Vol. 40, No. 9
From the Courts
Colorado Disciplinary Cases
Disciplinary Case Opinions
The Colorado Supreme Court adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge (PDJ), pursuant to C.R.C.P. 251.16. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The PDJ presides over attorney regulation proceedings and, together with a two-member Hearing Board, issues orders at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the PDJ. See C.R.C.P. 251.18(d). Disciplinary Opinions may be appealed in accordance with C.R.C.P. 251.27.
The Colorado Lawyer publishes the summaries and full-text Opinions of PDJ William R. Lucero and the Hearing Board, whose members are drawn from a pool appointed by the Supreme Court. For space purposes, exhibits, complaints, and amended complaints may not be printed. Disciplinary Opinions are printed as submitted by the Office of the?PDJ and are not edited by the staff of The Colorado Lawyer.
Case No. 09PDJ042
(consolidated with 09PDJ092)
THE PEOPLE OF THE STATE OF COLORADO
JOHN FREDERIC HEAD
July 20, 2010
DECISION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(b)
On May 18, 2010, a Hearing Board composed of F. Stephen Collins and Terry F. Rogers, members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge (PDJ), held a half-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 John Frederic Head (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 must hold property of others with the care required of a professional fiduciary. In one matter, Respondent admits he failed to reduce a flat-fee agreement to writing and deposited the fee into an operating account, refunding the sum eight months after his client requested the return of her money. In an unrelated matter, Respondent acknowledges he collected money from clients to pay their costs related to service of process but failed to timely remit those funds to the third-party vendor. What Rules of Professional Conduct have been violated, and what is the appropriate sanction?
As regards the first matter, the Hearing Board finds clear and convincing evidence that Respondent violated Colo. RPC 1.5(b), 1.15(a), 1.15(c) and 1.16(d), but that he did not violate Colo. RPC 1.4(a)(3). In the second matter, the Hearing Board concludes Respondent violated Colo. 1.15(a) and 1.15(b), but we cannot conclude he violated Colo. RPC 8.4(c). In light of the substantial mitigating factors presented, the Hearing Board determines a public censure is warranted in this instance.
II. PROCEDURAL HISTORY
On May 20, 2009, the People filed a Complaint in case 09PDJ042, alleging Respondent had violated Colorado Rules of Professional Conduct 1.5(b), 1.15(a), 1.15(c), 1.16(d) and 1.4(a)(3). Respondent filed an Answer on July 8, 2009. On October 20, 2009, the People filed a Complaint in case 09PDJ092, alleging Respondent had violated Colorado Rules of Professional Conduct 1.15(a), 1.15(b) and 8.4(c). Respondent filed an Answer on November 30, 2009. The PDJ consolidated the two cases on January 11, 2010. On March 9, 2010, the parties filed a stipulation, setting forth certain facts and law. During the May 18, 2010, hearing, the Hearing Board heard testimony and considered the People’s exhibits 1-5, to which Respondent stipulated.
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 September 27, 1972. He is registered upon the official records, Attorney Registration No. 03077, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings. Respondent’s registered business address is 1860 Blake Street, Suite 300, Denver, CO 80202.
Representation of Barbara Fox
In September 2007, Barbara Fox (Fox), acting pro se, filed a lawsuit for $12,000.00 in damages in Arapahoe County Court against Mortgage Planning and Lending Specialists (Mortgage Specialists), a mortgage brokerage company, arising from false representations it had allegedly made when granting Fox a loan. Fox also filed suit against two of the company’s principals, Leo Shifrin (Shifrin) and Mathew Green (Green). Fox had personally served a summons and complaint on Green, but she was having difficulty prosecuting her case and did not have the funds available to hire a lawyer on an hourly basis.
On January 11, 2008, Fox met with Respondent, a solo practitioner, who was litigating similar claims against Mortgage Specialists, Shifrin and Green, and who had completed substantial amounts of discovery that would be germane to Fox’s case. Because Respondent recognized another lawyer would likely not assist Fox, given that the damages she sought were limited, and because Respondent had work product available and relevant to Fox’s claims, Respondent agreed to represent Fox.
Respondent proposed the following arrangement: Respondent would charge Fox a flat fee of $5,000.00. An hourly rate of $425.00 per hour would be quoted in the fee agreement, but that rate would only be used in an application for statutory attorney’s fees if Fox prevailed. Respondent would be entitled to any attorney’s fees awarded, and he would be reimbursed for all costs he advanced during the litigation. Fox agreed with this arrangement and gave Respondent a check for $5,000.00, which Respondent deposited into his operating account. Due to a looming trial date in federal court, however, Respondent neglected to memorialize this understanding in a written fee agreement. Respondent stipulated to a violation of Colo. RPC 1.5(b) for failing to reduce his fee agreement with Fox to writing.
Following the engagement, Respondent incurred costs and performed some work in Fox’s case; he amended her complaint, re-filed it in district court, and arranged for service of process on the named defendants. Through no fault of Respondent, however, service could not be effected quickly, and Fox grew tired of delays. In early August 2008, Fox directed Respondent to halt the litigation and requested return of her $5,000.00 fee. After negotiations with Fox, Respondent agreed to refund the entire amount, but due to a "cash crunch," he delayed in doing so until April 2009—eight months after Fox sought return of her money.
The Hearing Board concludes Respondent violated Colo. RPC 1.15(a), which mandates an attorney hold property of clients apart from the lawyer’s own property by depositing the client’s property in a separate trust account.1 Respondent contends these funds were earned on receipt to compensate him for the bank of knowledge, experience and work product he amassed in litigating prior cases. But all fees deemed "earned on receipt" must be fully documented in writing, including a detailed description of the benefit being conferred on the client.2 Because there was no such writing here, the Hearing Board views Respondent’s arrangement with Fox as a flat-fee agreement and concludes the $5,000.00 advanced to Respondent was Fox’s property. As such, Respondent was required to hold these funds in a separate trust account until he performed legal services on Fox’s behalf.
We likewise find Respondent violated Colo. RPC 1.15(c). This rule provides that client property held by a lawyer must be kept separate in a trust account until there is an accounting of funds earned, and that the lawyer must provide a periodic accounting regarding portions of the fee that are consumed. Contrary to the rule, Respondent deposited the $5,000.00 in his operating account, and he testified he never sent Fox a bill accounting for the work he performed or the fees associated with that work prior to the time she terminated the representation. Respondent’s failure to keep these funds separate and provide a periodic accounting is a violation of Colo. RPC 1.15(c).
Further, we conclude Respondent violated Colo. RPC 1.16(d), which makes clear a lawyer is required to timely return to his client any advance payment of fees or expenses that has not been earned or incurred. On September 9, 2008, Respondent agreed to refund all of Fox’s money, but Respondent also concedes he did not do so until April 2009 because he did not have the funds available. Since the Colorado Supreme Court has found comparable delays violated Colo. RPC 1.16(d),3 the Hearing Board must likewise find Respondent violated the rule when he waited more than eight months to refund Fox’s $5,000.00.
The Hearing Board does not find, however, that the People presented clear and convincing evidence of a violation of Colo. RPC 1.4(a)(3), which requires a lawyer to keep his client reasonably informed about the status of his or her matter. Although Respondent testified he did not provide Fox a bill summarizing his work and related fees, he also stated he could not recall whether he discussed these issues with Fox more informally. The People adduced no other evidence concerning this claim. The Hearing Board finds and concludes this vague and indefinite testimony, unsupported by any other evidence, is not sufficient to meet the People’s burden of proof.
Hibernia Investigating Matters
In matters unrelated to Fox’s case, Respondent ran up a bill with Hibernia Investigating (Hibernia) totaling $2,114.78, including late fees, incurred for service of process in civil cases between 2008 and May 2009. In four of these cases,4 Respondent admits he engaged the services of Hibernia and submitted an invoice to the respective client for the cost of those services. These invoices were distributed between April and October of 2008. Each client paid Respondent’s invoice, but Respondent did not promptly repay Hibernia, nor did he deposit the funds in his trust account. Instead, Respondent consumed the funds. Despite several telephonic discussions with Hibernia representatives regarding this unpaid bill, Respondent delayed in making the repayment until July 2009, when Hibernia filed a Request for Investigation with the People.5
Respondent testified that even though he had received payment for Hibernia’s services from each client, he failed to reimburse Hibernia for two reasons. First, Respondent stated he lacked operating funds during this time and could not make ends meet. Second, Respondent explained the Hibernia bill included costs associated with both contingent and hourly-fee matters, and he acknowledged that he was negligent in differentiating between the four matters billed on an hourly basis, for which his clients paid costs, and the majority of his caseload, which was conducted on a contingent fee basis where Respondent advanced all costs.
Respondent provided this statement by way of explanation, and not excuse, and he testified he was "chagrined" by his conduct in the matter. To that end, Respondent stipulated he had violated Colo. RPC 1.15(a), for exercise of unauthorized dominion and control over client funds forwarded to him for the purpose of paying Hibernia’s bill, and Colo. RPC 1.15(b), for failing to promptly pay Hibernia’s bill.
The People also seek a finding that Respondent violated Colo. RPC 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit or misrepresentation.6 However, the Hearing Board finds the People presented a skeletal case regarding Respondent’s state of mind, relying only on Respondent’s testimony itself, combined with layers of inference, to establish a knowing misappropriation of client funds. While the Hearing Board finds Respondent knowingly violated his duties to his clients by improperly handling money rightfully belonging to them, we cannot find, based upon the evidence presented, that he acted with the purpose of deceiving or misleading them. Accordingly, we find that the People did not establish dishonesty, fraud, deceit or misrepresentation, elements required in Colo. RPC 8.4(c).
As discussed more fully below, Respondent’s irresponsible, careless and ultimately reckless behavior in these matters does not rise to the level of culpability necessary to find a violation of Colo. RPC 8.4(c).7 Rather, we find Respondent recklessly handled his client billing, his review of the Hibernia invoices and his application of funds received from clients in payment of billed costs. Respondent admits he failed to properly monitor his incoming and outgoing bills, and he recognizes that, in essence, he spent monies that were owed to Hibernia.
But we cannot in good conscience brand Respondent as dishonest or deceitful. While his conduct gives rise to various ethical violations, the evidence falls short of showing by clear and convincing evidence that Respondent attempted to defraud or deceive his clients or Hibernia. Respondent should have known he consumed funds his clients had forwarded to him to cover Hibernia’s costs. His recklessness in this matter is amply addressed in the other ethical violations we have found. But in light of the dearth of clear and convincing evidence, we cannot conclude Respondent knowingly engaged in dishonest, fraudulent or deceitful conduct, nor can we find he knowingly misrepresented any material facts.8
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 duties to his clients in both the Fox and the Hibernia matters, since a lawyer must preserve the property of his client with the care required of a professional fiduciary. The Hearing Board also finds Respondent breached the duties he owes as a professional when he failed to adhere to ethical standards of conduct, including the obligation to reduce fee agreements to writing and to timely refund advanced fees not yet earned.
Injury: Respondent’s conduct caused some injury to his client, Fox, and to Hibernia, a third-party vendor. Fox was deprived use of her $5,000.00 for well over nine months, and Hibernia’s bills were paid, in some instances, over a year late.
Mental State: While the People and Respondent stipulated to many of the underlying facts in this case, they differ as to characterization of Respondent’s mental state. The People argue that in each case, Respondent’s mental state was knowing. In the Fox matter, the People contend Respondent knew he had not reduced the fee agreement to writing, knew he deposited Fox’s fees into his operating account, and knew he did not account to Fox as he consumed those fees. In the Hibernia matter, the People claim Respondent knew he owed Hibernia for their services, knew he billed his clients for those services, knew he collected fees to compensate Hibernia and knew he spent those funds rather than forwarding them to Hibernia. Respondent, in contrast, argues his conduct in both matters was the result of negligence occasioned by the press of matters going to trial and distraction caused by the financial stress he was experiencing at the time.9
As regards the Fox matter, the Hearing Board concludes Respondent was negligent in his failure to memorialize in writing his fee agreement with Fox, per Colo. RPC 1.5(b). Respondent testified it was his usual practice to draft such agreements, and he impressed the Hearing Board as genuinely surprised that he had not done so in this case. In contrast, we find that Respondent’s conduct in depositing Fox’s fee in his operating account, his failure to account for consumed portions of that fee and, above all, his delay in returning to Fox her $5,000.0010—due entirely to Respondent’s "cash crunch"—constitutes knowing conduct as defined in the ABA Standards.11
With respect to Hibernia, the Hearing Board finds that Respondent’s conduct was reckless, but we cannot find by clear and convincing evidence that Respondent knowingly converted client property. For purposes of disciplinary proceedings, knowing conversion requires proof that the lawyer took property entrusted to him, even though the lawyer knew the property belonged to another and the taking was not authorized.12
The Hearing Board credits Respondent’s testimony that initially he "flat overlooked" the fact he had already received funds from his clients to pay Hibernia’s costs. But during the spring and summer of 2008, Respondent reviewed the bills in each of the four matters at issue and was in regular communication with Hibernia. At that time, Respondent certainly knew his account with Hibernia was in arrears, and he eventually should have become aware that while his bills for services rendered by Hibernia had been paid by his clients, he had failed to forward those monies to Hibernia. Nevertheless, while there is ample evidence Respondent ultimately should have known he improperly consumed client funds rightfully due to Hibernia, there is little to suggest Respondent actually knew that he was not authorized or entitled to those funds at the time he improperly accessed them. Accordingly, we find Respondent acted recklessly with respect to the Hibernia matters.
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.
Multiple Offenses—9.22(d): The Hearing Board finds six separate violations of the Colorado Rules of Professional Conduct under the rubric of two distinct set of offenses—one related to Fox, and one related to Hibernia. Although the Hearing Board considers this factor in aggravation, it accords it minimal weight because some of those six claims speak to the same operative facts.
Substantial Experience in the Practice of Law—9.22(i): Respondent has been a member of the Colorado bar for almost thirty-eight years, and his conduct is ill-befitting such a longstanding practitioner.
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 Prior Disciplinary Record—9.32(a): Respondent was admitted to the bar in 1972. During his decades of practice, Respondent has enjoyed an exemplary career with no prior disciplinary record. The People have stipulated that the absence of any such record should be considered as a mitigating circumstance in this case, and we grant this factor significant weight in our sanctions decision.
Absence of a Dishonest or Selfish Motive—9.32(b): Respondent testified that in neither the Fox nor the Hibernia matter was he motivated by a dishonest or selfish motive. In fact, Respondent claimed he undertook representation of Fox in order to assist her when no other lawyer would or could have economically served her interests, and he stated that he simply failed to closely tend to his administrative responsibilities given the pressure of his trial schedule. Because we assess Respondent to be a credible and trustworthy witness, we regard Respondent’s testimony as reliable and therefore find this factor justifies a reduction in the degree of discipline imposed.
Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct—9.32(d): The Hearing Board acknowledges that Respondent eventually refunded Fox the $5,000.00 she advanced, and he also paid the balance of the Hibernia bill, albeit up to a year late. The People maintain that in each case Respondent failed to disburse these funds until Requests for Investigation were filed with the People, and therefore his repayment cannot be considered in mitigation.13 But we observe the Colorado Supreme Court has recently ruled it the "better policy to allow a good faith effort to make restitution to be considered in mitigation in order both to encourage lawyers to reduce the injuries they have caused and help insure recognition of the wrongfulness of their conduct."14 As such, we consider Respondent’s repayment of these funds as a mitigating factor but accord it minimal weight.15
Cooperative Attitude Toward Proceedings—9.32(e): The People acknowledge Respondent has been cooperative throughout these proceedings, which should be considered in mitigation.
Character or Reputation—9.32(g): Respondent presented unrebutted testimony that he has rightfully earned a "high profile" in the Colorado legal community during his lengthy career. He has served on boards of bar committees and civic organizations, lectured for CLE events, founded a non-profit advocacy organization and performed pro bono work.
Remorse—9.32(l): The Hearing Board finds Respondent is sincerely remorseful for his conduct in the Fox and Hibernia matters. Respondent testified he realizes the Rules of Professional Conduct apply to him and he is not exempt from their application, and he expressed great regret—and embarrassment—that he "got himself into this predicament." Because we believe Respondent to be a credible and truthful witness, we also consider this factor in mitigation.
Sanctions Analysis Under ABA Standards
and Case Law—The Fox Matter
ABA Standard 4.1 governs violations of Colo. RPC 1.15, and ABA Standard 7.0 addresses violations of Colo. RPC 1.5 and 1.16. ABA Standard 4.12 provides that suspension is appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury as a result. Likewise, ABA Standard 7.2 establishes suspension as the appropriate result when a lawyer knowingly engages in conduct that is a violation of a professional duty and causes injury or potential injury to a client, the public or the legal system. ABA Standard 7.4, which allows for admonition, is appropriate when a lawyer engages in an isolated instance of negligence and causes little or no actual or potential injury to a client, the public or the legal system.
The Hearing Board has concluded that in his dealings with Fox, Respondent acted knowingly when he failed to place Fox’s funds into a trust account, failed to account for those funds and failed to timely return them to Fox upon termination of their attorney-client relationship. This conduct violated Colo. RPC 1.15 and 1.16; therefore, ABA Standards 4.12 and 7.2, which call for a period of suspension, apply here. Respondent’s failure to reduce his fee agreement with Fox to writing, on the other hand, appears to the Hearing Board an isolated instance of negligence worthy only of admonition. Indeed, it could hardly be said that this violation of Colo. RPC 1.5(b) redounded to Fox’s detriment; Respondent’s failure to put the agreement in writing forced him to refund to Fox his entire $5,000.00 fee, notwithstanding that he had incurred costs and performed valuable legal services on her behalf.
Yet after considering the various mitigating and aggravating factors limned above, the Hearing Board concludes a public censure, rather than suspension, is warranted for Respondent’s conduct in the Fox matter. Respondent’s excellent reputation as a longstanding member of the bar, his service in the legal community, his willingness to address the People’s concerns forthrightly and in a spirit of cooperation and his belated efforts to return to Fox her funds all "demonstrate precisely the recognition and acceptance of personal responsibility that diminish the need for further protection of the public."16
Sanctions Analysis Under ABA Standards
and Case Law—The Hibernia Matters
The Hearing Board has found Respondent acted recklessly in failing to transfer client monies to Hibernia for services it had rendered on his clients’ behalf. In essence, we conclude Respondent committed a "technical conversion," which generally warrants a suspension under Colorado authorities.17 But because of the many mitigators in this case, we find, as we did above, that suspension is not required in this instance. Respondent eventually paid the overdue Hibernia bills, and he expressed significant remorse for his failure to do so in a timely manner. Moreover, Respondent has adjusted his bookkeeping and vendor communication practices to prevent similar problems from arising in the future. Indeed, because the Hearing Board has every confidence that Respondent will henceforth be particularly vigilant in monitoring client bills and vendor invoices, anything more than imposition of a public censure in this instance would be draconian, serving no role in protecting the public.18
Respondent attributes the conduct at issue here solely to the stress of imminent trial and a severe "cash crunch" due to the uncertain nature of his practice. While this may be so, poor financial management and inferior monitoring practices cannot excuse Respondent’s professional misconduct in his dealings with Fox and Hibernia, nor can it exonerate Respondent’s misapplication of monies remitted by his clients to pay their costs. Although the Hearing Board finds Respondent’s conduct to be reckless and at times knowing, as discussed above, we also find substantial mitigation, namely his excellent reputation and longstanding record of achievement in the legal community, warrants a public censure, rather than a suspension.19
The Hearing Board therefore ORDERS:
1. JOHN FREDERIC HEAD, Attorney Registration No. 03077, is hereby PUBLICLY CENSURED. The censure SHALL become public and effective thirty-one days from the date of this order upon the issuance of an "Order and Notice of Public Censure" by the PDJ and in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h).
2. Respondent SHALL pay the costs of these proceedings. The People shall submit a "Statement of Costs" within fifteen (15) days from the date of this order. Respondent shall have ten (10) days thereafter to submit a response.
1. In re Sather, 3 P.3d 403, 412 (Colo. 2000).
3. See, e.g., id. at 415 (finding violation when attorney submitted partial repayment three months after discharge and full repayment two months thereafter); People v. Sigley, 917 P.2d 1253, 1254 (Colo. 1996) (finding violation when attorney delayed in returning advance fees for seven months after termination).
4. These four cases involved Respondent’s representation of three clients: representation of Tony Head, representation of Security National Mortgage Company, for which Respondent handled two separate matters, and representation of Mr. and Mrs. Manion. All told, the bills for these four matters added to $932.00.
5. One member of the Hearing Board is concerned that some vendors embroiled in collections disputes with members of the bar may perceive that their most expeditious route to recovery runs through the Office of Attorney Regulation Counsel, and not the civil courts. Stated simply, the Hearing Board member fears the complaining witnesses may have used the Office of Attorney Regulation Counsel as a collection agency in a simple debt collection case. The other members of the Hearing Board agree the Office of Attorney Regulation Counsel should not be used as a collection agency for debt claims. However, in this case, they find that Hibernia and Fox brought their claims to the Office of Attorney Regulation Counsel after attempting numerous times to recoup money rightfully theirs. Moreover, Respondent agrees he violated the disciplinary rules by improperly handling the funds in question and not promptly returning them.
6. Colo. RPC 1.0 (d) states: "Fraud’ or ‘fraudulent’ denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive." (Emphasis added). Black’s Law Dictionary 465 (9th ed. 2009) defines deceit as "[t]he act of intentionally giving a false impression." See also In re Attorney D, 57 P.3d 395, 402 (Colo. 2002) (noting the term "fraud" has a generic meaning that includes virtually any kind of deception or unfair way of inducing another to surrender rights or property).
7. As a general rule, a mental state of recklessness may warrant a finding that an attorney engaged in conduct violative of Colo. RPC 8.4(c) under certain circumstances. See People v. Radar, 822 P.2d 950, 953 (Colo. 1992) (finding the element of scienter, which is necessary for a violation of the precursor to Colo. RPC 8.4(c), was established when attorney deliberately closed his eyes to facts he had a duty to see). See also Colo. RPC 1.0(f), cmt [7A] (clarifying when recklessness may be equated with knowing); Marcy G. Glenn & Michael H. Berger, The New Colorado Rules of Professional Conduct: A Survey of the Most Important Changes, 36 Colo. Law. 71, 72 (2007) (discussing comment). Cases involving a violation of Colo. RPC 8.4(c) that specifically deal with misappropriation of another’s property, however, require a finding of knowing conduct; the finding of a reckless state of mind will not properly sustain a finding of "knowing" in such cases. See People v. Small, 962 P.2d 258, 260 (Colo. 1998) (With one important exception [involving knowing misappropriation of property], we have considered a reckless state of mind, constituting scienter, as equivalent to ‘knowing’ for disciplinary purposes.); People v. Zimmermann, 922 P.2d 325, 329 (Colo. 1996) (concluding the "single most important factor" in cases addressing misappropriation of clients funds is whether the conduct was knowing, or whether it was reckless or merely negligent).
8. See In re Haines, 177 P.3d 1239, 1245 (Colo. 2008) (noting a determination that an attorney has intentionally misappropriated funds belonging to a client must be supported by clear and convincing evidence); People v. Dickinson, 903 P.2d 1132, 1138 (Colo. 1995) (finding that a knowing misappropriation of client funds must be established by clear and convincing evidence).
9. As a solo practitioner, Respondent practiced law as a plaintiff’s lawyer in a difficult field of practice and, at the same time, handled all the administrative matters in his office.
10. Claims under Colo. RPC 1.15(a), 1.15(c) and 1.16(d).
11. "Knowledge" is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. ABA Standards, Section IV, Definitions.
12. See People v. Varallo, 913 P.2d 1, 11 (Colo. 1996).
13. The People cite People v. Brady, 923 P.2d 887, 890 (Colo. 1996); People v. Guyerson, 898 P.2d 1063, 1064 (Colo. 1995); and People v. Robbins, 869 P.2d 518, 519 (Colo. 1994).
14. In re Fischer, 89 P.3d 817, 821 (Colo. 2004).
15. Id. See also ABA Standard 9.32 cmt.
16. In re Fischer, 80 P.3d at 821 (cautioning against unreasonably harsh sanctions and acknowledging that cases do not always present the same need for sanctions when aggravating and mitigating factors are properly balanced). See also In re Wimmershoff, 3 P.3d 417 (Colo. 2000) (requiring public censure and restitution when attorney charged unreasonable fee, failed to adequately convey to client the basis and rate of his fee and entered into a fee agreement that did not comply with the rules).
17. See In re Haines, 177 P.3d 1239, 1250 ([W]hen a lawyer recklessly or negligently misappropriates funds, a period of suspension is typically adequate sanction.); People v. Schaefer, 938 P.2d 147, 149 (Colo. 1997) (The single most important factor in determining the appropriate level of discipline . . . is whether the respondent’s misappropriation of client funds was knowing, in which case disbarment is the presumed sanction, or whether it was reckless, or merely negligent, suggesting that a period of suspension is adequate.) (internal citations omitted); Zimmermann, 922 P.2d at 329 (same). We likewise look to ABA Standard 4.12, which provides that suspension is appropriate when a lawyer should know he is dealing improperly with client property and causes injury or potential injury as a result.
18. Compare People v. Pooley, 817 P.2d 712, 713-14 (Colo. 1996) (deeming public censure appropriate where lawyer failed to communicate with client, failed to separate client and lawyer funds and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation by drafting 17 insufficient funds checks to third-party payees, but where mitigating factors were present) with Zimmermann, 922 P.2d at 330 (ruling reckless misappropriation of client funds, compounded by respondent’s claim of ignorance regarding his fiduciary duties with regard to client funds, warranted one year and one day suspension) and People v. Davis, 893 P.2d 775, 776 (Colo. 1995) (suspending lawyer for 180 days under conditional admission for commingling client and lawyer funds and for writing 45 insufficient funds checks, where admission contained no explicit allegations of misappropriation of client funds).
19. Respondent argued that imposition of any sanction beyond a private admonition would interfere with his ability to represent, and thus would harm, his existing clients. The Hearing Board does not believe we can consider this as a relevant factor, and we feel it necessary to underscore that our decision does not contemplate and is not based upon any alleged harm to Respondent’s current clients resulting from imposition of these sanctions.
Case No. 10PDJ021
THE PEOPLE OF THE STATE OF COLORADO
JAMES E. PRESTON
November 12, 2010
DECISION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(b)
On October 12, 2010, a Hearing Board composed of Cynthia F. Covell and Henry C. Frey, members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge (PDJ), held a one-day hearing pursuant to C.R.C.P. 251.18. Elizabeth E. Krupa appeared on behalf of the Office of Attorney Regulation Counsel (the People), and James E. Preston (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
The People allege Respondent violated Colo. RPC 8.4(d) by disobeying the Twenty-Second Judicial District’s Administrative Order 94-03 (Administrative Order). Specifically, the People contend Respondent flouted the Administrative Order by repeatedly faxing non-emergency pleadings for filing and by refusing to pay the fees associated with the court’s receipt and handling of the faxed pleadings. The Hearing Board agrees. Respondent’s pattern of ignoring the court’s mandates and billing invoices, rather than pursuing available avenues to challenge or otherwise seek relief from the court’s orders, flagrantly contravenes professional norms and constitutes conduct prejudicial to the administration of justice. The Hearing Board concludes Respondent violated Colo. RPC 8.4(d) and finds public censure is warranted in this instance.
II. PROCEDURAL HISTORY
On February 23, 2010, the People filed a complaint, and Respondent filed an answer on March 17, 2010. Respondent filed a "Motion to Dismiss" on July 5, 2010. The People filed a response opposing the motion on July 20, 2010, and Respondent filed a reply brief on August 12, 2010. The Court denied the motion on August 26, 2010, because the case was not susceptible to determination on the basis of pleadings or motions. On August 13, 2010, the People filed "Complainant’s Motion for Summary Judgment," to which Respondent responded on September 10, 2010. On September 20, 2010, the Court denied the People’s motion on the grounds that the matter was inherently fact-specific and thus could not be determined without a full hearing. At the hearing conducted on October 12, 2010, the Hearing Board heard testimony and the PDJ admitted the People’s exhibits 1-14 and 17 and Respondent’s exhibits A and G. Both parties were also invited to file supplemental closing arguments; the People filed a brief on October 20, 2010,1 and Respondent filed one on October 28, 2010.
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 June 20, 1991. He is registered upon the official records, Attorney Registration No. 20578, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.2 Respondent’s registered business address is P.O. Box 120, Lewis, Colorado 81327-0120.
Administrative Order 94-03
Respondent, a longstanding practitioner in the southwest corner of Colorado, regularly appears in the Twenty-Second Judicial District, which encompasses both Montezuma and Dolores Counties. Respondent is one of approximately only twenty attorneys who live and conduct business in the Twenty-Second Judicial District.
On February 1, 1994, the Twenty-Second Judicial District promulgated the Administrative Order regarding facsimile filings, which was later reissued by the Honorable Chief Judge Sharon Hansen (Judge Hansen) on November 2, 1998. Judge Hansen testified3 that she reissued the Administrative Order, adding language regarding fees, to remedy the fact that "people weren’t paying for a service [facsimile filing] the court was providing." The reenacted version of the Administrative Order was never sent to the Colorado Supreme Court for approval; Judge Hansen said she saw no cause to do so because it "didn’t seem to be any different from what the Colorado Supreme Court had already said, that you can charge for faxes." Nor was the reenacted version circulated amongst the bar members of the Twenty-Second Judicial District for comment. Instead, once effective, the reissued version was distributed to attorneys who work in the Twenty-Second Judicial District via courthouse mailboxes or, if the attorney so requested, via regular U.S. mail.
As reenacted, the Administrative Order provides that "FACSIMILE TRANMISSIONS SHOULD BE USED ON EMERGENCY BASIS ONLY—NOT AS STANDARD OR ROUTINE WAY OF SUBMITTING DOCUMENTS TO THE COURTS."4 It also states that attorneys who wish to transmit pleadings are required to pay standard fees of $1.00 per case for each facsimile transmission plus $1.00 per page.5
On July 24, 2008, Respondent faxed duplicate motions to the Twenty-Second Judicial District in case 08CR69.6 Although Respondent had not sought prior approval from the court to file by facsimile, those motions were accepted by the Court, and Respondent was charged a total of $9.00 in fees.7 Notwithstanding the court’s acceptance of these filings, District Court Administrator Eric Hogue (Hogue) penned a letter to Respondent on August 6, 2008, to remind Respondent of the court’s policy:
It has been brought to my attention that you have recently faxed numerous motions to the court. While the court does accept fax pleadings, at a cost of $1.00 per page, the service is a courtesy and reserved for emergency situations and requires advance approval by the court. In the future, the 22nd Judicial District will not accept fax pleadings from your office that are not in compliance with the policy stated above.8
Notwithstanding Hogue’s admonition, Respondent faxed a two-page document to the court less than three weeks later in case 08PR72. Desiree Lipe (Lipe), the clerk of court, sent Respondent a return facsimile the same day to notify him the document was rejected because the court had not pre-approved his facsimile filing.9 Lipe also marked the facsimile transmission sheet with the charges levied for Respondent’s attempted facsimile filing.10 Lipe testified, "I always felt it was important for an attorney to understand why a pleading was being rejected," and that it was "a courtesy for [attorneys] to know they owe the court money for the fax."
Respondent faxed another filing in case 08PR72 a week later, on September 8, 2008, without advance permission. Again, the court rejected the filing with the note, "This is an E filed case; there is no proposed order w/ motion; Permission to fax not requested or granted."11 The court clerk recorded on the facsimile transmission sheet the amount Respondent owed, including late charges for failure to timely pay the court’s facsimile filing fees.
Less than a month later, on October 2, 2008, Respondent attempted to file by facsimile a twenty-one-page motion in case 07CV143 after his efforts to e-file the same document were rejected. Respondent received the court’s standard return facsimile alerting him to the filing’s rejection with the note, "This is an e-filed case—this was rejected on LexisNexis because of no order."12 As with earlier facsimile transmissions Respondent received from the court, the court clerk listed facsimile charges and late fees on this page.13 Just a few months later, on February 17, 2009, Respondent again faxed a lengthy motion in case 08CV88. This, too, was rejected; the court clerk cursorily explained in a return facsimile, "Administrative Order 94-03. Not emergency pleadings—Advance approval required."14 Charges were again assessed.15
That same day, on February 17, 2009, Lipe drafted a letter to Respondent detailing the seven facsimile filings he had attempted over the course of seven months, the disposition of each filing, and the charges associated with each. Lipe also enclosed a copy of the Administrative Order and Hogue’s August 6, 2008, letter, and she summarized the court’s policy regarding facsimile filings.16 Respondent did not reply to Lipe. Shortly thereafter, though, Respondent again sought to file by facsimile a pleading in case 08CV88 without prior approval. Lipe rejected his pleading on March 3, 2009, because Respondent had not requested permission in advance for an emergency filing.17 She imposed additional charges for that filing and logged them on her return facsimile.18
Apparently frustrated by Respondent’s continued disregard of the court’s policy and its assessed fees, Lipe then forwarded her February 17, 2009, correspondence, with updates and additional explanation, to the Office of Attorney Regulation Counsel.19 In response, the Office of Attorney Regulation Counsel sent Respondent an investigatory letter on March 17, 2009, requesting Respondent’s position in the matter.20 Respondent replied on April 5, 2009.21 Nevertheless, on April 7, 2009, Respondent once more faxed a pleading to the court in case 08CV50 in contravention of the Administrative Order. The filing was rejected and fees were assessed.22 To date, Respondent has not paid any of the $132.00 in fees associated with the pleadings he faxed to the court.23
The People contend that Respondent’s continued submission of pleadings by facsimile—despite repeated notices that such pleadings would be rejected—coupled with his refusal to pay the facsimile filing fees associated with his improper facsimile transmissions, constitutes conduct prejudicial to the administration of justice in violation of Colo. RPC 8.4(d).
Respondent disagrees on a variety of grounds. First, as a factual matter, Respondent contends that he did adhere to the Administrative Order insofar as each faxed pleading was filed on an emergency basis only after being arbitrarily rejected by the Twenty-Second Judicial District’s LexisNexis e-filing system. Second, he argues the Administrative Order is preempted by C.R.C.P. 121 Practice Standard § 1-25, which mandates acceptance of facsimile copies. Third, Respondent maintains he is exonerated from any failure to comply with the Administrative Order under comment 4 to Colo. RPC 8.4(d) because he possessed a good faith belief that no valid obligation existed to so comply. And finally, Respondent contests the applicability of Colo. RPC 8.4(d) in this matter; he insists that a Colo. RPC 8.4(d) claim cannot stand alone, and that such a charge is only proper when conduct seriously interferes with the administration of justice. We consider each argument in turn.
At the hearing, Respondent devoted much time to showing that he sought recourse to facsimile filing only when the Twenty-Second Judicial District clerks rejected his emergency e-filed pleadings for trifling reasons. Depicting the e-filing system as Byzantine—and bordering on the Kafkaesque—Respondent contends that Lipe and deputy court clerks denied each of his seven rejected pleadings based on purely inconsequential objections.24 Since judges receive no notice of rejected e-filings, Respondent testified, he faxed those same pleadings to preserve a record, via facsimile transmission time banner, of his attempted filing.
While the evidence presented at the hearing was too sparse to allow us to unravel the intricacies of the LexisNexis e-filing system or determine if Respondent’s various criticisms of that system have any merit, we do have evidence sufficient to conclude that Respondent did not comply with the strictures of the Administrative Order.
The Administrative Order specifically mandates that attorneys fax filings only in emergencies, and that any facsimile transmission should be accompanied by a cover sheet with instructions for court personnel. But Respondent admitted he never transmitted facsimiles with any instruction to the court clerks that they should consider his facsimiles to have been filed on an emergency basis. Nor did he otherwise indicate on facsimile cover sheets that he was transmitting the filings in an attempt to adhere to imminent court-imposed deadlines. And Respondent conceded that rather than e-file a corrected version of a rejected e-filing, he would attempt to "correct by fax the same problems if [he] could identify what they were." In any case, even if Respondent legitimately faced emergencies necessitating facsimile filing, his failure to pay the assessed fees and costs cannot be excused by the court’s rejections—be they valid or invalid—of his earlier e-filing attempts. Simply put, Respondent did not comply with the Administrative Order.
Respondent next argues that he did not have to comply with the Administrative Order because it is preempted by C.R.C.P. 121, which sets forth
"Practice Standards" addressing rule subject areas. These Practice Standards "are declared to be of statewide concern and shall preempt and control in their form and content over any differing local rule." Specifically, Respondent points to C.R.C.P. 121 Practice Standard § 1-25, which governs acceptance of facsimile copies, as inconsistent with the Administrative Order. Paragraph 2 of Practice Standard § 1-25 provides that "[f]acsimile copies which conform with the quality requirements specified in C.R.C.P. 10(d)(1) may be filed with the court in lieu of the original document. Once filed with the court, the facsimile copy shall be treated as an original for all court purposes." The committee comment to Practice Standard § 1-25 clarifies that "reasonable fees can be charged for the costs associated with facsimile filings. However, the setting of such fees is not within the scope of the Rules of Civil Procedure."
Respondent’s preemption argument is not dispositive of this case. To begin with, the fee provisions of the Administrative Order are not preempted, because the comment to Practice Standard § 1-25 specifically reserves to courts the authority to set facsimile fees. What is more, Chief Justice Directive 06-01 expressly allows courts to charge a $1.00 per page fee for both incoming and outgoing facsimiles, unless the facsimile is requested by the court. At a minimum, then, the Twenty-Second Judicial District’s policy concerning facsimile charges is not preempted, and Respondent’s failure to recompense the court for those fees cannot be excused based upon the doctrine of preemption.
The Hearing Board declines to further consider the question of preemption, since we need not decide the matter in order to determine whether Respondent violated Colo. RPC 8.4(d). Regardless of whether Practice Standard § 1-25 preempts operation of the remainder of the Administrative Order, we determine that Respondent’s failure to follow the Administrative Order prejudiced the administration of justice. This is because "[t]he orderly and expeditious administration of justice by the courts requires that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings."25 An orderly and proper proceeding here would have been a formal or informal challenge to the Administrative Order on the grounds of preemption, not just a failure to comply.26 Accordingly, since Colo. RPC 8.4(d) is broader and encompasses considerations other than the narrow question of preemption, the Hearing Board declines to summarily decide this case on that basis alone.
We also reject Respondent’s assertion that he was entitled to "refuse to comply with [the Administrative Order] upon a good faith belief that no valid obligation exists."27 There is no evidence, save Respondent’s testimony, to support this contention. Respondent’s alleged good faith belief could reasonably have been evidenced by his willingness to adhere to those obligations he acknowledged as valid. But while Respondent conceded that at least the $9.00 facsimile filing fee was validly assessed in case 08CR69—in which his pleadings were accepted and filed—he never paid or sought a waiver of even that fee. Respondent’s failure to voluntarily pay any portion of his debt, including those fees he recognizes as valid, discredits his claim of good faith.28 Respondent asserted, in part, that he should not have to pay most of the facsimile filing fees charged because many of his clients were indigent. However, we received no evidence showing that a court had issued an order in any of the relevant cases permitting Respondent’s client to proceed in forma pauperis. In the absence of such an order, a claim of indigency alone is insufficient to relieve the Respondent from payment of facsimile filing fees or any other court cost.
In addition, Respondent could have demonstrated a good faith belief by making a record of such a belief, for example, by asserting and supporting, in either a pleading or another communication to the court, his position that the Administrative Order was invalid, or that he was exempt from some or all of its requirements.29 Yet Respondent never openly challenged the Administrative Order in a court proceeding, nor did he broach the subject informally with Lipe, Hogue, or any other court personnel.30 Respondent’s pattern of ignoring repeated court notifications and invoices without filing a motion with the court or contacting the clerk defeats his good faith defense. We thus find Respondent failed to obey the Administrative Order not because he had a good faith belief that no valid obligation existed, but rather because he chose not to comply with it.
Finally, the Hearing Board turns to Respondent’s contention that Colo. RPC 8.4(d) cannot, by itself, support disciplinary charges because the language of the Rule is "too vague and ambiguous to support ethical charges by itself." Although we acknowledge that "conduct prejudicial to the administration of justice" is arguably imprecise, we find that a claim under Colo. RPC 8.4(d) is an appropriate vehicle for disciplinary action and may be properly employed, standing on its own, in some instances.
In reaching this position, we are guided by the decisions in sister jurisdictions Respondent cites in his hearing brief. These jurisdictions have held that analogs to Colo. RPC 8.4(d) may serve as the sole basis for discipline, but only in situations involving conduct whose "seriousness is beyond question," and "so egregious" and "flagrantly violative of accepted professional norms" as to "undermine the legitimacy of the judicial process."31 Thus, we are called upon to determine whether Respondent’s flagrant refusal to pay validly-assessed facsimile charges, coupled with his failure to adhere to the court’s emergency facsimile filing policy, suffices to violate Colo. RPC 8.4(d).
The Hearing Board finds several Colorado Supreme Court cases helpful in this task. In In re Bauder,32 an attorney was deemed to have engaged in conduct prejudicial to the administration of justice by knowingly refusing to pay costs assessed in an earlier disciplinary proceeding. Likewise, in People v. Whitaker,33 the Colorado Supreme Court concluded an attorney’s failure to pay a court reporter’s fees amounted to conduct prejudicial to the administration of justice, which it deemed "especially relevant to disciplinary sanctions because the debt arose out of the respondent’s legal practice." We also take note of People v. Huntzinger,34 where an attorney’s failure to pay court-ordered attorney’s fees was deemed sanctionable.35
Taken together, these cases hold that a failure to pay debts related to the lawyer’s practice of law prejudices the administration of justice, and they support a finding that Respondent’s obdurate refusal to follow announced court procedures and fee policies violated Colo. RPC 8.4(d). Practically speaking, by repeatedly resorting to facsimile filing following rejection of his e-filings, Respondent forced court administrative staff to unnecessarily expend time in processing his requests. In addition, Respondent’s refusal to honor court policy prejudiced the administration of justice by evincing a lack of "respect due to courts and judicial officers."36 Over the course of nine months, Respondent received at least three personal letters from court staff and the Office of Attorney Regulation Counsel informing him of the Administrative Order’s requirements, yet he faxed no fewer than six pleadings in defiance of those instructions during that time. He also ignored each and every court invoice detailing accrued facsimile charges, demonstrating an "indifference to his financial obligations arising out of the practice of law."37 This is not an issue merely about debt collection, as Respondent alleges,38 but rather one concerning Respondent’s continued snub of court policy, which undermines the legitimacy of the judicial process.39
We are cognizant that Colo. RPC 8.4(d) is a broadly-worded rule, and we must be careful, as Respondent cautions, that it not be invoked against "[a]ny attorney who asserts any right with the State." Accordingly, we emphasize that we find the conduct at issue here serious beyond question, regardless of the monetary amount at stake, because it flies in the face of professional norms: rather than addressing the court’s Administrative Order through appropriate legal channels, as a reasonable lawyer would, Respondent instead simply defied the court’s mandates. We find that by intentionally ignoring the Administrative Order, without any step to challenge its legitimacy, Respondent’s conduct prejudiced the administration of justice in violation of Colo. RPC 8.4(d).
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 must consider the duty breached, Respondent’s mental state, the injury or potential injury caused, and the aggravating and mitigating evidence.
ABA Standard 3.0—Duty, Mental State, and Injury
Duty: By disregarding his obligation to obey the rules of the tribunal, Respondent violated his duties to the legal system. The public expects lawyers to respect legal rules of substance and procedure and to abide by normal methods of contesting the validity of court rulings. Yet Respondent declined to operate within the bounds of the law—without documenting his refusal to comply in a letter, a pleading, or an appeal—thereby breaching his duties as an officer of the court.
Mental State: The Hearing Board has no choice but to find Respondent acted knowingly in flouting the court’s facsimile policy. Court personnel, as well as the Office of Attorney Regulation Counsel, warned Respondent in writing on multiple occasions that he was in violation of the Administrative Order and in arrears for assessed facsimile filing charges. Nevertheless, Respondent continued to fax pleadings without remitting payment to the court. We conclude Respondent possessed a "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result."40
Injury: We conclude Respondent caused actual, albeit minimal, financial harm to the court’s administrative processes. Respondent’s faxed pleadings added to the staff’s workload and wasted judicial resources: each time Respondent faxed a pleading, court personnel were required to determine what matter the facsimile concerned, discuss the reason for the facsimile and whether permission for faxing had been granted, ascertain whether the facsimile had previously been e-filed, compare it to any rejected e-filings Respondent had submitted, prepare and send a facsimile invoice, and follow up to collect facsimile filing payments. The injury Respondent’s conduct caused to the authority of the court, and by extension the integrity of the legal system, cannot be measured in dollars, but is injury nonetheless. Respondent also caused potential harm to his clients, since his behavior jeopardized the acceptance of every client pleading he faxed.
ABA Standard 3.0—Aggravating and Mitigating Factors
Aggravating circumstances are any factors that may justify an increase in the degree of discipline to be imposed, and mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline imposed. The Hearing Board considers evidence of the following aggravating and mitigating circumstances in deciding the appropriate sanction.
Pattern of Misconduct—9.22(c): Respondent’s failure to obey the Administrative Order was not an isolated incident: he regularly faxed pleadings to the court, even after he was repeatedly notified that he was in violation of the court’s policy. Moreover, he paid no heed to the clerk’s recurrent reminders that the court expected payment of his facsimile filing fees.
Refusal to Acknowledge Wrongful Nature of Conduct—9.22(g): The Hearing Board is disturbed by Respondent’s approach to these proceedings. He casts his refusal to honor court orders and invoices as a campaign to protect the "substantive due process rights of people’s access to the courts," depicting his difficulties with the e-filing system as illustrative of the system’s "potential for severe prejudice to people’s rights, especially the indigent." Respondent perceives his actions as "fundamental steps important to protecting the public," and he justifies his conduct with the claim that "sometimes an attorney must undertake to do things he knows will not be popular, simply because it is what he has to do." Respondent believes he handled the situation the best way he knew how at the time, given his experience and instincts. All told, Respondent testified that his conduct was "worth it, to the extent I helped people." Needless to say, Respondent refuses to acknowledge that his conduct in any way prejudiced the administration of justice, or that he could have challenged the Administrative Order in ways that would have been both proper and protective of the public’s right of access to the courts. We consider this factor in aggravation.
Substantial Experience in the Practice of Law—9.22(i): Respondent was admitted to the Bar of Colorado in 1991. We consider in aggravation that Respondent has been licensed as an attorney in this jurisdiction for nineteen years.
Indifference to Making Restitution—9.22(j): Respondent does not believe that the court’s facsimile filing fees are valid charges (with the possible exception of $9.00), and he has made no effort to pay them during the course of these proceedings. To the contrary, Respondent insists that the court is required to compensate him because the court clerks used his private facsimile service without authorization.
Absence of a Prior Disciplinary Record—9.32(a): The People acknowledge Respondent has no prior disciplinary history, and we consider this factor in mitigation.
Character or Reputation—9.32(g): Respondent testified to his good character, and the People provided no evidence in rebuttal. Specifically, Respondent mentioned that he looks for opportunities to help people through pro bono representation, and he stated that he has received the Colorado Supreme Court’s pro bono legal services annual achievement of commitment award for the past five years.
Sanctions Analysis Under ABA Standards and Case Law
ABA Standard 6.22 calls for suspension in cases when a lawyer knowingly violates a court order or rule, resulting in injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. In contrast, ABA Standard 6.23 provides that reprimand, or public censure, is generally appropriate when a lawyer negligently fails to comply with a court order or rule, causing injury or potential injury to a client, or interference or potential interference with a legal proceeding.41
Even though we find Respondent knowingly violated the Administrative Order, we decide that application of ABA Standard 6.23, calling for public censure, is most appropriate here. Colorado cases weigh in favor of public censure for a single charge involving an attorney’s failure to pay a law-related debt.42 In contrast, suspension has generally been warranted only when an attorney’s failure to honor debts arising out of the attorney’s legal practice was just one of multiple charges brought against the lawyer.43
Moreover, there is no direct parallel in this case to In re Roose,44 in which the Colorado Supreme Court suspended an attorney for one year and one day for, among other things, failing to comply with a judge’s command. There, a lawyer walked out of court in defiance of a judge’s direct order that she remain and continue representing her client in a scheduled hearing. Not only was Roose found to have knowingly disobeyed the court’s order, but she also made false statements to an appellate tribunal, failed to provide competent representation, and engaged in conduct prejudicial to the administration of justice. We consider the conduct in Roose far more egregious than that at issue here, in part because Roose involves multiple violations of the Rules of Professional Conduct, and in part because Roose’s behavior was an active act of rebellion in open court that put her client’s interests at risk. In contrast, Respondent’s passive recalcitrance in the face of the court staff’s written rebukes strikes us as less outrageous.
We also believe Respondent’s lack of prior misconduct during his almost twenty years of practice militates in favor of public censure, as does the very minimal harm occasioned by his behavior. His misconduct, we trust, is not likely to be repeated. Accordingly, informed by the case law, and considering the nature of Respondent’s conduct, as well as the mitigators and aggravators, we conclude public censure is appropriate in this instance to protect the administration of justice from further harm.
The principle that court orders and rules must be obeyed until such time as they are successfully challenged undergirds our system of law. When practitioners do otherwise, even with respect to filing requirements, they evidence a disregard for the integrity of the administration of justice. We therefore conclude Respondent’s noncompliance with the court’s facsimile policy, without concurrent efforts to challenge the legitimacy of the Administrative Order, violates Colo. RPC 8.4(d) and warrants public censure.
The Hearing Board therefore ORDERS:
1. JAMES E. PRESTON, Attorney Registration No. 20578, is hereby PUBLICLY CENSURED. The censure SHALL become public and effective thirty-one (31) days from the date of this order upon the issuance of an "Order and Notice of Public Censure" by the PDJ and in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h). Respondent SHALL file any post-hearing motion or application for stay pending appeal on or before Thursday, December 2, 2010. No extension of time will be granted.
2. Respondent SHALL pay restitution of $132.00 to the Twenty-Second Judicial District, State of Colorado, for unpaid facsimile fees within thirty-one (31) days from the date of this order.
3. Respondent SHALL pay the costs of these proceedings. The People shall submit a "Statement of Costs" within fifteen (15) days from the date of this order. Respondent shall have ten (10) days thereafter to submit a response.
1. Included in the brief was People’s exhibit 15.
2. See C.R.C.P. 251.1(b).
3. Judge Hansen testified at the hearing by telephone.
4. People’s exhibit 1.
6. People’s exhibits 3 and 4.
7. People’s exhibit 4.
8. People’s exhibit 2.
9. People’s exhibit 5. In their hearing brief and at the hearing itself, the People repeatedly read into the Administrative Order a requirement that attorneys obtain advance approval from the court in order to submit facsimile filings. While this may well have been Hogue’s or Lipe’s interpretation of the policy (see People’s exhibits 2 and 9), the Hearing Board can locate no such requirement in the plain language of the Administrative Order.
11. People’s exhibit 6.
12. People’s exhibit 7.
14. People’s exhibit 8.
16. People’s exhibit 9.
17. People’s exhibit 10-A.
19. People’s exhibit 11-A.
20. People’s exhibit 12.
21. People’s exhibit 14. Neither the People nor Respondent submitted as an exhibit Respondent’s reply to the People’s request for information.
22. People’s exhibit 13.
23. Although not dispositive of the findings we make herein, the Hearing Board notes the testimony in this case is undisputed that as long as the Administrative Order has been in effect, no other lawyer practicing in the Twenty-Second Judicial District has refused to abide by it.
24. At the hearing, Respondent inveighed against the clerks’ rejection of his pleadings as based on nothing more than their whims to see his "word processing done differently." Specifically, Respondent criticized the court clerks’ rejection of a motion when a proposed order was not "linked" to the motion in the e-filing system; the rejection of a proposed order with "/s/" in the signature block; and rejection of a motion when a linked proposed order contained Respondent’s name or address. However, the Twenty-Second Judicial District’s Administrative Order 2007-005 (Respondent’s exhibit G), expressly proscribes many of the same practices. In addition, Respondent’s exhibit A calls into question Respondent’s portrayal of Lipe and her deputy clerks as capricious; it reveals that the rejections of Respondent’s e-filings in Montezuma County were always accompanied by explanations for the rejection, thereby enabling Respondent to correct such problems. Further, Respondent’s pleadings were not just rejected by the Twenty-Second Judicial District: his e-filings were also rejected in Boulder County, the Colorado Court of Appeals, El Paso County, and Weld County. See also People’s exhibit 15. While we acknowledge smaller jurisdictions—and the attorneys practicing within them—may experience some growing pains in adopting new technology, including the e-filing system, all attorneys are responsible for acquainting themselves with those technologies and approaching court personnel with any concerns or problems that arise.
25. Maness v. Meyers, 419 U.S. 449, 459 (1975) (internal citations and quotes omitted). See also Howat v. Kansas, 258 U.S. 181, 190 (1922) (It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.); Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Hughes, 557 N.W.2d 890, 894 (Iowa 1996) (noting that ignoring a court order, regardless of the correctness of that order, is "simply not an appropriate step to test the validity of the order under our Code of Professional Responsibility); Balter v. Regan, 468 N.E.2d 688, 689 (N.Y. 1984) (ruling that "[h]owever misguided and erroneous the court’s order may have been, petitioner was not free to disregard it and decide for himself the manner in which to proceed).
26. Respondent asserted at the hearing that a formal challenge to the Administrative Order was too costly. However, he presented no evidence that he had made an informal challenge by simply writing to the clerk or Judge Hansen to voice his position about preemption of the Administrative Order.
27. Colo. RPC 8.4(d), cmt. 4.
28. In re Stanbury, 561 N.W.2d 507 (Minn. 1997), is instructive on this point. There, respondent Stanbury was charged with engaging in conduct prejudicial to the administration of justice by failing to pay a judgment against him. Id. at 508-09. Stanbury argued he possessed a good faith belief that part of the judgment was invalid because he had been overcharged. Id. at 510. The Minnesota Supreme Court rejected this argument, observing that by admitting a portion of the judgment was valid, Stanbury conceded he had no good faith belief to justify his nonpayment of that portion of the debt. Id. at 510-11. "Stanbury fail[ed] to meet his own standard for exemption from discipline," and the court found this conduct alone was sufficient to violate Rule 8.4(d). Id.
29. See Colo. RPC 3.4(c) (interdicting knowing disobedience of an obligation under the rules of a tribunal "except for an open refusal based on an assertion that no valid obligation exists). See also In re Pokorny, 453 N.W.2d 345, 347 (Minn. 1990) (suggesting that failure to appeal or otherwise challenge a judgment reflects lack of a good faith belief that no obligation existed to comply with that judgment).
30. Respondent provided contradictory testimony on this point; early in the hearing he insisted he had talked to several deputy district clerks about the issue, but he later reversed course and complained he could never get a live person in the clerks’ office on the phone. Respondent also attempted to place the onus of communication on court staff, protesting that the court clerks failed to initiate a telephonic discussion with him. We ultimately conclude, weighing Respondent’s credibility and based on all the testimony before us, that Respondent simply declined to openly dispute the Administrative Order.
31. See In re Discipline of Attorney, 815 N.E.2d 1072, 1077, 1079 (Mass. 2004) (quoting in part In re Discipline of Two Attorneys, 660 N.E.2d 1093, 1099 (Mass. 1996)).
32. 980 P.2d 507, 508 (Colo. 1999).
33. 814 P.2d 812, 814-15 (Colo. 1991).
34. 967 P.2d 160, 161-62 (Colo. 1998) (upholding hearing board’s finding that failure to comply with court’s order violated Colo. RPC 3.4(c), which prohibits knowing disobedience of a court order).
35. We also consider with interest a cluster of Minnesota Supreme Court decisions sanctioning attorneys for failure to timely pay fees associated with their legal practices. These cases agree that an attorney’s "adamant stance against voluntary payment of valid debts, especially when such obligations were for goods and services used in [the attorney’s] law practice, reflects adversely on [the attorney’s] commitment to the rights of others, thereby reflecting adversely on his fitness for the practice of law." In re Pokorny, 453 N.W.2d at 348 (internal quotations and citations omitted). See also In re Stanbury, 561 N.W.2d at 510-11 (sanctioning attorney for refusal to pay law library charges and court filing fee); In re Haugen, 543 N.W.2d 372, 375 (Minn. 1996) (sanctioning attorney for failure to timely pay court reporter fees); In re Hartke, 529 N.W.2d 678, 683 (Minn. 1995) (sanctioning attorney for failure to promptly satisfy a fee arbitration award); In re Ruffenach, 486 N.W.2d 387, 390 (Minn. 1992) (sanctioning attorney for failure to voluntarily pay legal malpractice judgment).
36. People v. Dalton, 840 P.2d 351, 352 (Colo. 1992) (quoting Losavio v. Dist. Court, 512 P.2d 266, 268 (Colo. 1973)).
37. In re Pokorny, 453 N.W.2d at 348.
38. Respondent frames this matter as a "simple dispute over a [sic] charges the Complainant improperly alleges," and he suggests the Hearing Board’s jurisdiction does not stretch to encompass "adjudication of small claims billing disputes between a private party, and the state." We agree with Respondent that this forum is not designed, as he puts it, for "litigating billing disputes on behalf of the State," but we disagree that a billing dispute is the essence of this matter. Rather, this case addresses Respondent’s intractable approach to the Administrative Order. For this reason, we decline to consider Respondent’s contention that he is entitled to a monetary offset for the 211 pages of correspondence and invoices the clerks sent to Respondent without his permission, at a charge of $1.00 per page and $5.00 per use of Respondent’s toll-free facsimile number. We observe in passing, however, that Respondent’s argument appears to lack force in light of Chief Justice Directive 06-01, which allows courts to charge a $1.00 per page fee for outgoing facsimiles, and the Administrative Order, which alerts attorneys that the clerk’s office will transmit a bill to the filing attorney via facsimile after the attorney’s faxed pleadings are received.
39. See In re Stanbury, 561 N.W.2d at 511 (Even if refusing to pay law-related debts to private parties lies near the edge of Rule 8.4(d)’s reach, refusing to make good on court filing fees—payments which provide direct financial support for our judicial system—falls within the core definition of conduct prejudicial to the administration of justice.). See also Statewide Grievance Comm. v. Whitney, No. CV-92-0511142-S, 1992 WL 204694, at *2 (Conn. Super. Aug. 19, 1992) (finding attorney’s repeated refusals to obey orders of the court violated Rule 8.4(d), and noting that "[i]f attorneys were free to obey or not obey such orders, as their own notions might dictate, there would be no administration of justice, but only chaos.).
40. ABA Standard IV, "Definitions."
41. We do not specifically consider ABA Standards 6.12 and 6.13, which govern violations of Colo. RPC 8.4(d), because we find ABA Standards 6.22 and 6.23 more relevant to the conduct at issue.
42. See People v. Stauffer, 745 P.2d 240, 242 (Colo. 1987) (publicly censuring attorney for failing to pay promissory note to expert witness for his testimony).
43. See In re Bauder, 980 P.2d at 508 (suspending lawyer for thirty days for violating Colo. RPC 3.4(c) and 8.4(d) and C.R.C.P. 241.6(7)); Huntzinger, 967 P.2d at 162 (suspending attorney for three months for violating court order to pay attorney fees and failing to attend his own deposition); Whitaker, 814 P.2d at 816 (suspending lawyer for ninety days for failure to pay court reporter’s bill, coupled with many other violations of the Rules of Professional Conduct). See also In re Braghirol, 680 S.E.2d 284, 288 (S.C. 2009) (suspending lawyer for nine months for failure to pay court reporter, failure to pay fee arbitration, and neglect of several matters).
44. 69 P.3d 43, 49 (2003).
Case No. 10PDJ074
THE PEOPLE OF THE STATE OF COLORADO
June 2, 2011
DECISION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)
On April 19, 2011, the Presiding Disciplinary Judge (the Court) held a sanctions hearing pursuant to C.R.C.P. 251.15(b). Margaret B. Funk appeared on behalf of the Office of Attorney Regulation Counsel (the People), and Lindasue Smollen (Respondent) appeared pro se. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."
Respondent violated Colo. RPC 1.1, 1.3, 1.16(a)(3), 1.16(d), and 8.4(d) by neglecting her representation of a client in a child support matter and failing to protect her client’s interest when she ignored subsequent counsel’s request to stipulate to substitution of counsel. After considering the nature of Respondent’s misconduct and its consequences, as well as her own testimony, the Court finds the appropriate sanction for Respondent’s misconduct is suspension for thirty days.
II. PROCEDURAL HISTORY
The People filed a complaint in this matter on July 13, 2010, setting forth four claims for relief based on violations of Colo. RPC 1.1, 1.3, 1.16(a)(3) & (d), and 8.4(d). The People mailed the complaint on that date by certified and regular mail to Respondent’s registered address. On July 15, 2010, Respondent personally signed for receipt of the citation and complaint. The People filed with the Court a "Proof of Service of Citation and Complaint" on July 19, 2010.
On September 13, 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 October 10, 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
At the sanctions hearing, the Court heard testimony and admitted the People’s exhibits 1-10.2
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.3 Respondent took the oath of admission and gained admission to the bar of the Colorado Supreme Court on August 19, 1983. She is registered upon the official records under attorney registration number 13083 and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.
Between mid-2008 and April 2009, Respondent represented Jeffrey Anderson (Anderson) in a child support matter in Adams County District Court case number 08DR926. In this matter, the mother had little contact with the child for approximately ten years and had paid no support to Anderson during that time. As a teenager, the child reconnected with his mother and began living with her. Anderson and the child’s mother then initiated proceedings to allocate parenting responsibility and child support. On July 25, 2008, during the first hearing on child support issues, the court ordered Anderson4 to pay the mother $485.80 per month in support. The court then set a permanent orders hearing in October of that year to resolve outstanding parenting time and child support issues.
Respondent represented Anderson during the permanent orders hearing on October 1, 2008. During that hearing, the parties agreed Anderson would pay only $50.00 per month in child support to the mother to offset his expenses of supporting the child for ten years without assistance from the mother. The court accepted the parties’ proposed stipulation by order of that same date. The mother had no representation during this hearing.
On January 26, 2009, the mother filed a motion for revised support order, requesting an increase in the $50.00 of support she received from Anderson per month. Respondent failed to respond to this motion on Anderson’s behalf. Receiving no response from Respondent or Anderson, the court concluded that in the best interest of the child it should deviate from the parties’ earlier stipulated amount of support. Accordingly, on February 11, 2009, the court ordered Anderson to pay $709.41 per month to the mother. This new amount was based on an income statement provided to the court by Anderson in 2008.
During a conference with the court on March 30, 2009, Respondent requested that the court hold an evidentiary hearing on its February 11, 2009, order, as well as a hearing on several other outstanding matters. In response, the court set a global evidentiary hearing for all pending matters for April 27, 2009.
In the meantime, Anderson did not pay the increased amount in child support, nor did he pay health care expenses ordered against him in previous hearings. Thus, on April 9, 2009, the mother filed a motion for citation for contempt of court, alleging Anderson failed to pay the increased child support and continued to fail to pay for long-overdue health care expenses. The court issued an order to show cause to Anderson regarding these allegations. While the contempt motion was pending, the parties moved to continue the hearing set for April 27, 2009.
On April 10, 2009, the mother moved to have their former child and family investigator (CFI) reappointed and to shift CFI costs from a 50/50% distribution, reallocating them entirely to Anderson due to his alleged intentional failure to adhere to the court’s orders. Respondent failed to object to this motion on Anderson’s behalf. As a result, the court granted the mother’s request to Anderson’s detriment.
On May 9, 2009, Anderson was personally served with the motion for citation for contempt of court and the court’s corresponding order to show cause. Anderson terminated Respondent prior to the hearing on this motion and hired new counsel to file a C.R.C.P. 60(b) motion for reconsideration of all previous orders entered against him on the grounds that Respondent had provided him ineffective assistance of counsel.
Subsequent counsel Michael Zywicki (Zywicki) left several messages for Respondent, who failed to return any of his calls regarding completing a substitution of counsel. Zywicki was thus forced to move for permission from the court to replace Respondent. Respondent did not respond to this motion or facilitate in any way Anderson’s transition to new counsel.
Anderson and the mother’s counsel, Ellen Toomey Hale, also found Respondent mostly unreachable by phone, email, or regular mail throughout the spring and early summer of 2009.
Respondent’s failure to respond to two motions requesting the court modify previous child support orders violated Colo. RPC 1.1, which provides that a lawyer must provide competent representation to a client, including the thoroughness and preparation reasonably necessary for the representation. Respondent’s misconduct also violated Colo. RPC 1.3. That rule mandates a lawyer act with reasonable diligence and promptness in representing a client, which Respondent did not do when she failed to respond to two motions on Anderson’s behalf and, later, when she failed to respond to Zywicki’s request to stipulate to his substitution as counsel of record.
Further, Respondent never withdrew from Anderson’s case nor took requisite steps to protect his interests during the transition of his case to new counsel, thereby violating Colo. RPC 1.16(a)(3) and 1.16(d). Finally, Respondent acted in contravention of Colo. RPC 8.4(d), which provides that it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice. By failing to respond to two motions, by later moving the court to set a hearing to reconsider its ruling on one of those two motions, and by failing to assist Anderson’s subsequent counsel in entering his appearance and substituting in as counsel of record, Respondent engaged in conduct prejudicial to the administration of justice.
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.5 In selecting a sanction after a finding of lawyer misconduct, the Court must consider the duty violated; the lawyer’s mental state; the actual or potential injury caused by the lawyer’s misconduct; and the existence of aggravating and mitigating evidence pursuant to ABA Standard 3.0.
ABA Standard 3.0—Duty, Mental State, and Injury
Duty: Respondent’s failure to respond to two key motions in Anderson’s case and her decision not to withdraw from the case violated her duty to her client to act with reasonable competence, diligence, and promptness. Respondent also violated her duty to her client by failing to communicate with his subsequent counsel regarding the transition of the matter. Finally, by engaging in conduct prejudicial to the administration of justice, Respondent violated duties she owed to the legal system.
Mental State: With respect to her failure to respond to two motions in Anderson’s case, Respondent testified, "I did not follow through. I have no qualms saying this. I was being paid . . . a very low amount. It seemed . . . that I was weighing a choice of evils." She said she performed a "cost/benefit analysis," concluding that because, in her mind, it was preordained the judge would grant the mother’s motion to modify child support, she decided not to "rack up tons of attorney’s fees" by responding. As regards Zywicki’s requests to coordinate substituting as counsel and to return Anderson’s file, Respondent admitted that she received Zywicki’s call but declined to return it because she deemed it "bizarre." Finally, she acknowledged that she did not move to withdraw when she was terminated, but she defended that decision because new counsel had entered the case. Based on her testimony, the Court concludes that Respondent knowingly failed to respond to two motions, knowingly failed to return her client’s file, and knowingly failed to communicate with her client’s subsequent counsel.
Injury: Respondent caused potential and actual harm to Anderson. Because Respondent failed to respond to two motions, the court modified the child support orders to her client’s significant financial detriment, raising his monthly payments from $50.00 to $709.41, which also caused him some measure of stress. Her failure to respond to the second order also resulted in the court’s reapportionment of the entire CFI cost to Anderson, which would have caused Anderson substantial financial injury had those services been required. Anderson also suffered reputational injury; he stated that the court "looked upon [me] negatively for not having responded to those" motions, and he "went into the next phase of the case . . . trying to catch up, trying to fight things that were already established."
In addition, when Respondent failed to adequately represent him, Anderson was forced to come up with funds for a retainer and fees for his new counsel, Zywicki. Zywicki spent considerable time attempting to reach Respondent to coordinate substitution of counsel, moving for permission of the court to replace Respondent as counsel, recreating the case file when Respondent failed to return it to Anderson, and duplicating work Respondent had already done.
Respondent’s misconduct also caused Zywicki harm, who "slashed" his attorney’s fees in order to facilitate Anderson’s payment of the ultimate settlement. Zywicki testified that his fees "had been driven up" due to Respondent’s failure to be actively involved in the case and specifically because he had to defend against Anderson’s contempt of court charge, which resulted from Respondent’s neglect.
ABA Standard 3.0—Aggravating & Mitigating Factors
Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed.6 Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.7 The Court considered evidence regarding the following aggravating and mitigating circumstances in deciding the appropriate sanction.
Pattern of Misconduct—9.22(c): Respondent’s knowing neglect of Anderson’s case—through her failure to respond to motions, failure to respond to Zywicki’s calls, and failure to withdraw from the case—constitutes a pattern of misconduct.
Multiple Offenses—9.22(d): By the Court’s order of default, Respondent was found to have violated five Rules of Professional Conduct.
Substantial Experience in the Practice of Law—9.22(i): Respondent had twenty years of experience in the practice of law at the time of her misconduct in this case.
Personal or Emotional Problems—9.32(c): Respondent testified that at the time of her misconduct she was still dealing with the fallout from a 2004 divorce. Specifically, she was spending significant amounts of time in Venezuela, traveling there six times a year to manage a beachfront hotel and dive shop she had purchased years before with her former husband, who had previously run the day-to-day operations but later walked away from the project. She testified that her ex-husband "left me with this business, but I had no idea how to run it and my husband refused to help me. This was my life during this time. I have since walked away from this venture and my husband has now sued me. I was trying to do everything at the time, and things fell through the cracks at that time."
While the Court does not doubt that Respondent struggled to juggle these various responsibilities—including what she portrayed as the albatross of the Venezuelan hotel—it cannot accord this factor anything more than minimal weight, since her approach to the Anderson matter appears to have been driven primarily by her own cost/benefit analysis, as opposed to her having felt overwhelmed or underwater.
Character or Reputation—9.32(g): Former Boulder County Judge Care Enichen testified to Respondent’s reputation as a "very zealous and aggressive lawyer" to whom she referred many difficult pro se parties. She said Respondent is a "very sharp, smart attorney." The People stipulated that Enichen’s testimony was evidence of Respondent’s good reputation.
Remorse—9.32(l): The Court will not consider remorse a mitigating factor in this case. Although Respondent testified that she "absolutely could have done [the case] differently," and that "this is not who I am," she failed to recognize the harm she caused others or express regret for her misconduct except to the extent that its consequences negatively affected her.
Remoteness of Prior Offense—9.32(m): Respondent was sanctioned once previously in 1997. The Court regards the existence of the prior discipline and the remoteness of that offense as offsetting one another, and therefore it considers these factors neither in mitigation nor aggravation.
Analysis Under ABA Standards and Colorado Case Law
ABA Standard 4.42 provides that suspension is generally appropriate when a lawyer causes injury or potential injury to a client by knowingly failing to perform services for a client or engaging in a pattern of neglect. Colorado Supreme Court case law applying the ABA Standards also holds that a short suspension is appropriate in cases similar to this one.
Here, the Colorado Supreme Court’s decision in People v. Masson provides particularly relevant precedent.8 In that case, Masson failed to respond to a summary judgment motion and never alerted his client to his failure to do.9 Once the motion was deemed confessed, Masson neither notified his client of a status conference on the issue of attorney’s fees nor appeared at the conference himself, and the court assessed $2,000.00 in attorney’s fees against Masson’s client.10 Masson was found to have knowingly violated several professional rules, thereby causing injury to his client.11 The Colorado Supreme Court found a thirty-day suspension appropriate, observing that "any sanction less than a suspension would unduly detract from the seriousness of the respondent’s misconduct in the eyes of the public and the legal profession."12
By the same token, the Court finds that Colorado case law does not suggest a lengthier suspension need be imposed in this matter. Respondent’s appearance at the sanctions hearing abrogates any implication that she is indifferent to or in disregard of these disciplinary proceedings. In the absence of such an inference, available authority suggests a thirty-day suspension would not be too lenient.13 Accordingly, the Court accepts the People’s recommendation and imposes a thirty-day suspension in this case.
Respondent’s calculated and knowing neglect of Anderson’s child support matter caused him significant financial injury and reputational harm, as did Respondent’s failure to cooperate with Anderson’s subsequent counsel. In light of the several aggravating factors at play, counterbalanced by the evidence of Respondent’s good reputation and, ultimately, her decision to appear and participate in the sanctions hearing, the Court concludes Respondent should be suspended for a period of thirty days.
The Court therefore ORDERS:
1. Lindasue Smollen, Attorney Registration No. 13083, is hereby SUSPENDED FOR THIRTY (30) 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 Wednesday, June 22, 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. Exhibits 2-10 were admitted under seal.
3. See the People’s complaint for further detailed findings of fact.
4. Paragraph 3 of the People’s complaint alleges, "the court ordered that respondent pay the mother $485.80/month in support." Based on the People’s exhibit 4, the Court has modified these findings to reflect the fact that Anderson, in fact, was ordered to pay this monthly amount.
5. See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).
6. See ABA Standard 9.21.
7. See ABA Standard 9.31.
8. 782 P.2d 335 (Colo. 1989)
9. Id. at 335.
10. Id. at 336.
12. Id.; accord People v. LaSalle, 848 P.2d 348, 350 (Colo. 1993) (imposing thirty-day suspension for attorney’s inaction on client matter for more than two years and misrepresentations to client that he would file certain motions, but where several mitigating factors, including absence of selfish motive, cooperation, and strong reputation for truth and veracity, were present).
13. People v. Kirk, 863 P.2d 341, 342-43 (Colo. 1993) (suspending for ninety days an attorney who neglected a client’s legal matter, failed to withdraw properly from a legal proceeding, and failed to appear or answer the disciplinary charges against him); People v. Crimaldi, 804 P.2d 863, 866 (Colo. 1991) (suspending attorney for sixty days where attorney failed to prepare two wills promptly, return his client’s file and retainer, and appear in the disciplinary hearing or otherwise answer the complaint); People v. Fahrney, 782 P.2d 743, 744 (Colo. 1989) (holding that neglecting legal matters, failing to carry out contract for professional services, failing to seek lawful objective of client, and engaging in conduct prejudicial to administration of justice, in conjunction with failing to answer grievance complaint, warranted sixty-day suspension, even though attorney had no prior disciplinary record).
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