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TCL > August 2008 Issue > Disciplinary Case Summaries

August 2008       Vol. 37, No. 8       Page  169
From the Courts
Colorado Disciplinary Cases

Disciplinary Case Summaries

These summaries of disciplinary case Opinions and Conditional Admissions of Misconduct are prepared by the Office of the Presiding Disciplinary Judge (PDJ) and are provided as a service by the Colorado Bar Association (CBA). The CBA cannot guarantee the accuracy or completeness of the summaries.

The full text of the disciplinary Opinions follows the summaries page(s). The summaries and full-text Opinions also are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes"). Opinions, including exhibits, complaints, amended complaints, and summaries, also are available at the PDJ website, www.coloradosupremecourt.com/PDJ/pdj.htm, and on LexisNexis.®


Summaries of Decisions Regarding
Conditional Admissions of Misconduct Issued by the PDJ

The PDJ’s approval of a Conditional Admission of Misconduct does not result in a written Opinion but only a brief Order, which does not constitute precedent. Conditional Admissions of Misconduct are public record and are available for review at the Office of the PDJ, 1560 Broadway, Ste. 675, Denver, CO 80202; (303) 866-6658; www.coloradosupremecourt.com/PDJ/pdj.htm. They also are available on LexisNexis.®

No. 07PDJ084. People v. Aschenberg. 06/19/2008. Attorney Suspension Stayed (Except Three Months) Pending Successful Completion of Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Jesse Chad Aschenberg, attorney registration number 33022, from the practice of law for one year. All but three months of the suspension were stayed pending the successful completion of a two-year period of probation with conditions. Sanction was effective July 21, 2008.

Respondent made a knowingly false statement of material fact to the bankruptcy trustee. Respondent admitted that during the representation of his clients in a bankruptcy proceeding, he knowingly reduced the amount of unsecured debt reported on their Chapter 13 schedule to allow his clients to remain under Chapter 13 protection "until the exact amounts of their debts and a proper course of action could be determined." His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 3.3(a)(1).

No. 08PDJ038. People v. Bernhardt. 06/19/2008. Ninety-Day Attorney Suspension Stayed Pending Completion of Two-Year Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Robert Leroy Bernhardt, attorney registration number 28915, from the practice of law for ninety days, all stayed pending the successful completion of a two-year period of probation with conditions. Sanction was effective June 19, 2008.

Respondent knowingly neglected two matters for a client and failed to adequately communicate with her. He also negligently placed the unearned flat fee into his office account instead of his COLTAF account. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.3, 1.4, and 1.15.

No. 08PDJ025. People v. Callaway. 06/19/2008. Attorney Suspended Six Months.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Fredrick M. Callaway, attorney registration number 10156, from the practice of law for six months, with the requirement of reinstatement proceedings pursuant to C.R.C.P. 251.29(c). Suspension was effective June 19, 2008.

Respondent knowingly engaged in misconduct in five client matters. In each of the matters, respondent harmed the system of justice by failing to address several of his clients’ needs and by failing to cooperate with the People in their investigation. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.3, 1.4(a) and (b), 1.6, 1.15, 1.16(d), 4.4, 8.1(b), and 8.4(d).

No. 08PDJ054. People v. Johnson. 06/19/2008. Attorney Suspension Stayed (Except Six Months) Pending Successful Completion of Two-Year Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended M. David Johnson, attorney registration number 24621, from the practice of law for one year and one day. All but six months of the suspension were stayed pending the successful completion of a two-year period of probation with conditions. Sanction was effective July 21, 2008.

Respondent recklessly failed to safeguard client property when he accepted retainer fees from clients by way of credit card, but then failed to transfer the retainer fees into his COLTAF account. Instead, respondent used the client funds for business and personal purposes before he earned them. Respondent subsequently brought his COLTAF account into line and none of his clients ever sustained a loss. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.15(a) and (c).

No. 08PDJ050. People v. Peak. 05/22/2008. Attorney Disbarred.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and disbarred Theodore Blakey Peak, attorney registration number 29355, from the practice of law. Disbarment was effective May 22, 2008.

Respondent engaged in misconduct in two client matters. One client hired respondent to represent him in Colo.R.Civ.P. 106 and Colo.R.Crim.P. 35(c) matters. Respondent failed to prosecute the Colo.R.Civ.P. 106 complaint and failed to file the Colo.R.Crim.P. 106 motion. Respondent accepted the retainer fee for this work into his personal account and thereafter spent it for his own purposes without earning it and without authorization from his client. Respondent also agreed to represent a second client in a social security disability matter while suspended from the practice of law, and failed to inform his client of his suspension for over a month. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.3, 5.5(a), and 8.4(c) and (d).

No. 08PDJ030. People v. Simon. 06/19/2008. Attorney Suspension Stayed (Except Six Months) Pending Completion of Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Harry L. Simon, attorney registration number 07942, from the practice of law for a period of one year and one day. All but six months of the suspension were stayed pending the successful completion of a two-year period of probation with conditions. Sanction was effective July 1, 2008.

A client gave respondent $10,000 to hold in trust. Respondent deposited the $10,000 into his trust account, but then negligently failed to safeguard those funds from his own property. When the client asked for the funds, respondent had to deposit personal funds into the account to cover the deficiency. The client never sustained a loss. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.15(a).

No. 07PDJ080. People v. Swift. 06/19/2008. Attorney Suspension Stayed Pending Successful Completion of One-Year Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Stephen H. Swift, attorney registration number 14766, from the practice of law for sixty days, all stayed pending the successful completion of a one-year period of probation with conditions. Sanction was effective July 21, 2008.

Respondent knowingly entered into a business transaction with his clients and failed to obtain his clients’ consent to a joint representation after consultation for the transaction. Respondent caused potential injury by inducing his clients to enter into a financial transaction without the full benefit of independent legal counsel. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.7(a) and 1.8(a).

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