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TCL > June 1997 Issue > Disciplinary Case Summaries

June 1997       Vol. 26, No. 6       Page  201
From the Courts
Colorado Disciplinary Cases

Disciplinary Case Summaries

Public disciplinary and disability decisions are listed below. Decisions issued by opinion appear in their entirety in the Colorado Supreme Court "Opinions" section of The Colorado Lawyer. Public disciplinary decisions involving issues that are not routine are summarized below, together with all private censures and, when space permits, selected admonishments. Occasionally, articles will appear in this space in lieu of summaries or with fewer of them.

Public Decisions

Harold J. Rivers, Jr.: The Supreme Court suspended the respondent on February 18, 1997, for one year and one day, effective immediately, ordered him to pay restitution as a condition of reinstatement, and assessed costs of $122.99 against him.

Frederick Grogan Brailsford: The Supreme Court suspended the respondent on February 24, 1997, for one year and one day, effective thirty days thereafter, ordered him to comply with conditions of reinstatement, and assessed costs of $1,330.23 against him.

Austin Barton Campbell: The Supreme Court publicly censured the respondent on February 24, 1997, and assessed costs of $48.57 against him following its approval of his conditional admission of misconduct.

John Kerz Reynolds: The Supreme Court suspended the respondent on March 3, 1997, for three years, effective in thirty days. As conditions of reinstatement, the court ordered the respondent to make restitution and to demonstrate that his emotional problems no longer impair his ability to practice law. Costs of $1,672.75 were assessed against him.

Richard I. Gonzalez: The Supreme Court publicly censured the respondent on March 10, 1997, and assessed costs of $47.82 against him following its approval of his conditional admission of misconduct.

Andre Keith Silvola: On March 10, 1997, the Supreme Court approved the respondent’s conditional admission of misconduct, extended his current suspension for an additional year [he may not be reinstated prior to May 16, 1998], imposed conditions for reinstatement, including that his practice be monitored by another lawyer after reinstatement, and assessed costs of $47.98 against him.

Raymond Anson Graham: The Supreme Court suspended the respondent on March 17, 1997, for six months, effective thirty days after the issuance of its Opinion, imposed conditions, and assessed costs of $202.60 against him following its approval of his conditional admission of misconduct.

John Rich Frye, Jr.: The Supreme Court disbarred the respondent on March 24, 1997, effective immediately, and assessed costs of $89.45 against him following its approval of his conditional admission of misconduct.

Dirk Tinglan Dieters: The Supreme Court suspended the respondent for one year and one day on March 24, 1997, effective in thirty days, and assessed costs of $387.96 against him, following its approval of his conditional admission of misconduct.

Sally S. Townshend: The Supreme Court disbarred the respondent on March 24, 1997, effective in thirty days, ordered her to make restitution prior to any application for readmission, and assessed costs of $160.92 against her.

Jerry W. Crist: The Supreme Court immediately suspended the respondent on March 27, 1997.

Jeffrey D. Lavenhar: The Supreme Court disbarred the respondent on March 31, 1997, effective immediately, and assessed costs of $11,888.30 against him.

Victor John Barbieri: The Supreme Court publicly censured the respondent on March 31, 1997, and assessed costs of $317.94 against him following its approval of his conditional admission of misconduct.

Joseph E. Mohar: The Supreme Court publicly censured the respondent on March 31, 1997, and assessed costs of $130.24 against him.

Fred Yancy Boyer: Following its approval of his conditional admission of misconduct, the Supreme Court suspended the respondent for 180 days on March 31, 1997, effective in thirty days, ordered him to comply with conditions, and assessed costs of $106.94 against him.

Private Discipline

Attorney A: Following its approval of his conditional admission of misconduct, the Supreme Court privately censured the respondent on February 20, 1997, and assessed costs of $65.47.

The lawyer’s professional misconduct arose when he was paid a so-called "non-refundable retainer" of $1,000. There was no written fee agreement. Several months after being hired, the lawyer’s client terminated the lawyer’s services, since the client had resolved his legal problem himself. The client asked the respondent for an accounting and a refund, and the lawyer suggested to the client that he could expect a refund of $500. No such refund or accounting was forthcoming, despite numerous requests, until shortly after the client filed a grievance more than a year later. After being notified of the grievance, the lawyer refunded $465.72, representing the unearned portion of the fee.

The respondent admitted that his conduct violated Colo. RPC 1.16(d) by failing to provide an accounting or a refund for more than a year after being discharged. In determining that a private censure was appropriate, the court noted that the lawyer had not been disciplined in over ten years of practice and did not insist that his advance fee was in fact "non-refundable." The court also noted that the lawyer should be aware that it did "not necessarily agree with the assistant disciplinary counsel that the rules of professional conduct permit the collection of an actual ‘non-refundable retainer,’ or that such a fee is earned upon receipt and may be properly deposited in an account other than a trust account." Because the court concluded that these issues should be decided in a more appropriate case, it decided to accept the conditional admission.

Attorney B: On March 7, 1997, the Supreme Court privately censured the respondent and assessed costs of $45 against him, following its approval of his conditional admission of misconduct.

The lawyer’s professional misconduct arose from his representation of a client in a guardianship matter that evolved into an adoption proceeding. The lawyer entered into a "flat fee agreement" with his client that required a "nonrefundable" $2,000 initial payment. When the guardianship matter was concluded, the client received a statement reflecting a $612.50 credit balance. When the client tried to obtain a refund, the lawyer’s staff told her that amount was not refundable. Later, the client agreed to retain the lawyer for the adoption proceedings, and she was told that she would be charged a flat fee of $1,100 for the adoption. The lawyer also told the client that he would use the $612.50 credit toward the publication costs for the adoption.

Some problems with venue developed, and the lawyer billed his client an additional $2,328.77 for the adoption. When the client failed to pay, the lawyer brought a collection action against her and obtained a judgment for $2,743.59 plus costs and interest. In the meantime, the client had filed a grievance. As a result, the lawyer agreed to vacate the judgment and paid the attorney fees she had incurred in defending herself.

The lawyer admitted that he charged an "illegal and clearly excessive fee" in the guardianship matter by requiring his client to pay a nonrefundable fee, in violation of DR 2-106(A). Because the lawyer failed to pay or deliver the unused portion of his advance fee to his client on request, the lawyer violated DR 9-102(B)(4). The lawyer also charged an unreasonable fee in the adoption matter by first agreeing to a flat fee and then later demanding an additional $2,000 more than originally agreed. Since this occurred after January 1, 1993, the lawyer’s conduct violated Colo. RPC 1.5(a). In addition, the lawyer violated Colo. RPC 8.4(d) by filing a complaint against his client to collect the unreasonable fee in the adoption matter because this issue should have been addressed in the adoption proceeding itself. Finally, the lawyer violated Colo. RPC 1.1 (failed to provide competent representation) by failing to file the adoption proceeding in the proper county.

The court noted that the extent of the lawyer’s misconduct and the length of time it took to respond to client concerns as to the unreasonable fees would suggest that private discipline is inadequate. Because the lawyer had not been disciplined previously in over thirty years of practice, the court decided to accept the conditional admission of misconduct.

Attorney C: The Supreme Court privately censured the respondent on March 26, 1997, determined that his failure to comply with conditions may be considered additional disciplinary violations, and assessed costs of $1,713.44 against him, following its approval of his conditional admission of misconduct which recommended the imposition of either a private or public censure.

The lawyer’s professional misconduct arose from his representation of two clients in two separate criminal matters. After being retained, the lawyer left his law practice, and Denver, without notifying his clients or others, and without withdrawing from the cases set for trial. The lawyer traveled to other states where he received in-patient and out-patient mental health care for a "major depressive disorder."

The lawyer admitted that his conduct violated Colo. RPC 1.3 (neglect), Colo. RPC 1.4(a) (lack of communication with clients), Colo. RPC 1.16(d) (failure to take steps to protect the interests of clients after termination representation), and Colo. RPC 8.4(d) (conduct prejudicial to the administration of justice).

The court noted that the lawyer had apologized to his clients and had refunded the fees they had paid him, and that he had not been disciplined previously in over thirty years of practice. Nonetheless, some members of the court would have imposed public discipline.

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The forms of discipline, both public and private, are set forth in C.R.C.P. 241.7. Disbarment is the revocation of a lawyer's license. Suspension is the temporary interruption of a lawyer's privilege to practice. Public censure is a published reproach mailed to the lawyer by the Colorado Supreme Court. Private censure is an unpublished reproach mailed to the lawyer by the Colorado Supreme Court. Admonition is a letter of disapproval mailed to the lawyer by the Grievance Committee.

© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=1997.


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