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TCL > November 2010 Issue > Disciplinary Opinions

The Colorado Lawyer
November 2010
Vol. 39, No. 11 [Page  111]

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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. 10PDJ004

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

PATRICK DENNIS BEASLEY.

July 23, 2009

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

On June 10, 2010, the Presiding Disciplinary Judge (the Court) held a Sanctions Hearing pursuant to C.R.C.P. 251.15(b). James C. Coyle appeared on behalf of the Office of Attorney Regulation Counsel (the People). Patrick Dennis Beasley (Respondent) did not appear, nor did counsel appear on his behalf. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE AND SANCTION

Respondent failed to represent his clients with reasonable diligence and promptness, neglected to reasonably inform his clients and to respond to their requests for information, commingled his clients’ property with his own, inadequately supervised an assistant, and untruthfully responded to interrogatories. Respondent’s conduct was negligent in some instances and knowing in others, causing his clients injury or potential injury. Suspension is generally appropriate in such circumstances.

After considering the nature of Respondent’s misconduct and its consequences, the significant aggravating factors, and the minimal evidence of countervailing mitigators due in part to Respondent’s failure to participate in these proceedings, the Court finds the appropriate sanction for Respondent’s misconduct is suspension for one year and one day. In addition, as a condition precedent to any petition for reinstatement pursuant to C.R.C.P. 251.29(c), the Court orders Respondent to undergo an independent medical examination (IME) and to pay restitution to his clients.

II. PROCEDURAL HISTORY

On January 4, 2010, the People filed a complaint alleging that Respondent violated several rules of professional conduct. Respondent failed to answer the complaint, and the Court granted a motion for default on March 31, 2010. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.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 complaint.2 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on June 8, 1995. He is registered upon the official records, Attorney Registration No. 25637, and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.

In April 2008, Patrick Kennedy (Mr. Kennedy) and Guadalupe Rodriguez n/k/a Guadalupe Kennedy (Mrs. Kennedy) met with Respondent to inquire about applying for residency for Mrs. Kennedy. Mr. and Mrs. Kennedy informed Respondent that they planned to marry on May 2, 2008, and that they wished to begin the application process after their marriage.

On May 8, 2008, Mr. and Mrs. Kennedy signed a Legal Services Contract with Respondent’s office, which provided for a flat fee of $2,350 for obtaining an I-130 Petition for Alien Relative. The contract required an advance retainer of $1,500 but stated that the retainer would become property of the lawyer upon receipt; that the lawyer would not be required to place the retainer in an Interest on Lawyers Trust Accounts (IOLTA) escrow or similar segregated account; and that the law office could treat the retainer as income upon receipt.

Mr. and Mrs. Kennedy paid Respondent the $1,500 retainer on May 8, 2008, and Respondent placed that retainer into his office account, rather than placing the retainer into a separate account. Respondent did not have a trust account until March 2009, and Respondent’s practice was to place client retainers that he received as flat fees into his office account. As of May 8, 2008, Respondent had performed no more than three hours of work on Mr. and Mrs. Kennedy’s behalf.

On May 30, 2008, Respondent filed a Notice of Entry of Appearance as Attorney or Representative with the U.S. Department of Justice Immigration and Naturalization Service. At this time, several immigration application and petition forms were prepared on Mr. and Mrs. Kennedy’s behalf.

On or about August 8, 2008, Mr. Kennedy received a rejection notice from the U.S. Bureau of Citizenship and Immigration Services, which stated that the priority date did not appear to be current. When Mr. Kennedy contacted Respondent’s office, a legal assistant told Mr. Kennedy that this was nothing to worry about and that they "just had to write a letter and send it back to Immigration."

Mr. Kennedy began to call Respondent’s office approximately once every two weeks. During those calls, Mr. Kennedy spoke with Respondent’s legal assistant, requesting that Respondent return his calls. Although the assistant consistently gave those messages to Respondent, Respondent did not return Mr. Kennedy’s calls.

On November 11, 2008, Mr. Kennedy called Respondent’s office and spoke with a new legal assistant. That assistant informed Mr. Kennedy that Respondent’s law office had never sent his application package back to the immigration office. The assistant apologized and told Mr. Kennedy he would inform Respondent of the problem. The next day, Mr. and Mrs. Kennedy went to Respondent’s office for an appointment but Respondent did not appear. When the assistant reached Respondent by telephone, Respondent agreed to try to streamline the immigration process and agreed to call Mr. Kennedy the next morning. During the call on November 13, 2008, Mr. Kennedy told Respondent that Mrs. Kennedy had a job offer pending approval of her immigration status by January 1, 2009, and that there was a deadline of December 31, 2008, for his wife to be placed on his health insurance.

On or about November 17, 2008, Respondent filed a request for expedited processing and filed several petition and application forms with the immigration office. In the request for expedited processing, Respondent admitted that he had failed to supervise his first legal assistant. Respondent further stated that he was unaware that the immigration office had returned the application package and that his assistant had not resubmitted the package. Respondent admitted that his office had not worked on Mr. and Mrs. Kennedy’s file for an approximately three-month period. Respondent also admitted that this delay was ultimately his fault and that his clients had "zealously pursued communicating with [his] office regarding the completion of their case, to no avail." Respondent requested that the immigration office process the application with all due haste.

In December 2008, the immigration office notified Mr. Kennedy that they had received his application. Thereafter, Mr. Kennedy called Respondent and discovered that his telephone number was disconnected. Mr. Kennedy also went to Respondent’s office unannounced, whereupon Respondent told Mr. Kennedy that the office telephones were having problems. Respondent gave Mr. Kennedy his cell phone number, but after answering one call from Mr. Kennedy on that phone, Respondent never again responded to Mr. Kennedy’s calls to his cell phone. Around the end of December 2008, Respondent’s office telephone number was once again disconnected. On or about January 6, 2009, Mr. Kennedy again called Respondent’s office. However, Respondent never returned Mr. Kennedy’s calls after December 2008.

Mr. and Mrs. Kennedy completed the immigration process without Respondent’s assistance, and Mrs. Kennedy’s immigration status was approved. Due to Respondent’s failure to timely handle this matter, Mrs. Kennedy could not obtain medical coverage through Mr. Kennedy’s insurance plan and she lost her contingent job offer.

Mr. and Mrs. Kennedy filed a small-claims action against Respondent, which went to trial on May 7, 2009. The court ordered Respondent to pay Mr. Kennedy $1,092. Respondent has not paid that sum. On May 7, 2009, the small-claims court ordered Respondent to answer interrogatories within ten days of service. When Respondent answered the interrogatories on May 29, 2009, he provided fabricated Wells Fargo bank account numbers. Mr. Kennedy confirmed that the account numbers were invalid by calling Wells Fargo, which stated that the numbers Respondent provided did not match their accounts. Respondent’s provision of fabricated account numbers has prevented Mr. and Mrs. Kennedy from collecting on their judgment.

Through his conduct, Respondent violated several rules of professional conduct. First, Respondent violated Colo. RPC 1.3, which requires lawyers to act with reasonable diligence and promptness in representing a client. Respondent violated this rule by neglecting to timely re-file Mr. and Mrs. Kennedy’s immigration application and by failing to complete the work Mr. and Mrs. Kennedy retained him to perform. Second, Respondent violated Colo. RPC 1.4(a)(3), which directs lawyers to keep their clients reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. Respondent violated Colo. RPC 1.4(a)(3) by failing to adequately communicate with Mr. and Mrs. Kennedy and by failing to respond to Mr. Kennedy’s reasonable requests for information. Third, Respondent violated Colo. RPC 1.15(a), which provides that lawyers shall hold any property of a client that is in the lawyer’s possession separate from the lawyer’s own property. Respondent exercised unauthorized dominion or ownership over Mr. and Mrs. Kennedy’s funds by placing their retainer into his office account when he had performed no more than three hours of work on their behalf. Fourth, Respondent violated Colo. RPC 5.3(b), which requires lawyers to adequately supervise non-lawyer assistants to ensure those assistants’ conduct comports with the lawyer’s professional obligations. Respondent violated this rule by failing to adequately supervise his first legal assistant, including his failure to verify what work the assistant was performing on Mr. and Mrs. Kennedy’s matter. Fifth, Respondent violated Colo. RPC 8.4(c), which prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent engaged in conduct prohibited by Colo. RPC 8.4(c) by knowingly, or at least recklessly, submitting fabricated bank account numbers in response to interrogatories.

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.3 In selecting a sanction after a finding of lawyer misconduct, the Court must consider the duty violated; the lawyer’s mental state; the actual or potential injury caused by the lawyer’s misconduct; and the existence of aggravating and mitigating evidence pursuant to ABA Standard 3.0.

ABA Standard 3.0—Duty, Mental State, and Injury

Duty: The order of default establishes that Respondent violated a duty to his clients, which arises out of the nature of the basic relationship between the lawyer and the client.4 Specifically, Respondent failed to act with diligence and promptness; failed to keep his clients informed or respond to their requests for information; commingled his clients’ property with his own; and engaged in dishonest conduct to his clients’ detriment. In addition, Respondent violated his duties to the legal system by submitting untruthful answers to interrogatories.

Mental State: Respondent’s first legal assistant failed to inform Respondent that the immigration office had returned the application package. However, Respondent would have known of the lack of diligence and promptness with which his office was handling Mr. and Mrs. Kennedy’s matter if Respondent had adequately supervised his assistant. Therefore, Respondent should have known of these issues.5 Next, the complaint, as adopted by the order of default, explicitly establishes that Respondent knew or should have known that he had failed to communicate adequately with Mr. Kennedy over a period of many months. With respect to the third claim, the complaint establishes that Respondent committed a negligent, or technical, conversion of his clients’ funds by failing to place those funds into a trust account. The evidence also shows that Respondent was at least negligent in supervising his assistant. Finally, the complaint expressly establishes that either Respondent knew his response to the small-claims court interrogatories was untrue or he was reckless in failing to determine whether his response was true before making that response.

Injury: Respondent’s misconduct caused injury to Mr. and Mrs. Kennedy. The complaint, as adopted by the order of default, explicitly establishes that Respondent’s violation of Rules of Professional Conduct 1.3 [diligence and promptness], 1.4(a)(3) [keeping clients informed], and 5.3(b) [supervision of assistants] caused injury or potential injury to Mr. and Mrs. Kennedy. As noted above, Respondent’s actions and omissions led to the retraction of Mrs. Kennedy’s job offer and prevented Mrs. Kennedy from obtaining medical insurance through her husband’s insurance plan. Further, the facts demonstrate that Respondent’s provision of fabricated bank account numbers injured his clients by preventing them from collecting upon their judgment.

ABA Standard 3.0—Aggravating and Mitigating Factors

Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed.6 Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.7

Dishonest or Selfish Conduct—9.22(b): Respondent exercised unauthorized dominion and control over funds belonging to his clients without rendering services of commensurate value in exchange. Further, Respondent provided fabricated bank account numbers with the selfish motive of preventing Mr. and Mrs. Kennedy from collecting on their judgment against him. The Court concludes Respondent engaged in dishonest and selfish conduct.

Multiple Offenses—9.22(d): Respondent violated five of the Rules of Professional Conduct over the course of an approximately twelve-month period.

Vulnerability of the Victim—9.22(h): Immigration clients may be particularly vulnerable. For example, a person who does not speak English as a first language or who is unfamiliar with the legal system in the United States may have heightened susceptibility to professional misconduct by an attorney. In this case, the People did not establish that Mrs. Kennedy was particularly vulnerable, so the Court accords this factor minimal weight.

Substantial Experience in the Practice of Law—9.22(i): Respondent was admitted to the bar in 1995. Therefore, he had at least twelve years of experience in practicing law by the time of his first violation of the Rules of Professional Conduct. Twelve years of practice qualifies as substantial experience in the practice of law.8

Absence of Prior Disciplinary Record—9.32(a): Respondent does not have a prior disciplinary record.

Personal or Emotional Problems—9.32(c): At the sanctions hearing, the People conceded that Respondent is known to have taken medications in 2008 that may be used to treat psychological problems such as depression, schizophrenia, and insomnia. In addition, the People admitted that Respondent has struggled with depression. However, as Respondent did not participate in the sanctions hearing, Respondent presented no evidence to support these arguments. Accordingly, the Court accords Respondent’s emotional problems reduced weight as a mitigating factor.

Analysis Under ABA Standards and Colorado Case Law

As noted above, the order of default established that Respondent violated Colo. RPC 1.3, 1.4(a)(3), 1.15(a), 5.3(b), and 8.4(c). In light of that order, several ABA Standards establishing suspension as the presumptive sanction are applicable. Those ABA Standards provide that suspension is generally appropriate where:

(a) a lawyer causes injury or potential injury to a client by knowingly failing to perform services for a client or engaging in a pattern of neglect;9

(b) a lawyer knowingly deceives a client, and causes injury or potential injury to the client;10 or

(c) a lawyer knows that false statements are being submitted to the court, takes no remedial action, and causes injury or potential injury to a party to the proceeding.11

The ABA Standards establish that reprimand is generally the appropriate sanction when a lawyer is negligent in dealing with client property and causes the client injury or potential injury,12 as well as in most cases of a violation of a duty owed as a professional, such as the duty to properly supervise an assistant.13

The ABA Standards further provide that, in cases involving multiple charges of misconduct, "[t]he ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct among a number of violations; it might well be and generally should be greater than the sanction for the most serious misconduct."14

Colorado Supreme Court case law applying the ABA Standards also holds that suspension is appropriate in cases similar to this one. People v. Fager provides an appropriate basis for comparison.15 In that case, the attorney failed to obey discovery requirements in the course of representing a client, which apparently caused the court to bar the client’s witnesses from testifying, and which may have contributed to the court’s decision to award custody of the client’s children to the client’s ex-wife.16 The attorney also failed to account for or return funds his client paid to him for legal services.17 In representing another client, the attorney neglected the matter, failed to keep funds in a separate account, failed to return client property upon request, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.18 The Colorado Supreme Court determined that suspension for a year and a day was appropriate, despite some concerns that the period was too short.19

The circumstances presented here are not egregious enough to warrant a longer period of suspension. In contrast, circumstances meriting a three-year suspension were present in People v. Denton, where the respondent failed to file a civil action on behalf of his client, failed to return the client’s retainer, and refused to return supporting documentation that was critical to that action, thereby depriving the client of the right to pursue his civil claim.20 The respondent’s steadfast refusal to honor his obligations in that case represented an intentional disregard for the client’s interests that is not present here.21

Significant mitigating factors may overcome the presumption of suspension,22 but the few at work in this case do not justify a reduction in the sanction imposed.23 Indeed, because the Court has no reliable evidence that Respondent has, in fact, suffered from the emotional problems discussed above, this mitigating factor does not justify a variance from the presumed sanction. Further, Respondent’s failure to participate in these proceedings leaves the Court with little else to consider in terms of mitigation. Meanwhile, the Court is significantly influenced by Respondent’s multiple offenses and the dishonest nature of his conduct.

V. CONCLUSION

Respondent’s failure to comply with numerous rules and his dishonesty towards his clients and the judicial system is troubling to the Court. Respondent appears to have abdicated responsibility for his clients’ welfare in this case, resulting in serious consequences for his clients. In addition, the Court is concerned that Respondent has not participated in any phase of the disciplinary proceedings. The Court hopes that Respondent will use his period of suspension to seek treatment for any emotional problems that may have contributed to the misconduct discussed here. In light of the unsettling nature of Respondent’s conduct and the need to protect the public from future instances of such conduct, the Court concludes Respondent should be suspended from the practice of law for one year and one day.

VI. ORDER

The Court therefore ORDERS:

1. Patrick Dennis Beasley, Attorney Registration No. 25637, is hereby SUSPENDED from the practice of law for a period of ONE YEAR AND ONE DAY. The suspension 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. As a condition precedent to any petition for reinstatement pursuant to C.R.C.P. 251.29(c), Respondent SHALL submit to an IME by a qualified doctor agreeable to the People. Respondent, not the People, shall be responsible for the cost of the IME. Once a qualified expert is chosen, it is Respondent’s duty to advise the Court so that an appropriate order may be drafted and presented to the doctor as to what issues to address in a report to the Court. The doctor shall have access to all records in the People’s possession, as well as this opinion, before meeting with Respondent for the scheduled IME.

3. Respondent SHALL pay restitution of $1,092 plus interest dating from May 7, 2009, to Mr. and Mrs. Kennedy or, in the alternative, reimburse the Colorado Attorney’s Fund for Client Protection for all proceeds that may have been paid to these named clients.

4. 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); C.R.C.P. 251.15(b).

2. See the People’s complaint in 10PDJ004 for further detailed findings of fact.

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

4. See ABA Standard 4.0.

5. See ABA Standards, Definitions. "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.

6. See ABA Standard 9.21.

7. See ABA Standard 9.31.

8. See In re Thompson, 991 P.2d 820, 823 (Colo. 1999).

9. See ABA Standard 4.4.

10. See ABA Standard 4.6.

11. See ABA Standard 6.1.

12. See ABA Standard 4.13.

13. See ABA Standard 7.3.

14. See ABA Standards § II at 7.

15. 925 P.2d 280 (Colo. 1996).

16. Id. at 281-82.

17. Id. at 282.

18. Id.

19. Id. at 283. Another instructive case is People v. Regan, 831 P.2d 893, 896-97 (Colo. 1992), where the court concluded suspension for a year and a day was the appropriate sanction for an attorney who had engaged in a pattern of neglect and misrepresentation, but where several mitigating factors were established.

20. 839 P.2d 6, 8 (Colo. 1992).

21. See id.

22. See People v. Waitkus, 962 P.2d 977 (Colo. 1998) (significant mitigating factors may overcome presumption of suspension).

23. Cf. People v. Guyerson, 898 P.2d 1062, 1064-65 (Colo. 1995) (concluding presence of substantial personal and emotional problems, cooperation with the hearing board, presence of remorse, and evidence of respondent’s good character insufficient to overcome presumption of disbarment for conversion).

_______________

Case No. 08PDJ052

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

MARK EDWARD BRENNAN.

October 28, 2009

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

On July 14, 2009, a Hearing Board composed of Edwin S. Kahn, Paul J. Willumstad, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge (PDJ), held a three-day hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel (the People) and Mark E. Brennan (Respondent) appeared pro se. The Hearing Board now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."

I. DISCIPLINARY ISSUE ADDRESSED

A lawyer shall not engage in conduct intended to disrupt a tribunal or conduct prejudicial to the administration of justice. Respondent repeatedly ignored admonitions from a judge to follow trial protocol and openly expressed disdain for his rulings thereby disrupting and impeding the proceedings. He also verbally abused court staff and opposing counsel. If Respondent engaged in this conduct with the intent to disrupt the tribunal, what is the appropriate sanction?1

II. SUMMARY

Respondent engaged in a pattern of progressively egregious misconduct during an eight-day jury trial. His conduct was not the product of human frailty in the course of a contentious trial. To the contrary, Respondent purposely challenged a federal district court judge, because he believed the judge held a bias in favor of his opponent. Ultimately, the judge found Respondent in contempt of court for his insolent behavior and disrespect for the authority of the tribunal. Yet, even after the judge entered the contempt order, Respondent persisted in his impertinent behavior.

After carefully reviewing the entire trial record and the testimony of the witnesses, including Respondent, the Hearing Board finds by clear and convincing evidence the following:

• Respondent knew the import of, yet willfully disregarded, Judge Robert Blackburn’s repeated admonitions to refrain from his improper behavior. Respondent therefore intentionally disrupted the tribunal thereby violating Colo. RPC 3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal).2

• Respondent refused to obey unambiguous orders of the judge directed to him multiple times and engaged in obstreperous behavior in and outside the presence of the jury thereby violating Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).3

SANCTION IMPOSED:
ATTORNEY SUSPENDED FROM THE PRACTICE OF LAW
FOR A PERIOD OF ONE YEAR AND ONE DAY.

III. PROCEDURAL HISTORY

The People filed a "Complaint" alleging two separate ethical violations against Respondent: Colo. RPC, 3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal); and Colo. RPC 8.4(d) (a lawyer should not engage in conduct prejudicial to the administration of justice) on May 29, 2008. On November 12, 2008, Respondent filed an "Answer" after the PDJ had granted various extensions of time and denied Respondent’s multiple motions to dismiss.

The Hearing Board commenced the hearing pursuant to C.R.C.P. 251.18 on July 14, 2009 and concluded it on July 16, 2009. The parties urged the Hearing Board to review the entire trial transcript from which these disciplinary claims arose.4 The PDJ also admitted the People’s exhibits 1, 2, 12, and 13, as well as Respondent’s exhibits A, B, C, D (1 and 2), and E. The PDJ also adopted the separate Trial Management Orders submitted by the parties.

IV. FINDINGS OF FACT AND RULE VIOLATIONS

Jurisdiction

Respondent has taken and subscribed the oath of admission and the Colorado Supreme Court admitted him to the Bar on October 30, 1984. He is registered upon the official records under Attorney Registration No. 14012. Therefore, he is subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent’s registered business address is P.O. Box 2556, Centennial, CO 80161.

Background

William Cadorna hired Respondent following his dismissal from the Denver Fire Department (DFD) in 2003. The DFD fired Mr. Cadorna after his immediate supervisor initiated an investigation accusing Mr. Cadorna of stealing a cookbook from a Safeway store while on duty. At the DFD’s behest, Mr. Cadorna was later charged with misdemeanor theft in Denver Municipal Court. When a jury could not reach a verdict, the Denver City Attorney’s Office dismissed the theft case.5

At the time of his dismissal, Mr. Cadorna was approximately fifty years old and had worked for the DFD for twenty-seven years. After Mr. Cadorna’s discharge, Respondent challenged the dismissal before the Civil Service Commission. The judge in the Civil Service proceedings upheld the dismissal. While the judge found there had not been good cause to believe Mr. Cadorna committed theft while on duty, the judge nevertheless found that state law would not permit Mr. Cadorna to be reinstated.6 Despite the judge’s decision, Mr. Cadorna applied for and received a medical disability retirement from the City and County of Denver (the City).

After Mr. Cadorna exhausted all of his remedies in the administrative proceedings before the Civil Service Commission including the appeals process, Respondent filed an age discrimination suit on behalf of Mr. Cadorna against the City in the federal district court: William R. Cadorna v. City and County of Denver, 04-CV-1067-REB-CBS. Respondent sought damages for violating the Age Discrimination in Employment Act and denial of substantive due process. He also sought to be reinstated as a firefighter. Furthermore, Respondent argued the refusal to reinstate Mr. Cadorna based upon a state statute that used age as a criterion violated the Age Discrimination in Employment Act.

In the Civil Service Commission’s decision and later in the appellate proceedings, the DFD and the City took the position there had been good cause to terminate Mr. Cadorna even though the Civil Service judge found there was insufficient evidence to justify his dismissal based upon the DFD’s claim that he had committed theft. Further, the City claimed Mr. Cadorna had applied for retirement before his dismissal and therefore had voluntarily decided to leave the fire department before the DFD terminated him. Thus, the City argued Mr. Cadorna had not been fired because of his age; he had voluntarily resigned before the City took any action against him.

In the proceedings before the Civil Service Commission as well as those in federal court, Respondent vigorously argued Mr. Cadorna should have been reinstated because he had been terminated as a result of DFD’s shoddy investigation. Respondent argued the Safeway manager, who signed a criminal complaint charging Mr. Cadorna with theft, did so without knowing the facts and at the behest of Mr. Cadorna’s supervisor who had a long-standing grudge against Mr. Cadorna.

The same Safeway manager who signed the theft complaint against Mr. Cadorna testified for the City in the criminal court, but failed to disclose evidence that Respondent claimed was exculpatory: a cookbook bearing Mr. Cadorna’s name and what appeared to be his badge number on the inside cover was found in the store after Mr. Cadorna claimed to have misplaced it there. Respondent’s position was that a clerk gave Mr. Cadorna permission to take a cookbook after Mr. Cadorna told the clerk he had misplaced his cookbook in the Safeway store while on duty and shopping for groceries for the firehouse. The City’s position was Mr. Cadorna, at a minimum, obtained the cookbook without permission from someone in authority at the store and did so by improperly using his position as a firefighter to pressure the clerk into letting Mr. Cadorna take a new cookbook without paying for it.

Preliminary Proceedings in Judge Blackburn’s Court

Before the trial began in federal court, Judge Robert E. Blackburn (the Court) issued two separate orders pursuant to D.C.COLO.LCivR 43.1 and REB Civ. Practice Standard IV.A.1 detailing trial procedures in his court.7 These orders included protocol for handling objections. Objections had to be made succinctly and supported by the applicable law. Lawyers were not allowed to "speechify" their objections or responses in front of the jury, and stipulations needed to be prepared before trial commenced.

In addition, the lawyers were required to "review the Trial Checklist with the courtroom deputy clerk." The clerk in turn advised the parties that the Court did not permit them to be speaking while the Court issued the oath to a witness. Furthermore, the parties were not to address witnesses by their first names.

Before the trial commenced, Respondent filed a motion to disqualify Judge Blackburn. Judge Blackburn denied the motion. Before denying the motion, Judge Blackburn admonished Respondent for the content and tone of an email Respondent had sent to his clerk in preliminary proceedings.8

Early Stages of Trial in Federal District Court

During the first two days of trial, Judge Blackburn admonished Respondent and the City Attorneys on occasion for not following the protocol outlined in his pre-trial order. Respondent responded cordially and professionally to these early admonitions, which generally related to Respondent’s habit of asking questions before the judge had an opportunity to rule on the pending objections. In this context, Judge Blackburn admonished both parties by stating:

We are done. Again the trial practice order—and counsel read it, both of you please. I have had you ask me questions over the last couple of days about the contents of that order that are absolutely plain, and one of the things that are plain is the protocol for marshalling objections, Mr. Brennan, and that’s objection, response, reply, and then the ruling, and that’s where we are.

The Hearing Board finds Respondent’s initial breaches of the Court’s protocol insufficient to establish by clear and convincing evidence that he intended to disrupt the tribunal or knowingly engaged in conduct prejudicial to the administration of justice. However, Respondent was then on notice Judge Blackburn would not tolerate further breaches of courtroom protocol.

Nevertheless, knowing that Judge Blackburn repeatedly admonished him for not following the Court’s protocol, Respondent continued to do so and openly challenged the admonitions. When Judge Blackburn sua sponte admonished Respondent for reading from a document not yet admitted into evidence, Respondent, in the presence of the jury, protested the admonition stating:

I wonder if the jury should be hearing this kind of remonstration all the time which I think has a tendency to prejudice them against me. Because you are in essence passing judgment upon my competence as an attorney in their presence.

Judge Blackburn then removed the jury and stated to Respondent:

Mr. Brennan, I find those final remarks deliberately made in the presence of the jury to be highly disrespectful of the court, in violation of Rule 103(c), and an effort on your part, apparently, to pad the record with injected prejudice.

The only way the Court can stop inappropriate behavior when it sees it is to do so on the record, and I did so, and that’s a fortiori, sir, when this is not the first or second but the multiple time in which you insist in disregarding the admonishment of this Court, which is proper and appropriate, not to suggest to the jury evidence which has not yet been admitted. And I will expect you to conform your conduct accordingly.9

Respondent replied to the Court’s admonition by arguing the City "shape-shift[ed] into a new version of the facts every time the one that it formerly adopted is shot down." Judge Blackburn then reprimanded the parties for not preparing stipulations in a timely fashion and "exhorted" them to stipulate to exhibits upon which there was no controversy.10 The City then advised the Court that they had tried to confer with Respondent on the exhibits before the trial commenced but Respondent had refused to do so. Respondent responded, "That’s absolute nonsense." Judge Blackburn firmly stated to both Respondent and the City, "That’s enough."11

The Hearing Board finds at this point in the trial Respondent knew or should have known Judge Blackburn was understandably growing impatient with his failure to abide by the Court’s rules of protocol and interfering with a properly conducted trial.

Nevertheless, Respondent continued to disregard Judge Blackburn’s orders. Up to this point Judge Blackburn was understandably troubled Respondent continued to "speechify" objections, interrupt the Court, and make editorial comments about the evidence.12 The Hearing Board finds after Judge Blackburn issued multiple warnings to stop disobeying the Court’s direct orders, Respondent, at this point, knowingly and intentionally failed to abide by the Court’s continued admonitions.

Judge Blackburn Warns Respondent that
He will be Held in Contempt

Towards the end of the third day of trial, Judge Blackburn felt compelled to halt the proceedings after Respondent made an editorial comment about a witness’s appearance. The Court took a fifteen minute recess and admonished Respondent as follows:

Mr. Brennan, enough is enough. You are going to have to find it within your power to resist what apparently is the almost irresistible to comment editorially as you conduct examination during the trial of this case.

And no longer will you be able, regardless of how well intended your remarks are, to compliment a witness as he or she testifies.

Both of those practices are unacceptable and inappropriate in the trial of this action. Please exert your best efforts now, under pain and penalty of contempt of court, to conform your conduct to the simple requirements of this court. Thank you.13

When Respondent resumed the questioning of the witness, he again made another editorial comment about a witness’s testimony.14 Giving Respondent the benefit of the doubt, the Hearing Board cannot discern this second editorial comment alone was intended to disrupt the tribunal. However, thereafter, we note Respondent’s attitude toward Judge Blackburn and his authority became increasingly disrespectful and contemptuous.15 We therefore find from this point forward, Respondent was not only aware of his conduct and its consequences, but he began to intentionally focus his animus toward the tribunal and its authority.

Respondent Continues to Disregard
Judge Blackburn’s Admonitions

When Respondent continued to disregard Judge Blackburn’s numerous admonitions to stop talking while the Court was speaking, editorializing about evidence in front of the jury, and interrupting witnesses before they could complete their answers, Judge Blackburn terminated Respondent’s cross-examination of a witness as a sanction. During an exchange outside the jury’s presence, Judge Blackburn stated the following to Respondent:

After being repeatedly admonished, warned by the court with the threat of sanction, including but not limited to termination of cross-examination, Mr. Brennan again violated this court’s reasonable requirement, recognized by all courts, that he not editorialize during the propounding of a question or in connection with an answer.

And yet, again he, in addressing this witness improperly, "There is a straight answer." That personal comment on the evidence by an attorney in any court, including Federal Court, remains improper and inappropriate, the sanction for which is plaintiff’s cross examination is now terminated.16

Thereafter, Judge Blackburn reminded Respondent his conduct was "the quintessence of contempt of court."17 In this exchange, Respondent continued to argue with Judge Blackburn and refused to clear the podium when ordered to do so.18 At this point, the court reporter became concerned that the presence of a United States Marshal might be required in order for Respondent to acknowledge Judge Blackburn’s direct order. Further, the court reporter reasonably felt physically threatened by Respondent’s behavior. The Hearing Board notes Respondent is a big man, at least six feet tall, with a stocky build and voice that booms, especially when he is angry or agitated as when the Court terminated his cross-examination.

Judge Blackburn Admonishes Respondent
for Making Facial Expressions

On the fourth day of trial, after Judge Blackburn sustained the City’s objection on an evidentiary matter, the Court again admonished Respondent for making facial expressions in the jury’s presence in response to the ruling. Judge Blackburn excused the jury, and admonished Respondent as follows:

Mr. Brennan, frankly I can do without the facial expressions and the communications that are made when this court makes a ruling that is adverse to you.19

Also during the fourth day of trial, in the hallway just outside the courtroom, Respondent called one of the City’s attorneys a "fucking weasel" after the attorney reminded Respondent that he should not coach his client during a recess. Respondent admits he made this statement. Further, on another occasion out of the jury’s presence, Respondent called a second attorney representing the City a "pinche cabron" and "hijo de puta."20 Again, Respondent admitted using these derogatory and pejorative phrases in addressing Mr. Lujan, one of the attorneys defending the City against Mr. Cadorna’s claims.

Court Holds Respondent in Contempt

On the final day of the trial, outside the presence of the jury during a bench conference, Judge Blackburn asked Respondent to make an offer of proof before calling a rebuttal witness. In his offer, Respondent stated he was calling the witness to cross-examine an official at the policy-making level on the subject of age discrimination. Respondent stated that the Court had precluded him from doing so and thereby deprived Mr. Cadorna an opportunity to present crucial evidence on that subject. Respondent went on to tell Judge Blackburn, "If you want to take up any of my conduct in this trial, that’s fine. Just so it doesn’t affect this trial to the detriment of my client."21

Judge Blackburn responded by stating, "I have no personal or professional contempt for you." Respondent then stated, "I have sensed otherwise, your Honor, with all due respect." Judge Blackburn again reminded Respondent that he had been admonished numerous times, but nevertheless continued to repeatedly insist on having the last word, even when the Court attempted to rule and move forward. Judge Blackburn characterized Respondent’s conduct in this exchange as an attempt to "bully" the Court. The Hearing Board agrees with Judge Blackburn’s characterization.

Again during this exchange, Judge Blackburn admonished Respondent to stop talking while the Court was speaking. And again, Respondent refused to abide by the Court’s order stating, "I am not trying to bully you, sir."22 Judge Blackburn then excused the jury and fined Respondent $500 for what the Court described as "contemptuous" behavior.23 Respondent sarcastically responded, "May I inquire while we are waiting when you want that paid, your Honor?"

In light of the numerous admonitions Judge Blackburn issued to Respondent before this last exchange, the Hearing Board has no doubt Respondent intended to disrupt the proceedings. The Hearing Board finds Respondent’s words and actions demonstrate clear and convincing evidence of his disrespect and contempt for the Court’s authority. Respondent’s repeated failure to abide by Judge Blackburn’s authority also proves by clear and convincing evidence that he intended to disrupt the tribunal.

While the Hearing Board finds the written record alone supports our findings on Respondent’s intent to disrupt the proceedings, we also note the court reporter’s testimony, supported by her contemporaneous notes made during the trial concerning Respondent’s conduct, corroborates our findings. Never before in her years of reporting had she ever found it necessary to take notes on an attorney’s conduct during a trial. Respondent’s words and actions were so physically and verbally threatening that this veteran court reporter felt she might have to summon a United States Marshal to maintain order.

The court reporter testified to Respondent’s rude behavior, his facial expressions following Judge Blackburn’s rulings, and to the inappropriate comment he made to her during a recess suggesting Judge Blackburn was doing everything he could to help the City win the case. The Hearing Board finds this testimony to be credible because she witnessed and recorded the entire trial making specific notes about Respondent’s behavior, including Respondent’s conduct outside the presence of the jury.

Respondent’s Testimony

Respondent characterized his trial demeanor as simply "bad manners." He claims he never intended to show disrespect toward the Court or disrupt the proceedings. We do not believe this statement. Respondent stated he no longer wishes to be an attorney because "the profession is corrupt." Specifically, Respondent believes the City, the DFD, and Judge Blackburn conspired to deprive his client of his Constitutional rights.24 While the Hearing Board finds Respondent fervently believed the forgoing to be true, we also find this belief does not excuse his misconduct.

In determining Respondent’s credibility or lack thereof as the trier of fact, the Hearing Board considers Respondent’s demeanor and manner during these disciplinary proceedings. Respondent was bombastic, sarcastic, and contemptuous of the disciplinary process. Respondent was thirty minutes late for the first day of the disciplinary hearing and offered that he had been delayed at a train crossing. During the disciplinary hearing he made highly improper statements, including accusing Judge Blackburn’s clerk’s father of being a member of the Ku Klux Klan. Later, he asked the same witness, who hailed from the South, "who got the shotgun and who got the pickup when you got your divorce." At one point, he called the Hearing Board a "kangaroo court."

The PDJ twice held Respondent in contempt of court for his insolent and disrespectful behavior during the disciplinary hearing. After witnessing first-hand Respondent’s demeanor in these proceedings, the Hearing Board gives no weight to his claim that he meant no disrespect to the judge, opposing counsel, and witnesses. However, we only considered Respondent’s conduct in these proceedings for the limited purpose of accessing his credibility and not as proof that he violated Colo. RPC 3.5(c) and Colo. RPC 8.4(d) as charged in the People’s complaint.

Based upon the foregoing findings and conclusions, the Hearing Board finds by clear and convincing evidence that Respondent violated Colo. RPC, 3.5(c), a lawyer shall not engage in conduct intended to disrupt a tribunal and Colo. RPC 8.4(d), a lawyer should not engage in conduct prejudicial to the administration of justice.

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.25 In imposing a sanction after a finding of lawyer misconduct, the Hearing Board must first consider the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating and mitigating evidence pursuant to ABA Standard 3.0.

ABA Standard 3.0 Considerations—
Duty, Mental State, and Injury

We begin with the proposition that members of the legal profession must adhere to the highest ethical standards regardless of the lawyer’s perceived motive for deviating from these standards.26 The Hearing Board finds that Respondent violated his duty to the legal system.27 Respondent specifically violated his duty to the legal system by disrupting the Court and thereby interfering with the legal process. Lawyers are officers of the court with the duty to abide by legal rules of substance and procedure affecting the administration of justice. Respondent failed to comply with this duty.

The Hearing Board next finds Respondent knowingly and intentionally engaged in the established misconduct.28 He was aware of the nature or attendant circumstances of his conduct, despite his claims that he was simply acting zealously on behalf of his client and he did not intend to disrupt the tribunal. We reject this argument because our review of the record is to the contrary and Respondent has no credibility on this point. The facts amply demonstrate Respondent’s repeated refusal to abide by Judge Blackburn’s rulings and we find this conduct demonstrates his knowing and intentional conduct.

Finally, the Hearing Board finds Respondent caused injury and potential injury to the legal system, and the profession. Respondent’s intentional disregard and disdain for the Court’s authority is inimical to our system of justice. The fact that one of the jurors the People interviewed wondered whether the City had "gotten to the judge" is evidence of injury he has caused.

ABA Standard 3.0 Considerations—
Aggravating Factors

Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.29 The Hearing Board considered evidence of the following aggravating circumstances in deciding the appropriate sanction:

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

The pattern of misconduct is set forth in our findings above. Suffice it to say Respondent’s misconduct pervaded the proceedings. Although Respondent acted respectfully in the early stages of the trial, his conduct became increasingly obstreperous as the trial proceeded. Generally, the Hearing Board finds his conduct in the trial to have been boorish and insolent to a degree that he impeded the proceedings. Respondent amply demonstrated he uses bullying tactics when he does not get his way.

However, we note that Respondent’s pattern of misconduct was within a single trial. There was no evidence of a pattern outside the trial. Therefore, we do not find clear and convincing evidence of a pattern of misconduct. Nor do we find clear and convincing evidence of multiple offenses. While the People brought two separate claims under the Colorado Rules of Professional Conduct, the gravamen of Respondent’s misconduct was his disrespect for Judge Blackburn and the judicial process. Therefore, we do not find this sufficient to find multiple offenses.

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

Respondent has held his law license for nearly twenty-five years. He should have recognized that his conduct was highly improper based upon his experience in the legal profession. Even a novice lawyer would recognize how improper and disrespectful it is to directly challenge a judge’s authority in the manner Respondent challenged Judge Blackburn’s authority.

ABA Standard 3.0 Considerations—Mitigating Factors

Mitigating factors are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.30

Absence of Prior Discipline 9.32(a)

Respondent has no prior discipline in nearly twenty-five years of practice. The Hearing Boards finds this to be a substantial mitigating factor.

Imposition of Other Penalties 9.32(k)

Judge Blackburn found Respondent in contempt of court and fined him $500 for his obstreperous conduct. While this sanction is a penalty Respondent has suffered as a result of his misconduct, the Hearing Board does not grant inordinate weight to it because this monetary sanction does not fully address the ethical issues or conduct we address herein.

Analysis Under ABA Standards and Colorado Case Law

The Hearing Board considers the following standards most appropriate given our finding that Respondent intended to disrupt a tribunal and engaged in conduct that is prejudicial to the administration of justice.31 ABA Standard 6.21 provides:

Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury of potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding (emphasis added).

ABA Standard 6.22 provides:

Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or potential interference with a legal proceeding (emphasis added).

Although the Hearing Board has found that Respondent knowingly and repeatedly violated court orders and did so intending to disrupt the tribunal by insolently challenging its authority, we do not find that disbarment is the appropriate sanction. Instead, the Hearing Board finds that ABA Standard 6.22 is the most appropriate standard to apply in this case. We make this finding, in part, because of Judge Blackburn’s diligence in reasonably moving the trial forward in spite of Respondent’s recalcitrance.

Although there were delays, we cannot find clear and convincing evidence they were serious or potentially serious given Judge Blackburn’s ability to move the trial forward and the absence of the need for a mistrial. We also make this finding because the jury was intelligent, conscientious, and sophisticated. Most important, they followed Judge Blackburn’s instructions in reaching a verdict.32 They did so, in part, because Judge Blackburn maintained control of the courtroom. We therefore find the evidence presented shows Respondent’s misconduct interfered, rather than substantially interfered, with the trial. Thus, ABA Standard 6.22 is most applicable.

It is fundamental to our system of justice that lawyers maintain the respect due the tribunal, witnesses, and fellow lawyers. The gravamen of Respondent’s misconduct concerns his insolent behavior and disrespect toward the tribunal. In addition, he engaged in bullying tactics and inappropriate statements to opposing counsel and court staff. Colorado case law dealing with these subjects holds that even an isolated occurrence of such misconduct warrants discipline. See People v. Dalton, 840 P.2d 351, 352 (Colo.1992) citing Losavio v. District Court, 512 P.2d 266, 268 (Colo. 1973).

The Colorado Supreme Court has approved a public censure for a lawyer who posed questions to witnesses concerning evidence the court had ruled inadmissible and commented on the same when the evidence showed the conduct was an aberration from the lawyer’s normal conduct. People v. Janiszewski, 901 P.2d 476, 477 (Colo. 1995). However, as we find above, Respondent acted intentionally in disobeying the Court’s orders and such actions were not an aberration in the context of a single trial. Respondent’s conduct throughout the eight-day trial grew increasingly belligerent as we noted above.

If a single inappropriate comment had been directed to opposing counsel, witnesses or parties during a highly contested trial, a public censure would generally be appropriate. People v. Sharpe, 781 P.2d 659, 660 (Colo. 1989) (where a deputy district attorney called a witness a "chili eating bastard").

Nevertheless, a single act of disobedience to a direct order of the court may be sufficiently egregious to warrant a suspension. In People v. Roose, 69 P.3d 43, 46 (Colo. 2003), the Colorado Supreme Court imposed a suspension of a year and a day when the evidence clearly showed a lawyer walked out of court despite the court’s admonition she remain and continue representing her client in a scheduled hearing. In Roose, the court found the Hearing Board’s recommended sanction of disbarment too harsh because the evidence showed respondent acted knowingly, not intentionally. The Supreme Court found that suspension rather than disbarment the most appropriate sanction stating:

In the absence of a finding of intent to obtain a benefit by disobeying the district court’s order or to deceive the court of appeals, the appropriate sanction for both knowingly submitting materially false statements and knowingly violating a court order, as long as those acts caused at least some injury to a party or adverse effect on the legal proceeding, is suspension. See ABA Standards 6.12 and 6.22; See also In the Matter of Attorney C, 47 P.3d 1167, 1173 (Colo. 2002).33

The Hearing Board finds Roose helpful in its analysis.34 However, Respondent engaged in much more harmful and culpable conduct than Roose when he repeatedly disobeyed and undermined Judge Blackburn’s authority throughout an eight-day trial. Roose walked out of court and that was the extent of her misconduct before the court. Respondent, on the other hand, continued to disrupt the proceedings in what we find to be a pattern of challenging the Court. Although Respondent perceived such action was necessary to deal with a corrupt system of justice, we find that no excuse or mitigation for his misconduct.

"Unless order is maintained in the courtroom and disruption prevented, reason cannot prevail and constitutional rights to liberty, freedom and equality under law cannot be protected. The dignity, decorum and courtesy [that] have traditionally characterized the courts of civilized nations are not empty formalities. They are essential to an atmosphere in which justice can be done." Code of Trial Conduct § 17 (American College of Trial Lawyers 1983). Matter of Vincenti, 604, 458 A.2d 1268, 1275 (N.J.1983). Like the Respondent in Vincenti, Respondent engaged in a pattern of sarcastic and disrespectful behavior toward the Court, witnesses, and opposing counsel.

Based upon this authority, the Hearing Board finds a suspension of a minimum of a year and a day is consistent with Colorado case law and the ABA Standards.

VI. CONCLUSION

Trial attorneys must not lose their perspective and engage in misconduct even though such behavior occurs in the heat of a hard fought trial. If they engage in a single act of misconduct, the sanction rarely warrants a lengthy suspension. This is especially so if the lawyer thereafter abides by the court’s admonition to stop engaging in the offending conduct. However, Respondent’s misconduct and bullying tactics pervaded the trial. At the core of Respondent’s misconduct is his flawed but firmly held belief that he was justified in conducting himself as he did. Indeed, Respondent argues that he should receive a commendation for taking on Mr. Cadorna’s case and fighting a corrupt system of justice.

There is a point at which zealously representing a client does harm to our judicial system, especially when the lawyer disregards the legitimate orders of the tribunal as Respondent did here. The Hearing Board believes this case demonstrates what can happen when an attorney abandons respect for the tribunal under the guise of zealous representation.

Yet, we find that Respondent’s lack of a prior discipline in nearly twenty-five years of practice an indication that rehabilitation may be possible. The Hearing Board therefore concludes that a suspension of one year and one day is the appropriate sanction.

VII. ORDER

The Hearing Board therefore ORDERS:

1. MARK E. BRENNAN, Attorney Registration No. 14012 is hereby SUSPENDED from the practice of law for a period of ONE YEAR AND ONE DAY. The suspension 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, as a condition precedent to any petition for reinstatement pursuant to C.R.C.P. 251.29(c), SHALL submit to an Independent Medical Examination (IME) by a qualified doctor agreeable to the People. Respondent, not the People, shall be responsible for the cost of the IME. Once a qualified expert is chosen, it is Respondent’s duty to advise the PDJ so that an appropriate order may be drafted and presented to the doctor as to what issues to address in a report to the PDJ. The doctor shall have access to all records in the People’s possession, as well as this opinion, before meeting with Respondent for the scheduled IME.

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

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1. Colo. RPC 3.5, comment [2] (2007) states, "The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics."

2. A tribunal is defined as "[a] court or other adjudicatory body." See Black’s Law Dictionary 1544 (8th ed. 2004). Inherent in the Hearing Board’s findings is the conclusion that the judge is a representative of the judicial system and its tribunals. Any misconduct directed toward the judge is necessarily directed at the tribunal or office he/she holds. We also believe that disrespect or sarcasm towards the judge’s staff is improper because they are court agents.

3. Respondent’s misconduct went well beyond poor choice of words or misdirected enthusiasm in a heated discussion with the court. See In re Snyder, 472 U.S. 634 (1985).

4. See the People’s Exhibits 3-5. A transcript helps in the Hearing Board’s determination of facts, however, as more fully detailed in this opinion, the Hearing Board made its findings from a number of sources, including the testimony of witnesses including Respondent.

5. The issue of whether Mr. Cadorna committed theft was hotly disputed in the federal court. Respondent presented evidence that the Civil Service judge who had heard Mr. Cadorna’s appeal found that there was insufficient evidence to show Respondent’s client committed theft. Nevertheless, the judge decided that Cadorna was not eligible to be reinstated to the Denver Fire Department. See C.R.S. §31-30.5-604. The Hearing Board considered these and other background facts to give context to Respondent’s behavior and tactics during the trial.

6. See the People’s Exhibit 6, page 846. C.R.S. §31-30.5-604.

7. See the People’s Exhibits 1 and 2.

8. The Hearing Board does not consider this conduct for any other purpose than to show the events leading up to the trial. Respondent in his case in chief, not the People, disclosed these events to the Hearing Board. The People’s complaint is silent about any controversy involving Judge Blackburn’s clerk prior to the trial.

9. See the People’s Exhibit 5, Trial Transcript page 430.

10. See the People’s Exhibit 5, Trial Transcript pages 435-36.

11. See the People’s Exhibit 5, Trial Transcript page 440.

12. See the People’s Exhibits 5-11, Trial Transcript pages 502, 504, 514, 540, 541, 557, 586, 588, 592, 599, 604, 613, 622, 633, 633, 701, 720, 750, 761, 762, 768, 830, 838, 840, 867, 872, 1052, 1077, 1078, 1082, 1128, 1168, 1167, 1217, 1247, 1254, 1305, 1309, 1316, 1317. 1319, 1376, 1377, 1386, 1390, 1406, 1436, 1439, 1458, 1460, 1486, 1607, 1615, 1639.

13. See the People’s Exhibit 5, page 607.

14. See the People’s Exhibit 5, page 619.

15. See the People’s Exhibits 7-9, pages 1078, 1082, 1097, 1217, 1247, 1254, 1305, 1317, 1319, 1386, 1388, 1390, and 1436.

16. See the People’s Exhibit 9, pages 1436-37.

17. See the People’s Exhibit 9, page 1438.

18. Id.

19. See the People’s Exhibit 6, page 840.

20. These are Spanish pejorative phrases. The first phrase is one literally translated as "damned goat, big goat." The second phrase is literally translated as "son of a whore."

21. See the People’s Exhibit 9, page 1458.

22. See the People’s Exhibit 9, page 1459.

23. See the People’s Exhibit 9, page 1461.

24. While the People’s notes of the juror’s comments, including those of the foreperson, would indicate that they did not feel Respondent was trying to disrupt the proceedings, their statements were made after learning Judge Blackburn had granted a new trial and discounted, in their opinion, their time, deliberations, and ability to judge the case on the facts. Furthermore, the jurors were not privy to Respondent’s most egregious behavior, much of which occurred outside their presence. Taken as a whole, we find the testimony of the court reporter more credible on the issue of Respondent’s behavior during the entire proceeding.

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

26. See In re Pautler, 47 P.3d 1175, 1176 (Colo. 2002).

27. See ABA Standard 6.0.

28. See ABA Definitions. "‘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."

29. See ABA Standard 9.21.

30. See ABA Standard 9.31.

31. The appendix to the ABA Standards states that the appropriate standards for Rule 3.5(c) and Rule 8.4(d) violations are 6.3 and 6.0. The Hearing Board finds that ABA Standards 6.21 and 6.22 are inclusive within ABA Standard 6.0 and are the most applicable standards here because their commentaries specifically address the misconduct found in this case.

32. Although none of the jurors testified live in these proceedings, the PDJ allowed Respondent to present statements the People took from them in the course of the disciplinary investigation. The PDJ also allowed the video deposition of Mrs. Dillingham to be presented to the Hearing Board for their consideration. Without this evidence, Respondent would have been entirely precluded from presenting evidence of their observations during the trial. As stated above, these jurors were not privy to some of Respondent’s most egregious behavior because Judge Blackburn reasonably asked them to return to the jury room while addressing Respondent. The PDJ, exercising discretion, allowed the deposition of Mrs. Dillingham and the juror’s statements to the People’s investigator to be presented to the Hearing Board.

33. See In re Roose, 69 P.3d 43, 49 (Colo. 2003). The Hearing Board notes one of the allegations in Roose was that the respondent violated Colo. RPC 8.4(d), conduct prejudicial to the administration of justice, the same as claim two in the present case.

34. The Hearing Board notes Roose was also charged with violating Colo. RPC 3.4(c), knowingly disobeying a court order.

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Case No. 09PDJ099

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JUDITH ANNE EATON.

July 23, 2010

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

On June 9, 2010, the Presiding Disciplinary Judge (the Court) held a Sanctions Hearing pursuant to C.R.C.P. 251.15(b). Elizabeth Espinosa Krupa appeared on behalf of the Office of Attorney Regulation Counsel (the People). Judith Anne Eaton (Respondent) did not appear, nor did counsel appear on her behalf. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE AND SANCTION

Respondent failed to represent two separate clients with reasonable diligence and promptness, neglected to keep those clients reasonably informed, failed to hold a client’s property separate from her own property, and misrepresented facts to a client. In some instances, Respondent knew or should have known of her misconduct, while in other instances Respondent acted negligently, at the least. Through her conduct, Respondent caused her clients serious injury or potential injury. Suspension is generally appropriate in such circumstances.

Respondent has not participated in the disciplinary proceedings brought against her, and the Court is aware of only one factor that mitigates Respondent’s conduct. After considering the nature of Respondent’s misconduct and its consequences, the significant aggravating factors, and the paucity of countervailing mitigators, the Court finds the appropriate sanction for Respondent’s misconduct is suspension for two years.

II. PROCEDURAL HISTORY

On November 18, 2009, the People filed a complaint alleging that Respondent violated several Rules of Professional Conduct. Respondent failed to answer the complaint, and the Court granted a motion for default on March 18, 2010. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.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 complaint.2 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on July 17, 1985. She is registered upon the official records, Attorney Registration No. 14783, and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.

The Joyce Washington Matter

Joyce Washington (Washington) retained Respondent in the summer of 2005 to represent her in connection with injuries she suffered in an automobile accident. Respondent agreed to handle Washington’s case on a contingency fee basis.

On or about July 9, 2007, Respondent filed a complaint in Denver County District Court on Washington’s behalf. In or around March 2008, Washington signed a settlement agreement in that case. On or about April 10, 2008, Respondent and the opposing counsel filed—and the court approved—a stipulation that dismissed Washington’s case with prejudice. Although Respondent signed the stipulation as Washington’s attorney, Respondent did not advise Washington of this event, and Washington did not know the stipulation had been filed.

On or about June 3, 2008, the opposing counsel sent Respondent a settlement check for $10,000 made payable to Respondent’s law office and to Washington. Respondent never advised Washington that she had received these funds. Respondent did not give any portion of the $10,000 check to Washington. Neither did Respondent cash the check.

In February 2009, Washington attempted to contact Respondent to check on the status of her case. Respondent’s telephone was temporarily disconnected. When Washington called Respondent in early March 2009, a recording stated that the number was disconnected and no longer in use.

On March 20, 2009, Washington sent Respondent a certified letter regarding her attempts to contact Respondent. The letter noted that Washington had not heard from Respondent since early June 2008. The post office returned the letter as unclaimed.

Respondent violated several Rules of Professional Conduct through the course of her representation of Washington. First, Respondent violated Colo. RPC 1.3, which requires lawyers to represent clients with reasonable diligence and promptness. Respondent transgressed this rule by failing to disburse any portion of the settlement to Washington. Next, Respondent violated Colo. RPC 1.4(a)(3), which requires lawyers to keep a client reasonably informed about the status of a matter. Respondent breached this rule by failing to (a) advise Washington of the stipulation; (b) notify Washington of receipt of the settlement check; and (c) respond to Washington’s requests for status updates. Third, Respondent violated Colo. RPC 1.15(a), which requires lawyers to hold property of clients that is in the lawyer’s position in connection with a representation separate from the lawyer’s own property. Respondent failed to deposit the settlement check into a trust account and never obtained Washington’s consent to hold the settlement check in another manner.

The Christine and Alfonso Valdez Matter

Respondent represented Christine Valdez (Valdez) in her injury claims relating to an automobile accident that took place in August 2003. Respondent filed a complaint on Valdez’s behalf on August 14, 2006.

On May 4, 2007, the court ordered that Respondent had sixty days to serve and file returns of service on the defendants. The court further provided that failure to comply with the order would result in dismissal of the case without prejudice. Respondent did not file returns of service with the court or otherwise respond to the court’s order, and the court dismissed Valdez’s case on August 3, 2007. The statute of limitations precluded re-filing of the case.

Notwithstanding the dismissal of Valdez’s case and the applicable statute of limitations, Respondent represented to Valdez as late as November 6, 2008, that Respondent was still pursuing the claim and that a trial date would be set. Valdez heard nothing from Respondent regarding this matter after November 6, 2008.

In her representation of Valdez, Respondent violated several rules. First, Respondent violated Colo. RPC 1.3 by neglecting to serve and file returns of service on the defendants in Valdez’s case. Second, Respondent violated Colo. RPC 1.4(a)(3) by failing to advise Valdez that (a) Respondent had failed to serve and file returns of service; (b) Respondent had failed to respond to the court’s order of May 4, 2007; and (c) the court had subsequently dismissed Valdez’s case. Respondent also breached this rule by failing to communicate with Valdez after November 6, 2008. Lastly, Respondent violated Colo. RPC 8.4(c), which bars lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent misrepresented facts by informing Valdez that Respondent was still pursuing Valdez’s injury claim after that case had been dismissed.

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.3 In selecting a sanction after a finding of lawyer misconduct, the Court must consider the duty violated; the lawyer’s mental state; the actual or potential injury caused by the lawyer’s misconduct; and the existence of aggravating and mitigating evidence pursuant to ABA Standard 3.0.

ABA Standard 3.0—Duty, Mental State, and Injury

Duty: The complaint, as referenced by the order of default, establishes that Respondent violated a duty to her clients. That duty arises out of the nature of the basic relationship between the lawyer and the client.4 Specifically, Respondent acted without the requisite reasonable diligence and promptness, did not keep clients reasonably informed about the status of their matters, failed to properly preserve a client’s property, and misrepresented facts to a client.

Mental State: With regard to Colo. RPC 1.3, Respondent was negligent, at the least, in failing to disburse the settlement funds to Washington and in neglecting to file returns of service in Valdez’s case. With respect to Respondent’s violation of Colo. RPC 1.4(a)(3), the complaint explicitly establishes that Respondent knew or should have known that she did not keep either Washington or Valdez adequately informed.5 Next, the evidence indicates that Respondent was negligent, at a minimum, in failing to deposit Washington’s settlement funds in an appropriate trust account, as required by Colo. RPC 1.15(a). It is unclear whether Respondent knew she did not appropriately safeguard Washington’s money. Finally, the complaint expressly establishes that Respondent knew she was making a false representation to Valdez regarding the status of Valdez’s case, or was at least reckless in failing to determine whether that statement was true.

Injury: Respondent’s misconduct caused serious injury to her clients. As of the date of the Sanctions Hearing, Washington still had not received the settlement funds owed to her, even though the settlement was reached two years earlier. Valdez was seriously injured by Respondent’s failure to serve returns of service; as a result of Respondent’s conduct, Valdez’s case was dismissed and could not be re-filed due to the statute of limitations. On a less tangible level, both Washington and Valdez testified at the Sanctions Hearing that they had lost trust in the legal system as a result of Respondent’s misconduct.

ABA Standard 3.0—Aggravating & Mitigating Factors

Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed.6 Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.7 In this case, Respondent has not participated in the disciplinary proceedings, and the Court is aware of only one mitigating circumstance. The Court considered evidence of the following aggravating and mitigating circumstances in deciding the appropriate sanction.

Prior Disciplinary Offenses—9.22(a): Respondent was suspended in 1992 for one year and one day for neglect, and the Court notes the similarity between that offense and Respondent’s conduct here. Nevertheless, Respondent’s prior disciplinary offense, which took place eighteen years ago, qualifies as remote in time, itself a mitigating factor.8 Because these two considerations offset one another, the Court accords neither any weight in determining the appropriate sanction in this case.

Dishonest or Selfish Conduct—9.22(b): As established by the order of default, Respondent had a selfish motive in falsely informing Valdez that she was still pursuing Valdez’s claim. Respondent’s motive was to cover her lack of diligence, her failures to communicate, and her prior abandonment of this matter.

Pattern of Misconduct—9.22(c): Respondent’s treatment of Washington and Valdez, combined with her prior history of neglect, represents a pattern of neglect.

Multiple Offenses—9.22(d): In the course of representing Washington and Valdez, Respondent violated four Rules of Professional Conduct.

Substantial Experience in the Practice of Law—9.22(i): Respondent was admitted to the bar in 1985. Therefore, she has substantial experience in the practice of law.9

Analysis Under ABA Standards and Colorado Case Law

As noted above, the order of default established that Respondent violated Colo. RPC 1.3, 1.4(a)(3), 1.15(a), and 8.4(c). With respect to Respondent’s violation of Colo. RPC 1.3 and 1.4(a)(3), ABA Standard 4.42 provides that suspension is generally appropriate when a lawyer causes injury or potential injury to a client by knowingly failing to perform services for a client or engaging in a pattern of neglect. ABA Standard 4.13 provides the relevant presumptive sanction for Respondent’s violation of Colo. RPC 1.15(a): reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to the client. In relation to Respondent’s violation of Colo. RPC 8.4(c), ABA Standard 4.62 provides that suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.

The ABA Standards provide that, in cases involving multiple charges of misconduct, "[t]he ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct among a number of violations; it might well be and generally should be greater than the sanction for the most serious misconduct."10

Colorado Supreme Court case law applying the ABA Standards also holds that suspension is appropriate in cases similar to this one. The Colorado Supreme Court’s decision in People v. Schaefer provides particularly relevant precedent.11 In that case, the attorney mishandled a client’s real property matter in several ways: he failed to follow his client’s directions, refused to refund money owed to his client, and kept funds obtained through a closing in his operating account.12 Further, the attorney intentionally failed to carry out a contract of employment entered into with a client and intentionally prejudiced or damaged his client.13 Several aggravating factors were present, including a prior disciplinary record, but no mitigating factors were found.14 The Colorado Supreme Court determined that a two-year suspension was the appropriate sanction.15

Here, Respondent’s misconduct is comparable to the misconduct in Schaefer. The lack of intentional misconduct on Respondent’s part is counterbalanced by her abandonment of two separate clients. In addition, the relevant aggravating factors and the paucity of mitigating factors are similar in this case and in Schaefer.

Although significant mitigating factors may overcome the presumption of suspension,16 evidence of mitigating factors is minimal here. Meanwhile, the Court is significantly influenced by Respondent’s multiple offenses and the dishonest nature of her conduct.

V. CONCLUSION

Respondent’s misconduct is troubling because it has resulted in real injury to both of her clients: it delayed Washington’s receipt of her settlement funds for two years and precluded Valdez from pursuing her personal injury claim. Moreover, because Respondent abandoned her duties to Washington and Valdez, their confidence in the legal system has eroded. In addition, the Court is concerned that Respondent has not cooperated or participated in any manner in the disciplinary proceedings. In light of Respondent’s misconduct and the need to protect the public from future instances of such behavior, the Court concludes Respondent should be suspended from the practice of law for two years.

VI. ORDER

The Court therefore ORDERS:

1. Judith Anne Eaton, Attorney Registration No. 14783, is hereby SUSPENDED from the practice of law for a period of TWO YEARS. The suspension 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 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); C.R.C.P. 251.15(b).

2. See the People’s complaint in 09PDJ099 for further detailed findings of fact.

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

4. See ABA Standard 4.0.

5. See ABA Standards, Definitions. "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.

6. See ABA Standard 9.21.

7. See ABA Standard 9.31.

8. See ABA Standard 9.32(m). See also, e.g., People v. Gonzales, 922 P.2d 933, 935 (Colo. 1996); People v. Murray, 912 P.2d 554, 556 (Colo. 1996).

9. See In re Thompson, 991 P.2d 820, 823 (Colo. 1999).

10. See ABA Standards § II at 7.

11. 938 P.2d 147 (Colo. 1997).

12. Id. at 148-49.

13. Id. at 149.

14. Id. at 150.

15. Id.

16. See People v. Waitkus, 962 P.2d 977 (Colo. 1998).

_______________

Case No. 09PDJ098

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

ROBERT THOMAS EDWARDS

August 18, 2010

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

On June 25, 2010, the Presiding Disciplinary Judge (the Court) held a Sanctions Hearing pursuant to C.R.C.P. 251.15(b). April M. McMurrey appeared on behalf of the Office of Attorney Regulation Counsel (the People). Robert Thomas Edwards (Respondent) did not appear, nor did counsel appear on his behalf. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE AND SANCTION

Disbarment is typically appropriate when a lawyer knowingly converts or misappropriates client funds, in the absence of significant mitigating factors. Respondent knowingly failed to return an unearned retainer to a client for whom he had performed little or no work. In addition, Respondent misrepresented to his client that he had been called to military duty when in fact he had been suspended for professional misconduct. The Court must determine the appropriate sanction for Respondent.

Respondent has not participated in the disciplinary proceedings brought against him, and the Court is aware of just one factor that mitigates Respondent’s conduct. After considering the nature of Respondent’s misconduct and its consequences, the aggravating factors, and the scarcity of countervailing mitigating factors, the Court finds the appropriate sanction for Respondent’s misconduct is disbarment.

II. PROCEDURAL HISTORY

On November 16, 2009, the People filed a complaint alleging that Respondent violated several Rules of Professional Conduct. Respondent failed to answer the complaint, and the Court granted a motion for default on March 31, 2010. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.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 complaint.2 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on May 18, 2005. He is registered upon the official records, Attorney Registration No. 36214, and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.

Respondent agreed to represent Jessica Foster (Foster) in a domestic relations matter. On November 24, 2008, Respondent and Foster executed an attorney-client fee agreement. The agreement provided that Respondent would provide legal services for post-decree issues in a pending dissolution matter; that Foster would pay a $3,000 retainer; and that Respondent would bill at the rate of $175 per hour.

Foster paid the retainer to Respondent, who negotiated that check in late November 2008 and placed the funds into his trust account. However, Respondent performed little or no work on Foster’s matter and did not enter his appearance in Foster’s case.

Respondent was suspended from the practice of law for one month by an order dated December 30, 2008, and effective January 30, 2009. Respondent did not inform Foster of his suspension. Instead, in a letter dated January 9, 2009, Respondent wrote Foster a letter falsely claiming that he had been ordered to active duty in the United States Army. Respondent stated that his pending military service required him to withdraw from Foster’s case. He promised to send Foster a final balance and to return the balance of her retainer.

On February 3, 2009, Foster responded to Respondent’s letter, requesting that he return her file and her retainer immediately. Respondent did not reply. By February 2009, Respondent’s trust account was empty. As of the date of the sanctions hearing, Respondent had not returned Foster’s file or any portion of her retainer.

Respondent violated several Rules of Professional Conduct in the course of representing Foster. As set forth in the first and second claims in the People’s complaint, Respondent twice violated Colo. RPC 8.4(c), which prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. First, Respondent failed to return Foster’s retainer despite performing no meaningful work on Foster’s behalf, thereby converting or misappropriating client funds. Second, Respondent violated Colo. RPC 8.4(c) by making false statements to Foster regarding military service. As set forth in the third claim, Respondent violated Colo. RPC 1.15(b) by failing to return the funds to which Foster was entitled.3 As set forth in the fourth claim, Respondent also violated Colo. RPC 1.16(d) by neglecting to return Foster’s file or unearned retainer when his suspension took effect.

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 selecting a sanction after a finding of lawyer misconduct, the Court must consider the duty violated; the lawyer’s mental state; the actual or potential injury caused by the lawyer’s misconduct; and the existence of aggravating and mitigating evidence pursuant to ABA Standard 3.0.

ABA Standard 3.0—Duty, Mental State, and Injury

Duty: The complaint, as referenced by the order of default, establishes that Respondent violated a duty to his client by converting or misappropriating funds, making false statements to his client, and failing to return client funds.5 Respondent also violated the duties he owed as a professional by failing to properly withdraw from representation.6

Mental State: With respect to Colo. RPC 8.4(c), the complaint explicitly establishes that Respondent’s conversion or misappropriation of funds was knowing and that his false statements with respect to military service were, at a minimum, reckless. With respect to Respondent’s failure to return Foster’s funds and her file pursuant to Colo. RPC 1.15(b) and 1.16(d), the evidence establishes that Respondent acted knowingly.

Injury: Respondent’s misconduct caused injury to his client. Foster testified at the sanctions hearing that, due to Respondent’s failure to either handle her matter or return her retainer, she was forced to borrow substantial sums of money in order to hire another attorney to represent her. Before hiring another attorney, Foster attempted, with little success, to represent herself in court. Respondent’s misconduct also delayed Foster’s case.

ABA Standard 3.0—Aggravating and Mitigating Factors

Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed.7 Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.8 In this case, Respondent has not participated in the disciplinary proceedings, and the Court is aware of just one mitigating circumstance. The Court considered evidence of the following aggravating and mitigating circumstances in deciding the appropriate sanction.

Prior Disciplinary Offenses—9.22(a). Respondent was suspended from the practice of law for thirty days in 2008, for violation of Colo. RPC 1.15(g) (failure to maintain adequate trust account records), Colo. RPC 3.4(c) (disobeying an obligation under the rules of a tribunal), and Colo. RPC 8.1(b) (failure to respond to a lawful demand for information).

Multiple Offenses—9.22(d): Respondent committed four distinct rule violations in the matter addressed here.

Indifference to Making Restitution—9.22(j). Respondent has not returned Foster’s money to her.

Inexperience in the Practice of Law—9.32(f). Respondent was admitted to the bar in May 2005, less than four years before the misconduct in this case. Therefore, he was relatively inexperienced in the practice of law.9 However, inexperience carries little to no weight as a factor to mitigate dishonest conduct by a lawyer.10

Analysis Under ABA Standards and Colorado Case Law

As noted above, the order of default established that Respondent violated Colo. RPC 8.4(c), 1.15(b), and 1.16(d).

The ABA Standards further provide that, in cases involving multiple charges of misconduct, "[t]he ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct among a number of violations; it might well be and generally should be greater than the sanction for the most serious misconduct."12

The Colorado Supreme Court has held that, except in cases of significant mitigation, disbarment is the appropriate sanction for knowing misappropriation of client funds in violation of Colo. RPC 8.4(c).13 The Colorado Supreme Court has applied this rule quite strictly, stating that "in the absence of significant factors in mitigation disbarment is virtually automatic when a lawyer knowingly converts client funds."14

This Court notes that the rule of presumptive disbarment for knowing conversion was developed in the context of cases involving extremely serious misconduct.15 The Court recognizes that a number of those cases involved more egregious misconduct than that presented here. For example, in People v. Dice, which the People cite in their sanctions hearing brief, the lawyer stipulated to disbarment after knowingly misappropriating over $50,000 in funds belonging to an estate he was representing and then lying about those actions.16 The lawyer also violated a probate court order by using estate proceeds to purchase artwork for his own benefit, recklessly misappropriated client funds in multiple other cases, and failed to keep parties informed about the status of several matters.17 In addition, in some cases in which lawyers have been disbarred for having failed to return unearned fees or client funds (as opposed to having affirmatively withdrawn client funds or engaged in fraudulent practices), those lawyers abandoned their clients.18

Here, the facts established by default do not demonstrate that Respondent abandoned his client. Further, his misconduct was limited to actions affecting just one client, and that misconduct was not characterized by a pattern of repeated wrongdoing. For these reasons, the Court is concerned that disbarment is a disproportionately severe sanction in comparison to similar cases of attorney misconduct. Yet given the determination that Respondent knowingly converted or misappropriated client funds and in light of the minimal mitigating factors applicable here, the Court finds that it lacks the discretion to impose a lesser penalty.

For instance, in In re Thompson, the Colorado Supreme Court overruled a prior case in which a lawyer who misappropriated funds was suspended for a year and a day.19 The Thompson court held that an earlier decision, People v. Bronstein,20 was "an unjustified departure from our cases that prescribe disbarment for knowing misappropriation of funds. Bronstein is therefore overruled to the extent that it suggests that disbarment is not the presumed sanction when a lawyer knowingly misappropriates funds."21

The Colorado Supreme Court also emphasized in In re Cleland that there is a "bright-line" rule that "disbarment is the presumed sanction when knowing misappropriation is shown . . . ."22 In that matter, the hearing board had cited case law that, in its view, discredited a mechanical interpretation of the presumption of disbarment.23 The Colorado Supreme Court rejected the hearing board’s attempt to distinguish the cases it had cited.24 The Cleland decision concludes that the Colorado Supreme Court had consistently applied the bright-line presumption of disbarment, and that the rule serves to "eliminate the disparate treatment of lawyers who have committed serious misconduct, when the unequal treatment may otherwise be based on invidious and irrelevant factors."25

The Court does not mean to overstate the presumption of disbarment. The Colorado Supreme Court has cautioned against applying that presumption without adequate consideration of the context. In In re Fischer, the Colorado Supreme Court determined that the hearing board had "overemphasized the notion of a ‘presumption of disbarment,’ . . . and undervalued the importance of other factors in determining the needs of the public."26 The decision further states that "[e]ven ‘knowing conversions’ of funds entrusted to attorneys do not always present the same need for sanctions."27 But Fischer does not suggest that the Court should alter the sanction here, because Fischer used evidence of extensive mitigation as the justification for departing from the presumptive sanction of disbarment.28 The numerous mitigating factors in that case included evidence of the lawyer’s recognition of his ethical violations, his acceptance of responsibility, his cooperative attitude, his excellent reputation, his pro bono service, the opinion of others that he was not a risk to the public, and the absence of prior discipline.29 Here, by contrast, the sole mitigating factor is Respondent’s relative inexperience in the practice of law, and that factor is accorded little, if any, weight with respect to dishonest behavior.30

Accordingly, the Court determines that the appropriate sanction for Respondent’s misconduct is disbarment.

V. CONCLUSION

Respondent’s actions in this case are serious instances of misconduct that demonstrate a lack of concern for his client’s welfare. Respondent’s dishonesty, his failure to make restitution, and his failure to participate in the disciplinary process are particularly troubling to the Court. In light of Respondent’s misconduct and the need to protect the public from future instances of such behavior, the Court concludes Respondent should be disbarred.

VI. ORDER

The Court therefore ORDERS:

1. Robert Thomas Edwards, Attorney Registration No. 36214, is hereby DISBARRED. The disbarment SHALL become effective thirty-one days from the date of this order upon the issuance of an "Order and Notice of Disbarment" by the PDJ and in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h).

2. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the PDJ on or before Tuesday, September 7, 2010. No extensions of time will be granted.

3. Respondent SHALL reimburse the Colorado Attorney’s Fund for Client Protection in the amount of $3,000 within thirty-one (31) days of the date of this order.

4. 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); C.R.C.P. 251.15(b).

2. See the People’s complaint for further detailed findings of fact.

3. The third claim of the People’s complaint also alleges that Respondent violated C.R.C.P. 251.5(c), which provides that any act or omission which violates the attorney discipline rules or an order of discipline is grounds for discipline. The underlying alleged violation is that of C.R.C.P. 251.28(b), which states that an attorney subject to a served suspension must return to the client any property and papers to which the client is entitled.

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

5. See ABA Standard 4.0.

6. See ABA Standard 7.0.

7. See ABA Standard 9.21.

8. See ABA Standard 9.31.

9. See In re Cleland, 2 P.3d 700, 705 (Colo. 2000) (lawyer who engaged in professional misconduct approximately six years after obtaining his law license was deemed to be relatively inexperienced in the practice of law).

10. See id.; In re Thompson, 991 P.2d 820, 823 (Colo. 1999).

11. Although Appendix 1 of the ABA Standards indicates that the standards applicable to violations of Colo. RPC 8.4(c) are Standards 4.6 and 5.1, the Court determines that ABA Standard 4.1 is more relevant to this type of violation of Colo. RPC 8.4(c), because that standard specifically addresses conversion.

12. See ABA Standards § II at 7.

13. In re Haines, 177 P.3d 1239, 1250 (Colo. 2008).

14. People v. Lefly, 902 P.2d 361, 364 (Colo. 1995); see also People v. Varallo, 913 P.2d 1, 10-11 (Colo. 1996) (the presumed sanction for knowing conversion of client funds is disbarment, regardless of whether the lawyer intended to permanently deprive the client of those funds).

15. See, e.g., People v. Guyerson, 898 P.2d 1062, 1062-63 (Colo. 1995) (lawyer converted client and firm funds by engaging in fraudulent billing practices on numerous occasions and pled guilty to felony theft); People v. Robbins, 869 P.2d 517, 517 (Colo. 1994) (lawyer converted $25,000 of client funds by withdrawing funds from trust account on seven separate occasions); People v. Young, 864 P.2d 563, 563-64 (Colo. 1993) (lawyer used funds belonging to four separate clients to cover firm expenses or to cover a discrepancy in an unrelated account); People v. Finesilver, 826 P.2d 1256, 1256-57 (Colo. 1992) (lawyer converted at least $150,000 in funds from one trust, converted $50,000 in funds from a second trust, misappropriated funds from other clients, and forged a court document).

16. 947 P.2d 339, 339 (Colo. 1997).

17. Id. at 339-40.

18. See, e.g., In re Stevenson, 979 P.2d 1043-44 (Colo. 1999) (disbarment was appropriate sanction for lawyer who did not forward client funds or files after the client attempted to discharge the lawyer; the lawyer had both abandoned the client and misappropriated her funds); People v. Roybal, 949 P.2d 993, 996-98 (Colo. 1997) (disbarment was appropriate sanction for lawyer who failed to return unearned fees for two clients, abandoned one of those clients, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation).

19. 991 P.2d 820, 823 (Colo. 1999).

20. 964 P.2d 514 (Colo. 1998).

21. 991 P.2d at 823 (citation omitted).

22. 2 P.3d 700, 703-04 (Colo. 2000).

23. Id.

24. Id. at 704.

25. Id. at 704, 704 n.6.

26. 89 P.3d 817, 822 (Colo. 2004).

27. Id.

28. Id. at 820-22.

29. Id.

30. See Cleland, 2 P.3d at 705; Thompson, 991 P.2d at 823.

_______________

Case No. 09PDJ093

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

CHAD CHRISTOPHER SOLIZ.

June 30, 2010

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

On April 13, 2010, the Presiding Disciplinary Judge (the Court) held a Sanctions Hearing pursuant to C.R.C.P. 251.15(b). Charles E. Mortimer, Jr., appeared on behalf of the Office of Attorney Regulation Counsel (the People), and Chad Christopher Soliz (Respondent) appeared pro se. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. ISSUE AND SANCTION

Disbarment is generally appropriate when a lawyer knowingly converts property belonging to a client or third-party and causes injury or potential injury. Notwithstanding an earlier admission of misconduct involving conversion of client funds, Respondent consumed funds paid to him by two separate clients prior to the completion of services to be performed. In each case, Respondent knowingly exercised unauthorized dominion and control over funds belonging to his clients and caused them injury.

After considering the nature of Respondent’s misconduct, as well as the significant aggravating factors—with few countervailing mitigators—the Court finds the appropriate sanction for Respondent’s misconduct is disbarment.

II. PROCEDURAL HISTORY

On October 28, 2008, in case 08PDJ099, Respondent stipulated to a six-month suspension, with the requirement of reinstatement proceedings pursuant to C.R.C.P. 251.29(c)-(e). Respondent admitted in the stipulation he had converted client funds by depositing those funds into a business account and then personally consuming the funds before he had earned them.

Less than one year later, on October 20, 2009, the People filed a citation and complaint in the instant matter, alleging similar misconduct. Respondent failed to answer the complaint, and the Court granted a motion for default on January 5, 2010. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.1

III. ESTABLISHED FACTS ANDRULE VIOLATIONS

The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted complaint.2 Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on October 25, 1999. He is registered upon the official records, Attorney Registration No. 31327, and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.

The Keffer Matter

In January 2008, Brawley Sage Keffer (Keffer), acting on behalf of a third party, contacted Respondent concerning representation in connection with a patent application. Respondent sent a fee agreement to Keffer. On September 4, 2008, Respondent mailed a letter to Keffer indicating he required a $6,000 retainer payment, plus additional court costs, to file the application. That same letter also set forth a schedule making clear Respondent would file the application by October 6, 2008. Keffer mailed Respondent the $6,000 fee payment in late September, and Respondent acknowledged receiving the payment soon thereafter.

Although Respondent began to prepare the application, he was unable to do so within the time frame set forth in the original September 4, 2008, letter. On October 23, 2008, Respondent emailed Keffer to apologize for the delay and to promise a draft of the application in the immediate future. On November 12, 2008, Respondent promised to have a draft prepared by November 18, 2008, and a final application filed by December 3, 2008. On December 1, 2008, Respondent promised to have a final draft to Keffer on that date. Finally, on December 3, 2008, Respondent mailed a draft application to Keffer. Keffer, however, was dissatisfied with the work and terminated Respondent’s services on December 10, 2008.

Respondent did not complete the legal services for which he was retained. Instead, Respondent consumed Keffer’s entire retainer prior to completion of the work. In addition, by the date of his termination, Respondent had not notified Keffer that his license to practice law in Colorado had been suspended as of December 5, 2008; Respondent failed to send the required notice to Keffer until January 19, 2009.

By failing to represent Keffer diligently and promptly, Respondent violated Colo. RPC 1.3. Further, Respondent violated Colo. RPC 1.15(a) and (c) by failing to safeguard Keffer’s funds in trust until the funds he had earned them, and by failing to account to Keffer for consumption of the funds. Respondent also engaged in conduct involving dishonesty in violation of Colo. RPC 8.4(c) in two distinct respects: he knowingly exercised unauthorized dominion and control over funds belonging to Keffer; and he failed to notify Keffer of the suspension of his license to practice law in the State of Colorado.

The Thieman Matter

Respondent and his client Scott Thieman (Thieman) had an attorney-client relationship dating back to March 2007. On December 31, 2008—after Respondent’s license to practice law in Colorado had been suspended by the Colorado Supreme Court—Respondent received from Thieman a $5,000 flat-fee for the preparation and filing of a non-provisional application for patent. Respondent did not deposit Thieman’s flat-fee in his trust account, but instead deposited the funds in his business checking account. These funds were entirely consumed by the end of January 2009. Only after the flat-fee had been paid, on January 19, 2009, did Respondent mail Thieman a letter disclosing that Respondent’s license to practice law in Colorado had been suspended on December 5, 2008.

On March 15, 2009, Thieman contacted Respondent to remind him that the deadline established by the patent office for filing the patent application was April 7, 2009. The parties set a tentative date of March 20, 2009, to review a draft application. On March 27, 2009, Thieman again contacted Respondent to point out the March 20, 2009, date had been missed and to remind him of the pending deadline. Thieman thereafter sent telephonic messages and emails to Respondent in late March 2009. In response, Respondent scheduled but then canceled appointments for April 1, 2 and 4, 2009.

On April 5, 2009, Respondent again scheduled an appointment for an April 6, 2009, meeting, one day before the deadline for filing the application. On April 6 and 7, 2009, Respondent emailed documents to Thieman for review. By that time, Thieman had retained new counsel to represent him in the patent application process and attempted to review the documents with new counsel, but he was unable to do so in the short time frame provided. On the evening of April 7, 2009, Respondent emailed Thieman to tell him he had filed the application, even though he had not heard from Thieman concerning the quality of work, nor had he received authorization from Thieman to make the filing. Later that evening, Thieman emailed Respondent expressly terminating his representation.

By failing to represent Thieman diligently and promptly, Respondent violated Colo. RPC 1.3. Further, Respondent violated Colo. RPC 1.15(a) and (c) by failing to safeguard Thieman’s funds in trust until the funds were earned, and by failing to account to Thieman for consumption of the funds. Respondent also engaged in conduct involving dishonesty in violation of Colo. RPC 8.4(c) in two distinct respects: he knowingly exercised unauthorized dominion and control over funds belonging to Thieman; and he failed to notify Thieman of the suspension of his license to practice law.

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.3 In imposing a sanction after a finding of lawyer misconduct, the Court must first consider the duty violated; the lawyer’s mental state; the actual or potential injury caused by the lawyer’s misconduct; and the existence of aggravating and mitigating evidence pursuant to ABA Standard 3.0.

ABA Standard 3.0—Duty, Mental State, and Injury

Respondent violated a duty to his clients, which arises out of the nature of the basic relationship between the lawyer and the client.4 Specifically, Respondent failed to preserve and safekeep the property of his clients, failed to exercise diligence in performing legal services on their behalf and failed to timely notify them of the suspension of his license to practice law in Colorado. He also exercised unauthorized dominion and control over funds belonging to his clients.

In both the Keffer and Thieman matters, the order of default establishes that Respondent knowingly exercised unauthorized dominion and control over funds belonging to his clients, in violation of Colo. RPC 8.4(c).5 The People also point to Respondent’s October 28, 2008, stipulation in case 08PDJ099 as evidence of his knowing conduct. In that case, Respondent was disciplined for similar behavior, including a lack of diligence, a failure to account for funds consumed and conversion of client funds. Given that Respondent’s misconduct in the Thieman matter occurred in its entirety after Respondent had signed that stipulation, the People argue—and the Court agrees—that Respondent’s conduct in the Thieman matter, at a minimum, was demonstrably "knowing."

Although the Court does not attribute to Respondent any conscious objective to cause particular injury to his clients, he nevertheless caused actual financial harm to both Keffer and Thieman. At the sanctions hearing, Keffer testified Respondent never returned his $6,000 fee. He also testified Respondent’s lack of diligence substantially delayed the filing of his patent application, resulting in his forced abandonment of the application. Keffer claimed that, during the fall of 2008, the patent office changed its policies and restricted issuance of the "business method patent" he sought; Keffer felt that due to Respondent’s delays, he lost the opportunity to apply for the patent, which he thought he otherwise could have obtained. Thieman, likewise, testified to the harm caused by Respondent’s conduct. Respondent failed to refund Thieman’s $5,000 retainer, and Thieman was also forced to pay another attorney an additional $2,600 to complete and file his patent application at the last minute.

ABA Standard 3.0—Aggravating and Mitigating Factors

Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed.6 Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.7 The Court considered evidence of the following aggravating and mitigating circumstances in deciding the appropriate sanction.

Prior Disciplinary Offenses—9.22(a)

As discussed above, Respondent was sanctioned in case 08PDJ099, accepting a six-month suspension for comparable misconduct.

Dishonest or Selfish Conduct—9.22(b)

Respondent exercised unauthorized dominion and control over funds belonging to his clients and consumed those funds without rendering services of commensurate value in exchange. The Court concludes Respondent engaged in dishonest and selfish conduct.

A Pattern of Misconduct—9.22(c)

Respondent’s misconduct, while perhaps not yet appropriately characterized as a pattern, affected both Keffer and Thieman in similar ways: Respondent secured payment, neglected his representation, consumed monies he had not yet earned and failed to return client funds. The Court is troubled by the similarity of Respondent’s behavior in each case and takes note of what appears, on its face, to be an incipient practice.

Personal or Emotional Problems—9.32(c)

Although C.R.C.P. 251.15(b) appears to proscribe Respondent’s introduction of additional evidence at his sanctions hearing once a default on the underlying claims has been entered, the Court construes this wording liberally to allow for consideration of additional mitigating factors not mentioned by the People.8 In this instance, Respondent presented argument that the sanctions decision should be informed by Respondent’s recent personal and emotional problems, which may, in part, have led to his misconduct. Specifically, Respondent cited his pregnant wife’s frequent hospitalizations for Crohn’s disease, compounded with his own bouts of depression, as contributing to his neglect of client matters. Respondent argued that although he is in counseling now, he felt overwhelmed by the "snowball effect" during the time of his misconduct and therefore "kind of gave up." However, Respondent presented no evidence to support these arguments.

Remorse—9.32(l)

The Court is cognizant that Respondent failed to appear for the hearing to defend against the claims brought by the People, leading to this Court’s order of default. Yet Respondent appeared for his sanctions hearing, which the Court interprets as progress toward acknowledging his misconduct and addressing its root causes. In addition, Respondent apologized to Keffer and Thieman at the sanctions hearing and vowed to do what he could to right his wrongs. But because the Court is not aware of any efforts by Respondent to make restitution or to take affirmative steps to rectify the consequences of his misconduct, the Court accords Respondent’s expressions of remorse little weight as a mitigating factor.

Analysis Under ABA Standards and Colorado Case Law

In light of the order of default, which established that Respondent knowingly violated Colo. RPC 8.4(c), the Court concludes the following ABA Standard is applicable:

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

Significant mitigating factors may overcome the presumption of disbarment,12 but the few at work in this case do not rise to the level of justifying a reduction in the sanction imposed.13 Indeed, because the Court has no reliable evidence that Respondent has, in fact, suffered from the personal and emotional problems discussed above, this mitigating factor is particularly unsatisfactory in rationalizing a variance from the presumed sanction. On the other side of the ledger, the Court is significantly influenced by the 9.22(a) and (c) aggravators (prior disciplinary offenses and a pattern of misconduct); the striking similarity between the Keffer and Thieman matters, as well as the parallels to Respondent’s conduct in case 08PDJ099, convince the Court that protection of the public necessitates imposition of disbarment.

V. CONCLUSION

Respondent’s conduct in the Keffer and Thieman matters is disquieting: in each case, Respondent took a retainer, consumed those funds, but failed to diligently work on the matter, resulting in significant monetary injury to both men and the loss to Keffer of a potentially lucrative business opportunity. And while the Court was impressed by the courage and humility it must have taken for Respondent to appear at his sanctions hearing after entry of the order of default, it cannot ignore Respondent’s prior disciplinary action and the pattern of misconduct here. The aggravating factors are too serious to justify deviation from the presumed sanction, and therefore the Court concludes Respondent should be disbarred from the practice of law.

VI. ORDER

The Court therefore ORDERS:

1. Chad Christopher Soliz, Attorney Registration No. 31327, 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 restitution of $6,000 to Brawley Sage Keffer and $5,000 to Scott Thieman or, in the alternative, reimburse the Colorado Attorney’s Fund for Client Protection for all proceeds that may be paid to these named clients.

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); C.R.C.P. 251.15(b).

2. See the People’s complaint in 09PDJ093 for further detailed findings of fact.

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

4. See ABA Standard 4.0.

5. See ABA Standards, Definitions. "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.

6. See ABA Standard 9.21.

7. See ABA Standard 9.31.

8. "Notwithstanding the entry of a default, the Regulation Counsel shall give the respondent notice of the final hearing, at which the respondent may appear and present arguments to the Hearing Board regarding the form of discipline to be imposed." C.R.C.P. 251.15(b) (emphasis added).

9. See ABA Standard 4.11.

10. See e.g. People v. Dice, 947 P.2d 339 (Colo. 1997) (attorney took funds in five separate estate, trust, and conservative matters while acting as a fiduciary); and People v. Robnett, 859 P.2d 872 (Colo. 1993) (attorney disbarred for converting monies belonging to a trust for which he was the trustee and engaging in deception of his client).

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

12. See In re Fischer, 89 P.3d 817 (Colo. 2004) (finding significant facts in mitigation to justify suspension, rather than disbarment)

13. See People v. Guyerson, 898 P.2d 1062, 1064-65 (Colo. 1995) (concluding presence of substantial personal and emotional problems, cooperation with the hearing board, presence of remorse and evidence of respondent’s good character insufficient to overcome presumption of disbarment for conversion). 

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