The Colorado Lawyer
Vol. 40, No. 6 [Page 139]
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From the Courts
Colorado Disciplinary Cases
Disciplinary Opinion: People v. Beasley
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. 10PDJ083
THE PEOPLE OF THE STATE OF COLORADO
PATRICK DENNIS BEASLEY
March 9, 2011
DECISION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)
On January 20, 2011, the Presiding Disciplinary Judge (Court) held a sanctions hearing pursuant to C.R.C.P. 251.15(c). Alan Obye and Elizabeth E. Krupa appeared on behalf of the Office of Attorney Regulation Counsel (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)."
Disbarment is generally the appropriate sanction when a lawyer knowingly converts client funds and abandons clients. Respondent failed to communicate with, neglected, and ultimately abandoned nine clients. He also knowingly converted funds from eight clients.
Respondent has not participated in the disciplinary proceedings brought against him, and the Court is unaware of any factors that mitigate his conduct. After considering the nature of Respondent’s misconduct and its consequences, the aggravating factors, and the absence of countervailing mitigating factors, the Court finds the appropriate sanction is disbarment.
II. PROCEDURAL HISTORY
On December 4, 2009, the People petitioned the Colorado Supreme Court to immediately suspend Respondent pursuant to C.R.C.P. 251.8.6. Respondent did not respond. The Colorado Supreme Court immediately suspended Respondent on December 21, 2009.
On August 3, 2010, the People filed a complaint alleging that Respondent had violated Colo. RPC 1.3, 1.4(a), 8.4(c), 1.15(a), and 1.15(j). Respondent failed to answer the complaint, and the Court granted a motion for default on October 21, 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 as detailed in the admitted complaint. Respondent took and subscribed to 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 under attorney registration number 25637, and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.
The Millan Matter
Gloria Millan (Millan) retained MaryLu Cianciolo (Cianciolo) to help obtain residency for Millan’s husband, Rigoverto Tinajero Tamayo. Millan paid Cianciolo $595 for her services. Cianciolo then sold her law practice to Respondent in July 2007 and moved to Chicago. Respondent agreed to assume responsibility for Cianciolo’s existing clients.
Millan entered into a new fee agreement with Respondent to finish the consular processing for her husband. Millan and Respondent first discussed this matter in May 2008. At the end of 2008, Respondent sent documents concerning Millan’s matter to the National Visa Center (NVC). In March 2009, after the NVC provided notification that it lacked certain documents, Millan provided the missing documents to Respondent, and his office apparently forwarded them to the NVC. Also in March 2009, Millan paid Respondent $1,000 to complete the consular processing.
Millan last met with Respondent on August 19, 2009, at which time Respondent told Millan he would "correct her papers." On the same date, he requested the status of her application from the NVC and formally entered his appearance in Millan’s matter with the federal immigration services department. A September 4, 2009, letter from the NVC informed Respondent that information was still missing from Millan’s application.
On or about September 14, 2009, Millan’s sister-in-law, who also was a client of Respondent, told Millan that she had been unsuccessful in her attempts to contact Respondent. Millan then tried to call Respondent’s office, but he did not answer and his voicemail box was full. She called Respondent’s cell phone, but it transferred directly to voicemail. When Millan visited Respondent’s office, no one was present. Millan attempted without success to call Respondent every day for approximately one month.
When Respondent did not appear for her sister-in-law’s court date on October 9, 2009, Millan contacted another attorney. That attorney also tried in vain to contact Respondent.
Respondent never completed the work Millan hired him to perform, he never communicated with Millan after August 2009, and he never refunded her $1,000 payment. Through this conduct, Respondent abandoned the duties he owed to his client and violated Colo. RPC 1.3, 1.4(a), and 8.4(c).
The Collado/Diaz Matter
Michelle Collado Diaz (Collado) and her husband, Domingo Collado Diaz (Diaz), retained Respondent on February 13, 2009. Diaz had been arrested for driving under the influence and was in immigration removal proceedings. Collado, Diaz, and Respondent agreed that Respondent would defend the removal proceedings in court, prepare a Form I-130 relative petition, represent Diaz in the interview concerning that petition, complete consular processing, and prepare a hardship waiver on Form I-601. In exchange, Collado and Diaz agreed to give Respondent a flat fee of $6,890, to be paid through an initial $1,000 deposit and monthly payments of $400 beginning on April 1, 2009. Collado and Diaz paid a total of $4,155 to Respondent, including a $355 filing fee.
A master hearing in Diaz’s removal proceeding was set for April 8, 2009. Collado and Diaz attended, but Respondent did not appear. The judge provided Diaz an extension, setting the matter for November 18, 2009. Collado called Respondent’s office and cell phone multiple times on April 8, 2009, but she could not reach him. Later that day, she reached someone at Respondent’s office, who informed her he was ill. Respondent also sent Collado a text message telling her he was "very sick" but "it will all work out."
In May and June 2009, Collado communicated with Respondent and his office several times, and sent him documents he needed. She did not speak with Respondent after June 2009, though she did communicate with his staff to check on the status of her husband’s matter and to ensure they had received the monthly payments.
On October 3, 2009, Collado e-mailed Respondent, seeking to discuss their upcoming hearing. She also sent him a payment two days later. By October 6, 2009, Collado had not received a response to her e-mail. She called Respondent’s office but could not leave a message because the voicemail box was full. Collado continued to call and
e-mail Respondent without success.
On October 16, 2009, Collado went to Respondent’s office and saw a note posted on the door by another client, which stated that Respondent was stealing client money. Collado left Respondent a message later that day, in which she asked Respondent to call her, but he failed to do so.
Collado testified that she and Diaz did not hire another attorney because they could not afford to do so. Respondent did not appear at Diaz’s hearing on November 18, 2009. At the hearing, Diaz was granted voluntary departure in lieu of removal, and he subsequently returned to Mexico. Collado testified that she cannot afford to file paperwork seeking permission for Diaz to return to the United States.
Respondent never refunded the money she and Diaz paid to him. Through his conduct with respect to Collado and Diaz, Respondent abandoned his professional duties and violated Colo. RPC 1.3, 1.4(a), and 8.4(c).
Other Client Matters
The lengthy complaint in this matter establishes that Respondent committed numerous other rule violations similar to those discussed above. Details regarding these rule violations can be found in the People’s complaint, which is incorporated by reference. A brief summary of Respondent’s other misconduct follows:
• Respondent agreed to renew annual work permits for Patsy Esparza’s brother-in-law and his wife so they could work on Patsy Esparza’s ranch. Respondent violated Colo. RPC 1.3 and 1.4(a) by failing to act with reasonable diligence and promptness in this matter and by failing to adequately communicate with his clients.
• Maria Flores and her husband, Jose Soto, paid Respondent a total of $2,890 to complete consular processing for Maria Flores and her son. Respondent neglected to complete the processing, failed to keep his clients informed about the matter, and converted unearned legal fees, thereby violating Colo. RPC 1.3, 1.4(a), and 8.4(c).
• Patricia Siqueiros and Raul Rojas hired Respondent to represent them in an immigration matter in which Patricia Siqueiros faced deportation. They paid Respondent a total of $4,995. Respondent failed to act with reasonable diligence and promptness in this matter, failed to communicate with his clients about the case, and converted unearned legal fees, in violation of Colo. RPC 1.3, 1.4(a), and 8.4(c).
• Rick and Ana Hodgson paid Respondent $850 to provide naturalization services. Respondent failed to complete the naturalization services, neglected to keep the Hodgsons informed about their matter, and converted unearned legal fees, thereby violating Colo. RPC 1.3, 1.4(a), and 8.4(c).
• Respondent agreed to provide naturalization services to Inocente Gomez in exchange for a legal fee of $995. Respondent violated Colo. RPC 1.3, 1.4(a), and 8.4(c) by neglecting the matter, failing to communicate with his client, and converting unearned legal fees.
• Francisco Paredes paid Respondent $1,775 to obtain visas for his three children. Respondent failed to perform that work, failed to keep his client updated regarding the status of the matter, and converted unearned legal fees, thereby violating Colo. RPC 1.3, 1.4(a), and 8.4(c).
• Karlita and Sergio Cornejo retained Respondent to represent Sergio Cornejo in a removal matter. They paid him $850 in legal fees. Respondent neglected this matter, failed to provide adequate communication, and converted unearned legal fees, in violation of Colo. RPC 1.3, 1.4(a), and 8.4(c).
• By overdrawing his COLTAF account and exercising unauthorized dominion or ownership over funds in that account, Respondent violated Colo. RPC 1.15(a).
• By failing to maintain trust account records, client fee agreements, copies of bills issued to clients, and other records, Respondent violated Colo. RPC 1.15(j).
At the sanctions hearing, the former administrator of the Attorneys’ Fund for Client Protection testified that the fund had paid $13,241.25 in claims to the eight clients from whom Respondent converted funds.
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.2 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: Respondent violated duties he owed to his clients by neglecting their matters, failing to communicate with them, and converting their funds.3
Mental State: With respect to Respondent’s lack of diligent representation and lack of communication pursuant to Colo. RPC 1.3 and 1.4(a), the complaint establishes that Respondent knew or should have known that he was not fulfilling his professional responsibilities. The complaint also establishes that Respondent knowingly converted client funds in violation of Colo. RPC 8.4(c).
Injury: Respondent injured his clients by depriving them of funds belonging to them. His failure to appear at hearings or otherwise fulfill his obligation to diligently represent his clients caused potentially serious injury, because his clients were denied a fair chance to participate in court proceedings affecting their lawful status in the United States. As an example of the injury Respondent caused, Millan testified that Respondent’s neglect of her case delayed her husband’s proceeding, which caused them stress and led them to distrust lawyers; in addition, they suffered the financial harm of having to hire a second lawyer to complete the legal process.
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.4 Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.5 In this case, Respondent has not participated in the disciplinary proceedings, and the Court is aware of no mitigating circumstances. The Court considered evidence of the following aggravating circumstances in deciding the appropriate sanction.
Prior Disciplinary Offenses—9.22(a): Respondent was suspended for a year and a day in 2010 for violating Colo. RPC 1.3, 1.4(a)(3), 1.15(a), 5.3(b), and 8.4(c). Since the conduct at issue in the prior disciplinary matter primarily occurred in 2008, while the conduct at issue in the matters addressed here primarily occurred in 2009, we consider the suspension as a prior disciplinary offense, rather than as a pattern of misconduct.6
Multiple Offenses—9.22(d): Respondent violated five distinct Rules of Professional Conduct in the matters addressed here, and he violated several of those rules on numerous occasions.
Substantial Experience in the Practice of Law—9.22(i): Respondent was admitted to the bar in 1995; he thus has considerable experience practicing law.
Indifference to Making Restitution—9.22(j): Respondent has not returned any of the funds he converted from clients.
Analysis Under ABA Standards and Colorado Case Law
The ABA Standards most applicable to this matter are ABA Standards 4.41 and 4.11. ABA Standard 4.41 provides that disbarment is generally appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client; or abandons the practice and causes serious or potentially serious injury to a client. Likewise, ABA Standard 4.11 provides that disbarment is typically warranted when a lawyer knowingly converts client property and thereby causes injury or potential injury.7
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."8
The Colorado Supreme Court has held that, except where significant mitigating factors apply, disbarment is the appropriate sanction for knowing conversion of client funds in violation of Colo. RPC 8.4(c).9 Where a lawyer’s conversion of client funds is coupled with abandonment of the client, it is all the more clear that disbarment is appropriate.10
Given the numerous instances of abandonment and conversion in this matter and the lack of mitigating factors, disbarment is clearly the appropriate sanction under the ABA Standards and Colorado case law.
Respondent abdicated his professional responsibilities in his representation of multiple clients. Respondent’s failure to respond to his clients in the face of their persistent efforts to contact him, his outright abandonment of their cases, and his continuing failure to return funds that are not rightfully his reflect very poorly on the legal profession. In light of the serious nature of Respondent’s misconduct and the need to protect the public from future such misconduct, the Court concludes Respondent should be disbarred.
The Court therefore ORDERS:
1. Patrick Dennis Beasley, Attorney Registration No. 25637, is DISBARRED from the practice of law. 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 Court 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 Court on or before March 29, 2011. No extensions of time will be granted.
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 In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).
3. See ABA Standard 4.0.
4. See ABA Standard 9.21.
5. See ABA Standard 9.31.
6. See People v. Sather, 936 P.2d 576, 579 (Colo. 1997).
7. Although Appendix 1 of the ABA Standards indicates that the standards applicable to violations of Colo. RPC 8.4(c) are ABA 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.
8. See ABA Standards § II at 7.
9. In re Haines, 177 P.3d 1239, 1250 (Colo. 2008); In re Cleland, 2 P.3d 700, 703 (Colo. 2000) (holding that the presumed sanction for knowing misappropriation of client funds is disbarment); see also People v. Varallo, 913 P.2d 1, 10-11 (Colo. 1996) (holding that 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); cf. In re Fischer, 89 P.3d 817, 822 (Colo. 2004) (noting that mitigating factors may warrant a departure from a presumption of disbarment in some cases).
10. See In re Stevenson, 979 P.2d 1043, 1043-44 (Colo. 1999) (disbarring an attorney who abandoned a client and converted her funds); People v. Roybal, 949 P.2d 993, 998 (Colo. 1997) (stating that disbarment is "appropriate when a lawyer effectively abandons his clients and thereby misappropriates unearned attorney fees).
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