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TCL > April 2009 Issue > Disciplinary Opinions

April 2009       Vol. 38, No. 4       Page  129
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. Disciplinary Opinions are printed as submitted by the Office of the PDJ and are not edited by the staff of The Colorado Lawyer.


Case No. 07PDJ027

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

ROBERT THOMAS EDWARDS.

December 30, 2008

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

On November 13, 2008, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Robert Thomas Edwards ("Respondent") appeared pro se. The Court now issues the following "Report, Decision, and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE

Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and suspension is generally appropriate when a lawyer knowingly violates a duty owed as a professional, and causes injury or potential injury. Respondent overdrew his COLTAF account, but shortly thereafter deposited sufficient funds to cure the deficiency. Respondent then knowingly and repeatedly failed to respond to several requests for information from the People. What is the appropriate sanction under these circumstances?

SANCTION IMPOSED: ATTORNEY SUSPENDED
FROM THE PRACTICE OF LAW FOR THIRTY (30) DAYS

II. PROCEDURAL HISTORY

The People filed a Complaint in this matter on January 31, 2007.1 Respondent failed to file an Answer. The Court granted "Complainant’s Motion for Default" on May 14, 2007. Upon the entry of default, the Court deems all facts set forth in the Complaint admitted and all rule violations established by clear and convincing evidence. People v. Richards, 748 P.2d 341, 346 (Colo. 1987).

The Court originally scheduled this matter for a Sanctions Hearing to be held on November 19, 2007. On that date, Respondent filed an "Unopposed Motion to Continue Hearing" and the Court continued the Sanctions Hearing until January 3, 2008.

On January 3, 2008, the Court held a Sanctions Hearing. Mr. Ikeler appeared on behalf of the People and Respondent appeared pro se. The Court heard testimony from Respondent and considered statements from the parties. The Court then, in the interests of justice, afforded the parties an opportunity to resolve the matter through a diversion agreement pursuant to C.R.C.P. 251.13. The parties subsequently tendered a "Diversion Agreement" on February 28, 2008, and the Court approved it on March 12, 2008.

On June 5, 2008, the People filed "Complainant’s Motion to Terminate Diversion Agreement" and alleged that Respondent materially breached the diversion agreement by failing to comply with its conditions including practice monitoring, psychiatric monitoring, financial monitoring, trust account school, and ethics school. Respondent failed to respond to the motion. Accordingly, on July 3, 2008, the Court granted the motion, terminated the diversion agreement, and scheduled the matter for a second Sanctions Hearing to be held on November 13, 2008.

III. FINDINGS OF FACT

The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted Complaint.2 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on May 18, 2005. He is registered upon the official records, Attorney Registration No. 36214, and is therefore subject to the jurisdiction of the Court.

On June 26, 2006, Respondent overdrew his COLTAF account at First Bank of Cherry Creek. He transferred $840.00 from his COLTAF account to a First Bank checking account, leaving a deficiency of $69.00. On June 28, 2006, Respondent deposited $100.00 into the COLTAF account, returning the balance to $31.00.

Respondent thereafter failed to respond to several request for information from the People. The admitted Complaint outlines these failures in greater detail. Respondent engaged in a pattern of conduct where he would initially fail to respond to a request from the People, briefly respond and promise forthwith action on his part, then subsequently fail to respond again. On April 3, 2007, the Colorado Supreme Court immediately suspended Respondent from the practice of law for his failure to cooperate with the People.

The admitted Complaint in this case presented clear and convincing evidence that Respondent failed to keep records of deposits into or withdrawals from his COLTAF account and failed to keep account reconciliation records. Accordingly, the Court concluded that Respondent violated Colo. RPC 1.15(g) (failure to maintain adequate trust account records). The Court also concluded that Respondent knowingly violated Colo. RPC 3.4(c) (disobeying an obligation under the rules of a tribunal) and Colo. RPC 8.1(b) (failure to respond to a lawful demand for information) when he failed to respond to repeated requests for information from the People.

IV. 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.

The Court finds that Respondent violated a duty owed to his clients by failing to keep adequate trust account records and violated his duty owed as a professional by failing to cooperate with the People. The entry of default established that Respondent, at a minimum, negligently failed to keep adequate trust account records and knowingly failed to cooperate with the People. This conduct caused injury to the legal profession and caused potential injury to his clients.

The People alleged that Respondent intentionally failed to comply with rules or orders of the disciplinary agency. See ABA Standard 9.22(e). The Court finds clear and convincing evidence that Respondent knowingly failed to cooperate, but cannot find Respondent intentionally failed to cooperate with the People based on the facts presented in this case. The Court notes that Respondent eventually provided bank records to the People following the first Sanctions Hearing, which revealed no further misconduct on the part of Respondent. The Court also notes that Respondent faced a number of challenges in his personal life at the time he knowingly failed to cooperate with the People.

The People acknowledged that Respondent has no prior disciplinary record. See ABA Standard 9.32(a). The Court also finds that Respondent is inexperienced in the practice of law, acted without a dishonest or selfish motive, and demonstrated remorse for his conduct at the first Sanctions Hearing. See ABA Standards 9.32(b), (f) and (m).

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the admitted facts and rule violations in this case is suspension. Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. ABA Standard 4.13. However, suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury or potential injury to a client, the public, or the legal system. ABA Standard 7.2. Suspension is also appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. ABA Standard 6.22.

The Colorado Supreme Court applied the ABA Standards in a case where a respondent abandoned a client and then failed to cooperate in the disciplinary investigation. In re Demaray, 8 P.3d 427 (Colo. 1999) (Attorney’s apparent abandonment of a client in a criminal case and failure to cooperate in disciplinary investigation warranted three-years’ suspension of his license to practice law, rather than disbarment, where attorney had not been previously disciplined, was inexperienced in the practice of law, and had not misappropriated any client funds.). While the Court acknowledges that the Demaray case involved more serious misconduct on the part of the respondent than found in this case, it nevertheless illustrates the view of the Colroado Supreme Court with regard to the seriousness of misconduct combined with a knowing failure to cooperate with the People.

V. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. Respondent, at a minimum, negligently failed to maintain adequate COLTAF records and knowingly failed to cooperate with the People. This misconduct adversely reflects on his fitness to practice law. The ABA Standards and Colorado Supreme Court case law applying the ABA Standards both support a sanction of suspension. Upon consideration of the nature of Respondent’s misconduct, his mental state, the actual and potential harm caused, and the mitigating factors, the Court concludes a short suspension is appropriate in this case.

VI. ORDER

The Court therefore ORDERS the following:

1. ROBERT THOMAS EDWARDS, Attorney Registration No. 36214, is hereby SUSPENDED from the practice of law for a period of THIRTY (30) DAYS, effective thirty-one (31) days from the date of this order.

2. Respondent 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. The Colorado Supreme Court immediately suspended Respondent on April 3, 2007.

2. See the Complaint in 07PDJ027.

_______________

Case No. 08PDJ028

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

RYAN M. STERN

January 9, 2009

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

On November 12, 2008, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Margaret B. Funk appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Ryan M. Stern ("Respondent") did not appear, nor did counsel appear on his behalf. The Court now issues the following "Report, Decision, and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE

Suspension is generally appropriate when a lawyer knowingly fails to perform services, or engages in a pattern of neglect and causes injury or potential injury to a client. Reprimand is generally appropriate when a lawyer knowingly engages in conduct involving dishonesty, fraud, deceit, or misrepresentation that adversely reflects on their fitness to practice law. Respondent engaged in a pattern of neglect and made multiple misrepresentations to two of his clients. What is the appropriate sanction?

SANCTION IMPOSED: ATTORNEY SUSPENDED FROM THE
PRACTICE OF LAW FOR A PERIOD OF TWO (2) YEARS

II. PROCEDURAL HISTORY

The People filed a Complaint in this matter on March 17, 2008. Respondent failed to file an Answer. The Court granted "Complainant’s Motion for Default" on June 25, 2008. Upon the entry of default, the Court deems all facts set forth in the Complaint admitted and all rule violations established by clear and convincing evidence. People v. Richards, 748 P.2d 341, 346 (Colo. 1987).

III. FINDINGS OF FACT

The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted Complaint.1 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on October 23, 1995. He is registered upon the official records, Attorney Registration No. 26267, and is therefore subject to the jurisdiction of the Court.

The Lewis Matter

John and Natalie Lewis were in a car accident on May 3, 2004. Mr. and Mrs. Lewis retained Respondent in the spring of 2006 to represent them on a contingency basis in a personal injury lawsuit against Liberty Mutual Insurance ("Liberty"). Respondent had performed legal work for Mr. Lewis’ company prior to the spring of 2006 and was a family friend of Mr. and Mrs. Lewis. Thus, although the parties never executed a formal fee agreement, they nevertheless formed an attorney-client relationship.

In May 2006, Respondent told Mr. Lewis that he was submitting their claim to Liberty. In the fall and winter of 2006, Respondent repeatedly called Mr. and Mrs. Lewis and advised them that he was in settlement mediation discussions with the "legal team" for Liberty. Respondent then told Mr. and Mrs. Lewis that he had settled their case for $30,000.00 plus outstanding medical bills.

On June 27, 2007, after purporting to send a demand for payment and supporting affidavits to Liberty to pay the settlement, Respondent presented a settlement agreement to Mr. and Mrs. Lewis and told them that they would receive a check in fifteen days. Following numerous attempts to obtain their check from Respondent, Mrs. Lewis spoke with a representative from Liberty. The Liberty representative informed Mrs. Lewis that the alleged settlement papers she had signed were totally fraudulent, that Liberty had never heard of Respondent, and that they had not provided Respondent with any settlement agreement. The Liberty representative also told Mrs. Lewis that the statute of limitations had expired on their claim.

Upset by this news, Mr. Lewis demanded that Respondent immediately deliver their check. Respondent brought a dirty and ripped check to Mr. Lewis’ office that he said had been issued by Liberty. However, Respondent would not allow the Lewis’ to closely examine the check. Respondent then purportedly called Liberty in the presence of Mr. and Mrs. Lewis and asked Liberty to reissue the check. Respondent then promised to deliver the re-issued check to Mr. and Mrs. Lewis later that afternoon. The same evening, Respondent left a personal check in the amount of $34,145.00 on their front porch, but failed to sign the check.

Suspicious that Respondent had written his own check to cover the settlement, Mrs. Lewis contacted Respondent’s bank. Respondent’s bank advised Mrs. Lewis that the account contained insufficient funds to cash the check. Both Mr. and Mrs. Lewis’ calls to Respondent from that day forward were "disconnected." Subsequent counsel has advised the Lewis’ that the statute of limitations has passed on their claim and that they are foreclosed from filing a personal injury lawsuit against Liberty.

The admitted Complaint in this case presented clear and convincing evidence that Respondent knowingly failed to provide the Lewis’ with competent legal representation, knowingly failed to act with reasonable diligence and promptness in representing them, knowingly failed to communicate with them, and knowingly engaged in dishonest conduct. The Court therefore concluded that Respondent violated Colo. RPC 1.1 (competence), Colo. RPC 1.3 (diligence), Colo. RPC 1.4 (adequate communication), and Colo. RPC 8.4(c) (dishonesty).

The Larson Matter

Robert and Jeri Larson, an elderly couple, purchased a townhouse in 2004 and the following summer discovered water leaking into their crawlspace. They later discovered that the water came from their neighbor’s flowerbed planted outside the wet wall.

The Larsons told Respondent about the problem and he offered to represent them on a contingency basis in an action against their neighbor. The Larsons were former clients and long-time friends of Respondent. Thus, although the parties never executed a formal fee agreement, they nevertheless formed an attorney-client relationship.

Respondent thereafter copied the Larsons on several demand letters addressed to their neighbor. He later told the Larsons that he had filed a lawsuit on their behalf against the neighbor. Respondent stated that the lawsuit had been filed in Golden, Colorado.

In October 2006, Respondent told the Larsons that they had finally won their lawsuit and that as a result they would receive $165,000.00. The Larsons were pleased, and they began shopping for a new home. Based on Respondent’s promise that they would receive the check shortly, they purchased a new home.

Between October 2006 and July 2007, Respondent continued to promise the Larsons that their check was on its way. He left a number of voicemail messages telling the Larsons that he had the check, but then explaining that he could not drop it off for a variety of reasons.

Despite Respondent’s representations to the Larsons, there is no record of any lawsuit filed anywhere on their behalf and no record of any judgment. Respondent has failed to return any of the Larsons’ calls after they confronted him regarding his deceit.

The admitted Complaint in this case presented clear and convincing evidence that Respondent knowingly failed to provide the Larsons with competent legal representation, knowingly failed to act with reasonable diligence and promptness in representing them, knowingly failed to communicate with them, and knowingly engaged in dishonest conduct. The Court therefore concluded that Respondent violated Colo. RPC 1.1 (competence), Colo. RPC 1.3 (diligence), Colo. RPC 1.4 (adequate communication), and Colo. RPC 8.4(c) (dishonesty).

The People’s Matter

Respondent failed to respond to the People concerning requests for investigation pursuant to C.R.C.P. 251.10. Mrs. Lewis filed her written complaint with the People on September 13, 2007. Mr. Larson filed his written complaint with the People on September 12, 2007.

Following extensive efforts by the People to contact Respondent, they petitioned the Colorado Supreme Court to immediately suspend him pursuant to C.R.C.P. 251.8.6. The Colorado Supreme Court immediately suspended Respondent from the practice of law on January 29, 2008.

The admitted Complaint in this case presented clear and convincing evidence that Respondent knowingly failed to respond to repeated requests for information from the People. The Court therefore concluded that Respondent knowingly violated Colo. RPC 3.4(c) (disobeying an obligation under the rules of a tribunal) and Colo. RPC 8.1(b) (failure to respond reasonably to a lawful demand for information from a disciplinary authority).

IV. 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.

Respondent’s failure to participate in these proceedings leaves the Court with no alternative but to consider only the established facts and rule violations set forth in the admitted Complaint in evaluating the first three factors listed above. The Court finds that Respondent violated duties owed to his clients, the public, and the legal system. Respondent specifically violated his duties to act with reasonable diligence, maintain his personal integrity, and obey his obligations under the rules of a tribunal. The entry of default established that Respondent knowingly engaged in this conduct and caused actual and potential financial and emotional injury to his clients.

The Court finds aggravating factors exist in this case including a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings, refusal to acknowledge the wrongful nature of his conduct, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. See ABA Standards 9.22(b), (c), (d), (e), (g), (h), (i) and (j). Due in part to the absence of any contradictory evidence, the Court finds clear and convincing evidence to support each aggravating factor. Respondent failed to participate in these proceedings and therefore presented no evidence in mitigation. However, the People acknowledged that Respondent has no prior disciplinary record. See ABA Standard 9.32(a).

The People suggest that the presumptive sanction for the misconduct evidenced by the admitted facts and rule violations is disbarment. They cite ABA Standards 4.41(a-c) and 5.11(b) as well as Colorado Supreme Court case law in support of this proposition. However, the Court notes that ABA Standards 4.41(a-c) each contemplate serious or potentially serious injury to a client and ABA Standard 5.11(b) contemplates intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice. Although the People offered conclusory allegations in their admitted Complaint that Respondent caused serious or potentially serious injury to his clients, the Court finds that the admitted facts instead support a conclusion that Respondent caused injury and potential injury to his clients. The Court also finds that the admitted facts support a finding that Respondent’s dishonesty and/or deceit adversely reflected on his fitness to practice.

The Court therefore concludes that the presumptive sanction for the misconduct in this case is suspension. ABA Standards 4.42(a-b) provide that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client or engages in a pattern of neglect and causes injury or potential injury to a client. In addition, ABA Standard 6.22 provides that suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. Finally, ABA Standard 5.13 provides that 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.

Colorado Supreme Court cases also support a period of suspension for neglect of multiple client matters plus other misconduct. See People v. Regan, 831 P.2d 893 (Colo. 1992) (attorney suspended for one year and one day for neglecting four client matters, making misrepresentations to one client, being held in contempt in bankruptcy court, and failing to refund client funds). See also People v. Eaton, 828 P.2d 246 (Colo. 1992) (attorney suspended for one year and one day for neglecting client matters and misrepresenting status of matters to clients); and People v. C de Baca, 948 P.2d 1 (Colo. 1997) (two-year suspension, rather than disbarment, appropriate for attorney who neglected two client matters and engaged in dishonest conduct). Respondent’s failure to participate in these proceedings or present significant factors in mitigation precludes any deviation from the presumptive sanction supported by the ABA Standards and Colorado Supreme Court case law.

The Court considered statements from each of the complaining witnesses during the Sanctions Hearing. Robert and Jeri Larson expressed their emotional exacerbation resulting from Respondent’s conduct and their extreme disappointment in him because of how they had trusted him like family. John and Natalie Lewis expressed their disappointment and anger towards Respondent as well as their concerns for their personal safety following Respondent’s uninvited appearance in their gated community. Both couples believe Respondent should not be allowed to practice law and neither want Respondent to cause additional harm to others.

V. 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 admitted Complaint, without explanation or significant mitigation, reveal the danger Respondent poses to the public. This misconduct adversely reflects on his fitness to practice law. Absent extraordinary factors in mitigation not presented here, the ABA Standards and Colorado Supreme Court case law applying the ABA Standards both support a lengthy suspension. Upon consideration of the nature of Respondent’s misconduct, his mental state, the actual and potential injury caused to his former clients, the aggravating factors, and the absence of significant mitigating factors, the Court concludes that a two-year suspension from the practice of law is appropriate.

VI. ORDER

The Court therefore ORDERS:

1. RYAN M. STERN, Attorney Registration No. 26267, is hereby SUSPENDED from the practice of law for a period of TWO (2) YEARS, effective thirty-one (31) days from the date of this order.

2. Respondent 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. See the People’s Complaint in 08PDJ028.

_______________

Case No. 07PDJ076

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

GERALD W. YOUNG.

December 30, 2008

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

On November 4, 2008, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Charles E. Mortimer appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Gerald W. Young ("Respondent") did not appear, nor did counsel appear on his behalf. The Court now issues the following "Report, Decision, and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE

Disbarment is the presumptive sanction when a lawyer knowingly converts client funds and causes serious or potentially serious injury. Respondent received a $2000.00 retainer fee from his client, deposited it into his operating account instead of his COLTAF account, and thereafter performed little or no work on the case. He also failed to answer the Complaint or otherwise participate in these proceedings. What is the appropriate sanction under these circumstances?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY

The People filed a Complaint in this matter on January 31, 2008.1 Respondent failed to file an Answer. The Court granted "Complainant’s Motion for Default" on May 14, 2008. Upon the entry of default, the Court deems all facts set forth in the Complaint admitted and all rule violations established by clear and convincing evidence. People v. Richards, 748 P.2d 341, 346 (Colo. 1987).

III. FINDINGS OF FACT

The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted Complaint.2 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on October 4, 1979. He is registered upon the official records, Attorney Registration No. 08818, and is therefore subject to the jurisdiction of the Court.

In November 2005, Dana Terrill retained Respondent to represent her in certain post-decree dissolution of marriage matters. She paid Respondent two separate checks in the amount of $1000.00 each for a total retainer fee of $2000.00. Respondent deposited each of these checks into his operating account instead of his COLTAF account, and thereafter performed very limited services on Ms. Terrill’s behalf, at most, services with a total value of $490.00.

After sending his final bill to Ms. Terrill, Respondent completely stopped communicating with Ms. Terrill. Respondent then disappeared. Ms. Terrill never received the benefit of, or even witnessed, any legal services performed by Respondent on her behalf. Respondent never provided Ms. Terrill any of the documents he claimed to have drafted in his billing statement. Respondent never filed any documents on behalf of Ms. Terrill.

The admitted Complaint in this case presented clear and convincing evidence that Respondent knowingly converted client funds (the retainer fee) in the amount of $2000.00. The Court therefore concluded that Respondent violated Colo. RPC 8.4(c) (knowing conversion). The Court also concluded that Respondent violated Colo. RPC 1.15(a), (b), and (c) (safekeeping property) when he failed to properly handle funds belonging to his client.

IV. 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.

Respondent’s failure to participate in these proceedings leaves the Court with no alternative but to consider only the established facts and rule violations set forth in the Complaint in evaluating the first three factors listed above. The Court finds that Respondent violated a duty owed to his client. Respondent specifically violated his duty to preserve the property of his client. The entry of default established that Respondent knowingly engaged in this conduct and caused significant actual and potential harm.

The Court finds aggravating factors exist in this case including a dishonest or selfish motive and substantial experience in the practice of law, indifference to making restitution. See ABA Standards 9.22(b) and (i). Due in part to the absence of any contradictory evidence, the Court finds clear and convincing evidence to support each aggravating factor. Respondent failed to participate in these proceedings and therefore presented no evidence in mitigation. However, the People acknowledged that Respondent has no prior disciplinary record. See ABA Standard 9.32(a).

The ABA Standards suggest that the presumptive sanction for the misconduct evidenced by the admitted facts and rule violations in this case is disbarment. Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. ABA Standard 4.11. Colorado Supreme Court case law applying the ABA Standards holds that disbarment is the presumptive sanction for conversion of client funds. 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 factors in mitigation).

Respondent knowingly converted client funds. His use and failure to return these funds warrants disbarment. Respondent’s failure to participate in these proceedings or present significant factors in mitigation further precludes any deviation from the presumptive sanction.

V. 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, without explanation or mitigation, reveal the danger Respondent poses to the public. This misconduct adversely reflects on his fitness to practice law. Absent extraordinary factors in mitigation not presented here, the ABA Standards and Colorado Supreme Court case law applying the ABA Standards both support disbarment. Upon consideration of the nature of Respondent’s misconduct, his mental state, the significant harm and potential harm caused, and the absence of significant mitigating factors, the Court concludes there is no justification for a sanction short of disbarment.

VI. ORDER

The Court therefore ORDERS:

1. GERALD W. YOUNG, Attorney Registration No. 08818, is hereby 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. Respondent SHALL pay full restitution to Dana Terrill, or the Colorado Attorney’s Fund for Client Protection, in the amount of $2,000.00, plus statutory interest commencing from December 1, 2005.

3. Respondent 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. The Colorado Supreme Court immediately suspended Respondent from the practice of law on January 10, 2008.

2. See the People’s Complaint in 07PDJ076.

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