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TCL > October 2009 Issue > Disciplinary Opinions

The Colorado Lawyer
October 2009
Vol. 38, No. 10 [Page  139]

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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. 08PDJ063 (consolidated with 08PDJ094)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

TIMOTHY JOHN MARTIN.

July 1, 2009

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

On April 28, 2009, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.15(b). Margaret B. Funk appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Timothy John Martin ("Respondent") failed to appear. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE

Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. Respondent engaged in a pattern of misconduct, which included the knowing conversion of client property. Respondent failed to answer the complaints or otherwise participate in these proceedings. What is the appropriate sanction for his misconduct?

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY

The People filed complaints in this consolidated matter on July 30, 2008 (08PDJ063) and October 8, 2008 (08PDJ094). Respondent failed to answer either complaint and the Court granted a motion for default in the consolidated matter on January 9, 2009. Upon the entry of default, the Court deems all facts set forth in the complaints admitted and all rule violations established by clear and convincing evidence.1

III. ESTABLISHED FACTS AND RULE VIOLATIONS

The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted complaints.2 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on September 29, 1978. He is registered upon the official records, Attorney Registration No. 09083, and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.3

Background

Respondent represented clients in patent and trademark cases both in the United States and overseas. Generally, these types of cases required Respondent to arrange for counsel in other countries to ensure the protection of patents overseas. Respondent’s work on these cases includes paying maintenance fees and meeting application deadlines for his institutional clients. Respondent’s clients provided him funds to pay these fees and complete applications for submission on their behalf.

In the summer of 2007, Respondent’s partner, Michael Henson, left the firm and opened his own practice. Due to a lack of communication with Respondent, a number of clients decided to transfer their matters to Mr. Henson’s firm. Correspondence was sent to Respondent indicating his clients’ wishes to transfer their case to other counsel, but Respondent failed to turn over or make available these clients’ files.

Since approximately October 2007, Respondent’s presence at his office address has been infrequent and sporadic. Respondent’s office telephone and facsimile lines have been shut off, as well as his home and cellular phones.

Respondent is part owner of the office building in which his law office is located. Between January 2008 and May 2008, Dr. Richard Wihera, co-owner of the office building, received Respondent’s office mail because there was no one in Respondent’s locked office to receive the mail. Dr. Wihera also has an office in the same building. During that time, Dr. Wihera placed Respondent’s mail in Respondent’s office. As of June 2008, Dr. Wihera estimated there were nine banker’s boxes of unopened mail in Respondent’s office. Much of this mail came from the U.S. Patent and Trademark Office ("USPTO").

The building that houses Respondent’s office has been sold. Dr. Wihera believed that Respondent’s mail and client files were in jeopardy of being discarded by the new owner. Accordingly, the District Court of Jefferson County appointed Inventory Counsel. As part of those proceedings, the People requested that the District Court order Dr. Wihera to freeze Respondent’s share of the proceeds generated from the sale of their building.

The Philip Wyers Matter

Philip Wyers is the president and sole owner of Wyers Products Group, Inc. Respondent had been counsel for Mr. Wyers’ company for the last ten years. His responsibilities included filing patent and trademark applications, contact with possible patent infringers, and the handling of patent infringement cases.

On July 26, 2007, Mr. Wyers remitted a payment of $5,000.00 to Respondent to retain an expert witness to aid him in a patent infringement case. On November 9, 2007, Mr. Wyers sent Respondent an additional $40,000.00 to pay the remainder of the expert’s bill. Mr. Wyers later learned that the expert’s reports were never filed in his case and that the expert was not paid for his work. Mr. Wyers made repeated attempts to contact Respondent beginning in February 2008. As of June 16, 2008, Respondent had failed to communicate in any way with Mr. Wyers, failed to account to Mr. Wyers for the $45,000.00 submitted by Mr. Wyers to Respondent to secure expert reports, and failed to secure the expert’s report for use in Mr. Wyers’ patent litigation. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a), 1.4(b) and 8.4(c).

The Jennifer Kelly Matter

Jennifer Kelly is employed with Magic Carpet Ski Lifts, Inc. and Eagle Chase Investments, L.L.C. Ms. Kelly entrusted Respondent with ensuring that the corporations’ trademarks remained valid, including renewing them and filing related reports by the appropriate deadlines.

On September 9, 2007, Ms. Kelly sent Respondent instructions to renew one of the corporations’ trademarks along with a check for $750.00. This check later cleared the corporate account, but Respondent never filed the trademark renewal. Ms. Kelly later found out that a $200.00 late filing fee was required to keep the trademark alive, on top of the $750.00 originally owed.

Beginning in October 2007, Ms. Kelly made repeated attempts to contact Respondent regarding the status of the trademarks. As of June 16, 2008, she had not received a phone call, letter, or email from Respondent. Ms. Kelly transferred her trademark matters to Respondent’s former partner, Mr. Henson, due to lack of communication with Respondent. Ms. Kelly has since tried to retrieve her company’s files from Respondent. However, all attempts at communication with Respondent regarding her files have gone unanswered. Respondent has not returned her company’s $750.00. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a), 1.4(b) and 8.4(c).

The Donald Sonntag Matter

Donald Sonntag is a Division Manager of ProSys Packaging Equipment ("ProSys"). ProSys designs and manufactures high-speed packaging machines for the pharmaceutical, cosmetic and chemical industries. ProSys’ ability to patent its designs has been a key component in its competitive edge against foreign competitors. Mr. Sonntag and his company have been working with Respondent since 1989 and his work has included meeting deadlines to pay fees and submitting applications to the USPTO and foreign patent offices.

On August 6, 2007, ProSys instructed Respondent to file a patent application with a deadline of October 25, 2007. Respondent never filed this application. The deadline passed, as well as a six-month extension/grace period, and ProSys was thereafter unable to obtain patent coverage due to Respondent’s negligence. This allows competitors of ProSys to copy their unique and innovative technology. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a) and 1.4(b).

The Howard Bernstein Matter

Howard Bernstein is the president of LazorBlades, Inc. Respondent handled all patent work for this corporation. This work includes filing patent applications and ensuring specific and time sensitive deadlines are met.

Beginning in late 2007, Respondent stopped returning calls from Mr. Bernstein and his corporation. Mr. Bernstein became concerned that correspondence from the USPTO may be waiting unattended in Respondent’s office. Missed deadlines in the application process can be fatal and can result in the abandonment of the patent, making it nearly impossible to recover. These types of situations can also cost Mr. Bernstein’s company thousands of dollars in re-filing fees, if that option is even available. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a) and 1.4(b).

The Ted Crawford Matter

Ted Crawford is a former client of Respondent. Mr. Crawford has made countless attempts to contact Respondent regarding his patent matters. The last time Mr. Crawford received any correspondence from Respondent was in October 2007, at which point Respondent told him he was asserting a lien over his file due to an unpaid balance. In response, Mr. Crawford requested that Respondent provide him with an accounting and invoice of his company’s funds he had on retainer to pay for overseas patent fees. Respondent never provided an accounting or invoice to Mr. Crawford, leading Mr. Crawford to believe that Respondent has misused his company’s retainer funds.

Mr. Crawford has since retained Mr. Henson, to represent him in his patent matters. However, Mr. Crawford needs his files from Respondent’s office so the work on these matters can continue. Further, Mr. Crawford believes there are files located on Respondent’s office computer, including notes and letters, which are also pertinent to his patents. Currently, there are three patents that are in danger of being abandoned. Abandoning any of these patents would result in irreparable harm on Mr. Crawford. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a) and 1.4(b).

The William Zilm Matter

William Zilm, a former optometrist and now an inventor, is a former client of Respondent. Mr. Zilm hired Respondent to seek other patents and to maintain fees and licenses. The last communication Mr. Zilm had with Respondent was in Fall 2007. A lack of communication with Respondent led Mr. Zilm to transfer his patent matters to Mr. Henson.

Many attempts have been made by Mr. Zilm and Mr. Henson’s firm to retrieve his files and documents, including some original patent art, from Respondent’s office. Despite these many requests, Respondent has failed to turn over his files. If Mr. Zilm is unable to promptly recover his documents, his patents could be abandoned causing irreparable harm. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a) and 1.4(b).

The Wayne Arden Matter

Wayne Arden retained Respondent in 2001 to file and maintain patents and trademarks protecting Mr. Arden’s medical devices. Respondent entered his appearance on Mr. Arden’s behalf with USPTO and foreign patent offices and thus, Respondent’s name and office address is the only contact information the USPTO had in relation to these devices. Accordingly, all correspondence, application renewals, fee requests, etc., were sent directly to Respondent on Mr. Arden’s behalf.

Beginning in February 2008, Mr. Arden has been trying to contact Respondent, with no success, to check on the status of his legal matters and retrieve his client file. Respondent’s telephone has now been disconnected and his office locked with the appearance of being abandoned. Respondent still has not withdrawn as attorney of record for Mr. Arden with the USPTO. As a result of this conduct, Respondent violated Colo. RPC 1.3, 1.4(a) and 1.4(b).

The Mike Gonzalez Matter

Mike Gonzales retained Respondent to represent his company, Quest Technologies, Inc., with regard to its international patents. In 2006, Respondent was specifically engaged to handle a patent application filed in South Korea. At that time, Mr. Gonzales paid a $500.00 retainer and later paid Respondent’s billing invoices totaling approximately $3,500.00 for this legal matter. Although Respondent represented (via his billing statements), that he was working on the matter, Mr. Gonzales discovered that Respondent did not perform the work he was retained and paid to accomplish. As a result, Mr. Gonzales discovered that the patent expired in February 2007 "due to non reply" by Respondent.

Further, Mr. Gonzales has never received an accounting of the funds he provided to Respondent for this matter or a refund of these funds. Mr. Gonzales has made numerous requests to recover his company’s client file from Respondent so he can determine what action should be taken on the South Korean patent, but Respondent refused to respond, or return the file to Mr. Gonzales. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a), 1.4(b), and 8.4(c).

The David Gunn Matter

David Gunn retained Respondent in the summer of 2007 to represent his company in a number of patent/trademark issues. He provided Respondent with two retainer checks, one for $2,000.00 and one for $2,500.00 in July and August 2007. Both checks were deposited into Respondent’s COLTAF account.

Mr. Gunn last spoke to Respondent in approximately December 2007. Since that date, Mr. Gunn has discovered that Respondent failed to complete the patent/trademark work he was retained and paid to complete. As a result, Mr. Gunn has lost his patent identified as U.S. Patent Application SN11/026,571.

Mr. Gunn has made numerous requests to recover his client file from Respondent so he can determine what action should be taken on his patents/trademark issues, but Respondent has failed to respond; Respondent has also refused to turn over Mr. Gunn’s client file, or Mr. Gunn’s Petriglass showcase, and drywall texture prototype hopper, nozzles and tube gun prototypes. Mr. Gunn is currently being sued in California over this lost patent and his inability to secure his file from Respondent has prejudiced his defense and caused him to be unable to fully respond to discovery as ordered by the court. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a), 1.4(b) and 8.4(c).

The Dean Heizer Matter

In the summer of 2007, Mr. Henson left Respondent’s firm to pursue his own L.L.C. In conjunction with starting his new firm, Mr. Henson sent an announcement letter advising clients that if they wanted to transfer their files, they should do so by sending a letter or file-transfer request to Respondent with a copy to Mr. Henson. Many clients completed such forms within thirty days of Mr. Henson’s withdrawal. However, Respondent refused to transfer the client’s files.

Through his counsel, Dean Heizer, Mr. Henson also sent numerous letters to Respondent indicating his clients’ wishes to transfer their case to him, but Respondent failed to respond to most of these letters. Attached to the letters were written releases by the clients requesting that their files be immediately transferred to Mr. Henson. While Respondent eventually turned over some files, he refused to turn over all of the files for the clients that transferred to Mr. Henson’s new firm and has failed to withdraw as their counsel with the U.S. and foreign patent offices handling their matters. In sum, Respondent refused to return twenty-six client files involving hundreds of separate legal issues, asserting vaguely that he may file a lien on these files. No liens have yet to be filed.

Further, in at least one instance, Respondent has refused to withdraw from representing, in federal court, a client that discharged him and transferred to Mr. Henson’s firm, forcing Mr. Henson to file a motion to compel Respondent’s withdraw from the case. As a result of this conduct, Respondent violated Colo. RPC 1.16(a).

The Trust Account Notification Matters

On February 25, 2008, Respondent’s bank, USBank, reported item number 5192 in the amount of $2,505.00 returned due to non-sufficient funds in his COLTAF account (#1-591-0169-7534) on February 20, 2008. Apparently Respondent attempted to run item number 5192 through his COLTAF account a second time on February 25, 2008. As a result, on February 29, 2008, USBank again reported to the People that item number 5192 in the amount of $2,505.00 was returned due to non-sufficient funds in Respondent’s COLTAF account.

Respondent’s COLTAF records reveal that as of October 11, 2007, his COLTAF account balance was negative $30.31 and remained at a negative balance until forcibly closed by the bank on November 28, 2007. The source of the client funds missing from the COLTAF account include the Philip Wyers, Jennifer Kelly, Donald Sonntag, Mike Gonzales, and David Gunn matters discussed above. As a result of this conduct, Respondent violated Colo. RPC 8.4(c).

The Randal Oxley Matter

In May 2007, David Larkin, an attorney working for Respondent’s firm Martin & Henson, P.C., contacted Randal Oxley and solicited his services as an expert witness in the field of patent infringement. Mr. Oxley agreed and both he and Mr. Larkin executed the law firm’s written expert agreement. Mr. Larkin also sent Mr. Oxley a retainer to cover eight hours of work. Finally, Mr. Larkin advised Mr. Oxley that his expert report was due on August 24, 2007.

Mr. Oxley completed his expert report on August 23, 2007. Mr. Oxley forwarded his bill for services to Molly Johnson, a staff member of Martin & Henson, P.C. Having not been paid, Mr. Oxley began calling Ms. Johnson on September 10, 2007, inquiring about the status of payment by the firm for his invoice. Ms. Johnson informed him that she would speak to Respondent about the status of the payment, but that she believed the firm was waiting for the client to provide a cost retainer to cover Mr. Oxley’s invoice. Later, Mr. Larkin contacted Mr. Oxley and advised him that Mr. Larkin was leaving Martin & Henson, P.C. He stated that the firm would pay Mr. Oxley’s bill. Ms. Johnson also told Mr. Oxley in October 2007 that she thought the client had provided the cost retainer so his bill would be paid soon.

Mr. Oxley continued to call Ms. Johnson, as well as Respondent, through the end of October, still awaiting payment. Then, in late October, Respondent called Mr. Oxley, assured him that he would be paid, but insisted that Mr. Oxley first forward the expert report by November 5, 2007. Mr. Oxley replied on November 1, 2007 that he would not send the report without payment, first, to which Respondent promised to place a check for $5,000.00 in Federal Express that day and requested that Mr. Oxley place his report in Federal Express as well. Mr. Oxley did not send the report, and he never received the promised $5,000.00 check, or any additional funds, from Respondent, despite his multiple attempts to contact Respondent. Mr. Oxley is still owed $8,749.91 for his work on Respondent’s client’s behalf. As a result of this conduct, Respondent violated Colo. RPC 8.4(c).

IV. SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct.4 In imposing a sanction after a finding of lawyer misconduct, the Court must first consider the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating and mitigating evidence pursuant to ABA Standard 3.0.

Respondent’s failure to participate in these proceedings leaves the Court with no alternative but to consider only the established facts and rule violations set forth in the complaints as well as the complaining witness statements of Philip Wyers, Jennifer Kelly, Ted Crawford, and David Gunn in evaluating these factors. The Court finds that Respondent violated duties owed to his clients, the public, and other duties owed as a professional.5 Respondent specifically violated his duty to preserve the property of his clients, his duty to diligently perform services on their behalf, his duty to be candid with them during the course of the professional relationship, and his duty abide by the legal rules of substance and procedure which affect the administration of justice. The entries of default established that Respondent knowingly engaged in this conduct and caused actual financial and emotional harm to his clients when he abandoned them and converted their funds.

The Court finds that several aggravating factors exist in this case including a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of his conduct, substantial experience in the practice of law, and indifference to making restitution.6 Due in part to the absence of any contradictory evidence, the Court finds clear and convincing evidence to support each aggravating factor. Respondent failed to participate in these proceedings and therefore presented no evidence in mitigation. However, the People conceded that Respondent has no prior disciplinary record consistent with ABA Standard 9.32(a).

The ABA Standards suggest that disbarment is the presumptive sanction for the most serious misconduct demonstrated by the admitted facts and rule violations in this case.7 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.8 Disbarment is also generally appropriate when a lawyer abandons the practice, knowingly fails to perform services, or engages in a pattern of neglect that results in serious or potentially serious injury to a client.9

Colorado Supreme Court case law applying the ABA Standards also holds that disbarment is the presumptive sanction for conversion of client or third-party funds.10 Knowing conversion or misappropriation of client money "consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking."11 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.12 Significant mitigating factors may overcome the presumption of disbarment, however, Respondent failed to present any in this case.13

V. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. The facts established in the complaint, without explanation or mitigation, reveal the harm Respondent has caused his clients, the public, the legal system, and the profession. He knowingly failed to preserve the property of his clients, failed to diligently perform services on their behalf, failed to be candid with them during the course of the professional relationship, and failed to abide by the legal rules of substance and procedure which affect the administration of justice. Upon consideration of the nature of Respondent’s misconduct, his mental state, the actual and potential harm he caused, and the absence of mitigating factors, the Court concludes that the ABA Standards and Colorado Supreme Court case law both support disbarment in this case.

VI. ORDER

The Court therefore ORDERS:

1. TIMOTHY JOHN MARTIN, Attorney Registration No. 09083, is hereby DISBARRED from the practice of law and his name shall be stricken from the list of attorneys licensed to practice law in the State of Colorado. The disbarment SHALL become effective thirty-one (31) days from the date of this order in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h).

2. Respondent SHALL pay full restitution to his former clients and/or the Attorneys Fund for Client Protection for amounts paid by the fund as a result of this consolidated case. The People may request specific amounts within fifteen (15) days of the date of this order.

3. Respondent SHALL pay the costs of these proceedings. The People shall submit a "Statement of Costs" within fifteen (15) days of the date of this order. Respondent shall have ten (10) days within which to respond.

__________

1. See People v. Richards, 748 P.2d 341, 346 (Colo. 1987).

2. See the People’s complaints in 08PDJ063 and 08PDJ094 for further detailed findings of fact.

3. The Court takes judicial notice of the fact that the Colorado Supreme Court immediately suspended Respondent from the practice of law pursuant to C.R.C.P. 251.8 on July 18, 2008.

4. See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).

5. See ABA Standards 4.0, 5.0, and 7.0.

6. See ABA Standards 9.22(b), (c), (d), (e), (g), (i) and (j).

7. Respondent’s misconduct also implicates ABA Standards 4.5, 4.6, 5.1, and 7.0.

8. See ABA Standard 4.11.

9. See ABA Standard 4.41.

10. See e.g. People v. Linville, 114 P.3d 104 (Colo. 2005) (attorney acting as trustee); People v. Motsenbocker, 926 P.2d 576 (Colo. 1996) (attorney acting as bar association treasurer); and People v. McDowell, 942 P.2d 486 (Colo. 1997) (attorney holding funds for real estate transaction).

11. See People v. Varallo, 913 P.2d 1, 11 (Colo. 1996).

12. Id. at 10-11.

13. See In re Fischer 89 P.3d 817 (Colo. 2004) (finding significant facts in mitigation).

____________

Case No. 07PDJ067

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

ALISON MAYNARD.

June 13, 2008

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

On March 25, 2008, a Hearing Board composed of E. Steven Ezell, and John E. Hayes, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge, held a hearing pursuant to C.R.C.P. 251.18. April M. Seekamp, Office of Attorney Regulation Counsel appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Gregory G. Sapakoff appeared on behalf of Alison Maynard ("Respondent"). The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19.

I. ISSUE

A lawyer who deceives or attempts to deceive a court acts unethically. Respondent mailed a brief to the Supreme Court and intentionally backdated it to make it appear to be timely filed. Thereafter Respondent filed a misleading document in opposition to a motion to dismiss her untimely brief. Before the court took any action on this motion, Respondent admitted her deception. Did Respondent act unethically? If so, what is the appropriate sanction?

After carefully reviewing the evidence and considering the arguments of counsel, the Hearing Board finds clear and convincing evidence that:

  • Respondent violated Colo. RPC 1.3 by failing to file her appellate brief with reasonable promptness.
  • Respondent violated Colo. RPC 3.3(a)(1) by making a materially false statement of fact to the Colorado Supreme Court ("the Court or Supreme Court") when she knowingly and falsely dated her brief and certificate of mailing showing it was timely filed when she knew it was not. She also violated Colo. RPC 3.3 (a)(1) when she filed a motion in opposition to a motion to dismiss her brief as untimely. In her motion, Respondent affirmatively stated to the Court that her brief was timely when she knew it was not.
  • Respondent violated Colo. RPC 8.4(c) by engaging in conduct involving misrepresentation and dishonesty when she intentionally submitted her brief to the Colorado Supreme Court late, affirmatively argued that it was timely, and then later compounded her deceit by providing the Colorado Supreme Court with a misleading document to support her specious claim.

SANCTION IMPOSED:
ATTORNEY SUSPENDED FOR ONE YEAR AND ONE DAY,
ALL BUT SIXTY (60) DAYS STAYED UPON THE
SUCCESSFUL COMPLETION OF A TWO-YEAR PERIOD
OF PROBATION WITH CONDITIONS.

II. PROCEDURAL HISTORY

On October 3, 2007, the People filed a Complaint against Respondent alleging violations of Colo. RPC 1.3, 3.3(a) (1), and 8.4(c), Claims I, II, and III respectively. Respondent filed an Answer to the People’s Complaint on November 1, 2007.

On January 25, 2008, the People filed "Complainant’s Motion for, and Brief in Support of, Judgment on the Pleadings." On February 11, 2008, Respondent filed her "Response in Opposition to Complaint’s Motion for, and Brief in Support of Judgment on the Pleadings." On March 19, 2008, the PDJ denied the People’s Motion for judgment on the pleadings and the case was set for hearing on its merits on March 28, 2008.

III. FINDINGS OF MATERIAL FACT

The following material facts arise from the pleadings, exhibits, and affidavits provided by the parties.1 The Hearing Board finds that the following facts have been established by clear and convincing evidence.

Background

Respondent has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court ("Supreme Court") on May 20, 1987, and is registered upon the official records, Attorney Registration No. 16561. She is therefore subject to the jurisdiction of this court in these disciplinary proceedings.

After graduating from Cornell University in 1966 with a degree in physics, Respondent worked as a geophysicist for two years with an oil company. In 1983, she enrolled in the University of Denver College of Law and graduated in 1986. Following graduation and admission to the bar, Respondent worked in Colorado as a deputy district attorney, an assistant attorney general, and a city attorney. In 1991, she began work as a solo practitioner and now primarily practices water law, land-use law, and general civil litigation. Approximately 20% of her practice deals with appellate law. Many of her clients seek representation in public interest litigation; Respondent performs much of this work pro bono or on a reduced fee basis.

The CPA Litigation

Beginning in 2000, and continuing until November 2006, Respondent represented The Citizens Progressive Alliance ("CPA") against the State of Colorado, the United States of America, and the Ute Tribes of Colorado ("the Tribes").2 In 2002, the United States of America, acting for the benefit of the Tribes in Colorado, petitioned the water court in Durango to amend a Consent Decree regarding the Tribes’ reserved water rights under the Animus-La Plata Project ("ALP"). Respondent, representing CPA, intervened and opposed the proposed amendment.

On behalf of her clients, Respondent raised several arguments in the Water Court, Division 7, including, but not limited to lack of subject matter jurisdiction to amend the consent degree, failure of the proponents of the amendment to demonstrate diligence, and failure to show the reserved water rights at issue would be put to a beneficial use. On November 9, 2006, District Court Judge Lyman ruled against CPA and granted the request to amend the consent decree on behalf of the Tribes.

CPA decided to appeal Judge Lyman’s ruling allowing the amendment to the consent decree of reserve water rights of the Tribes. Respondent, on behalf of CPA, filed a notice of appeal of Judge Lyman’s ruling with the Supreme Court, Case No. 06SA388, on December 26, 2006.

Requests for Extensions of Time

Respondent’s opening brief was originally due on May 8, 2007. However, on May 8, 2007, Respondent filed a "Motion for One-Week Extension." The Supreme Court granted her request and set a new due date of May 15, 2007. Thereafter, Respondent made four additional requests to extend the filing date of her brief and the Supreme Court granted each request.3 However, on March 25, 2008, the Supreme Court entered an order with the following written admonition, "NO FURTHER EXTENSIONS." With this final extension, the Supreme Court gave Respondent until June 19, 2007 to complete her brief.

Although the Supreme Court admonished her that no further extensions would be granted, Respondent failed to complete the brief by June 19, 2007. From March 25, 2007 until June 19, 2007, a period of 86 days, Respondent worked on CPA’s brief and other client matters, but admittedly gave no particular priority to CPA’s brief.

With the final deadline looming, Respondent realized that she would be unable to complete her brief on time. While she had worked approximately forty hours on the brief and had completed a draft at that point, she was dissatisfied with its quality. Aside from the task of completing the written brief, Respondent testified that she had to contend with a disorganized and voluminous record from the water court in the CPA appeal. Despite her concerns about completing the brief by June 19, 2007, Respondent failed to advise the Supreme Court of her inability to complete the brief in a timely manner. Instead of filing the draft she completed at that point, she contemplated a means by which she could submit it after the Court’s deadline.

Untimely Filing of Brief

Following the final deadline, June 19, 2007, Respondent worked approximately 36 additional hours on the brief and filed it with the Supreme Court on June 23, 2008.4 However, in order to make the brief appear to be timely filed, Respondent placed a stamp she purchased on June 19, 2007 on the envelope containing her brief and mailed it to the Supreme Court. The stamp, which she purchased from an automated machine, bore the date of June 19, 2007. She kept the receipt and later supplied it to the Supreme Court as proof that she had in fact mailed and filed her brief on June 19, 2007 as the Court ordered.

In addition, Respondent certified on the final page of her brief that she had mailed it on June 19, 2007. In these proceedings, Respondent testified that she rationalized her duplicity by "compartmentalizing" in her mind her deceitfulness and focused solely on the goal of providing a quality brief on behalf of CPA. Nevertheless, Respondent knew her conduct in deceiving the Court was unethical.

Motion to Dismiss

On June 22, 2007, the United States of America and other parties to the appeal ("appellees") filed a motion to dismiss CPA’s appeal for failure to file an opening brief and for failure to prosecute the appeal.5 In their motion, the appellees stated that as of June 22, 2007, Respondent had not filed her brief. They therefore requested that her appeal be dismissed for failure to prosecute.

On or about June 25, 2007, the Supreme Court clerk received and date-stamped Respondent’s "Response to Motion to Dismiss Appeal."6 In response to her opponent’s motion to dismiss the appeal, Respondent made the following written misrepresentations and false statements to the Supreme Court in an effort to demonstrate that she had indeed filed her brief on June 19, 2000:

  • "I mailed the opening brief to the Court and obtained a postmark on the due date, June 19, 2007. Rule 25(a)(1), C.A.R., says, ‘[B]riefs shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting delivery, is utilized.’ The briefs were sent by Priority Mail. See the receipt attached as Exhibit A. (Emphasis added).
  • "I admit I did not effect service on the parties until the evening of June 20, so am herewith filing an amended certificate of service. I consent in advance to the Appellee’s taking three extra days in its response, due to the delay."
  • "WHEREFORE, the brief having been timely filed, according to the rules, Appellee’s motion to dismiss appeal must be denied."

On June 25, 2007, the Supreme Court received and stamped Respondent’s Amended Certificate of Service.7 In her amended certificate of service, Respondent asserted that she had mailed her brief to the parties on June 20, and not on June 19 as she had originally alleged. In fact, Respondent did not obtain service of the opening brief on the parties on June 19 or 20, 2007, and her statement to that effect was knowingly and intentionally false.

Respondent’s Admission

Respondent eventually contacted Philip Doe, the president of CPA, and notified him that she had filed CPA’s appellate brief with the Supreme Court by misrepresenting to them that her brief was timely filed when it was not. Respondent thereafter decided to advise the Supreme Court of her subterfuge. Respondent first called the Supreme Court to find out if her brief had been accepted. Respondent testified that when the clerk of the Supreme Court told her the brief had been accepted; Respondent admitted to the clerk she had not timely filed the brief.

On June 28, 2007, immediately following her conversation with the clerk, Respondent filed an "Admission; and Motion for Last Extension, or Withdrawal of Brief" with the Supreme Court. In her motion, Respondent admitted that she had made "misrepresentations" to the Supreme Court, because she had felt "boxed in."8 She also advised the Supreme Court that researching the record in CPA’s appeal had been a "nightmare." Respondent went on to state, "Should the Court not forgive this offense, and grant the extension, I withdraw the brief."9 In addition to requesting an additional extension, Respondent also advised the Supreme Court, "I also commit to obtain counseling so that I can overcome this problem I have of not getting my work done on time."10

By order dated July 2, 2007, the Supreme Court granted appellee’s motion to dismiss CPA’s appeal.11

Character Witnesses

Respondent called three witnesses who generally testified to her skill and resolve as an attorney, loyalty to her clients, good character, and honesty. The first witness, Chairman of CPA, Phillip Doe, thought Respondent filed a "masterful" brief on behalf of CPA, albeit late. He holds Respondent in the "highest regard." Mr. Doe testified that Respondent worked closely with him and the diverse CPA board on this litigation. Despite his knowledge that Respondent misrepresented matters to the Court, Mr. Doe believes Respondent is a "terrific citizen."

Paul Upsons is an attorney who worked as Respondent’s associate approximately six years ago. Mr. Upsons found Respondent to be a skilled writer who was diligent and dedicated to her clients. He never experienced problems with deadlines while working with Respondent and found his experience with her to be positive. Recognizing the allegations against her in this case, he still believes Respondent is "generally" of very good character.

Ann Bonnell testified as to her favorable impression of Respondent’s work in the Castlewood State Park litigation, in which Respondent represented clients in a pro bono capacity. As a citizen, Ms. Bonnell felt local government acted "illegally" in developing this property. Ms. Bonnell opined that it is hard to find a lawyer who will do this kind of work. As a result of approximately 400 hours pro bono work on the part of Respondent, Ms. Bonnell testified that the South Suburban Parks established a wildlife corridor and developers agreed to provide $50,000.00 for protection of backdrop views by granting an open face mine lease for 99 years. Ms. Bonnell found Respondent to be extremely honest and straightforward. Ms. Bonnell’s experience with Respondent renewed her faith in lawyers. She testified that even honest people make mistakes and the most important thing is that Respondent corrected her mistake.

Testimony from Respondent

Respondent views her work as an attorney as a profession and not as a business. Her primary interest is in "righting wrongs." Therefore, she often charges low fees or provides pro bono services. In one such pro bono case, she exposed wrongful acts of city officials in Park County. Litigation in the CPA matter lasted from 2001 to 2006. In this litigation, CPA still owes her $23,000.00, which was billed at $40.00/hour. She did not charge for the appeal, a matter she felt presented "strong issues" for CPA.

Even though CPA lost their right to appeal due to the actions of Respondent, she still represents CPA in other litigation. While working on the diligence and beneficial use issues in the Animus-La Plata Project ("ALP"), she also performed work on a time-consuming appeal pending on the "reserve" issue in that case.12 Respondent testified that she took on more work than she should have during this time.

After attempting to convince the Supreme Court that she had timely filed her brief, Respondent spent a sleepless night and "didn’t like living with [herself]." Respondent testified that she felt like a "hypocrite" because she had previously alleged that the judge in the case below had been deceptive. Respondent also testified that she recognizes she breached her duty of honesty and candor to the Supreme Court.

IV. CONCLUSIONS OF LAW—SUBSTANTIVE ALLEGATIONS

The Hearing Board makes the following legal conclusions based upon the clear and convincing evidence.

Lack of Diligence and Neglect of a Legal Matter
under Colo. RPC 1.3

Colo. RPC 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client, and that a lawyer shall not neglect a legal matter entrusted to the lawyer. The People allege that Respondent neglected a client matter and violated Colo. RPC 1.3 when she failed to timely file the opening brief with the Supreme Court. Respondent contends that she was unable, through reasonable efforts, to complete the opening brief on time.

It is undisputed that Respondent failed to file her opening brief on or before the final deadline of June 19, 2007. The clear and convincing evidence is that Respondent failed to act with diligence after requesting numerous extensions in which to file her brief. Even though Respondent claims to have logged a total of 98.5 hours on CPA’s brief, she testified that she logged approximately 36 of those hours after the deadline for the filing of the brief.

Furthermore, the Supreme Court gave Respondent an additional 86 days to complete the brief following the last extension. Had Respondent worked one hour a day on the brief during this time frame, she would have been able to put in the additional 36 hours it took her to complete the brief. However, Respondent failed to prioritize the completion of the brief during these 86 additional days.

Failing to complete the brief during this timeframe, given the multiple extensions Respondent requested and received, demonstrates not only a lack of diligence as contemplated in Colo. RPC 1.3, but it also her neglect of CPA’s appeal.

We hasten to add that this conduct demonstrates more than simply failing to meet a deadline. Respondent failed to complete CPA’s brief after obtaining numerous requests for extensions. This conduct not only shows a lack of diligence, but also neglect of a client matter.

False Statement under Colo. RPC 3.3

Colo. RPC 3.3(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal. Respondent argues that the misrepresentations and statements she made in her pleadings to the Supreme Court were not material because she withdrew them before the Supreme Court acted upon them. Therefore, her misstatements were not material because the Court took no action as a result of them.13 First of all, the Hearing Board specifically finds that the Supreme Court, acting through the clerk, accepted her brief as timely filed, based upon a misleading postmark and certification Respondent provided the Court.

Secondly, the Hearing Board further finds that even though Respondent disclosed her scheme to the Supreme Court before it acted upon the merits of her brief or the motion to dismiss, her misrepresentations nevertheless had the potential to mislead the Supreme Court on the matter in controversy, the timeliness of Respondent’s brief. See U.S. v. Gaudin, 515 U.S. 506, 509 (1995).

We therefore reject Respondent’s definition of materiality as that term is used in the Colorado Rules of Professional Conduct. Lawyers must act with the candor and honesty as officers of the court even when they perceive justification for doing so. See In re Pautler, 47 P.3d 1175, 1176 (Colo. 2002).

In this case, nothing justified Respondent’s deception except her professed need to write the best brief possible. Even though Respondent may have viewed her conduct as zealous representation, it was not. First, zealous representation as that term is used in the Colo. RPC starts with diligent preparation of the client matter. Second, zealous representation of a client is always within legal and ethical constraints. The clear and convincing evidence is that Respondent neither acted with diligence nor within ethical and legal rules our Court recognizes.

Nevertheless, we also find that Respondent’s act of coming forward to remedy her misconduct by self-reporting is both commendable and substantial evidence of mitigation. It does not, however, immunize her from violation of Colo. RPC 3.3(a)(1).

Dishonesty under Colo. RPC 8.4(c)

Colo. RPC 8.4(c) states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Respondent consciously misrepresented the date she filed, signed, served, and mailed her opening brief. In addition to her initial misrepresentation, Respondent compounded her dishonesty when tendered a receipt dated June 19, 2007, in a further attempt to support her misrepresentations to the Court and opposing counsel. These statements and actions were dishonest, deceitful, and consciously misrepresented the truth. Thus, the Hearing Board finds clear and convincing evidence Respondent violated Colo. RPC 8.4(c).

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

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

ABA Standards 6.11 deals with duties a lawyer owes to the legal system. It states in the absence of aggravating or mitigating circumstances and application of Standard 3.0:

Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

ABA Standards 6.12 states as follows:

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.

ABA Standards 6.13 states as follows:

Reprimand is generally appropriate when a lawyer is negligent either in either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the proceeding.

We find that ABA Standard 6.11 applies.

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 primarily violated duties to her client (CPA), the Supreme Court, and opposing counsel. The Supreme Court expects lawyers to act with candor. Even though CPA, through its chairman, continues to hold Respondent in high regard, Respondent violated her duty to CPA by failing to act in a reasonably diligent manner and timely file CPA’s opening brief. Through her misguided zeal, Respondent’s client lost its right to appeal.

Respondent also violated her duty to the legal profession. When the public witnesses lawyers acting dishonestly, they hold the profession in disrepute and consequently the esteem of the profession suffers.

B. THE LAWYER’S MENTAL STATE

The Hearing Board finds that Respondent acted with negligence and without reasonable diligence when she failed to timely file her brief after receiving five extensions on the same.14

Respondent acted knowingly and intentionally when she dishonestly certified that she had filed her brief in a timely manner and later when she provided a misleading document to the Supreme Court to support her position. Respondent knew she had not filed her brief on June 19, 2007, and acted intentionally; that is with the conscious object of trying to convince the Court otherwise. See ABA Standards 4.11 and Definitions ("Knowledge and with intent").15

C. THE ACTUAL OR POTENTIAL INJURY

The Hearing Board finds Respondent caused serious potential and actual injury to her client, CPA, as well as the Supreme Court when she deceived and attempted to deceive the Supreme Court. Potentially, Respondent’s misrepresentation could have resulted in extensive appellate litigation founded on the false statement that her brief was timely filed. Equally, important is the fact that Respondent’s client, CPA, lost their right to an appeal based upon her neglect and misconduct in an effort to deceive the Supreme Court. Finally, Respondent’s conduct caused serious injury to the integrity of our judicial system.

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 and calculating manner. Had Respondent’s actions been caused or affected by an illness or a mental disorder, we might find otherwise. Instead, the evidence shows Respondent planned to deceive the Supreme Court and that she took substantial steps to carry her scheme to its conclusion before disclosing her subterfuge.

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

Respondent has practiced law for over twenty years in Colorado. During this time, she has worked as a deputy district attorney, an assistant attorney general, and in private practice. She is experienced in trial and appellate practice. While Respondent testified that she practices with integrity, her conduct here belies this statement.

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)

The Hearing Board finds Respondent’s effort to rectify the consequences of her misconduct a substantial mitigating factor. While Respondent’s conduct in deceiving the Supreme Court was egregious, her admission of misconduct to the Court was laudable. In spite of Respondent’s deliberate misconduct, she ultimately acted with integrity in disclosing her scheme.

Full and Free Disclosure to Disciplinary Board and
Cooperative Attitude Toward Proceedings—9.32(e)

Although Respondent’s misrepresentations to the Supreme Court were calculated to deceive, her conduct in these proceedings has been forthright and cooperative in every respect.

Character and Reputation—9.32(g)

As evidenced by her three witnesses, Respondent’s reputation and character are first-rate. There is no dispute about her commitment to the community she serves. She does much of her work pro bono or at a reduced fee and is viewed by her clients as a good, honest, and hard working lawyer.

Remorse—9.32(l)

Respondent is truly remorseful for her conduct and her demeanor in Court strongly suggests she understands the wrongfulness of her misconduct.

Analysis Under Case Law and ABA Standards

In In re Cardwell, 50 P.3d 820, 823 (Colo. 2000), the Supreme Court determined that ABA Standards 5.11 and 6.11, which both presume disbarment, were the appropriate standards to use when a lawyer knowingly made a false statement to the court in violation of Colo. RPC 3.3. The Supreme Court also found that Cardwell acted dishonestly in violation of Colo. RPC 8.4(c). "While assisting his client to plead guilty in a driving under the influence (DUI) case, Cardwell failed to disclose to the prosecutor and to the court that his client had previously been convicted of driving while ability impaired (DWAI)." In re Cardwell, 50 P.3d 897, 898 (Colo.2002).

In commenting on Cardwell’s misrepresentations, the Supreme Court noted that even though his misrepresentations to the court were influenced by his zeal to protect his client’s interests and in the heat of the moment, these circumstances did not excuse Caldwell’s conduct. Noting that disbarment would normally be appropriate under these circumstances, the Supreme Court suspended Cardwell rather than disbarring him after considering the mitigating and aggravating factors. The People argue that the Hearing Board should follow the Court’s decision in Cardwell and suspend Respondent. We agree.

Respondent argues that the Hearing Board should be guided by the Supreme Court’s decision in People v Small, 962 P.2d 258 (Colo. 1998) rather than Cardwell. There, the Supreme Court found a public censure appropriate. Small had been charged with a violation of Colo. RPC 3.3(a)(1) after he testified falsely in a civil action. In the disciplinary proceedings, both parties stipulated Small caused damage to the legal system by misrepresenting under oath in a civil case that he had insurance at the time he was involved in an auto accident. In deciding that a public censure was appropriate, the Supreme Court found that Small’s misstatement did not go to a dispositive or material fact.

The Hearing Board finds that Small is inapposite. In short, Respondent’s case is substantially more egregious. Unlike Small, Respondent planned to deceive the Supreme Court for nearly two weeks (June 19 through June 28) on a matter that was relevant and dispositive to the Court’s decision on whether Respondent’s brief should be accepted or dismissed.

While we find Respondent’s deception to be more egregious than that of Small, we also find that substantial weight should be given to Respondent’s timely effort to rectify the consequences of her misconduct. Had it not been for Respondent’s remedial efforts, disbarment would have been the presumed sanction. See In the Matter of Fischer, 89 P3d 817 (Colo. 2004) and People v. Nulan, 820 P.2d 1117 (Colo. 1991).

VI. CONCLUSION

One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them; Respondent’s conduct posed such a danger. The clear and convincing facts reveal Respondent violated Colo. RPC 8.4(c), 3.3 and 1.3 when she failed to diligently complete CPA’s brief and lied to the Court in an effort to buy more time to complete it. Absent extraordinary factors in mitigation, the ABA Standards and Colorado Supreme Court case law applying the ABA Standards both support disbarment or a lengthy suspension. However, we are convinced that the mitigation in this case warrants less than a lengthy suspension as was imposed in Cardwell. Our decision on the appropriate sanction is based substantially upon Respondent’s admirable action in self-reporting her misconduct. This factor alone distinguishes her actions from the decision in Cardwell.

VII. ORDER

The Hearing Board therefore ORDERS:

1. ALISON MAYNARD, Attorney Registration No. 16561 is hereby SUSPENDED from the practice of law for a period of ONE YEAR AND ONE DAY, ALL BUT SIXTY (60) DAYS STAYED, upon the successful completion of a two-year period of probation with conditions. Respondent shall not engage in any further violation of the Colorado Rules of Professional Conduct. As a further condition of probation, Respondent shall attend and successfully complete Ethics School sponsored by the People. The suspension shall commence thirty-one (31) days from the date of this order.

2. ALISON MAYNARD 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. These findings are also based upon the testimony presented in the hearing, the party’s stipulated exhibits 1-16 and Respondent’s exhibits A, B, and C.

2. The proponents of the amendment included the Southwestern Water Conservation District, the State of Colorado, the United States of America, the Ute Indian Tribe and the Ute Mountain Ute Tribe.

3. See Stipulated Exhibits 10-18.

4. Stipulated Exhibit 2, Respondent’s Opening Brief.

5. Stipulated Exhibit 1, C-71.

6. Stipulated Exhibit 3, C-13. The PDJ notes, however, that in its findings on the judgment on the pleadings, the date of this filing was June 23, 2007. The Supreme Court received and stamped this pleading on June 25, 2007. The pleading is dated June 23, 2007.

7. Stipulated Exhibit 4, C-17. Respondent dated this motion June 23, 2007.

8. Stipulated Exhibit 5, C-07.

9. Stipulated Exhibit 5, C-11

10. Respondent testified that her statement referred not to psychological counseling but to counseling with a practice monitor who could help her meet deadlines.

11. Stipulated Exhibit 7, C-02

12. Respondent’s Exhibit C.

13. Respondent cites several cases in her hearing brief dealing with materiality in the civil context. We find that they are inapplicable to disciplinary matters where the focus is on lawyer conduct not solely on the ultimate outcome.

14. "Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. ABA Standards, Definitions.

15. "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. "Intent is the conscious objective or purpose to accomplish a particular result." ABA Standards, Definitions.

____________

Case No. 07PDJ031

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

DEBRA ANN SWEETMAN.

November 28, 2008

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

On June 10, 2008, a Hearing Board composed of John Hayes and John Baker, 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. April M. Seekamp appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Debra Ann Sweetman ("Respondent") did not appear nor did counsel appear on her behalf. The Hearing Board now issues the following "Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19."

I. ISSUE AND SUMMARY

Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury. Suspension is generally appropriate when a lawyer engages in a pattern of neglect and causes injury or potential injury. Respondent, in four separate client matters, neglected their cases, failed to adequately communicate with them, and knowingly converted funds belonging to them. Is disbarment the appropriate sanction in the absence of evidence in mitigation?

Respondent initially failed to participate in these proceedings, later filed an answer after the PDJ agreed to set aside a default judgment, and then stopped participating in these proceedings. Respondent has been placed on disability inactive status. Nevertheless, the Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 1.3, Colo. RPC 1.4(a), Colo. RPC 1.7(a), Colo. RPC 1.16(d), and Colo. RPC 8.4(c). Without sufficient evidence in mitigation, the appropriate discipline for knowing conversion of client funds is disbarment.

SANCTION IMPOSED: ATTORNEY DISBARRED

II. PROCEDURAL HISTORY AND BACKGROUND

On May 18, 2007, the People filed a Complaint that contained sixteen separate claims related to four separate client matters. Respondent initially failed to participate in these proceedings and the People filed a motion for default on July 26, 2007. On August 28, 2007, the PDJ granted the People’s motion for default and scheduled the matter for a Sanctions Hearing to be held on December 13, 2007.

On December 10, 2007, Respondent filed a motion to set aside the order of default. The PDJ held a Status Conference and granted the motion on December 11, 2007. Respondent thereafter filed her answer to the complaint on December 31, 2007, and an amended answer on January 14, 2008.

On January 15, 2008, the PDJ held an At-Issue Conference. Respondent advised the PDJ that she would need approximately six weeks to recover from an upcoming surgery scheduled for March 19, 2008. Accordingly, the PDJ scheduled the case for a three-day Hearing to commence on June 10, 2008.

On March 31, 2008, the People filed a request for sanctions after Respondent failed to attend her deposition scheduled before her surgery. The PDJ granted the People’s motion for sanctions on May 8, 2008. On June 10, 2008, the Hearing Board heard testimony and argument from the People. Respondent failed to appear for the Hearing.

III. FINDINGS OF MATERIAL FACT

The Hearing Board finds the following facts by clear and convincing evidence.

Respondent admitted in her answer that she took and subscribed the Oath of Admission and gained admission to the Bar on November 1, 1995. She is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 15265, and is therefore subject to the jurisdiction of the PDJ in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent’s registered business address is 417 West Mountain Avenue, Fort Collins, Colorado 80521.

Gibson Statement1

James "Hoot" Gibson, a sales marketing director, hired Respondent on or about July 19, 2005. Mr. Gibson hired Respondent to contact his creditors in order to settle his debts and/or establish payment plans to pay off his creditors and to represent him in a pending collection matter in Eagle County, Colorado. Respondent filed an answer on Mr. Gibson’s behalf in Continental Collection Agency v. Hoot Gibson, on August 3, 2005.

Mr. Gibson signed a written fee agreement that provided for an hourly rate of $170.00 and paid Respondent $300.00 in cash toward an $850.00 retainer fee.2 He subsequently attempted to contact Respondent by telephone several times regarding his case, but she did not return his calls. On October 12, 2005, Mr. Gibson sent Respondent an e-mail message seeking advice from her after he received a call from "Account Brokers" regarding one of his debts.3 Mr. Gibson sent this e-mail message to the wrong address.

On October 13, 2005, Mr. Gibson sent Respondent an e-mail message, this time to the correct e-mail address, attaching his earlier e-mail message, and stating that he was still waiting to hear from her.4 On October 14, 2005, Mr. Gibson called Respondent’s office and left a message with her staff that he intended to file a grievance against her unless she responded to his inquires.

On October 14, 2005, Respondent sent Mr. Gibson an e-mail message and terminated the representation.5 She disputed his claims that he had repeatedly contacted her without receiving a response. Nevertheless, Respondent agreed to provide an accounting of her services and refund any remaining retainer fees. Respondent failed to provide such an accounting or return any unearned fees despite the fact Mr. Gibson sent her three additional e-mail messages expressing his concern about her failure to act on his behalf and failure to provide an accounting.6

Finally, Mr. Gibson stated to the Hearing Board that he had a good view of the legal profession prior to his experience with Respondent. He believes that his credit rating suffered as a result of Respondent’s failure to act on his behalf, but also acknowledged that his credit had been poor before hiring her.

Boyce Matter

Holly Ann Boyce, a licensed hair stylist, hired Respondent to complete a "simple" Chapter 7 bankruptcy for her on March 4, 2005.7 The fee agreement called for a flat fee of $600.00 and a $200.00 filing fee. Ms. Boyce expressed a need to quickly address her financial troubles due to the pending foreclosure of her home and pressure from other unpaid creditors. She understood Respondent would file the bankruptcy within the week upon receiving necessary documentation from Ms. Boyce.

Ms. Boyce immediately provided Respondent with the paperwork necessary to file the bankruptcy and paid her $800.00, which she borrowed from her father. However, Ms. Boyce continued to receive harassing phone calls from creditors because Respondent had not filed the bankruptcy as of mid-April. She discovered this fact after she contacted the bankruptcy trustee who notified her that Respondent had not filed the case.

Ms. Boyce attempted to contact Respondent on numerous occasions to discuss her case. Respondent finally filed the bankruptcy petition in mid-May 2005, but the petition was incomplete. The bankruptcy court issued a standard notice of deficiency because Respondent had failed to file the required statement of financial affairs and/or schedules. Ms. Boyce received the notice of deficiency, called Respondent’s office, and voiced her concern to a member of Respondent’s staff. Respondent returned the call from Ms. Boyce and "fired" her. Respondent told Ms. Boyce that she no longer trusted Ms. Boyce because Ms. Boyce had contacted the bankruptcy court behind her back.

Respondent continued to file pleadings before the bankruptcy court granted her motion to withdraw. On or about July 1, 2005, Ms. Boyce sent a letter to Respondent and requested that she cease all work on her case and return all of her documents by July 7, 2005.8 Respondent initially "got nasty" and refused to return Ms. Boyce’s paperwork, but relented when new counsel contacted Respondent.

Ms. Boyce contacted the bankruptcy trustee who advised her to consult with another lawyer, Robert Rand. Mr. Rand agreed to finish the bankruptcy case for $500.00. He filed an amended petition and Ms. Boyce received a discharge on September 28, 2005.

Ms. Boyce suffered significant stress when Respondent failed to adequately prosecute her bankruptcy case. Respondent never refunded unearned fees to Ms. Boyce. Ms. Boyce also had to pay additional attorney fees in the amount of $500.00 to complete the bankruptcy. In the meantime, Ms. Boyce had to deal with creditors and a troublesome divorce while working, attending community college, and caring for a five year-old daughter. This experience has caused Ms. Boyce to be "leery" of lawyers, but she also acknowledges the good work the bankruptcy trustee and her new lawyer have done on her behalf.

Dominguez Matter

Amy Dominguez is a high school graduate and a single mother with four young boys. She hired Respondent to complete a Chapter 7 bankruptcy for her on January 27, 2005.9 The fee agreement called for a flat fee of $600.00 and a $209.00 filing fee. Ms. Dominguez paid Respondent $600.00, which she borrowed from her mother, in February 2005.10 She agreed to pay the filing fee at their next meeting.

Ms. Dominguez expressed a need to quickly address her financial troubles due in part to pending legal actions against her husband whom she was in the process of divorcing.11 She had already lost her car and home, her wages had been garnished, and she asked Respondent to help her avoid losing "everything else." Ms. Dominguez provided Respondent with all of her original documents. She met with Respondent a couple of times, but later canceled a meeting to pay the $209.00 filing fee when her son became ill. Thereafter, Ms. Dominguez was unable to reach Respondent even though she called her office over a dozen times. Respondent failed to return any of Ms. Dominguez’s calls.

On or about November 12, 2006, after filing a complaint with the People, Ms. Dominguez sent Respondent a certified letter documenting her numerous attempts to reach Respondent, her displeasure with Respondent’s failure to take any action on her behalf, and demanding her file and a refund of fees.12 Respondent failed to answer Ms. Dominguez’s letter, refund unearned fees, or return her original documents.

Respondent never filed Ms. Dominguez’s bankruptcy petition. Ms. Dominguez ultimately lost her job in part because of the time she missed from work while trying to deal with her financial problems on her own. Her creditors are still seeking payment. She lost her home and now lives with her parents. Although Ms. Dominguez is working, she expects that her paychecks will again be garnished. She also contacted legal aid for assistance with her bankruptcy, but they could not provide assistance because counsel still represented her.

Ms. Dominguez distrusts lawyers because of this experience. As a result, she has not sought additional legal counsel for her ongoing financial issues.

Southcotte Matter

Susan Southcotte is a high school graduate employed by Wal-Mart. She hired Respondent for a dissolution matter, on June 8, 2005.13 Shortly thereafter, she paid Respondent a $1,899.00 retainer fee, which Ms. Southcotte understood would fully cover the cost of the uncontested dissolution matter.14

Respondent originally agreed to only represent Ms. Southcotte in the dissolution matter. However, on or about June 22, 2005, Respondent and her husband, Stoney Southcotte, both signed a second fee agreement for the purpose of performing and "amicable dissolution."15 This agreement also quoted a retainer fee of $1,899.00. Respondent advised the Southcottes that there would probably be enough retainer funds left over to cover fees for Respondent to represent Mr. Southcotte in a bankruptcy case. Thereafter, Mr. Southcotte signed a fee agreement with Respondent to file a Chapter 7 Bankruptcy for a flat fee of $600.00.16 The Southcottes only provided the original $1,899.00 retainer fee and not any additional funds to Respondent.

Following their meeting with Respondent on June 22, 2005, Ms. Southcotte discovered Respondent had not filed the petition in the dissolution matter. Ms. Southcotte made several appointments to meet with Respondent, but Respondent missed approximately six appointments with the Southcottes. Respondent’s secretary once advised Ms. Southcotte that Respondent missed a meeting because her mother needed care. In another attempt to reach Respondent, Ms. Southcotte went to Respondent’s office and left a note on her door when she found no one present. The note detailed Ms. Southcotte’s numerous efforts to contact Respondent about her case.17

After Respondent failed to respond to her, Ms. Southcotte filed her own pro se dissolution petition.18 She also sent Respondent a certified letter, terminated her services, and requested a full refund on or about August 4, 2005.19 Ms. Southcotte later received a letter dated July 27, 2005, in which Respondent explained that she had tried to file the petition, but that the clerk’s office did not have it. She also thanked Ms. Southcotte for "rescheduling" her appointment and referenced a settlement agreement, which Respondent said she would send to Ms. Southcotte after returning to her office.20 Ms. Southcotte testified that she received this letter after sending her certified letter to Respondent.

IV. CONCLUSIONS OF LAW

Neglect and Failure to Communicate—
Colo. RPC 1.3 and Colo. RPC 1.4

Colo. RPC 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client and the lawyer shall not neglect a legal matter entrusted to the lawyer. Colo. RPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

The Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 1.3 and Colo. RPC 1.4(a) in the Boyce, Dominguez, and Southcotte matters. She neglected the Boyce matter by failing to promptly file the bankruptcy petition. Respondent neglected the Dominguez matter by failing to prepare and file the bankruptcy petition. Finally, she neglected the Southcotte matter by failing to file the dissolution of marriage petition. In each of these client matters, Respondent failed to communicate with her clients by failing to respond to their requests for information concerning their cases.

Conflict of Interest—Colo. RPC 1.7(a)

Colo. RPC 1.7(a) provides that a lawyer shall not represent a client if the representation of that client may be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client, and each client consents after consultation.

The Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 1.7(a) in the Southcotte matter. Respondent agreed to represent the Southcottes in their dissolution matter and also represent Stoney Southcotte in his bankruptcy matter. However, Respondent failed to advise the Southcottes of the potential conflicts and failed to obtain their consent before representing them in both these matters.

Protecting Client’s Interests Upon Termination—
Colo. RPC 1.16(d)

Colo. RPC 1.16(d) provides that upon the termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client and surrendering papers and property to which the client is entitled.

The Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 1.16(d) in the Dominguez and Southcotte matters. Respondent failed to return Ms. Dominguez’s documents and failed to return any portion of the fees in the Dominguez or Southcotte matters.

Knowing Conversion—Colo. RPC 8.4(c)

Colo. RPC 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, deceit, misrepresentation or fraud.

The Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 8.4(c) in the Dominguez and Southcotte matters. Respondent accepted $600.00 in the Dominguez matter and thereafter failed to prepare and file bankruptcy pleadings. Thus, Ms. Dominguez received no benefit from any work completed by Respondent. Nevertheless, Respondent failed to return these unearned funds despite the fact that Ms. Dominguez requested them.

Similarly, in the Southcotte matter, although Respondent may have prepared documents, she never filed them. Thus, the Southcottes also received no benefit from any work completed by Respondent. Again, Respondent failed to return these unearned funds despite the fact that Ms. Southcotte requested them.

In each of these client matters, Respondent failed to return funds, which she knows belong to her clients and which she knows they have not authorized her to exercise dominion over.

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. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).

Analysis Under the ABA Standards

The Hearing Board considered the following standards in addressing the appropriate sanction in this case. ABA Standard 4.11 provides that disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. ABA Standard 4.42(b) provides that suspension is generally appropriate when a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

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 that Respondent primarily violated duties owed to her clients. She neglected her duty to act with diligence, failed to adequately communicate with her clients, and knowingly converted their funds. These duties arise out of the nature of the basic relationship between the lawyer and the client. She also knowingly converted their funds.

In addition to violating duties owed to her clients, Respondent’s conduct breaches the public and professional trust in lawyers. See In re DeRose, 55 P.3d 126, 131 (Colo. 2002) (paraphrasing In re Paulter, 47 P.3d 1175, 1178 (Colo. 2002)).

B. THE LAWYER’S MENTAL STATE

The Hearing Board finds that Respondent acted knowingly when she converted funds belonging to her clients.21 Respondent also acted with awareness when she neglected client matters over several months.

C. THE ACTUAL OR POTENTIAL INJURY

The Hearing Board finds that Respondent caused serious emotional and financial injury to her clients when she neglected their matters, failed to adequately communicate with them, and knowingly converted their funds. Each of these former clients testified that their experiences with Respondent have left them leery of the legal profession.

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. Aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline imposed. ABA Standard 9.21.

Dishonest or Selfish Motive—9.22(b)

Respondent knowingly converted funds from her clients and made no effort to return these funds. This conduct demonstrates a dishonest and selfish motive.

Pattern of Misconduct/Multiple Offenses—9.22(c) & (d)

Respondent engaged in a pattern of misconduct and multiple offenses when she violated one or more of the following rules of professional conduct, Colo. RPC 1.3, 1.4(a), 1.7(a), 1.15(b), 1.16(d), and 8.4(c), in the Boyce, Dominguez and Southcotte matters.

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

Respondent failed to participate in these proceedings and failed to acknowledge that she engaged in any wrongdoing against her former clients.

Vulnerability of Victims—9.22(h)

Ms. Dominquez, Ms. Southcotte, and Ms. Boyce were all vulnerable clients who desperately needed legal assistance from Respondent at the time they hired her. Respondent knew their plight and still neglected their matters and failed to adequately communicate with them. When these clients attempted to find out why she had failed to perform the work she had agreed to complete, Respondent simply stepped away from her responsibilities and left her clients to deal with their legal matters on their own. Each of Respondent’s clients, high school graduates, were experiencing emotional trauma at the time they placed their trust in Respondent.

Substantial Experience with the Law—9.22(i)

Respondent was admitted to the Colorado Bar in 1985. Absent evidence to the contrary, the Hearing Board therefore finds Respondent has substantial experience with the law.

Indifference to Making Restitution—9.22(j)

Respondent failed to make any effort to return money belonging to her clients.

2. MATTERS IN MITIGATION, ABA STANDARD 9.3

The Hearing Board considered evidence of the following mitigating circumstances in deciding what sanction to impose. Mitigating circumstances are any considerations, or factors that may justify a reduction in the degree of discipline imposed. ABA Standard 9.31.

Absence of a Prior Disciplinary Record—9.32(a)

Respondent received her license to practice law in the State of Colorado November 1, 1995 and has no prior disciplinary record.

Personal or Emotional Problems—9.32(c)

Although Respondent failed to present any evidence to the Hearing Board related to personal or emotional problems, the PDJ takes notice of the fact that he transferred Respondent to disability inactive status on April 10, 2007.22 While this circumstance falls short of proving Respondent suffered from a mental disability at the time of the events presented in this case, this undisputed fact may shed light on Respondent’s misconduct. See People v. Lujan, 890 P.2d 109-112 (Colo. 1995) and ABA Standard 9.32(h).

Analysis Under Case Law23

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. Furthermore, the ABA Standard 4.1 states disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to the client.

The Colorado Supreme Court has indicated that lawyers are "almost invariably disbarred" for knowing misappropriation of client funds. Id. at 11; 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 Thompson, 991 P.2d at 823; 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 when the lawyer has no disciplinary history, has cooperated in the investigation, and is making restitution).

Here, the clear and convincing evidence demonstrates Respondent knowingly converted funds as charged in the complaint and engaged in a pattern of neglect in client matters and caused serious injury to her clients. Generally, these rule violations would call for disbarment and suspension, respectively.

However, the presumption of disbarment under the ABA Standards does not always apply. Each case is unique and calls for an analysis based upon more than the presumption alone. The Colorado Supreme Court has cautioned Hearing Boards to carefully weigh any mitigating factors that might overcome what might otherwise be the presumed sanction of disbarment. In re Fischer, 89 P.3d 817 (Colo. 2004).

Unlike Fischer, Respondent has not genuinely acknowledged responsibility for her ethical violations, a factor the Colorado Supreme Court found to be the "foremost" among the numerous mitigating factors warranting a suspension of a year and a day rather than disbarment. Furthermore, Respondent failed to participate in these proceedings.

The evidence in these proceedings conclusively demonstrates that Respondent converted client funds by keeping them after failing to perform services and account for them. The Hearing Board is somewhat troubled by the possibility that the appropriate sanction here may be less than disbarment given the fact Respondent has been transferred to disability inactive status. Nevertheless, the Hearing Board cannot speculate on these issues and must therefore decide the case on the available evidence.

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 her clients. The Hearing Board also found she violated Colo. RPC 1.3, 1.4(a), 1.7(a), and 1.16(d) while she represented her clients. 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. 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. DEBRA ANN SWEETMAN, Attorney Registration No. 15265, is hereby DISBARRED from the practice of law, effective thirty-one (31) days from the date of this order.

2. DEBRA ANN SWEETMAN 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. DEBRA ANN SWEETMAN, as a condition precedent to any petition for reinstatement, SHALL pay full restitution to Mr. Gibson in the amount of $900.00, Ms. Boyce in the amount of $800.00, Ms. Dominguez in the amount of $600.00, and Ms. Southcotte in the amount of $1,899.00. Respondent SHALL reimburse the Attorney’s Fund for Client Protection for any funds they provided to any of these clients.

__________

1. Although the Hearing Board heard testimony from this witness, the PDJ ruled that his testimony would only be considered on the issue of sanctions, because the PDJ had no jurisdiction to issue an oath to this witness who appeared by telephone from Canada. The PDJ nevertheless accepted his statement to the Hearing Board as provided in C.R.C.P. 251.22(c)(3).

2. See Exhibit 1, "Attorney/Client Agreement" dated July 14, 2005; and Exhibit 2, copy of check in the amount of $550.00.

3. See Exhibit 3, e-mail dated October 12, 2005.

4. See Exhibit 4, e-mail dated October 13, 2005.

5. See Exhibit 5, e-mail dated October 14, 2005.

6. See Exhibit 6, e-mail dated October 14, 2005; Exhibit 7, e-mail dated November 7, 2005; and Exhibit 8, e-mail dated November 18, 2005.

7. See Exhibit 9, "Attorney /Client Agreement" dated March 4, 2005.

8. See Exhibit 10, letter dated July 1, 2005.

9. See Exhibit 11, "Attorney /Client Agreement" dated January 27, 2005.

10. See Exhibit 12, copy of receipt for $600.00.

11. At that time, Ms. Dominguez’s husband had been criminally prosecuted and civilly sued for injuries to others as a result of his involvement in a traffic accident. Mr. Dominguez had also been sentenced to prison in the criminal matter. They divorced on March 22, 2006.

12. See Exhibit 13, letter dated November 12, 2006.

13. See Exhibit 14, "Attorney /Client Agreement" dated June 8, 2005.

14. See Exhibit 15, copy of check for $1899.99.

15. See Exhibit 16, "Attorney /Client Agreement" dated June 22, 2005.

16. See Exhibit 17, "Attorney /Client Agreement" dated June 22, 2005.

17. See Exhibit 19, note left by Susan Southcotte.

18. See Exhibit 21, certified copy of case number 05DR960.

19. See Exhibit 23, letter dated August 4, 2005.

20. Mr. Southcotte, unlike his former wife, recalled that Respondent had prepared a settlement agreement for them during their first meeting.

21. "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.

22. C.R.C.P. 251.23(c) allows the PDJ to take whatever action necessary when it appears a respondent is so incapacitated as to be unable to proffer a defense. Here, Respondent did not appear and offer proof of mitigation. However, as one of the Hearing Board members noted, the People alleged that Respondent was disabled in their Complaint. Disability Proceedings are confidential as provided in C.R.C.P. 251.23(c).

23. While neglect, failure to communicate, and representing two clients without taking precautions to assure that the client has waived any conflict are serious breaches of ethical conduct, we find they are subsumed in the most serious allegation against Respondent: knowing conversion of client property, which calls for disbarment.

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