William Covington

Petitioner researched and prepared a legal memo for Professor Covington of the University of Washington Law School on a telecommunications legal issue. Professor Covington later used that memo in making a presentation to the Washington State Legislature on November 27, 2007. Professor Covington testified that Petitioner produced high quality work; that is, equal in quality to what he would typically pay a law firm to prepare. Professor Covington further testified that he would seek Petitioner’s legal assistance in the future, as well as refer Petitioner to his clients should Petitioner be reinstated to the practice of law.

Psychiatric Report—Dr. Hugh R. Winig2

Dr. Winig, a psychiatrist, examined Petitioner three times in September 2006, and again in November 2007. His "firm conclusion" is that Petitioner no longer suffers from depression. Dr. Winig found that Petitioner suffered symptoms of depression from roughly 1995 to 2004, although he describes this as "a single episode" brought on by: (1) the loss of the auditor election in Denver; (2) the death of his father, with unresolved conflicts in that relationship; and (3) the foreclosure of Petitioner’s house. Dr. Winig further noted that Petitioner is "forthright, honest, hardworking, and determined to reestablish his legal credentials in Colorado." Dr. Winig’s opines that Petitioner is fit to practice law based upon his examination and psychological testing.

Psychiatric Report—Dr. Ronald H. Roberts

Dr. Roberts conducted a "comprehensive psychological evaluation" of Petitioner on April 3, 2007.3 Dr. Roberts obtained an extensive history from Petitioner, conducted psychological testing, and reached the following conclusions:

  • The conduct that led to Petitioner’s discipline was influenced by his depression.
  • Petitioner is now experiencing "mild stress" as a result of "current" stressors in his life.
  • Petitioner suffers from no mental disorder that would preclude him from practicing law.
  • His current levels of stress would decrease and his quality of life would improve if he were allowed to practice law.

Petitioner’s Testimony

Petitioner testified that he recognizes the seriousness of his misconduct and that he is "horrified" by his neglect of the three client matters addressed above. He now recognizes that he was seriously depressed at the time he left Colorado and that he should have sought professional help at the time. Although he thought he would never practice law again when he left Colorado, he has since discovered that he misses the practice of law and the intellectual challenges it afforded him.

Petitioner testified that he did not find out about his suspension until the spring of 2006. He always assumed that he had been disbarred. When he realized that he had not been disbarred, he initiated his quest to be reinstated to the practice of law. Petitioner believes that had he participated in the regulation process, he might have avoided a suspension. In his evaluation with Dr. Roberts, Petitioner offered that the People had discussed a diversion agreement with him, but that he had declined to engage in such a program because he never intended to practice law again.

Petitioner realized upon completing the research project for Professor Covington that he had not enjoyed anything so much in the last six years. Petitioner testified that if he is reinstated, he will either practice law in California, once he passes California Bar Examination, or he will work as a paralegal. He will not practice as a solo practitioner, but will perform contract work as a paralegal or lawyer in immigration law. He plans to limit himself to 25–30 hours a week.

Petitioner feels remorse for the harm he caused his former clients and now recognizes that he should have sought professional help and support from his friends instead of walking away from his practice and the disciplinary proceedings. Petitioner is not dwelling on the past and is looking to the future. He maintains a support system of friends, exercises to manage stress, and looks forward to again practicing law. Petitioner would like his legacy to be that of a good lawyer who made it through a tough period of his life. Not as a suspended lawyer who drove a taxi.

IV. LEGAL ANALYSIS

When an attorney has been suspended for longer than one year, the reinstatement process begins with the submission of a verified petition for reinstatement under C.R.C.P. 251.29(c). C.R.C.P. 251.29(c) states, "[a]n attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for an order of 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." The petition must 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) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended lawyers;

(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

C.R.C.P. 251.29(c). A hearing board makes the reinstatement decision. C.R.C.P. 251.29(e). An attorney may be reinstated to the practice of law upon demonstration, by clear and convincing evidence, that the attorney (1) has been rehabilitated, (2) has complied with all applicable disciplinary orders and all rules regarding reinstatement, and (3) is fit to practice law. C.R.C.P. 251.29(b) and (d). All three elements must be shown before the hearing board may authorize reinstatement. The hearing board may also consider the attorney’s past disciplinary record. C.R.C.P. 251.29(e). If an attorney is unable to satisfy the burden of proof and the petition for reinstatement is denied, the attorney may not reapply for a period of two years. C.R.C.P. 251.29(g).

The concept of rehabilitation has been described in many different ways. It has been characterized as "the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society." In re Cason, 294 S.E.2d 520, 522 (Ga. 1982). It has also been defined as "regeneration," denoting an overwhelming change in the applicant’s state of mind. In re Cantrell, 785 P.2d 312, 314 (Okla. 1989). The analysis of rehabilitation should be directed at the professional or moral shortcoming(s) out of which the discipline arose. Tardiff v. State Bar, 612 P.2d 919, 923 (Cal. 1980). It is not enough to show that the attorney is doing what is proper; rather, there is a requirement of positive action. See In re Sharpe, 499 P.2d 406, 409 (Okla. 1972). In People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988), the Colorado Supreme Court declared that the rehabilitation assessment "must include the consideration of numerous factors bearing on the [attorney’s] state of mind and ability."4 These factors include but are not limited to:

  • Character;
  • Conduct since the imposition of discipline;
  • Professional competence;
  • Candor and sincerity;
  • Recommendations of other witnesses;
  • Present business pursuits;
  • Personal and community service; and
  • Recognition of the seriousness of previous misconduct.

The People argue that Petitioner waited five years before filing his petition, failed to demonstrate that he complied with all rules and orders of the court as provided in C.R.C.P. 251(c), and failed to demonstrate rehabilitation or fitness to practice law. As related specifically to the C.R.C.P. 251.29(c) violations, Petitioner failed to comply with the PDJ’s order to pay Mr. Anderson $300.00 within one year of the suspension, failed to notify the Office of Attorney Registration of his change in address, and failed to notify clients of his suspension as provided by C.R.C.P. 251.28(b).

While the People correctly argue that C.R.C.P. 251.29(c) requires that a lawyer suspended for more than a year must set forth in his petition that he has that he has complied with all the rules in his petition, the facts demonstrate, albeit late, that Petitioner has effectively complied with the restitution order, had no clients to notify, and now has provided the Office of Attorney Regulation with his current address. See C.R.C.P. 251.28(c), C.R.C.P. 251.29(c)(4), and C.R.C.P. 227(A)(2)(b) (notification of suspension to clients, compliance with all disciplinary rules and orders, and change of address, respectively). In addition, the People argue Petitioner failed to meet his burden of proof as to fitness to practice law and rehabilitation.

As to fitness to practice and rehabilitation, the Hearing Board notes that the People stipulated to both expert reports, which clearly establish Petitioner no longer suffers from depression, a significant factor in our determination of rehabilitation and fitness to practice law. Before this mental illness, Petitioner successfully practiced law as a solo practitioner and city council member for over 23 years. Furthermore, he frequently dealt with complex legal in drafting legislation. Now that Petitioner has addressed his depression, as the experts have concluded, there is no medical reason that he should not practice law again.

While Petitioner could have started his quest for reinstatement earlier, the rules allow him five years to do so without the necessity of taking the Colorado Bar Examination.5 The Hearing Board also recognizes that in this case, it took some soul-searching before Petitioner realized that he truly missed the practice of law. The evidence presented here demonstrates clearly and convincingly that Petitioner is remorseful, forthright, and sincere in acknowledging the injury he caused his former clients. More important, he now understands, after seeking psychiatric treatment, how to deal with depression.

The Hearing Board also considered the People’s argument that Petitioner cannot be reinstated as a matter of law because he has failed to comply with all court orders and rules in the disciplinary process in a timely fashion. As noted above, the People argue that Petitioner has "avoided" his responsibilities under the rules by not reporting a change of address to the Office of Attorney Registration, not filing an affidavit demonstrating he has notified clients of his suspension, and not paying $300.00 to Mr. Anderson within one year of his suspension as the PDJ ordered.

While Petitioner admittedly failed to timely abide by these rules, we find the totality of evidence demonstrates he substantially complied with the rules by the conclusion of these reinstatement proceedings. Most important, he is now fully recovered, rehabilitated, and fit to practice law.6 The Hearing Board finds Petitioner has demonstrated an "overwhelming" change in his state of mind and that he is highly motivated to practice law in a responsible and professional manner.

V. ORDER

It is therefore ORDERED:

1. The Verified Petition for Reinstatement is GRANTED. Petitioner DAVID M. DOERING, Attorney Registration No. 08258, SHALL be reinstated to the practice of law, effective immediately.

2. Petitioner is ORDERED to pay the costs of these proceedings; the People shall submit a Statement of Costs within fifteen (15) days of the date of this Order, and Petitioner may submit a response within ten (10) days thereafter.

__________

1. The PDJ also continued a portion of the hearing at the request of Petitioner until December 18, 2007. The parties appeared by telephone for this portion of the hearing.

2. The parties stipulated to Dr. Winig’s original report dated October 20, 2006, Exhibit 2, and supplemental report dated November 21, 2007, Exhibit H, and Dr. Roberts’ report dated April 12, 2007, Exhibit 3.

3. Dr. Roberts administered the MMPI-2 and the Rorschach Psycho Diagnosis Test.

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

5. See C.R.C.P. 251.29(b) ("If the attorney remains suspended for five years or longer, reinstatement shall be conditioned upon certification by the state board of law examiners of the attorney’s successful completion . . . of the examination for admission to practice law. . . .").

6. While Petitioner failed to demonstrate that he notified clients of his suspension, he testified he had none at the time of his suspension. While Petitioner failed to timely notify the Office of Attorney Registration of his address changes, the People now know his address. Petitioner also paid $1,000.00 plus statutory interest in the Jones matter even though it was not ordered.

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Case No. 06PDJ037

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

GERALD B. FEATHER.

March 6, 2007

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

On October 30, 2006, a Hearing Board composed of Douglas D. Piersel and Paul J. Willumstad, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a hearing pursuant to C.R.C.P. 251.18 in Grand Junction, Colorado. Charles E. Mortimer, Jr. appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). William H. Cain appeared on behalf of Gerald B. Feather ("Respondent") who also appeared. The Hearing Board issues the following "Opinion and Order Pursuant to C.R.C.P. 251.18" based upon the evidence presented by the parties.

I. ISSUE

Colo. RPC 1.5(a) provides that a lawyer’s fee shall be reasonable. Respondent and his client entered into a written contingent fee agreement "to collect back child support" in 1990. He thereafter reduced the child support arrearages to judgments and used $4,000.00 from one judgment to purchase an oil/gas royalty for his client in 1993. Respondent then claimed a perpetual one-third interest in the monthly payment from the oil/gas royalty. Is such a fee reasonable?

II. PROCEDURAL HISTORY AND BACKGROUND

On June 6, 2006, the People filed their complaint in this matter and Respondent filed his answer on June 30, 2006. The complaint contained a single count wherein the People alleged that Respondent violated Colo. RPC 1.5(a) by charging and collecting an unreasonable fee.

The People presented the testimony of Marcy Bennett and Respondent at the hearing. Respondent testified on his own behalf and the parties stipulated that his numerous character witnesses would testify that he has a reputation in the community as an attorney of good character and that he is a highly respected member of the legal community.

III. FINDINGS OF MATERIAL FACT

The Hearing Board considered the testimony of each witness and each exhibit admitted into evidence, and finds the following material facts established by clear and convincing evidence.1

Background

Respondent has taken and subscribed the Oath of Admission, was admitted to the Bar of the State of Colorado on October 2, 1973, and is registered as an attorney upon the official records of the Colorado Supreme Court, Attorney Registration No. 05996. He is therefore subject to the jurisdiction of the Colorado Supreme Court and the Office of the Presiding Disciplinary Judge in these proceedings. Respondent has no prior discipline.

Although licensed to practice law in 1973, Respondent worked for a mining company until 1978. In 1978, he entered private practice and shared office space with a petroleum engineering company. Respondent presently devotes approximately one-third of his practice to each of the following areas: domestic relations, debt collection, and general practice.

The Contingent Fee Agreement

Marcy Bennett retained Respondent to collect child support arrearages owed by her ex-husband in 1990. She specifically sought Respondent’s counsel because she could not afford to pay an hourly rate and he offered to help her on a contingency basis. The parties therefore entered into a written contingent fee agreement on August 23, 1990. The contingent fee agreement stated that the purpose of the agreement was "to collect back child support." Under the heading "For Office Use Only," someone checked a box for "other arrangements as follows" and wrote "1/3 cont fee from all amounts collected plus costs if any + actual expenses." Ms. Bennett signed the contingent fee agreement and it represents the only written fee agreement between Respondent and Ms. Bennett concerning any legal matter.2

Respondent reduced the child support arrearages owed to Ms. Bennett by her ex-husband to judgment in September 1990 ($12,327.76) and again in August 1992 ($10,534.98).3 Respondent testified that it was not a difficult task to obtain these judgments and that he did not keep records of his time spent on the case. Ms. Bennett testified that she met with Respondent two to three times and both testified there were no hearings, trials, or negotiations during the course of the representation.

The Oil/Gas Royalty Interest

During the course of the representation, Ms. Bennett advised Respondent that her ex-husband had transferred or sold most of their assets during the divorce. However, Ms. Bennett knew that he owned an oil/gas royalty that had not been a part of their divorce. Respondent initially garnished these oil/gas royalty payments owed to Ms. Bennett’s ex-husband, but later levied upon the interest. A sheriff’s sale was held in 1993 and Respondent bid $4,000.00 from one of Ms. Bennett’s judgments to purchase the oil/gas royalty. Ms. Bennett inquired of Respondent as to why they could not bid $2.00 and he told her they needed to make a "good faith bid." Respondent testified that he has never been aware of the actual value of Ms. Bennett’s oil/gas royalty interest.

On April 19, 1993, Respondent wrote to Amoco Production Company following the sheriff’s sale and requested that they direct all royalty payments to his client in care of his office. The letter does not indicate that it was copied to Ms. Bennett. Thereafter, Respondent received all payments on the oil/gas royalty. He retained one-third of all payments received and paid the balance to Ms. Bennett who never saw an original check.

In March 2000, Ms. Bennett wrote to Respondent and asked if he would be receiving one-third of the oil/gas royalty payments forever. Respondent mailed a response stating, "In essence, yes." In that letter, Respondent proposed that Ms. Bennett simply assign him one-third of her interest.

In March 2005, Respondent wrote to Ms. Bennett and stated that he had prepared an assignment for his one-third share of the oil/gas royalty. Respondent then wrote: "When I get it all set up this way, I’ll send you some things from my file that you requested."

In July 2005, Ms. Bennett wrote Respondent and requested her file. On August 11, 2005, Respondent responded and indicated that he was concerned that Ms. Bennett now wished to dishonor her agreement with him. The People intervened on behalf of Ms. Bennett in August 2005. In September 2005, Ms. Bennett wrote the oil/gas company and directed them to send the oil/gas royalty to her; they did so. Respondent returned her file in October 2005.

As of August 2005, $35,095.14 had been paid pursuant to the oil/gas royalty and Respondent had received $11,675.42 from the same. The periodic payments made to Respondent from the oil/gas royalty do not reduce the amount of child support arrearages owed by Ms. Bennett’s ex-husband.

Ms. Bennett testified that she originally believed and still believes "all amounts collected" as that term was used in the fee agreement meant Respondent would receive one-third of what he actually collected from the child support arrearages, in this case one-third of $4,000.00, and that he would stop taking one-third of the oil/gas royalty when his bill had been paid in full. However, she also testified that one-third of the total judgments "seems fair to me" and that she would leave it to the Hearing Board to decide whether or not she should receive money back from Respondent.

With regard to obtaining the oil/gas royalty interest, Respondent testified that he traveled to Durango for title work, levy and seizure research, and the sheriff’s sale. He also spent office time receiving and distributing the oil/gas royalty payments for thirteen years and estimates that all of his efforts, at his original rate of $125.00 per hour, are worth eight to ten thousand dollars.

IV. CONCLUSIONS OF LAW

The People argued that Respondent violated Colo. RPC 1.5(a) because the plain language of the contingent fee agreement does not entitle Respondent to a one-third interest in the oil/gas royalty. They also argued it violates the reasonableness standards articulated by the Colorado Supreme Court in People v. Nutt, 696 P.2d 242 (Colo. 1984).

Respondent claims that the plain language of the contingency fee agreement covers "all amounts collected" and is not limited to the recovery of child support arrearages. Hence, Respondent argues that he is entitled to one-third of the oil-gas royalty in perpetuity and that such a fee is reasonable. He also claims that the Nutt case is inapplicable to the present case in light of the work he completed on behalf of his Ms. Bennett and the risk he took to obtain a good result for her.

The Hearing Board finds that the People proved Count I by clear and convincing evidence. Colo. RPC 1.5(a) provides that a lawyer’s fee shall be reasonable. The Hearing Board concludes that Respondent charged an unreasonable fee to Ms. Bennett.

Ms. Bennett retained Respondent to collect a definable and calculable amount of child support arrearages. The plain language of the contingent fee agreement is silent as to the specific consideration of an oil/gas royalty. Respondent actually collected $4,000.00 of the total judgments for Ms. Bennett, but still claims a perpetual interest in an asset she purchased with a portion of her judgments. The Hearing Board finds no evidence of a subsequent modification or novation of the original contingent fee agreement.4 Therefore, the Hearing Board agrees that the receipt of over $11,000.00, plus future royalty payments in perpetuity, is unreasonable under the contingent fee agreement. However, the Hearing Board notes that the evidence also suggests that Ms. Bennett allowed Respondent to take one-third of the oil/gas royalty payments for over ten years without protest.

Nevertheless, the Colorado Supreme Court clearly stated in Nutt that a fee arrangement directly related only to oil/gas royalties an attorney’s client might receive constitutes an unreasonable fee because it is not indicative of the time, labor, and skill invested by the attorney. Nutt, 696 P.2d at 248. Therefore, the Hearing Board also finds that if the contingent fee agreement had entitled Respondent to a one-third interest in the oil/gas royalty, it would have violated Nutt because Respondent’s compensation ultimately would have been related to the royalties his client might receive from an oil/gas interest and not the value of his services as an attorney.

V. SANCTIONS

At the conclusion of the evidence, the People argued that Respondent violated Colo. RPC 1.5(a) but requested that the Hearing Board place Respondent in a diversion program pursuant to C.R.C.P. 251.13 in lieu of a sanction. Respondent advised the Hearing Board through counsel that he would accept a diversion agreement in lieu of a sanction if the Hearing Board found a rule violation. The Hearing Board issued an opinion pursuant to C.R.C.P. 251.19(b)(3) and offered Respondent the opportunity to enter a diversion program on January 31, 2007. Respondent rejected the diversion agreement by a letter dated February 8, 2007.5 Therefore, the Hearing Board must determine the appropriate sanction for Respondent’s misconduct.

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

The Hearing Board finds Respondent violated duties owed to his clients and the legal system. Respondent specifically violated his duty to charge his client a reasonable fee for the services he provided to her. The evidence established that Respondent negligently engaged in this conduct and caused actual and potential harm to his client and the legal system.6 "Attorney misconduct perpetuates the public’s misperception of the legal profession and breaches the public and professional trust." In re DeRose, 55 P.3d 126, 131 (Colo. 2002) (paraphrasing In re Paulter, 47 P.3d 1175, 1178 (Colo. 2002)).

The Hearing Board finds clear and convincing evidence of the following aggravating factors: refusal to acknowledge wrongful nature of conduct and substantial experience in the practice of law. See ABA Standards 9.22(g) and (i). The Hearing Board also finds clear and convincing evidence of the following mitigating factors: no prior disciplinary record and full and free disclosure in these proceedings. See ABA Standards 9.32(a) and (e). The parties also stipulated that Respondent has a reputation in the community as an attorney of good character and that he is a highly respected member of the legal profession. See ABA Standard 9.32(g).

The ABA Standards suggest that the presumptive sanction for the misconduct and rule violation established in this case ranges from private admonition to public censure. Public censure 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. ABA Standard 7.3. But private admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in determining whether the lawyer’s conduct violates a duty owed to the profession, and causes little or no actual or potential injury to a client, the public, or the legal system. ABA Standard 7.4.

The commentary to ABA Standard 7.3 indicates that "[c]ourts typically impose reprimands when lawyers engage in a single instance of charging an excessive or improper fee." See also In re Wimmershoff, 3 P.3d 417, 421 (Colo. 2000) (violation of Colo. RPC 1.5(a) implicates ABA Standard 7.0). The Colorado Supreme Court suspended Nutt from the practice of law for a period of six months, but he had been previously disciplined for conduct involving an attempt to collect a clearly excessive fee. Nutt, 696 P.2d at 249. This case involves only the one instance of charging an improper fee. Weighing the aggravating and mitigating factors together with the seriousness of the misconduct, the Hearing Board concludes that a public censure is the appropriate sanction in this case.

VI. CONCLUSION

Respondent has no prior discipline in over thirty-three years as a licensed attorney in the State of Colorado. Although the Hearing Board finds Respondent charged an unreasonable fee, none of the evidence suggests that he was motivated by malice, selfishness, or dishonesty. Respondent provided a remedy for his client that was otherwise unavailable, but the fee agreement, as Respondent interprets it, is unreasonable.

Further, this case presents the Hearing Board with a unique issue where although the Hearing Board finds misconduct, public censure is an appropriate sanction. See generally In re Sather, 3 P.3d 403, 415 (2000) ("Because we have not previously made clear an attorney’s obligation to deposit all forms of advance fees into trust accounts or explained the prohibition against "non-refundable" fees, we do not sanction Sather for violating these rules."). In light of the fact that Respondent acted negligently, and that his conduct involved only one client, the Hearing Board concludes that a public censure is appropriate in this case.

VII. ORDER

The Hearing Board therefore ORDERS:

1. GERALD B. FEATHER, Attorney Registration No. 05996, is hereby PUBLICLY CENSURED.

2. GERALD B. FEATHER SHALL pay the costs of these proceedings. The People shall submit a Statement of Costs within fifteen (15) days from the date of this Order. Respondent shall have ten (10) days thereafter to submit a response.

__________

1. The Hearing Board notes that Respondent admitted paragraphs 1-11 of the People’s Complaint in his Answer.

2. See Exhibit A to the People’s Complaint filed June 6, 2006.

3. See Exhibits B and C.

4. See generally Chapter 23.3, Rules Governing Contingent Fees, Rule 4, amended and effective January 31, 1992.

5. Counsel for Respondent moved to withdraw on February 21, 2007.

6. "Negligence is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation." ABA Standards (Definitions).

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Case No. 04PDJ112

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

SUSAN G. HAINES.

April 26, 2006

OPINION AND ORDER IMPOSING SANCTIONS

On January 17-20 and 24-25, 2006, a Hearing Board comprised of Marilyn L. Robertson, John E. Hayes, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge, held a hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Susan G. Haines ("Respondent") appeared and was represented by Eric B. Liebman and Lee Katherine Goldstein. The Hearing Board issues the following Opinion and Order Imposing Sanctions based upon the presentation of the parties.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. ISSUE

Disbarment is appropriate when a lawyer acts deceitfully and thereby misappropriates funds. Pursuant to a contingency fee agreement, Respondent knew she earned approximately 5% of contingency fees from litigation on behalf of an estate. Unbeknownst to litigation co-counsel and her client, the personal representative of the estate, Respondent took more than 100% of these contingency fees. Is Respondent’s conduct deceitful even if she could claim administrative fees for estate work earned on an hourly basis?

II. PROCEDURAL HISTORY AND BACKGROUND

On December 10, 2004, the People filed a complaint in case 04PDJ112. Respondent filed an answer on January 24, 2005. On January 17, 2006, the Hearing Board began hearing evidence on the substantive allegations set forth in the People’s complaint. The Hearing Board also heard evidence of aggravating and mitigating factors. The People argued Respondent’s conduct warrants disbarment while Respondent argued for the dismissal of all claims, or in the alternative, a sanction short of disbarment. The People presented four witnesses that included an expert in probate law. Respondent presented three witnesses, three expert witnesses, and her own testimony as an expert in probate and elder law.

III. FINDINGS OF FACT

The Hearing Board considered the testimony of witnesses and exhibits admitted into evidence, and makes the following findings of material fact 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 30, 1984. She has been registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 14114, and is therefore subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

The Edouart Estate

Respondent represented John Erpelding ("Erpelding"), personal representative of the Dorothy Edouart Estate ("Edouart" and "the Estate"). Erpelding agreed to act as the personal representative of the Estate at the behest of Respondent after the previous personal representative’s health failed. Erpelding practiced probate law in California for nearly fifty years, and agreed to serve as the personal representative after Respondent assured him that her firm would perform all administrative work. Respondent notified Erpelding by letter that her fees for the administrative work would be calculated on an hourly basis, but that any litigation the Estate might undertake would be governed "separately" by a contingency fee agreement with litigation counsel.1

As fiduciaries of the Estate, Respondent and Erpelding were responsible for identifying and marshaling its assets including any potential litigation claims.2 In this context, Respondent and her firm reviewed documents from the Estate and discovered possible fraud and undue influence claims against Howard Zwick ("Zwick"), Edouart’s son, and the lawyer who helped him obtain property from Edouart. Respondent also identified potential malpractice claims against lawyers who represented Edouart in Florida in the estate matters in question.

Though Respondent identified the potential claims, she also recognized these claims presented complex legal and factual issues in multiple jurisdictions that would require representation from an experienced trial attorney on behalf of the Estate. In 2001, Respondent hired Michael T. Mihm ("Mihm"), an experienced trial attorney who was then a partner with the law firm of Kennedy and Christopher, P.C. ("K&C"). Thereafter, Mihm acted as lead litigation counsel for the Estate and promptly initiated discovery, hired experts, and hired local counsel to advance the Estate’s claims. Due to the costly nature of pretrial litigation, and the Estate’s lack of funds, Mihm and K&C agreed to advance the costs of litigation and obtain payment from the Estate at a later date.

Before Mihm began work on the Edouart litigation, Respondent’s firm, Mihm, and Betty Litzko (personal representative at that time) entered into a written contingency fee agreement3 that summarized the rights and duties of the parties and limited the scope of representation to the litigation Mihm undertook against Zwick and others on behalf of the Estate. One of the major provisions of the contingency fee agreement outlined the disbursal of any funds that might be realized from the claims Mihm would soon litigate on behalf of the Estate. The agreement provided that 33 1/3 % of the gross recovery would be shared between Respondent’s law firm and K&C based upon the work performed.4 When a case settled, the parties would arrange an accounting to determine the amount owed to each firm. In the event of a dispute as to the division of the fees and costs, the firms agreed to resolve it through binding arbitration.

In addition to sharing fees based on work performed, the contingency fee agreement also allowed the firms to recoup costs of litigation from any recovery. After disbursal of fees and costs to the lawyers, the Estate would be entitled to the remainder. The parties also maintained an attorney’s lien on fees for work they performed. Neither Respondent nor Mihm had a right to collect fees calculated on an hourly basis from any settlement based on hourly work they performed in the litigation.

In August 2001, with Erpelding’s approval, Mihm filed a suit on behalf of the Estate in the United States District Court for the Southern District of Florida ("Florida District Court") and hired local counsel to assist in the litigation. After they evaluated the malpractice claims against various defendants in the Florida litigation, both Respondent and Mihm initially estimated a potential judgment of up to $1.5 million in favor of the Estate.5 The Florida litigation, however, proved to be more difficult than the parties anticipated.

On the eve of trial, in early December 2002, the trial judge ruled that the Florida District Court did not have jurisdiction over some of the defendants and hinted that summary judgment might be granted in favor of the Zwicks, the most culpable party to the lawsuit according to Mihm, Respondent, and Erpelding. With the trial court judge signaling he would likely dismiss the claims against all but one defendant, a Florida attorney, Mihm and Erpelding accepted an offer of $200,000 to settle all claims against this attorney.

Before they accepted the offer, Mihm and Erpelding contacted Respondent by phone from Florida and advised her of the proposed settlement. Respondent was upset that Mihm agreed to settle for substantially less than she felt the case was worth, but did not voice any objection at the time. After they agreed to the settlement, Mihm and Erpelding decided that the Estate should use the $200,000 to pay the costs Mihm expended in the Florida litigation and set aside the remainder as a "war chest" to help pay for future litigation costs the Estate would incur when they appealed the Florida District Court’s rulings and initiated a new action against Zwick in Rhode Island. Mihm later proposed this idea to Respondent in a face-to-face meeting with her when he returned to Denver from Florida.

This face-to-face meeting occurred on December 19, 2002. Mihm, Respondent and others met for more than four hours at K&C’s office to discuss future strategy on the claims dismissed by the Florida District Court, as well as disbursement of the $200,000 in settlement funds.6 During the meeting, Mihm reiterated that his firm would no longer advance the costs of litigation and insisted that his firm be paid immediately for costs it expended in obtaining the $200,000 settlement. He also stated that if the Estate wanted to continue the litigation, it would need to hire appellate counsel in Florida to appeal the adverse rulings of the Florida District Court.7 Furthermore, Mihm suggested that if the Estate intended to pursue Zwick and his Rhode Island attorney, they would need to hire a "high profile" lawyer in Rhode Island. At that time, the Estate still owed $17,000 to local counsel in Florida who assisted Mihm in litigating the Florida claims.

Without additional funds to pay costs of future litigation, the parties faced the prospect of receiving only a fraction of the fees they had each generated in representing the Estate. Mihm’s firm alone had logged approximately $500,000 in fees directly related to the Florida litigation. Respondent testified that her firm logged, but never collected, nearly $100,000 for administrative work done on behalf of the Estate. All of this administrative work was completed before Respondent hired Mihm. Though Respondent’s firm had billed approximately $100,000 in fees to the Estate, those fees were billed on an hourly rate for administrative matters unrelated to the litigation. By Respondent’s own estimate in these proceedings, Mihm’s firm completed about 95% of the litigation work while her firm completed about 5%.

With no prospect of the Estate funding future litigation, Mihm proposed during the December 19th meeting that his firm temporarily forgo their share of the settlement funds (approximately $63,000) under the contingency fee agreement. Mihm further proposed his earned fees be used to fund a "war chest" for future litigation as he and Erpelding had earlier agreed. During these discussions, Respondent literally calculated and contemplated, but never articulated, that she intended to take $70,000 for her firm leaving $84,000 for Mihm’s costs and $25,000 for future litigation.8

Following the meeting, Mihm drafted and sent a letter to Respondent memorializing his understanding of the disbursal of contingency fees and costs discussed at the meeting of December 19, 2002.9 Respondent received this letter in the mail but never responded to Mihm’s proposal.10 Neither during nor following the meeting on December 19, 2002, did the parties reach an agreement about the disbursal of funds from the settlement that modified their written contingency agreement. Under this agreement, Respondent was due approximately $4,000, based on her own estimate that her firm completed about 5% of the work in the litigation matter.11 Mihm should have received $173,000, (approximately $63,000 in fees and $110,000 for costs)12 and the Estate would have netted roughly $23,000. After paying Florida counsel $17,000, the Estate would have had little money to appeal the adverse decisions they suffered in Florida or to pursue claims in Rhode Island against Zwick.

Shortly after the December 19, 2002 meeting, Mihm received a call from Zwick’s counsel in the Florida litigation. Zwick’s counsel notified Mihm that he planned to file a motion in the Arapahoe County Probate Court to request an order that would restrain the disbursal of the settlement proceeds until the Zwicks had an opportunity to challenge any disbursement. Mihm recalled that he notified Respondent of this motion but cannot document his notice to her in writing.

On or about December 23, 2002, four days after Mihm and Respondent met to discuss case strategy and disbursement of settlement funds, John Campbell ("Campbell"), an associate with Respondent’s law firm, called Erpelding at Respondent’s direction and asked if their firm could be paid their fees. However, Campbell did not inform Erpelding that Respondent planned to take $70,000 and/or that the fees were for estate administration work completed on an hourly basis as opposed to fees Respondent’s firm earned subject to the contingency fee agreement. Furthermore, neither Respondent nor Campbell explained to Erpelding what legal exposure the Estate might incur if Respondent took more proceeds from the Florida settlement than she was authorized to take under the written contingency fee agreement.

Erpelding told Campbell to "do whatever was necessary" to pay Mihm and Respondent’s firm for the work they had performed on behalf of the Estate. Respondent controlled the Estate’s account as the only authorized signatory throughout her representation of the personal representative. Erpelding did not keep track of the balance of the Estate’s account and trusted Respondent to charge no more for fees than reasonable given the limited amount of money the Estate maintained.

Though Respondent never specifically accepted or rejected Mihm’s written or oral proposals to set aside all of the contingency fees Mihm earned for a "war chest," Mihm took Respondent’s silence as approval of his proposal. He therefore endorsed the settlement check and turned it over to Respondent on December 31, 2002 with the understanding that his firm would be paid all its costs and that the remainder would be used as a "war chest" for future litigation.

As soon as Mihm turned over the settlement check to Respondent, she deposited it into the Estate’s account.13 She then immediately wrote two checks14 totaling $70,000 to her firm, one for $33,000 with the notation "contingency fees" and the other for $37,000 with the notation "estate work" in the Edouart case. The bank negotiated the checks Respondent wrote to her law firm the same day she wrote them. At the time, her firm’s account had a balance of $7,250.09. After depositing $70,000 into her firm’s account, Respondent caused her bookkeeper to write checks to pay for miscellaneous law office expenses and herself.

In addition to writing herself checks from the proceeds of the settlement, Respondent also tendered an $84,000 check to Mihm’s firm for litigation costs and a separate check for $25,000 to hire counsel in Rhode Island. Mihm did not understand why he received a $25,000 check because he never discussed this amount with Respondent. Mihm did not cash the checks from Respondent because he knew that counsel for Zwick would soon file a motion to restrain the disbursement of any settlement funds and the probate court might grant this motion. Shortly thereafter, the probate court did grant Zwick’s motion to restrain disbursal of the settlement funds. At about this time, the Florida District Court awarded Zwick attorney fees for defending the Florida litigation against the Estate in the amount of $170,000.

Respondent testified unequivocally in these proceedings that Mihm specifically agreed at the meeting of December 19, 2002, that she could take out fees and costs of $70,000 from the settlement check. Respondent also testified that she called Erpelding and that he too agreed that she could take $70,000 from the settlement fees. Yet, when first asked to respond to Mihm’s complaint filed with the Office of Attorney Regulation, Respondent stated that she acted mistakenly and naively in believing Mihm had agreed she could take $70,000.15 There is no credible evidence that Respondent ever told Mihm or Erpelding that she intended to claim $70,000 once they turned over the settlement check to her for deposit into the Estate’s account.16

Mihm and Erpelding did not discover that Respondent had taken $70,000 from the settlement until sometime in May 2003.17 At the time Mihm confronted Campbell about taking $70,000 from the Estate account, Campbell made no mention that Mihm and Erpelding had agreed to such a disbursement. Instead, he offered that Respondent’s firm had a billing problem. When Mihm and Erpelding were fully advised of the Respondent’s withdrawal of $70,000 from the settlement proceeds, they both asked Respondent to return the money. Although Respondent offered to negotiate the matter, she did not return the money and told Erpelding that her firm could not return the money without causing financial harm to the firm. She later filed bankruptcy, but failed to provide Mihm and Erpelding with notice of the bankruptcy, prompting them to file an adversary pleading urging the bankruptcy court not to discharge her obligation to Mihm and the Estate in the amount of $70,000.

As a result of the ancillary litigation and the conflict caused by Respondent’s actions, Mihm hired separate counsel for Erpelding and engaged in additional litigation in the probate court as well as the bankruptcy court. In June 2003, after Respondent failed to return the funds or make arrangement to return them, Mihm filed a complaint with the People.18

The Rose Matter

On May 15, 2002, Respondent and Sheli Rose entered into an agreement for Respondent to provide a Medicaid Estate plan for Mrs. Rose. At the time, Mrs. Rose and her husband were still legally married but had not lived together for over 13 years. After separating from Mrs. Rose, Mr. Rose signed his ownership interest in the family residence to Mrs. Rose making her the sole owner.

In 2002, Mr. Rose’s health worsened and it was clear that he would soon need nursing home care. With this circumstance, Mrs. Rose needed advice on how Mr. Rose’s application for Medicare would affect her assets, in particular the house she and Mr. Rose previously owned together. Mrs. Rose sought Respondent’s counsel as an expert on this issue. Indeed, Respondent had authored several articles, had given several lectures on Medicaid eligibility, and had been considered an expert in this field.

On May 24, 2002, Respondent sent a twenty-page letter to Mrs. Rose entitled "Medicaid for Gabe Rose." John Campbell signed the letter on Respondent’s behalf. The letter opined that it would be difficult to have Mrs. Rose’s marital home declared exempt under Medicaid regulations and that these regulations may require Mrs. Rose to sell her house or obtain a divorce from her husband. Campbell later sought a "predetermination" of whether Mrs. Rose’s residence would be exempt for purposes of determining Mr. Rose’s eligibility for Medicaid. Campbell sent this letter to Marianne Towey, the lawyer who oversaw Medicaid for the Colorado Department of Health Care Policy and Financing. Ms. Towey’s response stated, "[t]he home owned and occupied by the community spouse is exempt."19

The People’s expert testified that as a matter of practice most lawyers would realize that Mrs. Rose’s house would qualify as an exempt asset under Medicaid regulations (as written at the time of representation) without the necessity of Mrs. Rose taking further steps to qualify. Thus, this expert stated that Respondent failed to competently represent Mrs. Rose. Two other experts disagreed and stated that the declaratory opinion provided assurance to the client and cleared up what might have been a misinterpretation by county authorities that could have misconstrued the regulation.

IV. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

The Edouart Matter

The Hearing Board finds by clear and convincing evidence that:

1. Respondent violated Colo. RPC 1.4(b) when she failed to fully explain to Erpelding the effect on the Estate of her withdrawal of $70,000 in administration fees from the Estate’s account, which monies were subject to the contingent fee agreement. This conduct precluded Erpelding from making an informed decision on the best interests of the Estate.

2. Respondent violated Colo. RPC 1.15(a) and (c) when she failed to keep property belonging to Mihm, his fees and costs, separate from her operating account, until the completion of an accounting and severance of the amounts due to Mihm, the Estate, and Respondent.

3. Respondent violated Colo. RPC 8.4(c) by engaging in conduct involving deceit and by misappropriating funds belonging to the Estate and Mihm. Respondent had a right to no more than 5% of the $66,666 in attorney fees from the $200,000 settlement. Without giving Mihm or her client an opportunity to exercise their respective rights under the contingency agreement, Respondent unilaterally took substantially more than the amount due to her firm under the contingency fee agreement. Respondent acted deceitfully when she took funds without notice and without consent from Mihm and Erpelding. Without such consent, the settlement proceeds should have been shared as set forth in the written fee agreement.

4. Respondent violated Colo. RPC 1.15(a) and (f)(1) when she failed to hold property of a client separate from her own property. The contingency fee agreement provided Respondent a right to fees earned in the litigation, but by taking money from the Estate for fees earned outside of the contingency agreement, the Respondent failed to preserve the Estate’s portion of the settlement.

The Rose Matter

Due to a lack of clear and convincing evidence, the Hearing Board finds Respondent did not violate Colo. RPC 1.1. For the most part, her associate John Campbell represented Mrs. Rose. He wrote the letter to Mrs. Towey seeking a predetermination of Mrs. Rose’s Medicaid issue. Even if Respondent had written the letter, the Hearing Board cannot find that writing such a letter demonstrated incompetence. Respondent firm did not even charge Mrs. Rose for drafting the letter asking for a predetermination. Perhaps most lawyers practicing Medicaid law in Colorado would think that writing such a letter was unnecessary. While such conduct may show an abundance of caution, it completely fails to demonstrate incompetence. Likewise, Respondent’s advice that the fact that Mr. Rose had not lived with Mrs. Rose might raise an issue under the regulation was a matter that the experts disagreed on, but was not sufficient to show a lack of competence.

V. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. The appropriate sanction depends upon the facts and circumstances of each case.

Analysis Under the ABA Standards

Disbarment is generally appropriate when a lawyer converts client property or intentionally acts with deceit and lack of candor. ABA Standards 4.11, 4.61 and 5.11(b), respectively. Therefore, disbarment is the presumptive sanction for Respondent’s misconduct. However, before imposing a sanction after a finding of lawyer misconduct, ABA Standard 3.0 directs the Hearing Board to first consider the following factors to determine whether the presumed sanction is appropriate:

(1) the duty violated;

(2) the lawyer’s mental state;

(3) the actual or potential injury caused by the misconduct; and

(4) the existence of aggravating or mitigating factors.

A. THE DUTY VIOLATED

Respondent violated duties to her client, litigation co-counsel, and the legal profession when she failed to fully disclose her intent to take $70,000 from the settlement proceeds, and then took the $70,000 without the consent of her client and litigation co-counsel. Although Erpelding reluctantly admitted that he should have been more vigilant, Respondent had the primary duty as the personal representative’s lawyer to see that Erpelding carried out his fiduciary duties to the Estate. Respondent also had a duty to deal fairly and candidly with her litigation co-counsel. In taking the money, Respondent placed her financial interests above these duties.

B. THE LAWYER’S MENTAL STATE

Respondent acted knowingly and intentionally. She knew that her firm was subject to the written contingency fee agreement and even re-read it shortly before she took the funds. She was also aware that her firm’s share of the settlement fees pursuant to this agreement was approximately $4,000 yet she still withdrew $70,000 from the settlement proceeds. While Erpelding authorized Respondent "to do whatever was necessary" to pay Mihm and her firm fees and costs, Respondent knew that her client was nevertheless still bound by the terms of the fee agreement to pay Mihm his fees based upon the work he and his firm completed on behalf of the Estate.

"Conduct by which one lawyer seeks to dupe another lawyer (and the latter’s client) tears at the fabric of the legal profession, which can expect to have no better reputation for trustworthiness in the community than that of its worst actors." In re Complaint as to the Conduct of Daniel Q. Gallagher, 332 Or. 172, 182, 26 P.3d 131 (Or. 2001).

While Respondent initially claimed that she acted on a mistaken belief that she had permission to take $70,000 from the settlement funds, the record does not support her assertion. Respondent’s actions instead reveal a conscious objective to pay her firm $70,000 from the settlement proceeds, without the consent of her client and litigation co-counsel and not to disclose the same, in spite of the terms of the contingency fee agreement.20

C. THE ACTUAL OR POTENTIAL INJURY

Respondent caused injury to the Estate when she charged an hourly rate after her firm agreed to charge a contingency fee limited by the terms of a written fee agreement. Her conduct also halted the pursuit of further litigation Mihm would have shouldered on behalf of the Estate and left the Estate with substantial bills and no apparent way to pay them. In this process of litigating the rights and duties of the parties following Respondent’s misappropriation, Mihm had to find counsel to represent Erpelding independent of K&C because of the conflicts that arose.21

D. AGGRAVATING AND MITIGATING FACTORS

1. MATTERS IN AGGRAVATION, ABA STANDARD 9.2

The Hearing Board considered evidence of the following aggravating circumstances in deciding the appropriate sanction to impose.

Dishonest or Selfish Motive—9.22(b)

Respondent was primarily interested in obtaining payment for services her firm performed outside the written contingency agreement. While she had a right to be paid reasonable fees, Respondent placed her financial interests first, and disregarded those of her litigation co-counsel and her client. Even if Respondent believed she could take the funds without harming the Estate, she had no right to the money derived from the Florida litigation settlement in the first instance.

Submission of False Evidence or Statements—9.22(f)

Respondent testified that she specifically advised Mihm at the December 19, 2002 meeting of her intention to take $70,000 from the settlement proceeds and that he consented. She also specifically testified that Erpelding gave her permission to take $70,000. Based upon all the testimony and the facts and circumstances surrounding that meeting, the Hearing Board finds Respondent falsely testified on this point.

Refusal to Acknowledge Wrongful Nature of Conduct—9.22(g)

In these proceedings, Respondent steadfastly refused to acknowledge that she acted deceitfully. Instead of accepting responsibility for her actions, she blamed her client for not reviewing billing statements22 and Mihm for leading her to believe that the disbursement of $70,000 would be acceptable with him. Finally, Respondent offered testimony from experts that once the settlement proceeds were placed into the Estate account, she was authorized to make withdrawals as long as Erpelding agreed. However, the Hearing Board finds that Erpelding did not make an informed decision about payment of fees to Respondent because Respondent failed to provide Erpelding with sufficient information about her plan to withdraw funds well beyond what she could legitimately claim.

Vulnerability of the Victim—9.22(h)

Respondent’s client, the personal representative, was a particularly vulnerable client because he was elderly, lived in California, did not control the Estate’s account, and placed complete trust in Respondent to help him carry out the fiduciary duties he owed to the Estate. Respondent also failed to timely provide Erpelding with the Estate’s account statements. Erpelding agreed to work for free after Respondent assured him that he would not have to do any of the administrative work. Under this arrangement, Erpelding relied heavily on Respondent and trusted her to properly advise him and act in the best interest of the Estate.

Substantial Experience in the Practice of Law—9.22(i)

Respondent practiced law for nearly 22 years and has established herself as a recognized expert in the field of elder law.

Indifference to Making Restitution—9.22(j)

Respondent did not make a good faith effort to replace the money she took, even after the personal representative and Mihm asked her to do so. Further, Respondent presented testimony that showed she nevertheless met her other financial obligations at or about the time that Mihm and Erpelding asked her to return the money she took.

MATTERS IN MITIGATION, ABA STANDARD 9.3

Absence of a Prior Disciplinary Record—9.32(a)

Respondent practiced nearly 22 years without a prior disciplinary record.

Personal or Emotional Problems—9.32(c)

At or about the time Respondent took $70,000 from the Estate’s account, she suffered from a lupus-like infirmity and other health problems, and as a result needed to take pain medication. While Respondent suffered from significant pain and engaged herself in a pain management program, her condition did not cause the conduct in this case. Even so the Hearing Board considered her condition in reaching its conclusions.

Delay in the Disciplinary Proceedings—9.32(i)

Although Respondent asked for a number of continuances in these proceedings, not all of them are attributable to circumstances within her control. Erpelding died during the course of these delays and could not testify at trial. During his deposition, which was videotaped and was viewed by the Hearing Board, Erpelding testified numerous times about the fine work Respondent completed on behalf of the Estate and his desire that neither she nor Mihm be harmed in these proceedings. Erpelding also stated during his deposition that he believed Respondent made a mistake in taking the funds in question.

Good Character or Reputation—9.32(g)

Respondent practiced for nearly 22 years and has earned a reputation amongst some of her peers as a brilliant probate lawyer who has served the bar and the public well.23

Analysis Under Case Law and ABA Standards

Colorado Supreme Court case law applying ABA Standards 4.11, 4.61, and 5.11(b) hold that disbarment is the presumptive sanction when a lawyer misappropriates client or third party funds or deceives a client with the intent to benefit the lawyer and thereby causes potential injury.

"When there is a dispute as to what share a lawyer is to receive from trust funds being held by the lawyer, whether the dispute is with a client or a third party, the lawyer must not take advantage of his physical control of the funds . . . [I]nstead, he must disburse the undisputed share, as required by Rule 1.15(b), and keep safely segregated the remainder under Rule 1.15(c) until the dispute is resolved." The Law of Lawyering, §19.7 (3rd Ed. 2002 Supp.).

Respondent cannot credibly claim that the $70,000 she took amounted to her undisputed share of the Florida litigation settlement proceeds or that the parties agreed she could take that amount. Although Respondent claims that there was no dispute in this case, she ignores the fact that a specific contingent fee agreement outlined that the fees would be split based upon work performed on the litigation, not an hourly basis for administrative work. Finally, the only rational explanation as to why neither Mihm nor Erpelding failed to voice an objection to Respondent’s taking $70,000 is that they were completely unaware of it. Had Respondent disclosed her intent to do so at the December 19, 2002 meeting, Mihm surely would have objected as he and Erpelding did some five months later when they discovered Respondent’s misappropriation.

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). People v. Varallo, 913 P2d 1, 11 (Colo. 1996); Cf. People v. Fisher, 89 P.3d 821 (Colo. 2004). Respondent’s intent is decisive in cases involving alleged conversion and deceit. The People must prove by clear and convincing evidence that Respondent’s misappropriation was knowing and not just negligent. See People v. Rader, 822 P.2d 950, 953 (Colo. 1992).

The Hearing Board carefully considered Respondent’s testimony that Mihm and Erpelding specifically approved her taking $70,000 and finds this testimony to be false. The facts and circumstances show by clear and convincing evidence that neither Mihm nor Erpelding would have approved Respondent taking $70,000. First, Mihm’s law firm had expended over $100,000 in costs and logged fees of approximately $500,000 in this litigation and was motivated to be paid as promptly as possible. Second, Respondent admits that Mihm’s firm had done most of the work on the litigation and would have had a right to claim almost all of the 1/3 contingency fees on the settlement, approximately $63,000. Third, and most important, Mihm and Erpelding had already decided to use Mihm’s fees to fund a war chest for the costs of future litigation, subject to Respondent’s approval.

Reason and common sense show that the only way Mihm could ever hope to be paid the nearly $500,000 his firm had billed was to successfully prosecute those defendants who were dismissed in Florida for lack of jurisdiction. It would be contrary to Mihm’s financial interests as well as that of the Estate to give up his right to his fees earned under the settlement so Respondent could claim $70,000 for fees she claimed she earned on an hourly basis for administering the Estate, a matter wholly outside the written contingency fee agreement.

VI. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who may pose a danger to them. While this is Respondent’s first and only case involving a breach of the Colorado Rules of Professional Conduct, Respondent’s misconduct demonstrates a serious lack of integrity and candor. Furthermore, the aggravating factors substantially outweigh the mitigating factors.

Respondent should have acted as a representative of the personal representative, a fiduciary, when she dealt with money belonging to the Estate and her litigation co-counsel. She held a position of trust. See People v. Nulan, 820 P.2d 1117, 1119 (Colo. 1991). Instead, at the December 19th meeting she contemplated taking $70,000 even while Mihm explained his proposition to use his fees as a war chest. Thereafter, she took advantage of her control over the Estate’s account and Erpelding’s willingness to trust that she would act in a reasonable manner.

Lawyers in Colorado must be guided by the highest moral and ethical standards. Regardless of Respondent’s financial needs, purposeful deception will not be tolerated, especially where the deceit is used to gain a financial advantage over others who have placed a high degree of trust in her to handle funds honestly. See In re Pautler, 47 P.3d 1175, (Colo. 2002). Respondent ignores the lawyer’s moral and ethical duties and urges the Hearing Board to find that once Mihm agreed to place the funds into the Estate’s account, he no longer had standing to object to her taking $70,000. The Hearing Board rejects this interpretation of substantive law as applied to rules of professional conduct.

While a lawyer’s good faith actions based upon a well-established rule of law may provide a defense to an ethical violation, this is not one of those situations. To accept that a legal loophole excused Respondent’s conduct, the Hearing Board would have to ignore a lawyer’s duty to deal with others, including co-counsel, honestly, fairly, and with candor. The Hearing Board invited the Respondent to provide case law to support her legal argument; however, she failed to provide such case law. Furthermore, the Hearing Board cannot find that her conduct was acceptable based upon custom and practice in probate law. See People v Sather, 3 P.3rd 403, 406 (Colo. 2000).

Finally, the Hearing Board finds Respondent’s persistent claim that she had permission to take $70,000, or in the alternative, that substantive probate law immunized her from any sanction, demonstrated a continuing and troubling lack of candor and acceptance of responsibility.

VII. ORDER

The Hearing Board therefore ORDERS:

1. SUSAN G. HAINES is hereby DISBARRED from the practice of law, effective thirty-one (31) days from the date of this order.

2. SUSAN G. HAINES SHALL pay the costs of these proceedings. The People shall submit a Statement of Costs within fifteen (15) days from the date of this Order. Respondent shall have ten (10) days thereafter to submit a response.

3. SUSAN G. HAINES SHALL pay restitution in the amount of $70,000 to the Estate of Dorothy Edouart.

__________

1. See Respondent’s Trial Exhibit J.

2. At the time Respondent filed the probate action in Arapahoe District Court, the Estate had approximately $12,000 in its bank account.

3. See People’s Exhibit 37.

4. Respondent initially proposed a 50-50 split of any fees Mihm earned in the litigation.

5. The attorneys evaluated the value of these claims as low as $600,000 and as high as $1.6 million during the course of litigation brought on behalf of the Estate.

6. Erpelding did not appear at this meeting.

7. Mihm contacted an appellate lawyer who quoted a fee of $70,000 to complete the entire appeal, or $35,000 if Mihm’s firm assisted with it.

8. See Exhibit U. Although Respondent testified that she actually told Mihm she would be taking $70,000 and offered this exhibit in support of her contention, the Hearing Board specifically finds that she contemplated taking this money but did not disclose the same to Mihm.

9. See People’s Trial Exhibit 70.

10. The Hearing Board does not find Respondent’s claimed failure to read this letter before she took $70,000 affects its decision, because the letter substantially memorialized the proposal voiced in the meeting of December 19, 2002.

11. This figure is consistent with Respondent’s billing records Exhibit ZZZ.

12. Mihm’s costs ultimately exceeded $140,000.

13. The settlement check was payable to Mihm and Erpelding. Erpelding did not endorse the check but gave Respondent permission to deposit it into the Estate’s account. Before the deposit of the settlement check, the Estate’s account contained $806.77.

14. See Stipulated Exhibit 76.

15. See Exhibit 135 page 17. "At the same time, I naively believed that when the settlement was being be (sic) paid over to the Estate because Mr. Mihm had deferred his fees there were no restrictions on disbursing the funds. I was never, ever told by anyone until May of 2003 that there was any agreement for all of those monies to be paid to Kennedy & Christopher. I can now understand why Mr. Mihm was so angry. He believed I had violated an agreement and I had no knowledge of this agreement."

16. The Hearing Board agrees that Mihm would have objected had Respondent told him that she intended to withdraw $70,000 from the settlement proceeds.

17. On April 27, 2003, an associate from Respondent’s firm called Mihm and advised him that the balance in the Estate account was $126,237.99, insufficient funds needed to pay the costs claimed by K&C. Mihm promptly advised Erpelding. Mihm and Erpelding had no knowledge that a substantial portion of the settlement funds was missing prior to this date. Finally in May 2003, Campbell admitted that Respondent had withdrawn $70,000 from the settlement proceeds after depositing them into the Estate account.

18. Erpelding did not file a complaint and maintained, until his death that it was not for him to decide whether Respondent violated the Rules of Professional Conduct.

19. See the People’s Trial Exhibit 52.

20. Exhibit UU shows Respondent contemplated taking $70,000 from the settlement proceeds while attending the December 19, 2002 meeting with Mihm.

21. At the time of the hearing, the evidence suggested that Mihm still had not received his fees under the contingency fee agreement from the Edouart settlement.

22. Respondent’s testimony concerning Erpelding’s state of mind varied. At times she referred to him as "brilliant lawyer" but after Erpedling asked her to return the money, she referred to him as an older man "slipping due to dementia."

23. See Respondent’s resume tendered in lieu of detailed testimony.

_______________

Case No. 06PDJ035

Petitioner:

TIMOTHY LAQUEY,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

January 24, 2008

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

On September 25, 2007, a Hearing Board composed of William J. Martinez and Douglas D. Piersel, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a Readmission Hearing pursuant to C.R.C.P. 251.29(d) and 251.18. John J. Astuno, Jr. appeared on behalf of Timothy LaQuey ("Petitioner") and James S. Sudler appeared on behalf of 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 seeking readmission after disbarment must prove, among other matters, fitness to practice law and rehabilitation by clear and convincing evidence under C.R.C.P. 251.29. Petitioner, disbarred over fourteen years ago for engaging in criminal conduct, presented evidence of the substantial changes in his personal life and character. Are these substantial improvements sufficient for Petitioner to meet his burden of proving rehabilitation and fitness to practice law by clear and convincing evidence?

Although the People argue that Petitioner has not met his burden and should not be readmitted, the Hearing Board finds Petitioner is rehabilitated and fit to practice law.

DECISION OF HEARING BOARD:
ATTORNEY READMITTED TO THE PRACTICE OF LAW.

II. PROCEDURAL HISTORY

On May 31, 2006, over twelve years after the effective date of his disbarment, Petitioner filed a "Verified Petition for Readmission." The People answered the petition and agreed to its technical sufficiency, but took no position regarding readmission pending an investigation.

On September 17, 2007, the People filed their "Trial Brief Re: Readmission" and stated therein that they did not plan on calling any witnesses and would leave it to the Hearing Board to " . . . determine if the evidence is clear and convincing that the petitioner is rehabilitated and that he is fit to practice law." At the conclusion of the hearing, the People argued that Petitioner had not demonstrated a fundamental change in character, primarily because Petitioner had not entered into a payment plan with the IRS and the Colorado Department of Revenue on taxes he owed before filing his petition. Nevertheless, Petitioner entered into such a plan after the close of evidence at the hearing; the People did not object to the Hearing Board considering such evidence in its findings.

The parties submitted a "Stipulation of Facts," which the Hearing Board incorporates into its findings set forth below.

III. FINDINGS OF FACT

The Hearing Board considered the testimony of witnesses and exhibits admitted into evidence, and now finds the following facts by clear and convincing evidence.

Petitioner took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court, Attorney Registration No. 15602, on May 21, 1986. The Colorado Supreme Court disbarred Petitioner on November 15, 1993. The Hearing Board first addresses those matters that led to his disbarment.

Matters Leading to Petitioner’s Disbarment

First Conviction

On September 14, 1990, four years after his admission to the Bar in Colorado, Petitioner accompanied a friend who arranged for the purchase of ten pounds of marijuana for $8,500.00 from an undercover agent with the South Metro Drug Task Force who posed as a buyer. On May 9, 1991, Petitioner pled guilty to possession of marijuana greater than eight ounces in violation of C.R.S. §18-18-106(b)(I) based upon his participation in this undercover purchase.

Second Conviction

On January 13, 1992, Petitioner entered the Arapahoe County Courthouse, while in possession of a loaded and functional .38 caliber revolver. On May 14, 1992, Petitioner pled guilty, in United States District Court, to a one-count indictment charging him with felony possession of a firearm by a convicted felon.

Petitioner’s testimony as to why he possessed a gun is undisputed in these proceedings. Petitioner began carrying a gun for self-defense following an incident where he was robbed at gunpoint.1 Jan Jenkins, a clinical psychologist, treated Petitioner following the incident and found that he suffered "acute psychological trauma" stemming from the assault. One day while working at the Park Avenue Law Firm, Petitioner, in his haste, went to the courthouse to file a pleading with the gun in his briefcase. When Petitioner went through a magnetometer at the courthouse security post, guards immediately detected the weapon and arrested Petitioner without incident.

Immediate Suspension and Subsequent Disbarment

Effective October 1, 1991, Petitioner consented to the immediate suspension of his license based on the two convictions discussed above. On or about July 21, 1993, Petitioner and the People entered into a stipulation in which he admitted misconduct and consented to the imposition of a three-year suspension or disbarment. On November 15, 1993, the Colorado Supreme Court accepted Petitioner’s stipulation and admission of misconduct and disbarred him from the practice of law. See People v. LaQuey, 862 P. 2d 278 (Colo. 1993).

Evidence Presented in Support of the Petition for Readmission

Recent Conduct in Support of the Petition for Readmission

Over fourteen years have lapsed since Petitioner was disbarred from the practice of law. While Petitioner could have applied for readmission in 2001, he waited until 2006, because he felt he was not ready to resume the practice law. However, approximately one year ago, Petitioner took the following steps to establish his fitness to once again practice law.

  • In July 2005, Petitioner passed the Colorado Bar Examination, and has also successfully passed the Multi-State Professional Responsibility Examination.
  • Petitioner has complied with all orders of the court arising out of his disbarment and has complied with all rules and regulation attendant necessary to process his petition.
  • Petitioner attends weekly therapy sessions with Dr. Jenkins, a clinical psychologist.
  • Petitioner attends daily Alcoholics Anonymous ("AA") meetings.
  • Petitioner meets weekly with his AA sponsor in addition to attendance at AA meetings.
  • Petitioner attends weekly CBA Colorado Lawyers Helping Lawyers group meetings.
  • Petitioner has now paid a substantial amount of the taxes and penalties he owed to the Federal government.2
  • Petitioner has assisted indigent citizens who live near the Park Avenue Law Firm in obtaining eye care and glasses by personally paying for their services.
  • Petitioner, although not affiliated with a formal charitable program, provided assistance to the homeless by providing them money, shelter, and legal assistance through Mr. Sessions.
  • Petitioner acted as basketball coach for a boy’s league and later served on the board of directors for the recreational facility that hosted the program.
  • As a paralegal, Petitioner continues to provide excellent legal assistance, including research and writing for Vernon Sessions, a lawyer with fifty years of experience in the practice of law in Denver.
  • Petitioner testified to his willingness to continue therapy as a condition of his readmission as well as submit to urine analysis.

Testimony of Jan Jenkins, Ph.D.

In 1992 Petitioner sought counseling and psychotherapy for a total of twenty hours with Jan Jenkins Ph.D., a licensed psychologist. Thereafter, Dr. Jenkins testified on Petitioner’s behalf during a sentencing hearing following his conviction of possession of a weapon. In 1992, Dr. Jenkins "felt" Petitioner was an alcoholic and recommended ongoing alcoholic treatment. She also recommended intensive psychotherapy for the "acute psychological trauma" after he was robbed at gunpoint.

While providing treatment to Petitioner in 1992, Dr. Jenkins found him to be impulsive, self-destructive, and immature. Furthermore, Dr. Jenkins noted Petitioner was interested in practicing law for the status it brought him and that he had not dealt with his abuse of alcohol. Dr. Jenkins noted during her sessions with him that Petitioner’s ego was "inflamed with a heady sense of his seeming power, success, and invincibility as a newly minted attorney." She opined that this immaturity, in part, led to his willing participation in the purchase of the marijuana described above.

After making her initial observations in 1992, Dr. Jenkins did not see or treat Petitioner again until August 2006, shortly before he filed his petition for readmission with the PDJ. For nearly a year, Dr. Jenkins has treated Petitioner in weekly sessions. During this period of time, Dr. Jenkins has noted a difference in Petitioner from the findings she made in 1992.

Dr. Jenkins now opines that Petitioner is a different person. She points to the substantial strides he has made in therapy and his capacity to learn from his mistakes. This process has been "facilitated by guidance and support regarding his personal and professional life." He is highly motivated to become a reputable member of the Bar and appreciates the necessity of upholding the ethical standards required of a lawyer. Dr. Jenkins finds that Petitioner is not a danger to the public and that he can practice law as long as he continues to abstain from alcohol. In the opinion of Dr. Jenkins, Petitioner is rehabilitated, is fit to practice law, and he should be readmitted to the bar.

Testimony of Bennett Aisenberg, Esq.

Petitioner met with attorney Bennett Aisenberg twice on or about February 8, 2007, for the purpose of assessing Petitioner’s knowledge of the ethical rules in the State of Colorado. Mr. Aisenberg asked Petitioner to review the Colorado Rules of Professional Conduct and then tested him using an ethics exam, which originated from the National Institute of Trial Advocacy. Petitioner scored 35 correct out of 41. Mr. Aisenberg discussed the incorrect answers with Petitioner, some of which Mr. Aisenberg himself questioned whether the "correct" answer was actually correct under Colorado law. Mr. Aisenberg found that Petitioner had a "a very good overall knowledge of the Rules of Professional Conduct."

Testimony of Rodney Borwick

Mr. Borwick is a lawyer who has practiced in the Park Avenue Law Building for twenty-five years. He has known Petitioner both as a lawyer and as a paralegal during that time. In Mr. Borwick’s opinion, Petitioner has experienced a lot of personal growth and is committed to getting his license back. Mr. Borwick has seen Petitioner grow professionally as a result of Mr. Sessions’ mentoring. Mr. Borwick’s believes Petitioner is a man of integrity and would trust him with court appearances on his behalf.

Testimony of Evelyn Sessions

Mrs. Sessions is the wife of Vernon Sessions. She has managed the Park Avenue Law Firm since its inception approximately fifty years ago. In that capacity, she has worked with Petitioner for more than twenty years. She views Petitioner as trustworthy and conscientious and an asset to the community. She thinks of Petitioner as a son.

Testimony of Robert Driscoll

Mr. Driscoll is a lawyer who was suspended from 1992-2003 for substance abuse. In September 2003, he was reinstated after demonstrating by clear and convincing evidence his abstinence, rehabilitation, and fitness to practice law. Mr. Driscoll first met Petitioner at the CBA’s Colorado Lawyers Helping Lawyers meetings and is now Petitioner’s AA mentor. Mr. Driscoll meets with Petitioner three times a week and one of these meetings is face-to-face. Mr. Driscoll believes Petitioner would be a "tremendous" asset to the legal community and has no questions about Petitioner’s fitness to practice law as long as he remains sober. Mr. Driscoll also testified that in his view Petitioner had been rehabilitated and that his commitment to sobriety is very strong. In this regard, Mr. Driscoll would recommend that Petitioner continue meeting with AA weekly, submit to urine analysis, and continued psychotherapy.

Testimony of Vernon Sessions

Mr. Sessions has practiced in Denver for approximately fifty years at the same location, the Park Avenue Law Firm. Mr. Sessions has known Petitioner since he graduated from law school and was employed as a lawyer and paralegal at the Park Avenue Law Firm. Petitioner has worked directly with Mr. Sessions since 1997. While working with Mr. Sessions, Petitioner has sought guidance and mentoring and credits Mr. Sessions with providing him with the structure and direction that he lacked in his early career.

Mr. Sessions corroborates Petitioner’s testimony that he is no longer associating with people who negatively influenced his behavior in the past. Mr. Sessions testified that Petitioner is hard working, reliable, trustworthy, bright, organized, and excellent with clients. Mr. Sessions also testified that even as a paralegal, Petitioner makes him look good with quality legal research and writing. Mr. Sessions is so confident in Petitioner’s fitness to practice law and rehabilitation that he intends to make Petitioner a partner in his law practice and one day turn it over to him.

Testimony of Raymond McCleery

Dr. McCleery is an optometrist who owns Peepers Optical. He has known Petitioner for approximately eighteen years and commends him for the financial assistance Petitioner has provided the poor who need eye glasses, approximately one per year for the past several years. Dr. McCleery supports Petitioner’s application for readmission and if Petitioner were readmitted, Dr. McCleery would hire him.

Testimony of Petitioner

Petitioner grew up in Wray, Colorado and graduated from high school in 1976. He later attended the University of Denver and received a degree in political science in 1983. In 1985, Petitioner graduated from the University of Denver College of Law and received a degree in international relations and law. Ray Miller hired Petitioner immediately after Petitioner passed the Colorado Bar Examination. According to the undisputed evidence, Mr. Miller was not a good mentor for Petitioner. Petitioner described him as a real estate lawyer and a "wheeler-dealer."

Following his disbarment in 1993, Petitioner described a period of total wandering. Although he continued to work as a law clerk for Mr. Sessions following Mr. Miller’s death in 1993, Petitioner initially failed to make any significant changes in his life. He continued to drink sporadically and associate with people who also drank and were generally not good role models. Approximately one year ago, Petitioner finally began in earnest to change his group of associates and deal with his drinking problem, albeit in a manner other than that recommended by Dr. Jenkins or Dr. Packard.

Petitioner now recognizes that he fettered away his privilege to practice law because of his immaturity and a false sense of grandiosity. He now views Mr. Sessions as a role model and intends, if readmitted, to practice law with Mr. Sessions. As outlined above, Petitioner testified to the steps he has taken within the last year toward rehabilitation.

Testimony of Nancy Miller

Mrs. Miller is the wife of Ray Miller, the first lawyer Petitioner worked for at the Park Avenue Law Building. Mrs. Miller viewed Petitioner as a young lawyer caught in her deceased husband’s lifestyle, which included big spending and clients she described as "seedy." She believes her husband was a poor role model for Petitioner who tried to emulate his practice. She has seen a remarkable change in Petitioner since those early days of his legal career and would trust him to represent her if he was readmitted to the practice of law.

Report from Michele Packard, Ph.D.

Dr. Packard’s report raises questions about Petitioner’s consumption of alcohol; Petitioner has admitted to the doctor that he has experienced blackouts after drinking to excess in the past. Dr. Packard stated in her report that blackouts are a sign of a serious drinking problem even if the drinking is sporadic and followed by periods of abstinence. Dr. Packard recommended that Petitioner attend an outpatient treatment at Arapahoe House.

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 Presiding Disciplinary Judge, 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 which 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 Petitioner’s state of mind and ability, such as:

    • Character;
    • Conduct since the imposition of the original discipline;
    • Professional competence, candor and sincerity;
    • Recommendations of other witnesses;
    • Present business pursuits of the Petitioner;
    • The personal and community service aspects of the Petitioner’s life; and
    • The Petitioner’s recognition of the seriousness of his previous misconduct.

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. O.P.D.J., August 4, 2000),3 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 to consider 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 upon 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 upon which the discipline is premised. Goff, 35 P.3d at 495-96; Avila v. People, 52 P.3d 230, 234 (Colo. O.P.D.J., 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 offered his own testimony and the testimony of others 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.

Even though Petitioner did not enroll at Arapahoe House as Dr. Packard recommended, Petitioner sought counseling through Dr. Jenkins, effectively dealt with his drinking problem, and made significant changes in his life that show he has matured and is not likely to repeat the conduct that brought him to this court in the first place. In addition, Petitioner found a mentor willing to provide structure to his practice upon readmission. By all accounts, Petitioner is bright and he is capable of handling legal matters from an intellectual standpoint.

Although Petitioner’s conduct in committing criminal offenses was very serious, the Hearing Board finds that he is genuinely remorseful and recognizes the seriousness of his past conduct. The Hearing Board would have preferred that Petitioner resolve all of his tax issues before applying for readmission, but he has now addressed these issues as discussed above. Furthermore, given the rehabilitation and maturity he has demonstrated, Petitioner is not likely to repeat the conduct that led to his disbarment.

While the Hearing Board finds that Petitioner has met his burden in these proceedings, it also recognizes that Petitioner needs to continue his efforts to avoid his past problems including his financial difficulties, poor relationship choices, and episodic drinking. With this in mind, the Hearing Board agrees with Petitioner that certain conditions are appropriate given the need to solidify the substantial rehabilitation he has demonstrated.

V. ORDER

1. The Hearing Board GRANTS the "Verified Petition for Readmission" over the People’s objection. 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) upon Petitioner’s successful compliance with the above conditions.

2. As a condition of his readmission, Petitioner shall submit to monitoring by a practice monitor other than Mr. Sessions once a month for a period of one year. The parties shall agree to the monitor and if they cannot agree, the Court will select one. All standard monitoring conditions the People deem necessary and proper shall apply. Petitioner shall continue weekly sessions with Dr. Jenkins, the CBA Lawyers Helping Lawyers Program, and Mr. Driscoll. Further, Petitioner shall submit once a month to random urine analysis for alcohol and non-prescription drugs for a period of one year. Petitioner shall abstain from the consumption of any non-prescription drugs or alcohol for a period of one year. Petitioner shall also provide Dr. Jenkins with a waiver giving her authority to make bi-annual reports to the Office of Attorney Regulation Counsel for a period of one year.4 If Petitioner violates any of these conditions, the People shall notify the Court and may file any pleading they deem appropriate including a new filing based upon an alleged violation of Colo. RPC 3.4(c).

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. Although Petitioner apparently felt the need to carry a gun for self-protection, he was prohibited from doing so as a result of his conviction for participating in the purchase of ten pounds of marijuana as described herein.

2. Petitioner entered into a payment plan with the IRS and the Colorado Department of Revenue following the hearing and the People agreed to allow him to tender evidence after the conclusion of the hearing. Respondent testified that he could have entered a payment plan in advance of the hearing but would have had to borrow money to do so and thought that would not be proper. Instead, he presented evidence of his estimated tax liability and agreed to pay it as soon as he earned sufficient funds to do so. On or about October 18, 2007, Petitioner paid the IRS $52,211.15, but he still owes $25,000.00 to the federal government. Respondent testified that he did not file income tax returns for several years believing his losses from a towing company were sufficient to exempt him from filing a return. There was no other evidence on this issue presented by either party.

3. "The rationale of the Hearing Board in a particular case can neither serve as stare decisis precedent for future cases nor constitute the law of the jurisdiction." In re Roose, 69 P.3d 43, 48 (Colo.2003)

4. The People argue in their "Motion for Amendment of Opinion and Order Re: Readmission" that there is no explicit authority for the imposition of conditions set forth above. The Hearing Board notes that under C.R.C.P. 251.29(a), all readmission hearings after disbarment "shall be heard in procedures identical to those outlined by these rules governing hearings of complaint, 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." As provided in C.R.C.P. 251.19(b) the rules for hearing board decisions on complaints brought by the People allow a hearing board to enter "other appropriate orders including without limitation, probation, and orders requiring the respondent to pay the costs of the disciplinary proceeding, to make restitution, or to refund money paid to the respondent."

_______________

Case No. 06PDJ094

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

ALAN DAVID ROSENFELD.

November 21, 2007

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

On June 19, 2007, a Hearing Board composed of Robert A. Millman and Edwin S. Kahn, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Alan D. Rosenfeld ("Respondent") appeared pro se. The Hearing Board previously issued an "Opinion and Order Imposing Sanctions pursuant to C.R.C.P. 251.19" on August 24, 2007.

The PDJ received "Respondent’s Motion for Post Trial Relief" on October 3, 2007. The People filed a response on October 5, 2007.1 The PDJ consulted with the Hearing Board on the matters presented in Respondent’s motion and now GRANTS IN PART AND DENIES IN PART the motion as set forth in the following "Amended 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 fails to perform services for clients and causes injury or potential injury.2 Respondent failed to complete discovery and failed to adequately communicate with his clients. As a result of Respondent’s lack of diligence, the trial court entered a default judgment against his clients. Is suspension appropriate even if there is significant evidence in mitigation?

From the outset of the People’s investigation, Respondent admitted violations of Colo. RPC 1.3 and 1.4 (failure to act with reasonable diligence and promptness in representing a client and failure to keep a client reasonably informed about the status of a matter). In addition to Respondent’s admitted misconduct, the Hearing Board finds that Respondent violated: Colo. RPC 1.16(a) (a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in a violation of the rules of professional conduct) as charged in Claim IV; Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal) as charged in Claim V; and Colo. RPC 3.4(d) (a lawyer shall not fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party) as charged in Claim VI.

The Hearing Board does not find clear and convincing evidence that Respondent violated: Colo. RPC 1.7(b) (a lawyer shall not represent a client if the representation of that client will be directly adverse to another client) as charged in Claim III; Colo. RPC 3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal) as charged in Claim VII; or Colo. 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice) as charged in Claim VIII.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR
SIX (6) MONTHS, ALL STAYED UPON THE SUCCESSFUL COMPLETION
OF A ONE (1) YEAR PERIOD OF PROBATION, WITH CONDITIONS.

II. PROCEDURAL HISTORY

On November 22, 2006, the People filed a Complaint with eight separate claims related to Respondent’s representation of three clients in a civil proceeding. Respondent filed an Answer on December 26, 2006. He also filed three separate motions for judgment on the pleadings. On May 15, 2007, the PDJ heard oral argument from the parties on each of Respondent’s motions for judgment on the pleadings. The PDJ denied Respondent’s first, second, and third motions for judgment on the pleadings on May 18, 2007.

III. FINDINGS OF MATERIAL FACT

The Hearing Board finds that the following facts have been established by clear and convincing evidence.3

Jurisdiction

Respondent has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on November 23, 1998, and is registered upon its official records, Attorney Registration No. 30317. He is therefore subject to the jurisdiction of the Hearing Board and the PDJ in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent’s registered business address is 368 S. McCaslin Blvd., Suite 131, Louisville, CO 80027-9432.

Events Leading to Respondent’s Representation
of BV and Her Family

On February 25, 2003, BV’s former husband RM, sued BV, BV’s aunt DW, BV’s mother Betty V, and father AV (the civil case). RM alleged that BV and her family entered into a conspiracy to interfere with RM’s custody of Diane, the only child born to RM and BV during their marriage. RM also alleged outrageous conduct, civil conspiracy, and violation of the Colorado Organized Crime Control Act against BV and her family. The events leading up to this civil lawsuit include the following:

  • On May 9, 2000, RM and BV were divorced. The parties stipulate that these proceedings were acrimonious. Ultimately, the court awarded the majority of parenting time and decision making authority concerning Diane to RM, not BV.
  • On or about April 15, 2001, in contravention of the divorce court’s order concerning parenting time and without RM’s knowledge or consent, BV fled to Costa Rica with Diane.
  • BV was arrested in Costa Rica and was brought back to Colorado approximately one year after she fled Denver with Diane. BV was charged in federal court with forging a passport for herself and Diane. On February 25, 2003, the federal court sentenced BV to twelve months and one day imprisonment. Respondent did not represent BV on the federal charges.
  • Following her conviction in federal court, state prosecutors brought charges against BV based upon the passports she forged, criminal impersonation, and violation of a child custody order all arising out of BV’s flight to Costa Rica with Diane. On March 17, 2003, BV was convicted of forgery of a government document, two counts, and a single count of criminal impersonation. However, the jury found BV not guilty of violation of a child custody order. The state court sentenced her to five years probation. Respondent represented BV in this case.

Respondent Enters an Appearance in the Civil Case, 03CV1363

RM filed his civil suit against BV and her family on February 25, 2003. In June 2003, Respondent substituted as counsel for BV and entered his appearance for BV’s aunt DW.

Respondent Fails to Answer Discovery

On September 20, 2004, RM propounded interrogatories to DW. Respondent failed to answer these interrogatories. On January 10, 2005, RM moved to compel. Again, Respondent failed to respond. Further, Respondent failed to inform DW that the motion had been filed. On February 1, 2005, the trial court granted RM’s motion to compel and awarded him fees. Once again, Respondent failed to respond to the trial court.

On February 10, 2005, RM propounded a second set of discovery requests to BV and DW.4 BV was aware of these requests and assumed Respondent was taking care of them. Respondent did not serve responses to RM on this second set of interrogatories.

On March 31, 2005, RM moved for sanctions based on Respondent’s failure to respond. Before issuing any sanctions, the trial court judge instructed her clerk to contact Respondent and remind him that he had not yet filed responses to RM’s request for discovery or the court’s order to compel.

Finally, on June 10, 2005, after Respondent failed to respond to the clerk’s calls, the trial court entered default judgment against BV and DW as to liability on all of RM’s claims. On July 13, 2005, the trial court ordered BV, DW, and Respondent to pay RM within ten days the costs incurred in pursuit of the interrogatories in the amount of $437.50. Respondent did not pay the costs within ten days as ordered by the trial court. Although there was no evidence presented on this issue in these proceedings, the parties now agree that Respondent ultimately paid the court ordered costs in December 2005.

Trial Management Order

On February 6, 2006, RM and defendants Betty V and AV (BV’s mother and father) filed a proposed Trial Management Order ("TMO"). Respondent did not participate in the drafting of the TMO on behalf of BV and DW. Respondent was aware of the deadline the trial court had set for the TMO, but he was trying a case in Fairbanks, Alaska at that time. Therefore, Respondent sought an extension of time from counsel for RM to participate in the TMO. RM’s counsel did not agree to an extension and filed the TMO without Respondent’s participation. By this time in the proceedings, the relationship between Respondent and counsel for RM was strained. One of RM’s counsel testified that she and co-counsel felt all communication with Respondent needed to be in writing in order to protect their client’s interests.

On February 22, 2006, Respondent filed a motion asking permission to file a supplement to the TMO. The trial court denied this motion at the pre-trial conference on February 24, 2006.

Motion in Limine

On January 30, 2006, RM moved in limine to bar admission of certain evidence in the civil case. At the pretrial conference, Respondent entered his appearance on behalf of all the defendants but AV, BV’s father.

On February 27, 2006, the trial court granted RM’s motion in limine in part and ruled that the following evidence would be excluded:

  • Evidence of the relationship between RM and BV;
  • The reasons for their divorce;
  • The sexual relations between RM and BV;
  • Evidence of the personal ads RM allegedly placed in a local newspaper;
  • Evidence of sexual harassment allegations against RM at his place of employment;
  • Evidence of allegations that RM’s father was a pedophile;
  • Evidence of allegations of RM wiretapping Betty V; and
  • Evidence that a jury found BV not-guilty in Jefferson County of charges of violation of a child custody order.

Respondent’s Motion to Reconsider the Order of Default

Respondent filed a motion asking the trial court to reconsider its order of default against DW and BV. Respondent’s argued that he alone was responsible for the failure to provide discovery to RM. In his pleadings and subsequent testimony on this issue, he characterized his conduct as "gross incompetence." On March 3, 2006, after hearing the testimony of DW and Respondent, the trial court denied the motion for reconsideration. The trial court found Respondent’s, BV’s and DW’s testimony incredible and testified in these proceedings that she believed Respondent’s failure to answer discovery was a tactical decision in which BV and DW agreed, as opposed to a situation in which unwitting clients were at the mercy of an incompetent lawyer.

Trial Court Conducts Inquiry of Defendants as to Conflict

On the first day of trial, RM’s counsel objected to Respondent’s entry of appearance on behalf of all defendants. In open court, the trial judge asked each of the defendants whether they understood the import of Respondent representing all of them in the case. She pointed out that they had "divergent interests" and that they did not share the same level of alleged culpability as BV based upon facts charged in the complaint. Each defendant individually stated that they understood, but nevertheless each decided to continue with Respondent as counsel.5

Furthermore, the lawyer representing Betty V and AV agreed that Respondent should be allowed to concurrently represent Betty V. And the lawyer who previously represented DW in the motion to set aside the default judgment entered against DW and BV, agreed with Respondent’s entry of appearance on behalf of DW.

Trial Court Allows Respondent to Represent BV, DW, and Betty V

The trial judge allowed Respondent to represent BV, DW, and Betty V after assuring herself that they understood the conflict and possible implications of proceeding to trial with the same attorney.6 At the hearing, the trial judge forewarned counsel not to make comments during opening statement about any evidence that had been stricken or evidence excluded in the trial court’s in limine order. Finally, the trial judge stated, "everybody is going to play by the rules from here on out, right." Respondent assured the trial court that he would do so and would approach the bench first before pursuing a line of questioning in front of the jury, which might be "opened up" as the trial progressed.7

Plaintiff’s Objections to Improper Closing Argument

During his closing argument, Respondent drew objections from RM’s counsel. The words and conduct of Respondent that drew these objections form the basis for the People’s allegation that Respondent intended to disrupt the trial court and that he engaged in conduct prejudicial to the administration of justice. The first objection dealt with Respondent’s comment to the jury that "some rules simply need to be broken." RM’s counsel objected and the trial court sustained the objection. The trial judge, as well as RM’s counsel, testified that they believed that this comment invited the jury to ignore the trial court’s instructions of law.

Before arguing, "some rules need to be broken," Respondent argued that if a passerby hears a child screaming from a house that is on fire, he may break down the door and save the child. But if a passerby would break into a house without the need to save a child, the passerby could be charged with burglary. This comment did not draw an objection. Respondent testified that his reference to breaking rules was a reference to the necessity defense he offered on behalf of Betty V, and not an effort to disparage the trial court’s instruction or rules.

The second argument that forms the basis for the People’s contention that Respondent intended to disrupt the proceedings and prejudice the administration of justice concerned Respondent’s reference to the fact that BV had only been convicted of two counts of forgery and a single count of criminal impersonation. In making this argument Respondent held a chart in front of the jury that read two plus two equals four. The trial court viewed this argument as an attempt to indirectly inform the jury that BV had been acquitted of violation of a child custody order in the state criminal case against BV, a matter the trial court previously ruled inadmissible in its in limine order.8

The Jury’s Verdict

On March 9, 2006, the jury returned a verdict in RM’s favor and against BV, DW, Betty, and AV jointly and severally in the total amount of $420,000.00. The jury found for RM and against the three defendants on the claims of interference with parent-child relationship, outrageous conduct, and civil conspiracy. The jury apportioned fault as follows: 86% to BV, 7% to DW, and 7% to Betty. The jury’s finding of a civil conspiracy, however, rendered all defendants jointly and severally responsible for the entire judgment.9 On May 10, 2006, the trial court amended the judgment to add interest and court costs, for a total judgment of $599,032.16.10

IV. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

Claim I

Respondent admitted his violation of Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client and shall not neglect a legal matter entrusted to him). Based upon the evidence presented, the Hearing Board finds clear and convincing evidence that Respondent repeatedly neglected filing answers to interrogatories that called upon BV and DW to disclose any evidence that supported their affirmative defense of necessity. Respondent also neglected filing answers to interrogatories on behalf of DW individually. At a minimum, in Respondent’s own words, he was grossly incompetent in failing to properly answer discovery requests and ignoring the trial court’s order to compel, all of which resulted in the trial court ordering a default against BV and DW.11

Claim II

Respondent also admits his violation of Colo. RPC 1.4(a) and (b) [a lawyer shall keep a client reasonably informed about the status of a matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation). The Hearing Board finds clear and convincing evidence that Respondent failed to keep his clients informed about the necessity of answering the RM’s interrogatories and the potential for default if they did not. As a direct result of Respondent’s failure to provide discovery and advise his clients, the trial court later entered default, which deprived BV and DW of their ability to present a defense of necessity to the jury on the merits of the case.

Claim III

Colo. RPC 1.7(b) states:

a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

(c) for purposes of this Rule, a client’s consent cannot be validly obtained in those instances in which a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances of the particular situation (emphasis added).

The Hearing Board finds that the evidence supporting RM’s claims against BV’s family was circumstantial and less compelling than the evidence against BV. The undisputed facts show that BV took Diane to Costa Rica in violation of the divorce court’s order granting RM the majority of parenting time to RM. The evidence against the family, on the other hand, was indirect and focused on alleged support and assistance they provided BV after she fled to Costa Rica. Respondent offered a defense of necessity as to BV, DW, and Betty V and at the same time argued the lack of strong evidence against the family. However, Respondent did not argue that BV was primarily responsible for violating the court’s order concerning parenting time with Diane. The evidence presented here shows the family did not know BV left the United States with Diane, until BV called DW from Costa Rica.12

Another lawyer may have convinced the family members that pointing the finger of blame at BV would have been a better defense for them. However, the family was presented a Hobson’s choice: either cooperate with law enforcement and disclose their daughter’s whereabouts; or not cooperate and face the possibility of violating the law.

Instead of arguing BV’s greater culpability, Respondent took the tactic of synthesizing both defenses: necessity and lack of culpability on the part of the family. Respondent believed his tactic was neither inconsistent nor harmful to either BV or her family in spite of fact that BV and DW defaulted and thereby lost their ability to argue on the merits that there was necessity.

Conversely, representing all three of these defendants made it easier for RM to argue that the family acted in concert, not only when BV took Diane to Costa Rica, but also in the civil proceedings as evidenced by Respondent’s common representation of BV, DW, and Betty V. Thus, the Hearing Board finds clear and convincing evidence that DW’s and Betty’s defense was materially limited by Respondent’s representation of BV.

But such a conflict may be waived if (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client, and (2) the clients consent to common representation after consultation. Colo. RPC 1.7. The evidence shows that Respondent and co-counsel advised BV, DW, and the family of the implications of common representation, how it could affect their defense, and the risks that might result from Respondent representing all of them. Further, the trial court made inquiry of all of the defendants about the implications of common representation and the risks involved therein. After the trial court made this inquiry, it was satisfied that Respondent could represent BV, DW, and Betty V. Furthermore, the lawyers representing Betty V and DW agreed that Respondent should be allowed to represent BV and DW after consulting with these clients. Based upon this record, the Hearing Board finds that Respondent reasonably believed that any conflict was waived.

Nevertheless, the People argue that a disinterested lawyer would conclude that the client should not agree to waiver and therefore consent cannot be validly obtained. Colo. RPC 1.7. Indeed, choosing separate counsel for each of BV’s family members would have been the wiser choice. But this observation is made with the benefit of hindsight. Even though an expert offered by the People opined that he would have counseled these clients to obtain separate counsel and would not have allowed Respondent to continue representing them, another counsel might equally find that the consent was valid given the totality of circumstances. Indeed, the trial court found BV, DW, and Betty V waived any conflict. There is no doubt that the better practice would have been to obtain separate counsel for each of the family members. But it is unlikely that any lawyer, independent or otherwise, could have affected the choice the family made to allow Respondent to represent them.

Claim IV

The People alleged that Respondent should have withdrawn as counsel because his family medical crisis left him with insufficient time to attend to the civil litigation involving BV and her family, with the result that default was entered against his clients. We agree. As Respondent testified in these proceedings, he was "overwhelmed" with the tasks that faced in representing his clients in a complex civil case due in part to his other commitments, including a trial in Fairbanks, Alaska and his father’s death.

Claim V

The evidence is also clear and convincing that Respondent failed to obey the trial court’s order in a timely manner. The trial court ordered that he pay the costs RM incurred in obtaining a default judgment against BV and DW. No evidence was presented that showed Respondent asked the court for additional time to pay these costs. He simply ignored the order for five months.

Claim VI

For the reasons stated above in the analysis of Claim I, the Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 3.4(d) by failing to comply with a proper discovery request from plaintiff’s counsel.

Claim VII

The Hearing Board does not find clear and convincing evidence that Respondent intended to disrupt a tribunal in violation of Colo. RPC 3.5(c). While Respondent’s conduct as a whole during final argument raised a valid concern on the part of the trial judge about his professionalism and ethics, the evidence falls short of clear and convincing that Respondent’s principal objective in making the offending remarks was to disrupt the proceedings. In order to prove intent, the People must prove by clear and convincing evidence that it was Respondent’s conscious objective to disrupt the tribunal. After reading the transcript and listening to the audiotape presented in these proceedings, the Hearing Board does not find Respondent specifically intended to disrupt the court proceeding. See Matter of Attorney C, 47 P.3d 1167, 1173 (Colo. 2002) and In re Roose, 69 P.3d 43, 49 (Colo. 2003).

Claim VIII

While Claim VIII presents a close question, the Hearing Board does not find by clear and convincing evidence that Respondent engaged in conduct prejudicial to the administration of justice in violation of Colo. RPC 8.4(d) based upon his conduct during closing argument as specifically charged in the People’s complaint.

The trial court was appropriately concerned that Respondent’s comments in final argument appeared to be in violation of its in limine order and presented the prospect of a mistrial and/or arguing inadmissible evidence to the jury. Furthermore, the content and delivery of his final argument was clearly an effort to convince the jury that BV was justified in taking her child to Costa Rica. Yet, Respondent’s failure to provide discovery and the resulting entry of default diluted such an argument on the merits. It appears that Respondent was desperately trying to make up for the ground he previously lost due to his lack of diligence.

As stated in Edwards v. Sears, Roebuck and Co., 512 F.2d 276, 283(5th Cir. 1975):

Courts usually permit reasonable latitude in counsel’s final arguments to the jury. Proficiency in jury argument, an ability to sway doubtful minds, a method of convincing others of the rightness of one’s positions are important not only to successful advocacy but also to effective representation of the client’s interests. But advocacy is circumscribed both by an attorney’s own professional responsibility and the court’s obligation to provide the parties a fair trial (emphasis added).

Respondent failed to approach the bench before making comments in front of the jury that might have been in violation of the trial court’s admonitions, although he assured the court that he would do so. It was Respondent’s last volley that causes this Hearing Board the most concern. After numerous rebukes from the trial court and an admonition to sit down, Respondent returned to his table, raised his hand in what the court interpreted as further defiance of its final order and stated, "Don’t give that man a dime, don’t give that man a dime."

After listening to the audiotape of this comment and considering the various interpretations given to this comment by witnesses in the courtroom at the time, the Hearing Board does not find clear and convincing evidence that Respondent engaged in conduct prejudicial to the administration of justice solely as to his conduct during his final argument. While Respondent vigorously advanced his client’s cause, he also offended the dignity of the court and came dangerously close to violating Colo. RPC 8.4(d), engaging in conduct prejudicial to the administration of justice.

V. SANCTIONS

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

Analysis Under the ABA Standards

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

Generally, sanctions are more severe when there is great injury or potential injury to the judicial system and the lawyer acts with a conscious objective to disrupt proceedings. For example, disbarment is generally appropriate when a lawyer knowingly violates a court order with the intent to obtain a benefit for himself or his client and causes serious injury or potential injury to the judicial proceedings. ABA Standards 6.21.

Suspension, on the other hand, is generally appropriate when a lawyer knowingly violates a court order and causes injury or potential injury to a client, party, or interference or potential interference with a legal proceeding. ABA Standards 6.22.

The Duty Violated

Respondent violated duties to his clients and the legal profession when he failed to answer interrogatories that were reasonably related to the claimed defense of necessity and when he continued to represent clients when he did not have time to adequately prepare their defense. Respondent also violated his duty to the trial court by failing to answer its inquiries and later an order to compel. "Attorney misconduct perpetuates the public’s misperception of the legal profession and breaches the public and professional trust." In re DeRose, 55 P.3d 126, 131 (Colo. 2002) (paraphrasing In re Paulter, 47 P.3d 1175, 1178 (Colo. 2002)).

Respondent’s Mental State

According to the ABA Standards Definitions, "knowledge is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." Here, Respondent acted with awareness when he failed to comply with discovery requests and the trial court’s order compelling the same, failed to advise his clients of the seriousness of the matter, and failed to withdraw from the case given his inability to diligently prepare for trial given his personal and professional commitments. There is insufficient evidence that Respondent fully understood the consequences of his conduct, but that is not a necessary element of knowing conduct.

The Actual or Potential Injury

Respondent’s lack of diligence and his failure to keep his clients informed as to the progress of the case directly contributed to a substantial judgment against all of his clients jointly and severally. While the Hearing Board does not find clear and convincing evidence that Respondent intended to disrupt a court proceeding or violated his loyalty to BV, DW, and Betty V, his conduct as a whole brought disrepute to the judicial process.

Ultimately, Respondent’s pattern of conduct not only harmed his clients, it also harmed the legal profession. Although Respondent claims to zealously and passionately represent his clients, he did not do so here. Zealous representation, as the term is used in the Colorado Rules of Professional Conduct, means that the lawyer acts competently, tirelessly, and diligently on behalf of his clients within the law as well as the Colorado Rules of Professional Conduct. This record shows Respondent did not.

Aggravating and Mitigating Factors

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

Pattern of Misconduct/Multiple Offenses—9.22(c) & (d). The Hearing Board finds that Respondent engaged in a pattern of misconduct by failing to follow reasonable requests for discovery, the trial court’s orders, and failing to recognize that he was not prepared for trial, all of which seriously harmed his clients.

Vulnerability of the Victim—9.22(h). Although BV is not a victim as that term is used in most contexts, BV was a vulnerable client. BV sings Respondent’s praises and does not appreciate the harm Respondent caused her by his lack of diligence. Respondent was the only lawyer who would listen to her and fought to protect her interests as well as her daughter, Diane. Respondent is well aware of the admiration BV and other clients similarly situated have for him. Further, Respondent knows that BV suffers from post-traumatic stress syndrome following a tumultuous relationship with her husband.

Substantial experience in the law—9.22(i). Respondent has practiced law in Vermont and Colorado for over twenty years and has specialized in representing women in domestic disputes throughout his career.

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

Absence of a Dishonest or Selfish Motive—9.32(b).

The Hearing Board agrees with the trial court’s finding that Respondent’s conduct was purposeful, but finds that it was not dishonest or selfish. In his zeal to represent a woman he thought to be wrongfully accused, Respondent failed to recognize that his conduct harmed rather than assisted BV and her family.

Personal or Emotional Problems—9.32(c)

Shortly before the civil trial, Respondent’s father died from cancer after suffering from the disease for an extended period of time. There is no question that as a result of his father’s illness and subsequent death, Respondent suffered and continues to suffer substantial emotional pain. The Hearing Board recognizes this as a mitigating factor. However, the Hearing Board also notes that Respondent’s father’s death occurred shortly before the civil trial. Respondent’s lack of diligence in the civil case started over a year before his father’s death. Furthermore, while his father’s illness and subsequent death may help explain Respondent’s failure to withdraw from a case in which he was admittedly overwhelmed, it does not mitigate his conduct in going forward in a complex case without proper preparation.

Cooperative Attitude Toward These Proceedings—9.32(e). The evidence shows Respondent cooperated with the People in these proceedings and fully and freely disclosed many of the alleged facts as well as rule violations charged in Claims I, II, and VI.

Remorse—9.32(l). Respondent immediately acknowledged his misconduct in failing to respond to a request for discovery and the trial court’s orders when the People commenced their investigation. Further, Respondent testified in these proceedings that he is remorseful for the harm he caused his clients, the profession, and the court. However, when Respondent failed to honor the trial court’s order to compel and later failed to timely pay costs as ordered, his present claim of remorse, as it relates to the trial court, must be reviewed in context.

Good Character and Reputation—9.32(g)

Respondent presented evidence from BV and other former clients who praised his work as a compassionate, caring, and effective advocate. Respondent also testified that he is an honest and reputable attorney. Furthermore, counsel who represented BV’s parents and aunt confirmed that Respondent was an effective and knowledgeable attorney and therefore agreed to his representation of DW and BV’s mother and father in the civil case. While the Hearing Board considered this testimony in mitigation, it notes that this evidence is less than "substantial" evidence of good character and reputation as Respondent characterizes it.

Analysis Under Case Law

When a lawyer fails to act diligently in his responsibilities to his clients and causes injury or potential injury, the Colorado Supreme Court has approved a sanction of suspension. In People v. Rishel, 956 P.2d 542 (Colo. 1998) the Supreme Court, citing ABA Standards 4.42, suspended an attorney for one year and one day after finding violations of Colo. RPC 1.3 and 1.4. However, in Rishel, the lawyer effectively abandoned two clients. Here, Respondent did not abandon his clients. Nevertheless, his failure to act diligently on their behalf caused BV and DW to suffer a default judgment.

The presumption of suspension under the ABA Standards, as well as the case law, demonstrates that a suspension is appropriate. However, each case is unique and calls for an analysis based upon all the facts presented. The Colorado Supreme Court has cautioned Hearing Boards to carefully weigh any mitigating factors that might overcome what might otherwise be the presumed sanction of disbarment. In re Fischer, 89 P.3d 817 (Colo. 2004).

While Respondent presented several matters in mitigation, those factors do not sufficiently overcome the presumptive sanction of suspension in light of totality of factors we must consider: Respondent’s state of mind, the duty he breached, and most importantly the serious injury his conduct caused his clients. Thus, the Hearing Board finds that a six-month suspension, stayed upon the successful completion of a one-year period of probation, is appropriate under these circumstances.

Respondent, nevertheless, strenuously argues that he should receive no greater sanction than a public censure and cites People v. Kram, 966 P.2d 1065 (Colo. 1998) as authority for his position. Kram, he points out, lied to his clients and Respondent did not. Respondent also argues that, like Kram, he experienced emotional distress, a mitigating factor that the Colorado Supreme Court in Kram noted was "significant."

However, the Hearing Board finds that the emotional and personal problems Respondent presented here, while mitigating, do not, change our view that a public censure would unduly minimize the seriousness of Respondent’s conduct. The Hearing Board also lists the following significant differences between Kram’s conduct and that of Respondent:

  • Unlike Kram, there is no evidence that Respondent, recognizing the seriousness of his misconduct, advised his clients about reporting his misconduct to the Office of Attorney Regulation or whether he carried malpractice insurance;
  • Unlike Kram, there is no evidence that Respondent offered to make monetary restitution to his clients;
  • Unlike Kram, Respondent’s lack of diligence caused serious injury to multiple clients; and
  • Unlike Kram, Respondent’s harm to his clients continued after acknowledging a failure to file appropriate answers to discovery as the court ordered. Respondent’s preparation for trial was harried at best. We have found that Respondent did not violate Colo. RPC 1.7 (conflict of interest) by clear and convincing evidence because of his client’s waiver after the matter was brought to the trial court’s attention. But there is no doubt that his decision to charge headlong into a complex trial representing multiple clients with varying degrees of culpability was predictably hazardous and injurious to them. Instead of minimizing the harm he initially caused, Respondent knowingly increased the risks his clients faced when he proceeded to trial without adequate preparation.

Finally, looking at Respondent’s misconduct as a whole, more than a public censure is warranted. Respondent has and will continue to represent clients who are not likely to exercise independent or objective judgment. Instead, they are vulnerable to excusing or ignoring professional performance, which does not meet reasonable standards. The facts in this case demonstrate that such clients are not inclined to see how Respondent’s blunders affect them. Nevertheless, the fact that Respondent’s clients see him as a compassionate, effective, and zealous in their cause, does not excuse his conduct here.

Thus, while Respondent cites Kram as authority for the proposition that he should receive a public censure, the Hearing Board finds that Respondent’s pattern of misconduct, serious injury he caused to multiple clients, and his disregard for court orders warrant greater discipline than a public censure.

VI. CONCLUSION

Respondent’s conduct was ill advised, misguided, and unethical. We find that Respondent was aware that he was in violation of the trial court’s order compelling him to make discovery available to RM’s counsel. He was also aware that he failed to obey the trial court’s order to pay RM’s costs in ten days for the cost in litigating the motion to compel. However, we do not find clear and convincing evidence that Respondent intended to disrupt the proceedings. If it was Respondent’s intent to sabotage the proceedings in order to gain an advantage for his clients, he could not have failed more miserably. Nevertheless, we see a pattern of misconduct that must be corrected in order to protect the public. The Hearing Board finds that a suspension with conditions will meet this need.13

VII. ORDER

The Hearing Board therefore ORDERS:

1. ALAN DAVID ROSENFELD, Attorney Registration Number 30317, is SUSPENDED from the practice of law for a period of SIX (6) MONTHS, ALL STAYED upon the successful completion of a ONE (1) YEAR period of probation with conditions, effective thirty-one (31) days from the date of this order. As a condition of his probation, Respondent SHALL NOT engage in further violations of the Colorado Rules of Professional Conduct or the rules of professional conduct in any other jurisdiction. Respondent SHALL submit to a practice monitor for the duration of his probation selected by the People and pay the cost of such monitoring. The monitor shall physically meet with Respondent on a monthly basis and report quarterly to the People on Respondent’s progress as it relates to meeting deadlines and management of workload. The monitor shall have access to all pleadings in Respondent’s cases as well as other non-confidential material information. Respondent is not required to report to clients that he is being monitored, but shall otherwise abide by all the rules of procedure in attorney regulation matters. See C.R.C.P. 251 et al.

2. ALAN DAVID ROSENFELD, SHALL pay the costs of these proceedings as previously ordered by the PDJ on October 10, 2007.

__________

1. The PDJ also DENIES "Complainant’s Motion to Strike Respondent’s Motion for Post-Trial Relief" filed October 5, 2007, and GRANTS "Respondent’s Motion for an Extension of Time for Filing of His Motion for Post-Trial Relief" filed October 10, 2007.

2. "Knowledge" is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. ABA Standards, Definition.

3. The parties stipulated to facts numbered 1-30 in the Trial Management Order approved by the PDJ. The stipulated facts have been incorporated into the Hearing Board’s findings of fact.

4. Counsel for RM testified that his interrogatories were an attempt to determine the basis for BV’s affirmative defense of necessity.

5. Exhibit 88, pages 20-22.

6. Exhibit 88, page 21 and 22.

7. Exhibit 88, page 22.

8. Respondent argued in these proceedings that RM had introduced evidence that BV had been charged with violation of a custody order in the state case.

9. C.R.S. §13-21-111.5(4).

10. The record does not demonstrate what part, if any, of the damages awarded were punitive.

1.1 The trial court ultimately came to the conclusion that Respondent’s actions in this matter were calculated and not negligent.

12. The evidence that the family aided BV after they discovered she was in Costa Rica included their failure to advise the FBI and local authorities of BV’s whereabouts.

13. The Hearing Board recognizes that supervising Respondent will be difficult given the nature of his practice and the fact that he frequently practices law outside the State of Colorado.

_______________

Case No. 06PDJ067

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

DEWAYNE DELL RYMER.

May 25, 2007

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

On March 26, 2007, a Hearing Board composed of Kathleen M. O’Brien and Ralph G. Torres, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("the Court"), held a hearing pursuant to C.R.C.P. 251.18(d). April M. Seekamp appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Dewayne Dell Rymer ("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

Disbarment is generally appropriate, absent significant evidence of mitigation, when a lawyer knowingly uses client funds without authority and causes injury. Respondent, as Trustee, transferred and used approximately $200,000.00 from the trust corpus for his own purposes and without authority. Is disbarment the appropriate sanction in this case?

After creating a trust for a 77-year-old client who wished to provide for himself in his senior years and later for his two daughters after his death, Respondent, over a three-year period, admittedly transferred approximately $200,000.00 to his operating account, made loans to his son, and failed to account for approximately $32,000.00. Although Respondent testified that the primary beneficiary authorized these transfers, the Hearing Board found this testimony to be incredible.

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY

On October 11, 2006, the People filed a complaint in this matter. Respondent filed an answer on November 9, 2006.1 On February 5, 2007, the People filed a motion for summary judgment and Respondent filed his response on February 26, 2007. On March 16, 2007, the Court issued an order denying the People’s motion for summary judgment. Nevertheless, the Court found that the facts stated in the People’s affidavits of investigator Deborah Ortiz and Jerry K. Phelps were undisputed and that the People need not present this evidence in their case-in-chief. See C.R.C.P. 56(d). Respondent had no objection to the Court’s finding.

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 the "Order Re: Motion for Summary Judgment" dated March 16, 2007. Respondent took and subscribed the oath of admission and gained admission to the Bar of the Colorado Supreme Court on October 24, 1997. He is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 28946, and is therefore subject to the jurisdiction of the Court.

Respondent Meets with Jerry K. Phelps

Jerry K. Phelps met Respondent and hired him to probate his mother’s will in 2001. Thereafter, Respondent encouraged Mr. Phelps to create a family trust. In February 2004, Respondent created the Jerry K. Phelps Family Trust ("Trust"). Mr. Phelps was the primary beneficiary and his two daughters were the secondary beneficiaries of the Trust. Respondent designated himself as Trustee and designated his son, Sam Rymer, as Successor Trustee. The Trust granted Respondent, as Trustee, the authority to manage the Trust’s funds and to exercise his discretion with the purpose of providing for Mr. Phelps’ financial security in his senior years, and after his death, to provide for his two daughters.2

For the purpose of funding the Trust, Mr. Phelps turned over the following assets for Respondent to manage as Trustee of the Trust:

  • The deed to a bank building in Bailey, Colorado;
  • The deed to 89 Forest Drive, a house in Bailey, Colorado;
  • Note receivable from Carol Morris in the approximate amount of $95,000.00;
  • Notes receivable from Steve Wilson in the approximate amount of $170,000.00; and
  • Oil rights that Mr. Phelps inherited from his mother when she died, which yield approximately $100.00 per month.

Between June 2004 and May 2006, Respondent made numerous withdrawals from the Trust’s checking and savings accounts totaling approximately $287,947.59.

Respondent sets up bank accounts after receiving
approximately $165,052.59 from Mr. Phelps

Respondent opened a checking account at Pueblo Bank and Trust and a savings/money market account at Peoples National Bank for the Trust.

In February 2004, Mr. Phelps wire-transferred approximately $165,052.59 to Respondent. These funds were for the purpose of funding the Trust. Respondent deposited $160,000.00 into the Trust’s account. When the People questioned Respondent about the unaccounted funds, $5,052.59, Respondent did not explain what he did with these funds.

While acting as the trustee of the Trust and managing the assets of the Trust, Respondent made withdrawals from both the checking and savings accounts totaling $200,795.00. Taking into account withdrawals and deposits into the Trust bank accounts, Respondent’s testified that he owes an outstanding balance of $176,270.11 to the Trust. Respondent characterized these withdrawals as loans Mr. Phelps authorized from the Trust pursuant to a retainer agreement between his law firm and the Trust as well as an open line of credit between his law firm and the Trust.3 Mr. Phelps’ did not sign either of these documents and Respondent acknowledges that he never showed them to Mr. Phelps. Furthermore, Mr. Phelps denies that he agreed to any of the transfers Respondent made from the Trust, save a single $5,000.00 loan to Sam Rymer.

Beyond the creation of the Trust documents, Mr. Phelps denies authorizing the hiring of Respondent’s law firm to do work on behalf of the Trust, authorizing an open line of credit agreement between the Trust and Respondent’s law firm; authorizing the withdrawals described above from the Trust. It is undisputed that Respondent never provided Mr. Phelps with evidence of the withdrawals.

Respondent also used Trust funds to make loans to Sam Rymer. Mr. Phelps did authorize a single loan for $5,000.00 and stated he would be possibly willing to provide two additional $5,000.00 loans after he approved them, but Mr. Phelps never gave permission to Respondent to make any further expenditures without Mr. Phelps’ approval. The People identified Trust funds loaned to Sam Rymer in the amount of $46,000.00. Mr. Phelps testified these loans were made without his authorization. In July 2006, Mr. Phelps hired Mr. Fender as trustee after terminating Respondent. Mr. Fender received payment of $36,332.83 from Land America Title Company, which was credited to the Trust for a loan the Trust made to Sam Rymer.

Finally, there are additional withdrawals from the Trust totaling approximately $32,100.00, which Respondent did not account for when he met with the People in July 2006. Deborah Ortiz, an investigator for the People, prepared a detailed analysis of deposits and withdrawals Respondent made from the Trust’s savings and checking accounts Respondent has accounted for, loans to Respondent’s son, and other withdrawals for which Respondent had no explanation. Based on this analysis Respondent owes the Trust $231,914.76.

Deposition and Affidavit of Mr. Phelps

On January 8, 2007, the People deposed Mr. Phelps. Respondent participated in this deposition by telephone. In the deposition, the People asked Mr. Phelps numerous questions about the funds under Respondent’s control that are now missing from the Trust. Mr. Phelps credibly testified in his deposition that he did not give Respondent permission to make loans to Respondent’s son, withdraw money from the Trust as a line of credit for Respondent’s law firm, or keep part of the $165,052.59 Mr. Phelps wire-transferred to Respondent to fund the Trust.4

Respondent’s Testimony

Respondent admitted that he transferred funds from the Trust as established by the People’s investigation.5 Respondent maintains that he made these transfers with Mr. Phelps’ permission and that Mr. Phelps’ has since forgotten that he granted Respondent such authority. Respondent offers that the People’s Exhibits 4 and 5 support his position. However, Mr. Phelps signed neither of these documents nor did he ever see them.

IV. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

Respondent asked for a hearing on the sole issue of whether he converted the trust funds he admittedly transferred and used for his own purposes. The Hearing Board heard Respondent’s explanation and rejects it. The evidence shows Respondent by clear and convincing evidence that Respondent violated Colo. RPC 8.4(c), conduct involving dishonesty, fraud, deceit, and misrepresentation as charged in Claims I through III.

Claim I

In Claim I, the People charged Respondent with violation of Colo. RPC 8.4(c), conduct involving dishonesty, fraud, deceit, and misrepresentation for converting $5,052.95 of the $165,052.59 Mr. Phelps wire-transferred to Mr. Phelps in March 2004.

Respondent admits that he deposited all but $5,052.95 of the total of $165,052.59 Mr. Phelps wire-transferred to him. Since Respondent did not have authority to use these funds and offers no explanation as to what he did with them, the Hearing Board finds that he converted these Trust funds.

Claim II

In Claim II, the People charged Respondent with violation of Colo. RPC 8.4(c), conduct involving dishonesty, fraud, deceit, and misrepresentation for converting $217,195.00 from the corpus of the Trust without authority and thereby converted these funds. Respondent does not contest that he withdrew these funds from the Trust and the Hearing Board finds that he converted these Trust funds.

Claim III

In Claim III, the People charged Respondent with violation of Colo. RPC 8.4(c), conduct involving dishonesty, fraud, deceit, and misrepresentation for converting $46,000.00 from the corpus of the Trust without authority in order to make loans to his son. The Hearing Board finds that Respondent converted these Trust funds.

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.

Duties Breached

Respondent breached his duty to manage and handle the Trust for the benefit of Mr. Phelps and his daughters, secondary beneficiaries of the Trust. Furthermore, Respondent violated a duty to the legal profession and the public to maintain his personal integrity.

State of Mind

Respondent acted knowingly when he transferred the funds from the Trust over a three-year period.

Injury

Respondent substantially depleted the corpus of the Trust when he transferred over $200,000.00 without authorization. Further, because he has not made restitution, he still owes the Trust approximately $231,914.76.

Aggravating Factors—ABA Standard 9.22

The Hearing Board finds several aggravating factors exist including dishonest or selfish conduct, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of his conduct, vulnerable victims, substantial experience in the practice of law, and indifference to making restitution. See ABA Standards 9.22 (b), (c), (d), (g), (h), (i) and (j). Due in part to the absence of any contradictory evidence, the Hearing Board finds clear and convincing evidence to support each aggravating factor.

Mitigating Factors—ABA Standard 9.32

Respondent presented no evidence in mitigation. However, the Hearing Board considered the absence of a prior disciplinary record over fourteen years of practicing law. See ABA Standards 9.32 (a) and (d).

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 disbarment. Respondent knowingly transferred and used over $200,000.00 belonging to the Trust without authorization. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. ABA Standard 4.11.

Knowing conversion or misappropriation of client money "consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking." People v. Varallo, 913 P.2d 1, 11 (Colo. 1996). Neither the lawyer’s motive in taking the money, nor the lawyer’s intent regarding whether the deprivation is temporary or permanent, are relevant for disciplinary purposes. Id. at 10-11. Significant mitigating factors may overcome the presumption of disbarment, however, none are presented in this case. See In re Fischer, 89 P.3d 817 (Colo. 2004) (finding significant facts in mitigation).

Respondent knew the funds he took belonged to the Trust; he had no authority to use them for purposes other than those outlined in the trust agreement. Mr. Phelps entrusted Respondent with these funds for Mr. Phelps’ benefit, and not for the purpose of providing Respondent extra funds to pay his law firm’s expenses. When a lawyer engages in such activity, he converts and misapplies client funds.

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 a serious breach of a fiduciary duty, Respondent’s knowing state of mind, substantial economic and injury, and the numerous factors in aggravation. These facts demonstrate Respondent is a danger to the public. He knowingly converted Trust funds and this misconduct adversely reflects on his fitness to practice law. Upon consideration of the ABA Standards and Colorado Supreme Court case law, the Hearing Board concludes there is no justification for a sanction short of disbarment.

VII. ORDER

The Hearing Board therefore ORDERS:

1. DEWAYNE DELL RYMER, Attorney Registration No. 28946, is DISBARRED from the practice of law, effective thirty-one (31) days from the date of this order, and his name shall be stricken from the list of attorneys licensed to practice law in the State of Colorado.

2. DEWAYNE DELL RYMER SHALL pay restitution to the Trust in the amount of $231,914.76 with credit for any amount he has already paid.

3. DEWAYNE DELL RYMER 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. On September 13, 2006, the Colorado Supreme Court issued an order immediately suspending Respondent from the practice of law pursuant to C.R.C.P. 251.8(b)(2).

2. See People’s Exhibit 1, Article II of the Trust.

3. See People’s Exhibits 4 and 5. The only document regarding fees Respondent agreed to charge for his services is a hand written note given to Mr. Phelps on the day the two met to discuss the creation of the trust. See People’s Exhibit 2.

4. Respondent agreed that the Hearing Board could review and consider the testimony of Mr. Phelps via video deposition. While Mr. Phelps was available for cross-examination during the hearing, Respondent waived his right to further examine Mr. Phelps.

5. Respondent’s records show he transferred Trust funds but his accounting shows $41,250.79 less than the People’s investigation showed.

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Case No. 07PDJ039

Petitioner:

GERTRUDE A. SCORE,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

March 4, 2008

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

On December 4-5, 2007, a Hearing Board composed of David A. Helmer and Paul J. Willumstad, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a Readmission Hearing pursuant to C.R.C.P. 251.29(d) and 251.18. Cecelia A. Fleischner and Laura L. Revercomb appeared on behalf of Gertrude A. Score ("Petitioner"). Lisa E. Frankel and Julie M. Schmidt appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). The Hearing Board now issues the following Opinion and Order Re: Readmission Pursuant to C.R.C.P. 251.29.

I. ISSUE

An attorney seeking readmission must prove, among other things, "rehabilitation" by clear and convincing evidence. Rehabilitation is an overwhelming change of character from the conduct that led to disbarment, evidenced by positive and meaningful action. Petitioner provided evidence of a number of activities that demonstrate self-sacrifice and community involvement. She also appeared genuinely remorseful while accepting responsibility for the results of her past misconduct. Has Petitioner demonstrated clear and convincing evidence of rehabilitation?

DECISION OF THE HEARING BOARD:
ATTORNEY READMITTED.

II. PROCEDURAL HISTORY

On June 15, 2007, nearly twenty years after the effective date of her disbarment, Petitioner filed a "Verified Petition for Reinstatement and Readmission." The People filed "Respondent’s Answer to Petitioner’s Verified Petition for Reinstatement and Readmission" on June 20, 2007. The People agreed to the technical sufficiency of the petition, but took no position regarding Petitioner’s readmission pending an investigation concerning her qualifications for readmission.

Following the presentation of evidence, the People conceded Petitioner’s fitness to practice law. In final argument, however, they argued that Petitioner failed to demonstrate rehabilitation by clear and convincing evidence.1

III. FINDINGS OF FACT

The Hearing Board finds the following facts by clear and convincing evidence. The parties submitted a "Stipulation of Facts," which is incorporated in the Hearing Board’s findings below.

Petitioner was admitted to the Bar of the Colorado Supreme Court on September 17, 1963. On July 12, 1988, the Colorado Supreme Court approved a recommendation of the Supreme Court Grievance Committee that Petitioner be disbarred from the practice of law. See People v. Score, 760 P.2d 1111 (Colo. 1988).2 At the time of her disbarment, Petitioner worked as a law partner of Robert McDougal.

Petitioner’s Disbarment

From 1982 to 1984, while Petitioner assumed the duties of co-guardian and co-conservator for Teddy Carr Jones, a mentally incompetent person with a "sizable estate," Petitioner engaged in the following conduct:3

  • After appointment as a co-conservator, Petitioner and Mr. McDougal prepared Mr. Jones’ will and named themselves as trustees of his estate and created a ten-year trust for Mr. Jones’ sole heir, despite the fact that the heir was competent to handle his own affairs.
  • Petitioner took personal property from Mr. Jones’ residence.
  • Petitioner took a diamond ring from a safety deposit box that was part of the estate.
  • Petitioner intentionally excluded $32,960.55 from the original inventory in the probate court.
  • Petitioner and Mr. McDougal falsely informed St. Anthony’s Hospital that Mr. Jones had no medical insurance or income sufficient to pay his outstanding bill of $24,194.60.4
  • Petitioner agreed to the sale of Mr. Jones’ car to Mr. McDougal’s son without notice to Mr. Jones and for a fraction of its value.
  • Petitioner made inaccurate statements on the amended inventory regarding Mr. Jones’ stocks.
  • Petitioner and Mr. McDougal entered into a rental agreement with Mr. Jones to rent and manage one of Jones’ properties for a 10% commission.

The Colorado Supreme Court made numerous findings concerning Petitioner’s "mishandling of Jones’ estate." In particular, the Colorado Supreme Court found Petitioner failed to obtain title determinations on Mr. Jones’ property, failed to make appraisals, failed to develop investment strategies, failed to inventory the household goods for two properties, failed to record letters of conservatorship with the clerk of the court, failed to procure medical insurance for Mr. Jones, and failed to secure an insured and licensed driver for Mr. Jones.

Based upon these stipulated facts, the Colorado Supreme Court found Petitioner violated the following rules:5 neglected a legal matter (DR 6-101(A)(3)); engaged in conduct prejudicial to the administration of justice (DR 1-102(A)(5)); failed to disclose matters that she was required by law to disclose (DR 7-102(A)(3)); engaged in conduct that damaged a client (DR 7-101(A)(3)); engaged in conduct prejudicial to the administration of justice (DR 1-102 (A)(5)); engaged in conduct involving dishonesty (DR 1-102(A)(4)); acted in violation of a criminal law (C.R.C.P. 241.6(5)); acted with gross negligence in representing the estate (DR 6-101(A)(3)); acted incompetently when she represented the estate (DR 6-101(A)(1); and entered into a business transaction without full disclosure (DR 5-104(A)).

The Colorado Supreme Court disbarred Petitioner and relied on the following ABA Standards: 4.1 (converting client funds); 4.4 Lack of diligence; and 4.51 (lack of competence). A violation of each of these standards presumptively calls for disbarment.

Petitioner’s Testimony

Petitioner was born on April 22, 1927. She has resided in Denver at the same address for the past sixty years. She practiced law for twenty-five years, half of that time as a solo practitioner, and the other half as a law partner of Robert McDougal. She enjoyed the practice of law and testified she did good work before her disbarment. If reinstated, Respondent plans to practice with her son and focus on the quality of her representation. She will not, as in the past, take on more cases than she can competently handle.6

With reference to the conduct that led to her disbarment, Petitioner believes that she acted with such gross negligence that it equated to dishonesty. She took on too much responsibility when her law partner’s health declined, leaving her with a greater burden of the legal work than she had handled before his illness. Petitioner testified she would never again make this mistake. With regard to the Colorado Supreme Court’s finding that she took a diamond ring belonging to the estate from a safety deposit box, she strenuously contests this finding.

Petitioner believes it would be dishonest to admit she took the diamond ring, despite her understanding that the Hearing Board might consider it a failure to accept responsibility for her misconduct. Nevertheless, she acknowledges the stipulated facts outlined in the Colorado Supreme Court’s opinion, including the finding that she took the diamond ring, and that those findings are binding in this proceeding.

Petitioner acknowledges the People have no record that she wound up her client matters as required by C.R.C.P. 251.28 and C.R.C.P. 251.29. However, she testified that she wound up client affairs following her immediate suspension. She also testified that her own records showing compliance were destroyed when her hot water heater broke.

Petitioner acknowledges that she could have petitioned for readmission nearly twelve years ago. She instead waited, reevaluated her life, and devoted herself to family responsibilities. Petitioner took care of her elderly mother from the time her mother was ninety years old and continued this care until her mother died at the age of 106. She also supported her son while he attended Georgetown University Law School.

Petitioner also became increasingly active in her church, the Macedonia Baptist Church, located in northeast Denver. Petitioner believes her activities at the church have made her a better person. She has helped an elderly woman by providing her with food and taking her to New Orleans to visit her family. She also takes neighbors to church on Sundays. Petitioner believes these "acts of kindness" help demonstrate her rehabilitation.

Petitioner also serves as a member of "a circle" within the church. Members of Petitioner’s circle are volunteers who tend to the congregation’s health needs. Although Petitioner is not a leader of the circle, she takes blood pressure readings for members of the congregation and is certified in CPR. Petitioner also distributes food to the homeless every Friday night and has done so for the last two to three years.

Petitioner studied for and passed the Colorado Bar Examination and completed approximately seventy-five hours of CLE from 2005 to 2007. She audited most of these courses, attending them with her son, including a tax program at the University of Colorado Law School. She also reads the Colorado Bar Association’s Colorado Lawyer publication and views many of its webcasts. Petitioner estimates she has spent thirty hours a week in these studies over the past two years.

Petitioner admits, however, she has not been employed for the last twenty years and has lived on her social security income and money her son provides from rental properties she manages for him. Further, she has not performed any paralegal work or other legal work of any kind in the last twenty years. She has consciously steered clear of paralegal work to avoid any claim that she engaged in the unauthorized practice of law. Finally, she participated in a high school mock trial competition as a judge and mentor.

Although she has not become acquainted with her son’s calendaring system or the office systems programs he uses, Petitioner says she will learn them and use them under her son’s direction if allowed to practice law again. Petitioner testified that she plans to limit her practice to family law and criminal law. Furthermore, Petitioner at least initially plans to limit her appearances to county court. She expects and intends to be monitored by her son in all the legal work she undertakes in her new practice. Petitioner will not engage in a volume practice as she did in the past.

Petitioner intends to practice under the guidance of her son and she endeavors to perform quality work for a limited number of clients. She previously built a practice on case referrals and again intends to develop clients in this way. Petitioner believes the public would be protected, because she has lived an honest life since her disbarment, learned from her mistakes, and will only practice in a limited number of cases under the direction of her son.

Petitioner testified that she is remorseful and embarrassed for her misconduct. She has not told members of her church or others about her past misconduct unless they specifically asked her. At the same time, she learned from her mistakes and is now ready to "do good work for good people."

Petitioner’s Witness—DD

DD is a single mother who receives a monthly disability check from Social Security and who needs a trustee to manage these funds. Petitioner accepted the responsibility of managing these funds without charge. Petitioner meets with DD once a month and distributes the SSDI money to her to pay the rent and phone bill. DD considers Petitioner to be a "good friend" who always treats her fairly. She also appreciates Petitioner’s personal interest in DD’s 8-year-old son.

DD did not know Petitioner had been disbarred from the practice of law. However, the disclosure of this information does not change DD’s opinion that Petitioner is an honest person who would make a good lawyer. DD would hire Petitioner as an attorney because Petitioner always treated her with honesty and respect.

Dr. Paul Melvin Martin

Dr. Martin is an interim pastor at Zion Church in Los Angeles, California. He previously served as the senior pastor at the Macedonia Baptist Church from 1990-2007. He is affiliated with numerous organizations on a state and national level, including the Stapleton Development Project in Denver.

Dr. Martin knew Petitioner for sixteen years as a parishioner of the Macedonia Baptist Church, which provided religious services for up to four hundred members each week. Dr. Martin also knew Petitioner from her participation in a travel group affiliated with the church. This group of approximately forty parishioners traveled to Israel, Egypt, and Rome and studied the Bible. During this trip, Petitioner was baptized in the River Jordan. Dr. Martin testified that Petitioner was a pleasant participant in this mission.

Dr. Martin spoke of Petitioner’s activities in helping members of the church. He wrote a letter on behalf of Petitioner at the request of Mr. Williams, Petitioner’s son, a respected member of the Macedonia Church. Dr. Martin felt "privileged" to write a letter on Petitioner’s behalf, despite the fact he did not know she had been disbarred from the practice of law. He nevertheless believes Petitioner should be readmitted because she is an amazing woman: bright, quiet, humble, not overbearing, caring, someone who reaches out, strong, and self-sufficient. If she meets all of the requirements of the rules, Dr. Martin believes she should be readmitted to the practice of law.

Dr. Louise Barger

Dr. Barger has known Petitioner for twenty-four years as a parishioner of the Macedonia Baptist Church. Dr. Barger is not a minister at the church, but oversees its administration as a regional manager. She is still involved with the church and performs consulting work every Sunday.

Dr. Barger knows Petitioner as a regular attendee at the Macedonia Baptist Church and a volunteer who tends to the church’s health needs as a "nurse" monitoring blood pressure, and as a member of a travel group that studied in Israel, Rome, and Egypt. Dr. Barger traveled with this group as well.

Dr. Barger recently learned of Petitioner’s disbarment, but nevertheless believes Petitioner is a person of integrity, consistency, and intellect, who has a great desire to help those who might not otherwise be represented. Dr. Barger testified that the best evidence of Petitioner’s good character is the son that she raised on her own. According to Dr. Barger, Petitioner raised her son and kept him from gang activity. Her son is a talented, intelligent, compassionate lawyer, and a respected member of the church. Based upon these attributes, Dr. Barger believes Petitioner should be given an opportunity to serve her community as a lawyer.

Shelley Arthur Williams

Shelley Arthur Williams is the 41-year-old son of Petitioner. He grew up in Denver, attended Metro State College, and Georgetown University Law School. He was admitted to the practice of law in Colorado in 1996. Mr. Williams is a retired Major from the United States Army. He served as a Special Services Officer with the Green Berets in Southeast Asia and Korea. He was honorably discharged in 2002 and has practiced law for the past twelve years. At present, he has six active cases in his practice and does not intend to increase that number regardless of whether or not Petitioner is readmitted and practices law with him. He regularly attends the Macedonia Baptist Church and serves on its board of trustees.

It is Mr. Williams’ "fondest wish and desire" to practice with his mother if she is readmitted to the practice of law. He attributes his success to her guidance and direction. He views Petitioner as an excellent potential asset to his practice, because of her experience, integrity, and character. Mr. Williams plans to monitor Petitioner if she is readmitted to the practice of law. He will teach Petitioner how to use the calendar, case management system, and other technology he uses in his law firm.

Mr. Williams also testified that Petitioner’s disbarment was not a secret in their home. Petitioner candidly expected to be disbarred and accepted the outcome. Following her disbarment, Mr. Williams noted that Petitioner took her disbarment with a healthy dose of humility. She did not blame others. Instead, she conveyed to him that the practice of law is a privilege and not a right. Mr. Williams offered his testimony both as Petitioner’s son and as an officer of the court.

Nevertheless, Mr. Williams believes Petitioner’s misconduct was out of the ordinary for her. She had always been hardworking and honest. He viewed her failure as one in which she took on too much responsibility and acted with gross negligence because of her lack of diligence. Petitioner was unequivocally honest in her experience with him.

Mr. Williams also recognizes that the Colorado Supreme Court found Petitioner acted dishonestly. Though he is willing to mentor Petitioner, he admittedly sees her as his heroine and inspiration. In his view, she is well suited to practice because of her intelligence and energy. Practicing again will allow Petitioner to regain a part of herself. Mr. Williams is willing to stake his name and reputation on Petitioner if she is readmitted to the practice of law.

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 Presiding Disciplinary Judge, 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 for a hearing board to consider before reaching a decision on readmission. Klein requires an evaluation of numerous factors bearing on the Petitioner’s state of mind and ability, such as:

  • Character;
  • Conduct since the imposition of the original discipline;
  • Professional competence, candor and sincerity;
  • Recommendations of other witnesses;
  • Present business pursuits of the Petitioner;
  • The personal and community service aspects of the Petitioner’s life; and
  • Petitioner’s recognition of the seriousness of his or her 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. O.P.D.J., August 4, 2000),7 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 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 upon 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 upon which the discipline is premised. Goff, 35 P.3d at 495-96; Avila v. People, 52 P.3d 230, 234 (Colo. O.P.D.J., 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 most important consideration 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).

While the Hearing Board should consider each case on its own merits, the evidence show 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, no misconduct "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).

While community and personal service to others is an important element of rehabilitation, it is not the only matter that this Hearing Board must consider. This Hearing Board must also consider Petitioner’s conduct and business pursuits since she was disbarred from the practice of law. Klein, 756 P.2d at 1016. Petitioner has managed her son’s real estate for the past twenty years while living on social security benefits and the money her son provides her.8 She took care of her aging mother, helped her son through law school, and traveled to Rome, Egypt, and Israel while she studied the Bible. She has also helped DD and members of her church with acts of care and compassion. While these activities are praiseworthy and support her claim of good character, they do not, standing alone, show rehabilitation by clear and convincing evidence.

When a lawyer is disbarred, the rehabilitation process begins with recognition of the seriousness of the conduct that led to the disbarment. The Colorado Supreme Court’s opinion, to quote Counsel for Petitioner, was "scathing." The Colorado Supreme Court not only found that Petitioner engaged in gross negligence, but that she intentionally converted client property including a diamond ring. Petitioner, on the other hand, characterizes her conduct in the matter as gross negligence arising from her inability to keep up with numerous matters that fell on her shoulders when Mr. McDougal’s health failed him. This position, at a minimum, raises a question as to whether Petitioner recognizes the seriousness of her past conduct.

Nevertheless, the Hearing Board finds Petitioner accepts the gravamen of the Colorado Supreme Court’s opinion and findings. Most important, Petitioner accepts full responsibility for the harm she caused the estate of Mr. Jones. She recognizes the seriousness of her misconduct and that disbarment was the appropriate sanction for her misconduct. The clear and convincing evidence is that she stated she would make amends to the public for her past misconduct by providing legal services to those who would not otherwise be able to obtain counsel and she will do so with a manageable number of cases under the supervision of a monitor.

Thus, Petitioner has demonstrated by positive and meaningful action an overwhelming change of character from the conduct that led to disbarment. In addition, Petitioner has demonstrated a strong desire to make amends for the conduct that led to her disbarment. She plans to serve the community in northeast Denver and to focus on quality work.

The Hearing Board recognizes that it has been twenty years since Petitioner engaged in the practice of law. With this in mind, the Hearing Board finds that it is necessary to monitor Petitioner’s practice and trust accounts for a period of three years.

In conclusion, Petitioner has offered her own testimony, that of her son, respected leaders of her church, as well as DD. There being no evidence to the contrary, this testimony shows clear and convincing evidence that Petitioner has provided meaningful personal and community service and has realized a overwhelming change in her character.

V. ORDER

1. The Hearing Board GRANTS the Verified Petition for Readmission filed by Petitioner GERTRUDE A. SCORE. 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)" upon Petitioner’s successful compliance with the above conditions.

2. A practice monitor acceptable to the People SHALL quarterly monitor Petitioner’s practice and trust accounts for three years from the date of this order.

3. Petitioner SHALL pay the costs of these proceedings. The People SHALL submit a Statement of Costs within fifteen days of the date of this Order. Petitioner shall have ten days to file a response.

__________

1. The People also argued that Petitioner failed to show compliance with C.R.C.P. 251.28, winding up affairs following disbarment. Nevertheless, they do not argue that this factor alone should be sufficient to deny her petition for readmission.

2. See the People’s Exhibit D.

3. See People v. Score, 760 P.2d 1111 (Colo. 1988).

4. As a result of these misrepresentations, Mr. Jones was sued and the probate court eventually authorized payment in full to the hospital.

5. "The parties (in the disciplinary action) entered into a stipulation of facts and the respondent admitted that she engaged in multiple acts of misconduct with respect to her representation of Teddy Carr Jones. . . ." People v. Score, 760 P.2d 1111 at 1112.

6. In her deposition, however, Petitioner stated that she would likely become a solo practitioner.

7. "The rationale of the Hearing Board in a particular case can neither serve as stare decisis precedent for future cases nor constitute the law of the jurisdiction." In re Roose, 69 P.3d 43, 48 (Colo.2003).

8. See Petitioner’s stipulated Exhibit H. Petitioner has not filed state or federal income taxes for each of the past five years. Petitioner’s income was insufficient to require filing.

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Case No. 05PDJ074

Petitioner:

VINCENT C. TODD,

Respondent:

THE PEOPLE OF THE STATE OF COLORADO.

August 9, 2006

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

On May 23-25, 2006, a Hearing Board composed of David M. Herrera, Mickey W. Smith, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a Reinstatement Hearing pursuant to C.R.C.P. 251.29(d) and 251.18. Paul S. Grant represented Vincent C. Todd ("Petitioner") and James S. Sudler represented the Office of Attorney Regulation Counsel ("the People") in these proceedings. At the Reinstatement Hearing, the People stipulated that Petitioner complied with all applicable disciplinary orders related to his suspension and that he is professionally competent. The People, however, argued that Petitioner has not yet established clear and convincing evidence of rehabilitation. Petitioner contends that he is fit to practice law and should be immediately reinstated. The Hearing Board issues the following Opinion and Order Re: Reinstatement Pursuant to C.R.C.P. 251.29.

I. ISSUE

An attorney subject to reinstatement proceedings under C.R.C.P. 251.29 must prove rehabilitation by clear and convincing evidence. Petitioner is a knowledgeable lawyer who has engaged in professional and charitable activities throughout his career. However, Petitioner’s disciplinary history reveals a pattern of neglecting clients, knowingly disobeying court orders, and concurrent mental health issues. Absent substantial evidence of a meaningful and sustained change in Petitioner’s mental health, can the Hearing Board find clear and convincing evidence of rehabilitation?

DECISION OF HEARING BOARD:
ATTORNEY REINSTATEMENT DENIED

II. PROCEDURAL HISTORY

On October 26, 2004, the PDJ accepted an Order Approving Conditional Admission and Imposing Sanctions and suspended Petitioner from the practice of law for eleven months and one day. Even though the PDJ suspended Petitioner for less than one year and one day, Petitioner and the People stipulated that before Petitioner could be reinstated, he would have to prove to a hearing board his rehabilitation by clear and convincing evidence, his compliance with all applicable disciplinary orders, and that he is otherwise fit to practice law. See C.R.C.P. 251.29(b)(c) and (d).

Petitioner filed a "Verified Petition for Reinstatement" on October 17, 2005. On October 19, 2005 the People filed an "Answer To Verified Petition For Reinstatement" and agreed to the technical sufficiency of the petition, but opposed reinstatement pending an investigation. On November 1, 2005, Petitioner filed a "Verified Supplement to Petition for Reinstatement" and the People filed a "Supplemental Response" on November 3, 2005. The People again objected to the petition for reinstatement and alleged that the petition failed to set forth sufficient facts showing rehabilitation from the conduct and state of mind that led to Petitioner’s suspension on October 26, 2004.

At the Reinstatement Hearing, the PDJ admitted Stipulated Exhibits 1-13. The parties also offered additional Stipulated Exhibits: 14, 15, 16 and Exhibit A, which the PDJ accepted into evidence. Petitioner testified on his own behalf and presented nine witnesses, both lay and professional, in support of his petition. 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.

Petitioner has taken and subscribed the Oath of Admission, was admitted to the Bar of the State of Colorado on May 25, 1983, and is registered as an attorney upon the official records of the Colorado Supreme Court, Attorney Registration No. 12955. Petitioner is subject to the jurisdiction of the Colorado Supreme Court and the Office of the Presiding Disciplinary Judge in these proceedings.

Petitioner is a sole practitioner who practiced criminal defense, fair debt collection and civil rights law before his suspension. He has been suspended from the practice of law since November 13, 2004.1

A. Petitioner’s Disciplinary History

1. On June 2, 1997, the Colorado Supreme Court publicly censured Petitioner for failing to communicate with his client and account to his client for money paid to Petitioner in a custody dispute.2

2. On June 18, 1997, the Colorado Supreme Court Grievance Committee admonished Petitioner for failing to file suit on behalf of a client in a timely manner. The Committee also noted its concern that Petitioner had not initially cooperated in the People’s investigation.3

3. On August 22, 2000, the PDJ entered an Order Approving Conditional Admission and Imposing Sanctions and suspended Petitioner for one year and one day, all but thirty days stayed, followed by a two-year period of probation subject to conditions. Petitioner was required to continue receiving psychotherapy, attend the one-day Ethics School sponsored by the Office of Attorney Regulation, and submit to monitoring of client files as well as establish a workable tickler system to calendar client matters.4 The factual basis for this suspension included two separate matters.

a. In the first matter, Petitioner ignored show cause orders issued by United States Bankruptcy Court Judge Sidney Brooks after he repeatedly failed to appear for court-ordered hearings. When Petitioner finally appeared before Judge Brooks, nearly a year after the original show cause order, the court reduced the fine to $50.00 on the condition Petitioner pay it within ten days. Petitioner did not pay the fine within ten days. Petitioner finally paid it in full in April 1999, but by this time the fine had been increased to $1,500.00 based on his failure to comply with the court’s order that reduced the fine.

b. The second matter arose in late 1998 when Petitioner represented the law firm of P. Scott Lowery, P.C. ("the firm") in a contract dispute. Petitioner filed an answer on behalf of the firm, but failed to provide disclosures under C.R.C.P. 26, which led to a motion for sanctions and later an entry of default against the firm. Denver District Court Judge John Coughlin ordered Petitioner to provide disclosures and pay $150.00 in attorney fees within ten days or face the possibility of severe sanctions. Petitioner did not respond to the court nor did he advise his client of the order. Instead, Petitioner told his client that everything in the litigation was under control. Judge Coughlin ultimately entered a judgment against Petitioner’s client in the amount of $19,099.51 and the client paid the same. The firm then sued Petitioner and won a default judgment against him in the amount of $34,000.00 on September 7, 1999.

4. On November 14, 2000, the Colorado Supreme Court entered an order of reinstatement for Petitioner, relying upon his affidavits, which certified that Petitioner timely notified clients and opposing counsel of his August 2000 suspension as provided in the disciplinary rules.5

5. On September 18, 2001, the PDJ entered an Order Approving Conditional Admission and Imposing Sanctions and placed Petitioner on probation for an additional year consecutive to the earlier suspension imposed in August 2000. The factual basis for this additional sanction arose out of Petitioner’s representation of Refinance America, Ltd. on a breach of warranty claim. Petitioner filed suit on behalf of his clients but later failed to respond to a motion to compel discovery. His failure to provide discovery led to orders from a United States Magistrate Judge compelling him to comply with the rules and ultimately a judgment against Petitioner’s client. The client later sued and won a 1.4 million dollar malpractice judgment against Petitioner based upon his conduct in this case.6

6. On November 25, 2002, the PDJ entered an order and revoked Petitioner’s probation and the reinstatement order of November 14, 2000. In his findings, the PDJ found that Petitioner filed an affidavit in his reinstatement petition pursuant to C.R.C.P. 251.29(c), which stated that he had notified opposing counsel of his suspension. The PDJ found, however, that Petitioner filed this affidavit knowing that he had not notified opposing counsel on two cases. The PDJ also found that Petitioner neglected the client on these two cases and that his client’s cases were ultimately dismissed for failure to prosecute.7

7. On June 11, 2003, the Colorado Supreme Court immediately suspended Petitioner for failure to cooperate in the People’s investigation of 99PDJ110 and 00PDJ080.8 On September 30, 2004, the Colorado Supreme Court affirmed the PDJ’s order revoking Petitioner’s probation and reinstatement.9

8. On October 26, 2004, the PDJ entered an Order Approving Conditional Admission and Sanctions, and suspended Petitioner for eleven months and one day with the condition that he petition for reinstatement pursuant to C.R.C.P. 251.29(c). The factual basis arose from Petitioner’s neglect of a client matter. He failed to respond in any manner to a motion to dismiss, a motion for attorney’s fees, or sanctions the court entered against him. In addition, Petitioner failed to notify opposing counsel in writing that he had been suspended from the practice of law.10

In a second case, Petitioner also knowingly failed to respond or appear after receiving orders from United States District Court Judge Edward Nottingham and United States Magistrate Judge Michael Watanabe concerning a summary judgment motion and motions for sanctions. The federal judge found that Petitioner "apparently decided to ignore entirely" the court’s order to show cause. The magistrate judge found, Petitioner’s conduct to be "obdurate and improper" causing unnecessary expense and delay in the proceedings.11

B. Evidence Presented in Support of the Petition for Reinstatement

John S. Wilder, Municipal Judge of Monte Vista and County Attorney for Mineral County, Colorado testified to the first-rate work Petitioner performed on his behalf in a §1983 civil rights case Petitioner tried in the United States District Court in 2002. Mr. Wilder hired Petitioner as counsel because he believes Petitioner is intelligent, skilled, and "a real fighter."12 Although Petitioner lost a jury verdict in Mr. Wilder’s case, the court granted a motion for new trial. Petitioner could not serve as counsel on the new trial due to his suspension, but he assisted Paul S. Grant, Mr. Wilder’s new counsel, as a paralegal and played an active, non-lawyer role in the million-dollar judgment in the new trial. Mr. Wilder strongly believes Petitioner is fit to practice law.

John Tatum, an experienced lawyer who practices criminal law defense and general civil litigation, has known Petitioner since the 1980’s when Mr. Tatum defended Aurora Municipal Court appeals. Since that time, his contact with Petitioner has been primarily through the Colorado Defense Bar Listserv, a website that allows its members to communicate with each other via the Internet. Petitioner frequently provides advice through the listserv to lawyers who seek answers to procedural and substantive issues in criminal law. Mr. Tatum noted that Petitioner sometimes "torques them [people] off" with the way he deals with other members of the listserv, but also noted that he is more mature since his current suspension. Mr. Tatum strongly believes Petitioner is fit to practice law and if needed, would serve as his practice monitor.

Leonard Frieling is a criminal defense lawyer with thirty years of experience litigating criminal cases in Boulder, Colorado. He also serves as an associate judge for the City of Lafayette. Mr. Frieling created the Colorado Defense Bar website and first met Petitioner through its listserv approximately eight years ago. He knows and respects Petitioner’s knowledge of the law and appreciates his patience with young lawyers who use the listserv. Mr. Frieling would be "honored" to have Petitioner on "our team" but could not speak to the possibility of Petitioner practicing on his own.

Joe Pickard is an attorney with over twenty years of general practice experience. He met Petitioner when they both participated in high school debate in the early 1970’s. They have remained in contact with each other and have been adversaries in a number of cases during their legal careers. Mr. Pickard values Petitioner’s advice as a lawyer and has relied on him within the last year for his "encyclopedic" knowledge of the law. Petitioner confided in Mr. Pickard that he had gone through a period of depression in the past but Mr. Pickard still has no concerns about Petitioner’s present ability to practice law.

David Morgan, an experienced criminal defense lawyer and member of Colorado Defense Bar, testified that Petitioner is intellectually equal to the best legal minds in the Colorado Bar and that he often shares his knowledge with the Colorado Defense Bar’s through its listserv.

Gary Perosco is a veteran criminal defense lawyer who specializes in defending DUI cases. He too respects and trusts Petitioner’s legal skills and often relies on Petitioner’s advice through the listserv.

Nancy Johnson is a seasoned criminal defense lawyer. She knows Petitioner from his work with the Colorado Criminal Defense Bar, the Jefferson County Democratic Party, and more recently from his work as a paralegal in a Colorado Organized Crime Control Act ("COCCA") case she tried and won. In his work as a paralegal on Ms. Johnson’s case, Petitioner organized 36,000 pages of discovery, helped draft motions, interviewed witnesses, and provided instrumental assistance in obtaining additional discovery on the architecture of a prison facility in Colorado, the scene of the alleged crime. Ms. Johnson opines that Petitioner is intelligent, a good lawyer, and is competent to practice law. She has witnessed Petitioner’s social skills as treasurer of the Jefferson County Democratic Party, a position he has held for two years. Ms. Johnson testified she is unaware of any psychological issues that might affect his ability to practice law but also testified she has not closely reviewed Petitioner’s most recent suspension or the circumstances leading to it.

William Barnett is a former officer of Refinance America, a former client who sued and won a judgment against Petitioner for malpractice. Mr. Barnett met Petitioner through Dave Michael, corporate counsel for Refinance America. Mr. Barnett is aware of the 1.4 million dollar judgment Refinance America obtained against Petitioner for malpractice, but he places some of the blame for missed deadlines on Refinance America for not timely producing discovery that Petitioner asked them to produce. Petitioner also represented Mr. Barnett’s son in several juvenile criminal cases and did a "wonderful job." Petitioner also competently represented Mr. Barnett and his wife in a private business transaction.

Robert Boyle is a retired counselor with a Ph.D. in psychological counseling. Dr. Boyle ran a private practice for several years and specialized in treating trauma victims, including Vietnam veterans suffering from post-traumatic stress disorder. Dr. Boyle treated Petitioner for approximately six months to a year in 1999 and 2000. The sessions initially took place in-person, then later by telephone, and eventually ceased when Dr. Boyle asked Petitioner to represent him in a criminal case, at which time Dr. Boyle stopped treating Petitioner. Dr. Boyle also treated Petitioner’s son from 1999–2001.

Dr. Boyle’s therapy sessions primarily focused on the stress Petitioner encountered as a result of his disciplinary proceedings in 1999 and 2000. He found no evidence of a personality disorder, psychosis, or depression and testified that Petitioner has insights into his behavior. Dr. Boyle, however, never examined the conduct that led to the sanctions imposed against Petitioner in the prior disciplinary proceedings. According to Dr. Boyle, Petitioner is a zealous advocate who "is always hunting an authority figure to go after."

Petitioner completed twelve therapy sessions with licensed psychologist Kenneth G. Wilson, M.D., after he ended his "telephone therapy" with Dr. Boyle. In May 2001, at the conclusion of these therapy sessions, Dr. Wilson opined in a letter to the People that, "Mr. Todd is making reasonable progress at this time. There are no indications that he [Petitioner] will deteriorate at this time."13 (Emphasis added).

Petitioner also testified on his own behalf in these proceedings. His legal background includes experience as a law clerk to Judge Philip Roan and work as an associate with Barbara Hughes where he litigated civil cases in 1983. Petitioner started developing his criminal practice at this time. In 1986, Petitioner started practice as a sole practitioner specializing in consumer protection, federal civil rights, and criminal defense law.

Since his suspension, Petitioner maintained his competence in the law by attending and completing various CLE programs, working as an Alternative Defense Counsel paralegal, developing a pleading system for defense lawyers, and participating in the Colorado Defense Bar Listserv. He has also been active in his church as a sound system technician and formerly chaired the religious education committee for his church.

Petitioner acknowledged that he still owes judgments entered against him for malpractice claims arising out of matters for which he has been disciplined as set forth above. He also acknowledged that he has not yet spoken to these former clients to work out a plan to resolve the judgments. His intention is to negotiate or otherwise resolve them after his reinstatement.

Petitioner admitted that he "screwed up" and made mistakes that led to the previously imposed disciplinary sanctions, but he also attributed some of the responsibility for his conduct to others.14 He specifically claimed that in several instances, his clients either lost interest in their cases or failed to provide him with the necessary materials to prosecute their cases. Petitioner also claimed "emotional overload" resulting from his past attempts to care for a young man he refers to as his son.

In May 1985, Petitioner met an 11-year-old boy he now considers to be his son. At the time, Petitioner served as the boy’s guardian ad litem. Petitioner admittedly became "too close" to this minor child and later withdrew from the case in December 1985. The Department of Human Services eventually placed the minor child with Petitioner in the summer of 1987. Petitioner’s son is now 33 years old.

Petitioner’s son repeatedly ran afoul of the criminal law and his legal problems overwhelmed Petitioner in the Raycomm and bankruptcy cases. According to Petitioner, "this relationship has impacted my ability to practice law." Yet, Petitioner claimed he could still "compartmentalize" the depression and stress caused by his son’s issues so it would not affect his criminal defense practice. Petitioner testified that these experiences taught him not to accept complicated civil cases without co-counsel, especially where his clients fail to provide him with discovery or otherwise fail to cooperate.

Even though Petitioner acknowledged the emotional strain his son’s legal problems caused him in the past, Petitioner intends to welcome his son into their home upon his release from the Department of Corrections. Petitioner stated that they have resolved the issues that caused them difficulty in the past. Petitioner nevertheless acknowledged that he had to carry a stun gun and use pepper-spray to control his son’s physical outbursts in the past.

Petitioner explained his most recent suspension as a "screening problem" and an inability to properly calendar cases. Petitioner testified that he would not miss future court appearances, because he now uses a laptop loaded with sophisticated software that will eliminate the problems he experienced in the past. Furthermore, Petitioner now operates a "paperless office" that will not necessitate a staff when he returns to the practice of law.

Petitioner stated that he no longer suffers from depression and credits himself for pulling out of it with the help of Dr. Wilson who recommended no further treatment as of August 2001.15 Recently, Petitioner saw Lon Kopet, M.D. who, according to Petitioner, issued a favorable report on Petitioner’s current mental health. However, Petitioner did not call Dr. Kopet as a witness or offer a report from him for the Hearing Board to review.

Petitioner claims that he has learned to avoid stress and is resolved to never let things get out of control again. Petitioner wants to return to the practice of law as a sole practitioner, but he would be prepared to accept a practice monitor and seek further psychiatric treatment, if ordered as a condition of reinstatement. Petitioner further offered his opinion that the public and the courts would be better served with him practicing law than without him practicing law.

C. The People’s Evidence, David S. Wahl, M.D.

Dr. Wahl conducted a psychiatric evaluation of Petitioner and completed a report on February 7, 2006. Dr. Wahl interviewed Petitioner and reviewed his disciplinary history as well as earlier expert reports about his mental health.

In particular, Dr. Wahl reviewed a report rendered by Gary S. Gutterman, M.D.,16 three months before the PDJ accepted Petitioner’s Conditional Admission of Misconduct dated August 22, 2000. Dr. Gutterman found in his independent medical evaluation that "psychological factors have contributed to the patient’s decision making and behavior with others, in his practice of law, which have lead to the Complaints with the Regulation Counsel." Dr. Gutterman further stated that Petitioner should continue with psychotherapy "focusing" on Petitioner’s personality traits, which Dr. Gutterman found to include masochistic features.

In Dr. Wahl’s view, Petition currently exhibits "clear signs and symptoms of an underlying significant personality disorder with narcissistic and/or paranoid traits that reveal themselves by way of poor judgment and over-determined legal pursuits." In rendering this opinion, Dr. Wahl relied heavily on two interviews of Petitioner, which lasted a total of ninety minutes, and the report prepared by Dr. Gutterman in April 2000. Dr. Wahl opined that Petitioner currently suffers from a personality disorder, but he believes Petitioner could return to work as a lawyer if sufficient safeguards were in place, including close monitoring and intensive weekly psychotherapy.

IV. LEGAL ANALYSIS

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

1. He has been rehabilitated;

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

3. He is fit to practice law.

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

The Colorado Supreme Court declared that in assessing rehabilitation we "must include the consideration of numerous factors bearing on the [attorney’s] state of mind and ability."17 These issues include but are not limited to:

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

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988); see also Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000); and Lockley v. People, 96 P.3d 236 (Colo. O.P.D.J. 2004).18

Reviewing these guidelines and the evidence presented at the Reinstatement Hearing, Petitioner’s petition for reinstatement must be denied. Petitioner failed to present clear and convincing evidence that he has been rehabilitated. While it is undisputed that Petitioner possesses the cognitive and legal skills, such skills alone are not sufficient to demonstrate a change in his mental state. Furthermore, although respected members of the Bar testified to Petitioner’s legal skills and value to the criminal defense bar, his church, and his political party, this testimony does not go far enough.19

Petitioner’s disciplinary history demonstrates a perilous pattern, one in which he completely disregards his duties to his civil clients and the courts. The rules require the Hearing Board to "fully consider" Petitioner’s past discipline and determine by clear and convincing evidence that he has taken action to correct the circumstances that led to the discipline before he is reinstated. C.R.C.P. 251.29(b).

A detailed review of Petitioner’s state of mind evidence reveals that it is neither clear nor convincing that he no longer suffers from any mental disorder.20 First, he engaged in a well-established pattern of misconduct over a period of eight years. Second, Petitioner’s expert testimony concerning his state of mind dates back to May 2001 and is therefore out of date. Third, while it is true that Dr. Boyle and Dr. Wilson each reported in 2001 that Petitioner appeared to be dealing better with life stresses, Petitioner again neglected clients and knowingly disobeyed Judge Nottingham and Magistrate Watanabe. Fourth, Dr. Wahl’s recent finding that Petitioner acted and continues to act with poor insight and judgment is well established by the stipulated exhibits in this case. Finally, Dr. Gutterman’s April 2000 report corroborates Dr. Wahl’s findings made in February 2006.

As previously set forth in this opinion, Petitioner acknowledged but did not discuss with his former clients how he intends to satisfy their malpractice judgments. See In re Petition of Rubin, 323 So.2d 257 (Fla. 1975) (unsatisfied judgments against a lawyer are antithetical to a showing of rehabilitation). The People did not require Petitioner to pay restitution as a condition of his reinstatement. However, the Hearing Board finds Petitioner needs to address this issue in a concrete manner in order to show rehabilitation.

V. CONCLUSION

To find Petitioner rehabilitated on this record would be contrary to our duty to protect the public, a paramount goal of the attorney disciplinary system. See People v. Bertagnolli, 922 P.2d 935, 939 (Colo. 1996) and ABA Standard 1.1. In reaching this conclusion, the Hearing Board also considered Petitioner’s important interest in continuing to practice law. However, that interest is a privilege and not a right. See People v. Howard, 364 P.2d 380, 381-82 (Colo. 1961). Furthermore, granting Petitioner’s petition at this point would not address the Hearing Board’s important duties to educate and thereby help rehabilitate Petitioner so that he does not repeat this perilous and self-destructive behavior in the future.

VI. ORDER

It is therefore ORDERED:

1. The Hearing Board DENIES Petitioner’s Verified Petition for Reinstatement. Petitioner Vincent C. Todd, Registration Number 12955, SHALL NOT be reinstated to the practice of law.

2. Petitioner SHALL pay the costs of these proceedings; the People shall submit a Statement of Costs within fifteen (15) days of the date of this Order, and Petitioner may submit a response within ten (10) days thereafter.

__________

1. See Stipulated Exhibit 9.

2. See Stipulated Exhibit 1.

3. See Stipulated Exhibit 2.

4. See Stipulated Exhibit 3.

5. See Stipulated Exhibit 4.

6. See Stipulated Exhibit 5.

7. See Stipulated Exhibit 7.

8. See Stipulated Exhibit 6.

9. See Stipulated Exhibit 8.

10. This is the same matter that resulted the PDJ revoking Petitioner’s probation on November 25, 2002. See paragraph 6 above.

11. See Stipulated Exhibit 10.

12. The Hearing Board notes that several witnesses commented on Petitioner’s zealousness in advocating on behalf of his clients and acknowledges that our advocacy system promotes such fervor.

13. See Stipulated Exhibit 13.

14. Petitioner also indicated to Gary S. Gutterman, M.D. in February 2000 that he "screwed up" with regard to his previous instances of misconduct. See Exhibit 11.

15. See Dr. Wilson’s reports to the People, Stipulated Exhibits 12 and 13.

16. See Stipulated Exhibit 11.

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

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

19. Except for the recent case where Petitioner worked as a part of a team of lawyers and investigators with Ms. Johnson, most of his professional contacts were sporadic or via the Colorado Defense Bar Listserv.

20. Even if the Hearing Board entirely rejected Dr. Wahl’s testimony, Petitioner’s evidence does not rise to the level of clear and convincing evidence.

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