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TCL > January 2001 Issue > Opinions

The Colorado Lawyer
January 2001
Vol. 30, No. 1 [Page  101]

© 2001 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Colorado Disciplinary Cases

Opinions


The Colorado Supreme Court has adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge, pursuant to C.R.C.P. 251.16, and a new intermediate appellate entity known as the Appellate Discipline Commission, pursuant to C.R.C.P. 251.24. 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 Presiding Disciplinary Judge presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the Presiding Disciplinary Judge. See C.R.C.P. 251.18(d).

Beginning with the September 1999 issue, The Colorado Lawyer will publish the summaries and full-text opinions of the Presiding Disciplinary Judge, Roger L. Keithley, and a two-member hearing board, whose members are drawn from a pool appointed by the Supreme Court, and the opinions of the Appellate Discipline Commission.

These Opinions may be appealed in accordance with C.R.C.P. 251.26 and C.R.C.P. 251.27.

The full-text opinions, along with their summaries, are available on the CBA homepage at http://www.cobar.org/tcl/index.htm. See page 106 for details.


Case No. 00PDJ018

Leo Wotan,

Petitioner,

v.

The People of the State of Colorado,

Respondent.

Original Proceeding in Discipline before the
Presiding Disciplinary Judge

OPINION AND ORDER REINSTATING LEO WOTAN’S LICENSE TO PRACTICE LAW

Opinion by Hearing Board members Gail C. Harriss and David A. Helmer, both members of the bar, dissent by Presiding Disciplinary Judge Roger L. Keithley.

ATTORNEY REINSTATED

This reinstatement matter was heard on June 29, 2000, pursuant to C.R.C.P. 251.29(b) and (c) before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Gail C. Harriss and David A. Helmer, both members of the Bar. James C. Coyle, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People") and Peter J. Adolph represented Petitioner Leo Wotan ("Wotan"). The following witnesses testified on behalf of Wotan: David M. Adams, Harlan Gunther, Victory Adams, Judith Drennan, William Drennan, Joseph Tarantino, Amir Hassan Khazei, M.D., and Dorothy M. Wotan. Wotan testified on his own behalf. Wotan’s exhibit 1 was admitted into evidence by stipulation.

The PDJ and Hearing Board considered the testimony and exhibit admitted, assessed the credibility of the witnesses, and considered the Partial Stipulation of Facts submitted by the parties. The Hearing Board made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

On September 15, 1997, the Colorado Supreme Court suspended Leo Wotan from the practice of law for a period of one year and one day, effective thirty days thereafter. See People v. Wotan, 944 P.2d 1257, 1264 (Colo. 1997).

Wotan’s suspension arose from several separate matters. In one matter, Wotan communicated with a party he knew to be represented by another lawyer on the subject of the representation, in violation of prior DR 7-104(A)(1) and Colo. RPC 4.2(communication with a person represented by counsel). In another matter, the client was injured in the scope of his employment and sought Wotan’s professional assistance regarding the unpaid medical bills for his injuries. Wotan neglected the client’s matter over a two-year period, in violation of prior DR 6-101(A)(3) and Colo. RPC 1.3 (neglecting a legal matter entrusted to the lawyer). In a third matter, Wotan brought a medical malpractice action on behalf of a client and filed a certificate of review, which failed to meet the requirements set forth in § 13-20-602(2)(a)(III), 6A C.R.S. (1987 & Supp. 1993). Wotan thus violated Colo. RPC 3.3(a)(1)(making a false statement of material fact or law to a tribunal). Wotan also violated Colo. RPC 1.3 by failing to take certain actions on his client’s behalf in the course of the representation. In a fourth matter, Wotan instructed his bookkeeper to add a surcharge of ten percent to client billings without noting the surcharge on the billing statements, in violation of prior DR1-102(A)(4)(engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). Additionally, Wotan did not withhold enough money in his law firm bank account for tax purposes, resulting in the failure to pay withholding taxes in violation of 26 U.S.C. §7202 (1994), a felony, which constituted a violation of prior DR1-102(A)(4) and Colo. RPC 8.4(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR1-102(A)(6) and Colo. RPC 8.4(h)(engaging in conduct that adversely reflects on the lawyer’s fitness to practice law), Colo. RPC 8.4(b)(committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer), as well as C.R.C.P. 241.6(5)(violating the criminal laws of the state or of the United States).

Wotan initially filed a Petition for Reinstatement on October 26, 1998. By the time Wotan filed his original Petition for Reinstatement, the People had received additional Requests for Investigation relating to Wotan’s conduct during his period of suspension. The People opposed the reinstatement and the parties stipulated to the dismissal of the petition. Thereafter, the People filed a Complaint arising from conduct allegedly occurring during the period of suspension, Case No. 99PDJ074. The allegations of that Complaint were resolved by the submission of a Conditional Admission of Misconduct which was approved by the Presiding Disciplinary Judge by Order dated July 16, 1999. In the Conditional Admission, the parties agreed to the sanction of public censure for Wotan’s violation of the Court’s Order of Suspension by engaging in the unauthorized practice of law while under suspension in two separate matters. In the first matter, Wotan prepared an amendment to an existing trust agreement which he had drafted several years before and counseled and gave advice on the trust to a former client. He billed a total of $125 for his work. In the second matter, Wotan prepared a codicil to a will he had previously drafted on behalf of another client, and counseled her with regard to the codicil. He billed $150 for his work. Wotan notified both clients that he was unable to practice law, but would act as a paralegal or scrivener. Wotan believed that he was assisting two former clients who were elderly regarding minor scrivener work. The Conditional Admission of Misconduct provided that Wotan’s violation of Colo. RPC 5.5 (engaging in the unauthorized practice of law) was negligent rather than intentional.

In the original September 15, 1997, Order of Suspension, the Court ordered Wotan to pay costs of the proceeding in the amount of $3,705.82 on or before December 15, 1997. The opinion further stated that Wotan would not be reinstated until after he had complied with C.R.C.P. 241.22(b) through (d).1 Wotan did not pay the required costs by December 15, 1997. Thereafter, Wotan sought and received additional time from the Supreme Court within which to pay the assessed costs. In the interim, however, the matter had been forwarded for collection causing collection costs to arise in addition to the original cost assessment. As of the conclusion of the reinstatement hearing, Wotan had submitted payment for all costs assessed in the original Order of Suspension plus a sufficient amount to satisfy the additional collection costs incurred by reason of his untimely payment. Wotan testified without any conflicting evidence that he was financially unable to pay the assessed costs in accord with the original order or the extensions granted by the Court, paid portions of the amount due as his financial condition allowed, and eventually did pay the costs and collection fees as soon as his finances enabled him to do so.

Following his suspension from the practice of law, Wotan closed his law office and sought various other forms of employment. Wotan remained gainfully employed during the period of his suspension, often working extended hours to meet the financial needs of his family. Wotan and his family suffered severe financial hardship as a result of his prior misconduct and the resulting suspension.

During the period of suspension, Wotan was not convicted of any crime, had no civil judgments entered against him, was not in arrears on child support payments, had no tax liens or judgments entered against him and was not a party to any civil or criminal actions. He has no record of illegal drug use, abuse of alcohol or history of any conduct involving moral turpitude.

Following his suspension, Wotan continued to be involved in community and church activities. He conducted two seminars for first-time home buyers at his own expense, one of which was co-sponsored by Habitat for Humanity, for whom Wotan has served as a volunteer board member for six years. He has remained very active in his church community. Wotan now monitors his community and church involvement to prevent the over extension that contributed to his prior misconduct.2

During the period of time in that Wotan’s misconduct occurred, he suffered from depression and was hospitalized. He was under a great deal of stress and was not able to properly manage his time between conflicting obligations. The stress and its associated effects were a significant factor giving rise to his suspension. He is currently taking prescription medication to avoid a relapse of depression and has obtained counseling as a result of his suspension, which has helped him understand and acknowledge the circumstances that gave rise to the suspension. He recognizes that he must avoid procrastination and over extending himself.

He is held in high esteem by friends and business associates in the community. He is known as a trustworthy, loyal and honorable individual. Clients who previously had used Wotan’s legal services expressed their opinions that he is competent, has good legal ability and has a deep respect for the legal system. Wotan’s character witnesses described his prior misconduct as an aberration not consistent with his commitment to community, clients and family.

Wotan was forthcoming about his suspension to his friends and business associates. He acknowledges the seriousness of his prior misconduct and is remorseful about his actions. He invited the imposition of conditions upon reinstatement, including monitoring of his law practice and a mentoring attorney to oversee him.

Notwithstanding the fact that his employment during the period of suspension did not relate to the legal profession, Wotan continued to attend Continuing Legal Education ("CLE") courses. Indeed, he exceeded the number of required CLE credits required of practicing lawyers and earned seventy-five credits, 19.6 of which were in the field of ethics.3 Wotan also taught a class at Aims Community College in Loveland, Colorado, during the spring quarter of 1998 on the "Legal Environment of Business" which included a section on ethics in the context of business and business law.

II. CONCLUSIONS OF LAW

Leo Wotan was licensed to practice law in the State of Colorado on May 23, 1978, attorney registration number 08823. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b). Wotan filed a Petition for Reinstatement on March 6, 2000, and tendered the cost deposit of $500 required under C.R.C.P. 251.29(i).

In the September 15, 1997, Order of Suspension, the Court ordered Wotan to pay the costs of the proceeding in the amount of $3,705.82 on or before December 15, 1997. Although Wotan did not pay the costs in strict accordance with the Court’s Order of Suspension, he did ultimately pay the amount ordered and paid it in accordance with his financial ability to do so. Under People v. McCaffrey, No. 99PDJ108, slip. op. at 5 (Colo. PDJ March 6, 2000), 29 Colo. Law 114, 115 (May 2000) the PDJ and Hearing Board found that McCaffrey’s substantial compliance with the requirements of C.R.C.P. 241.21(d) was sufficient for purposes of reinstatement. See also People v. Berkley, 99PDJ073, slip op. at 5-7 (Colo. P.D.J. 1999) 29 Colo. Law. 111,112 (February 2000).

In both McCaffrey and Berkley the attorney’s failure to strictly comply with the court order did not evidence either harm to their former clients nor an intent to ignore the Court’s orders. Wotan’s failure to strictly comply with the suspension order in this case is similar. His failure to comply arose from a financial inability to pay rather than an unwillingness to do so. Indeed, he did pay in accordance with his ability and the People did not contest that issue. Accordingly, the Hearing Board finds that Wotan has substantially complied with the Order of Suspension with regard to payment of the assessed costs from the order of suspension.

In addition to the payment of costs in the underlying disciplinary matter, the Order of Suspension stated that Wotan would not be reinstated until after he had complied with C.R.C.P. 241.22(b) through (d). At the time of Wotan’s filing of the Petition for Reinstatement, C.R.C.P. 241.22 had been replaced by 251.29, which states in relevant part:

(c) The petition for reinstatement must set forth:

(3) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;

(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;

(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

In addition to the requirements set forth above, in order to determine whether the attorney applying for reinstatement has been rehabilitated, the Hearing Board must consider the factors set forth in People v Klein, 756 P. 2d 1013, 1016 (Colo. 1988). These factors include the petitioner’s state of mind and professional ability, including character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, present business pursuits, personal and community service, and the petitioner’s recognition of the seriousness of his previous misconduct.

During the period of suspension, Wotan was not convicted of any crime, had no civil judgments entered against him, was not in arrears on child support payments, had no tax liens or judgments entered against him and was not a party to any civil or criminal actions. He has no record of illegal drug use, abuse of alcohol or history of any conduct involving moral turpitude. Wotan sought out and underwent treatment and counseling to aid him in addressing the depression that contributed to his suspension. Wotan expressed genuine remorse for his past conduct.

Wotan established that he has maintained his professional competence by studying a significant number of CLE classes and teaching law-related subjects. He has consistently dedicated a significant amount of time to community activities. He is very active in his church community. He is a dedicated husband and father and participates actively in his home life, and is well respected in his community. The uniform expressions of respect both for Wotan’s legal abilities and for his honesty by persons from his community is a significant factor in granting his reinstatement to the practice of law.

The September 15, 1997 Order of Suspension noted:

[W]e are very troubled, as was the board, by the respondent’s predilection for blaming his employees for problems that were of his own making. Reinstatement proceedings will ensure that the respondent is once again able to practice law appropriately. Id. at 1264.

The Hearing Board is satisfied that Wotan no longer blames others for his own misconduct; rather, he accepts full responsibility for his actions. Unlike his testimony at his disciplinary hearing, Wotan no longer attributes his misconduct to the actions of others. He correctly recognizes that it was his failure to conform his actions to the mandates of the profession, not the failure of others, which precipitated his suspension. His current state of mind regarding his prior misconduct is one of recognition and acceptance and it provides a measure of reassurance that similar misconduct is unlikely to recur.

Under the factors set forth in both C.R.C.P. 251.29 and Klein, 756 P.2d at 1016, the Hearing Board finds that Wotan established by clear and convincing evidence that he is rehabilitated.

These proceedings, among other things, are designed to protect the public. In accordance with that responsibility and pursuant to C.R.C.P. 251.29(e), the Hearing Board imposes the following conditions upon Wotan as express conditions of his resumption of the practice of law:

  1. Wotan is required to practice within a legal environment where he can benefit from the free exchange of ideas and constructive feedback from at least one other practicing attorney. This environment must include adequate support staff to assist Wotan’s adherence to the well-organized practice of law, and;

  2. Wotan must retain a practice monitor. Such monitor may work with him in the legal environment described above. Such monitor must have at least five (5) years’ experience practicing law in Colorado. Within thirty (30) days of the placement of a practice monitor, Wotan shall inform the Office of Attorney Regulation Counsel of the identity, address and phone number of the practice monitor. The practice monitor shall submit a written report to the Office of Attorney Regulation Counsel on a quarterly basis disclosing the nature and frequency of the monitoring, Wotan’s compliance with recommendations of the monitor, and any areas of difficulty which may be experienced. Monitoring shall continue for a period of twelve months.

  3. Wotan shall attend the ethics school offered by the Office of Attorney Regulation Counsel within one year from the date of this Order. Wotan shall be responsible for all costs of his attendance in ethics school.

  4. Wotan shall pay all costs associated with the reinstatement proceeding. In the event any costs are due and owing, the People shall file with the PDJ an itemization of the costs and expenses attributable to this matter within ten (10) days of the date of this Order. Wotan shall have five (5) days thereafter to file a Response to the itemization. Wotan shall be solely responsible for all costs associated with compliance with the terms and conditions of this Order.

DISSENT: The PDJ dissents:

The Hearing Board concluded that Wotan established by clear and convincing evidence that he is rehabilitated from his prior misconduct, recognizes the seriousness of that misconduct and is fit to practice law. I disagree.

Rehabilitation, of necessity, requires a detailed examination of the misconduct which resulted in the original discipline. Wotan’s misconduct, as revealed by the Supreme Court’s opinion in People v. Wotan, 944 P.2d 1257 (Colo. 1997), raises serious question about his personal and professional integrity in five distinct areas. At least three of those areas were particularly troubling. The Supreme Court stated:

The three most serious of the respondent’s violations are the filing of the false certificate in the Betty Fisher case, the secret 10% surcharge, and the failure to pay employee withholding taxes when due. Any one of these violations by itself would justify a period of suspension. Wotan, 944 P.2d at 1263.

The evidence presented at the reinstatement hearing in this matter failed to demonstrate steps taken by Wotan, if any, to address either the personal or professional deficiencies which precipitated the specific conduct leading to discipline. Wotan did not describe efforts he undertook to educate himself regarding those areas where the misconduct, at least in part, arose from ignorance or misunderstanding, changes in his character, or life style or personality characteristics from which it could be concluded that he would adhere to the standards of the profession. Indeed, beyond Wotan’s unsupported personal assurance that he would conform his future conduct to The Rules of Professional conduct, no evidence was offered from which a conclusion could be reached that he would do so.

Neither the passage of time nor personal assurances of future compliance, standing alone, should be interpreted as rehabilitation. In re Sharpe, 499 P.2d 406, 409 (Okla. 1972). In Goff v. People, No. 99PDJ 023, slip op. at 8-14 (Colo. PDJ August 4,2000) 29 Colo. Law. 126, 128-130 (October 2000) the PDJ and Hearing Board undertook a thorough analysis of the requirements of C.R.C.P. 251.29. That analysis neither changed nor enhanced the standard of proof required for reinstatement. At most, the Goff decision set forth the methodology by which reinstatement decisions must be made.4 Utilizing that decisional methodology in this case demonstrates that Wotan failed to meet his burden of proof regarding rehabilitation and, consequently, is not eligible for reinstatement.

Moreover, during the period of suspension, Wotan admitted that he engaged in the unauthorized practice of law. Although the Conditional Admission of Misconduct in which that admission was made stipulates that it was negligent misconduct, it raises a question regarding Wotan’s professional integrity which pervades the earlier misconduct resulting in his suspension. In the prior instances of misconduct, Wotan ignored well-settled courses of conduct, failed to inform himself of the requirements of law, took shortcuts in violation of The Rules of Professional Conduct, and failed to comply with law in order to achieve the result he determined to be appropriate. The unauthorized practice of law incidents which occurred during the period of suspension reveal the same willingness to circumvent the law or act in ignorance of it under circumstances in which Wotan determines that external factors justify his conduct. Those intervening events strongly suggest that no rehabilitation has transpired and the public may be at further risk.

Notwithstanding my dissent from the Hearing Board’s decision to authorize reinstatement, under the circumstances, the imposition of conditions upon reinstatement is essential. Although conditions upon reinstatement should be designed to assure protection of the public and should only be imposed to address specific, narrow areas of concern, the monitoring of Wotan’s practice of law is essential upon his reinstatement to the practice of law.

III. ORDER OF REINSTATEMENT

It is therefore ORDERED:

Upon the conditions set forth herein, the license to practice law of LEO WOTAN, attorney registration no. 08823 is REINSTATED to the practice of law. Pursuant to C.R.C.P. 251.27(g)5 the effective date of reinstatement shall be twenty-one (21) days from the date of this Order: November 20, 2000.

_______

1. C.R.C.P. 241.22 was replaced by C.R.C.P. 251.29 effective July 1, 1998.

2. Wotan attributed substantial portions of his prior misconduct to over involvement in community activities, lack of time to properly address his professional obligations and unmanageable stress associated with his inability to properly focus his activities. The People did not challenge this evidence.

3. The CLE courses included estate planning, legal malpractice, will contests, employment law, "geo hazard," real estate, trust accounts and construction law.

4. Goff was announced after this reinstatement hearing was concluded. Because Goff did not alter existing law, but rather gave guidance upon the decisional methodology, it is appropriate to apply that methodology to the facts of this case.

5. C.R.C.P. 251.26 was repealed by Order of the Supreme Court effective September 1, 2000. C.R.C.P. 251.27(g) provides that a notice of appeal shall be filed with the Supreme Court within twenty days of the date of mailing the decision from which the party appeals.


Case No.: 99PDJ076

The People of the State of Colorado,

Complainant,

v.

Kirby D. Ross,

Respondent.

Original Proceeding in Discipline before the
Presiding Disciplinary Judge

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Annita M. Menogan and Laird T. Milburn, both members of the bar.

A sanctions hearing was held on March 13, 2000, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Annita M. Menogan and Laird T. Milburn. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). The respondent Kirby D. Ross ("Ross") failed to appear.

On June 6, 1999, the People filed the Complaint in this matter. The Citation and Complaint were served upon Ross on July 23, 1999, by certified mail. Ross failed to answer the allegations in the Complaint and on December 23, 1999, default entered against him. The facts set forth in the Complaint were deemed admitted. Default was granted as to the rule violations set forth in claim I (Colo. RPC 1.4(a)), claim II (Colo. RPC 1.3), claim V (Colo. RPC 8.4(c)), claim VI (Colo. RPC 1.15(b)), claim VII (Colo. RPC 1.16(d)), claim VII (sic) (Colo. RPC 1.3), claim VIII (Colo. RPC 1.4(a)), claim X (Colo. RPC 1.4(a)), claim XI (Colo. RPC 1.15(b)), and claim XII (Colo. RPC 1.16(d)), which were deemed confessed, and denied as to the rule violations set forth in claim III (Colo. RPC 1.1), claim IV (Colo. RPC 1.5(a)), and claim IX (Colo. RPC 1.3).

The People’s exhibits 1 and 2 were offered and admitted into evidence. The PDJ and Hearing Board reviewed the facts established by the entry of default and the admitted exhibits, considered argument of the People, and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Kirby D. Ross has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 15, 1992, and is registered upon the official records as attorney registration number 22041. Ross is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

A. The Bailey Matter

In May 1997, Gary Bailey ("Bailey") retained Ross to prevent the sale of his mother’s house by Mr. Ven John ("Ven John") following her death. Ven John claimed title to the house through a quit claim deed allegedly signed by Bailey’s mother. Bailey paid Ross $600 for his professional services. On August 12, 1997, Ross filed a document entitled "Notice of Claim that Title to Property is not Clear" in the Arapahoe County Clerk and Recorder’s Office. Ven John filed suit against Ross, Bailey and his sister, claiming the document was spurious since no action or lis pendens had been filed.

The court ordered the defendants to show cause why the document filed by Ross should not be declared invalid. Ross filed a response to the show cause order claiming that the "notice" had been withdrawn. Ross also filed a Complaint to quiet title on behalf of Bailey. On November 4, 1997, defendants appeared for the show cause hearing and the court released the "notice" and set the matter for a hearing on attorneys’ fees. Following the hearing, Ross told Bailey that he would contact him regarding the status of the matter. Bailey never heard from Ross again.

On November 28, 1997, Ven John filed an Answer to the quiet title Complaint alleging that it was frivolous. Thereafter, Ross failed to timely file rule 26 disclosures in the case, failed to set it for trial, and failed to prepare a case management order. On February 3, 1998, the court notified Ross that the case would be dismissed within thirty days unless he accomplished the above three tasks. On March 11, 1998, after receiving no response from Ross, the court dismissed the quiet title action. Ross failed to inform the client that the case had been dismissed.

B. The Check Center Matter

Beginning in March of 1997, The Check Center referred matters to Ross concerning checks returned for insufficient funds so that Ross could represent The Check Center in litigation. A total of eighty matters were referred to Ross with claims totaling $29,819.14. During April and May 1997, Ross provided The Check Center with status reports regarding the cases. Thereafter, Ross ceased communications with his client and did not return calls from The Check Center’s representative. On June 30, 1997, Scott Hopson, one of The Check Center’s debtors, made a payment of $351 to Ross to satisfy his debt. Ross did not turn the money over to The Check Center or account for it. After July 1997, Ross failed to take any action on the files.

In February 1998, a representative of The Check Center asked corporate counsel, Paul Mohr, to inquire into Ross’s handling of The Check Center files. Mohr wrote letters to Ross on February 17, 1998 and February 26, 1998, requesting return of the files. Ross did not respond or return the files. On April 23, 1998, The Check Center representative wrote to Ross requesting return of the files and received no response.

C. The Tracy Matter

In October 1995, Michael Tracy’s father hired Ross and paid him a $4,000 retainer regarding post conviction matters involving his son, Michael Tracy ("Tracy"). Ross was hired to investigate Tracy’s case and file a motion for new trial or for a reduction of Tracy’s sentence on a first-degree murder conviction. Tracy had previously appealed his conviction and was unsuccessful. Ross agreed to bill against the retainer at $100 per hour. Ross met with Tracy in prison on several occasions. Tracy prepared a Crim. P. 35(c) motion in September 1996 and requested that Ross set it for a hearing. Thereafter, Ross failed to enter his appearance in Tracy’s case, failed to file motions, and failed to set the Crim. P. 35(c) matter for hearing.

Additionally, although Ross had told Tracy to call collect, when Tracy attempted to do so, Ross was either unavailable or Tracy’s calls were refused. At the outset of the representation Tracy had provided Ross with the trial transcripts and requested that he contact witnesses who had recanted their testimony following the trial. Ross failed to contact the witnesses. Following his termination in 1998, the client requested that Ross return the transcripts and a videotape, and was asked to account for the retainer he had been paid. Ross did not respond. Tracy made numerous attempts to communicate with Ross after June 1998 regarding these matters and Ross did not return his calls. Despite being requested to do so, Ross failed to account for the time he spent on the case or to account for the charges against the retainer he had received.

II. CONCLUSIONS OF LAW

The People’s Complaint charged Ross with thirteen separate claims consisting of violations of Colo. RPC 1.4(a)(failure to communicate)(Bailey, The Check Center and Tracy claims); Colo. RPC 1.3 (neglect)(Bailey and The Check Center claims); Colo. RPC 8.4(c)(conversion) (The Check Center claim); Colo. RPC 1.15(b)(failure to account)(The Check Center and Tracy claims), and Colo. RPC 1.16(d) (failure to return files)(The Check Center and Tracy claims). The People moved to dismiss claim III (Colo. RPC 1.1)(incompetence), claim IV (Colo. RPC 1.5(a))(unreasonable fee) and claim IX (Colo. RPC 1.3)(neglect). The PDJ granted the motion to dismiss without prejudice at the commencement of the hearing.

Ross exhibited misconduct involving common elements in the three matters giving rise to this disciplinary action. In all three matters, Ross entered into an attorney/client relationship, agreed to provide specific professional services, failed to provide those services, and failed to communicate with his clients regarding their legal difficulties. In all three matters, Ross’s failure to communicate with his clients constituted separate violations of Colo. RPC 1.4(a).1 In both the Bailey and The Check Center matters, Ross’s failure to perform the services he was hired to perform constituted serious neglect in violation of Colo. RPC 1.3.2 In The Check Center and Tracy matters, Ross’s failure to render an accounting when requested by the clients violated Colo. RPC 1.15(b).3 In both The Check Center and Tracy matters, Ross’s failure to return the files and other property when the clients requested them constitutes a violation of Colo. RPC 1.16(d).4

Ross’s most egregious misconduct, however, was his retention of funds belonging to his client in The Check Center matter. On June 30, 1997, one of the debtors of The Check Center made a payment of $351 to Ross to satisfy a debt. Ross did not, thereafter, account to his client for the payment nor transmit the funds. Misappropriation of a client’s funds includes "not only stealing, but also unauthorized temporary use for the lawyer’s own purpose, whether or not he derives any personal gain or benefit therefrom." People v. Varallo, 913 P.2d 1, 11(1996)(citing In re Wilson, 81 N. J. 451, 455 n. 1, 409 A.2d 1153 (1979)). Notwithstanding his client’s extensive efforts to obtain information about the cases Ross was handling and to recover the case files, Ross retained his client’s property and funds for an extended period of time without explanation or justification contrary to the mandatory obligations contained within The Colorado Rules of Professional Conduct. Ross’s failure to account or tender the funds he accepted on behalf of his client for an extended period of time, taken together with the client’s demands and his complete lack of communication with the client, establishes that his conduct was willful and knowing. Ross’s failure to turn over the funds belonging to the client constitutes knowing conversion, in violation of Colo. RPC 8.4(c).5 See People v. Hotle, No. 99PDJ038, slip op. at 4 (Colo. PDJ October 16, 1999), 29 Colo. Law. 107, 108 (January, 2000) (citing People v. Singer, 897 P.2d 798, 801 (Colo. 1995)(extensive and prolonged neglect is considered willful misconduct).

III. SANCTIONS/IMPOSITION OF DISCIPLINE

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 4.11provides that disbarment is generally appropriate when:

[A] lawyer knowingly converts client property and causes injury or potential injury to a client.

Conversion of client funds causes injury to the client. See Hotle, slip op. at 6, 29 Colo. Law. at 108. Ross’s conversion of the funds belonging to The Check Center warrants disbarment pursuant to ABA Standard 4.11 and Colorado case law. See In re Cleland, 2 P.3d 700, 706 (Colo. 2000)(disbarring attorney for misappropriation of funds); Varallo, 916 P.2d at 11; People v. Elliott, No. 99PDJ059 (consolidated with 99PDJ086) slip op. at 8 (Colo. PDJ March 1, 2000); 29 Colo. Law. 112, 113 (May 2000) (attorney disbarred for abandoning his clients and conversion of clients’ funds); Hotle, No. 99PDJ038, slip op. at 7, 29 Colo. Law. at 108; People v. Righter, No. GC98A120, slip op. at 6 (Colo. PDJ June 17, 1999), 28 Colo. Law. 140, 141 (September, 1999)(attorney disbarred for, among other things, serious neglect of clients and conversion of client funds).

ABA Standard 4.41 further provides that disbarment is generally appropriate when:

(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or

(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.

In all three matters, Ross knowingly failed to communicate with his clients in the course of his professional representation. In the Bailey and The Check Center matters, his conduct constituted serious neglect. In the Bailey matter, Ross’s failure to file timely disclosures, prepare a trial management order and set the case for trial resulted in Bailey’s quiet title action being dismissed. In The Check Center matter, Ross failed to take any action on the collection cases in his possession from July 1997 onward. Ross’s clients were put at substantial disadvantage and exposed to potentially serious injury as a result of Ross’s misconduct. See In re Cleland, 2 P.3d 700, 705 (Colo. 2000)(disbarring attorney for misappropriation of funds and holding that although the attorney’s clients may not have suffered significant actual damages, the potential for injury was nevertheless substantial). Ross’s failing to return the files and other property in The Check Center and Tracy matters resulted in potentially serious harm to the clients.

Ross did not participate in these proceedings and did not appear at the hearing; therefore, the PDJ and Hearing Board did not have the benefit of Ross’s presentation of factors which might mitigate the sanction.

The PDJ and Hearing Board considered factors in aggravation pursuant to ABA Standards 9.22. Ross had two instances of prior misconduct: he received two letters of admonition close in time to the misconduct giving rise to this Complaint. In 1997, Ross violated Colo. RPC 1.4(a) by failing to communicate with the client for a five-month period concerning the filing of an appeal on behalf of the client. In 1998, Ross violated Colo. RPC 1.3, Colo. RPC 1.4(a) and Colo. RPC 1.16(d) by failing to take meaningful action on a personal injury claim on behalf of the client for a fifteen-month period and failing to keep the client advised of the status of the case. Further, Ross failed to return the file to the client despite repeatedly being asked to do so. This misconduct is strikingly similar to the conduct giving rise to this Complaint.

Ross demonstrated a dishonest motive, knowing conversion of client funds, id. at 9.22(b); he engaged in a pattern of misconduct, id. at 9.22(c); committed multiple offenses, id. at 9.22 (d); engaged in bad faith obstruction of the disciplinary proceeding by failing to comply with the rules of the disciplinary process, id. at 9.22 (e); failed to acknowledge the wrongful nature of his misconduct, id. at 9.22(g), and Ross demonstrated indifference to making restitution, id. at 9.22(j).

Ross’s conduct amounts to serious neglect of his three clients, and the knowing conversion of funds belonging to one client. Knowing conversion alone warrants disbarment. See In the Matter of Todd J. Thompson, 991 P.2d 820, 824 (Colo. 1999); Varallo, 913 P.2d at 12. Taken together with the serious neglect evident in the Bailey case and the failure to communicate and failure to account in the Tracey case, disbarment is required.

IV. ORDER

It is therefore ORDERED:

  1. KIRBY D. ROSS, registration number 22041 is DISBARRED from the practice of law effective thirty-one days from the date of this Order.

  2. Ross is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

  3. As a condition of readmission, Ross must account to Tracy within twelve months from the date of this Order for the time he spent on Michael Tracy’s case and refund any unearned fees.

  4. As a condition of readmission, Ross must repay The Check Center $351 plus interest from June 30, 1997, at the statutory rate within twelve months from the date of this Order.

  5. Within 90 days of the date of this Order, Ross shall return to the respective clients all files in his possession, custody or control regarding the Tracey or The Check Center matters.

_______

1. Colo. RPC 1.4(a) provides: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

2. Colo. RPC 1.3 provides: A lawyer shall act with reasonable diligence and promptness in representing a client. A lawyer shall not neglect a legal matter entrusted to that lawyer.

3. Colo. RPC 1.15(b) provides: Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall, promptly or otherwise as permitted by law or by agreement with the client, deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, render a full accounting regarding such property.

4. Colo. RPC 1.16(d) provides: Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law.

5. Colo. RPC 8.4 provides: It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

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