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Vol. 41, No. 3 [Page 121]
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From the Courts
Colorado Disciplinary Cases
The Colorado Supreme Court adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge (PDJ), pursuant to C.R.C.P. 251.16. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The PDJ presides over attorney regulation proceedings and, together with a two-member Hearing Board, issues orders at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the PDJ. See C.R.C.P. 251.18(d). Disciplinary Opinions may be appealed in accordance with C.R.C.P. 251.27.
The Colorado Lawyer publishes the summaries and full-text Opinions of PDJ William R. Lucero and the Hearing Board, whose members are drawn from a pool appointed by the Supreme Court. For space purposes, exhibits, complaints, and amended complaints may not be printed. Disciplinary Opinions are printed as submitted by the Office of the?PDJ and are not edited by the staff of The Colorado Lawyer.
Case No. 108PDJ090
THE PEOPLE OF THE STATE OF COLORADO
STEVEN JAMES FOSTER
December 6, 2011
OPINION AND DECISION IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(b)
This matter is before the Hearing Board, composed of Douglas D. Piersel, James X. Quinn, both members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), on remand from the Colorado Supreme Court ("Supreme Court"). The Supreme Court asked the Hearing Board to redetermine the appropriate sanction to impose upon Steven James Foster ("Respondent") for his violation of Colo. RPC 3.1 and 8.4(d). The parties agreed a hearing was unnecessary and they asked the Hearing Board to consider the question of sanctions based on their written submissions. Accordingly, Kim E. Ikeler of the Office of Attorney Regulation Counsel ("the People") filed "Complainant’s Sanctions Hearing Brief" on August 9, 2011, and Respondent filed "Respondent’s Sanctions Hearing Brief" pro se on September 21, 2011. The Hearing Board now issues the following "Opinion and Decision on Remand Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."1 Taking into account all relevant factors, the Hearing Board determines that public censure is warranted.
Respondent married his former wife, Sherrie Nunn ("Nunn"), on March 14, 1991. Throughout their marriage, Respondent practiced law while Nunn practiced optometry. They raised two daughters, both minors at the time Nunn filed for dissolution of their marriage on March 26, 1999. Initially, both Nunn and Respondent appeared with experienced counsel in the dissolution proceedings. While represented by counsel, Respondent and Nunn reached a stipulation before permanent orders that addressed child support and other issues. On July 13, 2000, following a four-day hearing, the district court issued its permanent orders and decree of dissolution. Shortly thereafter, Respondent’s attorney withdrew from the case, and Respondent appeared pro se in the ensuing post-dissolution proceedings. After six years of litigating post-dissolution issues in the district and appellate courts, Respondent filed a sixth appeal. In that appeal, Respondent reasserted two claims from earlier appeals of the dissolution proceedings in which he contended that (1) the district court improperly valued Nunn’s marital assets; and (2) the district court judge should have been disqualified for bias.
On September 16, 2008, the People filed a complaint against Respondent, alleging that he violated Colo. RPC 3.1 and 8.4(d) by filing his sixth appeal and that his conduct over the course of nine years violated Colo. RPC 8.4(d). Respondent filed an answer on October 20, 2008. He then filed a motion for summary judgment on November 28, 2008, which the PDJ denied.2
On May 5, 2009, the Hearing Board commenced a three-day C.R.C.P. 251.18 hearing. Kim E. Ikeler appeared on behalf of the People, and Gary S. Cohen appeared on behalf of Respondent, who also appeared.
On March 25, 2010, the Hearing Board issued a "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)." The Hearing Board concluded that Respondent violated Colo. RPC 3.1 and 8.4(d) by raising the valuation and bias issues in his sixth appeal. The Hearing Board also found that Respondent’s aggregate conduct over the course of the litigation had a cumulative prejudicial effect on the administration of justice in violation of Colo. RPC 8.4(d). The Hearing Board rejected Respondent’s First Amendment defense and suspended Respondent from the practice of law for a year and a day, all but ninety days stayed upon the successful completion of a two-year period of probation, and ordered Respondent to pay the costs of the disciplinary proceedings. Respondent appealed to the Supreme Court the Hearing Board’s imposition of sanctions and the PDJ’s denial of his motion for summary judgment.
On May 23, 2011, the Supreme Court issued an opinion reversing the Hearing Board’s determinations that Respondent’s aggregate conduct violated Colo. RPC 8.4(d)3 and that Respondent’s reassertion of the valuation issue in his sixth appeal violated Colo. RPC 3.1 and 8.4(d).4
The Supreme Court, however, affirmed the Hearing Board’s original findings of facts and rule violations regarding Respondent’s reassertion of the bias issue in his sixth appeal. Specifically, the Supreme Court wrote:
Based on the record, it appears that [Respondent] asserted in his fifth appeal that the district court judge presiding over his case was biased against [Respondent] and erred by failing to disqualify himself sua sponte. The court of appeals held that [Respondent] had waived the bias claims by, among other things, failing to file a C.R.C.P. 97 recusal motion. The court also broadly rejected the substance of [Respondent’s] bias claims, concluding notwithstanding the waiver that there was no evidence of bias.
[Respondent] then filed a C.R.C.P. 97 motion, which the district court denied, and then filed his sixth appeal, in which he again contended that the district court judge failed to disqualify himself sua sponte for many of the same reasons asserted and rejected in [Respondent’s] fifth appeal. Unlike the valuation issue, this was not a situation where new circumstances or new evidence could possibly have led to a different result; [Respondent] simply asserted the same arguments to the same court for a second time.
Given the court of appeals’ ruling in the fifth appeal that the arguments were not only meritless, but also frivolous and vexatious, we find [Respondent’s] proffered motivation for reasserting them dubious. Given the overall sophistication of [Respondent’s] arguments throughout the litigation below, [Respondent’s] suggestion that he honestly believed he could obtain favorable legal relief by flatly reasserting arguments already deemed frivolous, and for which he had already been ordered to pay Nunn’s attorney fees, is implausible. Rather, as [Respondent] himself admitted at the disciplinary hearing, he believed prior to filing the appeal that the court of appeals was "tired of hearing from [him]" and "[was] not going to rule in [his] favor no matter what the law."5
The Supreme Court found both that Respondent "reasserted [the bias issue] on appeal without any subjectively proper motivation of obtaining favorable relief" and that Respondent’s "reassertion of precisely the same issue without any reason to expect a different result is the very definition of an objectively baseless claim."6 "Because [his] reassertion of the bias issue in his sixth appeal was both objectively baseless and subjectively motivated by an improper purpose as a matter of law," the Supreme Court concluded Respondent’s reassertion "was not protected by his First Amendment right to petition regardless of his status as an attorney."7 Accordingly, the Supreme Court affirmed "the Board’s conclusion that [Respondent] violated Colo. RPC 3.1 and 8.4(d) by asserting a frivolous claim of bias in his sixth appeal, which constituted conduct prejudicial to the administration of justice."8
The Hearing Board did not apportion sanctions among Respondent’s aggregate conduct, his reassertion of the valuation issue in his sixth appeal, and his reassertion of the bias claim in his sixth appeal. Therefore, the Supreme Court remanded this matter to the Hearing Board for a redetermination of the appropriate sanction for Respondent’s violation of Colo. RPC 3.1 and 8.4(d) by reasserting that the trial court was biased in his sixth appeal.9 This is the only issue before us on remand.
The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and 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: The Hearing Board finds Respondent violated his duties to the legal system as an officer of the court. Respondent reasserted the bias issue in his sixth appeal without any subjectively or objectively proper motivation of obtaining favorable relief. His misconduct was contrary to his duties to abide by the rules of substance and procedure that shape the administration of justice.
Mental State: The Hearing Board finds that Respondent filed his sixth appeal with intent; that is, his conscious objective was to file an appeal seeking disqualification, even though he had no subjectively proper motivation of obtaining favorable relief.10 The Hearing Board further finds that Respondent reasserted the bias issue in this appeal with the primary purpose of harassing and vexing Nunn.11
Injury: Respondent caused the court of appeals and Nunn to expend unnecessary time and resources by advancing the frivolous bias claim in his sixth appeal.
ABA Standard 9.0—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 severity of the sanction. The Hearing Board considers evidence of the following aggravating and mitigating circumstances in determining the appropriate sanction.12
Refusal to Acknowledge Wrongful Nature of Conduct—9.22(g): Respondent still maintains the district court judge ruled against him because of bias and a bent of mind that precluded him from obtaining a fair hearing. He also contends the district court and appellate courts were wrong on each of the issues he appealed.13
Substantial Experience in the Practice of Law—9.22(i): We consider in aggravation that Respondent has been licensed for over twenty years in Colorado. We note, however, that Respondent’s background and experience is in estate planning and tax law, not domestic relations law.
Absence of a Prior Disciplinary Record—9.32(b): Respondent has no prior disciplinary record, and the Hearing Board gives substantial mitigating weight to this factor in arriving at an appropriate sanction.
Personal or Emotional Problems—9.32(c): Respondent was hospitalized for six weeks for an acute depression in the early stages of the dissolution proceedings. Respondent was emotionally distraught and had great difficulty with concentrating at that time. As a result, he took prescription medications and attended group therapy to deal with issues related to the dissolution, including his continued relationship with his daughters. We note that Respondent filed his sixth appeal many years after his hospitalization, but we nevertheless find that these circumstances should be accorded minimal weight in mitigation.
Cooperative Attitude Toward Proceedings—9.32(e): Respondent demonstrated a cooperative attitude in these proceedings toward both the People and the Hearing Board. We regard this as a factor mitigating Respondent’s misconduct.
Imposition of Other Penalties or Sanctions—9.32(k): The court of appeals determined Respondent’s sixth appeal was vexatious and remanded it for attorney’s fees and costs. This monetary sanction mitigates the sanction we impose.
Sanctions Analysis Under
ABA Standards and Case Law
ABA Standard 6.22, which governs violations of Colo. RPC 3.1 and 8.4(d), 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.14 In contrast, ABA Standard 6.23 provides that public censure "is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding."
In several cases involving the filing of frivolous motions, the Supreme Court has imposed a public censure or modest suspension on the offending attorney. In People v. Fitzgibbons, the Supreme Court publicly censured an attorney who filed a frivolous lawsuit on his and his wife’s behalf in a mortgage-related dispute.15 Likewise, in People v. Thomas, the Supreme Court publicly censured an attorney who filed a motion for summary judgment deemed by one judge to be frivolous, and who then re-filed essentially the same motion with a second judge.16
In comparison, the Supreme Court found in People v. Barnthouse that suspension for one year and one day was an appropriate sanction for a lawyer who, while representing himself in his own dissolution matter, filed a false financial affidavit with the court, willfully disobeyed court orders requiring the transfer of his property, accused his wife’s lawyer and guardian ad litem of perjury in pleadings, and filed duplicative motions in an effort to remove the guardian ad litem solely for the purpose of harassing his wife and her counsel.17 While Barnthouse is instructive, we find that Respondent’s conduct here is not as egregious, since Respondent did not commit dishonest acts, as did the lawyer in Barnthouse.
Although a suspension is the presumptive sanction in this matter under the ABA Standards, we are mindful of the Supreme Court’s directive that we must carefully apply the aggravating and mitigating factors in each case.18 Here, Respondent’s unblemished record over his twenty years of practice is a mitigating factor of significant weight. We are equally impressed with Respondent’s cooperative attitude throughout the disciplinary proceedings. Accordingly, we find that a public censure is the appropriate sanction for Respondent’s improper reassertion of the bias issue in his sixth appeal.
Respondent’s deliberate and frivolous relitigation in a sixth appeal of his earlier-appealed claim of judicial bias in post-dissolution proceedings violated the Rules of Professional Conduct. In light of the several mitigating factors at work here, the Hearing Board finds it appropriate to publicly censure Respondent.
The Hearing Board therefore ORDERS:
1. Steven James Foster, Attorney Registration Number 20400, is PUBLICLY CENSURED. The public censure SHALL take effect only upon issuance of an "Order and Notice of Public Censure."19
2. Respondent SHALL file any post-hearing motions or application for stay pending appeal with the PDJ on or before Tuesday, December 27, 2011. No extensions of time will be granted. If Respondent files a post-hearing motion or an application for stay pending appeal, the People SHALL file any response thereto within five days, unless otherwise ordered by the PDJ.
3. Respondent SHALL pay the costs of these proceedings. The People SHALL submit a "Statement of Costs" within fifteen days from the date of this order. Respondent’s response to the People’s statement, if any, must be filed no later than ten days thereafter.
1. Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 9, 1991, under attorney registration number 20400. He is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings. See C.R.C.P. 251.1(b).
2. Respondent relied on In re Green, 11 P.3d 1078 (Colo. 2000) and Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984) ("POME") in this motion for summary judgment in support of the position that his conduct was constitutionally protected. Although the PDJ denied the motion, he allowed Respondent to present this argument to the Hearing Board for its consideration.
3. In re Foster, 253 P.3d 1244, 1256 (Colo. 2011). The Supreme Court held that Respondent’s aggregate conduct was protected by his First Amendment right to petition. Id. The Supreme Court further held that, in response to Respondent’s motion for summary judgment, the People should have been required to make a prima facie showing under POME that Respondent’s aggregate conduct was not protected by the First Amendment. Id.
4. Id. at 1257-58. The Supreme Court found that Respondent’s reassertion of the valuation issue in his sixth appeal was protected by his First Amendment right to petition because it was "not so obviously duplicative" of previous arguments or "so lacking in merit that [Respondent’s] proffered motivation for asserting [the valuation argument]—namely, to win a favorable ruling on a critical issue in his case—was so wholly unbelievable or incredible that it could not have been true as a matter of law." Id. at 1257. The Supreme Court further held that the People again should have been required to make a prima facie showing under POME in response to Respondent’s First Amendment defense. Id.
5. Id. at 1258.
8. Id. at 1259.
9. Id. at 1259-60. The Supreme Court rejected Respondent’s contention that he could only be disciplined for his entire sixth appeal or not at all. Id. at 1259.
10. See id. at 1258.
11. See id. (finding Respondent’s motivation for once again raising the bias issue in his sixth appeal subjectively improper as a matter of law); see also POME, 677 P.3d at 1367 (noting the sham exception, in addition to requiring a showing of baseless litigation, "requires a claimant suing another for prior petitioning activity to show that the petitioning activity was conducted primarily for harassment or other improper activity").
12. The Hearing Board considered a number of aggravating and mitigating factors in determining the appropriate sanction in its decision and order dated March 25, 2010. However, some of those factors were premised upon the Hearing Board’s finding that the cumulative effect of Respondent’s aggregate conduct over the course of eight years of litigation was prejudicial to the administration of justice—a claim that was dismissed by the Supreme Court. Thus, the Hearing Board considers only those factors relevant to the imposition of a sanction for Respondent’s single violation of Colo. RPC 3.1 and 8.4(d).
13. The Hearing Board notes that, in his sanctions hearing brief, Respondent also maintains that the Supreme Court incorrectly ruled upon his appeal.
14. The preface to ABA Standard 6.0 makes clear that this standard is relevant to cases involving failure to bring a meritorious claim.
15. 909 P.2d 1098, 1102-05 (Colo. 1996).
16. 925 P.2d 1081, 1083 (Colo. 1996); see also People v. Smith, 937 P.2d 724, 725 (Colo. 1997) (suspending attorney for a nine-month period for filing a frivolous petition and appeal in reciprocal discipline proceeding originating in the Tenth Circuit); People v. Hartman, 744 P.2d 482, 483 (Colo. 1987) (suspending attorney for six months for filing frivolous pleadings and failing to report his suspension to disciplinary authorities in reciprocal discipline proceeding originating in the United States Tax Court).
17. 775 P.2d 545, 547-50 (Colo. 1989).
18. In re Fischer, 89 P.3d 817, 822 (Colo. 2004) (finding that a hearing board had overemphasized a presumption of disbarment and undervalued the importance of mitigating factors in determining the needs of the public).
19. In general, an order and notice of sanction will issue thirty-one days after a decision is entered pursuant to C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later than thirty-one days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.
Case No. 10PDJ109
THE PEOPLE OF THE STATE OF COLORADO
JOHN A. McNAMARA
July 15, 2011
DECISION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(b)
On April 25 to 27, 2011, a Hearing Board composed of David A. Helmer and Mickey W. Smith, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a three-day hearing pursuant to C.R.C.P. 251.18. April M. McMurrey appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and John A. McNamara ("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)."
Respondent, a single parent and sole practitioner who conducts his law practice from his apartment while caring for his minor son, admits that he was overwhelmed with his legal and personal responsibilities and thus neglected his child support obligations and the duties he owed to his clients. Although we find that these extenuating circumstances had some bearing on his misconduct, we nevertheless find Respondent violated the following rules: Colo. RPC 3.4(c), by knowingly failing to pay his court-ordered child support, Colo. RPC 1.15(a), by spending his client’s retainer before earning it, and Colo. RPC 1.15(j), in one matter, by failing to maintain the necessary accounting records.
The Hearing Board, however, does not find clear and convincing evidence that Respondent provided incompetent legal representation in violation of Colo. RPC 1.1 or that he filed a frivolous lawsuit in violation of Colo. RPC 3.1. Further, while Respondent unwisely failed to determine if a check he had written to the Colorado Supreme Court had cleared prior to the closure of his bank account, the Hearing Board cannot find, under the facts presented at the hearing, that Respondent acted dishonestly in violation of Colo. RPC 8.4(c). Nor does the Hearing Board find that Respondent violated Colo. RPC 1.3 by failing to attend a pretrial conference.
While none of the proven violations, taken individually, would warrant serious discipline, Respondent’s failure to abide by the PDJ’s orders and his recalcitrance during the pre-trial discovery proceedings militates in favor of giving great weight to ABA Standard 9.22(e) (bad faith obstruction of the disciplinary process). This significant factor in aggravation leads us to conclude that a suspension for one year and one day, all but three months stayed, is the appropriate sanction. In addition, Respondent must seek reinstatement pursuant to C.R.C.P. 251.29(c). Upon reinstatement to the bar, Respondent must successfully complete a one-year period of probation with conditions.
II. PROCEDURAL HISTORY
On October 5, 2010, the People filed a complaint asserting nine claims, alleging that Respondent violated Colo. RPC 1.1, 1.3, 3.1, 3.4(c), 1.15(a), 1.15(c), 1.15(j) twice, and 8.4(c) by failing to pay court-ordered child support, writing a check to the Colorado Supreme Court on a closed account, and engaging in misconduct in four separate client matters.1 Respondent filed an answer on November 12, 2010. On March 28, 2011, the People filed a motion for sanctions based on Respondent’s failure to comply with the PDJ’s March 21, 2011, order compelling Respondent to attend his deposition.2 During the hearing on April 25-27, 2011, the Hearing Board heard testimony and considered the People’s exhibits 2-8, 13-18B, 20-24, 27, and 30, and Respondent’s exhibits A-B, D-G, L-O, Q, S, U-Z, and A1-A6.3
III. FINDINGS OF FACT AND RULE VIOLATIONS
The Hearing Board finds the following facts and rule violations have been established by clear and convincing evidence. Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 16, 1990. He is registered upon the official records, attorney registration number 19382, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.4 Respondent’s business/home address is 3419 South Uravan Way, Apt. 7-301, Aurora, CO 80013.
Child Support Matter
Respondent and his ex-wife have a minor son. Following the dissolution of Respondent’s marriage in 2007, the Arapahoe County Court entered temporary orders in November 2007, requiring Respondent to pay $190.67 for monthly child support to the Family Support Registry.5 The court then entered permanent orders in September 2008 and specifically ordered Respondent to make a monthly payment of child support in the amount of $194.29.6 The court also found that Respondent was $623.97 in arrears for child support.
It is undisputed that Respondent made no child support payments for the period of October 2008 to May 2009.7 After May 2009, Respondent made the following payments: (1) $1,100.00 in June 2009; (2) $362.60 in August 2009; (3) $366.00 in November 2009; and (4) $90.00 in December 2009.8
The Family Support Registry’s documentation shows that Respondent made only three payments in 2010 totaling $905.00, leaving him $1,270.48 in arrears.9 Indeed, Respondent made no child support payments in January 2010, April 2010, and from June 2010 until January 2011.10 In February 2011, Respondent made a payment of $4,654.61, bringing his balance current and eliminating any arrearages.11
The People assert that in failing to comply with the court’s permanent child support orders, Respondent violated Colo. RPC 3.4(c), which provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal. Respondent knew he was obligated to pay child support but argues that he had a good faith basis for not complying with the court’s order, namely that his monthly expenses exceeded his income and that he filed for bankruptcy in the fall of 2008. Respondent testified that his monthly income is $3,500.00 to $4,500.00 and his monthly expenses are $3,400.00, not including his child support obligation. Although Respondent filed a motion to modify the due date of his child support obligation, he never filed a motion to modify the amount of child support based on his financial situation.12 Respondent also contests the validity of the court’s child support order,13 contending that he did not make payments from October 2008 to May 2009 because he had appealed the order and believed it was stayed pending appeal.
The Hearing Board finds clear and convincing evidence that Respondent was aware of his child support obligations and knowingly disregarded these obligations by failing to make any child support payments from October 2008 to May 2009, and in July 2009, September 2009, October 2009, January 2010, and April 2010.14 Although Respondent states that he was financially unable to make the payments, his financial affidavit demonstrates otherwise.15 In addition, Respondent’s argument that he believed the child support order to be stayed from October 2008 to May 2009 pending appeal is without merit, as he did not appeal the order until October 2009.16 Accordingly, Respondent violated Colo. RPC 3.4(c);17 however, we note that as of February 2011 Respondent was current on his court-ordered child support payments.
The Cole Matter
In 2007, Mitchell Cole ("Cole") hired Respondent to represent him in post-dissolution matters involving his ex-wife ("Ms. Cole") and minor daughter.18 Cole’s dissolution proceedings were initially conducted in California. In May 2000, at the conclusion of those proceedings, the California court entered an order ("May 2000 Order") stating that at all times not designated with Cole, their minor daughter should be with Ms. Cole and that the parties should inform each other of their current addresses.19 In 2000, Ms. Cole and their daughter moved to Colorado, with Cole’s consent, and the Colorado courts took jurisdiction over post-dissolution matters.
In 2006, after contentious and extended litigation resulting in a contempt hearing, the parties entered into a stipulation requiring Ms. Cole to provide Cole with their daughter’s school year calendar within ten days of receipt and to bear equally the costs of their daughter’s air travel.20 The stipulation further provided that if either party filed a motion for contempt, the prevailing party would be entitled to $1,000.00 in liquidated damages, reasonable attorney’s fees, and costs.21
In September 2008, Cole learned for the first time that Ms. Cole had enrolled their daughter in a Virginia boarding school the prior month. Cole believed his former wife was in violation of the May 2000 Order provision stating that their daughter should be with one or the other parent at all times. Respondent discussed these matters with Cole, who directed Respondent to file a punitive contempt citation on his behalf.22 Respondent did so in December 2008. In the citation, Respondent asserted that Ms. Cole’s behavior violated the May 2000 Order, increased the distance between Cole and his child, increased the travel expenses for visitation, and made it difficult for Cole to communicate with his daughter, who was subject to telephone call restrictions at the school.23 Respondent argued that a temporary injunction pursuant to C.R.S. § 14-10-107 was in effect, which prohibited either party from removing their daughter from Colorado without consent of the other party or written court order.
At an advisement hearing on January 20, 2009, the court informed Respondent that the temporary injunction was no longer in effect, as it had not been made permanent.24 Respondent stated that he was not relying entirely on section 14-10-107 as grounds for the contempt citation.25 In spite of the court’s expressed concerns about the contempt citation, Respondent persisted and the matter was set for a citation hearing on March 17, 2009.26
During the citation hearing, Respondent reiterated the arguments made in his contempt citation, save for the section 14-10-107 argument.27 At the conclusion of the hearing, the court determined that no order entered in the case prohibited Ms. Cole from sending her daughter to boarding school outside of Colorado, Cole could have filed a motion to prohibit his daughter’s removal rather than a contempt citation, Ms. Cole did provide Cole with the calendar by email in September 2008, and the child’s attendance at boarding school had not affected Cole’s visitation.28 Although the court stated that it believed the reasons that Cole gave for filing this motion, it ultimately concluded that Respondent’s contempt citation was "not proven . . . not founded . . . spurious . . . [and] vexatious."29 The court further ordered Cole to pay $9,369.50 in attorney’s fees and $1,000.00 in liquidated damages.30
Respondent appealed this order, contending that the trial court erred in determining Respondent did not meet his burden for the contempt claim and in awarding attorney’s fees against him individually.31 The appeal is still pending.
The People assert that when Respondent filed the contempt citation based upon his interpretation of the May 2000 Order, he violated Colo. RPC 3.1, which states that "a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."32 The People argue that even though the appeal is pending and the trial court’s order may be reversed, Respondent can still be disciplined for violating Colo. RPC 3.1. The Hearing Board agrees.
However, the evidence presented does not clearly and convincingly demonstrate Respondent brought a frivolous proceeding in violation of Colo. RPC 3.1. Rather, we find that the balance of the evidence indicates that Respondent had a proper basis for filing the punitive contempt citation because he had a good faith belief that: (1) a lawful court order existed; (2) Ms. Cole was aware of that order; (3) Ms. Cole was able to comply with the order; and (4) Ms. Cole arguably willfully refused to comply with the order.33
Respondent testified that he consulted with Cole prior to filing the contempt citation, that Cole was angry and concerned that Ms. Cole was allegedly intentionally hiding information from him regarding his daughter’s schooling and whereabouts, and that Cole wanted to file the citation. Both of the parties were aware of the May 2000 Order and presumably had been complying with the order until August 2008. Respondent and his client interpreted Ms. Cole’s actions to be a willful refusal to comply with the order. Under these circumstances, we do not conclude that Respondent acted in bad faith. Further, the May 2000 Order is susceptible to different interpretations and we cannot find that Respondent lacked a rational argument supporting the merits of the citation in violation of Colo. RPC 3.1.34
The People next assert Respondent violated Colo. RPC 1.1, which provides that a "lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The People claim that Respondent’s initial reliance on C.R.S. § 14-10-107 and his failure to file a motion to prohibit Ms. Cole from sending her daughter to Virginia were incompetent.35 With respect to Respondent’s decision to file the contempt citation and his initial reliance on C.R.S. § 14-10-107, we have already found that Respondent did not file a frivolous pleading. For the same reasons, the Hearing Board cannot conclude that Respondent incompetently represented Cole in violation of Colo. RPC 1.1.36
The Jones Matter
Respondent maintains a COLTAF account with JP Morgan Chase & Company ("Chase"). On February 10, 2010, Respondent’s client ("Jones")37 paid Respondent $500.00 by check pursuant to a flat fee agreement. That same day, Respondent deposited and withdrew $500.00 from his COLTAF account. On February 18, 2010, Chase returned the $500.00 check because Jones had insufficient funds to cover it, causing two of Respondent’s checks to bounce.38
After Chase notified them of the overdraft, the People asked Respondent, pursuant to Colo. RPC 1.15(j), for a written response, copies of the returned checks, his last three monthly COLTAF statements, copies of his record keeping system that coincided with his COLTAF statements, and his trust reconciliation documentation.39 In response, Respondent explained that Jones paid him $500.00, representing the first of four installments under a flat fee agreement, and that he had spent the funds a week earlier, thereby causing the overdraft in his account when Jones’s check was returned.40 Respondent attached a copy of his February 2010 COLTAF statement but did not provide the People with the other requested documents.41
During the course of these proceedings, the People again demanded that Respondent disclose his accounting documents, fee agreement, and client’s identity. Respondent again refused to comply. He also refused to answer any questions during his depositions, asserting his Fifth Amendment privilege against self-incrimination because he feared that the People would improperly expand their investigation and possibly add claims to the complaint. Respondent also testified that he did not trust the People and did not want them to "pump Jones for bad information." The People contend that Respondent asserted his Fifth Amendment rights during the discovery process in bad faith, since he freely testified to the Jones matter at trial.42
Respondent testified that his fee agreement with Jones stated he was entitled to the $500.00 upon his entry of appearance and that this type of agreement is standard among attorneys.43 Respondent also testified that he had earned the fee on the day he deposited the $500.00 because he had already interviewed the client, prepared an entry of appearance in this matter, paid the filing fee, and completed legal research. Respondent stated that he billed Jones for the $500.00.
The People assert that Respondent’s conduct violated Colo. RPC 1.15(a), which requires a lawyer to "hold property of clients that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property."44 The People reason that when Respondent exercised unauthorized dominion or ownership over the $500.00 before earning it, he negligently converted the funds. The People also ask the Hearing Board to draw from Respondent’s silence and refusal to produce the documents the adverse inference that Respondent did not have consent or authority to spend Jones’s fee at the time he deposited the $500.00 into his Chase account.
When confronted with the tension between a party’s invocation of the Fifth Amendment privilege and an opposing party’s need for discovery, a court must determine: (1) whether the opposing party has a substantial need for the information withheld; (2) whether that party has an alternative means of obtaining the information; and (3) whether any effective, alternative remedy, short of dismissal, is available.45 A court "must ensure that ‘the detriment to the party asserting [the privilege is] no more than is necessary to prevent unfair and unnecessary prejudice to the other side.’"46 The appropriate remedy depends on the facts and circumstances of each case.47 In some cases, it is appropriate for the fact finder to draw an adverse inference from the party’s silence, substantially leveling the playing field for the opposing party.48
The Hearing Board finds that the People had a substantial need for the information that Respondent withheld, as their claim turned on whether Respondent had the authority to spend the fee at the time he made the deposit, and without the client’s identity or the fee agreement the People could not make this determination. Additionally, the People’s investigator testified that she took numerous measures to determine the identity of Respondent’s client but was unable to do so without Respondent’s cooperation. The People had no alternative means of obtaining the identity of the client or a copy of the fee agreement without Respondent’s cooperation.
Based upon the evidence presented, the Hearing Board finds that Respondent performed enough work to earn $500.00, but by failing to produce the fee agreement, Respondent failed to adequately demonstrate that he had authority to spend the fee the day he deposited it. In light of the prejudice to the People resulting from Respondent’s refusal to disclose information, the Hearing Board determines that an adverse inference is appropriate under the circumstances and infers that Respondent did not have Jones’s consent to use any of the funds removed from Respondent’s COLTAF account. Accordingly, the Hearing Board finds Respondent negligently converted Jones’s funds in violation of Colo. RPC 1.15(a).
The Hearing Board also heard testimony from Respondent that he is not in compliance with Colo. RPC 1.15(j), which places specific requirements upon solo practitioners for safekeeping property of clients and third parties.49 Specifically, Respondent testified that he keeps track of client funds held in trust on sheets of yellow notebook paper—one for each client. Respondent places the notebook paper and photocopies of bills in each client’s file. Respondent also stated that he does not have a system in place that affords him a complete view of the money he is holding in his accounts, as he does not have the funds to purchase computer hardware or software. Respondent admitted that for the last six months he has not reconciled his bank statements. Respondent further admitted that he has not asked for help in setting up an accounting system at his office, nor has he attended any CLEs or bar association events on this topic. As such, we find that Respondent has violated the requirements of Colo. RPC 1.15(j) by failing to abide by the proper accounting and record keeping requirements designed to protect his clients’ financial and legal interests.
Check to Colorado Supreme Court
On February 2, 2010, Respondent presented a check, drawn on Respondent’s personal First Bank account, to the Colorado Supreme Court ("Supreme Court") for $225.00 for a filing fee in a case. The Supreme Court did not deposit this check until February 18, 2010. On June 2, 2010, Respondent’s check was returned to the Supreme Court. The Supreme Court never notified Respondent that his check did not clear.
On April 21, 2010, Respondent presented a $50.00 check to the Supreme Court for library fees, drawn on Respondent’s personal Academy Bank account. This check was returned to the Supreme Court for insufficient funds.50 Again, the Supreme Court did not alert Respondent that his check failed to clear but instead notified the People that Respondent had presented two insufficient funds checks.51 On March 21, 2011, after the complaint was filed in this case, Respondent paid the Supreme Court with three money orders to cover these checks, any insufficient fund fees, and his library bill balance.52
Respondent refused to give the People documents or answer questions about either of these checks at his depositions, again asserting his Fifth Amendment right against self-incrimination. However, Respondent offered evidence at trial as to this matter. Respondent testified that his First Bank account was open and contained sufficient funds to cover the $225.00 check at the time it was written. At the hearing, he presented two letters from First Bank showing this account was open on February 2, 2010, when he wrote the check. His account was closed on February 18, 2010, "due to the manner in which [the account had] been handled."53 Respondent testified the account was closed due to overdrafts.
On February 23, 2010, First Bank sent a letter to Respondent notifying him that when his account was closed a positive balance was left to cover outstanding checks and giving him a refund of $109.53.54 Because he received a refund, Respondent assumed all the checks he had written on the account had cleared. Respondent admitted that once he learned that his account had been closed, he should have, but did not, go back to his First Bank account statements to verify that all the checks he had written prior to closing had cleared.
The People argue that Respondent violated Colo. RPC 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The People’s claim is premised on the allegation that Respondent wrote a check to the Supreme Court on a closed account. While Respondent refused to provide bank statements to the People yet later offered correspondence from the bank in these proceedings,55 the People admit they could have obtained the statements directly from the bank revealing that the account was, in fact, not closed when the check was written.56 The People concede that they were unable to prove by clear and convincing evidence that Respondent knowingly presenting a check to the Supreme Court on a closed account. However, at the hearing the People asked the PDJ to conform the complaint to the evidence pursuant to C.R.C.P. 15(b) and find that Respondent was reckless in not ensuring the check had cleared prior to the account’s closing.57 The People claim that such an amendment is proper, as Respondent was on notice throughout this proceeding that he was being charged with an Colo. RPC 8.4(c) violation for the check written to the Supreme Court and thus would not be prejudiced by this amendment.
C.R.C.P. 15(b) permits amendment of the pleadings when "issues not raised by the pleadings are tried by express or implied consent of the parties . . . ." An amendment may be made upon a motion by any party at any time during the proceedings, even after judgment.58 Such an issue, however, must be intentionally and actually tried; it is not enough that a party present some evidence germane to the issue sought to be raised.59 Here, the issue of whether Respondent was reckless in failing to monitor his closed account was not intentionally and actually tried throughout the disciplinary hearing. The People did not elicit testimony from Respondent on direct examination indicating he should have looked at his First Bank account statement to determine whether all his checks had cleared. In fact, it was not until the People’s cross-examination of Respondent on the last day of the hearing that the issue of Respondent’s reckless monitoring of his bank account arose. Thus, the PDJ cannot say the issue was intentionally and actually tried, so an amendment is not appropriate here.
Accordingly, the Hearing Board finds the People have failed to demonstrate by clear and convincing evidence that Respondent knowingly wrote a check to the Supreme Court on a closed account in violation of Colo. RPC 8.4(c).
In 2008, Respondent represented a juvenile in a criminal matter for a $2,500.00 flat fee. Respondent testified that the flat fee agreement entitled him to receive $1,250.00 on his first entry of appearance and $1,250.00 at the conclusion of the case. The juvenile’s family paid the entire flat fee with a credit card. Respondent deposited the fee into his COLTAF account. After entering his appearance, Respondent withdrew $1,250.00 and sent the family a bill for this amount.60
A pretrial conference was set in the matter for April 23, 2008. Respondent failed to appear on time for this hearing. The juvenile’s family called Respondent from the court to notify him about the hearing. Respondent immediately went to the court and was able to reschedule the hearing. Respondent admitted that he failed to properly calendar this hearing and as a result failed to timely appear. The People did not present any evidence that Respondent engaged in additional conduct that compounded this error.
In June 2008, the juvenile’s family terminated Respondent’s services and asked for a full refund of the flat fee. Respondent agreed to refund the remaining unearned $1,250.00 balance and sent the family a check. Rather than cashing the check, the family contacted the credit card company, which refunded $2,500.00 to them. After Respondent sent the credit card company a copy of his bill, the company returned the $2,500.00 to Respondent. Respondent gave the family another check for $1,250.00 but they did not cash this check until September 2008.61
Although Respondent did give the People his accounting records from January 2008 to June 2008, he did not provide additional COLTAF accounting records requested by the People.62 Respondent claims that he withheld these documents because the People’s complaint was vague and he was unable to determine from its allegations to which of his clients and to which timeframe the People were referring.63
The People maintain that Respondent failed to act with reasonable diligence and promptness in representing his juvenile client in violation of Colo. RPC 1.3 when he failed to appear at the pretrial conference. The Hearing Board does not find Respondent failed to act with reasonable diligence in representing the juvenile based upon an isolated failure to timely attend one court hearing.64 Although Respondent was surely negligent in failing to properly calendar this pretrial hearing—an oversight we do not condone—he immediately went to the court that same day and requested, and was able, to continue the pretrial hearing. Therefore, we do not find that Respondent violated Colo. RPC 1.3.
In closing argument, the People conceded that they were unable to meet their burden on their Colo. RPC 1.15(j) claim, which alleged that Respondent did not maintain the required trust account records in this client matter. Indeed, the People admitted they were unable to offer any evidence demonstrating Respondent’s lack of compliance with this rule during his representation of this client. Based upon the People’s concession, the Hearing Board finds no violation of Colo. RPC 1.15(j).
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: By violating Colo. RPC 3.4(c), 1.15(a), and 1.15(j), Respondent breached his duties to his clients and to the legal system by negligently converting Jones’s funds, failing to pay court-ordered child support, and failing to maintain proper accounting records.
Mental State: According to the ABA Standards, "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."65 Here, Respondent acted with conscious awareness when he failed to pay court-ordered child support. Respondent negligently converted Jones’s retainer when he deposited and withdrew the retainer on the same day when he had no authority to spend the funds. Respondent was negligent with respect to his failure to maintain required accounting records during his representation of Jones.
Injury: Respondent caused actual injury to his minor child by failing to pay court-ordered support to which his child was entitled. Respondent caused potential harm to Jones by spending his retainer before he had earned the funds. In addition, Respondent caused potential injury to all of his clients by failing to maintain appropriate accounting records demonstrating that his clients’ funds were kept separately and were appropriately safeguarded.
ABA Standard 3.0—Aggravating and Mitigating Factors
Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. 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 aggravating and mitigating circumstances in deciding the appropriate sanction.
Pattern of Misconduct—9.22(c): Respondent engaged in a pattern of misconduct by failing to pay court-ordered child support. Respondent failed to make any child support payments from October 2008 to May 2009, in July 2009, September 2009, October 2009, January 2010, April 2010, and again from June 2010 to January 2011. However, the Hearing Board does not find that Respondent’s tendering of two insufficient fund checks to the Supreme Court represents a pattern of misconduct.
Multiple Offenses—9.22(d): Respondent was found to have violated three Rules of Professional Conduct in this matter (Colo. RPC 3.4(c), 1.15(a), and 1.15(j)).
Bad Faith Obstruction of the Disciplinary Proceeding—9.22(e): Throughout the disciplinary process, Respondent engaged in behavior that obstructed the proceedings. Respondent refused to cooperate with the People by failing to give them requested documents in the course of their investigation, including his personal bank and COLTAF account records and fee agreements. He also refused to disclose the identity of his client in the Jones matter.
Likewise, Respondent refused to attend his first scheduled deposition on January 25, 2011, after agreeing to do so.66 The deposition was reset for March 16, 2011, and again he failed to attend.67 On March 21, 2011, the PDJ issued an order compelling Respondent to attend his deposition set for March 25, 2011. Respondent attended this deposition but refused to produce any subpoenaed documents and refused to answer any of the People’s questions due to the presence of an investigator from the People’s office and a Colorado state patrol officer.68 Respondent was again ordered by the PDJ to attend his fourth scheduled deposition on April 11, 2011. At this deposition, Respondent refused to produce subpoenaed documents and answer questions on certain matters, asserting his Fifth Amendment right against self-incrimination. However, at the hearing, Respondent freely waived this privilege and offered testimony on the matters for which he had asserted the privilege. The Hearing Board finds Respondent’s assertion and subsequent revocation of his Fifth Amendment right an abuse of the privilege and nothing more than an effort to thwart discovery.
Finally, Respondent did not heed court-ordered deadlines pertaining to written discovery, exhibits, stipulations, and pretrial briefs.69 Respondent did not file his exhibits prior to trial. In fact, Respondent first brought his exhibits on the second day of the hearing, and, rather than striking the exhibits for late disclosure, the PDJ admitted the majority of Respondent’s exhibits into evidence after taking all the circumstances into account, including the interests of justice, proportionality, culpability, and Respondent’s right to his day in court.70 The PDJ notes that Respondent did not bring the proper number of exhibit copies, which forced the PDJ’s staff to expend time and resources to provide the People and the members of the Hearing Board with copies.71 Accordingly, the Hearing Board accords this factor considerable weight in its analysis.
Substantial Experience in the Practice of Law—9.22(i): Respondent had been practicing law for over twenty-one years at the time of his misconduct in this case.
Absence of a Prior Disciplinary Record—9.32(a): Respondent has not been disciplined in twenty-one years of practice.72
Timely Good Faith Effort to Make Restitution or Rectify Consequences of Misconduct—9.32(d): Respondent voluntarily paid the entire arrearage of his child support in February 2011 and his balance owing to the Colorado Supreme Court in March 2011. Because Respondent’s efforts were made close to a year after the obligations were due and only after a disciplinary proceeding was instituted against him, the Hearing Board accords this factor minimal weight in its analysis.73
Remorse—9.32(l): The Hearing Board also will not consider remorse a significant mitigating factor in this case. Although Respondent exhibited remorse for his failure to make child support payments, for the insufficient fund checks he wrote to the Supreme Court, and for his "late attendance" at the pretrial conference in the juvenile matter, he did not exhibit any remorse for his other misconduct or for his recalcitrance during the discovery phase of this proceeding.
Sanctions Analysis under
ABA Standards and Case Law
ABA Standard 6.22 provides: "Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding." Similarly, ABA Standard 4.12 provides that suspension "is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client."
Colorado law supports suspending an attorney who negligently converts client funds.74 The most important factor in determining the appropriate level of discipline in a case where there is a conversion 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."75 A "technical conversion," where the respondent either concedes negligence or the People cannot prove by clear and convincing evidence that the respondent knowingly converted the funds, usually warrants suspension.76 The Hearing Board has found, based on an adverse inference, that Respondent negligently converted Jones’s funds and concludes, in light of sanctions levied in more serious cases,77 that a shorter period of suspension is warranted and sufficient to protect the public in this case.
In addition, case law supports suspension for an attorney’s failure to pay court-ordered child support. In In re Green, the Supreme Court suspended an attorney for one year and one day for failing to pay court-ordered child support.78 The attorney’s child support arrearages in Green totaled $11,094.68 and spanned a period of five years.79 In contrast, in People v. Tucker,80 the Supreme Court upheld a hearing board’s finding of a six-month suspension as appropriate where the attorney, who had been disciplined previously, knowingly violated a court order to pay child support. There, the back child support was less than $8,000.00 and extended over a one-year period.81 Because the magnitude of the attorney’s willful failure to pay child support in Green was more egregious in terms of amount and length than Respondent’s, we find Tucker more analogous. Here, Respondent was behind $3,167.1382 in support payments over an eight-month period, and his balance was paid in full prior to the disciplinary hearing. Accordingly, a less severe suspension is appropriate here.83
We are also aware of the Supreme Court’s directive that we must carefully apply the aggravating and mitigating factors in each case.84 Here, we are mindful of Respondent’s full payment of his child support arrearage and balance owed to the Supreme Court, as well as his lack of any prior discipline. But we are troubled by Respondent’s failure to cooperate and bad faith obstruction of the disciplinary process, which we consider an aggravating factor of significant weight. Accordingly, we find that a suspension for one year and one day, all but three months stayed, is the appropriate sanction in this matter. In addition, Respondent must seek reinstatement pursuant to C.R.C.P. 251.29(c). Upon reinstatement to the bar, Respondent must successfully complete a one-year period of probation with conditions.85
The Hearing Board concludes Respondent’s knowing failure to pay court-ordered child support is a violation of the Rules of Professional Conduct. We also find that Respondent negligently converted a client’s $500.00 retainer, in violation of the rules, when he spent it on the day he deposited it without his client’s consent. We further determine that Respondent’s accounting system falls woefully short of the standards imposed by Colo. RPC 1.15(j). As such, we find it appropriate to suspend Respondent for one year and one day, all but three months stayed. In addition, Respondent must seek reinstatement pursuant to C.R.C.P. 251.29(c). Upon reinstatement to the bar, Respondent must successfully complete a one-year period of probation with conditions.
The Hearing Board therefore ORDERS:
1. JOHN A. MCNAMARA, attorney registration number 19382, is hereby SuSpended FOR ONE YEAR AND ONE DAY, ALL BUT THREE MONTHS STAYED.
2. Respondent SHALL seek reinstatement pursuant to C.R.C.P. 251.29(c).
3. Upon reinstatement to the bar, Respondent SHALL successfully complete a ONE-YEAR PERIOD OF PROBATION subject to the following conditions:
a. Commit no further violations of the Colorado Rules of Professional Conduct;
b. Establish a relationship with an attorney mentor and regularly report to the People with respect to the development of that relationship. Respondent shall consult monthly with a peer mentor selected by the People in conjunction with Respondent for a one-year period. The mentoring is intended to assist Respondent in his transition to the active practice of law and to account for the significant stressors associated therewith. The monthly mentoring shall continue for one year unless the peer mentor and the People jointly determine that such mentoring is no longer required or can be modified or reduced. Respondent shall execute an authorization for release, requiring the mentor to notify the People if Respondent fails to participate in this required mentoring;
c. Submit to financial monitoring of accounting procedures for a one-year period. Respondent shall demonstrate that he has developed a system of law office management and monitoring which minimizes the possibility of the recurrence of the type of conduct which resulted in these proceedings;
d. Provide monthly certification to the People by Respondent demonstrating full compliance with his court-ordered child support obligations;
e. Demonstrate to the People either that he is current on his child support obligations or that he has negotiated a payment plan approved by the appropriate court and is current with his obligations under the plan; and
f. Attend and successfully pass the one-day ethics school and the one-half-day trust account school sponsored by the People.
4. The suspension SHALL become effective thirty-one (31) days from the date of this order upon the issuance of an "Order and Notice of Suspension" by the PDJ and in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h).
5. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the PDJ on or before Thursday, August 4, 2011. No extensions of time will be granted.
6. 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.
7. Respondent SHALL pay the costs to the PDJ for photocopying his exhibits during the hearing within fifteen (15) days from the date of this order. The PDJ made a total of 894 copies for Respondent chargeable at 10¢ per page for a total of $89.40.
1. The People later dismissed their fourth claim for relief based on Colo. RPC 1.15(c).
2. Respondent did not respond to this motion, which the PDJ will address in a separate order.
3. Respondent failed to adhere to the court-ordered deadline for pre-trial disclosure of his exhibits and first disclosed his exhibits the second day of the hearing. The People objected to the late disclosure of the exhibits. The PDJ admitted Respondent’s exhibits over the People’s objection after determining that the appropriate sanction would not be preclusion of the evidence but to inform the Hearing Board of Respondent’s failure to adhere to deadlines.
4. See C.R.C.P. 251.1(b).
5. Ex. G. Respondent was also ordered to pay an additional $500.00 in temporary monthly maintenance to his ex-wife.
6. Ex. 2 (ordering Respondent to pay $181.29 monthly for child support plus $13.00 for arrearage).
7. On May 13, 2009, Respondent disclosed on his attorney registration statement that he was not in compliance with child support orders. Ex. 3. He noted that he would be "caught up by the end of Monday May 18, 2009, if [he were] allowed to earn the second half of a flat fee following a trial on Monday." Id.
8. Ex. 4. After making these payments, Respondent was left with an arrearage of $156.88.
10. Id. Although the allegations and claims in the People’s complaint do not cover the June 2010 to January 2011 time period, the People offered this evidence at the hearing to show a pattern of misconduct and noncompliance with child support orders pursuant to ABA Standard 9.22(c).
11. Ex. L. Of the $4,654.61 Respondent paid in February 2011, $3,000.00 was for maintenance and $1,654.61 was for child support.
12. Exs. 7 & 11.
13. The Hearing Board does not address the legitimacy of the trial court’s order; rather, we treat it as a valid order and enforceable subject to appellate review.
14. Ex. 4.
15. Ex. A. For instance, Respondent could have sacrificed internet and cable in order to meet his monthly child support obligations. Additionally, Respondent admittedly took home $4,500.00 some months—$1,000.00 more than his total monthly expenses.
16. Respondent is mistaken about the date he filed his appeal. His notice of appeal was not filed in October 2008, as he claims, but rather on October 29, 2009. Ex. 8. The appeal was ultimately dismissed in October 2010 because Respondent did not pay for the transcript of the underlying proceedings. Exs. 9 & 10. Thus, the court’s child support order remains valid and in effect.
17. See In re Green, 982 P.2d 838, 839 (Colo. 1999) (finding that by willfully failing to comply with court-ordered child support obligations, the respondent violated Colo. RPC 3.4(c)); People v. Hanks, 967 P.2d 144, 145 (Colo. 1998) (same).
18. The case was styled In re the Marriage of Cole, case number 01DR1328.
19. Ex. 13.
22. Respondent also testified Cole was very angry that he had learned after the fact of his daughter’s enrollment in a boarding school outside of Colorado and that he had not been provided with the school calendar until September 2008. Cole believed his ex-wife was purposefully hiding information from him.
23. Id.; Ex. 14 at 12:13-13:5; 24:22-25:16.
24. Ex. 14 at 26:11-19.
25. Id. at 24:22-23.
26. Id. at 30:6-11.
27. Ex. 15. Respondent testified at the disciplinary hearing that he abandoned this argument after the court advised him it was inapplicable.
28. Ex. 15 at 156:8-157:11.
29. Id. at 158:9-159:9. The court’s ruling, however, is not binding on the Hearing Board because the burden of proof in a civil action is generally by a preponderance of the evidence, while the burden of proof in an attorney disciplinary proceeding is typically by clear and convincing evidence. See In re Egbune, 971 P.2d 1065, 1067 (Colo. 1999).
30. Ex. 15 at 158:9-14; Ex. U.
31. Ex. W.
32. The People, in closing, acknowledged that the May 2000 Order is open to interpretation but argued the logical conclusion of Respondent’s interpretation would be that the daughter could not leave Ms. Cole’s house to attend any school. Respondent asserts that the People’s interpretation is overly narrow, and he construes the May 2000 Order to prohibit Cole’s daughter from attending school in Virginia because she would no longer be under either parent’s care but rather under the care of a school administrator.
33. The elements of punitive contempt are: "(1) the existence of a lawful order of the court; (2) contemnor’s knowledge of the order; (3) contemnor’s ability to comply with the order; and (4) contemnor’s willful refusal to comply with the order." In re Marriage of Nussbeck, 974 P.2d 493, 497 (Colo. 1999).
34. See W. United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo. 1984) ("frivolous" means no rational argument can be made, based upon the evidence, in support of the claim or defense); Barrett v. Va. State Bar ex rel. Second Dist. Comm., 634 S.E.2d 341, 348 (Va. 2006) ("An erroneous position is not necessarily a frivolous position."); see also Colo. RPC 3.1 cmts. 1 & 2 (noting a legal action cannot be considered frivolous if a lawyer is able to support that action by a good faith argument for an extension, modification, or reversal of existing law in light of the law’s ambiguities and potential for change). An action is not necessarily frivolous where the attorney does not believe that his client’s position will ultimately prevail. Colo. RPC 3.1 cmt. 2.
35. As noted, Respondent withdrew his arguments based on C.R.S. § 14-10-107 after the advisement hearing. Although C.R.S. § 14-10-131 allows for the modification of child custody, Respondent testified that he did not file a motion contesting his daughter’s removal or for modification of child custody as he felt, given the contentious history between the parties and based on his discussions with Cole, that a contempt citation was proper. See Colo. RPC 1.3 cmt. 1 ("A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.").
36. See In re Foster, —P.3d—, 2011 WL 2139136, at *10 (Colo. May 23, 2011) ("While the pursuit of losing arguments may not be a recipe for success, neither does it bear the hallmark of punishable or necessarily undesirable litigation conduct.").
37. Respondent never provided the People or the Hearing Board with Jones’s first name.
38. The two checks presented for payment on Respondent’s COLTAF account and returned unpaid were: (1) check number 1870 for $20.00 and (2) check number 1866 for $150.00.
39. Ex. 24.
40. Ex. 27.
42. The People objected to Respondent’s testimony on the Jones matter at the hearing because he asserted his Fifth Amendment right against self-incrimination at his depositions. The PDJ allowed Respondent’s testimony over objection because he determined that the appropriate sanction would not be preclusion of Respondent’s testimony but rather to sanction Respondent by notifying the Hearing Board of Respondent’s conduct.
43. Respondent testified at the hearing that he cannot find the fee agreement.
44. At the hearing, Respondent asked the PDJ to dismiss the People’s fifth (Colo. RPC 1.15(a)) and sixth (Colo. RPC 1.15(j)) claims for relief, asserting that they are vague and fail to notify Respondent as to the timeframe involved. At the disciplinary hearing, the PDJ denied Respondent’s motions to dismiss, as the deadline for pretrial motions and discovery had passed. The Hearing Board also finds that the People’s complaint is not vague, the complaint clearly references the timeframe in question, and Respondent therefore had enough information to proceed with a defense.
45. Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 141 (Colo. 2004). The "privilege against self-incrimination has long been applied in the civil context." Id. at 139. This privilege is one which should be "exercised without penalty," and courts should avoid the imposition of a sanction which makes this assertion costly. Id. at 140.
46. Id. at 141 (citing Sec. & Exch. Comm’n v. Graystone Nash, Inc., 25 F.3d 187, 192 (3d Cir. 1994)).
48. Id. (citing Sec. & Exch. Comm’n v. Colello, 139 F.3d 674, 677 (9th Cir. 1998)); see also In re Bass, 142 P.3d 1259, 1263 (Colo. 2006) (determining that the PDJ was well within his discretion when applying the sanction of adverse inference of disability based on the respondent’s refusal to cooperate with independent medical examiner).
49. Colo. RPC 1.15(j)(1)-(8).
50. The People offered this second check as evidence of a pattern of misconduct pursuant to ABA Standard 9.22(c).
51. Ex. 18.
52. Exs. 20, 21, & 22.
53. Ex. Z.
55. Apparently, Respondent’s First Bank statements were not in his possession and, although he subpoenaed these statements approximately one day before the hearing, they never arrived.
56. The People admitted that they had an alternative means of obtaining these bank records by subpoenaing them directly from First Bank but chose not to do so. Accordingly, the Hearing Board will not draw an adverse inference here. See Steiner, 85 P.3d at 141.
57. The People moved for amendment of the pleadings orally during their closing argument. Respondent did not object to such amendment during the hearing.
58. C.R.C.P. 15(b). C.R.C.P. 15(b) has been interpreted "to provide that when an issue is tried before the court without timely objection or motion, then the issue is deemed properly before the court despite any defect in the pleading." Great Am. Ins. Co. v. Ferndale Dev. Co., 185 Colo. 252, 254, 523 P.2d 979, 980 (1974).
59. Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 61-65, 450 P.2d 70, 71-73 (1969); Maxey v. Jefferson Cnty. Sch. Dist. No. R1, 158 Colo. 583, 585, 408 P.2d 970, 971 (1965).
60. Exs. Q & A6.
62. The Hearing Board notes that Respondent refused to cooperate with the People and to comply with their request for documentation regarding this claim. This lack of cooperation does not go unnoticed and will be weighed as an aggravating factor pursuant to ABA Standard 9.22(e).
63. At the hearing, Respondent asked the PDJ to dismiss the People’s eighth (Colo. RPC 1.3) and ninth (Colo. RPC 1.15(j)) claims arising out of the juvenile matter, asserting the supporting allegations in the complaint are vague. As discussed, the PDJ denied Respondent’s motions to dismiss. In addition, the Hearing Board notes that Respondent should have been able to determine to which client the complaint was referring, as his deposition had been taken multiple times and he offered testimony at the disciplinary hearing as to the proper client. At the hearing, Respondent disclosed that he entered into a diversion agreement with the People in regard to this same client and that the People brought this claim as a result of his failure to comply with the diversion requirements. The Hearing Board thus finds that Respondent had ample notice as to the client the People referenced in their complaint.
64. See In re PRB, 925 A.2d 1026, 1028-29 (Vt. 2007) (finding attorney missing one deadline but working to remedy the error constituted a single isolated act of negligence but not misconduct under RPC 1.3). By its determination, the Hearing Board by no means intends to excuse single acts of negligence by attorneys.
65. ABA Standards section IV, Definitions.
66. Respondent claims he did not attend this deposition even though he agreed to the date because he never received a notice of the deposition.
67. Respondent asserts that he believed this deposition was stayed pending a ruling on his motion to recuse. However, the Hearing Board finds this excuse lacks merit, as Respondent admitted that he did not file the motion to recuse prior to the deposition.
68. Respondent could cite no authority that would permit him to refuse to answer questions because of the presence of a second investigator or a state patrol officer.
69. Respondent was granted his request to file additional written discovery; however, he never issued any written discovery to the People. Respondent also did not file a hearing brief prior to trial.
70. See Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 677 (Colo. 1987) (noting sanctions "should be applied in a manner that effectuates proportionality between the sanction imposed and the culpability of the disobedient party").
71. The Hearing Board recessed for over two hours in order to permit the PDJ’s staff to copy Respondent’s exhibits for the People and the Hearing Board. The PDJ’s staff made a total of 894 copies for Respondent.
72. Although Respondent was subject to a diversion, a diversion is not considered a form of discipline but rather an alternative to discipline. C.R.C.P. 251.13(c).
73. See In re Fischer, 89 P.3d 817, 821 (Colo. 2004) ("Restitution prior to the initiation of disciplinary proceedings . . . present[s] the clearest case for mitigation, while restitution later in the proceedings present[s] a weaker case.") (internal citations omitted); ABA Standard 9.32 cmt. (noting restitution made later during process presents weaker case of mitigation); ABA Standard 9.4 cmt. ("Lawyers who make restitution only after a disciplinary proceeding has been instituted against them . . . cannot be regarded as acting out of a sense of responsibility for their misconduct, but, instead, as attempting to circumvent the operation of the disciplinary system. Such conduct should not be considered in mitigation.").
74. People v. McGrath, 780 P.2d 492, 493 (Colo. 1998) (finding suspension fitting where lawyer knew or should have known that he was dealing improperly with client property); People v. Varallo, 913 P.2d 1, 11 (Colo. 1996) (noting an attorney’s technical conversion of client funds warrants suspension); People v. Dickinson, 903 P.2d 1132, 1138 (Colo. 1995) (holding that negligent commingling and misappropriation of client funds warrants three-year suspension); People v. Wechsler, 854 P.2d 217, 222-23 (Colo. 1993) (finding suspension appropriate where conversion was not intentional or willful).
75. People v. Schaefer, 938 P.2d 147, 149 (Colo. 1997) (citations omitted).
76. Id. at 150 (citations omitted).
77. See McGrath, 780 P.2d at 493-94 (finding suspension of one year and one day warranted where attorney commingled and technically converted client funds and his conduct was aggravated by his deceit and misrepresentation, as well as by his prolonged neglect of a legal matter entrusted to him); Schaefer, 938 P.2d at 150 (suspending attorney for two years for negligently mishandling client funds, where, in aggravation, attorney had an arrogant attitude regarding his ethical responsibilities and believed that he was above complying with lawyers’ fiduciary responsibilities); People v. Zimmermann, 922 P.2d 325, 329-30 (Colo. 1996) (suspending attorney for one year and one day with conditions of reinstatement for reckless conversion of client funds in over ten instances); People v. Galindo, 884 P.2d 1109, 1112 (Colo. 1994) (determining a suspension lasting one year and one day was appropriate for an attorney’s negligent conversion of funds where several mitigating factors were present and attorney voluntarily closed his law practice); Wechsler, 854 P.2d at 223 (misrepresenting location of client’s funds and failing to account for funds collected for over two years warrants suspension for one year and one day); People v. Kearns, 843 P.2d 1, 5 (Colo. 1992) (finding suspension for one year and one day appropriate where attorney made misrepresentations to client and engaged in dishonest assignment of promissory note but had no prior disciplinary record).
78. 982 P.2d 838, 839 (Colo. 1999). The Supreme Court imposed the same sanction in People v. Hanks, 967 P.2d 144, 146 (Colo. 1998), where the respondent willfully failed to pay court-ordered child support, knowingly disobeyed an obligation under the rules of a tribunal, engaged in conduct prejudicial to the administration of justice, and engaged in conduct adversely reflecting on his fitness to practice law. Like Green, Hanks is distinguishable on the facts, since Hanks’ conduct was more egregious than here, as he was over $55,000.00 behind in payments. Id. at 145.
79. 982 P.2d at 838.
80. 837 P.2d 1225, 1229 (Colo. 1992).
81. Id. at 1226-27.
82. Ex. 4. It appears that the $3,167.13 arrearage included $1,500.00 in missed spousal maintenance payments.
83. See also People v. Cantrell, 900 P.2d 126, 128 (Colo. 1995) (recognizing that a willful failure to pay child support warrants a short suspension but finding public censure an appropriate sanction for failure to pay child support where the attorney was negligent, had a cooperative attitude, and settled a support issue with his ex-wife); People v. Primavera, 904 P.2d 883, 885 (Colo. 1995) (recognizing presumption of a short period of suspension for failure to pay child support but finding public censure appropriate where attorney failed to pay child support over only a four-month period and paid support in full by court-ordered contempt deadline). Although these cases impose a lighter sanction, they are distinguishable on the facts. In Primavera, the attorney’s failure to pay child support extended only over a four-month period, was paid in full by a court-ordered deadline, and the contempt citation was dismissed. Id. at 885. Similarly, in Cantrell, the contempt citations against the attorney were dismissed because he was able to settle the child support issue with his former wife. 900 P.2d at 128.
84. In re Fischer, 89 P.3d at 822 (finding that a hearing board overemphasized a presumption of disbarment and undervalued the importance of mitigating factors in determining the needs of the public).
85. The Hearing Board is requiring Respondent to seek reinstatement in this matter, which ensures Respondent must make a showing prior to reinstatement that he has been rehabilitated and is fit to practice law. C.R.C.P. 251.29(b). This showing will demonstrate his eligibility for probation pursuant to C.R.C.P. 251.7(a).
Case No. 10PDJ132
THE PEOPLE OF THE STATE OF COLORADO
JOHN JOSEPH ZODROW
December 15, 2011
OPINION AND DECISION IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)
On October 14, 2011, William R. Lucero, the Presiding Disciplinary Judge ("the Court") held a C.R.C.P. 251.15(b) sanctions hearing. Adam J. Espinosa appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and John Joseph Zodrow ("Respondent") failed to appear at the sanctions hearing. The Court now issues the following "Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."
Respondent violated Colo. RPC 1.3, 1.4(a)(3), 3.4(c), 5.5, and 8.4(c) by practicing law while suspended, failing to notify his clients and opposing counsel of his suspension, and making misrepresentations in his C.R.C.P. 251.28 affidavit concerning his efforts to wind up his practice.1 Considering the nature of Respondent’s misconduct and its consequences, the Court finds the appropriate sanction for Respondent’s misconduct is disbarment.
II. PROCEDURAL HISTORY
The People filed a complaint in this matter on December 15, 2010, setting forth eleven claims for relief based on alleged violations of Colo. RPC 1.3, 1.4(a)(3), 3.4(c), 5.5, and 8.4(c). The People mailed the complaint on the same day by certified and regular mail to Respondent’s registered business address.2 Thereafter, the People filed with the Court a "Proof (Attempted Service)" on January 31, 2011.3
The People then sent Respondent a letter by regular and certified mail and by email on March 2, 2011, advising him that they had not received his answer to the complaint, that the answer was due on January 7, 2011, and that they would move for default if he did not file an answer within ten days.4 On March 15, 2011, the People filed a motion for default, to which Respondent did not respond.5 Respondent answered the complaint on April 11, 2011, without explaining his three-month delay.6 In his answer, Respondent denied neither that his registered address is the Nichols-Littleton address nor that he was subject to this jurisdiction of this Court, and he offered the sole affirmative defense that the People "did not comply with conditions precedent to this action."
On May 3, 2011, the People filed a motion to strike Respondent’s answer as untimely and again asked for default. On June 16, 2011, the Court granted the People’s motion to strike and entered default on all claims in the People’s complaint.
A sanctions hearing was originally set in this matter for September 1, 2011. Upon Respondent’s motion to continue the sanctions hearing due to a schedule conflict, filed August 29, 2011, the Court held a status conference on August 31, 2011, at which time the Court rescheduled the hearing for September 7, 2011. On September 7, 2011, before the Court commenced the sanctions hearing, Respondent argued for the first time that the Court lacked personal jurisdiction over him and that he was improperly served with process. The Court postponed the sanctions hearing and ordered the parties to brief their arguments regarding personal jurisdiction and service of process.
Respondent filed a "Motion to Dismiss for Insufficiency of Service of Process" on September 19, 2011, and the People responded on September 26, 2011. Respondent asserted that the People disregarded C.R.C.P. 251.32(b) because they neither served him personally with the complaint nor sent it by certified mail to a later known address.7 The People maintained that they complied with C.R.C.P. 251.32(b), that Respondent waived the defense of lack of personal jurisdiction by neglecting to raise it in his answer, and that the fact Respondent filed an answer—albeit late—establishes he was served with the complaint.8 On September 29, 2011, the Court denied Respondent’s motion to dismiss, concluding that the People satisfied C.R.C.P. 251.32(b) by serving the complaint via certified mail to Respondent at his last known address and that Respondent waived any defense of lack of personal jurisdiction by filing an answer in which he admitted he was subject to the jurisdiction of the Court and neglected to raise any defenses of lack of personal jurisdiction or insufficient service of process. The Court continued the sanctions hearing until October 14, 2011.
On September 30, 2011, the People filed a "Motion to Clarify" bringing to the Court’s attention that the certified mailing dated March 2, 2011, which was sent to Respondent at the Nichols-Centennial address and returned to the People with the word "REFUSED" marked upon it, was actually refused by the postal service and not Respondent.9 This is contrary to what was stated in the Court’s order of September 29, 2011; and the People request that the Court clarify its order to reflect this factual change. The Court has orally granted this motion at the October 14, 2011, sanctions hearing and now issues a written order in section VI of this opinion and decision.
Upon the entry of default, the Court deems the facts set forth in the complaint admitted and all well-pled rule violations established by clear and convincing evidence.10 At the sanctions hearing, the Court heard testimony from Donna Hunt11 and admitted the People’s exhibit 1.
III. ESTABLISHED FACTS AND RULE VIOLATIONS
The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted complaint.12 Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 13, 1993, under attorney registration number 22706.13 He is thus subject to the jurisdiction of the Court in these disciplinary proceedings.14
Donna Griffin Matter
In April 2006, Donna Griffin ("Griffin") hired Respondent to represent her in a medical malpractice action against her chiropractor, Kenneth Ray ("Ray"). Griffin believed Ray had injured her back and neck during treatment. Respondent waited until August 15, 2007, to request Griffin’s medical records from Ray. He received the records on September 1, 2007. Even though the medical records indicate that Ray last treated Griffin on March 20, 2006, Respondent did not file a civil complaint until more than two years later, on March 26, 2008.15 Ray raised a statute of limitations defense in his June 19, 2008, answer to Griffin’s complaint.
On November 10, 2008, Respondent sent Griffin a letter advising her that there was "no real chance of [her] matter settling" and that her case "must be clearly winnable . . . to continue to justify the investment [she] would make in costs and [Respondent would] make in fees."16 He indicated that they would need to reevaluate their chances of success before proceeding. Between April and September 2009 discovery continued, and Griffin was deposed on August 11, 2009. She testified that her last treatment with Ray was on March 16, 2006.
On June 15, 2009, Respondent was suspended from the practice of law for one year and one day, with the condition of reinstatement, effective August 15, 2009. Pursuant to C.R.C.P. 251.28(b) and (c), Respondent was required to promptly notify Griffin and opposing counsel by certified mail of his suspension and advise Griffin that she could seek legal services elsewhere. However, Respondent never notified Griffin or opposing counsel of his suspension. On August 25, 2009, Respondent filed an affidavit with the People indicating that he had filed a substitution of counsel in Griffin’s case. This statement was not true.
Notwithstanding his suspension, on September 3, 2009, Respondent and his associate, John McBride ("McBride"), met with Griffin to discuss her case. At this meeting, Respondent informed Griffin that he had filed her case after the statute of limitations had run. Griffin terminated Respondent’s representation that day. On October 6, 2009, McBride filed on Respondent’s behalf a motion to withdraw, which was granted that day.
Ray filed a motion for summary judgment on October 30, 2009, based on the statute of limitations. On November 6, 2009, the parties filed a confession of the motion for summary judgment and a stipulation to dismiss Griffin’s case with prejudice, which the court granted.
Respondent’s failure to communicate with Griffin about the nature of her injury, to timely review her medical records to determine the date of her injury, and to file her case within the statute of limitations period violated Colo. RPC 1.3, which mandates a lawyer act with reasonable diligence and promptness in representing a client. Respondent’s conduct also violated Colo. RPC 1.4(a)(3), which provides that a lawyer shall keep the client reasonably informed about the status of his or her matter. Respondent neglected this duty when he failed to notify Griffin that he had filed the complaint outside the limitations period and, later, when he failed to promptly inform Griffin that his license to practice law had been suspended and he could no longer continue to represent her.
Further, Respondent neglected to notify Griffin in writing that his law license had been suspended, that he could no longer represent her, and that she could seek new representation pursuant to C.R.C.P. 251.28(b). He also did not obtain Griffin’s consent to continue working on her case during the winding up period as required by C.R.C.P. 251.28(a). By disregarding these rules, Respondent violated Colo. RPC 3.4(c), which provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
Finally, Respondent violated Colo. RPC 8.4(c), which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent acted dishonestly by neglecting to notify Griffin that he had been suspended; by leading her to believe that he was a licensed attorney during his period of suspension; by failing to inform her that the statute of limitations had run on her malpractice claim yet continuing to pursue the claim and incurring further costs; and by misrepresenting in his affidavit to the Colorado Supreme Court that he had complied with C.R.C.P. 251.28.
Equal Employment Opportunity Commission
Respondent represented six different clients in separate EEOC matters filed against the United States Postal Service ("USPS"): Stormy A. Blood ("Blood"),17 Delisa M. Terrell ("Terrell"),18 Louise A. Lucero ("Lucero"),19 Michael Garcia ("Garcia"),20 Elizabeth Boisse ("Boisse"),21 and Vernon Perry ("Perry")22 (collectively, "the EEOC clients"). Respondent represented the EEOC clients prior to his suspension on August 15, 2009, and continued to work on each of their cases after his suspension took effect.23
Specifically, Respondent filed a witness list with the district court on behalf of Blood on August 25, 2009.24 On October 8, 2009, Respondent filed a response to USPS’s motion to dismiss on Terrell’s behalf.25 In addition, on October 14, 2009, Respondent filed a response to the USPS’s motion for a decision without a hearing on Lucero’s behalf and then continued to work on Lucero’s case as her attorney until August 19, 2010. Further, on October 19, 2009, Respondent filed a response to the USPS’s motion for a decision without a hearing in the Perry matter. Respondent continued to represent Perry until August 20, 2010.
Later, on November 20, 2009, Respondent sent a settlement letter to opposing counsel in the Garcia matter in which he referred to Garcia as his "client" and negotiated attorney’s fees and costs as part of the settlement. Respondent was still representing Garcia as of August 31, 2010. Finally, on December 17, 2009, Respondent sent another settlement letter to opposing counsel in the Boisse matter, referring to Boisse as his "client" and negotiating attorney’s fees and costs.
Respondent never notified Lucero, Garcia, Boisse, or Perry of his suspension, and he did not comply with C.R.C.P. 251.28(a) and (b) with respect to the EEOC clients, thereby violating Colo. RPC 3.4(c). By continuing to practice law while suspended, Respondent also violated Colo. RPC 5.5, which prohibits a lawyer from practicing law in this jurisdiction without a law license issued by the Colorado Supreme Court. Finally, by neglecting to notify the EEOC clients that he had been suspended and continuing to allow them to believe he was a licensed attorney, Respondent engaged in dishonest conduct in violation of Colo. RPC 8.4(c).
Nick Avila, Esq. Matter
In or around 2009, Jose Manuel Lucero ("J. Lucero") retained Respondent to represent him in a marriage dissolution proceeding. Nick Avila ("Avila") represented J. Lucero’s wife in the proceeding. Respondent had a duty to notify Avila by certified mail of the suspension of his law license pursuant to C.R.C.P. 251.28(c). Respondent did not do so.
On August 25, 2009, Respondent filed an affidavit with the Colorado Supreme Court stating that he had submitted a motion to withdraw as counsel and had concluded his representation of J. Lucero. In fact, Respondent had not filed a motion to withdraw as counsel and did not do so until August 31, 2009.26 Through this conduct, Respondent violated Colo. RPC 3.4(c) and 8.4(c).
Max Stich, Esq. Matter
In or around late 2009 and early 2010, during his period of suspension, Respondent worked as a law clerk for Dan Murphy ("Murphy"). In December 2009, Murphy, a licensed attorney, was retained to represent Kim Hunt ("Hunt"), the owner of 1st Storage Concepts, LLC, in Distinctive Companies, Inc. v. Storage Concepts, LLC.27 Max Stich ("Stich") represented Distinctive Companies, Inc. Despite his suspension, Respondent emailed Hunt on February 8, 2010, offering legal advice about his case.28 On that same day, Respondent emailed to Stich to negotiate on behalf of Hunt.29 By contravening the Court’s order of suspension and continuing to practice law without a license, Respondent violated Colo. RPC 3.4(c) and 5.5.
The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct.30 In selecting a sanction after a finding of lawyer misconduct, the Court must consider the duty violated; the lawyer’s mental state; the actual or potential injury caused by the lawyer’s misconduct; and the existence of aggravating and mitigating evidence pursuant to ABA Standard 3.0.
ABA Standard 3.0—Duty, Mental State, and Injury
Duty: Respondent violated his duty to his clients, the courts, and the legal profession by failing to notify the EEOC clients, Griffin, and opposing counsel of his suspension from the practice of law and by continuing to practice law while suspended. Respondent also violated his duty to Griffin to act with reasonable competence, diligence, and promptness by neglecting her case, which resulted in its dismissal with prejudice.
Mental State: Respondent intentionally engaged in the unauthorized practice of law by continuing to practice law during his suspension. He also intentionally failed to notify his clients and opposing counsel that his law license had been suspended. The Court further concludes that Respondent knowingly neglected Griffin’s case and failed to notify her of the status of her case. Finally, the Court finds that Respondent intentionally made misrepresentations through pleadings and affidavit to courts, as well as through letters to opposing counsel, regarding his status as a lawyer and the winding-up process.
Injury: Respondent caused actual harm to his clients by failing to notify them that his law license had been suspended, by permitting them to believe he was in good standing with the bar during his representation, and by failing to wind up his practice. By his actions, Respondent deprived his clients of the ability to seek representation by a licensed attorney.
In addition, Respondent caused actual harm to Griffin by filing the complaint outside the applicable statute of limitations period, leading to the dismissal of her case. Griffin said she believed her case against Ray was worth $900,000.00 to $1,000,000.00 because of her substantial injuries and inability to work. There is insufficient evidence before the Court regarding Griffin’s statement concerning the value of her case. However, the potential value of her case is considered for the limited purpose of demonstrating the emotional harm she suffered. Respondent’s neglect of Griffin’s case caused her a large measure of stress and potential financial harm. In addition, Respondent’s actions have eroded Griffin’s trust in lawyers.
Finally, Respondent caused USPS potential injury by making written settlement demands that included attorney’s fees and costs in the Garcia and Boisse matters. Rick Eves, managing counsel for USPS, stated in a letter to the People that USPS did not settle these two matters but, if it had, it might have unwittingly included attorney’s fees and costs for the work performed by Respondent while his license was suspended.31
ABA Standard 9.0—Aggravating and Mitigating Factors
Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed.32 Mitigating circumstances include any considerations or factors that may justify a reduction in the severity of the sanction to be imposed.33 The Court considers evidence regarding the following aggravating circumstances in deciding the appropriate sanction. Because Respondent did not appear at the hearing or otherwise participate in these proceedings, the Court is unaware of any mitigating factors.
Prior Disciplinary Offenses—9.22(a): Respondent was suspended for one year and one day, with the condition of reinstatement, effective August 15, 2009, for violations of Colo. RPC 3.3(a)(1), 3.4(c), and 8.4(c). His misconduct included failing to report his interest in property, making misrepresentations, and for falsely testifying in his personal bankruptcy case.
Dishonest or Selfish Motive—9.22(b): Respondent acted with a dishonest and selfish motive when he failed to notify his clients and opposing counsel of his suspension and then continued to practice law.
Pattern of Misconduct—9.22(c): Respondent’s repeated failure to notify his clients and opposing counsel that his license was suspended and his continued noncompliance with court orders regarding suspension constitutes a pattern of misconduct.
Multiple Offenses—9.22(d): By the Court’s order of default, Respondent was found to have engaged in multiple acts of misconduct by continuing to practice law while suspended, failing to notify his clients and opposing counsel of his suspension, and making misrepresentations in affidavits he filed with the Colorado Supreme Court regarding the winding up of his practice.
Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process—9.22(f): Respondent falsely represented to the Court during the hearing on September 7, 2011, that the Nichols-Centennial address was his current address. There is evidence before the Court that another individual purchased the Nichols-Centennial residence on July 29, 2011, and was the sole resident. Respondent’s probation officer also stated that Respondent had provided him with a South Glencoe address on February 14, 2011, and never updated that address.
Substantial Experience in the Practice of Law—9.22(i): Respondent has been licensed to practice law in Colorado since 1993.
Sanctions Analysis Under
ABA Standards and Case Law
ABA Standard 4.41(b) provides that disbarment is appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client. Likewise, ABA Standard 7.1 recommends disbarment when a lawyer knowingly engages in conduct that violates a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and thereby causes serious or potentially serious injury to a client, the public, or the legal system. Finally, ABA Standard 8.1(a) provides for disbarment when a lawyer intentionally or knowingly violates the terms of a prior disciplinary order, and such violation causes injury or potential injury to a client, the public, the legal system, or the profession.
Colorado Supreme Court case law applying the ABA Standards also holds that disbarment is appropriate in cases similar to this one. The Colorado Supreme Court’s decision in People v. James provides particularly relevant precedent.34 In James, the Colorado Supreme Court found that a lawyer’s continued practice of law while under an order of suspension, with no efforts to wind down his practice, coupled with his failure to protect the legal interests of his client, warranted disbarment.35 There, James was suspended from the practice of law for noncompliance with mandatory continuing legal education requirements.36 Despite this suspension, he actively engaged in the practice of law for one and a half years after his suspension and failed to comply with the disclosure and notice requirements for winding up affairs after his suspension.37 In addition, James failed to take any action to protect the legal interests of a client in connection with a personal injury claim, which resulted in the running of the statute of limitations.38 He also had a history of prior discipline.39 The Colorado Supreme Court found disbarment appropriate, observing that "any sanction less than disbarment would depreciate the seriousness of [James’s] misconduct in the eyes of both the profession and the public."40
Likewise, in People v. Wilson, the Colorado Supreme Court disbarred an attorney who practiced law after he had been immediately suspended due to a felony conviction.41 There, the attorney continued to represent a client after he was suspended and failed to notify the client and opposing counsel of the suspension.42 The attorney also failed to attend a damages hearing on behalf of his client, which caused the court to enter a nearly $200,000.00 judgment against the client.43 Given the seriousness of the attorney’s misconduct and the harm caused, the attorney’s disciplinary history, and the lack of mitigating factors, the Colorado Supreme Court found disbarment warranted.44
The Court finds that the ABA Standards and Colorado case law supports the imposition of disbarment in this matter.45 Further, Respondent’s non-appearance at the sanctions hearing demonstrates that he is indifferent to and has no regard for these disciplinary proceedings. Accordingly, the Court accepts the People’s recommendation of disbarment.
Respondent’s callous disregard of the rules regulating the practice of law in Colorado resulted in serious harm to his clients and constitutes an egregious violation of the basic responsibilities a lawyer owes to his client and to the profession. Respondent ignored his professional duties by failing to comply with rules or to even attend the disciplinary hearing. In light of the serious actual and potential harm Respondent has caused, the several applicable aggravating factors, and the absence of any mitigating factors, the Court concludes Respondent should be disbarred.
The Court therefore ORDERS:
1. John Joseph Zodrow, attorney registration number 22706, is hereby DISBARRED. The disbarment SHALL take effect only upon issuance of an "Order and Notice of Disbarment."46
2. Respondent SHALL file any post-hearing motions or application for stay pending appeal with the Court on or before Wednesday, January 4, 2012. No extensions of time will be granted. If Respondent files a post-hearing motion or an application for stay pending appeal, the People SHALL file any response thereto within five days, unless otherwise ordered by the Court.
3. Respondent SHALL pay the costs of these proceedings. The People SHALL submit a "Statement of Costs" within fifteen days from the date of this order. Respondent’s response to the People’s statement, if any, must be filed no later than ten days thereafter.
4. Complainant’s September 30, 2011, "Motion to Clarify" is GRANTED. The Court incorporates the language set forth in paragraph 4 of the motion into its "Order Denying Motion to Dismiss for Insufficiency of Process" dated September 29, 2011.
1. After his suspension, Respondent was required to file an affidavit pursuant to C.R.C.P. 251.28(d). The Court notes that the People refer to Respondent’s affidavit as a "‘C.R.C.P. 251.29’ affidavit" in their complaint and sanctions brief. It appears that Respondent filed an incorrectly captioned affidavit with the People.
2. Respondent registered 2748 East Nichols Circle, Littleton, Colorado 80122 ("Nichols-Littleton address") with the Colorado Supreme Court Office of Attorney Registration ("OAR") in 2005. The People mailed the complaint to the Nichols-Littleton address. Respondent never claimed receipt of the mailing.
3. In 2009, Respondent informed OAR that his place of business had changed from an address on Sherman Street to 2748 East Nichols Circle, Centennial, Colorado 80122 ("Nichols-Centennial address"). On November 2, 2010, Respondent again updated his address with OAR, selecting the Nichols-Littleton address as his preferred mailing address for all correspondence. That same day, however, Respondent filed with the Court a "Change of Address of Petitioner" in case number 10PDJ089, providing as his new address the Nichols-Centennial address. Between November 2, 2010, and November 20, 2011, Respondent had not informed OAR of any new address.
4. The People mailed the letter to Respondent at the Nichols-Centennial address.
5. The People mailed a copy of the motion to Respondent, at both the Nichols-Centennial address and the Nichols-Littleton address.
6. Respondent’s answer is dated April 5, 2011, but was not filed with the Court until April 11, 2011. The Nichols-Centennial address is listed in the answer’s caption.
7. Specifically, he argued that the People only sent the complaint by certified mail to the Nichols-Littleton address, even though his November 2, 2010, "Change of Address of Petitioner" had informed them of the Nichols-Centennial address. Respondent claimed that no "leeway" should be given in judging compliance with service of process rules and that the People had the burden to establish all facts essential to jurisdiction.
8. In addition, the People contended that Respondent falsely represented to the Court during the hearing on September 7, 2011, that the Nichols-Centennial address was his current address. In support, the People attached to their response an affidavit of Courtney Krugman, who attested she was the sole owner and resident of the townhome located at the Nichols-Centennial address, which she purchased on July 29, 2011. Moreover, Respondent’s probation officer averred in an affidavit that Respondent provided him the address of 6730 South Glencoe Street, Littleton, Colorado 80122 on February 14, 2011, and that Respondent never updated his address.
9. At the hearing, the People indicated that they discovered this fact contemporaneously with the Court’s order.
10. See People v. Richards, 748 P.2d 341, 346 (Colo. 1987); C.R.C.P. 251.15(b).
11. Donna Hunt was formally known as Donna Griffin.
12. See the People’s complaint for further detailed findings of fact.
13. In their sanctions brief, the People indicate that Respondent’s registered business address is the Nichols-Centennial address. However, on November 21, 2011, Respondent filed a notice regarding a change of address with the Court indicating that his address is now P.O. Box 2522, Littleton, Colorado 80161.
14. See C.R.C.P. 251.1(b).
15. The underlying lawsuit was styled Donna Griffin v. K. Patrick Ray, D.C., case number 2008CV572, District Court for Adams County, State of Colorado.
16. Compl. ¶ 13.
17. Stormy A. Blood v. John E. Potter, Postmaster General, case number 540-2009-00153X.
18. Delisa M. Terrell v. USPS, case number DE-0752-09-0481-I-1.
19. Louise A. Lucero v. John E. Potter, Postmaster General, case number 541-2008-00128X.
20. Michael Garcia v. John E. Potter, Postmaster General, case number 541-2009-00068X.
21. Elizabeth Boisse v. John E. Potter, Postmaster General, case number 541-2009-00069X.
22. Vernon Perry v. John E. Potter, Postmaster General, case number 541-2008-00335X.
23. The EEOC permits claimants to choose a representative in their proceedings—the representative need not be an attorney. Here, however, Respondent represented the EEOC clients as an attorney.
24. Blood’s witness list states it was being filed by Blood "through her counsel John J. Zodrow."
25. Respondent identified himself as Terrell’s private attorney.
26. The court granted the motion on September 23, 2009.
27. Case number 2008CV1966, District Court for Arapahoe County, State of Colorado.
28. During the February 8, 2010, email exchanges with Hunt and others, Respondent made statements such as: (1) "I think any extra costs in getting a substitute electrician can be pursued by you under the UCC concept of ‘cover’ damages, but you have a duty to mitigate your damages by planning for the contingency and getting an affordable substitute contractor"; (2) "I am hopeful that a deal can be finalized with 1 Stop but you are almost out of time here. Start by getting a bid ASAP."; (3) "Remember, that if the new bid comes in a lot lower, you may need that as a trial exhibit re damages against 1 Stop . . ."; and (4) "I think that both sides will agree that the work was not done by 1 Stop, and the contract price can be reduced accordingly for materials and labor." Compl. ¶¶ 166(a)—(b).
29. The email stated: "Max[,] I have reviewed your letter. Looks like things are coming along nicely . . . . I have asked Peg to stick in a paragraph on ‘Construction Draws’ so the parties and the trustee know exactly what’s going on as you requested . . . . In consideration of the draw, there has to be some protection for Mr. Hunt . . . . Probably a performance bond is the easiest thing to put in place. Unless you can suggest some other security for Mr. Hunt in return for your client getting nearly half the money before any work is done, . . . we’ll need to adjust the contract process and payment dates accordingly." Compl. ¶ 166 (c).
30. See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).
31. See Ex. 1. 29 C.F.R. § 1614.501(e)(1)(iii) permits a complainant to seek attorney’s fees and costs from a federal agency, provided his or her representative is a member in good standing of a state bar.
32. See ABA Standard 9.21.
33. See ABA Standard 9.31.
34. 731 P.2d 698 (Colo. 1987).
35. Id. at 700.
36. Id. at 699.
39. Id. at 700.
41. 832 P.2d 943, 943 (Colo. 1992).
42. Id. at 943-44.
43. Id. at 944.
44. Id. at 945.
45. See also People v. Swan, 938 P.2d 1164, 1166 (Colo. 1997) (approving disbarment of attorney who took no steps to notify his client of his suspension or to protect his client’s interest, which caused actual harm to his client); People v. Redman, 902 P.2d 839, 840 (Colo. 1995) (upholding disbarment where attorney knowingly engaged in the practice of law while administratively suspended); People v. Dolan, 873 P.2d 766, 769 (Colo. 1994) (upholding disbarment where attorney failed to perform the affirmative duties of notification and winding up imposed by the disciplinary rules and had an extensive history of similar discipline).
46. In general, an order and notice of sanction will issue thirty-one days after a decision is entered pursuant to C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later than thirty-one days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.
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