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TCL > February 2001 Issue > Summaries of Opinions

February 2001       Vol. 30, No. 2       Page  113
From the Courts
Colorado Disciplinary Cases

Summaries of Opinions


Summaries of opinions appear on a space-available basis. The summaries for the Presiding Disciplinary Judge and hearing board are prepared by the Office of the Presiding Disciplinary Judge, and the summaries for the Appellate Discipline Commission are prepared by the Office of the Appellate Discipline Commission. The summaries of the opinions of the Presiding Disciplinary Judge and the Appellate Discipline Commission are provided as a service by the Colorado Bar Association and are not the official language of the Opinion. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

Unless otherwise noted, full copies of the opinions follow the summaries pages. The summaries and full-text opinions are also available on the CBA homepage at http://www.cobar.org/tcl/index.htm. See page 112 for details


Summary of Decisions Issued by the Presiding Disciplinary Judge
(November 21, 2000 through December 27, 2000)

People v. Mucklow, No. 00PDJ010, 12/26/00. Attorney Regulation.

A majority of the Presiding Disciplinary Judge and Hearing Board publicly censured Pamela F. Mucklow for failing to timely provide exculpatory evidence to opposing counsel in two separate matters, in violation of Colo. RPC 3.8(d). Respondent was employed as a deputy district attorney in the Twenty-Second Judicial District. In both matters, respondent knew the evidence was exculpatory and that Colo.R. Crim.P. 16 required her to provide the evidence to opposing counsel. In the first matter, although she had sufficient time to do so, respondent determined that it was not necessary to provide the evidence (a recanting letter from the alleged victim) to opposing counsel prior to the preliminary hearing, because the evidence would not alter the outcome of the hearing. At the time of that proceeding, respondent was not aware of the broader disclosure requirements concerning exculpatory evidence pursuant to Colo. RPC 3.8(d). Therefore, her failure to provide the evidence to opposing counsel in the first matter was negligent. In the second matter, respondent failed to disclose the alleged child victim’s change in testimony prior to the preliminary hearing. Respondent conferred with her superior who concurred in her decision to elicit the changed testimony on direct examination in the course of the preliminary hearing, rather than direct the victim witness advocate to advise opposing counsel of the change in testimony prior to the preliminary hearing. Respondent only partially succeeded in eliciting the new testimony. In the second matter, respondent was aware of Colo. RPC 3.8(d) and her conduct was therefore knowing. The majority of the Presiding Disciplinary Judge and Hearing Board determined, however, that the sanction of suspension which would ordinarily be warranted for knowing failure to timely provide exculpatory evidence was not warranted in the present case due to significant mitigating factors, including respondent’s inexperience, her having discussed her ethical obligation with her superior, the fact that respondent’s actions did not cause significant injury, and the fact that no Colorado case gave respondent guidance on her obligations under Colo. RPC 3.8(d). Respondent was ordered to pay the costs of the proceeding. p.115.


Summaries of Decisions Regarding Conditional Admissions of Misconduct
Issued by the Presiding Disciplinary Judge
(November 21, 2000 through December 27, 2000)

[The Presiding Disciplinary Judge’s approval of Conditional Admissions of Misconduct does not result in a written opinion but only a brief order, which does not constitute precedent. Conditional Admissions of Misconduct are public record and are available for review at the Office of the Presiding Disciplinary Judge, 600 17th St., Suite 510-South, Denver, CO 80202; (303) 825-2797.]

People v Bailey, No. 00PDJ021, 12/14/00. Attorney Regulation.

The Presiding Disciplinary Judge accepted the parties’ Conditional Admission of Misconduct and suspended Respondent Stephen Michael Bailey from the practice of law for a period of six months, with all but thirty days stayed, followed by a one-year period of probation subject to conditions. While respondent was under administrative suspension for failing to pay attorney registration fees, he continued to represent his client in two separate matters, signed two case management orders on their behalf, and failed to notify the court or opposing counsel of the suspension, thus violating Colo. RPC 5.5(a). Respondent violated Colo. RPC 8.4(d) by failing to communicate with opposing counsel regarding disclosures and by failing to cooperate in opposing counsel’s preparation of a case management order. In representing the same client in a separate matter, respondent failed to communicate with opposing counsel regarding disclosures, and failed to prepare or file a case management order. Respondent was ordered to pay the costs of the proceedings.

People v. Goff, No. 00PDJ087, 12/14/00. Attorney Regulation.

The Presiding Disciplinary Judge accepted the parties’ Conditional Admission of Misconduct and suspended Respondent Richard James Goff from the practice of law for a period of approximately twenty months, until July 3, 2002. Respondent was appointed to represent a client on a charge of child abuse resulting in death. He had no prior experience in criminal defense involving a charge of this gravity. Respondent failed to interview the prosecution’s experts, and failed to interview other witnesses who could have been potentially helpful to his client. Respondent arranged to have the client take a polygraph test at the district attorney’s office but failed to advise the client that she could be examined by an independent polygraph examiner, failed to prepare her for the examination, failed to explain the risks of her failing the polygraph examination, and failed to inform her that any statements she made before the test began could be used against her. Respondent filed numerous motions to continue the trial date. Some of the facts on which respondent based his motions to continue were not true. Respondent waived a jury trial on behalf of the client without advising her of the consequences regarding appellate issues if she lost the trial. Respondent’s client was convicted of child abuse knowingly causing death and sentenced to forty-two years in prison. Respondent violated Colo. RPC 1.1 by failing to provide competent representation to the client, Colo. RPC 1.3 by failing to diligently represent the client, Colo. RPC 1.4(a) and (b) by failing to explain the consequences of certain actions that were taken on the client’s behalf, and Colo. RPC 8.4(c) by misrepresenting to the court some of the reasons for the motion for continuance of the trial. Respondent was ordered to pay the costs of the proceedings.

People v. Lemanski, No. 00PDJ086, 11/30/00. Attorney Regulation.

In this reciprocal discipline matter, the Presiding Disciplinary Judge accepted the parties’ Conditional Admission of Misconduct and suspended Respondent David A. Lemanski from the practice of law for a period of thirty days. Respondent was suspended for thirty days in the state of Iowa for neglecting a legal matter entrusted to him, for failing to promptly disburse and account for client funds held in his trust account, and by failing to respond to inquiries from the Iowa disciplinary board. Respondent was ordered to pay the costs of the proceedings.

People v. McFlynn, No.00PDJ075, 12/11/00. Attorney Regulation.

The Presiding Disciplinary Judge accepted the parties’ Conditional Admission of Misconduct and disbarred Respondent Timothy McFlynn from the practice of law. Respondent endorsed four checks from his law firm’s COLTAF account made payable to four of the firm’s clients or third parties with the payees’ names, signed the checks over to himself, and then deposited each check into his personal checking account. Two of the checks consisted of funds determined to be amounts owed to the firm’s clients. One of the checks consisted of funds earned by the firm but not yet transferred from the COLTAF to the operating account. One of the checks reflected an amount which respondent had determined consisted of "surplus funds" in the COLTAF account, which were later turned over to the state treasury as unclaimed property. Respondent wrote the checks in such a way as to conceal his conduct from the other shareholders in the firm. Respondent took these actions in order to bridge a time gap for an anticipated personal loan and intended to repay the funds when he obtained his loan. Respondent did not have authority to endorse checks payable to the clients and third party, nor to endorse the checks over to himself. Respondent knowingly converted the firm’s funds. In a separate matter, respondent’s client agreed to loan respondent a certain amount of the client’s funds held in the firm’s COLTAF account. Respondent negligently borrowed $1,015 over the amount, understanding that there were sufficient funds belonging to the client to cover the full amount of the loan. Respondent therefore negligently converted $1,015 in funds from the COLTAF account. Additionally, respondent failed to provide written disclosure of the terms of the loan to the client, and failed to advise the client to seek independent counsel. Respondent violated Colo. RPC 1.8(a) by failing to provide written disclosures to the client, Colo. RPC 1.15(b) by failing to transfer earned fees from the firm’s COLTAF account into the firm’s operating account, Colo. RPC 8.4(c) by knowingly converting funds and, in one instance, negligently converting funds, and by engaging in dishonesty by concealing his conduct from the other shareholders. Respondent was ordered to pay the costs of the proceedings.

People v. Pennywell, No. 00PDJ017, 11/20/00. Attorney Regulation.

The Presiding Disciplinary Judge accepted the parties’ Amended Conditional Admission of Misconduct and publicly censured Kenneth B. Pennywell for conduct in violation of Colo. RPC 8.4(d). While acting as Assistant Attorney Regulation Counsel, and in the course of prosecuting a disciplinary matter, respondent maintained a personal relationship with a witness in the preliminary stages of the disciplinary matter, in violation of Colo. RPC 8.4(d). Respondent was ordered to pay the costs of the proceedings.

People v. Sather, No. 99PDJ010 (consolidated with 00DJ001), 12/7/00. Attorney Regulation.

The Presiding Disciplinary Judge accepted the parties’ Conditional Admission of Misconduct and suspended Respondent Larry Douglas Sather from the practice of law for a period of one year and one day. Respondent failed to remain current on his child support obligations and failed to pay court-awarded attorney fees. Respondent failed to pay an amount due to an individual with whom he contracted to serve subpoenas on his behalf. Respondent negligently misrepresented his income to the bankruptcy court and domestic relations court. Respondent’s conduct violated Colo. RPC 3.4(c) by knowingly disobeying an obligation under the rules of a tribunal; Colo. RPC 8.4(c) by engaging in conduct involving dishonesty; and Colo. RPC 8.4(d) by engaging in conduct prejudicial to the administration of justice. Respondent was ordered to pay the costs of the proceeding.

People v. Sladek, No. 00PDJ013, 11/20/00. Attorney Regulation.

The Presiding Disciplinary Judge accepted the parties’ Conditional Admission of Misconduct and Corrections thereto and suspended Respondent Dennis J. Sladek from the practice of law for a period of one year, with all but forty-five days stayed followed by a 10.5-month period of probation subject to conditions. Respondent violated Colo. RPC 8.4(c) in the course of his personal bankruptcy proceeding by negligently failing to disclose to the bankruptcy court all personal property and income belonging to himself and to his wife. Respondent was ordered to pay the costs of the proceedings.

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