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TCL > November 2008 Issue > Disciplinary Case Summaries

November 2008       Vol. 37, No. 11       Page  147
From the Courts
Colorado Disciplinary Cases

Disciplinary Case Summaries

The 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.®


Summary of Decision Issued by the PDJ

No. 07PDJ064. People v. Graham. 07/31/2008. Attorney Suspension Stayed Pending Completion of One-Year Probation.

Following a hearing pursuant to C.R.C.P. 251.18, a hearing board suspended Raymond Anson Graham, attorney registration number 14106, from the practice of law for ninety days. The suspension was stayed pending the successful completion of a one-year period of probation, with conditions.

Respondent entered guilty pleas to two misdemeanors and then failed to report either of them to the People. Respondent’s misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 8.4(b), the former C.R.C.P. 241.16, C.R.C.P. 251.5(b), and C.R.C.P. 251.20(b). p.151.

Summary of Decision 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. 08PDJ085. People v. Blair. 09/09/2008. Public Censure.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and publicly censured Jolene C. Blair, attorney registration number 15934. The sanction was effective September 9, 2008.

Respondent and another district attorney negligently failed to take adequate steps to ensure the free flow of information and materials between investigative personnel and their office sufficient to place in their possession or control all material relevant to the accused in a murder case. The prosecution relied entirely on its investigator to decide what information would be transmitted to the prosecution and, therefore, ultimately disclosed to the defense. As a result, they failed to disclose information in the possession of, and generated by, those who participated in the investigation and evaluation of the case. Respondent’s misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.3, 3.4(d), and 8.4(d).

No. 08PDJ078. People v. Coulter. 08/22/2008. Public Censure.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and publicly censured Nancy Elizabeth Coulter, attorney registration number 21601. The sanction was effective August 22, 2008.

On October 26, 2007, respondent pled guilty to driving under the influence in Adams County Court. On November 1, 2007, respondent pled guilty to driving under the influence in Jefferson County Court. She has since complied with all court-ordered treatment requirements. Respondent’s misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 8.4(b).

No. 07PDJ087 (consolidated with No. 08PDJ024). People v. Essling. 09/04/2008. Attorney Suspension Stayed (Except for Six Months) Pending Completion of Two-Year Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Timothy J. Essling, attorney registration number 12785, from the practice of law for one year and one day. All but six months of the suspension was stayed pending the successful completion of a two-year period of probation with conditions. The sanction was effective September 9, 2008.

Respondent neglected three client matters and failed to adequately communicate with one of his clients. He also knowingly disobeyed his obligation under General Order 2005-01 to register for the Electronic Case Filing Procedures for the U.S. District Court, District of Colorado. Respondent’s 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 3.4(c).

No. 08PDJ084. People v. Gilmore. 09/09/2008. Public Censure.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and publicly censured Terence A. Gilmore, attorney registration number 01306. The sanction was effective September 9, 2008.

Respondent and another district attorney negligently failed to take adequate steps to ensure the free flow of information and materials between investigative personnel and their office sufficient to place in their possession or control all material relevant to the accused in a murder case. The prosecution relied entirely on its investigator to decide what information would be transmitted to the prosecution and, therefore, ultimately disclosed to the defense. As a result, they failed to disclose information in the possession of, and generated by, those who participated in the investigation and evaluation of the case.

The district attorney’s office maintained an "open file" policy during the relevant time period; however, no policies existed in the District Attorney’s Office of the Eighth Judicial District concerning the prosecution’s duty to gather information from others who have participated in the investigation or the methods for doing so. Disclosure to the defense was based entirely on what was provided to them by the police department. They took no affirmative steps to inquire if more existed. Respondent did not knowingly or intentionally hide or withhold evidence from the defense. Instead, the prosecution relied entirely on their investigator to decide what information would be transmitted to the prosecution and, therefore, ultimately disclosed. As a result, material that should have been disclosed under C.R.C.P. 16 was not disclosed to the defense. With respect to some of the undisclosed evidence, information known to the prosecution should have caused them to inquire if the undisclosed material existed. Respondent’s misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.3, 3.4(d), and 8.4(d).

No. 08PDJ081. People v. Howarth. 09/03/2008. Six-Month Attorney Suspension.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Bernard McDonald Howarth, attorney registration number 18844, from the practice of law for six months, with the requirement of reinstatement proceedings pursuant to C.R.C.P. 251.29(c)-(i). The suspension was effective October 3, 2008.

Following an incident on September 19, 2007, respondent was charged with driving under the influence (DUI) and third-degree assault. He later pled guilty to the third-degree assault charge; the DUI charge was dismissed. Respondent was sentenced to supervised probation with conditions, including compliance with a protection order. He later pled guilty to violating the protection order. Respondent’s misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

No. 08PDJ015. People v. Ivker. 07/11/2008. Two-Year Attorney Suspension.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Richard Neil Ivker, attorney registration number 10950, from the practice of law for two years. The suspension was effective July 11, 2008.

On August 31, 2004, the Massachusetts Supreme Court suspended respondent from the practice of law for two years, effective September 30, 2004. This suspension was for conduct that occurred in the mid-1990s. Respondent advised a client on bail to flee the country rather than stay to face pending criminal charges. He also failed to fully investigate an error to a client’s sentence structure after receiving partial payment of a flat fee, and then failed to refund any portion of the fee before filing a civil action. His misconduct constituted grounds for the imposition of reciprocal discipline pursuant to C.R.C.P. 251.21(d).

No. 08PDJ073. People v. Kaker. 08/22/2008. Attorney Suspension Stayed Pending Completion of Two-Year Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Trace L. Kaker, attorney registration number 19797, from the practice of law for ninety days, all stayed pending the successful completion of a two-year period of probation with conditions. The sanction was effective August 22, 2008.

Respondent neglected tasks and caused delay in two related probate matters. She also failed to keep her client reasonably informed and charged an unreasonable fee. Respondent’s 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 1.5(a).

No. 08PDJ079. People v. Mills. 08/22/2008. Three-Month Attorney Suspension.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Jerry E. Mills, attorney registration number 00606, from the practice of law for three months, with the requirement of reinstatement proceedings pursuant to C.R.C.P. 251.29(c)-(i) and restitution. The suspension was effective September 22, 2008.

Respondent neglected two client matters. He also used client funds prior to earning them and failed to reduce fee agreements to writing. Respondent’s misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. 1.1, 1.3, 1.4(a), 1.5(b), 1.15(a), 1.15(g), and 1.16(a)(2).

No. 08PDJ016. People v. Preblud. 09/09/2008. One-Year-and-One-Day Attorney Suspension.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Arlan I. Preblud, attorney registration number 02030, from the practice of law for one year and one day. The suspension was effective October 10, 2008.

Respondent acted knowingly or with reckless disregard when he drafted and filed a false affidavit on behalf of his client in a dissolution of marriage proceeding. 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), 3.3(d), 8.4(c), and 8.4(d).

No. 08PDJ075. People v. Wales. 08/22/2008. Attorney Suspension Stayed (Except for Sixty Days) Pending Completion of One-Year Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Tonya J. Wales, attorney registration number 34724, from the practice of law for one year, all but sixty days stayed pending successful completion of a one-year period of probation with conditions. The sanction was effective August 22, 2008.

Respondent recklessly failed to competently represent her clients in a real estate litigation matter. She failed to answer dispositive motions; provide discovery responses; submit a certificate of review pursuant to CRS § 13-20-602; and generally failed to notify her clients that she had ceased prosecuting their case. Her clients’ claims were dismissed with prejudice and several orders of attorney fees and costs were entered against them. The parties agreed that respondent suffered from personal or emotional problems that played a substantial role in this misconduct. However, her misconduct still constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 1.1, 1.3, 1.4(a), and 8.4(c).

No. 08PDJ076. People v. West-Watt. 08/22/2008. Attorney Suspension Stayed (Except for Sixty Days) Pending Completion of Two-Year Probation.

The PDJ approved a Conditional Admission of Misconduct submitted by the parties and suspended Janet M. Stanlee West-Watt, attorney registration number 22107, from the practice of law for sixty days, all stayed pending the successful completion of a two-year period of probation with conditions. The suspension was effective September 22, 2008.

Respondent falsely testified in a criminal trial that she had a PhD in psychology. Although respondent had been working on her PhD, she had not been awarded it at the time of her testimony. The testimony was not material to the remainder of her testimony. Respondent’s misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5, and violated Colo. RPC 8.4(c).

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