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TCL > May 2009 Issue > Disciplinary Opinions

The Colorado Lawyer
May 2009
Vol. 38, No. 5 [Page  133]

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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. 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. 07PDJ012

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

LIGITA S. BARDULIS.

March 13, 2008

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

On January 8-10, 2008, a Hearing Board composed of E. Steven Ezell and John M. Lebsack, 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. Margaret B. Funk and Julie M. Schmidt appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Norman R. Mueller appeared on behalf of Ligita S. Bardulis ("Respondent"). The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19.

I. ISSUE

Disbarment, absent substantial mitigation, is generally appropriate when a lawyer knowingly converts funds. Respondent, an employee of a law firm, kept fees she collected instead of submitting them to the firm as provided in her employment agreement. She engaged in this conduct without authorization and without disclosing it to the firm. She later made false statements to the firm and to the People with regard to her conduct. Did Respondent violate Colo. RPC 8.4(c)?

The Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 8.4(c) as charged in Claims I and II of the Complaint. Specifically, Respondent knowingly converted funds belonging to Powers Phillips, P.C. ("the firm") when she, unilaterally, without authorization, and without providing notice to anyone at the firm, deposited fees she collected as an employee of the firm into a COLTAF account she had established for her own use and benefit. Further, Respondent knowingly acted dishonestly when she told shareholders of the firm that she had not collected any fees in July, August, and September 2005. Finally, Respondent knowingly acted dishonestly when she repeated this assertion to the People during the course of their investigation.

SANCTION IMPOSED: ATTORNEY DISBARRED.

II. PROCEDURAL HISTORY AND BACKGROUND

On February 16, 2007, the People filed their Complaint in this matter and Respondent filed her Answer on April 19, 2007. The Complaint contains three claims for relief. The PDJ granted a motion for summary judgment as to the third claim dealing with improperly advancing financial assistance to a client in violation of Colo. RPC 1.8(e) on December 21, 2007.

The first and second claims charge separate violations of Colo. RPC 8.4(c). Claim I is based upon Respondent’s alleged knowing conversion in failing to remit fees she earned to Powers Phillips, P.C. Claim II is based upon Respondent’s alleged false statements to the firm and later to the People when they began their investigation concerning her contention that she had not collected any fees in July, August, and September, which alleged false statements would be in violation of Colo. RPC 8.4(c). At the conclusion of the evidence, the People argued that Respondent should be disbarred based upon Colorado case law and ABA Standards, which presumptively call for disbarment when a lawyer knowingly converts funds belonging to another, or engages in other conduct involving dishonesty, fraud, deceit or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice. See ABA Standards 4.11 and 5.11(b).

Respondent argued that the People failed to establish clear and convincing evidence that she knowingly took firm property or funds. Respondent testified that she never intended to steal from the firm nor act dishonestly in telling the firm or the People that she had not collected fees in July, August, and September. She believed that she was no longer an employee of the firm, but rather a subtenant of the firm based upon oral approval from two members of the firm. Respondent therefore argues the People cannot prove a knowing conversion, and at most, a public censure is the appropriate sanction under ABA Standards 5.13 should the Hearing Board find a violation of Claim II.

III. FINDINGS OF MATERIAL FACT

The Hearing Board considered the testimony of each witness and 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 16, 2000, and is registered as an attorney upon the official records of the Colorado Supreme Court, Attorney Registration No. 32027. She is therefore subject to the jurisdiction of the Colorado Supreme Court and the Office of the Presiding Disciplinary Judge in these proceedings. Respondent’s business address is Post Office Box 270842, Littleton, Colorado 80127.

Respondent is a practitioner who specializes in workers’ compensation and social security law. She was employed with Powers Phillips, P.C., from April 15, 2005, until she was terminated on September 22, 2005. She has practiced as a sole practitioner since that time.

Respondent Seeks Employment with the Firm

In April 2005, Respondent answered an advertisement placed in the The Docket for an employment opportunity at Powers Phillips, P.C. Respondent met with members of the firm and discussed a "transitional shareholder agreement" with them. This arrangement would give Respondent the opportunity to receive a monthly salary and benefits without the necessity of paying the entire amount of monthly overhead paid by a full shareholder at the firm. This arrangement would also give the firm the opportunity to evaluate Respondent’s ability to generate income with the hope that she would eventually transition into a full shareholder and thereby reduce the monthly overhead costs for the other shareholders. During the interview process, Respondent provided the firm with records illustrating fees she generated with her employer at that time.2 The firm likewise provided Respondent with a monthly report illustrating how the firm calculated salaries for shareholders.3

Following these preliminary discussions, the firm offered Respondent an employment contract, which required Respondent to practice solely for the firm and for no other lawyer or firm unless she received consent from the firm. Otherwise, Respondent would be obligated to devote her entire professional time to the affairs of the firm. Furthermore, the firm agreed to pay Respondent a salary equal to 50% of the fees she collected minus certain discretionary costs. The firm would apply their 50% share of the collected fees toward overhead costs. Under the terms of the employment agreement, Respondent would never be responsible for any overhead deficiency.4

If either Respondent or the firm wanted to terminate the employment agreement, they could do so by providing thirty-day written notice to the other party. Otherwise, the contract would remain in effect from April 2005 through October 2005. Respondent signed this employment agreement.

Respondent Supplies a List of Clients to the Firm

After commencing employment with the firm, Respondent used the firm’s letterhead to advise a client that she was leaving her old firm and "join(ing) a new law firm." Respondent explained that she would be better able to serve the client at her new firm because she would have more resources at her disposal.

Since the firm provided malpractice insurance for Respondent under the terms of the employment contract, the firm administrator asked Respondent for a list of clients.5 On or about May 25, 2005, Respondent provided the firm with a list of twenty-three clients to place in the firm’s computer records.6 As late as August 1, 2005, Respondent entered into a fee agreement, which identified her as, "Ligita S. Bardulis, of Powers Phillips P.C."7 Nevertheless, after Respondent started working for the firm, she alone maintained contact with her clients. Firm staff never opened mail addressed to Respondent.

Respondent Provides Fees to the Firm for Two Months

In April and May of 2005, Respondent submitted to the firm 100% of the fees she collected while representing her clients. After calculating Respondent’s salary based upon the agreed upon formula, 50% of fees collected minus discretionary costs, Respondent received a salary of approximately $300.00 in May 2005, and $200.00 in June 2005.8 The firm issued all checks to Respondent’s clients during this time.9

After assessing her first two months as an employee at the firm, Respondent began to question some of the charges assessed against her salary and began to feel the firm was taking advantage of her. At the same time, Respondent was experiencing some financial difficulties, including carrying two home mortgages. Respondent therefore asked the firm’s office manager to run some numbers so she could determine the actual overhead costs, the amount paid by a full shareholder, and the amount paid by her. The office manager ran the numbers and responded to Respondent via e-mail on July 21, 2005.10 The office manager also advised Respondent to present any proposed changes to her arrangement at the next firm meeting.

Respondent did not request any changes during the next firm meeting. However, on July 27, 2005, she wrote to the firm shareholders and asked for some "flexibility" due to her financial difficulties.11 Respondent pointed out that her expenses with the firm exceeded her collections and that she would be interested in an "of counsel" or "subtenant" arrangement with the firm wherein she would pay her own rent subject to the firm’s approval.12 This issue, however, was not addressed until the September 2005 shareholder meeting. At that time, the firm agreed to allow Respondent to become a subtenant under a sublease agreement that would commence on or about October 1, 2005.13

Respondent Fails to Disclose Fees She Collected

In July, August, and September, Respondent withheld from the firm all fees that she had collected from clients.14 She deposited those fees into her own COLTAF account that she established on July 7, 2005, without the firm’s knowledge.15 Between April and September 2005, the attorney fees checks issued to Respondent’s social security clients were often issued separately from the clients’ settlement checks and were made payable to Respondent individually. At the same time, Respondent continued to hold herself out as a member of the firm in pleadings and written fee agreements with clients. Respondent did not pay rent in July, August, and September, and members of the firm continued to treat her as a transitional shareholder with the ultimate goal of transitioning her into a full shareholder.

Furthermore, although Respondent entered into a fee agreement with a client as a member of the firm on April 18, 2005, she did not disclose to the firm that she disbursed settlement funds to the client, collected attorney fees of $2,467.78 on or about July 26, 2005, and deposited those fees into her own trust account.16

Respondent Holds Herself Out as a Member of the Firm

While employed at the firm, Respondent filed numerous pleadings and other legal documents, which identified Respondent as a member of the firm.17 Respondent also sent correspondence on firm letterhead, which identified her as a member of the firm as late as September 7, 2005.18 Respondent also falsely reported to the firm that she had not collected any fees in July, August, and September 2005. Throughout this time, members of the firm believed that Respondent was abiding by the terms of her employment agreement. The firm was unaware that in late June 2005, Respondent had established her own Limited Liability Company entitled "Ligita S. Bardulis, LLC."

Members of the Firm Question
Respondent’s Failure to Report Fees

When Respondent reported no collected fees to the firm in July and August, one of the firm’s shareholders, Wendy Weigler, went to Respondent’s office to discuss this issue with Respondent. Ms. Weigler and other shareholders felt concerned, because Respondent had not collected fees for two consecutive months. In response to Ms. Weigler’s inquires, Respondent stated that the firm should not be concerned, the fees would be forthcoming although they had not yet been realized, and that the nature of Respondent’s practice resulted in dry spells at times. Respondent did not, however, indicate that she had created a COLTAF account, an LLC, and transferred client fees to these entities in July and August.

Respondent is Terminated When the Firm
Discovers Respondent’s Undisclosed COLTAF Account

On September 21, 2005, a client called the firm and complained that he could not cash a check he had received from Respondent in a social security matter. Upon inquiry of the client, firm personnel discovered that although the client was listed as a firm client, the check he held had not been written on a firm account. Upon further inquiry, the firm discovered Respondent maintained a COLTAF account in her name at Wells Fargo Bank. Respondent admitted that she opened this account on or about July 7, 2005, after receiving what she believed to be a verbal authorization to change her status from employee to subtenant of the firm.19 However, in her response to the People’s Request for Investigation, Respondent stated that she had established her own LLC and trust account in "anticipation" of becoming a subtenant. She also contended that the firm had initially told her that it would not be a problem to convert to subtenant status, but then the next day firm members told her this could not be done.20

On September 22, 2005, immediately following the discovery of Respondent’s undisclosed COLTAF account, the firm notified Respondent by letter that her employment with the firm had been terminated. They also asserted that Respondent had breached her employment agreement with the firm by collecting fees on behalf of clients and not submitting them to the firm. In addition, the firm demanded that Respondent pay actual costs incurred on her behalf as an employee under the employment agreement. Finally, they advised Respondent that her conduct in diverting fees could be deemed civil theft, conversion, and possibly fraud.21 Shortly thereafter, the firm reported Respondent’s conduct to the People.

The People’s Investigation

In response to the People’s intake lawyer inquiring about the firm’s report against her, Respondent claimed that the firm’s assertions were "baseless" and that the matter involved nothing more than a dispute between attorneys over expenses in an office sharing arrangement. Respondent therefore resisted the People’s request to examine her client files, and in particular, resisted the People’s effort to obtain her COLTAF account records.22 When the People ultimately subpoenaed Respondent’s COLTAF account records, they discovered that she had collected fees and some costs from clients in July, August, and September of 2005. The total amount she had collected was $10,962.56. Respondent never advised the firm that she had collected these fees and had kept them.

Testimony on Behalf of Respondent

Respondent testified that she never intended to convert firm funds by withholding fees from them in July, August, and September, but that she believed shareholders Tamara Vincellette and Wendy Weigler had orally agreed she could become a subtenant and that they had released her from the obligation to report fees she collected to the firm. These shareholders testified that they never gave Respondent oral permission to change her status to a subtenant.23 The Hearing Board finds Respondent did not have a reasonable basis to believe the firm had orally agreed she could become a subtenant. The testimony of Ms. Vincellette and Ms. Weigler on this point is clear and convincing. The firm eventually approved, in writing, her request to become a leaseholder in September 2005, but it would only become effective on October 1, 2005.24

Respondent’s current practice involves the representation of disabled and indigent persons who would otherwise have a difficult time finding legal representation. Respondent, for the most part, represents poor and disadvantaged persons seeking Social Security disability benefits and workers compensation benefits. Respondent provides legal services to many homeless persons who end up being hospitalized at Denver Health Medical Center of the University Hospital; Respondent often makes initial contact with these clients while they are still in the hospital in an effort to see if they are eligible for disability benefits. In many cases, but for the Respondent’s willingness to undertake this work, these clients would not be able to obtain legal representation.

Respondent called a number of witnesses who testified to her legal skill and compassion for her clients. The client who had contacted the firm about the check from Respondent’s account was the same client whom Respondent had advanced funds before the arrival of his settlement check. The client was in a desperate financial situation and Respondent provided him money because she felt the ethical breach of Colo. RPC 1.8(e) (prohibition on the advancement of funds) was necessary to avoid the potential harm to her client.

Psychiatric Testimony

David S. Wahl, a forensic psychiatrist, testified that Respondent did not suffer from a mental disease or a serious personality disorder. He also found no evidence of substance abuse. In his view, Respondent did not act out of malice or intent to harm anyone. However, according to Dr. Wahl, Respondent’s experiences dealing with her parents’ traumatic history and an abusive husband all made her "exquisite[ly] sensitive to injustices." In explaining her actions in not reporting fees to the firm, Respondent told Dr. Wahl that she felt that she needed to "right a wrong" that the firm had caused her, and that the employment contract she had signed was confusing.

Spencer Friedman, a psychologist, testified that he has been treating Respondent for nearly a year and that Respondent is making substantial progress toward understanding her maladaptive way of handling personal problems. Both doctors testified that the conduct that brought her before this Hearing Board is amenable to therapy and that her prognosis is good and will continue to improve with additional therapy.

Restitution

On February 14, 2007 Respondent submitted a check to the firm in the amount of $4,500.00 in an effort to make restitution. The check, however, was returned because the firm had since been dissolved. The Hearing Board finds that the proper amount of restitution is $5,970.05 and is determined as follows:

Total fees and costs placed into Respondent’s COLTAF  $12,399.0625
Subtract costs portion  $ 2,630.7026
Net fees diverted from the firm  $ 9,768.36
Multiply by 50% under Employment Agreement27  $ 4,884.18
Add back expenses debited by firm  $ 1,085.8728
Total restitution:  $ 5,970.05

IV. CONCLUSIONS OF LAW—
SUBSTANTIVE ALLEGATIONS

The Hearing Board finds clear and convincing evidence that Respondent knowingly converted funds belonging to Powers Phillips, P.C. when she, unilaterally, without authorization, and without providing notice to anyone at the firm, deposited fees she collected as an employee of the firm into a COLTAF account she had established for her own use and benefit. Respondent had an obligation to provide the firm with 100% of the fees she collected in July, August, and September 2005 pursuant to the employment agreement. The Hearing Board finds Respondent’s explanation that she believed in good faith that she had been authorized to become a subtenant and keep the fees collected in July, August, and September, rings hollow when looking at the substantial direct and circumstantial evidence to the contrary.

  • Respondent continued to allow the firm to pay her portion of the rent while she claimed that she was a lessee.
  • Respondent filed pleadings that identified herself as a member of the firm while she collected fees for her own benefit.
  • Respondent created an LLC and a COLTAF account that she alone controlled but did not let the firm know of her activities.
  • When members of the firm inquired about her failure to produce fees in July, and August Respondent told them that the fees would be forthcoming. She did not, however, say that the fees belonged to her and not the firm.
  • When the firm found out that Respondent issued a check to a firm client and asked Respondent to produce her bank records, Respondent resisted their request as she did when the People asked for the same.

The Hearing Board also finds clear and convincing evidence that Respondent knowingly acted dishonestly when she told shareholders of the firm that she had not collected any fees in July, August, and September 2005. Finally, Respondent knowingly acted dishonestly when she repeated this assertion to the People during the course of their investigation. The Hearing Board therefore finds clear and convincing evidence that Respondent violated the following rules of professional conduct as alleged in the Complaint:

  • First Claim, Colo. RPC 8.4(c) [a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation] (knowing conversion) for failing to remit to the firm fees she earned as an employee in July, August, and September.
  • Second Claim, Colo. RPC 8.4(c) [a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation] for falsely telling the firm, as well as the People, that she had not collected any fees in July, August, and September and that she had disclosed to the firm all fees she had earned during this period of time.
  • Third Claim, Colo. RPC 1.8(e) (prohibition on the advancement of funds) for improperly advancing funds to a client. This claim, including a violation of C.R.C.P. 251.5, was resolved in favor of the People on summary judgment.

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

ABA Standards 4.11 deals with a duty a lawyer has to clients. It states:

Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.29

ABA Standards 5.11(b) and 5.13 deal with a lawyer’s violation of duties owed to the public. They state:

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 law.30

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.

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:

  • The duty violated;
  • The lawyer’s mental state;
  • The actual or potential injury caused by the misconduct; and
  • The existence of aggravating or mitigating factors.

A. THE DUTY VIOLATED

The Hearing Board finds Respondent violated duties to her clients, the public, and the legal profession. The public expects the lawyer to be honest and Respondent failed to maintain the standards of personal integrity upon which the public and legal community rely.

B. THE LAWYER’S MENTAL STATE

The Hearing Board finds Respondent acted knowingly when she collected attorney fees in July, August, and September 2005 and failed to remit them to the firm. The fees had been entrusted to her, she knew a portion of the fees belonged to the firm, and she knew she did not have authorization to keep the fees. Whether Respondent had the conscious objective or purpose to accomplish a particular result (converting the fees) is irrelevant. See ABA Standards 4.11 and Definitions ("Knowledge").31

Respondent also acted knowingly at the time she told the firm (and later the People during their investigation) that she had reported all collected fees and she knew that this was a dishonest statement. See ABA Standards 5.1.

C. THE ACTUAL OR POTENTIAL INJURY

The Hearing Board finds Respondent caused injury and potential injury to the individual members of the firm, the legal profession and the public. When a lawyer fails to act honestly, her lack of integrity affects the legal profession even though the conduct did not directly involve interaction with a client. Testimony from shareholders in the firm demonstrates actual and substantial potential harm to the firm’s economic position, as well as the breach of trust and personal anguish the members of the firm experienced following their discovery that Respondent, while continuing to hold herself out to them as an employee, had opened a COLTAF account and had deposited fees in-part belonging to the firm.

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.

Dishonest Motive—9.22(b)

Respondent acted with a dishonest motive in failing to disclose the fees she collected for July, August, and September 2005. She also acted with a dishonest motive when she reported to the firm that she had not collected fees in July, August, and September. Respondent later acted deceptively when she told the People that she had remitted all attorney fees to the firm and had not collected any in July, August, and September.

While Dr. Wahl concluded that Respondent’s actions had not been motivated by malice or intent to harm anyone, we nevertheless find Respondent acted deceptively and dishonestly. Had Respondent’s actions been driven by a mental illness or serious personality disorder, a different finding might be appropriate. But as both experts testified, Respondent did not suffer from a serious mental disease or personality disorder.

A Pattern of Misconduct—9.22(c)

Respondent failed to tell members of the firm that she had essentially stopped abiding by the terms of the employment agreement as of July 2005. At the same time, Respondent started to divert fees she received to accounts she alone controlled. This failure to disclose and misrepresentation by omission continued for three months.

Deceptive Practices During the Disciplinary Process—9.22(f)

Likewise, Respondent’s conduct in dealing with the People showed a continuing pattern of deceit. She failed to provide bank records when the People requested them in May 2006.32 The People eventually obtained the records after they subpoenaed them from the bank. After the People subpoenaed the bank records, Respondent finally admitted she kept fees from clients while working at the firm, but then claimed two members of the firm orally agreed to such an arrangement. This brinkmanship in terms of disclosures formed a continued pattern of misconduct throughout the investigative process this case.

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

Although the doctors testified that Respondent is making substantial strides toward understanding her maladaptive behavior, she has not acknowledged the wrongful nature of her conduct. When first confronted by the People, Respondent argued that the firm’s claim that she may have converted funds was baseless. Respondent maintains members of the firm told her that she could treat herself as a subtenant despite the lack of any evidence to support this assertion other than her own testimony.

Furthermore, Respondent testified that she thought it was unfair for the firm to lead her to believe she could change her status as an employee at any time, and later rely on the employment agreement to say she could not. Respondent told Dr. Wahl she acted in an effort to right a wrong she felt she had suffered at the hands of the firm. Respondent also told Dr. Wahl the employment agreement was confusing and she felt the firm was taking advantage of her. Thus, the Hearing Board finds Respondent refuses to acknowledge the wrongful nature of her conduct.

Indifference to Making Restitution—9.22(j)

Although the People argue that the Hearing Board should find that Respondent has been indifferent to making restitution, the record shows that she attempted to pay the firm $4,500.00 on or about February 14, 2007. While such an attempt is well after the People commenced their investigation, we cannot make a finding that she is indifferent to making restitution based on this record.

2. MATTERS IN MITIGATION, ABA STANDARD 9.3

The Hearing Board considered evidence of the following mitigating circumstances in deciding the appropriate sanction.

Absence of a Prior Disciplinary Record—9.32(a)

The record shows Respondent has not been subject to the disciplinary process in the past.

Timely Good Faith Effort to Make Restitution or
Rectify Consequences of Misconduct—9.32 (d)

On February 14, 2007, Respondent attempted to rectify the consequences of her misconduct by tendering a check in the amount of $4,500.00 to the firm. Although took no further action after the check was returned, she still made an effort and we acknowledge this effort.

Inexperience in the Practice of Law—9.32(f)

While Respondent was inexperienced in the practice of the law at the time of her misconduct, this mitigating factor has no weight when the substantive violation involves dishonesty.

Analysis Under Case Law and ABA Standards

Knowing conversion "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) (quoting In re Noonan, 506 A.2d 722, 723 (N.J. 1986)). 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.

The Colorado Supreme Court has indicated that lawyers are "almost invariably disbarred" for knowing misappropriation of client funds or one’s law firm. Thompson, 991 P.2d 820, 823 (Colo. 2000); People v. McGrath, 780 P.2d 492, 493 (Colo. 1989) ("the Court would not hesitate to enter an order of disbarment if there was no doubt that the attorney engaged in knowing conversion of his client’s funds"); In re People v. Lavenhar, 934 P.2d 1355 (Colo. 1997); People v. Lefly, 902 P.2d 361 (Colo. 1995); People v. Young, 864 P.2d 563 (Colo. 1993) (conversion of clients’ funds warrants disbarment even absent prior disciplinary history and despite cooperation and making restitution). For purposes of our analysis, we treat the misappropriation of funds from a lawyer’s own law firm and that from a client as the same.

The Hearing Board notes that the cases in which the Colorado Supreme Court has ordered a sanction short of disbarment for knowing conversion of funds are few, and distinguishable from the present case. For example, Respondent did not offer evidence that she suffered from a serious mental disorder that caused her misconduct, as was the case in People v. Lujan. 890 P.2d 1117 (Colo. 1991). Nor do the facts present a case of technical conversion; that is, one in which the Respondent simply acted negligently in handling funds belonging to another. See People v. Dickinson, 903 P.2d 1132, 1138 (Colo.1995).

The Hearing Board carefully considered the mitigating factors and find that they are not sufficiently compelling to warrant a sanction other than disbarment. See In the Matter of Fischer, 89 P3d 817 (Colo. 2004) and People v. Nulan, 820 P.2d 1117 (Colo. 1991). In determining Respondent’s state of mind, the Hearing Board finds Respondent’s failure to disclose her actions to the firm most telling. If Respondent in good faith believed that she no longer considered herself to be an employee of the firm, she would not need to conceal the fact that she placed fees into her COLTAF account in July, August, and September. Instead of disclosing these facts, Respondent assuaged the firm’s concerns about not collecting fees by telling them the money was forthcoming.

Finally, the Hearing Board finds Respondent engaged in knowing conduct involving dishonesty, fraud, deceit and misrepresentation that adversely reflects on her fitness to practice. The Hearing Board believes ABA Standards 5.13, and not ABA Standards 5.11(b), is the most applicable standard due to the Hearing Board’s finding that Respondent acted knowingly as alleged in the Complaint. Respondent’s dishonest conduct alone would warrant a suspension due to the underlying facts and aggravating factors present in this case. See People v. Rudman, 948 P.2d 1022, 1028 (Colo. 1997). However, the sanction of disbarment applicable for Respondent’s knowing conversion subsumes the lesser sanction for her dishonest conduct, as well as her conduct in advancing funds to her client.

VI. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. The clear and convincing facts reveal Respondent violated Colo. RPC 8.4(c) when she knowingly converted funds belonging to the firm and when she knowingly acted dishonestly toward the firm and the People. The PDJ also found she violated Colo. RPC 1.8(e) when she advanced funds to her client. Respondent therefore violated duties owed to her clients, the public, and the legal profession.

Absent extraordinary factors in mitigation not presented here, the ABA Standards and Colorado Supreme Court case law applying the ABA Standards both support disbarment for her most serious conduct of knowing conversion under the Varallo decision.33 See also In re Thompson, 991 P.2d 820, 823-24 (Colo. 1999). Upon consideration of the nature of Respondent’s misconduct, her mental state, the significant harm and potential harm caused, and the absence of significant mitigating factors, the Hearing Board concludes there is no justification for a sanction short of disbarment.

VII. ORDER

The Hearing Board therefore ORDERS:

1. LIGITA S. BARDULIS, Attorney Registration No. 32027 is hereby DISBARRED from the practice of law, effective thirty-one (31) days from the date of this order.

2. LIGITA S. BARDULIS 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. LIGITA S. BARDULIS SHALL pay RESTITUTION in the amount of $5,970.05 to the shareholders of Powers Phillips, P.C.

__________

1. The Hearing Board incorporates the Parties’ "Stipulation of Facts" into its findings.

2. See Parties’ Stipulated Exhibit 3.

3. Full shareholders were responsible for a proportional share of the overhead, which included rent, staff, and malpractice insurance. These monthly costs were subtracted from fees generated by the shareholders.

4. See Parties’ Stipulated Exhibit 1, "Employment Agreement."

5. See Parties’ Stipulated Exhibit 9, Bates Stamp LB0096.

6. See Parties’ Stipulated Exhibit 9, Bates Stamp LB0092.

7. See Parties’ Stipulated Exhibit 7.

8. See Parties’ Stipulated Exhibit 5, firm salary credits. In May Respondent generated fees of $5,269.78. In June Respondent generated fees of $5,377.57. See Parties’ Stipulated Exhibit 15 for Respondent’s estimate of how much she earned in May and June 2005.

9. See Parties’ Stipulated Exhibit 29.

10. See Parties’ Stipulated Exhibit 9.

11. See Parties’ Stipulated Exhibit 12.

12. Id.

13. See Parties’ Stipulated Exhibit 19.

14. See Parties Stipulation of Facts.

15. Id.

16. See Parties Stipulated Exhibit 30.

17. See Parties’ Stipulated Exhibits 10, 25, 27, 28, 31, and 34.

18. See Parties’ Stipulated Exhibit 26.

19. See Respondent’s Trial Brief and Memoranda of Legal Authority, p. 4.

20. See Parties’ Stipulated Exhibit 13, Bates Stamp C-00142.

21. See Parties’ Stipulated Exhibit 2.

22. See Parties’ Stipulated Exhibit 13, Bates Stamp C-00153.

23. Respondent testified that she never read the employment contract and was not certain she was bound by its terms.

24. See Parties’ Stipulated Exhibit 19.

25. See Parties’ Stipulation of Facts, ¶13.

26. See Parties’ Stipulated Exhibit 30, Bates Stamp LB 1812.

27. This represents the portion to which the firm was entitled. See Parties’ Stipulated Exhibit 1, Bates Stamp LB0039.

28. This figure of $1,085.87 is the result of adding $103.00 and $132.48 (from Parties’ Stipulated Exhibit 2, Bates Stamp LB0103) and $850.39 (from Parties’ Stipulated Exhibit 5, Bates Stamp LB0298).

29. Although this standard refers to conversion from a client, Colorado case law treats conversion from third parties, including ones law firm as breaches of ethics calling for disbarment. See People v. Thompson, 991 P2d 820 (Colo. 1999).

30. This standard involves lawyer conduct involving any intentional conduct other than "serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses."

31. "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, Definitions.

32. See Parties’ Stipulated Exhibit 16.

33. The Hearing Board carefully considered the cases from the Colorado Supreme Court involving misappropriation of funds and concludes that those cases allow no leeway in determining the sanction here. Under those authorities, disbarment is required. If those cases provided more discretion in determining the appropriate sanction in cases of misappropriation, the Hearing Board would have considered a sanction less severe than disbarment.

_______________

Case No. 06PDJ038
(consolidated with 06PDJ104)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

ROBERT SCOTT FISHER.

October 30, 2007

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

On July 24-26, 2007, a Hearing Board composed of Kay Snider, John E. Hayes, 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. Charles E. Mortimer, Jr., appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Robert Scott Fisher ("Respondent") appeared pro se. The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19 based upon the presentation of the parties.

I. ISSUE

Suspension is appropriate when a lawyer knowingly fails to perform client services. Public censure is appropriate when a lawyer improperly acquires a pecuniary interest adverse to his client. Respondent secured a deed of trust from his client to assure payment of his fees while representing her in a divorce proceeding. He thereafter exercised his rights in the deed, but failed to follow through with the steps necessary to secure court ordered benefits for his client. What is the appropriate sanction for his misconduct?

II. SUMMARY

The Hearing Board specifically finds clear and convincing evidence in the first Complaint that Respondent violated:1

  • Colo. RPC 1.1, Count V, (a lawyer shall provide competent representation to a client), and Colo. RPC 1.3, (A lawyer shall not neglect a legal matter entrusted to him).

The Hearing Board does not find clear and convincing evidence as to Colo. RPC 1.7(b), Count III, (a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to the lawyer’s own interests). With regard to the second Complaint, the Hearing Board does not find clear and convincing evidence as to:

  • Colo. R.P.C. 3.3(a), First Claim, (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal, (no duty to disclose);
  • Colo. R.P.C. 3.4(c), Second Claim, (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); and
  • Colo. R.P.C. 8.4(c), Third Claim, (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR SIX MONTHS,
ALL STAYED UPON THE SUCCESSFUL COMPLETION OF A
TWO-YEAR PERIOD OF PROBATION WITH THE CONDITION
THAT RESPONDENT SUCCESSFULLY COMPLETE
THE OFFICE OF ATTORNEY REGULATION’S ETHICS SCHOOL.

III. PROCEDURAL HISTORY AND BACKGROUND

On June 6, 2006, the People filed case number 06PDJ038. Respondent filed his answer on July 10, 2006. On April 23, 2007, the Court granted a motion for summary judgment filed by the People as to Claims I and II of the first Complaint and denied the People’s motion as to Claim IV.

On December 27, 2006, the People filed 06PDJ104 and the Court consolidated it with 06PDJ038. Respondent filed an answer to the second Complaint on January 18, 2007. Respondent filed numerous motions for summary judgment on the consolidated cases and Court denied each of them.

IV. FINDINGS OF MATERIAL FACT

The Hearing Board considered the testimony of witnesses and exhibits admitted into evidence, and now makes the following findings of material fact by clear and convincing evidence.2

Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on November 1, 1985. He is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 14996. Respondent is therefore subject to the jurisdiction of this Court in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b).

Shirley Varner Retains Respondent

Respondent is a sole practitioner from Colorado Springs who specializes in family law. On June 12, 2003, Shirley Varner retained Respondent to represent her in a divorce case. Mrs. Varner was approximately fifty years old at the time. She had been married to Mr. Varner for thirty-four years and they had raised two children. She had retired from federal civil service with a disability for which she received approximately $785.00 per month.3 At the time of the divorce, she suffered from depression, diabetes, recent back surgery, and emotional distress as a result of her son’s recent suicide.

When Mrs. Varner hired Respondent, her case had already been set for a final orders hearing. Soon after Ms. Varner retained Respondent, they entered into a written fee agreement where she initially paid him a retainer of $2,000.00.4 In conferring with Respondent, Mrs. Varner advised him that she wanted to remain in the marital residence and secure her right to survivor benefits in her husband’s federal retirement plan through the Office of Personnel Management ("OPM"). Equity in the marital residence and the husband’s pension plan were the principal assets of the marital estate.5

OPM rules and regulations outline the process a claimant must follow before they will alter the named beneficiary of a pension plan. A state court order may or may not be recognized by the OPM depending in part upon the language of the order and compliance with the OPM’s regulations in processing such an order. In discussing her desire to obtain a survival benefit from her husband’s federal retirement plan, Mrs. Varner asked Respondent if he had ever processed such a claim. Respondent assured her that he knew how to secure such benefits. As a result, Mrs. Varner expected him to process and secure the survival benefits in her husband’s retirement plan.

Respondent Presents a Promissory Note
and Deed of Trust to Mrs. Varner

On November 7, 2003, shortly before the court completed the final orders hearing, Respondent met with Mrs. Varner to discuss the status of her bill. At that time, she still owed Respondent $3,102.00 for services he had already provided to her.6 Respondent then asked Mrs. Varner if she would be willing to sign a promissory note secured by a deed of trust on the marital residence. He explained to her that these documents were necessary to ensure payment of his fees, but that courts often ordered husbands to pay these fees. While Mrs. Varner signed both documents, she did so with reservation.7 She felt concerned that such an encumbrance on the deed might make it more difficult to sell her home in the future. From this point forward, Mrs. Varner started to question whether Respondent was acting in her best interests.

The approximate amount of equity in the Varners’ home was $14,134.00.8 The terms of the deed of trust and promissory note did not allow Respondent to foreclose on her residence and he could only collect his fees if the house was sold or refinanced. The promissory note had an annual interest rate of 8% on the principal amount due at that time ($3,102.00). Mrs. Varner also understood that payment of $3,102.00 covered all of Respondent’s fees, including additional work Respondent needed to complete in order to secure her survivor benefits with OPM.

Respondent neither told Mrs. Varner of the advisability of seeking independent counsel before signing the deed of trust and promissory note nor did he give her a reasonable opportunity to do so. Furthermore, Respondent did not obtain the client’s consent in writing as required by Colo. RPC 1.8(a)(2) and (3).9

Final Orders

On November 12, 2003, the court concluded the final orders hearing and ordered the sale of the Varner residence and ordered the parties to pay their own attorney’s fees even though Respondent had argued that Mrs. Varner should be awarded attorney’s fees. The court also ordered that Mrs. Varner receive half of her husband’s retirement benefits during his life and survivor benefits should he predecease her. Although the court did not grant his request, Respondent also argued that Mrs. Varner be allowed to receive maintenance. The court did order, however, that Mr. Varner pay Mrs. Varner $1.00 a year so that the court would maintain jurisdiction in the event that Mr. Varner received additional income following the divorce.10

Following the final orders hearing, the court entered its written order on January 20, 2004, based on a draft Respondent provided to the court. However, in drafting the order, Respondent failed to research OPM regulations to determine whether the language of his draft would protect his client’s interests under the OPM rules and regulations.

The written decree awarded Mrs. Varner both a present one-half interest in Mr. Varner’s federal pension, and survivor benefits from Mr. Varner’s pension. The decree states:

Husband shall provide Wife with Survivor Benefit Plan (SBP) protection/insurance so Wife can continue to receive a share of Husband’s future retirement benefits if Husband predeceases Wife.11

On November 12, 2003, the date the court issued its final orders, Respondent neither advised the court nor opposing counsel that he had obtained an interest in the marital residence nor did he supplement Mrs. Varner’s previously filed affidavit with respect to financial affairs to show that he had taken a lien against the marital residence.12 Furthermore, during this hearing, Respondent tendered a document to the court, which calculated the equity in the marital residence by subtracting estimated realtor commissions and encumbrances, including only the first and second mortgages against the residence, from an appraised value of the residence. The exhibit did not disclose that Respondent had acquired a deed of trust encumbering the marital residence.13

Leading up to, and following permanent orders, Mrs. Varner reiterated her concern about securing her half-interest in her husband’s pension benefits. She gave Respondent OPM’s phone number and asked him to call them. Mrs. Varner also told Respondent that she did not feel comfortable with Mr. Varner writing a check from his bank account to her each month in order to comply with his obligation to provide her half of his pension benefit monthly. She wanted the money to be sent directly to her from OPM. Although Mrs. Varner expressed these concerns, Respondent did not call OPM.

Because Respondent failed to secure Mrs. Varner’s benefits with OPR, she received one-half of Mr. Varner’s pension reliant upon her former husband’s willingness to write her a check each month, not because OPM recognized that she was entitled to receive these funds directly from them based upon the state court’s final orders.

Contrary to his earlier assurances to Mrs. Varner, Respondent had never processed a claim with OPR and was unaware of the procedures the federal government required to secure her interests in Mr. Varner’s pension. Had Respondent inquired of OPM as Mrs. Varner requested, he would have discovered that the process was complex.14 Because of the nuances of OPM rules, general practitioners often consult a lawyer with experience in processing a retirement or pension claim with OPR.15

Mrs. Varner Orders Respondent to Stop Working

By March 29, 2004, Mrs. Varner believed Respondent had all of the information he needed to secure her benefits as the court ordered. She was also distrustful of him at this point and thought that his only purpose in calling her was to charge her additional fees for the calls or proposed office visits. She therefore directed Respondent to "stop all work" on her behalf.

Furthermore, Mrs. Varner felt Respondent and the real-estate agent he hired to sell her house were "ganging up" on her and unjustifiably accusing her of resisting their efforts to her home. She realized that her home had to be sold as the court ordered, but she was frequently unavailable due to her mental and physical conditions.

Respondent Agrees to be Appointed Agent
to Sign Closing Documents

On May 5, 2004, Mr. Varner’s divorce attorney conferred with Respondent and later filed a motion requesting that Respondent be appointed by the court to sign documents for Mrs. Varner at the closing of the sale of the marital residence. This motion, which contained a reference to Mrs. Varner’s alleged lack of cooperation in the sale of the marital residence, was filed with Respondent’s knowledge and concurrence. On May 7, 2004, the Court granted the motion. Respondent never informed Mrs. Varner about this pleading.

Mrs. Varner checks the Court Record

Given her lack of confidence in Respondent, Mrs. Varner went to the courthouse to find out what action, if any, Respondent had taken on her behalf. In early May 2004, she discovered the order that authorized Respondent to sign the closing documents if she did not appear at the closing for the sale of her house. The motion, dated May 6, 2004, requesting the appointment of Respondent contained the following statement, "He [Respondent] agrees that the sale of the home is in his client’s best interests and acknowledges his client’s potential risk to be cited for contempt if the transaction is not completed because of his client’s actions."16 In fact, Mrs. Varner had sent a certified letter to Respondent on May 4, 2004, stating that she intended to attend the closing.17 Although Mrs. Varner advised Respondent that she intended to attend the closing, she was not willing sign any document that stated, "all proceeds" were payable to Respondent."18

Respondent Takes Action to Secure His Fees

On May 6, 2004, Respondent filed a notice of attorney’s charging lien pursuant to C.R.S. §12-5-119 in El Paso District Court, 02DR4721, the divorce case, claiming attorney’s fees in the amount of $6,640.97 and asserting a claim to Mrs. Varner’s share of the proceeds of sale of the residence. On May 25, 2004, Respondent amended his lien to include other obligations that Mr. Varner owed to Mrs. Varner pursuant to the decree dissolving their marriage.19

In dealing with the title company on the sale of the Varner’s home, Respondent asked the title company to make the proceeds checks payable to him and not Mrs. Varner.20 Respondent wrote to the title company to ask them to assist him in collecting his fees ostensibly as Mrs. Varner’s lawyer although she explicitly terminated him on March 29, 2004. In spite of Respondent’s suggestion to the title company that he alone sign the closing documents and receive all the proceeds, they insisted that Mrs. Varner agree to such an arrangement and sign all closing documents.

The closing of the Varner residence occurred on May 25, 2004. Both Respondent and Mrs. Varner attended the closing. Respondent’s promissory note for $3,102.00, plus interest, was paid from the proceeds of the sale, and his deed of trust was released. Respondent also received and retained the balance of the sales proceeds ($4,095.13) in trust based upon his attorney’s lien in 02DR4721. The People do not contest the reasonableness of these fees or whether Respondent earned them.

Though the People do not question Respondent’s fees, the attorney-client relationship between Mrs. Varner and Respondent had significantly deteriorated based upon the fees he charged her. At the closing, Respondent advised Mrs. Varner that he would be getting all of the equity, both hers and Mr. Varner’s, from the sale of the house. Mrs. Varner questioned whether Respondent should receive all of the equity in the marital property, but nevertheless signed the documents authorizing him to receive them.

While Respondent secured his legal fees following final orders in the divorce case, he did not take any action to secure his client’s survival benefits in Mr. Varner’s pension. On June 4, 2004, he filed a motion to enforce his attorney’s lien in the Varner dissolution of marriage action. The motion did not include a claim for the fees he charged Mrs. Varner for services associated with the collection of his fees, approximately $350.00. Thus, Respondent did not seek a judicial order or judgment awarding him $350.00 for the time associated with collection.

Respondent’s rationale for keeping $350.00 more than the court allowed in its order is that his fee agreement allowed him to collect these funds. The fee agreement specifically states:

In the event that legal action is necessary to recover attorney fees and costs from Client, Firm shall be entitled to its reasonable attorneys fees incurred in said legal proceedings, and for fees and costs incurred in the collection of what is due and owing. Firm shall be entitled to its attorneys fees incurred for collection, whether or not suit is brought (emphasis added).21

In his motion to enforce attorney’s lien, Respondent also filed a form of order to enforce attorney’s liens. District Court Judge Gilbert Martinez signed it on June 25, 2004, authorizing Respondent "to retain $3,581.63 of the $4,095.13 in his trust account, to satisfy the Petitioner’s contractual obligations to him." Respondent thereafter mailed a letter to Mrs. Varner dated July 29, 2004, in which he advised her that he was keeping $350.00 based on the work he performed to enforce his attorney’s lien.

On June 4, 2004, after collecting all of the proceeds from the Varner closing, filing his attorney’s lien, and collecting the $350.00 he "incurred" in collecting his fees, Respondent filed a notice to withdraw from Mrs. Varner’s case.22 Before withdrawing, however, Respondent sent a letter to Mrs. Varner notifying her that he intended to withdraw from her case if she did not schedule an appointment with him. Respondent also wrote, "I would like to review the specific charges that you believe were improperly made to your account so I can determine whether an adjustment should be made to your account."23 Respondent, however, made no mention of his failure to call or inquire of OPM about Mrs. Varner’s survivor benefits as she requested of him shortly after final orders in January 2004.

OPM Stops Mrs. Varner’s Benefits After Mr. Varner Dies

On April 22, 2005, Mr. Varner unexpectedly died of a heart attack. Since Mrs. Varner had to rely on Mr. Varner to write a check to her each month, she stopped receiving her half-share of his pension. Mrs. Varner, then filed a claim based upon her divorce decree, but her petition was denied, as was her appeal of the initial decision. She then sought the intervention of Congressman Joel Hefley.

Mrs. Varner received no benefits from May 2005 until November or December 2005. This loss of income caused her to forgo certain medications and caused her to be late on a number of her financial obligations. Ultimately, however, all of the benefits that had not been paid to Mrs. Varner were reimbursed to her. The evidence is insufficient to conclude that Congressman Hefley’s inquiry of OPM’s denial of Mrs. Varner’s survival benefits influenced OPM to pay the claim they had earlier disputed. Further, insufficient evidence exists to find that the reason OPM ultimately recognized Mrs. Varner’s claim to survival benefits in Mr. Varner’s pension plan was based upon the final orders he prepared in the divorce court.

V. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

The Hearing Board finds clear and convincing evidence in the first Complaint as to the following claims:24

Respondent violated Colo. RPC 1.3, (A lawyer shall not neglect a legal matter entrusted to him). The comments to Colo. RPC 1.3 state, "Unless the relationship is terminated as provided by Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client." Respondent undertook the task of securing his client’s survival benefits in her husband’s pension plan. While Respondent won a judgment from the trial court awarding Mrs. Varner these benefits, he did not take the next step to secure them. Thus, he did not accomplish one of his client’s primary objectives for the representation.

In addition, Respondent violated Colo. RPC 1.1 (a lawyer shall provide competent representation to a client). In order for Respondent to competently represent Mrs. Varner, Respondent should have researched the necessary process to secure his client’s benefits. "Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners." Comments Colo. RPC 1.1. If Respondent had taken these reasonable steps, he could have, at a minimum, been able to advise his client of the potential injury she might suffer if he was not allowed to continue working on her case to secure her benefits.

The Hearing Board considered Mrs. Varner’s conduct following the final orders and her unwillingness to answer Respondent’s calls. The evidence reveals that Respondent found it difficult to communicate with her following final orders. While her actions mitigate his ethical lapses, they do not excuse them.

With regard to the first Complaint, the Hearing Board finds that the evidence is not clear and convincing that Respondent violated Colo. RPC 1.7(b), Count III, (a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to the lawyer’s own interests). Respondent had a right to collect his attorney’s fees in the domestic court. An attorney may assert the lien in the action in which the attorney performed his services or by separate action. Crabtree v Crabtree, 560 P.2d 835, 836 (Colo. 1977).

And while it appeared to Mrs. Varner that the manner in which Respondent collected his fees was "sleazy," he had a right to collect his fees. Except for his lack of diligence and competence in securing her pension benefits, Respondent was a zealous advocate on behalf of his client. Further, there is no evidence to suggest Respondent did not earn the fees he collected. Given these circumstances, the evidence of a conflict is not clear and convincing.

With regard to the second Complaint, the Hearing Board cannot find clear and convincing evidence as to:

  • Colo. R.P.C. 3.3(a), First Claim, (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal;
  • Colo. R.P.C. 3.4(c), Second Claim IV, (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); and
  • Colo. R.P.C. 8.4(c), Third Claim, (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The Hearing Board notes that these charges were brought nearly six months after the filing of the initial complaint. While the Hearing Board finds that it might have been better practice for Respondent to advise the court of his interest in the Varner residence, and the provisions in his fee agreement that allowed him to keep $350.00 more than the court ordered, there is no evidence to demonstrate that such disclosures would have changed the court’s order regarding the sale of the residence. In fact, the evidence is to the contrary. As one judicial officer testified during the hearing, such information is not material in a determination of final orders.

VI. 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

Suspension is generally appropriate when a lawyer fails to perform services for a client. ABA Standards 4.42. However, in imposing a sanction after a finding of lawyer misconduct, ABA Standard 3.0 directs the Hearing Board to first consider the following factors:

(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 his client, the legal system, and the legal profession by failing to diligently pursue his client’s interests. See Colo. RPC 1.2 (a lawyer shall abide by a client’s decisions concerning the scope and objectives of the representation). Here, Mrs. Varner made it clear from her first meeting with Respondent that she wanted to secure a survival benefits in her husband’s pension. Respondent assured her that he knew how to achieve this objective when he did not. Respondent also had a duty under the rules to advise Mrs. Varner under Colo. RPC 1.8 before taking a deed of trust on her home to secure his fees.

B. THE LAWYER’S MENTAL STATE

Respondent acted knowingly throughout his representation of Mrs. Varner. He was aware of his conduct when he failed to follow through and process Mrs. Varner’s survival benefits. Likewise, he acted knowingly when he obtained a deed of trust and promissory note from Mrs. Varner. While the Hearing Board finds that Respondent may not have been aware that his conduct violated Colo. RPC 1.8, this is not necessary to our finding of knowing conduct.

C. THE ACTUAL OR POTENTIAL INJURY

It was reasonable for Mrs. Varner to believe Respondent knew how to process an OPM claim after he made such assurances. But he was completely unaware of the process and the potential harm Mrs. Varner could suffer if her claim was not processed according to OPM procedures. At a minimum, there was serious potential injury to Mrs. Varner based upon Respondent’s lack of diligence.

Furthermore, the profession is potentially injured each time one of its own fails to recognize that the practice of law is a profession with ethical obligations to the clients served and not simply a matter of running a business. Here, the impression Respondent left with Mrs. Varner was that he was much more interested in making money than protecting her interests.

Even though the Hearing Board finds a potential for serious injury, we are mindful that Mrs. Varner’s physical and mental condition made it difficult for Respondent to complete her objectives following final orders.25 Nevertheless, Mrs. Varner had a reasonable expectation that Respondent would secure survival benefits from her former husband’s federal pension.

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.

Selfish Motive—9.22(b)

The Hearing Board finds that Respondent’s actions were motivated in part by his personal financial interests. We also recognize Respondent had a right to collect his fees. But we find that Respondent failed to follow through with her claim for half of her husband’s pension benefit while zealously pursuing his personal interest in securing his fees. While we find this factor, we do not weigh it heavily because Mrs. Varner stopped communicating with Respondent. Thus, his lack of action was not entirely based upon his selfishness. Mrs. Varner’s unavailability was a significant factor.

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

While Respondent has cooperated in these proceedings, he has not demonstrated remorse for the potential injury he caused his client. Instead, Respondent argued in these proceedings that he helped, rather than injured, a client who would otherwise would have had to face a divorce without representation. He does not see his lack of diligence in any way contributing to the potential and actual injury Mrs. Varner suffered. Instead, he blames her for not contacting him and the OPM for making a mistake in initially denying her claim for benefits.

Vulnerability of the Victim—9.22(h)

The Hearing Board finds Mrs. Varner vulnerability was exacerbated by her mental and physical condition. But we temper this finding. Respondent should not be held accountable for his client’s failure to communicate.

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

Respondent has practiced law for approximately twenty-two years while specializing in domestic cases.

2. MATTERS IN MITIGATION, ABA STANDARD 9.3

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

Absence of Prior Discipline—9.32(a)

Respondent has practiced as a solo lawyer specializing in domestic cases without a single blemish on his record. Difficult clients and issues are common to this practice. The Hearing Board gives great weight to this factor.

Cooperative Attitude in the Proceedings—9.32(e)

Although Respondent vigorously defended himself in these proceedings, he was cooperative and respectful.

Delay in the Disciplinary Proceedings—9.32(i)

The original complaint in this case was filed in June 2006. The case was not heard until July 2007. In part, the People’s action in filing a second complaint and consolidating it with the original complaint occasioned a significant delay in these proceedings.

Analysis Under Case Law and ABA Standards

Colorado Supreme Court case law applying ABA Standards 4.42 hold suspension is the presumptive sanction when a lawyer causes potential injury by knowingly failing to perform services for a client. People v. Barber, 799 P.2d 936 (Colo. 1990) (citing ABA Standard 4.42 the Colorado Supreme Court suspended a lawyer for six months for missing the statute of limitations). But See People v. Yaklich, 744 P2d 504 (Colo. 1987) (one year suspension for neglect of custody support matter and failure to carry out client’s objectives).

There are no Colorado cases directly on point dealing with a combination of lack of diligence and a failure to abide by the provisions of Colo. RPC 1.8. Analyzing each of the factors outlined above, the Hearing Board finds that a suspension is appropriate. See In the Matter of Taylor, 741 N.E.2d 1239, 1243 (Ind. 2001), (where lawyer received an interest in a client’s marital property in violation of rule 1.8(a)). In this case, the court specifically found "The Rules of Professional Conduct place restrictions on business transactions between lawyers and their clients based on an assumption that the lawyer in such dealings will generally possess, for various reasons, an unfair advantage in bargaining position." Respondent exacerbated this problem by not diligently carrying out the scope and objectives of the representation his client articulated. See also Colorado Bar Association Formal Opinion 110 and American Bar Association Formal Opinion 02-427.

VII. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who potentially pose a danger to them. In this case, Respondent’s failure to comply with the provisions of Colo. RPC 1.8 followed by his lack of diligence and competence in pursuing one of his client’s primary objectives in the divorce case caused potential and real harm to his client.

There is no question that Mrs. Varner was a difficult client with whom to communicate. Nevertheless, Mrs. Varner’s lack of communication does not excuse Respondent’s failure to abide by his ethical duties.

In stark contrast to his inadequate efforts to secure Mrs. Varner’s benefits in her husband’s pension, Respondent demonstrated resolve in collecting his fees. It is not surprising Respondent’s swift and successful collection of fees with the simultaneous lack of zeal in securing her husband’s pension benefits caused Mrs. Varner client to question Respondent’s ethics.

While Respondent had a right to take a deed of trust and promissory note to secure payment of fees from Mrs. Varner, he also had the ethical responsibility to do so properly under Colo. RPC 1.8. Further, Respondent’s conduct goes beyond a failure to follow the prescriptive requirements of Colo. RPC 1.8. Respondent caused real and potential injury to his client.

VIII. ORDER

It is therefore ORDERED:

1. ROBERT SCOTT FISHER, Attorney Registration No. 14996, is hereby SUSPENDED from the practice of law in the State of Colorado for a period of SIX MONTHS, ALL STAYED upon the successful completion of a two-year period of probation with the condition that he attend and successfully pass the Office of Attorney Regulation Counsel’s Ethics School within one year of the date of this order.

2. ROBERT SCOTT FISHER 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. Claims I and II have been established by virtue of the Court’s ruling on summary judgment in the first Complaint.

2. The Hearing Board’s findings also incorporate stipulated facts submitted by the parties.

3. See People’s Exhibit 2.

4. See People’s Exhibit 1, the fee agreement.

5. Respondent advised Mrs. Varner that he would seek spousal maintenance and attorney fees.

6. The People do not challenge the reasonableness of Respondent’s fees.

7. See People’s Exhibit 3.

8. See People’s Exhibit 4.

9. Colo. RPC 1.8(a)(1) states "A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client. …" The People did not argue that Respondent violated this provision of the rule.

10. See Respondent’s Exhibits C and E.

11. See People’s Exhibit 7. Although Respondent argues that this language gave Mr. Varner and his lawyer the responsibility for processing the pension benefit with the OPM, the normal practice is that the party benefiting from the order is responsible for taking any action necessary to secure the claim.

12. See People’s Exhibit 5.

13. See People’s Exhibit 4.

14. OPR rules and regulations are published in a forty-page document available to the public.

15. See the testimony of Thomas Henley.

16. People’s Exhibit 13 is dated May 6, 2004; two days after Respondent received notice from Mrs. Varner that she planned to attend the closing.

17. See People’s Exhibit 11.

18. See People’s Exhibit 16.

19. The court ordered that Mr. Varner pay Mrs. Varner one half of the money she expended to pay for their son’s funeral. Mrs. Varner received none of the proceeds from the sale of her home.

20. See People’s Exhibit 14.

21. See People’s Exhibit 1.

22. See People’s Exhibit 22.

23. See People’s Exhibit 19.

24. The Court ruled as a matter of law that Respondent violated Colo. R.P.C. 1.8(a) and (j). The Hearing Board therefore makes no findings or conclusions on Claims I or II of the first Complaint.

25.See People’s Exhibits 9 and 10.

_______________

Case No. 06PDJ088

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

CHARLES W. RASURE, JR.

May 30, 2007

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

On April 9-10, 2007, a Hearing Board composed of Frances L. Winston, a citizen Hearing Board member, and Thomas J. Overton, a member of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ or the Court") held a Hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler, appeared on behalf of the Office of Attorney Regulation Counsel ("ORAC or the People"). Charles W. Rasure, Jr., (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

Supreme Court disciplinary rules prohibit a lawyer from filing a lawsuit against anyone predicated upon lawyer misconduct or lack of professionalism reported to the People unless the person reporting (1) fails to maintain confidentiality and (2) the communication is in reckless disregard of the truth or in bad faith. Respondent brought claims against persons who reported Respondent’s misconduct. Did Respondent violate 251.32(e) by filing suit1 against reporting parties after admitting the reported misconduct?

The Hearing Board finds clear and convincing evidence that Respondent violated C.R.C.P. 251.32(e).

Independent of C.R.C.P. 251.32(e), the Hearing Board also finds clear and convincing evidence that Respondent violated Colo. RPC 8.4(d), conduct prejudicial to the administration of justice. The Hearing Board finds that filing suit under the circumstances present here has a profound chilling affect on the attorney regulation process and its ability to obtain information about lawyer misconduct.

The Hearing Board, however, cannot find clear and convincing evidence that Respondent violated Colo. RPC 3.1 by filing a frivolous lawsuit. Respondent’s federal case against Sitter and McLachlan is still pending in federal district court where substantive legal issues are yet to be resolved.

SANCTION IMPOSED: ATTORNEY SUSPENDED
FOR ONE YEAR AND A DAY

II. PROCEDURAL HISTORY

On October 25, 2006, the People filed a complaint in this matter. Respondent filed his answer on November 20, 2006. The parties did not file any dispositive motions.

III. FINDINGS OF MATERIAL FACT

The Hearing Board finds that the following facts have been established 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 May 15, 1995, and is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 25569, and is therefore subject to the jurisdiction of the Court. Respondent’s registered business address is 679 E. Second Ave., Ste. 4, Durango, CO 81301.

Background Concerning Respondent’s Lawsuit

In December 2001, Respondent and Thomas P. Dugan ("Dugan") terminated their relationship as co-owners in the law firm of Dugan & Rasure. Dugan purchased all of Respondent’s shares in Dugan & Rasure as part of a stock purchase agreement. Respondent and Dugan further agreed that if Respondent took any case that belonged to the firm, Respondent would pay Dugan one-third of the attorney’s fees "produced" from the case even though their partnership had ceased. One of the cases Respondent kept upon leaving Dugan & Rasure was the "Concordia case." This case was subject to the agreement that Respondent would pay Dugan one-third of the attorney’s fees generated therefrom.

In November 2003, nearly three years after leaving Dugan & Rasure, Respondent settled the Concordia case and received a $200,000.00 settlement. Respondent placed these funds into his trust account and paid the client(s) their share from his trust account. Respondent then caused the remainder of the funds to be placed into his operating account. Respondent testified that he instructed his secretary, to pay Dugan an amount equal to one-third of the total fee, approximately $20,000 from his operating account.

However, Dugan was not paid, and Respondent used all these funds for his own purposes. Though Respondent settled the case, he did not tell Dugan about the Concordia settlement. Furthermore, Respondent never received or asked Dugan’s permission to use any portion of Dugan’s one-third share of the Concordia contingency fees.

On May 6, 2004, Dugan discovered from court records that Respondent had settled the Concordia matter without telling Dugan or otherwise paying Dugan his share of the contingency fees from the Concordia settlement.2 Respondent admits that he misled Dugan concerning the progress of the Concordia settlement beginning in December 2003 until Dugan discovered from court records in May 2004 that Respondent had dismissed the case upon settlement of $200,000.00

After Dugan discovered that Respondent received settlement funds in the Concordia litigation without advising him, Dugan insisted Respondent pay Dugan his one-third share of the attorney’s fees immediately. Dugan also sought assurances from Respondent that his money was in Respondent’s trust account.3 During this period of time, however, Respondent was having financial difficulties and could not pay Dugan as agreed. When Respondent did not deliver Dugan’s share of the Concordia settlement, Dugan contacted Michael McLachlan ("McLachlan"), a Durango attorney from whom Dugan sought both ethical and legal advice concerning his efforts to collect his share of the contingency fees from Respondent.

In seeking McLachlan’s advise about collecting the Concordia contingency fees Respondent owed, Dugan provided McLachan a series of emails Dugan and Respondent exchanged concerning the Concordia contingency fees.4 McLachlan read these emails and recognized what he considered to be an ethical issue because Respondent had not kept Dugan’s share of the Concordia contingency fees in a trust account. McLachlan also spoke to Respondent’s former secretary and others in Durango about other incidents including one involving Respondent’s failure to place client funds in a trust account. Among the persons McLachlan contacted was Douglas Sitter ("Sitter"), a lawyer who was associated with Respondent in a firm that shared various expenses and a trust (COLTAF) account.

When McLachlan called Sitter, he did so in an effort to collect Dugan’s contingency fees from Respondent on the Concordia settlement. McLachlan asked Sitter whether Respondent placed the Concordia settlement funds into the firm’s COLTAF account. Based upon his conversations with McLachlan, Sitter was concerned that he may be implicated in Respondent’s dispute with Dugan because of Sitter’s business relationship with Respondent. Sitter then asked Respondent whether he had placed the Concordia settlement or contingency fees in the firm’s COLTAF account. Respondent assured Sitter that the settlement funds were not placed into the firm’s trust account but into his individual COLTAF account. Nevertheless, as a result of this conversation, Sitter decided that he could no longer trust Respondent and terminated their business relationship in May 2004.5

Respondent Pays Dugan

On May 11, 2004, after conferring with McLachlan, Dugan emailed Respondent the following,

His (McLachlan’s) advice is Grievance and the DA. Please think about this carefully. I do not want to hurt you, but this must be taken care of.6

On or about November 17, 2003, Respondent provided Dugan with a promissory note in the amount of $20,525.00, plus interest at the rate of 8% per annum from November 17, 2003.7 On or about July 2004, Respondent completed paying Dugan his one-third share of the Concordia settlement from money he received on another contingent fee case. Although McLachlan encouraged Dugan to report Respondent’s conduct to the People, Dugan did not do so.

McLachlan Tells the People about Concordia and Other Matters

In November 2004, while representing a respondent in a disciplinary matter unrelated to Respondent, McLachlan told a member of the People’s management staff that they should be looking at Respondent’s conduct. In particular, McLachlan told ORAC that (1) Respondent had been censured by a judge in the Four Corners area, (2) he was subject to a restraining order, (3) he was in default on a bank loan, and (4) he had not paid Dugan his share of the fees in the Concordia litigation. These statements were all substantially true.

Sitter Answers the People’s Inquires

Sitter, at McLachlan’s suggestion, called the CBA Ethics Hotline concerning his duties and received the same advice that McLachlan offered: report the matter to the People. Nevertheless, Sitter decided not to report Respondent to the People.

On November 22, 2004, in response to an inquiry from the People, Sitter reluctantly sent a letter to the People concerning his knowledge of Respondent’s activities concerning the Concordia matter. Sitter’s reluctance stemmed from his fear that Respondent would retaliate if he cooperated with the People. In his letter to the People, Sitter explained that most of his information came from others who claimed to know what Respondent had done. Sitter further explained that he had been a partner of Respondent’s and that Respondent claimed to have a "legitimate dispute" about fees with Dugan about the Concordia contingency fees.8

The Formal Complaint Based on the Concordia Issue

On November 23, 2005, the People filed a formal complaint against Respondent, 05PDJ081, which alleged in part that Respondent had converted Dugan’s share of the contingency fees in violation of Colo. RPC 8.4(c). The People also alleged that Respondent violated Colo. RPC 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in misleading Dugan concerning the Concordia settlement. In addition, the People alleged Respondent violated Colo. RPC 1.15(a)(b) and (c) in that Respondent failed to properly separate Dugan’s fees from his own.

On April 14, 2006, after mediating the matter, Respondent, his counsel, and the People entered a stipulation concerning Respondent’s conduct involving the Concordia contingency fees. In the stipulation, Respondent admitted violating C.R.C.P. 251.5, Colo. RPC 8.4(c) and 1.15(c). Respondent also admitted the following facts:

In his March 14, 2006 Order re: Judgment on the Pleadings (this as the People’s Motion)9 the Presiding Disciplinary Judge found that respondent’s statements to Dugan about the status of the Concordia settlement from December 2003 through early May 2004 were false and that respondent did not correct these false statements until May 2004. Based on this and related findings, the Presiding Disciplinary Judge held that respondent violated Rule 8.4(c).10

Respondent also admitted that he violated Colo. RPC 1.15(c) when he failed to keep Dugan’s fees separate and apart from his own until there was an accounting of the funds he owed Dugan.11 Based upon Respondent’s admission, the People agreed to dismiss the "knowing" conversion claim under Colo. RPC 8.4(c), Claim V in the People’s complaint, as part of the settlement.12 Respondent also agreed that he should be suspended for one year and one day and that the suspension should be stayed upon successful completion of a one-year probation, with conditions.13 One of the conditions of Respondent’s probation was that he not engage in any conduct which results in the imposition of discipline under C.R.C.P. 251.6 or 251.7.

Respondent Files Suit Against McLachlan and Sitter

On August 3, 2006, four months after entering into the stipulation as described above, Respondent, pro se, filed a civil action against Sitter and McLachlan in the United States District Court for the District of Colorado.14 Counts III and IV of Respondent’s federal lawsuit alleged that McLachlan and Sitter caused the People to bring a "quasi-criminal" case (05PDJ081) against him that resulted "substantially" in Respondent’s favor and that "Sitter and McLachlan intentionally caused the People to initiate disciplinary proceedings against Rasure." Respondent, however, did not file suit against Dugan, the person who initially released information about Respondent’s conduct in the Concordia matter to McLachlin.

Before filing his federal case, Respondent testified that he exhaustively researched C.R.C.P. 251.32(e) and the substantive case law in Colorado on malicious prosecution and abuse of process. However, Respondent did not seek advice or counsel about his proposed lawsuit and the implications of doing so in light of the provisions of C.R.C.P. 251.32(e). As a result of the filing of Respondent’s federal lawsuit, both McLachlan and Sitter have hired attorneys and incurred legal expenses in the tens of thousands of dollars for their defense. This lawsuit is still pending in federal district court.

In addition to the malicious prosecution and abuse of process claims, Respondent’s lawsuit also charges that McLachlan and Sitter engaged in slander, civil conspiracy, intentional interference with contract, and extreme and outrageous conduct. These claims reference facts that are included in Respondent’s claim that McLachlan and Sitter caused the People to bring disciplinary charges arising out of the Concordia matter.

McLachlan and Sitter’s Statements to the People

When McLachlan and Sitter reported Respondent’s conduct concerning the Concordia litigation, they did so based upon information they believed to be true and under their duty to report professional misconduct as provided in Colo. RPC 8.3. The initial source of this information appears to be Dugan.

Before formal charges were filed against Respondent, Sitter did tell the following people about the information he reported to the People: his secretary, Ms. Smith, Dolores Kansky, Scott Macock and Douglas Ware. McLachlan, on the other hand, told no one about the information he reported to the People after formal charges were filed against Respondent related to the Concordia dispute between Dugan and Respondent. The record is not clear on how much of this information was disseminated in and about Durango before the People filed formal charges against Respondent.

When speaking to the People in November 2004, McLachlan advised that he had heard a number of complaints about Respondent that were of concern to him. Specifically, McLachlan reported the following:

1. Respondent was in default on an $80,000.00 loan to the Bank of the San Juans.
2. A judge in the four corners area had sanctioned Respondent.
3. Respondent was the subject of a restraining order.
4. Respondent had mishandled his COLTAF funds, including those he received in the Concordia litigation.

Respondent’s Testimony

Respondent testified that neither McLachlan nor Sitter knew anything about the stock purchase agreement between Dugan and Respondent when they communicated with the People on their knowledge of the Concordia matter. Respondent’s position is that the stock purchase agreement and its provision on sharing contingency fees with Dugan were contractual in nature and that any money due under the agreement represented a contractual obligation and not an ethical one. Respondent testified that since McLachlan and Sitter did not review the stock purchase agreement, their statements to the People as well as statements that Respondent converted funds were either reckless, in bad faith, or both.

In addition to Respondent’s argument that his obligation to Dugan was contractual based upon the stock purchase agreement, Respondent also testified that McLachlan and Sitter’s demeaning and factually incorrect comments about him in and about Durango before and after the People filed a formal complaint against him show a pattern of reckless and bad faith communications. He argues that if McLachlan and Sitter acted recklessly and in bad faith before and after reporting him to the People, they must have acted in a similar manner when they reported the Concordia matter to them.

Respondent also claims that Sitter was his lawyer when Respondent made statements concerning the Concordia settlement. Further, Respondent testified that when Sitter reported these discussions to the People; he violated his duty to keep Respondent’s disclosures confidential. Nevertheless, when Respondent initially responded to the People concerning the allegations Sitter made against him on or about December 22, 2004, Respondent mentioned nothing of an attorney client relationship between himself and Sitter.15 It was not until August 28, 2006 that Respondent raised the issue of Sitter violating his duty to maintain confidentiality under Colo. RPC 1.6.16

IV. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

Claim I, Colo. RPC 3.1

In Claim I, the People charged Respondent with violation of Colo. RPC 3.1, which prohibits a lawyer from bringing or asserting a frivolous claim, unless there is a good faith argument for an extension of the law. The People ask the Hearing Board to find Respondent’s lawsuit frivolous because C.R.C.P. 251.32(e) precludes Respondent from bringing such an action. After carefully considering the pleadings in Respondent’s federal case, which raise broader issues than the matters before this Hearing Board, the Hearing Board cannot conclude by clear and convincing evidence that Respondent violated Colo. RPC 3.1.

The Hearing Board agrees that C.R.C.P. 251.32(e) may preclude a lawyer licensed in Colorado from bringing suit against a citizen predicated on a report of alleged lawyer misconduct to the People. However, C.R.C.P. 251.32(e) is not, a substitute for substantive rules of law on the issues of malicious prosecution and abuse of process. The federal court is in the best position to resolve those issues based upon substantive law federal law.

Furthermore, the federal case that the People claim to be frivolous has yet to be resolved. See In the Matter of Smith, 989 P2d 165, 170 (Colo. 1999). The Hearing Board cannot speculate on whether the federal court will find Respondent’s case frivolous.

Claim I, Colo. RPC 8.4(d)

Claim I also charges that Respondent violated Colo. RPC 8.4(d) by engaging in conduct that is prejudicial to the administration of justice. The Hearing Board finds clear and convincing evidence on this claim independent of a C.R.C.P. 251.32(e) violation. Whether Respondent ultimately proves his federal case or not, he has nevertheless engaged in conduct that prejudices the administration of justice and the disciplinary process. While the Hearing Board is reluctant to find clear and convincing evidence that Respondent violated Colo. RPC 3.1, such is not the case with Respondent’s conduct in retaliating against Sitter and McLachlin. Furthermore, C.R.C.P. 251.32(e) is mandatory as to all lawyers licensed to practice law in Colorado and does not rely upon an analysis of the merits of any substantive claim.

Upon accepting a license to practice law, a lawyer is granted certain rights and privileges not afforded to other citizens. At the same time, a lawyer gives up certain rights that may be afforded to other citizens. One such right is access to the courts when C.R.C.P. 251.32(e) is implicated. Without this rule the public’s willingness to participate in the attorney regulation process would be chilled. This rule may create a hardship in some cases because it denies attorneys access to the courts in narrow instances. But such a rule is necessary to promote the citizen cooperation in attorney discipline matters.

While the Colorado Supreme Court in its plenary authority over lawyer conduct has precluded lawyers from suing anyone who reports lawyer misconduct, it has also protects the lawyer’s right to bring suit if the reporting party acts in bad faith or in reckless disregard of the truth. See C.R.C.P. 251.31(b).

The Respondent has the burden of proving that the reporting parties’ communications with the People are reckless or in bad faith. He has failed to meet this burden. To the contrary, the Hearing Board finds that the clear and convincing evidence shows McLachlan and Sitter truthfully related information they relied on in good faith.

On the other hand, Respondent admitted dishonesty in his failure to honor his agreement with his former partner in the Concordia matter. Knowingly filing suit against McLachlan and Sitter under these circumstances belies Respondent’s claim that he acted in good faith and in compliance with the mandates of C.R.C.P. 251.32(e) when he filed suit against them.

Claim I, C.R.C.P. 251.5(c)

C.R.C.P. 251.5(c) states that it is misconduct for any attorney to engage in any act that violates the disciplinary procedural rules. C.R.C.P. 251.32(e) is such a rule. For the reasons stated above, the Hearing Board finds that when Respondent filed counts III and IV in his federal lawsuit against McLachlan and Sitter, he violated C.R.C.P. 251.32(e) and thereby violated C.R.C.P. 251.5(c).

V. ANALYSIS

While the Hearing Board finds that there is not clear and convincing evidence that Respondent’s violated Colo. RPC 3.1, Respondent violated his duty to obey Supreme Court rules, including C.R.C.P. 251.32(e). This duty is not founded on whether his suit against McLachlan and Sitter is meritorious under substantive rules. Instead, C.R.C.P. 251.32(e) deals with broader policy and ethical issues; one of those issues is the integrity and effective administration of the attorney regulation system. C.R.C.P. 251.32(e) mandates that all lawyers give up their her right to sue reporting parties unless the lawyer proves that the reporting parties communicated with the People in reckless disregard of the truth or in bad faith. Neither of those circumstances applies here.

VI. 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.

Under ABA Standard 6.22, 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.

The People cite In re Smith, 930 P.2d 1003 (Colo. 1992), and correctly point out that Smith was disbarred in a case that involved a claim that he brought suit against the parties who reported alleged misconduct on his part to the People. The Smith case, however, is inapposite here for the following reasons: (1) C.R.C.P. 251.32(e), unlike the rule applicable at the time Smith was disbarred, allows attorneys to bring an action against anyone who communicates with the People in reckless disregard of the truth or in bad faith; and (2) Smith was disbarred reciprocally in Colorado because he had violated a federal court order suspending his right to practice. Thus, the Colorado Supreme Court never addressed whether the Hearing Board’s recommended sanction of a suspension for a year and a day was appropriate for Smith for violating a rule that provided absolute immunity to parties who reported lawyer misconduct to the People. Thus, the facts and the law in Smith were different than those present in this case.

Therefore, the Hearing Board does not rely on Smith in determining the appropriate sanction here. Nevertheless, the Hearing Board finds Respondent knowingly brought suit against McLachlan and Sitter without objectively showing they acted recklessly or in bad faith. While C.R.C.P. 251.32(e) allows for a narrow exception to the rule, Respondent had no rational basis to claim the exception applied. Instead, the Hearing Board finds that Respondent filed Counts III and IV predicated on McLachlan and Sitter’s communications with the People and in retaliation for doing so.

Duties Breached

Respondent owes a duty to the profession, the Colorado Supreme Court, and the citizens of this state to follow the rules promulgated by the Court.

State of Mind

Respondent acted knowingly; that is, he was aware of his conduct in filing a federal suit against McLachlan and Sitter but without the conscious objective of violating C.R.C.P. 251.32(e) or Colo. RPC 8.4(d). Respondent also acted with intent; that is, his conscious objective was to benefit himself financially or otherwise (Respondent requested monetary damages in his federal lawsuit) by filing suit against McLachlan and Sitter. See ABA Standard, Definitions and 6.21.

Injury

The injury Respondent caused is substantial. Most important is the damage and potential Respondent caused to the integrity of the attorney disciplinary system. The profession, citizens, and courts have a reasonable expectation that Respondent and other lawyers will follow the Colorado Supreme Court’s direction. Respondent’s actions have financial and emotionally damaged McLachlan and Sitter and could potentially damage the legal profession and the public’s confidence in the integrity of our system.

Aggravating Factors ABA Standard 9.22

(a) Prior disciplinary offense. The prior discipline is directly related to his conduct in this case.
(g) Refusal to acknowledge wrongful nature of conduct.
(h) Substantial experience in the practice of trust law.

Mitigating Factors ABA Standard 9.32

None.

The ABA Standards state that the presumptive sanction here is suspension. The undisputed facts show Respondent retaliated against those who reported his misconduct to the People. The conduct McLachlan and Sitter reported was essentially the same conduct Respondent admitted in his stipulation.

Respondent received notice in the signed stipulation that he was not to engage in any conduct that would result in discipline. Violating C.R.C.P. 251.32(e) is precisely the kind of conduct that could result in discipline. Respondent was also warned that he was violating this rule by persisting in claims in federal court against McLachlan and Sitter.17 Nevertheless, Respondent continued to press forward on his suit against McLachlan and Sitter.18

Respondent admittedly read C.R.C.P. 251.32(e) before he filed suit against McLachlan and Sitter. He knew or should have known that in order to file suit against them and avoid the immunity provisions of C.R.C.P. 251.32(e), he had to prove that they had acted in reckless disregard of the truth or in bad faith. Respondent also knew that he had essentially admitted the conduct that McLachlan and Sitter had reported. Even if Respondent had no duty to affirmatively prove these circumstances, the record here is clear and convincing; McLachlan and Sitter acted properly in cooperating and reporting Respondent to the People.

Respondent is clearly angry and upset that McLachlan and Sitter discussed his conduct concerning the Concordia case and other cases with residents of Durango. Indeed, Respondent called a witness who credibly testified that shortly before this hearing, McLachlan told the witness that Respondent would be "disbarred" for converting funds.

Respondent may have a substantive right to bring a suit against Sitter and McLachlin because he believes they are spreading rumors about him that are not true. But in order to support an affirmative defense under C.R.C.P. 251.32(e), a lawyer must do more than claim that he believes the reporting parties were acting in bad faith or reckless disregard of the truth in making a report to the OARC about his conduct. Respondent’s subjective belief is not enough. If it were, C.R.C.P. 251.32(e) would be meaningless.

Respondent has offered little more to support his claim that McLachlan and Sitter acted in bad faith or reckless disregard of the truth than that they failed to review the stock purchase agreement Respondent and Dugan signed before they communicated with the People.19 If such level of scrutiny were required in every instance before citizens could report perceived lawyer misconduct, few reports would be made.

Respondent’s view of what McLachlan and Sitter’s duties to investigate also fails to take into account the procedures that must be followed before any citizen report can be processed to a formal complaint. First, the People must conduct an initial investigation, evidence must be gathered, and the Attorney Regulation Committee must review and approve any recommendation the People make to them to file formal charges. Only then may the People file a formal complaint against a lawyer who a citizen has reported for misconduct. Here, Respondent admitted in a stipulation to the Court that he violated C.R.C.P. 251.5, Colo. RPC 8.4(c) and 1.15(c).

With reference to Respondent’s claim that Sitter breached an attorney-client privilege to Respondent, the Hearing Board finds no evidence that Sitter represented Respondent in the Concordia dispute with Dugan. But even if there were such a relationship, Sitter’s report of information about Respondent would not relieve Respondent of his obligations under C.R.C.P. 251.32(e).

VII. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. Upon consideration of the duties breeched, the state of mind, the injury, and the significants factors in aggravation as well as Colorado Supreme Court case law, the Hearing Board finds that Respondent should be suspended from the practice of law for a period of a year and a day.

VIII. ORDER

The Court therefore ORDERS:

1. CHARLES WILLIAM RASURE, JR., Attorney Registration No. 25569, is SUSPENDED from the practice of law for a period of ONE YEAR AND A DAY, effective thirty-one (31) days from the date of this order.

2. CHARLES WILLIAM RASURE, JR. 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. CHARLES WILLIAM RASURE, JR. SHALL submit to an Independent Medical Examination by a doctor or other professional agreed upon with the People before applying for reinstatement.

__________

1. Counts III and IV of Respondent’s suit deal with alleged malicious prosecution and abuse of process based upon reports Sitter and McLachlan made to the People, which ultimately led to disciplinary charges being filed against Respondent.

2. Exhibit 6.

3. Exhibit 10.

4. Exhibits 6-11.

5. Exhibit 14.

6. Exhibit 11.

7. Exhibit 15.

8. Exhibit 17.

9. Respondent also filed a motion for summary judgment. The Court denied that motion.

10. Exhibit 21, Stipulation, Agreement and Affidavit containing the Respondent’s Conditional Admission of Misconduct, paragraph o. Respondent also stipulated to a one year and one day suspension, stayed upon successful completion of a one-year probation with conditions.

11. Exhibit 21.

12. Absent compelling evidence in mitigation, knowing conversion would result in disbarment.

13. Exhibit 19.

14. Exhibit 23.

15. Exhibit 18.

16. Exhibit 25.

17. Although there is insufficient evidence to demonstrate that Respondent suffers from a disability, the Hearing Board is nevertheless troubled by Respondent’s apparent inability to objectively analyze implications of filing Claims III and IV against Sitter and McLachlan.

18. Exhibit 27.

19. Exhibit 27.

_______________

Case No. 08PDJ007

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

LARI JEAN TROGANI.

November 18, 2008

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

On July 22, 23, and 24, 2008, a Hearing Board composed of Barbara A. Miller, a citizen board member, F. Stephen Collins, a member of the Bar, and William R. Lucero, the Presiding Disciplinary Judge, held a hearing pursuant to C.R.C.P. 251.18. Margret B. Funk appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Michael D. Gross appeared on behalf of Lari Jean Trogani ("Respondent"). The Hearing Board now issues the following "Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19."

I. ISSUE

Suspension is generally appropriate when a lawyer knowingly violates a court order or knows that material information is improperly being withheld from a court and takes no remedial action. Respondent knowingly violated an order from a county court judge when she tendered a global plea agreement to a district court judge. She then withheld information from the district court judge after he asked about the county court judge’s position on it. What is the appropriate sanction?

II. SUMMARY

After carefully reviewing the evidence and considering the arguments of counsel, the Hearing Board finds clear and convincing evidence that Respondent violated the following Colorado Rules of Professional Conduct:

  • Colo. RPC 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact to a tribunal);1
  • Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving misrepresentation);
  • Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); and
  • Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).

The Hearing Board finds that most of the material facts in this case are undisputed. The Hearing Board reviewed transcripts of court proceedings, as well as a detailed stipulation, which provided a clear picture of Respondent’s actions and statements in open court. From these material facts, the Hearing Board finds that Respondent acted with a conscious awareness of her conduct, but without the intent to deceive the district court judge. The evidence demonstrates that Respondent believed, albeit mistakenly, that a global plea agreement would serve the best interests of the judicial system. She also believed that the global plea agreement effectuated a disposition that was in the best interests of justice, her client, and the district attorney.

While it acknowledges Respondent’s lack of specific intent to violate the Colorado Rules of Professional Conduct, the Hearing Board nevertheless concludes that her conduct constituted a serious violation of these rules warranting a suspension. To find otherwise would undermine respect for the courts and the important role they serve in the supervision and administration of our justice system.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR
ONE YEAR AND ONE DAY, ALL BUT NINETY (90) DAYS STAYED
UPON THE SUCCESSFUL COMPLETION OF A TWO-YEAR PERIOD
OF PROBATION WITH CONDITIONS.

III. PROCEDURAL HISTORY

On January 24, 2008, the People filed a Complaint and alleged violations of Colo. RPC 3.3(a)(1), 3.4(c), 8.4(c), and 8.4(d), Claims I, II, III, IV respectively. Respondent filed an Answer on February 19, 2008. On March 4, 2008, the Court held an At-Issue Conference and scheduled the matter for a three-day hearing to commence on July 22, 2008.

IV. FINDINGS OF MATERIAL FACT

The following material facts arise from the pleadings, stipulated facts and exhibits, and testimony presented in these proceedings.2

Background

Respondent has taken and subscribed the Oath of Admission, was admitted to the Bar of the Colorado Supreme Court on October 22, 1990, and is registered upon the official records, Attorney Registration No. 20008. She is therefore subject to the jurisdiction of the Hearing Board in these disciplinary proceedings. Respondent’s registered address is 1824 West Colorado Ave., Colorado Springs, Colorado 80904.3

Respondent began her legal career as a paralegal with a well-respected law firm in Denver after she received her undergraduate degree from the University of Colorado. With the encouragement of members from this firm, Respondent attended and graduated from the University of Wyoming School of Law and later passed the Colorado Bar Examination. She initially worked for the Colorado Public Defenders Office in Denver and thereafter practiced with an esteemed trial attorney in Colorado Springs.

Respondent now practices as a sole practitioner specializing in criminal law. She serves as alternate defense counsel ("ADC") in Division 5 of the El Paso County District Court. In her capacity as an ADC, she represents indigent defendants with whom the public defender maintains a conflict. At any given time, Respondent represents up to 125 clients whom she defends on felonies in the district court.

The Complaint against Respondent arose from her representation of a client who had been charged in El Paso County District Court with felony charges and who simultaneously faced a probation revocation hearing on misdemeanor domestic violence charges in El Paso County Court.

Stipulated Facts4

In 2006 and 2007, Respondent represented Leonard Quintana in multiple criminal proceedings pending against him in El Paso County District Court and El Paso County Court. In late 2003, Mr. Quintana had been involved in eleven separate misdemeanor domestic violence cases pending before El Paso County Court Judge Christopher E. Acker ("Judge Acker") in Division B. Mr. Quintana was then charged with felony domestic violence. His felony case was assigned to El Paso County District Court Judge Edward S. Colt ("Judge Colt") in Division 1. At the time Mr. Quintana’s felony case was assigned to Judge Colt, his eleven Division B cases remained unresolved in Division B.

On August 30, 2004, Judge Acker approved a plea disposition disposing of all eleven of the misdemeanor domestic violence matters. Pursuant to the terms of the plea agreement, Mr. Quintana pled guilty to four of the pending misdemeanor domestic violence cases, and the remaining seven misdemeanor domestic violence cases were dismissed. As part of the agreement, Mr. Quintana was placed on supervised probation.

Mr. Quintana did not comply with the terms of probation and the court scheduled a hearing to determine whether his probation should be revoked.5 Mr. Quintana did not appear at his probation revocation hearing and also failed to appear on his felony domestic violence matters in Division 1. Warrants were then issued for the arrest of Mr. Quintana. Sometime in or around early September 2006, Mr. Quintana was arrested.

During Mr. Quintana’s September 5, 2006 court appearance with Judge Acker in Division B, Respondent informed Judge Acker that her client had not yet reached a disposition in the felony case still pending with Judge Colt in Division 1. At Respondent’s request, the pending probation revocation matters with Judge Acker were set over to trail Mr. Quintana’s felony case. The next probation revocation hearing date was scheduled for November 14, 2006.

On November 14, 2006, Respondent appeared with Mr. Quintana for the scheduled probation revocation hearing with Judge Acker. Respondent informed Judge Acker that "[p]art of the disposition upstairs includes these cases." Judge Acker then stated:

No, they won’t. These cases are domestic violence cases and they are not to be handled up there; they will not be handled up there. We can trail it in order to sentence in accordance with it, but domestic violence cases on probation in the division stay in the division.

Respondent replied "I understand that, Judge, and that’s what the court told us last time . . . ." Judge Acker further stated, "Let’s be clear, then, so there’s no confusion. The disposition will not be handled up there." Judge Acker then reset Mr. Quintana’s misdemeanor domestic violence probation revocation cases to trail the expected disposition of his felony charged in Division 1.

December 12, 2006 was the date of the next revocation hearing set in Division B. Respondent again informed Judge Acker that the Division 1 felony matter had not yet been resolved, although an agreement for disposition of the felony matter had been reached. The deputy district attorney for Division B then requested that the probation revocation matters pending with Judge Acker trail the felony case once again.

On the record, Judge Acker asked Respondent about the terms of the anticipated disposition of the felony case in Division 1. Respondent informed Judge Acker that each of the misdemeanor domestic violence cases pending with him in Division B was to be revoked and the sentences in the cases would run concurrent with the sentence in the Division 1 felony case.6 Judge Acker reminded Respondent that his cases, the Division B cases, would not be part of the disposition in the felony case, that her client, Mr. Quintana, would be receiving consecutive jail time in the Division B cases, and that he had made these points clear on November 14, 2006. Judge Acker then again reset the misdemeanor domestic violence probation revocation matters for January 19, 2007.

On January 16, 2007, Respondent and Mr. Quintana appeared before Judge Colt in Division 1 on the felony case. Respondent and the district attorney covering the docket for the regular deputy district attorney who had been working with Respondent, proposed a plea disposition to Judge Colt that called for, among other things, all four pending misdemeanor probation revocation matters pending with Judge Acker in Division B be terminated unsuccessfully. Respondent then requested immediate sentencing if Judge Colt accepted the plea.

Before accepting the plea, Judge Colt informed Respondent that he believed the misdemeanor cases included in the proposed disposition had been returned to Judge Acker for disposition. Respondent replied that Judge Acker had indicated he would not send those cases back to Division 1. However, Respondent then stated, "If we, in fact, came to a resolution on them [the misdemeanor cases], just to inform him [Judge Acker], but he wouldn’t let them come upstairs. So they’ve never actually physically come up here, but he’s [Judge Acker] indicated if we resolve it, just to inform his clerk and he’ll vacate the date."

After further discussing the proposal with Respondent and the district attorney who actually co-authored the proposed disposition, Judge Colt delayed ruling on the proposed plea agreement. Instead, Judge Colt postponed the proceedings so that he could directly speak with Judge Acker on the matter. On that same day, January 16, 2007, Judge Colt contacted Judge Acker concerning the proposed disposition in the felony matter. The judges decided that Judge Acker would proceed with the probation revocation hearing on January 19, 2007 as scheduled, prior to the felony disposition in Division 1.

On January 19, 2007, Respondent and Mr. Quintana appeared before Judge Acker in Division B for the scheduled probation revocation hearings concerning the misdemeanor domestic violence matters. On that date, Judge Acker required Respondent to elect to go forward with the probation revocation hearings immediately, or to enter admissions to the allegations in the probation officer’s complaint and report in the four misdemeanor cases. After discussing the matter with her client, Respondent entered admissions on behalf of Mr. Quintana. Judge Acker then revoked probation on all four of the misdemeanor domestic violence cases and sentenced Mr. Quintana in the Division B cases.

Contrary to Respondent’s representations to Judge Colt referenced above, Judge Acker never advised Respondent that if the cases were resolved by Judge Colt, someone just needed to "inform his clerk" so the date could be vacated.

On November 14, 2006 and December 12, 2006, Judge Acker ordered that Mr. Quintana’s misdemeanor probation revocation matter was not to be transferred to Judge Colt for resolution. Judge Acker also specifically ordered Respondent not to attempt to include those matters in any plea resolving Mr. Quintana’s pending felony matter pending in Division 1. Respondent was present at the time these orders were entered and therefore knew of such court orders.

The parties therefore agree that on January 16, 2007, when Respondent appeared before Judge Colt, Respondent knowingly disobeyed Judge Acker’s orders and requested that Judge Colt assume jurisdiction over Mr. Quintana’s pending probation revocation matters by entering a plea resolving that pending probation revocation matter with his pending felony matter.

Testimony of Respondent

Respondent testified that she did not intend to violate Judge Acker’s order or deceive Judge Colt when the latter asked if Judge Acker agreed with including the probation revocation matters in the global plea agreement she and the district attorney presented to him. Instead, Respondent stated that the following circumstances prompted her actions in this case:

  • The felony case heavily relied upon the testimony of Mr. Quintana’s ex-wife who, the weekend before trial, informed the deputy district attorney that she would not testify at the trial. This turn of events substantially changed the plea bargaining positions of Respondent and the deputy district attorney with regard to the felony case, and as a result, the probation revocation matters. Respondent and the deputy district attorney therefore believed that including the dismissal of the probation revocation matters in a global plea agreement would be appropriate in light of the changed circumstances to which Judge Acker was unaware. This global plea agreement would provide the district attorney the benefit of a felony conviction against Mr. Quintana, while it would provide Mr. Quintana the benefit of avoiding jail time.
  • During plea negotiations, Respondent told the district attorney that Judge Acker opposed the transfer of the probation revocation matters to district court. Respondent claimed that the proposed disposition of the probation revocation matters was not her deal, but rather the district attorney’s. Respondent maintained that she possessed no power to make the county court cases "go away," but instead could only accept or reject an offer from the district attorney. Respondent also believed, contrary to the district attorney’s position, that it was the district attorney’s obligation to transfer the probation revocation matters to district court.
  • Respondent believed that if Judge Acker had known of the changed circumstances, he should not have objected to the resolution of the probation revocation matters in the global plea agreement. At the same time, Respondent acknowledged that she did not attempt to advise Judge Acker of this proposed disposition before tendering the global plea agreement to Judge Colt. Respondent testified that she and the district attorney reached the global plea agreement the weekend before trial, and therefore she did not have time to advise Judge Acker in advance of tendering it to Judge Colt.
  • Immediately before the probation revocation hearing on January 19, 2007, Respondent tried to explain to Judge Acker why she had attempted to dispose of the probation revocation matters as a part of a global disposition in district court. Respondent waited outside his chambers that morning, but Judge Acker refused to meet with her before the probation revocation hearing. Respondent believes that Judge Acker should have considered the change in circumstances before he objected to the inclusion of the probation revocation matters in the global plea agreement.
  • Respondent does not remember telling Judge Colt, "[i]f we, in fact, came to a resolution on them [the misdemeanor cases], just to inform him [Judge Acker], but he wouldn’t let them come upstairs." However, she acknowledged that this statement is in the transcript of the proceeding and therefore assumed the statement is hers. Respondent’s only explanation for making this erroneous statement is that she must have been confusing Mr. Quintana’s case with another case involving similar circumstances pending in county court at or near the same time, because this type of global plea agreement was, and is, common in some El Paso County Courts and El Paso County District Courts.7
  • At the time Respondent attempted to offer the global plea agreement, neither she nor the district attorneys who tendered the global plea agreement knew of certain chief judge directives related to the disposition of county court matters in district court.8 Furthermore, the undisputed evidence is that at least one county court judge made it a policy to encourage global dispositions in district court even though the county court cases had already been terminated by a plea agreement, in apparent contravention of these policies.
  • Respondent believes that this matter has been "blown out of proportion." If Judge Colt would have accepted the global plea agreement as proposed, Respondent believes that she would have fully disclosed Judge Acker’s position during the Rule 11 advisement. Further, even if Judge Colt had accepted the global plea agreement, the portion of the agreement that dealt with the probation revocation matters could have been vacated.
  • Nevertheless, in hindsight, Respondent now understands why Judge Acker and Judge Colt felt that she had acted in an underhanded way on January 16, 2007. Respondent also acknowledged that she could have done more to provide a better record in Judges Colt and Judge Acker’s courts. As a final point, Respondent testified that she would not have risked her license to resolve these probation revocation matters.

Testimony of Judge Acker and Judge Colt

Judge Acker and Judge Colt believed that Respondent "intentionally misrepresented" Judge Acker’s position on the global plea agreement in order to "manipulate" the judicial system and avoid a direct order that complied with directives mandated by the chief judge of the district court.9 Judge Acker specifically believed that Respondent had attempted to circumvent his orders and that had Judge Colt proceeded to immediate sentencing as requested by Respondent, he would have never known of the disposition of the probation revocation matters.

Judge Acker and Judge Colt testified that they were unsure as to how to resolve the issues raised by Respondent’s attempt to globally dispose of the probation revocation matters in contravention of Judge Acker’s orders. Judge Acker and Judge Colt decided to meet with the chief judge of the district court and they asked him for direction. The chief judge directed them to report the matter to the People. Judge Acker initially reported the matter to the People, and later he and Judge Colt co-authored a disciplinary complaint against Respondent that detailed her actions their respective courts.

Judge Acker expressed that that he did not want to file a complaint against Respondent, but understood he had a mandatory obligation to do so after speaking with the People. Nevertheless, Judge Acker would have preferred to handle Respondent’s misconduct by privately speaking with her in order to obtain assurances that it would never happen again.

Testimony of Deputy District Attorney Laurel Huston

Laurel Huston served as the deputy district attorney in Division 1 during the relevant time period. Based on Mr. Quintana’s ex-wife’s statement that she would not testify against Mr. Quintana in the felony matter, Ms. Huston entered into renewed plea negotiations with Respondent. Ms. Huston eventually obtained authorization from her supervisor to reduce the felony charges against Mr. Quintana to a class 5 felony trespass. As part of the global plea agreement, the probation revocation matters would be unsuccessfully terminated without the imposition of a sentence. Ms. Huston prepared the written global plea agreement outlining these terms. In addition, Ms. Huston contacted the probation department and advised them that she and Respondent planned to ask Judge Colt for immediate sentencing following his acceptance of the global plea agreement without a pre-sentence report.

At the time she made this offer, Ms. Huston reviewed a minute order in the probation revocation matters that stated the probation revocation matters were not to be transferred to district court. In addition, Respondent disclosed to Ms. Huston that Judge Acker disapproved of transferring probation revocation matters to district court. Ms. Huston nevertheless agreed to include the probation revocation matters in the plea agreement if Respondent could arrange for their transfer to county court.10 Ms. Huston also recalled that Respondent had told her that they could dispose all matters in district court if they and Judge Colt all agreed with the disposition.11 However, Respondent did not tell Ms. Huston that Judge Acker had ordered Respondent not to attempt to transfer or resolve the probation revocation matters in district court.

V. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

The Hearing Board finds clear and convincing evidence that Respondent violated the following Colorado Rules of Professional Conduct.

Respondent violated Colo. RPC 3.3(a)(1)
(A lawyer shall not knowingly make a false statement
of material fact to a tribunal.)

When Respondent appeared before Judge Colt on January 16, 2007, she knew that Judge Acker opposed disposing the probation revocation matters as a part of the global plea agreement she and the deputy district attorney tendered to Judge Colt. Instead of candidly advising Judge Colt that Judge Acker opposed disposing of the probation revocation matters in such a manner, Respondent urged Judge Colt to accept the global plea agreement. The Hearing Board does not believe that Respondent was confusing Mr. Quintana’s case with the case pending before another judge when she respondent to Judge Colt’s questions.12

Respondent violated Colo. RPC 8.4(c)
(A lawyer shall not engage in conduct involving misrepresentation.)

Examining the events leading up to hearing on January 16, 2006 in district court, the Hearing Board finds that Respondent knowingly misrepresented by commission and omission the substance of Judge Acker’s order to Judge Colt.

Respondent violated Colo. RPC 3.4(c)
(A lawyer shall not knowingly disobey an obligation
under the rules of a tribunal.)

When Respondent agreed with the deputy district attorney to terminate the probation revocation matters via a global plea agreement in Judge Colt’s court, she knowingly acted in direct violation of Judge Acker’s order.

Respondent violated Colo. RPC 8.4(d)
(A lawyer shall not engage in conduct prejudicial
to the administration of justice.)

We find that Respondent’s "judge shopping" and failure to candidly disclose to Judge Colt or Judge Acker the proposed global plea agreement was prejudicial to the administration of justice. Judges rely on the counsel trustworthiness of counsel, especially in busy jurisdictions with heavy dockets. A lawyer who is not candid with the court gravely affects the effective administration of justice.

Finally, although our task in disciplinary proceedings is limited to addressing ethical questions, we reject the argument of Respondent’s counsel that Respondent was not required to follow Judge Acker’s orders because they allegedly were illegal.13 First, we do not believe that Judge Acker’s orders interfered with Respondent’s or the district attorney’s negotiation of plea agreements. They were free to negotiate whatever plea agreement they felt appropriate, subject of course to the court’s duty to review and either accept or reject the negotiated plea. Judge Acker’s orders merely ensured that any plea involving the misdemeanor probation revocation cases would be subject to his review. Second, Respondent admitted during her testimony that she did not consider the orders to be illegal at the time. Even if Respondent had considered the orders to be illegal at the time, that would not justify her simply ignoring them. Rather, Respondent would then have been under a duty to openly refuse to follow the orders, which Respondent admittedly did not do.14

VI. 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.

Applicable ABA Standards

The Hearing Board considered the following standards in considering the appropriate sanction in this case.

ABA Standard 6.12 states in the absence of aggravating or mitigating circumstances and application of ABA Standard 3.0:

Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding (emphasis added).

ABA Standard 6.22 states as follows:

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 (emphasis added).

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:

  • The duty violated;
  • The lawyer’s mental state;
  • The actual or potential injury caused by the misconduct; and
  • The existence of aggravating or mitigating factors.

A. THE DUTY VIOLATED

We begin with the proposition that members of the legal profession must adhere to the highest moral and ethical standards. These standards apply regardless of motive. Purposeful deception by an attorney is intolerable, even when it is undertaken as part of attempting to achieve what the attorney believes is the greater good. See In re Paulter, 47 P.3d 1175, 1176 (Colo. 2002). Knowing misrepresentations of material facts to a court by an attorney invariably bears a potentially significant adverse effect on the legal proceeding, places the client at significant risk, demeans the profession and diminishes the public trust in the administration of justice.

The Hearing Board finds that Respondent violated duties as an officer of the court, the legal profession, and her client, even though Mr. Quintana did not suffer actual harm as a result of her actions.

The Hearing Board understands that the rigors of busy trial lawyer. Our ethical rules demand that a lawyer protect and defend clients with zeal. However, the lawyer must also be mindful of ethical obligations to the court and our legal system while navigating the administration of justice. See People v. Schultheis, 638 P.2d 812 (Colo. 1981) citing State v. Henderson, 468 P.2d 136 (Kan. 1970).

B. THE LAWYER’S MENTAL STATE

The Hearing Board finds that Respondent acted knowingly when she misled Judge Colt about Judge Acker’s position on including the probation revocation matters as a part of the global plea agreement. The Hearing Board also finds that Respondent knowingly disobeyed Judge Acker’s orders and knowingly made a false statement of material fact when she told Judge Colt that "if the cases were resolved by Judge Colt, someone just needed to ‘inform his [Judge Acker’s] clerk’ so the date could be vacated." We specifically reject Respondent’s testimony that she made this statement mistakenly referring to another case.

The evidence is clear and convincing that Respondent was acutely aware that Judge Acker intended to sentence Mr. Quintana consecutively to any sentence he might receive in Judge Colt’s court, and that Judge Acker was not willing to transfer the county court cases to district court. However, the evidence is not clear and convincing that Respondent had a conscious objective to deceive Judge Colt or disobey Judge Acker’s orders. Instead, the Hearing Board finds that Respondent’s misguided efforts to resolve the probation revocation matters were primarily motivated by her deluded and cavalier attitude that resolving the felony matters was more important than Judge Acker’s orders regarding the probation revocation matters.

Up until the weekend before the scheduled trial of Mr. Quintana’s felony charges in district court, Respondent’s focus had been on negotiating a resolution of the felony charges that would result in the least amount of jail time for Mr. Quintana. Given the jail time that Mr. Quintana faced on the felony charges, Respondent paid little attention to them, and testified that the misdemeanor charges in Judge Acker’s court were insignificant given the consequences of the habitual criminal charges then pending against Mr. Quintana.

However, once Mr. Quintana’s ex-wife changed her position and refused to testify in the felony case, Respondent was in a much stronger bargaining position and was able to negotiate a plea agreement that would result in no jail time for Mr. Quintana. Respondent, and the district attorneys involved, felt that the negotiated plea agreement was a fair and just resolution of all of Mr. Quintana’s criminal charges. It allowed the district attorney’s office the option of charging Mr. Quintana as a three-time felon under the habitual criminal statute if he was charged with a felony in the future. But the plea bargain in question allowed Mr. Quintana to avoid any jail time. It also allowed both the state and Mr. Quintana to avoid the cost, risk and inconvenience necessarily associated with taking the felony case to trial or the misdemeanor probation revocation cases to hearing.

With these circumstances, Respondent believed that the global resolution of Mr. Quintana’s felony and misdemeanor charges through the proposed plea agreement that she presented to Judge Colt in district court was in the best interest of her client (by ensuring that he served no jail time) and the judicial system (by efficiently resolving all pending charges matters in one appearance in district court). Further, Respondent was proceeding in what she viewed as the normal, customarily accepted practice of resolving all pending charges in one proceeding, and did not believe that she was doing anything wrong.

Even if we accept Respondent’s benign characterization of her actions, we are deeply troubled by Respondent’s casual disregard of Judge Acker’s orders and her lack of candor in answering Judge Colt’s inquiries. The mere fact that Respondent believed that she was following the normal, customary practice to achieve a result that was in the best interests of her client and the judicial system does not justify or excuse her failure to comply with Judge Acker’s orders or fully disclose Judge Acker’s position to Judge Colt. It does, however, demonstrate it was not her specific intent to deceive the court or disobey a court order. Paulter, 47 P.3d at 1180.

Considering all of the circumstances presented, the evidence shows Respondent thought that she could finesse the situation and obtain Judge Colt’s approval of the plea agreement by responding vaguely to his questions and by enlisting Ms. Huston’s support in explaining to Judge Colt why the district attorney’s office felt the global plea agreement was a fair and just disposition of all of Mr. Quintana’s criminal charges.

C. THE ACTUAL OR POTENTIAL INJURY

The Hearing Board finds Respondent caused serious injury to our system of justice and the legal profession. The record is clear that the district and county courts in El Paso County contend with heavy dockets; deputy district attorneys literally require up to six banker boxes to carry files to court on some days. This strain on the justice system makes it imperative that dockets be processed in an efficient and just manner. Thus, the courts often rely on lawyers to provide them with candid direction. A lawyer’s honesty and trustworthiness are core values in our ethical rules. Pautler, 47 P.2d at 1176.

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.

Dishonest Motive—9.22(b)

Respondent acted with a dishonest motive, short of the specific intent to deceive or disobey a court order, when she failed to fully advise Judge Colt of Judge Acker’s position on the proposed disposition of the probation revocation cases in district court.

Pattern of Misconduct and Multiple Offenses—
9.22(c) and 9.22(d)

In failing to abide by Judge Acker’s specific orders and fully disclosing his position about Mr. Quintana’s proposed disposition to Judge Colt, Respondent engaged in a pattern of misconduct and multiple offenses.

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

In these proceedings Respondent belatedly acknowledged that she could have made a better record before Judge Acker and Judge Colt. Nevertheless, she still believes this matter was "blown out of proportion." The Hearing Board finds this attitude troubling and strongly suggests Respondent needs guidance in order to avoid future conflicts with the court.

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

Respondent has practiced law for nearly twenty years in Colorado. During this time, she has worked as a deputy public defender, and ADC in the El Paso County District Court and El Paso County Court. She should have appreciated the seriousness of disregarding Judge Acker’s clear and unequivocal orders and her lack of candor in answering Judge Colt’s questions about the global plea agreement.

2. MATTERS IN MITIGATION, ABA STANDARD 9.3

The Hearing Board considered evidence of the following mitigating circumstances in deciding the appropriate sanction.

Absence of a Prior Disciplinary Record—9.32(b)

The Hearing Board finds that Respondent has never appeared before this court in nearly twenty years of practice. The Hearing Board finds this to be a substantial mitigating factor. Respondent is involved in a high volume practice with many pitfalls as this case demonstrates. The fact that Respondent has never before appeared before this court is a significant factor in fashioning the appropriate sanction in this case.

Cooperative Attitude Toward Proceedings—9.32(e)

Respondent demonstrated a cooperative attitude in these proceedings with the People and the Hearing Board.

Analysis Under Case Law and ABA Standards

The Hearing Board finds that Respondent knowingly misstated and withheld information from Judge Colt and knowingly disobeyed an order from Judge Acker. Therefore, the Hearing Board looks to ABA Standards 6.12 and 6.22 as a starting point for our analysis.

The Hearing Board next looks to the Colorado Supreme Court’s rationale in a case where they suspended a lawyer for three years for failing to disclose to the court that his client had previously been convicted of DWAI. In re Cardwell, 50 P.3d 820, 823 (Colo. 2000). We also consider the Colorado Supreme Court’s decision in a case where they found a lawyer’s refusal to follow a court’s order a serious matter calling for a substantial suspension and a redetermination of her fitness before being permitted to again practice law in this jurisdiction. In re Roose, 69 P.3d 43, 49 (Colo.2003).

While Respondent’s conduct, like that in Roose and Cardwell involved a knowing refusal to obey a court order and deceitful conduct in court, we nevertheless find that the need for a one year and one day suspension or greater sanction unnecessary for the following reasons:

  • Respondent did not defiantly disobey a direct order while in the presence of the court, as did Ms. Roose. Instead, Respondent understood the court’s order but rationalized that her actions were appropriate because she and the district attorney mutually agreed to a just and reasonable resolution to a troublesome case.
  • Respondent was deceitful, however, her deceit was less egregious than that of Mr. Cardwell. Unlike Mr. Cardwell, Respondent was not convicted of a felony nor did the People advance the argument that her conduct amounted to a felony in these proceedings. Furthermore, Respondent, unlike Mr. Cardwell, made disclosures to the district attorney about Judge Acker’s opposition. The district attorney then prepared the written plea agreement and presented it to the court.15
  • While Respondent’s responses to Judge Colt’s inquiries were misleading, they were also vague and confusing while Mr. Cardwell’s responses to the court were unequivocal.
  • Finally, Judge Acker’s testimony that he would have preferred to meet with Respondent privately and obtaining her assurances that she would not again engage in such misconduct, demonstrates the reasonableness of a shorter rather than a more lengthy suspension.

VII. CONCLUSION

A lawyer’s actions should always be grounded in honesty and candor whether dealing with opposing counsel, third parties, or the court. Paulter, 47 P.3d at 1180. Furthermore, respect for the court and its processes are necessary to preserve the rule of law and the dignity of our courts. While lawyers must zealously represent their clients, they must also do so within the rules of the adversary system as well as the Colorado Rules of Professional Conduct. Respondent’s conduct falls short of these principles.

Nevertheless, Respondent has practiced for nearly twenty years without any record of misconduct. Further, the misconduct here appears to be isolated and, with the conditions ordered by the Hearing Board, this misconduct, we trust, is not likely to be repeated. Applying the ABA Standards and Colorado Supreme Court case law and the extenuating circumstances Respondent presented, we conclude that a ninety-days suspension with conditions is a sufficient sanction to protect the public and the administration of justice from further harm. See In re Fischer, 89 P3d 817, 819 (Colo. 2004).

VIII. ORDER

The Hearing Board therefore ORDERS:

1. LARI JEAN TROGANI, Attorney Registration No. 20008, is hereby SUSPENDED from the practice of law for a period of ONE YEAR AND ONE DAY, ALL BUT NINETY (90) DAYS STAYED upon the successful completion of a two-year period of probation with conditions, effective thirty-one days from the date of this opinion. Respondent SHALL comply with all requirements of C.R.C.P. 251.28 and C.R.C.P. 251.29 applicable to the length of her suspension. Respondent SHALL not engage in any further violation of the Colorado Rules of Professional Conduct during the period of her probation.

2. Respondent SHALL attend and successfully complete the one-day ethics school sponsored by the People.

3. Respondent 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. See Colo. RPC 3.3, comment [2] ("There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation."). The Hearing Board concluded that Respondent violated this rule with her affirmative statements and her failure to make a disclosure.

2. See Stipulated Exhibits 1-23 and Respondent’s Exhibits A and B. The Presiding Disciplinary Judge also admitted Respondent’s Exhibit C over the People’s objection.

3. See C.R.C.P. 251.1; and "Stipulation of Facts" at ¶1.

4. See "Stipulation of Facts" at ¶2-21.

5. This sentence is not a part of the "Stipulation of Facts" but is a finding of the Hearing Board.

6. At this point the district attorney was offering one class four felony leaving it open for the district court to sentence Quintana to either four years in the Department of Corrections or eight years in the Community Corrections program.

7. A clerk for an El Paso County Court judge testified that her judge, like others in the county court, encourages resolving county court matters in district court as part of a global disposition. This has been her experience for the last eleven years. In addition, on or about January 4, 2007, approximately two weeks before Respondent tendered the global plea agreement in Judge Colt’s court, this clerk recalled telling Respondent in another domestic violence case that she would vacate a hearing date in her court after Respondent completed a district court global disposition.

8. See Stipulated Exhibits 20 and 21.

9. The record in these proceedings demonstrates that the El Paso County District Court and El Paso County Court are extremely busy with heavy dockets. In an apparent effort to deal with the processing and management of criminal matters pending in these courts, the chief judge of the district court issued two directives relied upon by Judge Acker and Judge Colt. See Stipulated Exhibits 20 and 21.

10. As noted above, Respondent maintained that the district attorney was responsible for transferring Mr. Quintana’s probation revocation matters to district court.

11. The Hearing Board notes, "Prosecutorial discretion is a hallmark of our criminal justice system that flows from the doctrine of separation of powers." People in Interest of J.A.L., 761 P.2d 1137 (Colo. 1988). "In order to preserve the required separation of powers, a prosecutor’s charging decision may not be controlled or limited by judicial intervention." People v. Bostelman 141 P.3d 891, 897 (Colo.App. 2005) citing People v. Dist. Court, 632 P.2d 1022 (Colo. 1981). Respondent’s statement to Ms. Huston supports our conclusion that Respondent acted knowingly as opposed to negligently.

12. Both Respondent and the other judge’s court clerk testified that they remembered the case before the other judge because it was the first time that judge had not recused himself from one of Respondent’s cases. Additionally, Respondent testified she had mentioned Judge Acker’s concerns to Ms. Huston the weekend before the hearing. Respondent’s testimony also showed that at the time she was clearly pleased that the balance of power had shifted when Mr. Quintana’s ex-wife refused to testify and that she viewed the negotiated plea agreement under which Mr. Quintana would serve no jail time as a win. Under these circumstances, Respondent’s claim that she must have confused Mr. Quintana’s case with another county court case pending before another judge simply is not credible.

13. Respondent’s counsel argued that Judge Acker’s orders illegally interfered with counsel’s ability to negotiate plea agreements.

14. See Colo. RPC 3.4(c).

15. See Colo. R. Crim. P. 48(a) and People v. Lichtenstein, 630 P2d 70, 73 (Colo. 1981). While this substantive law might have provided Respondent with a good faith basis for challenging Judge Acker’s order, she never openly challenged his order. Nevertheless, these circumstances are relevant to our consideration of the appropriate sanction.

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