Vol. 40, No. 8
From the Courts
Colorado Disciplinary Cases
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. 10PDJ100
THE PEOPLE OF THE STATE OF COLORADO
MICHAEL F. BIGLEY
May 17, 2001
DECISION AND ORDER IMPOSING
SANCTIONS PURSUANT TO C.R.C.P. 251.19(c)
On March 18, 2011, the Presiding Disciplinary Judge (Court) held a sanctions hearing pursuant to C.R.C.P. 251.15(b). Adam J. Espinosa appeared on behalf of the Office of Attorney Regulation Counsel (People). Michael F. Bigley (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)."
Respondent violated Colo. RPC 1.3, 1.4(a), and 3.4(c) by neglecting his representation of a client in a bankruptcy matter, failing to communicate with the client, and failing to inform the client of the imminent suspension of his law license. After considering the nature of Respondent’s misconduct and its consequences, the aggravating and mitigating factors, and Respondent’s failure to participate in these proceedings, the Court finds the appropriate sanction for Respondent’s misconduct is suspension of his law license for ninety days.
II. PROCEDURAL HISTORY
The People filed a complaint in this matter on September 21, 2010, setting forth three claims for relief based on violations of Colo. RPC 1.3, 1.4(a), and 3.4(c). The People mailed the complaint on that date by certified and regular mail to Respondent’s registered address of 4950 S. Yosemite St., F2-146, Greenwood Village, CO 80111. Respondent refused receipt of the complaint. The People filed a proof of attempted service on September 29, 2010. Respondent did not respond to the complaint.
On October 29, 2010, the People filed a motion for default, to which Respondent did not respond. The Court granted the People’s motion and entered default on all claims in the People’s complaint on November 29, 2010. Upon the entry of default, the Court deems the well-pled 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 the oath of admission and gained admission to the bar of the Colorado Supreme Court on October 22, 2007. He is registered upon the official records under attorney registration number 39294 and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.
Representation of Stephen Moersen
On June 9, 2009, Stephen Moersen (Moersen) met with Respondent at the law firm of Morse and Associates, LLC (Morse), where Respondent was working as an associate. Moersen told Respondent that he wanted to file a bankruptcy petition and that he needed legal advice about a pending real estate and property lien related to the bankruptcy. Moersen explained that time was of the essence due to lien-related issues, so he requested that Respondent complete the bankruptcy filing on an expedited basis. At the sanctions hearing, Moersen testified that he offered to pay Respondent a premium in return for an expedited filing, but Respondent told him a premium was unnecessary.
The same day, Moersen signed a fee agreement and paid $1,599.00 to cover the agreed-upon costs and fees. Three days later, Moersen delivered the requested documents pertaining to his case to the law firm.
Moersen emailed and called Respondent on June 16 and 17, 2009, asking about the status of his case and providing a reminder to expedite the filing. Moersen also asked Respondent to contact his title agent regarding a possible lien on his home. Respondent did not return Moersen’s calls and emails, nor did he return a phone call from Moersen’s title agent.
On July 6, 2009, a managing attorney at Morse, Michael Baetz (Baetz), sent Moersen a letter telling him that a first draft of the bankruptcy petition was complete but more information was needed. Moersen responded in writing to Baetz and Respondent on July 17, 2009, enclosing the requested documents and asking about his pending bankruptcy. Neither Baetz nor Respondent responded to Moersen.
On August 19, 2009, the Court approved a conditional admission of misconduct in disciplinary case number 08PDJ102 in connection with a domestic violence charge against Respondent. The Court’s order approving the conditional admission suspended Respondent’s law license for ninety days, effective September 21, 2009, and required Respondent to apply for reinstatement. On September 8, 2009, Respondent and Moersen spoke about Moersen’s case. When Moersen asked when his petition would be filed, Respondent merely responded that he was "behind." Respondent did not tell Moersen his license would be suspended and he would be unable to represent him after September 21, 2009. Indeed, Respondent never advised Moersen of his suspension.
Moersen sent Respondent a letter on September 14, 2009, in response to a request Respondent had made for additional information, enclosing the requested documents. Moersen asked Respondent to contact him and asked when the petition was likely to be filed. Neither Respondent nor anyone else from his firm responded.
As a result of Respondent’s impending suspension, Morse terminated Respondent’s employment on September 18, 2009. Respondent did not notify Moersen that he had lost his position at the firm and that he could no longer represent him.3
Moersen called to check on the status of his case on September 28, 2009. His call went unreturned. Two days later, Moersen terminated Respondent’s representation by letter. Moersen explained in the letter that Respondent had failed to file his bankruptcy petition for four months, despite his request to expedite the case. Moersen asked Morse to return his file and his money. Baetz responded on October 2, 2009, providing a detailed accounting and a refund of $814.00 in unearned fees. Moersen did not receive any work produced on his behalf, nor did he receive the balance of the $1,599.00 he had paid the firm in June 2009. Moersen hired another attorney to complete his bankruptcy matter.
Through his mishandling of Moersen’s matter, Respondent violated Colo. RPC 1.3, 1.4(a), and 3.4(c).
Colo. RPC 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client. Respondent violated Colo. RPC 1.3 by inadequately communicating with Moersen regarding his bankruptcy matter, neglecting to file the bankruptcy petition, and failing to advise Moersen that his law license would be suspended.
Colo. RPC 1.4(a) requires a lawyer to reasonably communicate with a client, including by keeping the client reasonably informed, promptly complying with reasonable requests for information, and consulting with the client about relevant limitations on the lawyer’s conduct. Respondent neglected his duties under Colo. RPC 1.4(a) by (1) failing to timely respond to Moersen’s letters, emails, and calls; (2) failing to keep Moersen reasonably informed about the status of his case; (3) failing to maintain minimum communications with Moersen; (4) failing to promptly reply to Moersen’s reasonable requests for information about his matter; and (5) failing to inform Moersen of his suspension.
Colo. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. On August 19, 2009, the Court ordered Respondent to comply with C.R.C.P. 251.28 in connection with his suspension. Respondent received a copy of this order. He knowingly disobeyed the order and C.R.C.P. 251.28 by failing to notify Moersen of his suspension, failing to advise Moersen of his options for retaining another attorney, and failing to obtain Moersen’s consent to working on the bankruptcy matter while Respondent wound down his practice.
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: By failing to appropriately communicate with Moersen and failing to represent him with reasonable diligence, Respondent neglected his duties to his client. Respondent’s violation of his order of suspension represented a dereliction of his duties to the legal system.
Mental State: The complaint and evidence in this matter establish that Respondent knew or should have known he was acting in violation of Colo. RPC 1.3 and 1.4(a) and that Respondent knowingly violated Colo. RPC 3.4(c).
Injury: Respondent’s inadequate representation of Moersen caused Moersen injury. A speedy resolution of Moersen’s bankruptcy matter was important to Moersen, as he made clear to Respondent. Moersen testified he explained to Respondent that rapid completion of the bankruptcy process would permit Moersen and his wife to sell their house to a prospective purchaser. Respondent caused a four-month delay in the resolution of Moersen’s bankruptcy matter. As a result, Moersen testified that the prospective purchaser decided not to buy their house, and the sale the Moersens eventually completed netted them $2,000.00 less than what they would have received had they completed the sale with the initial prospective purchaser. In addition, Moersen testified that he was forced to borrow money to pay the attorney who completed his bankruptcy and that he never received any benefit from the unreturned funds he paid to Morse. Finally, Respondent injured the legal system by disregarding a court order.
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.5 Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.6 Because Respondent did not participate in the disciplinary proceeding, the Court is aware of just one mitigating circumstance here—inexperience in the practice of law. The Court considered evidence of the following aggravating and mitigating circumstances in deciding the appropriate sanction.
Pattern of Misconduct—9.22(c): The Colorado Supreme Court has held that where "most of the conduct" underlying a disciplinary proceeding occurred before the imposition of discipline in a prior matter, the prior discipline should be treated as part of a pattern of misconduct, rather than as a prior disciplinary offense.7 Respondent was suspended for three months in case number 08PDJ102, effective September 21, 2009. Respondent’s misconduct in the instant matter began in June 2009. It is difficult to establish precisely when Respondent’s misconduct ended because he never fulfilled his duty to notify Moersen of his suspension. But it is fair to say that Respondent’s misconduct in the instant matter primarily occurred before his prior suspension took effect. Therefore, the Court does not consider Respondent’s prior suspension as an aggravating factor under ABA Standard 9.22(a), but rather considers it to form part of a pattern of misconduct under ABA Standard 9.22(c).
Multiple Offenses—9.22(d): Through the varying types of misconduct in this matter, Respondent violated several Rules of Professional Conduct.
Inexperience in the Practice of Law—9.32(f): Respondent was licensed to practice law in Colorado in 2007. As the People concede, he is relatively inexperienced in the practice of law.
Analysis Under ABA Standards and Colorado Case Law
The Court observes that the complaint in this matter alleges Respondent knowingly failed to perform services for Moersen and thereby caused serious injury or potential injury. ABA Standard 4.41 indicates that disbarment is the presumptive sanction under those circumstances. The People have only requested that the Court impose a ninety-day suspension, however, and Colorado Supreme Court case law also indicates that a short suspension is the proper sanction under the facts presented here, as further explained below.8 The striking disparity between the presumptive sanction called for if the Court were to accept the People’s allegation of injury, on the one hand, and the sanction the People requested at the sanctions hearing, on the other, necessitates further analysis of the standards governing the allegations admitted by entry of default.
The Court finds that, under applicable rules and case law, it is required to accept as true all well-pled facts and claims in a disciplinary complaint admitted by default.9 But the Court is not required to accept the truth of a complaint’s allegations concerning the appropriate sanction. Colorado’s disciplinary rules contemplate a two-step process for imposing sanctions upon entry of default. If a respondent fails to answer a complaint and a motion for default is filed, the Court "shall enter a default and the complaint shall be deemed admitted . . . ."10 A respondent then has the opportunity to appear at a final hearing and present arguments "regarding the form of discipline to be imposed."11 The Hearing Board or the Court "shall review all pleadings, arguments, and the report of investigation and shall prepare a report setting forth its findings of fact and its decision" as to the proper sanction.12 This rule affords the Hearing Board or the Court significant discretion to make factual findings regarding the appropriate sanction in the second phase of this process.
The ABA Standards and Colorado Supreme Court case law further indicate that facts concerning an appropriate sanction are to be determined during the sanctions phase of a disciplinary proceeding, not before.13 The ABA Standards state that its governing model "requires a court imposing sanctions" to inquire into duty, mental state, injury, and aggravating and mitigating circumstances.14 Likewise, in In re Weisbard, the Colorado Supreme Court stated: "A default . . . establishes only the truth of the allegations in the complaint. It does not establish the form of discipline . . . ."15
The two-step process established for the imposition of sanctions in default disciplinary matters comports with the procedures for default under C.R.C.P. 55(b). That rule contemplates, after entry of default, that
[i]f, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper.16
The Colorado Supreme Court has found that "entry of default [under C.R.C.P. 55] applies only to the issue of petitioner’s liability,"17 and it provided further explanation in Kwik Way Stores, Inc. v. Caldwell:
When a trial court determines that entry of default judgment is the appropriate sanction, the default establishes liability, but does not fix the amount of damages . . . . [The language of C.R.C.P. 55(b)(2)] places broad discretion in the hands of the trial judge and must be interpreted in light of the overriding principle that the rules of civil procedure be construed to secure the just determination of every action. We have interpreted C.R.C.P. 55(b)(2) as requiring the trial court to take evidence if further information is needed to determine damages.18
In view of the foregoing analysis and the principle of securing a just determination under C.R.C.P. 1, the Court finds that serious injury to Moersen has not been established by the complaint or the evidence presented at the sanctions hearing.19 Although Respondent’s misconduct caused meaningful injury to Moersen that is justifiably significant in Moersen’s eyes, the injury does not qualify as "serious" under the precedent set forth in Colorado Supreme Court case law.20
Therefore, rather than applying ABA Standard 4.41 in this matter, the Court looks to ABA Standard 4.42, which provides that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes the client injury or potential injury. Also applicable here is ABA Standard 6.22, which establishes that suspension is typically proper where a lawyer knowingly violates a court order or rule and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
In light of the as-yet unfulfilled requirement imposed in case number 08PDJ102 that Respondent petition for reinstatement to the bar, the Court finds the People’s recommended sanction of a ninety-day suspension to be appropriate in this matter.21 The Colorado Supreme Court has frequently imposed suspensions ranging from thirty to ninety days upon attorneys who have significantly neglected a client’s matters.22 Suspensions lasting six months or longer, by contrast, are typically warranted for cases involving neglect of multiple clients’ cases, particularly egregious instances of neglect, and cases involving both neglect and other serious transgressions.23 Given the paucity of mitigating factors and Respondent’s failure to participate in these disciplinary proceedings, a ninety-day suspension is warranted here.
Respondent violated the fundamental duty of diligent representation of his client. He also failed to appropriately communicate with his client and disregarded the order suspending his law license. The evidence establishes that Respondent acted knowingly and caused his client injury. The Court adopts the People’s position and determines that the appropriate sanction in this matter is suspension for ninety days. After Respondent has served that suspension, he will be required to petition for reinstatement to the bar in accordance with the conditional admission of misconduct entered in case number 08PDJ102.
The Court therefore ORDERS:
1. Michael F. Bigley, Attorney Registration No. 39294, is hereby SUSPENDED FOR NINETY DAYS. The suspension SHALL become effective thirty-one days from the date of this order upon the issuance of an "Order and Notice of Suspension" 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 June 6, 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 the People’s complaint for further detailed findings of fact.
3. The People have not alleged that Respondent practiced law after the suspension of his license.
4. See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).
5. See ABA Standard 9.21.
6. See ABA Standard 9.31.
7. People v. Williams, 845 P.2d 1150, 1153 n.3 (Colo. 1993); see also People v. Honaker, 863 P.2d 337, 340 (Colo. 1993) (where misconduct in prior case and instant case occurred contemporaneously and most of the misconduct in instant case ended before entry of the prior order of suspension, with the exception of the lawyer’s ongoing failure to return an unearned fee, the prior misconduct represented a pattern of misconduct rather than prior discipline).
8. The Colorado Supreme Court generally does not disbar an attorney for neglecting client matters unless that neglect rises to the level of abandonment. See, e.g., People v. Fritsche, 897 P.2d 805, 806 (Colo. 1995); People v. Southern, 832 P.2d 946, 948 (Colo. 1992).
9. C.R.C.P. 251.15(b); People v. Richards, 748 P.2d 341, 347 (Colo. 1987) ([w]hen a default is entered . . . both the well pleaded facts and charges in the complaint are deemed admitted).
10. C.R.C.P. 251.15(b).
13. The Court notes that the possession of a particular mental state is an essential element of certain disciplinary rules. For instance, Colo. RPC 3.4(c) prohibits a lawyer from "knowingly disobey[ing] an obligation under the rules of a tribunal . . . ." (Emphasis added). Well-pled allegations in a complaint that a respondent possessed a mental state that forms an essential element of a claim for relief shall be deemed to be true upon entry of default for purposes of both establishing misconduct and imposing a sanction.
14. ABA Standards § II (emphasis added). In illustrating how this model should be implemented, the ABA Standards explain that first a lawyer must be found to have engaged in ethical misconduct. Id. "To assign a sanction, however, it is necessary to go further, and to examine each lawyer’s mental state and the extent of the injuries caused by the lawyers’ actions." Id.
15. 25 P.3d 24, 26 n.1 (Colo. 2001).
16. C.R.C.P. 55(b).
17. Snow v. Dist. Court, 194 Colo. 335, 337, 572 P.2d 475, 476 (1977).
18. 745 P.2d 672, 678-79 (Colo. 1987) (citations omitted).
19. The Court notes that, were it to accept the complaint’s contention that Respondent caused serious injury, it would be forced to engage in a contorted reading of guiding authorities in order to bridge the gap between the short suspension called for by like cases and the presumptive disbarment called for by the ABA Standards. Such a practice might lead to a misperception that disciplinary standards are malleable and applied disparately.
20. See, e.g., In re Righter, 992 P.2d 1147, 1148 (Colo. 1999) (holding that attorney’s neglect of clients’ matter leading to entry of default against clients, which caused clients to waste over $25,000.00 in attorney’s fees and to pay a default judgment of $101,000.00, which was significantly in excess of what they otherwise would have paid, amounted to serious injury); In re Scott, 979 P.2d 572, 573-74 (Colo. 1999) (holding that where a client "sustained a catastrophic financial burden and [underwent] serious personal problems" because of the attorney’s misconduct, the attorney caused serious or potentially serious harm); People v. Shock, 970 P.2d 966, 967 (Colo. 1999) (approving hearing board’s determination that attorney did not cause serious injury or potential injury even where attorney had effectively abandoned clients in two separate matters).
21. ABA Standard 2.3 indicates that "[g]enerally, suspension should be for a period of time equal to or greater than six months . . . ." This rule of thumb appears to be designed to protect the public by ensuring that a lawyer who has committed serious misconduct cannot resume practice without demonstrating rehabilitation through a reinstatement proceeding. See id. Here, Respondent is subject to the reinstatement requirement by virtue of his stipulated admission of misconduct in case number 08PDJ102. As such, the Court finds that a longer suspension is unnecessary in this matter.
22. See, e.g., People v. Stevenson, 980 P.2d 504, 505 (Colo. 1999); People v. Wright, 947 P.2d 941, 943 (Colo. 1997); People v. Myers, 908 P.2d 101, 102 (Colo. 1995); People v. C de Baca, 862 P.2d 273, 275 (Colo. 1993); People v. Ross, 810 P.2d 659, 660 (Colo. 1991).
23. See, e.g., In re Fisher, 202 P.3d 1186, 1204 (Colo. 2009); In re Righter, 992 P.2d at 1149; People v. Regan, 831 P.2d 893, 896 (Colo. 1992); People v. Gaimara, 810 P.2d 1076, 1078-80 (Colo. 1991); People v. May, 745 P.2d 218, 220-22 (Colo. 1987). Public censures are generally reserved for cases of minor neglect and cases in which numerous factors mitigate an attorney’s neglect of a client matter. See, e.g., People v. Kram, 966 P.2d 1065, 1067-68 (Colo. 1998); People v. Smith, 769 P.2d 1078, 1080-81 (Colo. 1989).
Case No. 10PDJ002
THE PEOPLE OF THE STATE OF COLORADO
JERRY LEE STEVENS
October 7, 2010
DECISION AND ORDER IMPOSING
SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
On August 4 and 5, 2010, a Hearing Board composed of William R. Gray and Henry R. Reeve, members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge (PDJ), held a two-day hearing pursuant to C.R.C.P. 251.18. Charles E. Mortimer, Jr., appeared on behalf of the Office of Attorney Regulation Counsel (the People), and Jerry Lee Stevens (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. ISSUE AND SUMMARY
A lawyer has the duty to thoroughly prepare his or her client’s case, to safeguard and account for the use of client funds, and to explain his or her fee in writing to new clients.
The Hearing Board finds clear and convincing evidence that Respondent failed to provide his client with competent representation, failed to account for client funds he expended, and failed to explain to his client the basis or rate of the fees and expenses charged, as required by Colo. RPC 1.1, 1.15(c), and 1.5(b), respectively. The PDJ previously entered an order finding as a matter of law that Respondent violated Colo. RPC 1.15(a) when he failed to place client funds into a separate trust account.
In light of Respondent’s significant experience in the practice of law, the multiple violations at issue here, the vulnerability of the client and his parents, Respondent’s prior disciplinary history for similar offenses, and the absence of significant mitigating factors, the Hearing Board determines that suspension for a year and a day is warranted.
II. PROCEDURAL HISTORY
On January 4, 2010, the People filed a complaint, alleging Respondent violated Colo. RPC 1.1, 1.15(a), 1.15(c), and 1.5(b). Respondent filed an answer on March 4, 2010. On May 12, 2010, the People filed a motion for partial judgment on the pleadings, to which Respondent did not respond. The PDJ granted the motion as to the People’s second claim for relief (Colo. RPC 1.15(a)) but denied the People’s motion as to the People’s fourth claim for relief (Colo. RPC 1.5(b)). During the hearing on August 4 and 5, 2010, the Hearing Board heard testimony and considered the People’s exhibits 1-8 and Respondent’s exhibits A-G.
III. FINDINGS OF FACT AND RULE VIOLATIONS
The Hearing Board finds the following facts and rule violations have been established by clear and convincing evidence:
Respondent took the oath of admission and was admitted to the Bar of the Colorado Supreme Court on May 2, 1973. He is registered upon the official records, Attorney Registration No. 04033, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.1 Respondent’s registered address is 7201 East 36th Avenue, No. 161, Denver, CO 80207.
Representation of Marcus Robinson
In early September 2008, Marcus Robinson’s (Robinson) parents, Leo and Patella Robinson, hired Respondent to represent Robinson. Robinson had been charged with third degree assault, resisting arrest, possession of drug paraphernalia, and first degree sexual assault, as well as three second degree assault counts and three habitual offender counts.2 He faced a possible life prison sentence and was in custody at the time his parents hired Respondent.
Robinson’s parents paid Respondent an advance fee of $4,300.00.3 Robinson’s parents also wrote a separate check for $1,500.00 to private investigator Walter Barrett, who worked with Respondent on the case and obtained witness statements at Respondent’s direction.4 Neither when he received payment nor at any later date did Respondent provide a fee agreement or a written statement explaining the basis or rate of his fee to Robinson or to Robinson’s parents. When Respondent received the checks from Robinson’s parents, he failed to deposit the checks into a trust account; instead, he cashed them immediately. Respondent never provided an accounting to Robinson or Robinson’s parents regarding his expenditure of the funds.
Respondent characterizes the scope of his representation of Robinson as limited to a "preliminary defense." Respondent contends that, when he was hired, he informed Robinson’s parents that the cost of defending Robinson on the habitual criminal charges was prohibitive and the best he could do was "try to knock the legs out from under the sexual assault charge." Respondent claims he intended to withdraw from representation after the preliminary hearing.
According to Respondent’s testimony, within a short time after he was hired, he met with Robinson, obtained an affidavit of arrest, and visited the scene of the alleged crime. Respondent and Walter Barrett also conducted interviews of witnesses to the alleged crime. Respondent attended a preliminary hearing as Robinson’s counsel on September 25, 2008. At that time, Robinson was bound over for trial on all counts. Robinson pled not guilty at an arraignment held November 18, 2008; once again, Respondent attended as Robinson’s counsel. On December 16, 2008, Respondent represented Robinson at a case management conference at which a trial date was set for April 6, 2009, and a trial status hearing was set for March 27, 2009.
In October 2008, Respondent collected discovery that was available in the case, but he did not respond to four notices from the prosecution in early 2009 informing him that additional discovery was available. The deputy district attorney prosecuting Robinson’s case, Douglas Bechtel (Bechtel), testified that the discovery Respondent failed to pick up included a Colorado Bureau of Investigation analysis, a curriculum vitae for a DNA expert, crime scene photographs, and a copy of the victim’s medical records, which Bechtel believes stated the victim’s blood alcohol level at the time of the alleged crime.
Respondent represented Robinson at a motions hearing that took place on February 19, 2009, but Respondent arrived up to one-and-a-half or two hours late.5 On the same day, Respondent filed a motion to produce the rape kit of the victim for independent analysis. Respondent did not subsequently obtain the rape kit analysis, for what he claims were tactical reasons. Aside from the rape kit motion, Respondent filed no motions on Robinson’s behalf at any time during the representation.6
On March 27, 2009, the day of the trial status hearing, the court convened at 10:00 a.m. due to inclement weather.7 When the judge took the bench at 10:00 a.m., Respondent was not present.8 Respondent still was not present when the judge called Robinson’s matter at 10:41.9 In response to the judge’s questioning about Respondent’s failure to appear, Robinson stated, "I wasn’t real sure if he was coming today or whatnot. He’s kind of left me in the dark so far through this whole thing. I was looking for alternate defense counsel."10 Robinson further explained his relationship with Respondent as follows:
I tried to ask him questions along through this whole process, and he’s consistently just put it off. He just told me, Wait. He said he talked to my family; and when I called there, they said they didn’t know anything. They tried to call him on my cell phone at the house, and he either wouldn’t answer or would not be available or would call back and then hang up immediately.11
Robinson’s case was recalled later on the morning of March 27, 2009, when Respondent arrived at court.12 At that time, Respondent informed the court for the first time that he intended to withdraw from the case, and that he had not yet filed a motion because his "paralegal [was] on furlough."13 The judge said she would grant his motion to withdraw, and added that she believed Respondent had "done nothing to effectively represent [his] client."14 The judge also determined that Respondent’s inaction had effectively waived Robinson’s right to a speedy trial, which pushed Respondent’s trial date to September 28, 2009.15
Colo. RPC 1.1
Colo. RPC 1.1 requires lawyers to represent clients with "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Respondent’s legal knowledge and skill are not at issue here; rather, the People contend that Respondent acted without the requisite thoroughness and preparation. The People posited the following grounds for this claim: (1) Respondent failed to provide diligent or timely representation of Robinson by appearing late for hearings, neglecting to prepare for trial, failing to file motions, and failing to collect available discovery; and (2) Respondent improperly limited the scope of his representation of Robinson. Respondent vigorously contests the assertion that he incompetently represented Robinson.
Regarding the People’s first argument, Respondent explained to the Hearing Board that he was tardy to hearings because he was "rushing from one place to another." This explanation provides no legitimate excuse, though Respondent’s tardiness standing alone may not provide conclusive proof of incompetent representation. Respondent further argues that his failure to prepare for trial at the first setting did not reflect incompetence, because it was nearly impossible that the trial would have commenced at that time. Bechtel conceded that it is unusual for a trial to commence on the first setting and that there have been four or five trial settings in Robinson’s case already. Respondent’s failure to prepare for trial, however, raises concerns regarding his competence, as discussed further below.16
With respect to the sufficiency of the work Respondent performed on Robinson’s behalf, Respondent admits that he filed no motions in Robinson’s case other than the rape kit motion; but Respondent argues that no purpose would have been served by filing any other motions. At the hearing, some time was devoted to the issue of whether Respondent should have filed a "Martinelli motion" seeking access to the personnel files of the police officers involved in the incident underlying the charges against Robinson.17 Respondent claims that such a motion would not have been "well-placed" and that the decision whether to file such a motion is a matter of professional judgment.
The Hearing Board does not believe that Respondent’s failure to file such a motion standing alone is proof of incompetence, but we find this decision troubling when viewed together with his failure to communicate with his client on matters he considered to be strategically sound. Indeed, Robinson had something to gain but nothing to lose if such a motion had been filed.18 Respondent similarly testified that he neglected to pick up available discovery because it was his "best judgment" that the discovery would not be critical to Robinson’s case. Again, the Hearing Board finds Respondent’s decision troubling, because it could have detrimentally affected his client’s case.19 We find that developing a good strategy for defending a case begins with a thorough knowledge of the facts.20 Only then may a lawyer begin to intelligently set a strategy for defense, whether it be to "knock the legs out" from under the prosecution before a trial or defend the case before a jury.
Respondent contends that the results of his representation of Robinson justify the choices he made in representing Robinson.21 Respondent explains that he knew that some of the witnesses to the events underlying the charges against Robinson were transients, and he wanted to interview them in case they subsequently became unavailable. In a letter to the People, Respondent also characterized his strategy as "wear[ing] down" the prosecutors in order to obtain a reasonable plea bargain offer.22 Respondent argues that his strategy in representing Robinson paid dividends because initially there was no plea offer on the table, but after he arguably wore down the prosecution, the deputy district attorney offered Respondent a plea of forty-eight years.
The evidence suggests that Respondent’s strategy was much less successful than he asserts. Bechtel testified that he told Respondent that Robinson was facing a likely sentence of forty-eight years to life, and that he offered this statement as an explanation of the situation facing Robinson if he were to plead guilty on all counts, not as any form of a plea offer.23 In fact, there is no evidence that Respondent took actions that would be likely to pressure the prosecution into negotiating a plea deal, since Respondent had little contact with the prosecution and filed just one motion in Robinson’s case over the course of six months.
The Hearing Board notes that the work Respondent performed on Robinson’s behalf—particularly his interviewing work—was of some value. But the fact that Respondent was of some assistance to Robinson does not pass muster under Colo. RPC 1.1. The record, as a whole, shows that Respondent lacked thoroughness in representing his client. This finding is informed by our analysis with respect to the second basis of the People’s claim under Colo. RPC 1.1: the limited nature of representation that Respondent undertook.24
Colo. RPC 1.2(c) provides: "A lawyer may limit the scope or objectives, or both, of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." The language of this rule permits, under some circumstances, the provision of unbundled legal services, whereby an attorney provides some services for a client or a non-client but not the full range of possible legal services.25 However, before limiting the scope of representation, a lawyer must obtain "informed consent," which is defined as "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct."26 A lawyer providing unbundled services "must clearly explain the limitations of the representation, including the types of services which are not being provided and the probable effect of limited representation on the client’s rights and interests."27
Here, Respondent characterized his limited representation as follows in a letter to the People:
I was retained by Marcus Robinson’s parents with the understanding that defense cost of the habitual criminal chare [sic] was prohibitive and best undertaken by the public defender. I informed them that no [sic] advantage of hiring private counsel was solely the logistic of preliminary investigation of the sexual assault charge. That was accomplished.28
If Respondent solely represented Robinson on the rape charge between September 2008 and March 2009, that means Robinson lacked any legal representation on the other charges for approximately six months. During that lengthy period, nothing was done to investigate, negotiate with the district attorney, or prepare for trial on the other charges. Respondent certainly knew, or should have known, that no other attorney was assisting Robinson on those charges. This situation is particularly troubling because neither the judge nor the prosecutor in Robinson’s case was informed of the limited scope of Respondent’s representation, and because Respondent set the matter for trial on all counts. The Hearing Board finds that Respondent’s attempt to limit his representation of Robinson was not reasonable under the circumstances presented here.29
Moreover, Respondent has provided us with no basis to believe that Robinson provided informed consent to the limited scope of representation as Respondent describes it. Even if Robinson had provided some form of consent, however, the evidence indicates that Robinson may have lacked capacity to provide informed consent to such a significant deviation from the expected attorney-client relationship.30 The private defense attorney who represented Robinson for a time after Respondent’s withdrawal, Jason Cuerdon, testified that Robinson did not understand indeterminate sentences or the ramifications of the charges. Jason Cuerdon further testified that he believed it took some thirty meetings with Robinson for Robinson to fully understand that he faced a very long prison sentence. Under these circumstances, the Hearing Board concludes that Robinson could not and did not sufficiently understand the nature of the limited representation that Respondent meant to offer, the risks of that representation, and the alternative courses of action.
Patella Robinson’s testimony also indicates that Robinson’s parents, who had never before hired a lawyer, did not fully understand that Respondent intended to offer a limited scope of representation.31 Patella Robinson testified that she did not understand the procedures by which defendants are tried and charged, and she suggested she thought it might be possible to clear up the rape charge before the other charges were addressed. She stated that she understood that Respondent would help with the rape charges, but she also testified that she understood Respondent was "going to be [Robinson’s] lawyer," he was "going to take care of the case," and he would "take care of whatever needed to be done." Patella Robinson also offered credible testimony that she did not recall Respondent having discussed any alternative defense strategies with her or explained the risks of focusing solely on the rape charge.
Respondent argues that the amount he charged the Robinsons demonstrates his intent to limit his representation. But in these circumstances, where Patella Robinson did not "know the amount of work to expect for the amount of money [she] paid," payment of the requested fee cannot be understood as signaling agreement to a limited scope of representation.32
In summary, the Hearing Board determines that Respondent’s attempt to restrict the scope of his representation of Robinson was neither reasonable nor the product of informed consent, and that Respondent did not represent Robinson with the requisite thoroughness and preparation. Accordingly, we find that Respondent violated Colo. RPC 1.1.
Colo. RPC 1.15(a), 1.15(c), and 1.5(b)
In an order imposing partial judgment on the pleadings, the PDJ previously determined that Respondent violated Colo. RPC 1.15(a). Respondent violated this rule by failing to deposit Robinson’s advance fee in a trust account.33
We likewise find that Respondent violated Colo. RPC 1.15(c), which requires an attorney to account to the client for the use of client funds.34 Respondent admitted at the hearing that he did not provide accountings to Robinson or Robinson’s parents when he cashed the checks from Patella Robinson.35
Finally, we conclude Respondent violated Colo. RPC 1.5(b). This rule provides that, when a lawyer has not regularly represented a client, the lawyer must communicate the basis or rate of the fee to the client in writing, before or within a reasonable time after commencing the representation.36 At the hearing, Respondent admitted that he had not previously represented Robinson and that he never provided a written explanation of his fee.
The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards) and Colorado Supreme Court case law govern the selection and imposition of sanctions for lawyer misconduct. ABA Standard 3.0 mandates that, in selecting the appropriate sanction, the Hearing Board consider the duty breached, the injury or potential injury caused, Respondent’s mental state, and the aggravating and mitigating evidence.
ABA Standard 3.0—Duty, Injury, and Mental State
Duty: The Hearing Board finds Respondent violated his duty to competently represent his client with the thoroughness that was reasonably necessary, to preserve client property with the care required of a professional fiduciary, and to account for the use of client funds.37 The Hearing Board also finds Respondent breached the duties he owes as a professional when he failed to provide a written explanation of his fee to a new client.38
Injury: Respondent’s misconduct caused injury and potential injury to his client. Most significantly, Respondent was forced to waive his constitutional right to a speedy trial as a result of Respondent’s inaction.39 Robinson’s statement to the court at the trial status hearing in March 2009 demonstrated another intangible injury: significant confusion on Robinson’s part due to the lack of communication regarding Respondent’s representation. Further, Respondent’s lack of thoroughness and preparation created the possibility for a host of potential injuries. In addition, Respondent’s failure to deposit the advance fee in a trust account, to provide an accounting, or to explain his fee caused injury or potential injury by depriving his client and his client’s parents of valuable information and by heightening the risk of misuse of the funds.
Mental State: Respondent knew that he failed to place his client’s funds in a trust account, failed to provide an accounting regarding his use of those funds, and failed to explain his fee in writing.40 He also had actual knowledge of his decisions with respect to limiting his representation of Robinson, although he had no conscious intent to deprive Robinson of competent legal representation.41
ABA Standard 3.0—Aggravating Factors
Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. The Hearing Board considers 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 1994 for disciplinary offenses that are unrelated to the gravamen of this matter. In 2003, Respondent was privately admonished for two rule violations. First, Respondent failed to communicate the basis or rate of his fee to clients in writing, in violation of Colo. RPC 1.5(b). Second, Respondent used his trust account as a personal account, in violation of Colo. RPC 1.15(f).
Multiple Offenses—9.22(d): The Hearing Board finds four separate violations of the Rules of Professional Conduct, as outlined above.
Vulnerability of the Victim—9.22(h): Respondent’s client was vulnerable because he was in custody and facing a sentence of forty-eight years to life in prison, and because he appears to have had limited capacity for understanding the nature of the criminal proceeding. Robinson’s parents also were vulnerable because, as noted above, they had no prior experience in hiring a lawyer.
Substantial Experience in the Practice of Law—9.22(i): Respondent has been a member of the Colorado bar for thirty-seven years. Such a longstanding practitioner should have known that his conduct violated the Rules of Professional Conduct, as outlined above.
ABA Standard 3.0—Mitigating Factors
Mitigating factors are any considerations or factors that may justify a reduction in the degree of discipline imposed. The Hearing Board considers evidence of the following mitigating circumstances in deciding the appropriate sanction.
Absence of a Dishonest or Selfish Motive—9.32(b): Respondent testified that he was not motivated by a dishonest or selfish motive, and the People have conceded that Respondent lacked such a motive. The Hearing Board also notes that the testimony is undisputed that in the past Respondent has demonstrated unselfish behavior by providing legal services at minimal cost to clients in need and by volunteering his time to the community. We hasten to add, however, that providing low- or no-fee representation does not absolve a lawyer of his or her duties to provide thorough and competent representation as provided in Colo. RPC 1.1.
Remoteness of Prior Offenses—9.32(m): Respondent’s suspension for unrelated offenses in 1994 is sufficiently remote that the Hearing Board does not consider this suspension to be an aggravating factor in this case. However, the Hearing Board does give weight to Respondent’s 2003 private admonition, because the conduct at issue there was not particularly remote and that conduct was closely related to the misconduct we have found here.42
Sanctions Analysis under ABA Standards and Case Law
ABA Standard 4.42 provides that suspension is generally appropriate when a lawyer causes a client injury or potential injury by knowingly failing to perform services for a client or engaging in a pattern of neglect.43 ABA Standard 4.12 states that suspension is generally appropriate when a lawyer knows or should know that he or she is dealing improperly with client property, such as by failing to place client funds in a trust account or failing to account for the use of those funds, and causes injury or potential injury to a client. Finally, where a lawyer fails to explain his or her fee in writing and thereby causes injury or potential injury to a client, the public, or the legal system, ABA Standard 7.2 provides that suspension is generally appropriate for the violation of a duty owed as a professional.
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."44
Respondent’s misconduct in this case warrants a suspension for several reasons. First, Respondent’s actions and statements at the hearing before us demonstrate a misguided belief that his method of representing clients complies with the Rules of Professional Conduct. For example, Respondent stated that he believes there has been an "elevation of form over substance" in his case. Second, while Respondent appears to be well intentioned, we find Respondent fails to appreciate that the Rules at issue here regarding client communication serve the important goal of empowering clients in their relationships with their attorneys.
The Hearing Board is also concerned about the developing pattern of Respondent’s ethical violations. As noted above, Respondent was previously privately admonished for failing to communicate the basis or rate of his fee to clients in writing and for using a trust account as a personal account. While Respondent testified that going forward he would scrupulously endeavor to adhere to these rules, we are concerned that he will not do so because Respondent’s prior discipline did not lead him to change his behavior. Respondent also admitted during his testimony that he has defended others in the same manner as he did Robinson. In one instance, Respondent described "shadowing" the public defender, who was the counsel of record, while Respondent provided limited representation much as he did in Robinson’s case. It is not clear from this record that the public defender knew about Respondent’s shadow representation.
A final basis for concern is Respondent’s apparent view that he satisfies the responsibility of providing zealous representation because he can "outthink" his opposing counsel. As discussed above, although Respondent attended several hearings and conducted interviews on behalf of Robinson, there is little other evidence of legal work that Respondent performed on Robinson’s behalf, despite being paid $3,300.00. While Respondent may have a superior intellect, that alone does not assure compliance with Colo. RPC 1.1.
Colorado case law suggests that a lengthy suspension is appropriate where an attorney with prior discipline has failed to diligently work on a client matter and has violated other rules regarding client communication and proper management of client funds. For example, in People v. Convery, an attorney with a prior disciplinary history was suspended for a year and a day for neglecting a legal matter.45 The neglect in Convery was somewhat more serious than the neglect here; the lawyer filed a frivolous motion, failed to respond to interrogatories, failed to take action on the case, leading to the garnishment of the client’s bank account, and failed to inform a client of a deposition, causing the court to order the sale of the client’s property.46 Convery, however, provides a comparable basis for selecting a sanction in Respondent’s case because the lawyer’s misconduct in Convery was limited to neglect, while Respondent’s misconduct encompassed not only neglect but also three separate violations relating to client funds and client communication.47
In imposing a sanction, the Hearing Board emphasizes the varied nature of Respondent’s violations in this matter, the vulnerability of the victim, and the incipient pattern that this misconduct and Respondent’s prior misconduct are forming. Given these factors, we believe a suspension of a year and day is appropriate.
For the reasons explained above, the Hearing Board determines that Respondent should be suspended for a year and a day. We also note our concern about Respondent’s physical and mental health. At the hearing, Respondent’s demeanor was erratic, while his testimony and arguments often were difficult to follow and at times were incoherent.48 The Hearing Board recognizes that the stress of defending oneself in a disciplinary proceeding could contribute to such difficulties. Nevertheless, we are concerned that if Respondent continues to practice law, an underlying physical or mental condition could affect the quality of Respondent’s representation of future clients. Accordingly, we will require that Respondent submit to an Independent Medical Examination (IME) as a condition of reinstatement.
The Hearing Board therefore ORDERS:
1. JERRY LEE STEVENS, Attorney Registration No. 04033, is hereby SUSPENDED from the practice of law for one year and one day. The suspension SHALL become public and effective thirty-one days from the date of this order upon the issuance of an "Order and Notice of Suspension" by the PDJ and 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 attend and successfully complete the one-day ethics school and the one-half-day trust account school sponsored by the People.
3. 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.
4. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the PDJ on or before October 27, 2010. No extensions of time will be granted.
5. Respondent SHALL pay the costs of these proceedings. The People shall submit a "Statement of Costs" within fifteen (15) days from the date of this order. Respondent shall have ten (10) days thereafter to submit a response.
1. See C.R.C.P. 251.1(b).
2. People’s exhibit 1.
3. People’s exhibit 3. Patella Robinson wrote a check for $300.00 dated September 6, 2008, a second check for $2,500.00 dated September 9, 2008, and a third check for $1,500.00 dated October 6, 2008.
4. Id. Patella Robinson testified that $1,000.00 of the check dated September 9, 2008, also was intended to pay for Walter Barrett’s services. Accordingly, Respondent received a total advance fee of $3,300.00 for his legal work.
5. Bechtel provided uncontroverted testimony that Respondent was late to this hearing.
6. Neither did Respondent obtain the transcript of the preliminary hearing in Robinson’s matter.
7. People’s exhibit 7.
11. Id. In addition to Robinson’s apparent difficulties in communicating with Respondent, Bechtel testified that he had problems reaching Respondent to discuss the case. For example, Respondent’s voice mail greeting consisted solely of a "sigh," so Bechtel could not be sure whether he was leaving a message for Respondent or whether he had the wrong number.
15. Id. As of the date of the hearing in Respondent’s matter, Robinson’s case still had not gone to trial.
16. Jason Cuerdon, the private defense attorney who represented Robinson for a time after Respondent’s withdrawal, testified that by the first trial setting the People had not obtained the "pen pack," which is required to prosecute habitual criminal charges. For this reason, it could be argued that a wise strategic choice would have been for Respondent to request that Robinson’s trial proceed at the first setting. Respondent’s failure to prepare for trial foreclosed this potentially fortuitous option.
17. See Martinelli v. Dist. Court, 199 Colo. 163, 612 P.2d 1083 (1980).
18. The Hearing Board is mindful of the risks in second-guessing a defense attorney’s strategic choices. See United States v. Gentry, 429 F. Supp. 2d 806, 812 (W.D. La. 2006) (stating, in a case concerning a claim of ineffective assistance of counsel: "A defense counsel may be forgiven if he has a multitude of possible objections or arguments but chooses for strategic reasons to focus his and the court’s attention on what he believes to be the best arguments. A resulting conviction or sentence should not, therefore, be thrown out lightly in such a case merely because counsel elected not to argue every possible defense.).
19. We note that the Colorado Supreme Court previously determined that an attorney violated Colo. RPC 1.1 by deciding to forgo review of certain case materials. People v. Bonner, 927 P.2d 836, 836-37 (Colo. 1996) (adjudging criminal defense lawyer to have provided incompetent representation because he failed to review the district attorney’s file and the transcript of the preliminary hearing, even though the lawyer had conducted multiple interviews, subpoenaed witnesses, prepared opening and closing arguments and direct and cross-examination, and drafted jury instructions in preparation for trial).
20. The case file for Robinson’s matter that Respondent produced at the hearing raises concerns regarding Respondent’s thoroughness and preparation. See Respondent’s exhibit D. The file’s contents are limited to a copy of an order for HIV testing, two invoices for discovery, two discovery cover sheets, eleven partially filled pages of what appear to be handwritten interview notes, three fax transmittal cover pages from the City and County of Denver Airport Legal Services department, an Office Depot receipt, an unidentified print-out concerning greeting cards and calendars, a copy of the complaint/information in Robinson’s case, and a copy of the prosecutor’s files in Robinson’s case. None of these materials are annotated by Respondent. Aside from the brief interview notes, the file contains no record of legal work or research performed on Robinson’s behalf. At the very least, the file provides evidence of slipshod organizational skills, which can lead to incompetent representation. Respondent admitted at the hearing that his organizational skills need work.
21. Respondent also contends that similar preliminary investigatory work led to successful results for at least one past client.
22. People’s exhibit 4.
23. The Hearing Board found Bechtel to be a credible witness. By contrast, it was the Hearing Board’s impression that Respondent was not entirely forthcoming in this proceeding. For example, Respondent initially emphasized his desire to comply with the rules regarding trust accounts and indicated that these proceedings were a learning process for him. This characterization lost credibility once the People revealed that Respondent had previously been disciplined for a violation of the trust account rules. In addition, the answer Respondent filed in this proceeding raises questions about Respondent’s truthfulness. For example, Respondent denied that he failed to provide an accounting for the funds he received from Robinson’s parents and denied that he failed to deposit those funds into a trust account. See complaint, ¶ 4; answer, ¶ 4. At the hearing, Respondent admitted that he never provided an accounting or deposited the funds into a trust account, with no explanation for why he previously denied these straightforward factual allegations.
24. Although Respondent was not charged under Colo. RPC 1.2(c), the facts underlying a limited representation directly affect whether the attorney competently represented the client. Where an attorney validly limits the scope of a representation in accordance with the Rules of Professional Conduct, it is permissible for that attorney to take no action on specified claims or issues. On the other hand, where an attorney makes an invalid effort to limit the scope of a representation, the attorney may be found to have failed to competently represent the client on claims or issues the attorney attempted to exclude from the scope of the representation. See Colo. RPC 1.2 [cmt] 7 (Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.).
25. Comments 6 and 7 to Colo. RPC 1.2 and Colo. Bar Assoc. Ethics Opinion 101: Unbundled Legal Services, Jan. 17, 1998, contemplate limited representation under circumstances different from those presented here, such as an insurer’s retention of a lawyer to represent an insured person or a lawyer helping a pro se litigant prepare for a hearing. Colo. RPC 1.2(c) and case law suggest that there are some situations in which an attorney and a criminal defendant may permissibly decide to limit the scope of a representation. See People v. Harlan, 54 P.3d 871, 876, 880-81 (Colo. 2002); United States v. Roth, 860 F.2d 1382, 1385, 1389 (7th Cir. 1988). A tension exists between attorneys’ ethical obligations to zealously defend their clients and the limited financial resources of some defendants and some attorneys. See generally Fern Fisher-Brandveen and Rochelle Klempner, Unbundled Legal Services: Untying the Bundle in New York State, 29 Fordham Urb. L.J. 1107 (Feb. 2002); Fred C. Zacharias, Limited Performance Agreements: Should Clients Get What They Pay For?, 11 Geo. J. Legal Ethics 915 (Summer 1998). Although in some instances a criminal defendant may benefit from a limited defense, we note that limited representation in the criminal context is unusual and poses special risks because of the liberty interests at stake, among other reasons. Furthermore, limited representation in the criminal context may not carry the same benefits as in the civil context. For example, one of the primary advantages of unbundled legal services in the civil context is that such services may increase access to justice for low- to middle-income persons. See, e.g., Brenda Star Adams, "Unbundled Legal Services": A Solution to the Problems Caused by Pro Se Litigation in Massachusetts’s Civil Courts, 40 New Eng. L. Rev. 303, 348-49 (Fall 2005). Another advantage is that such services may alleviate some of the judicial delays and difficulties caused by pro se litigants. Where, as here, a criminal defendant qualifies for public assistance, limited representation by a private attorney does not serve those goals.
26. Colo. RPC 1.0.
27. Colo. Bar Assoc. Ethics Opinion 101: Unbundled Legal Services, Jan. 17, 1998; see Johnson v. Bd. of County Cmm’rs, 85 F.3d 489, 494 (10th Cir. 1996) (holding that an attorney who had defended claims brought against a sheriff in his official capacity but not in his individual capacity violated Colo. RPC 1.1 by not consulting with the sheriff under Colo. RPC 1.2 about the legal exposure he faced in his individual capacity); Keef v. Widuch, 747 N.E.2d 992, 995, 998 (Ill. App. 2001) (the client must be made to understand that the course of action is not the sole potential remedy and that there exist other courses of action that are not being pursued); In re Maternowski, 674 N.E.2d 1287, 1291 (Ind. 1996) (meaningful consent to a limitation on the lawyer’s scope of representation must be based on full, objective disclosure and unbiased advice); Healy v. Axelrod Const. Co. Defined Ben. Pension Plan & Trust, 155 F.R.D. 615, 620 (N.D. Ill. 1994).
28. People’s exhibit 4.
29. Our determination is limited to these facts. We do not find that limited representation on a single charge or the use of "shadow counsel" necessarily would be improper in every circumstance.
30. We are not aware of case law providing competency standards for informed consent to a limited representation, but we draw guidance from the rule that a waiver of the right to conflict-free representation must be voluntary, knowing, and intelligent. People v. Shari, 204 P.3d 453, 460 (Colo. 2009).
31. We discuss Respondent’s communication with Robinson’s parents because this information provides a fuller picture regarding Respondent’s efforts to limit the scope of his representation. We do not determine here that Respondent’s parents had the authority to provide informed consent to a limited scope of representation on behalf of their son, although we note that it may be possible in some cases for parents or other persons to provide such consent on behalf of a client who lacks capacity to do so. Cf. McDonald v. Hammons, 936 F. Supp. 86, 88 (E.D.N.Y. 1996) (noting that in some instances a parent can waive a child’s right to conflict-free representation). Here, even if the Robinsons had the legal capacity to provide informed consent on behalf of their son, the evidence shows that they were not fully informed by Respondent, and therefore they could not have provided informed consent.
32. See Estate of Spencer v. Gavin, 946 A.2d 1051, 1067 (N.J. Super. 2008) (the quantum of a lawyer’s fees is not dispositive of the presence or absence of an attorney-client relationship and the professional duties attendant to such a relationship).
33. See In re Sather, 3 P.3d 403, 405 (Colo. 2000) (under Colo. RPC 1.15 an attorney cannot treat advance fees as property of the attorney and must segregate all advance fees by placing them into a trust account until such time as the fees are earned).
34. See People v. Fritsche, 849 P.2d 31, 32 (Colo. 1993) (lawyer failed to provide an accounting to client); Colo. RPC 1.15 [cmt] 8 (explaining that an accounting as to the use of client funds is required even if there is no dispute as to ownership of those funds).
35. In fact, Respondent provided incorrect information to Patella Robinson regarding the use of his fee. He explained that he needed this fee in part to pay for an independent analysis of the rape kit, but he never obtained such an analysis.
36. See In re Wimmershoff, 3 P.3d 417, 419 (Colo. 2000) (lawyer violated Colo. RPC 1.5 by failing to clearly convey the basis and rate of his fee).
37. See ABA Standard 4.0.
38. See ABA Standard 7.0.
39. Respondent argues that delay in Robinson’s case redounded to Robinson’s benefit, because as long as Robinson had not been sentenced, he had some hope of avoiding a long prison sentence. We cannot credit this viewpoint, given that there is no evidence that Robinson himself wished to delay his trial. Respondent appears to be speculating regarding Robinson’s frame of mind, and Respondent’s argument presupposes that Robinson will be found guilty.
40. Respondent did not challenge the People’s characterization of his mental state as knowing for these rule violations.
41. See ABA Standards § III, Definitions.
42. See People v. Good, 790 P.2d 331, 332 (Colo. 1990) (in case concerning attorney neglect, prior neglect occurring fifteen to twenty years earlier was relevant to the discipline to be imposed).
43. Although Appendix 1 of the ABA Standards indicates that ABA Standard 4.5 applies to incompetent representation, ABA Standard 4.5 is oriented towards lack of legal knowledge or skill rather than lack of thoroughness or preparation. Accordingly, we determine that ABA Standard 4.4 (lack of diligence) is more relevant to the conduct at issue here.
44. See ABA Standards § II at 7.
45. 758 P.2d 1338 (Colo. 1988).
46. Id. at 1340.
47. See also People v. Davies, 926 P.2d 572, 573 (Colo. 1996) (suspending a lawyer with prior discipline for a year and a day for having incorrectly calculated a client’s child support); People v. Madrid, 700 P.2d 558, 559-60 (Colo. 1985) (suspending a lawyer for a year and day for having neglected to contact witnesses, file motions, subpoena witnesses, or respond to his client); People v. Silvola, 933 P.2d 1308, 1309-10 (Colo. 1997) (suspending a lawyer with several instances of prior discipline for a year and a day for having failed to prepare for a client’s trial).
48. Similar red flags are raised by Respondent’s letter to the People of June 9, 2009, regarding the investigation against him, which contained numerous spelling and grammatical errors. See People’s exhibit 4.
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