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TCL > November 2000 Issue > Opinions

November 2000       Vol. 29, No. 11       Page  137
From the Courts
Colorado Disciplinary Cases

Opinions


The Colorado Supreme Court has adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge, pursuant to C.R.C.P. 251.16, and a new intermediate appellate entity known as the Appellate Discipline Commission, pursuant to C.R.C.P. 251.24. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The Presiding Disciplinary Judge presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the Presiding Disciplinary Judge. See C.R.C.P. 251.18(d).

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

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

The full-text opinions, along with their summaries, are available on the CBA homepage at http://www.cobar.org/tcl/index.htm. See page 136 for details.


Case No. 99PDJ096

The People of the State of Colorado,

Complainant,

v.

Robert A. Carvell,

Respondent.

September 11, 2000

Original Proceeding in Discipline before the
Presiding Disciplinary Judge

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Corinne Martinez-Casias and Henry C. Frey, both members of the bar.

SANCTION IMPOSED: ONE YEAR AND ONE DAY SUSPENSION

A sanctions hearing was held on March 8, 2000, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Corinne Martinez-Casias and Henry C. Frey. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). The respondent Robert A. Carvell ("Carvell") failed to appear.

On September 17, 1999, the People filed the Complaint in this matter. The Citation and Complaint were served upon Carvell on September 20, 1999 by certified mail. Carvell personally signed for receipt of the papers. Carvell failed to answer the allegations in the Complaint and on December 23, 1999, default entered against him. The facts set forth in the Complaint were deemed admitted. Default was granted as to the rule violations set forth in claims one, three and five, which were deemed confessed, and denied as to the rule violations set forth in claims two and four.

The People’s exhibits 1 through 8 were offered and admitted into evidence. The PDJ and Hearing Board heard testimony from the People’s witnesses Patrick Averill and Marjorie Averill, reviewed the facts established by the entry of default and the admitted exhibits, considered argument of the People, and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Robert A. Carvell has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on September 20, 1960, and is registered upon the official records as attorney registration number 03576. Carvell is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On March 6, 1998 Marjorie Averill and her son Patrick Averill ("Averill") met with Carvell concerning Patrick Averill’s dissolution of marriage proceeding. Averill retained Carvell to represent him in that proceeding. Averill paid Carvell a retainer in the amount of $1,000. On April 21, 1998, Carvell entered his appearance in the dissolution of marriage action by filing a response to the petition for dissolution and a motion for temporary orders. Carvell set the temporary orders hearing and later attended that hearing on behalf of his client. A day or two after the hearing, Averill’s mother went to Carvell’s office and picked up copies of the pleadings. Thereafter, from late April, 1998 to August, 1998, Carvell did not communicate with Averill. Despite repeated attempts to contact him, Carvell returned none of the Averills’ phone calls. On August 31, 1998, Marjorie Averill went to Carvell’s office and discovered his office had moved. Carvell had not advised the Averills that he was changing office locations.

On September 16, 1998, Averill was finally successful in contacting Carvell by telephone. Carvell made an appointment with Averill at his new office location on September 17, 1998. Shortly thereafter, Carvell then cancelled the appointment and rescheduled it for September 22, 1998, which he also cancelled. Carvell rescheduled and subsequently cancelled other appointments for September 23 and 24, 1998. After September 24, 1998, Carvell did not schedule any further appointments.

A final orders hearing was held on October 1, 1998 and neither Carvell nor Averill appeared. Carvell never informed Averill of the final orders hearing date. At the final orders hearing, the court based its ruling and judgment regarding the parties’ financial information solely on Averill’s estranged wife’s information. Although Averill had provided the necessary financial information to Carvell, Carvell had not filed the financial information with the court.

At the October 1, 1998 hearing, the court awarded Averill’s wife sole custody of the couple’s two minor children, spousal maintenance, child support, the couple’s one operating vehicle, the marital home and furnishings, and one-half of Averill’s pension. Additionally, Averill was ordered to pay the first and second mortgages on the marital home. Carvell failed to notify Averill of the final orders in the dissolution of marriage action. Averill has had no communication with or from Carvell since the series of appointment cancellations in September of 1998 prior to the final orders hearing. Averill learned that the final orders had entered on October 1, 1998 when a copy of the court order was attached to his door approximately three weeks later.

Averill obtained successor counsel to protect his interests. On October 30, 1998 successor counsel entered his appearance on behalf of Averill and attempted to have the court vacate the final orders based upon Carvell’s neglect. The court denied the motion. Averill spent an additional $2,000 in an unsuccessful attempt to set aside the order of the court.

On December 15, 1998, the Office of Attorney Regulation Counsel sent Carvell a request for investigation regarding the charges in the Complaint. He never responded. Carvell has failed to participate in these proceedings.

II. CONCLUSIONS OF LAW

The Complaint alleged that Carvell’s conduct violated five separate provisions of The Colorado Rules of Professional Conduct ("Colo. RPC"): claim one alleged a violation of Colo. RPC 1.3 (a lawyer shall not neglect a legal matter entrusted to that lawyer); claim two alleged a violation of Colo. RPC 1.5(a) (a lawyer’s fee shall be reasonable); claim three alleged a violation of Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information), and claim four alleged a violation of Colo. RPC 1.16(d) (upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests). Claim five alleged that Carvell’s failure to respond without good cause shown to a request for investigation by Attorney Regulation Counsel constituted grounds for discipline pursuant to C.R.C.P. 251.5(d)1 and its predecessor C.R.C.P. 241.6(7). The Order of Default entered on December 23, 1999, granted default on the factual allegations giving rise to each of the five claims, and found violations of Colo. RPC 1.3(claim one), Colo. RPC 1.4(a) (claim three) and C.R.C.P. 251.5(d)(claim five). The Order denied default on the alleged rule violations of Colo. RPC 1.5(a) (claim two) and Colo. RPC 1.16(d) (claim four).

Carvell entered into a formal attorney-client relationship with Averill, accepted $1,000 from Averill for Carvell’s legal services, agreed to provide specific professional services, provided some but not all of the agreed upon services, failed to communicate with his client regarding the dissolution of marriage action, failed to appear at the final orders hearing and failed to advise the client of the hearing date. Final orders were entered in Averill’s dissolution case without his knowledge and without Carvell being present to represent his interests.

When a lawyer enters into an attorney-client relationship with another, an obligation to perform the agreed-upon professional services arises. People v. Hotle, No. 99PDJ038 slip op. at 3, (Colo. PDJ November 16, 1999) 29 Colo. Law. 107, 108 (January 2000). Carvell initially performed work for his client, but thereafter neglected his client’s matter at a critical stage of the proceedings. He failed to provide his client’s financial affidavit to the court, he failed to advise his client of the final orders hearing date, and he failed to appear at the final orders hearing in order to protect his client’s interests. His neglect of Averill’s matter constitutes a violation of Colo. RPC 1.3. His failure to keep appointments during a critical stage in the proceeding, and his general failure to communicate with his client over a five-month period despite his client’s numerous attempts to contact him constitutes a violation of Colo. RPC 1.4(a).

In Hotle, the PDJ and Hearing Board stated:

By agreeing to perform the requested services, the lawyer represents that he will provide the services in accordance with the Colorado Rules of Professional Conduct. If the attorney thereafter, absent either his client’s permission or an appropriate withdrawal from the attorney-client relationship, fails to perform the agreed-upon professional services within a reasonable period of time, the attorney’s misconduct constitutes neglect. Under circumstances where the period of neglect, in light of the professional services to be provided, is accompanied by a failure to communicate with the client, the neglectful misconduct may justify a finding of abandonment. Id.

To find abandonment rather than merely neglect, there must be proof that the attorney — during a given time period — was required to accomplish specific professional tasks for the client, failed to accomplish those tasks, and failed to communicate with the client. The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client. In the present case, a finding of abandonment is warranted.

Following the temporary orders hearing, Carvell’s representation of Averill required Carvell to assemble the client’s financial information and file it with the court, adequately prepare his client’s case for presentation to the court, meet with and/or discuss the case with his client, inform the client of the court’s decision and advise the client of his options following the court’s decision. Carvell failed to accomplish any of these minimal tasks. The level of Carvell’s neglect combined with his failure to communicate with his client at a time when Carvell was required to perform substantial undertakings in order to protect his client rises to the level of abandonment.

The People allege that respondent violated Colo. RPC 1.5(a)(a lawyer’s fee shall be reasonable) by charging an unreasonable fee for his representation of Averill. Respondent was paid $1,000 as a retainer and agreed with Averill that he would work on an hourly basis. Carvell initially assembled the necessary information to undertake the representation, prepared and filed a response to the petition and a motion for temporary orders, filed a notice to set the temporary orders hearing, and represented his client at the temporary orders hearing. No evidence was presented from which either Carvell’s billing rate or the amount of time expended by him may be determined.2 Absent such evidence, the PDJ and Hearing Board cannot conclude by a clear and convincing standard that the tasks Carvell undertook were either unnecessary or unreasonable nor that either the hourly or total fee charged were not in accord with those customarily charged for similar legal services. The alleged violation of Colo. RPC 1.5(a) in claim two of the Complaint is therefore dismissed.

Claim four charged a violation of Colo. RPC 1.16(d). Claim four alleged:

The respondent essentially abandoned his client. The respondent left his office and never informed his client where his new office was. The respondent also failed to appear and take steps to protect his client’s interests after he unilaterally terminated their relationship.

Colo. RPC 1.16(d) provides in part:

Declining or Terminating Representation:

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

Having concluded that Carvell abandoned his client — a form of termination of the attorney-client relationship — Colo. RPC 1.16(d) becomes applicable. See Hotle, No. 99PDJ038, slip op. at 2, 29 Colo. Law. at 108. Carvell gave no notice to his client of the termination of the attorney-client relationship and, consequently, failed to afford the client any time to employ replacement counsel. Failing to do either constitutes a violation of Colo. RPC 1.16(d).

Carvell was provided with a request for investigation in this matter on December 15, 1998 but never filed a response. He has failed to participate in these proceedings. His failure to respond to a request for investigation and his failure to participate in these proceedings constitutes grounds for discipline pursuant to C.R.C.P. 251.5(d) and its predecessor, C.R.C.P. 241.6(7).

III. SANCTIONS/IMPOSITION OF DISCIPLINE

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

ABA Standard 4.41 provides that disbarment is generally appropriate when:

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

ABA Standard 4.42 provides in part that suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client.

In the present case, Carvell abandoned one client. Carvell’s abandonment of Averill deprived the client of his opportunity to have a meaningful final orders hearing. Such misconduct exposed the client to potentially serious harm.3 There is no allegation that Carvell misappropriated funds. Under the ABA Standards and Colorado case law, an attorney’s abandonment of clients warrants a sanction ranging from suspension to disbarment, depending on the facts of each case. In People v. Odom, 914 P.2d 342 (Colo. 1996), the attorney was suspended for three years for failing to keep one client informed regarding an offer by the estranged spouse to increase child support and failing to keep the client informed regarding social security benefits, misconduct which resulted in harm to the client. In a separate matter, the attorney failed to perform requested services in a criminal matter, failed to refund a retainer, and abandoned the client. The attorney failed to participate in the disciplinary proceedings. In arriving at a three-year suspension, the court stated:

Prior case law would sustain either a long period of suspension or disbarment in his case. However, "[g]iven the abbreviated record in these default proceedings, and the facts and circumstances of this particular case, we elect to follow the recommendations of the hearing panel and impose a period of suspension rather than disbarment." 914 P.2d at 345 (quoting People v. Crimaldi, 854 P.2d 782, 786 (Colo. 1993)).

In assessing a three year sanction, the court in Odom considered the attorney’s prior discipline as an aggravating factor. Id. at 345. In People v. Rishell, 956 P.2d 542 (Colo. 1998) the Colorado Supreme Court suspended the attorney for one year and one day for seriously neglecting two client matters in a manner similar to the misconduct regarding the one client in this matter, and recommended special conditions for reinstatement. In both Odom and Rishell, the court expressed reluctance to disbar the attorney based on the abbreviated record and minimal evidence presented in the default proceedings.

Carvell chose not to participate in these proceedings and did not appear at the hearing; therefore, the PDJ and Hearing Board did not have the benefit of Carvell’s presentation of factors which might mitigate the sanction. However, the People informed the PDJ and Hearing Board that Carvell had no prior discipline in over thirty years of practice. Lack of prior discipline is a mitigating factor. See ABA Standards, 9.32(a).

The PDJ and Hearing Board considered certain factors in aggravation pursuant to ABA Standards 9.22. Carvell committed multiple offenses, see 9.22 (d); Carvell engaged in bad faith obstruction of the disciplinary proceeding by failing to respond to the request for investigation and by refusing to participate in these proceedings; see 9.22 (e), Carvell failed to acknowledge his misconduct, see 9.22(g), and Carvell had substantial experience – thirty years – in the practice of law. See 9.22(i).

The PDJ and Hearing Board find that in the present case, where the respondent’s conduct constituted the abandonment of a single client but in which there was no allegation or finding of the misappropriation of funds, a suspension rather than disbarment is warranted. A suspension of one year and one day will require that Carvell undergo reinstatement proceedings. As a condition of reinstatement, Carvell shall be required to pay restitution to Averill for the funds Averill expended hiring another attorney to attempt to undo the harm Carvell’s misconduct inflicted upon him.

IV. ORDER

It is therefore ORDERED:

  1. Robert A. Carvell, registration number 03576 is suspended from the practice of law effective thirty-one days from the date of this Order for a period of one year and one day.

  2. Prior to the submission of any Petition for Reinstatement pursuant to C.R.C.P. 251.29, Carvell shall pay to Patrick Averill the sum of $2,000 plus statutory interest from October 30, 1998.

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

_______

1. C.R.C.P. 251.5(d) provides in relevant part: Misconduct by an attorney, individually or in concert with others, including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship: (d) Failure to respond without good cause shown to a request by the . . . Regulation Counsel.

2. Averill never received a statement or refund from Carvell.

3. Absent a complete review of the evidence in the underlying dissolution case, the PDJ and Hearing Board cannot conclude that the client actually suffered serious harm as a result of the abandonment.


Case No. 00PDJ014

Robert Melvin Hohertz,

Petitioner,

v.

The People of the State of Colorado,

Respondent.

August 31, 2000

Original Proceeding in Discipline before the
Presiding Disciplinary Judge

OPINION AND ORDER APPROVING REINSTATEMENT

Opinion by Presiding Disciplinary Judge Roger L. Keithley, Marilyn J. David, and Daniel C. Kogovsek, both members of the bar.

Attorney Reinstated

This reinstatement hearing was held on June 28, 2000, pursuant to C.R.C.P. 251.29(b) and (c) before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Marilyn J. David and Daniel C. Kogovsek. Debra D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Michael D. Gross represented petitioner Robert Melvin Hohertz ("Hohertz"). The following witnesses testified on behalf of Hohertz: Karen Dannewitz, R.N., Patrick W. Buckingham and James N. Travis. Hohertz testified on his own behalf. The parties stipulated to the admission of exhibits 1, 2 and 3. The parties also submitted a Stipulation of Facts and a Stipulation for Conditions Upon Reinstatement. At the request of the petitioner and there having been no objection by the People, the PDJ took judicial notice of the Petition for Reinstatement and its attached exhibits.

The PDJ and Hearing Board considered the testimony and exhibits admitted, assessed the credibility of the witnesses, and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Hohertz has taken the oath of admission and was admitted to the bar of this court on July 13, 1984 and is registered as an attorney upon the official records of this court, attorney registration no. 13910. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Hohertz was initially suspended by the Supreme Court from the practice of law for ninety days effective July 30, 1995. People v. Hohertz, 898 P.2d 1068 (Colo. 1995)("the 1995 suspension"). Prior to reinstatement from that suspension, additional requests for investigation were lodged against him. Those additional requests for investigation and subsequent proceedings resulted in the imposition of additional discipline. In effect, the Supreme Court converted the ninety day suspension into a three year suspension commencing retroactively to June 30, 1995.1 See People v. Hohertz, 926 P.2d 560 (Colo. 1996)("the 1996 suspension"). Subsequently, in a separate matter, the PDJ approved a Conditional Admission of Misconduct agreed to by Hohertz and the People in Case No. 99PDJ101 and by Order dated October 19, 1999, the PDJ imposed an additional ninety-day suspension ("the 1999 suspension").

The parties stipulated that Hohertz has complied with the provisions of C.R.C.P. 251.29(b) and (c) with the exception of a requirement in the 1996 suspension order which required Hohertz to pay restitution to two former clients. The parties’ Stipulation of Facts stated that although Hohertz had made significant efforts to pay the two individuals, including paying the required funds plus interest to his attorney to be held for the benefit of the former clients and hiring a private investigator to locate the former clients, the clients could not be found. The funds have recently been placed in an interest-bearing account pending discovery of the former clients’ current location. With the exception of the aforesaid matters, the parties stipulated that Hohertz has provided notice to clients and parties in litigation pursuant to C.R.C.P. 251.28(b) and C.R.C.P. 251.29(c) regarding the 1995 suspension, the 1996 suspension, and the 1999 suspension. Further, Hohertz has complied with the requirements of C.R.C.P. 251.29(d) regarding all three suspensions, and has paid the costs of each proceeding.

The misconduct which resulted in both the 1995 and 1996 suspensions can be characterized as a pattern of neglect of clients and their cases, failure to communicate with clients and deception of clients to conceal the neglect. For a period from approximately 1991 through 1995, Hohertz failed to timely address his clients’ needs, either failing to keep them adequately informed of his progress in resolving their legal concerns or misleading the clients by telling them he had accomplished certain tasks when in fact he had not. Indeed, both opinions imposing suspensions upon Hohertz rely, in part, upon prior instances of misconduct resulting in Letters of Admonition which reflect similar misconduct during the same approximate time frame.2

Evidence presented in the 1995 and 1996 disciplinary proceedings established that Hohertz suffered from major depression. The medical evidence presented in those proceedings and also in this proceeding established that his misconduct was caused by his mental condition. That condition weighed heavily in both the 1995 and 1996 suspension decisions.

The 1999 suspension arises from a different form of misconduct. In 1998, Hohertz had developed a personal relationship with a woman. Discussions of marriage had taken place. Unfortunately, the relationship deteriorated and during a visit to the woman’s apartment, she asked him to leave, Hohertz did not leave; rather, he stood in the doorway and prevented the woman from departing her residence. Hohertz was subsequently convicted of false imprisonment. Hohertz self-reported his misconduct and entered into a Conditional Admission of Misconduct with the Office of Attorney Regulation Counsel. The Conditional Admission acknowledged that the misconduct violated The Colorado Rules of Professional Conduct ("Colo. RPC") 8.4(b)(commission of a criminal act which reflects adversely upon an attorney’s honesty, trustworthiness or fitness to practice law).

Following the 1995 suspension, Hohertz’s personal life began a downward spiral. Although Hohertz commenced therapy following the 1995 suspension proceedings, his increasing depression caused him to eventually withdraw from therapy. Thereafter he suffered at least one major depressive episode. In approximately 1997, Hohertz resumed individual therapy and for the last eighteen months has also regularly participated in group therapy. Both his treating therapist and a psychiatrist who met with Hohertz on five occasions and conducted an independent medical evaluation agree that Hohertz suffers from major depression and will require long-term therapy treatments. They also agree that Hohertz has made significant progress in his recovery, his depression is presently under control, he has developed an ability to assess his own shortcomings, he has substantially improved his accountability for his conduct and he has made sufficient progress to reasonably and reliably exercise professional judgment. Both medical professionals caution, however, that episodes of depression may recur and recommended that Hohertz continue with the individual and group therapy for at least two years. During the lengthy course of his therapy, Hohertz has declined to take medication notwithstanding the recommendation of his treating professionals.

Following the 1998 domestic incident, Hohertz and his therapist broadened the scope of his therapy to include not only depression but his response to interpersonal relationships as well. Both the independent medical evaluation and the report of his treating therapist conclude that Hohertz has made improvement in his response to others.

Hohertz expressed and demonstrated genuine recognition of and remorse for his prior misconduct. He recognizes the need for continuing therapy, has adopted realistic goals in his recovery and has openly confronted the shortcomings in his personal and professional life which resulted in his prior discipline.

From 1996 to the present, Hohertz has worked as an assistant to a practicing attorney in Colorado Springs without incident. Under supervision, he has met with clients, communicated with clients on behalf of his employer, prepared pleadings, conducted legal research and followed office procedures designed to avoid neglect. Hohertz has maintained his competency by reading new case law on a weekly basis and has taken forty-nine hours of continuing legal education in those areas of the law in which his prior misconduct arose.3

Patrick Buckingham, a Colorado Springs lawyer, has employed Hohertz for four years and works with him on a daily basis. Buckingham has observed Hohertz prepare pleadings, conduct research and prepare briefs, communicate with clients and manage a busy law office. Buckingham expressed the opinion that Hohertz has maintained his competency in the law and is currently familiar with the law and the applicable rules of procedure. Buckingham also expressed the opinion that Hohertz now handles stress well and is capable of reentering the practice of law.

II. CONCLUSIONS OF LAW

C.R.C.P. 251.29(b) sets forth the test which must be met during a reinstatement proceeding in order to authorize reinstatement to the practice of law. It provides, in relevant part:

An attorney who has been suspended . . . must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.4

Thus, an attorney who has been suspended from the practice of law must bear the burden of proving that he or she is: (1) rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (3) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized.

In deciding whether the attorney has been rehabilitated, the fact finder must examine the prior instances of misconduct which resulted in the requirement for a reinstatement proceeding.5 See C.R.C.P. 251.29(c)(5); Goff v. People, No. 00PDJ033, slip op. at 11 (Colo. PDJ August 4, 2000), 29 Colo. Law. 9, ___ (October 2000)(citing Tardiff v. State Bar, 612 P.2d 919, 923 (Cal. 1980) and Roth v. State Bar, 253 P.2d 969, 972 (Cal. 1953)(holding that in an application for reinstatement . . . the proof presented must be sufficient to overcome the court’s former adverse judgment of [the] applicant’s character)). The prior instances of Hohertz’s misconduct which gave rise to the requirement of a formal reinstatement proceeding consist of neglect, failure to communicate and deceit associated with his neglectful conduct. The findings contained in both the 1995 and 1996 suspension orders attribute the cause of that misconduct to Hohertz’s depression and mental condition. Accordingly, the focus of inquiry in this proceeding must be Hohertz present mental condition.

For nearly two years Hohertz has undergone intensive therapy, individual and group, to recover from his depression. Both his medical provider and the independent medical evaluator opined that he has recovered sufficiently to exercise professional judgment and is capable of resuming and satisfying his professional responsibilities. Both, however, have recommended that Hohertz remain in therapy for at least two years to prevent a recurrence of the condition that caused his earlier misconduct. Independent, non-medical evidence established that Hohertz is capable of and has been satisfactorily performing legal research, drafting, client contact and law office management.

Hohertz has maintained his competency to practice law by keeping current on developments in the law, actively participating in a busy law office environment under the supervision of a licensed attorney, and pursuing Continuing Legal Education courses. In his testimony before the PDJ and Hearing Board and in therapy sessions with his treating medical professionals, Hohertz openly acknowledged responsibility for his prior misconduct and demonstrated an understanding of the seriousness of that misconduct. With one exception, his conduct since the imposition of the three-year suspension has been free of misconduct.

The witnesses who testified on Hohertz’s behalf all concurred that he has modified his character and manner of dealing with adversity in such a fashion that similar misconduct is not likely to be repeated. He is now committed to a renewed interest of assisting others in their difficulties and is cognizant that such assistance must be in accord with the requirements of the profession.

Therefore, the evidence is sufficient to establish that Hohertz has been rehabilitated from the conditions which resulted in the necessity for this reinstatement proceeding.

Moreover, the evidence established that Hohertz is fit to practice law. Whether an attorney seeking reinstatement to practice law is fit requires a broader analysis than rehabilitation. See Goff, No. 00PDJ023, slip op. at 13, 29 Colo. Law. 9, ___, (holding that C.R.C.P. 251.29(c) places the burden upon the disciplined attorney not only to establish rehabilitation but also to establish that he is fit to practice law). Even though a petitioning attorney may be rehabilitated from those events or conditions which precipitated the necessity for a reinstatement proceeding, there may be other factors present, such as a lengthy history of repetitive minor misconduct not of sufficient severity to require a reinstatement proceeding, which suggest the attorney is not fit to practice. Such is not the case here. Each of Hohertz’s five prior Letters of Admonition arose out of misconduct strikingly similar to the misconduct which resulted in his three-year suspension. Although the testimony presented by the medical professionals does not directly attribute that series of minor incidents of misconduct to his depressive condition, the incidents did occur during approximately the same time frame and were consistent with the type of extensive and severe misconduct which was found to be attributable to his mental condition. It is, therefore, reasonable to infer that the condition which caused the prior minor misconduct was the same mental condition and has been adequately addressed by the intervening treatment.

Finally, the 1998 domestic violence event which resulted in a criminal conviction and additional attorney discipline must be examined. That misconduct is not the event for which Hohertz must prove rehabilitation, but is a factor which must be considered in making a determination of fitness to practice. Hohertz admitted that he violated Colo. RPC 8.4(b) (commission of a criminal act which reflects adversely on his fitness to practice law) as a result of his conviction of false imprisonment, §18-3-303, 6 C.R.S. (1999), a misdemeanor and self-reported this matter to the Office of Attorney Regulation Counsel. As a result of that conviction, Hohertz was sentenced to a twenty-four month period of supervised probation, he was required to pay court costs of $138, and he was required to engage in a lengthy period of therapy. Hohertz has complied with all conditions of his probation. The scope of therapy which Hohertz has been receiving for his depression has been broadened to address the underlying factors which precipitated this isolated event. Although the events resulting in the criminal conviction did adversely reflect upon Hohertz’s fitness to practice law, his subsequent conduct, including the acceptance of treatment, full compliance with the requirements of the supervised probation and open acknowledgment of the wrongfulness of his actions are sufficient to find that he is presently fit to practice law.

Under the factors set forth in People v. Klein, 756 P.2d 1013, 1016 (Colo. 1998), the PDJ and Hearing Board find that Hohertz has established by clear and convincing evidence that he is rehabilitated, possesses the requisite ability and professional competence to practice law, and is presently fit to practice law. 6

The PDJ and Hearing Board are aware that Hohertz’s mental condition may recur absent continuing attention, and are also cognizant of their duty to protect the public interest in allowing Hohertz to resume the practice of law. In accordance with that responsibility and pursuant to C.R.C.P. 251.29(e), the PDJ and Hearing Board impose the following conditions upon Hohertz as conditions on his resumption to the practice of law:

  1. For a period of one year Hohertz shall engage in the practice of law in a law office setting which includes at least one other attorney and adequate support staff to insure the free exchange of ideas and advice.

  2. Hohertz will secure the services of an attorney licensed to practice law in the State of Colorado, acceptable to the Office of Attorney Regulation Counsel, who has been practicing law for not less than five years to serve as an attorney monitor. The conditions set forth in paragraph 15 of the appendix to People v. Hohertz, 926 P.2d 560, 566 (Colo. 1996) with regard to the law practice monitor shall apply.

  3. Hohertz will submit to a psychiatric re-evaluation with Cynthia Rose, M.D., or such other psychiatrist approved by the Office of Attorney Regulation Counsel eighteen months following the issuance of this Order to reappraise his professional and personal progress. A copy of the re-evaluation report shall be provided to the Office of Attorney Regulation Counsel. In the event other psychiatric-related problems come to the attention of the Office of Attorney Regulation Counsel prior to the re-evaluation, the Office of Attorney Regulation Counsel may file a motion with the Presiding Disciplinary Judge seeking earlier re-evaluation.

  4. A licensed psychiatrist of Hohertz’s choice who has been approved by the Office of Attorney Regulation Counsel shall monitor Hohertz’s psychiatric adjustment to the practice of law for a period of three years. The conditions set forth in paragraph 16 of the appendix to People v. Hohertz, 926 P.2d at 566 with regard to the psychiatric monitor shall apply.

  5. Hohertz will remain in group therapy for one year. Hohertz shall increase the frequency of his individual therapy and shall remain in individual therapy for one year. Hohertz shall comply with all therapy recommendations, including recommendations involving prescribed medications. In the event either Hohertz’s individual or group therapist recommends additional attendance beyond the one year term set forth herein, Hohertz shall comply with such recommendation pending further order of court.

  6. All costs and expenses necessary for compliance with the requirements set forth in this Order shall be the sole responsibility of Hohertz.

  7. Hohertz shall pay the costs of these proceedings. The People shall file a Statement of Costs with the PDJ within ten (10) days of the date of this Order. Hohertz will have five (5) days thereafter to file a Response to the Statement of Costs.

III. ORDER OF REINSTATEMENT

It is therefore ORDERED:

ROBERT MELVIN HOHERTZ, registration number 13910, is REINSTATED to the practice of law effective the 31st day of August, 2000, subject to the conditions set forth herein.

_______

1. Both the 1995 and 1996 suspension decisions required the inclusion of certain conditions upon reinstatement.

2. By the time of the issuance of the opinion which imposed the 1996 suspension, Hohertz had received five Letters of Admonition.

3. All of the Continuing Legal Education courses Hohertz took were by home-study and he completed them within a one-month period of time shortly before his first Petition for Reinstatement was filed. Consequently, the PDJ and Hearing Board placed substantially less weight upon that evidence of competency than the testimony of the attorney who employs him.

4. Reinstatement proceedings are conducted before a hearing board as required by C.R.C.P. 251.29(d).

5. Not all misconduct requires a formal reinstatement proceeding. See C.R.C.P. 251.29(b).

6. The Supreme Court in Klein stated that determination of whether an attorney has established rehabilitation must include:

[C]onsideration of numerous factors bearing on the respondent’s state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the respondent, the personal and community service aspects of the respondent’s life, and the respondent’s recognition of the seriousness of his previous misconduct. 756 P.2d at 1016.


Case No. 99PDJ034

The People of the State of Colorado,

Complainant,

v.

Robert Karl Lynch,

Respondent.

August 30, 2000

Original Proceeding in Discipline before the
Presiding Disciplinary Judge

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board member Thomas R. French and Daniel A. Vigil, both members of the bar.

SANCTION IMPOSED: NINETY-DAY SUSPENSION

A sanctions hearing was held on November 17, 1999, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Thomas R. French and Daniel A. Vigil, both members of the Bar. Christyne A. Czarnowsky, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Robert Karl Lynch ("Lynch") did not appear either in person or by counsel.

The People filed the Complaint and Citation in this matter on March 3, 1999. The Complaint and Citation were served upon respondent by certified mail on March 4, 1999, mailed to the respondent’s registered business, home and last known addresses in compliance with C.R.C.P. 251.32(b), C.R.C.P. 251.14(b) and C.R.C.P. 227(A)(2)(a) and (b). On April 29, 1999, Lynch was personally served with the Citation and Complaint in San Diego, California. Lynch failed to answer the allegations advanced in the Complaint, and default was entered against him on August 18, 1999, as to both the factual allegations and each of the charges set forth in counts one through six of the People’s Complaint. Notice of the sanctions hearing was mailed to Lynch on August 26, 1999. At the commencement of the hearing, the PDJ set aside the default as to count 5 (violation of C.R.C.P. 227(A)(1)(a) for failure to pay registration fees and violation of C.R.C.P. 227(A)(2)(b) for failure to file a change of address with the Office of Attorney Registration).

The People’s Complaint charged Lynch with a violation of The Colorado Rules of Professional Conduct ("Colo. RPC") 1.3 (neglect of a legal matter) in count one; a violation of Colo. RPC 8.4(d) (conduct that is prejudicial to the administration of justice) in count two; a violation of Colo. RPC 1.4(a) (failure to communicate with a client) in count three; a violation of Colo. RPC 1.16(d) (failure to take steps reasonably practicable to protect a client’s interests) in count four; a violation of C.R.C.P. 251.5(c) (alleging failure to comply with the applicable rules of civil procedure [C.R.C.P. 227(A)(1)(a) and C.R.C.P. 227(A)(2)(b)]) in count five, and a violation of C.R.C.P. 251.5(d)(failure to respond without good cause shown to a request by the Regulation Counsel) in count six. Michael H. Williams, an investigator with the Office of Attorney Regulation Counsel, and Randy Kent Harvey testified for the People.

The People’s exhibits 1 through 4 were offered and admitted into evidence. The PDJ and Hearing Board considered argument of counsel, the facts and charges established by the entry of default, assessed the testimony of the witnesses, reviewed the exhibits admitted, and made the following findings of fact, which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Robert Karl Lynch has taken and subscribed the oath of admission, was admitted to the bar of this court on October 21, 1993 and is registered upon the official records of the Supreme Court, attorney registration number 23294. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b). On November 1, 1998, Lynch was suspended by the Supreme Court for failure to pay his attorney registration fees and file a change of address. Lynch is subject to the jurisdiction of the Supreme Court during the pendency of his administrative suspension. People v. Richards, 748 P.2d 341, 333 (Colo. 1987).

Randy Kent Harvey ("Harvey") retained Lynch and paid him $950 for legal representation in a post-dissolution hearing on Harvey’s motion to increase his parenting time with his daughter. At the conclusion of the post-dissolution hearing on March 23, 1998, the court ordered Lynch to prepare an order for the court’s signature. Lynch failed to do so. Following the hearing, Lynch failed to respond to numerous phone calls and other messages from Harvey concerning the status of the order until September 1998, when, during a conversation with Harvey, Lynch promised to complete the order. He again failed to do so. As a result of Lynch’s failure to draft a written order, his client was unable to enforce the court’s verbal order allowing him increased parenting time. Thereafter, Lynch disconnected his phone and did not respond further to Harvey. Lynch’s failure to draft the written order caused Harvey to locate and employ another attorney at additional expense and required an additional court hearing. During the course of Lynch’s representation, Harvey provided to Lynch original financial and other documents. Despite Harvey’s requests, Lynch failed to return the documents to his client. Harvey suffered injury as a result of Lynch’s conduct.

Lynch failed to cooperate with the Office of Attorney Regulation Counsel during the investigation of this matter. Additionally, Lynch failed to pay his attorney registration fees for 1997 and 1998, and failed to notify the Office of Attorney Registration of his change of address.

II. CONCLUSIONS OF LAW

A. The Harvey Matter

Lynch accepted funds from Harvey in the amount of $950 in exchange for his legal representation in a contested post-dissolution hearing concerning Harvey’s desire to increase his parenting time with his daughter. Although Lynch partially obtained the result desired by his client, he failed to obey the court’s directive to submit a written order for the court’s signature, constituting neglect of his client’s interests in violation of Colo. RPC 1.3 (neglect of a legal matter). Subsequent to the hearing, Lynch failed to respond to Harvey’s phone calls regarding the status of the order. At one point Harvey spoke to Lynch and Lynch promised to complete the order. Thereafter, Lynch failed to provide the order to the court or to his client and made no attempts to communicate with Harvey, in violation of Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information).

After employing successor counsel, an additional court hearing was required because of Lynch’s neglect. Such misconduct was prejudicial to the administration of justice in violation of Colo. RPC 8.4(d).1

The employment of successor counsel terminated Harvey’s attorney-client relationship with Lynch. As a result of that termination, Lynch was required to comply with the mandatory provisions of Colo. RPC 1.16(d)(upon termination, an attorney shall take steps to the extent reasonably necessary to protect his client’s interests). See People v. Hotle, No. 99PDJ038 slip op. at 4, n. 1 (Colo. PDJ November 16, 1999), 29 Colo. Law. 107, 108 (January 2000)(holding that even where the effective termination of the attorney-client relationship was not in conformity with the provisions of Colo. RPC 1.16(a) or (b), the provisions of Colo. RPC 1.16(d) still apply to the termination of that relationship). Lynch’s failure to return the requested documents or turn them over to successor counsel constituted a violation of Colo. RPC 1.16(d) and caused further injury.

At the sanctions hearing, the People argued that Lynch abandoned his client. C.R.C.P. 251.14(a), the rule that governs the contents of disciplinary complaints, provides in part:

(a) Contents of Complaint. The complaint shall set forth clearly and with particularity the grounds for discipline with which the respondent is charged and the conduct of the respondent which gave rise to those charges.

The rule requires that the charging document in a disciplinary case set forth both a factual basis for the charges and the legal basis upon which the People seek discipline. Procedural due process requires fair notice of the charge. People v. Chastain, No. GC98A53 (consolidated with No. GC98A59), slip op. at 5 (Colo. PDJ August 11, 1999), 28 Colo. Law. 137, 138 (October 1999), citing In the Matter of John Ruffalo, Jr., 390 U.S. 544, 550 (1968). Fair notice of the charge envisions not only a recitation of the facts revealing the offensive conduct but also the identification of the legal prohibition which proclaims such conduct violative of the rules applicable to a lawyer’s conduct. Ruffalo at 551; see e.g. In the Matter of Andrew L. Quiat, 979 P.2d 1029, 1038 (Colo. 1999). The Complaint does not meet this test. There are no substantive factual allegations or charges in the Complaint that would put Lynch on notice that he is being charged with abandonment of his client.

B. Failure to Cooperate

Lynch was properly served with the Citation and Complaint in this matter, both by certified mail and by personal service. Lynch had sufficient notice but failed to cooperate with the People in the investigation or in the subsequent proceeding. The investigator from the Office of Attorney Regulation Counsel expended considerable efforts in attempting to locate Lynch. Although he was personally served in San Diego, California, Lynch made no efforts to participate in these proceedings. Such misconduct provides grounds for discipline under C.R.C.P. 251.5(d).

C. Failure to Pay Registration Fees

Lynch failed to pay attorney registration fees for 1997 and 1998 pursuant to C.R.C.P. 227(A)(1)(a) which requires that every attorney admitted to practice in Colorado annually file a registration statement and pay registration fees. Additionally, Lynch failed to notify the Office of Attorney Registration of his change of address in violation of C.R.C.P. 227(A)(2)(b). C.R.C.P. 227(A)(4)(a) provides that any attorney who fails to timely pay attorney registration fees or file a change of address shall be summarily suspended. By Order dated November 1, 1998, the Supreme Court suspended Lynch for failure to pay the annual registration fees for 1997 and 1998. Lynch is therefore presently under administrative suspension.

In count 5, the People allege that Lynch’s failure to pay his attorney registration fees for 1997 and 1998, as required by C.R.C.P. 227(A)(1)(a) and his failure to file a change of address form with the Office of Attorney Registration as required by C.R.C.P. 227(A)(2)(b) constituted a failure to comply with The Colorado Rules of Civil Procedure and, therefore, C.R.C.P. 251.5(c) provides grounds for discipline.

C.R.C.P. 227(A)(1)(a) provides in part:

[E]very attorney admitted to practice in Colorado . . . shall annually file a registration statement and pay a fee . . . .

C.R.C.P. 227(A)(2)(b) provides:

Notification of Change. Every attorney shall file a supplemental statement of change in the information previously submitted, including home and business addresses within 30 days of such change.

C.R.C.P. 251.5 provides, in part:

Misconduct by an attorney, individually or in concert with others, including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship:

(c) Any act or omission which violates these Rules or which violates an order of discipline or disability.

The People assert that noncompliance with the requirements of C.R.C.P. 227(A)(1)(a) and C.R.C.P. 227(A)(2)(b) is misconduct subject to discipline under C.R.C.P. 251.5(c), which defines misconduct as "any act or omission which violates these Rules . . ." (emphasis added). The term "these Rules" is not defined in C.R.C.P. 251 et seq.

Prior case law, however, has recognized that the term "these Rules" contained in C.R.C.P. 251.5(c) encompasses all of the Rules of Civil Procedure.2 People v. Rodgriguez, 889 P.2d 681, 683 (Colo. 1995)(attorney suspended for ninety days for, among other things, failing to engage in discovery); People v. Dixon, 616 P.2d 103, 103-104 (Colo. 1980)(attorney suspended for an indefinite period for, among other things, failure to comply with discovery requests). Therefore, the failure to pay registration fees and file a change of address form – both mandatory obligations set forth in the Rules of Civil Procedure — may constitute grounds for discipline. See People v. Gerdes, 891 P.2d 995, 997 (Colo. 1995)(finding a violation of C.R.C.P. 227(A)(2)(b) constitutes misconduct pursuant to prior C.R.C.P. 241.6(6));3 People v. Denton, 839 P.2d 6, 7 (Colo. 1992)(holding that attorney’s failure to notify court of change of address constitutes misconduct); People v. Dash, 811 P.2d 36, 37 (Colo. 1991)(approving the parties’ conditional admission of misconduct and holding that the attorney’s failure to notify the court of his change of address violated C.R.C.P. 227(A)(2)(b) and attorney’s failure to file annual registration violated C.R.C.P. 227(A)(1)(a) which constituted misconduct pursuant to prior C.R.C.P. 241.6(6)); People v. Garrett, 802 P.2d 1082, 1083 (Colo. 1990)(holding that the attorney’s violating C.R.C.P. 227(A)(2)(b) was grounds for discipline pursuant to prior C.R.C.P. 241.6(6); People v. Smith, 757 P.2d 628, 630 (Colo. 1988) (approving the parties’ conditional admission of misconduct for, among other violations, a violation of C.R.C.P. 227(A)(2)(b) and prior rule 241.6).

Lynch failed to comply with C.R.C.P. 227 for a two-year period while continuing to practice: he thus enjoyed the benefits of the law license while failing to share its burdens. Lynch’s failure to file a registration statement, pay the required registration fee and notify the Office of Attorney Registration of his change of address is misconduct for which discipline may be imposed under C.R.C.P. 251.5(c).4

III. IMPOSITION OF SANCTIONS

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

ABA Standards 4.42 states that suspension is generally appropriate when:

[a] a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client.

The Commentary to ABA Standards 4.42 provides that suspension should be imposed when a lawyer knows that he is not performing the services requested by the client, but does nothing to remedy the situation. Lynch was aware of his obligation to finalize and file the Order for the court’s signature, yet he neglected to do so. Having caused injury to his client by neglecting his case, Lynch caused further harm by failing to communicate with his client and failing to transfer the file to the client’s successor counsel. For this misconduct, the PDJ and Hearing Board find that a period of suspension is warranted. See People v. Stevenson, 980 P.2d 504, 505 (Colo. 1999)(attorney suspended for sixty days for neglect of one client, failing to communicate with one client, failing to ensure that a dissolution decree and final order were prepared and filed, and failing to cooperate with the Office of Attorney Regulation Counsel where attorney had no prior discipline); People v. Kardokus, 881 P.2d 1202, 1204 (Colo. 1994)(attorney suspended for thirty days for neglect of one client, charging an excessive fee, accepting $500 and failing to perform requested work, and failing to file dissolution of marriage documents); People v. Barr, 855 P.2d 1386, 1388 (Colo. 1993)(attorney suspended for ninety days for neglect of one client, failing to prepare a dissolution order, failing to communicate with a client, failing to comply with the Office of Attorney Regulation Counsel, and considering the mitigating circumstance of a mental condition of depression); People v. Crimaldi, 804 P.2d 863, 866 (Colo. 1991)(attorney suspended for sixty days for complete disregard of proceedings, neglect of one client, failing to carry out contract of employment, failing to return funds, engaging in dishonesty, failing to prepare wills over a one-year period, having indifference to making restitution); People v. Combs, 805 P.2d 1115, 1116 (Colo. 1991)(attorney suspended for forty-five days for neglect of one client, failing to seek client’s objectives, failing to carry out employment contract, neglecting to file petition for dissolution, and failing to refund fees); People v. Chappell, 783 P.2d 838, 840 (Colo. 1989) (attorney suspended for forty-five days for neglect of one client, failing to seek objectives of client, failing to pay funds over to client, performing initial work but failing to revise separation agreement, failing to submit separation agreement to court, and failing to cooperate with the Office of Attorney Regulation Counsel).

The PDJ and Hearing Board considered matters in mitigation and aggravation pursuant to ABA Standards 9.3 and 9.2 respectively. By way of aggravation, Lynch engaged in bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, id. at 9.22(e), and he refused to acknowledge the wrongful nature of his conduct, id. at 9.22(g). In mitigation, the PDJ and Hearing board considered Lynch’s absence of a prior disciplinary record, id. at 9.32(a). Standing alone, this mitigating factor is not enough to warrant lessening the sanction.

Lynch’s failure to pay his annual attorney registration fee or file the required change of address form would not ordinarily justify a disciplinary suspension. However, it does warrant that the disciplinary suspension arising from the other charges shall commence following the completion of the administrative suspension already in place.

IV. ORDER

It is ORDERED as follows:

  1. That Robert Karl Lynch, registration number 23294, is SUSPENDED from the practice of law for a period of ninety days. The ninety day period of suspension shall commence upon the date Lynch’s administrative suspension is terminated by Order of the Supreme Court;

  2. Lynch is Ordered to pay the costs of these proceedings within sixty (60) days of the date of this Order;

  3. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

_______

1. People v. Johnson, No. 99PDJ036, slip op. at 3 (Colo. PDJ December 17, 1999) 29 Colo. Law. 113, 114 (February 2000)(finding a violation of Colo. RPC 8.4(d) where an attorney directly delayed and altered the course of court proceedings concerning an income assignment and thereby prejudiced the administration of justice); People v. Hotle, No. 99PDJ038 slip op. at 5 (Colo. PDJ November 16, 1999), 29 Colo. Law. 107, 108 (January 2000)(holding that a violation of Colo. RPC 8.4(d) requires proof of some nexus between the conduct charged and an adverse effect upon the administration of justice); People v Wright, No. GC98C90 slip op. at 8, 9 (Colo. PDJ May 4, 1999), 21 Colo. Law. 154, 155 (September 1999)(finding a violation of Colo. RPC 8.4(d) for attorney’s conduct which resulted in a direct disruption of pending proceedings).

2. C.R.C.P. 227 is located in Chapter 18 "Rules Governing Admission to the Bar." The note to Chapter 18 provides that "Rules 201 to 227 are a part of the Colorado Rules of Civil Procedure."

3. Replaced by C.R.C.P. 251.5(c) effective January 1, 1999.

4. At the conclusion of the sanctions hearing, the Office of Attorney Regulation Counsel was asked to submit authority regarding the propriety of imposing both an administrative suspension and a disciplinary suspension for the same conduct. The Assistant Regulation Counsel provided an extensive analysis for consideration by the PDJ and Hearing Board. The PDJ and Hearing Board have concluded, however, that since Lynch did not participate in these proceedings nor object to consideration of a disciplinary sanction for his failure to comply with the attorney registration rules, that issue is not before them for decision and will not be addressed in this opinion.


Case No. 99PDJ072

The People of the State of Colorado,

Complainant,

v.

Robert J. Weisbard,

Respondent.

August 22, 2000

Original Proceeding in Discipline before the
Presiding Disciplinary Judge

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, B. LaRae Orullian, a representative of the public, and Helen R. Stone, a member of the bar.

SANCTION IMPOSED: EIGHTEEN MONTH SUSPENSION

A sanctions hearing was held on January 18, 2000, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, B. LaRae Orullian and Helen R. Stone. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). The respondent Robert J. Weisbard ("Weisbard") appeared pro se, extensively cross-examined the People’s witnesses and testified on his own behalf.

I. MOTION TO SET ASIDE DEFAULT

Upon the People’s motion, on September 22, 1999, the PDJ granted default on all of the charges set forth above with the exception of the following: the alleged violation of Colo. RPC 1.3 in claims two and seven, the alleged violation of Colo. RPC 1.4(a) in claim two, and the alleged violation of Colo. RPC 8.4(c) in claim eight.

On March 3, 2000, more than a month after the sanctions hearing, Weisbard retained counsel, moved to set aside the default on the basis of excusable neglect and sought leave to file an Answer. Presentation of testimony and oral argument on the motion was held on May 22, 2000. Weisbard argued that his temporary inability to cope with the disciplinary process constituted excusable neglect. He alleged that in August or September 1998, he began suffering personal and emotional problems, including significant marital problems. Weisbard’s marital therapist identified symptoms of depression which, in Weisbard’s view, contributed to his progression into disregard of his responsibilities in the disciplinary process. Weisbard found that he was unable to cope with his disciplinary difficulties, and hoped that the problems would disappear. The People argued that Weisbard has failed to establish the level of excusable neglect required to set aside the default, and that doing so would be inequitable since a full hearing has already transpired and that the witnesses who dedicated their time to testify would be prejudiced.

C.R.C.P. 251.15(b) provides:

[A] respondent who fails to file a timely answer may, upon a showing that the failure to answer was the result of mistake, inadvertence, surprise, or excusable neglect, obtain leave of the Presiding Disciplinary Judge to file an answer.

The motion [to set aside default judgment] is . . . addressed to the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion. See C.R.C.P. 55(c); Sumler v. District Court, 889 P.2d 50, 56 (Colo.1995). The trial court may set aside an entry of default for "good cause shown," and if judgment has entered on the default, the court may set it aside in accordance with C.R.C.P. 60(b). Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348, 1351 (Colo. App. 1997). In the context of disciplinary proceedings, C.R.C.P. 251.15(b) should be read together with C.R.C.P. 55(c). See C.R.C.P. 251.18(d). A motion to set aside a default under C.R.C.P 55(c) and a motion to vacate a judgment under C.R.C.P. 60(b) on the basis of excusable neglect are sufficiently analogous to justify application of the same standards to either motion. Dunton, 942 P.2d at 1351. In considering either type of motion, the trial court should base its decision on the following three criteria: (1) whether the neglect that resulted in the entry of judgment by default was excusable; (2) whether the moving party has alleged a meritorious defense, and (3) whether relief from the challenged order would be consistent with considerations of equity. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo.1986). The failure of the movant to satisfy any one of them justifies the denial of the motion. Id. The party seeking relief has the burden of establishing grounds for relief by clear, strong, and satisfactory proof. Dunton, 942 P.2d at 1351.

In general, excusable neglect involves unforeseen circumstances which would cause a reasonably prudent person to overlook a required act in the performance of some responsibility. Colorado Dept. of Public Health and Environment v. Caulk, 969 P.2d 804, 809 (Colo. App. 1998). Failure to act because of carelessness and negligence is not excusable neglect. Id., citing Messler v. Phillips, 867 P.2d 128, 136 (Colo. App.1993).

Weisbard’s allegation that beginning in August or September 1998 he began to have personal problems and suffer from depression is not sufficient to constitute "excusable neglect" under the precedent set forth above. The court file indicates that Weisbard acknowledged receipt of service of the Complaint and Citation in this matter on May 28, 1999, and that the Motion for Default was filed and mailed to Weisbard on July 13, 1999. Weisbard does not dispute that he had notice of the Motion for Default. The Order entering default issued on September 22, 1999. Weisbard thus had several months in which to respond to complainant’s Motion. Similarly, Weisbard had several months between the time the Motion for Default was granted and the sanctions hearing on January 18, 2000 to file a motion to reconsider. Further, when he appeared pro se at the hearing, he did not request that the PDJ set aside the default. Therefore, Weisbard had ample opportunity before and after the entry of default to address the issue, and made no attempt to do so at the hearing. Rather, he waited more than a month following the sanctions hearing.

Further, Weisbard’s personal and emotional problems did not rise to such a level as to prevent Weisbard from practicing law during the relevant time period. He was able to function concerning other matters and was therefore not so incapacitated as to make him unable, if he had so chosen, to overcome his difficulties responding to the disciplinary matters. There is surely no respondent attorney who finds the disciplinary process enjoyable; it is undoubtedly emotionally challenging to each attorney involved. Were the PDJ to grant the within motion based on the evidence and pleadings presented, any attorney who could not bring himself or herself to face the proceedings would not be required to fulfill the affirmative obligation to do so.

Weisbard’s argument to set aside the default entered is inadequate to establish excusable neglect. In the Matter of Alfred J. Turk, III, 471 S.E. 2d 842, 844 (Ga. 1996)(holding that the respondent attorney’s failure to file an answer to a disciplinary complaint was a result of personal problems, numerous office moves, improper calendaring, misunderstanding of the bar rules, and preoccupation with a prior disciplinary proceeding did not constitute "excusable neglect" which would warrant the setting aside of a default judgment against him). The Turk court noted that the respondent attorney’s moving to set aside the default in the disciplinary proceeding evidenced conduct "similar to and consistent with his previous violations involving his clients." Id. at 844. The same is true here. Weisbard delayed in addressing his responsibilities towards the disciplinary process the same way he delayed in responding to clients’ demands for the return of their funds and their files. An attorney has an affirmative duty to cooperate in the disciplinary process and if they fail to comply with this imperative, they must justify their failure. In the Disciplinary Matter Involving Robert M. Beconovich, 884 P.2d 1080, 1083 (Ala. 1994)(refusing to set aside order deeming complaint admitted where attorney failed to file an answer). Having found that Weisbard has failed to establish excusable neglect, the PDJ need not complete the analysis set forth in Buckmiller, supra, as to whether Weisbard has raised a meritorious defense and whether relief from the entry of default would be consistent with considerations of equity. Accordingly, Weisbard’s Motion to Set Aside Entry of Default and his request for leave to file an Answer is denied.

At the sanctions hearing, the People’s Exhibits 1 through 3 and Respondent’s Exhibit A were offered and admitted into evidence. The PDJ and Hearing Board heard testimony from Fara S. Mawhinney and Beverly Kay Hammons. The PDJ and Hearing Board considered argument of the parties, the facts established by the entry of default, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence:

II. FINDINGS OF FACT

Robert J. Weisbard has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 27, 1988, and is registered upon the official records, attorney registration number 18038. Weisbard is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Background

Weisbard and Fara Schneider Mawhinney ("Mawhinney") formed a limited liability company (the "LLC") in 1995. The original intent of the parties in creating the LLC was to share advertising and office expenses, but not clients or client-generated income. In January 1997, Mawhinney and Weisbard entered into a verbal agreement that the proceeds from all matters accepted on an hourly basis by the LLC subsequent to that date would be shared between the two attorneys. In June 1998, a dispute arose over the proceeds of a settlement resulting from a matter involving two clients which Mawhinney handled on a contingent fee basis. After paying the LLC’s paralegal a bonus of $3,500, Mawhinney deposited the remainder of the $20,000 contingent fee into a separate account rather than the LLC’s account. Mawhinney believed the settlement proceeds should not be shared with Weisbard because the matter did not fall within the scope of the verbal agreement: she accepted the case prior to the agreement, and she handled the matter on a contingency fee basis. Weisbard discovered that the contingent fee had not been placed in the LLC account, and, while Mawhinney was on vacation, changed the locks on the office. He took control of the LLC’s operating and trust accounts amounting to approximately $20,000, removed the funds and placed them in a new trust account with only his name on the account. Weisbard did not disclose to Mawhinney the whereabouts of the new trust account.

Numerous clients were impacted as a result of the LLC’s breakup.

Claim One: the Travis Matter

Mary Travis ("Travis") retained Weisbard in April 1997 to handle an estate matter. She paid him a retainer in the amount of $2,000. Subsequently, Weisbard failed to respond to telephone calls from Travis regarding the status of her case. In July 1998, Travis advised Weisbard that she wanted Mawhinney to represent her. As of June 1998, Travis had a credit balance of $723.07 with the LLC, and in July, Travis wrote to Weisbard demanding a refund of the balance in her account as well as the return of her documents. Weisbard advised Travis that the LLC was dissolving and that an accounting was being prepared. He stated that a refund would not be forthcoming until he obtained an accounting. Despite repeated requests, Travis did not receive her refund until February 1999, and never received an accounting. Weisbard failed to return the documents Travis requested until some five months after they were requested.

Claim Two: the Hammons Matter

In February 1998, Beverly Kay Hammons ("Hammons") hired Weisbard to modify a separation agreement. She paid him a retainer in the amount of $1,750. On March 30, 1998, the court ordered Weisbard to respond to the petition to revise the separation agreement on or before April 15, 1998. Weisbard mailed the response to the court on April 15, 1998. On April 20, 1998, the court issued an order stating that no response had been received from Hammons and granted the petition. Weisbard filed a motion for reconsideration which was denied by the court. For a two-month period thereafter, Hammons repeatedly asked Weisbard to refund her payment and return all of her documents. Weisbard failed to do so. Hammons hired a new attorney. After Hammons filed a complaint with the Office of Attorney Regulation Counsel, Weisbard sent her a final statement of charges, indicating she was owed a refund in the amount of $186.50. Hammons brought suit in small claims court for, among other claims, the fees she had paid Weisbard. In attempting to resolve the small claims suit, Weisbard offered to refund the $186.50 to Hammons in return for a complete release. Hammons refused. The small claims suit case was eventually dismissed because of Hammons’ failure to comply with a procedural requirement.

As of the date of the sanctions hearing, Weisbard had failed to refund that amount to Hammons.1 Hammons suffered serious injury as the result of Weisbard’s conduct.

Claim Three: the Remus Matter

In April 1998, Lea Remus ("Remus") retained Weisbard to represent her in her dissolution of marriage. She paid him a retainer in the amount of $2,200. Remus received notice in June 1998 that the firm was dissolving and that she could choose either Weisbard or Mawhinney to represent her, and she chose Mawhinney. Mawhinney informed Remus that $1,596.54 of her retainer remained in the LLC trust account. In July 1998, Remus requested that Weisbard refund that amount. Two weeks later, Weisbard advised Remus that he could not issue a refund until an accounting of the LLC funds had been completed. Remus did not receive a refund until some seven months later. As of mid-April 1999, Remus had not received an accounting.

Claim Four: the Shefrin Matter

In June of 1998, Weisbard filed a civil complaint against Mawhinney, seeking, among other things, his share of the disputed contingent fee settlement proceeds. In the course of those proceedings, Weisbard informed Mawhinney’s attorney, Bradley N. Shefrin, that unless the money in dispute was returned to him, he would seek to file criminal charges and a disciplinary complaint against Mawhinney. Weisbard sent correspondence to Mawhinney’s attorney in which he stated:

[I]n the event that the entire fees in the amount of $20,000 are not immediately returned to the firm by 3:00 p.m. today, I must then consider Ms. Mawhinney’s actions as the intent to permanently deprive the firm of such funds and will be forced to contact the disciplinary counsel of the Colorado Supreme Court and the local law enforcement agencies of a potential criminal act.

Claims Five and Six: the Smith and Walker Matters

As a result of Weisbard’s preventing Mawhinney’s access to the LLC’s files, two clients were impacted. In August 1998, Terry Smith ("Smith") faxed a letter to Weisbard requesting that he deliver her file to Mawhinney. In the suit between Weisbard and Mawhinney, Weisbard was ordered to produce the Smith file. Weisbard failed to produce the file. A second client, Maryanne Walker ("Walker"), repeatedly requested that Weisbard provide Mawhinney with her file. Weisbard failed to do so. When Mawhinney requested the files, Weisbard wrote to Mawhinney’s attorney saying that he would expect Mawhinney to pay for a staff person to search for them. Rather than pay Weisbard’s demand, Mawhinney entered the LLC’s storage locker in November 1998 and located and retrieved both the Smith and Walker files. Weisbard’s failure to timely provide the files to those clients substantially delayed both cases.

Claim Seven: the Barton Matter

Kenneth Barton ("Barton") hired Weisbard in December 1997 to represent him in a child support matter. He paid a retainer in the amount of $2,000. Thereafter for a period of six months, Barton, who lives in Oklahoma, tried to contact Weisbard about his case, but Weisbard did not return his calls. During the period of time Weisbard represented Barton, he performed minimal work on the file. When Barton learned about the LLC’s breakup, he chose to employ Mawhinney rather than Weisbard. In July 1998, Barton asked Weisbard to return his file and the unearned portion of his retainer which was in the amount of $1,345.98 according to Barton’s last billing statement. The Barton file was later partially recreated by Mawhinney and eventually provided by Weisbard. The delay in obtaining the original documents from the Barton file delayed the final resolution of that case. Although Weisbard had not returned Barton’s unearned fee as of the date of entry of default, those funds had been refunded by the date of the sanctions hearing.

Claim Eight: the Trust Account Matters

On or about June 12, 1998, Weisbard wrote a check from the new trust account to his operating account in the amount of $3,500. The check did not indicate that the transfer was for earned fees. On July 31, 1998, Weisbard made a $2,000 deposit into the new trust account so that he could establish a new credit card merchant account.2 On or about August 3, 1998, Weisbard wrote a check from his trust account to Norwest Bank in the amount of $2,000 to purchase a certificate of deposit to be held by the bank as security for the new credit card merchant account. In September and October 1998, Norwest Bank deducted three payments in the amount of $84.93, $81.27 and $93.61 from Weisbard’s trust account for service fees on the credit card merchant account.

The Requests for Investigation

From December 1998 to February 1999, the Office of Attorney Regulation Counsel served notice of requests for investigation on Weisbard concerning the complaints filed by Barton, Smith and Walker with that office. Weisbard did not respond.

III. CONCLUSIONS OF LAW

The People’s complaint charged Weisbard with eight separate claims consisting of violations of The Colorado Rules of Professional Conduct ("Colo. RPC"): Colo. RPC 1.15(b) (Travis, Hammons, Remus, Barton, Smith and Walker claims); Colo. RPC 1.4(a) (Travis, Hammons and Remus claims); Colo. RPC 1.3 (Hammons and Barton claims); Colo. RPC 8.4(c) (Hammons, Barton and Trust Account claims); Colo. RPC 4.5(a) (Shefrin claim); Colo. RPC 1.15(a) (Trust Account claim); C.R.C.P. 251.10(a) (Smith, Walker and Barton claims), and C.R.C.P. 251.5(a)(Smith claim).

A. The Client Matters

An attorney has a professional duty, when so requested by a client, to render a full accounting and promptly return unearned funds to which the client is entitled. See Colo. RPC 1.15(b).3 The dispute between Mawhinney and Weisbard did not alter that professional duty. Disputes between lawyers in a law firm or other business combination do not alter the lawyers’ professional obligations to their clients under Colo. RPC 1.15(b). Because Weisbard had physical control of the clients’ funds, it was incumbent upon him to promptly account for the funds and refund those funds belonging to clients who demanded them. Weisbard’s efforts to delay the client refunds until such time as an accounting had been completed was protective of his interests in the financial dispute with his former partner but was inconsistent with his affirmative obligation to the clients.

In four separate matters, the Barton, Remus, Travis and Hammons claims, Weisbard violated Colo. RPC 1.15(b) by failing to promptly return the balance due on retainers owed to the clients, notwithstanding their request for the funds.

Colo. RPC 1.15(b) also requires that, upon request, an attorney will promptly deliver to the client all other property in the possession of the attorney to which the client is entitled. That requirement includes those portions of the client file to which the client is entitled. See CBA Ethics Comm. Formal Op. 104 (1999)(discussing the surrender of papers to the client upon termination of representation). In five separate matters (Travis, Hammons, Smith, Walker and Barton) Weisbard violated Colo. RPC 1.15(b) by ignoring clients’ requests for their files and failing to promptly assemble and transmit the clients’ files. Weisbard’s failure to promptly return the client files delayed the ability of at least Barton, Smith and Walker to resolve their cases and thereby caused injury.

In two separate matters, the Travis and Barton matters, Weisbard failed to return clients’ phone calls for substantial periods of time in violation of Colo. RPC 1.4(a).4 Further, he violated Colo. RPC 1.35 by failing to file a timely response in the Hammons matter. Although the Complaint charged that Weisbard neglected the Barton matter, no evidence was presented that Weisbard’s conduct with regard to Barton would constitute neglect. In the six-month period when Weisbard failed to communicate with Barton, there was no evidence that he was required to take action on behalf of his client and failed to do so. Nor was any evidence presented that the minimal work he did perform on that case during the relevant time frame reflected either a lack of diligence or promptness in the representation. Accordingly, the alleged violation of Colo. RPC 1.3 regarding the Barton claim is dismissed.

B. Additional Misconduct

The Complaint alleged that in the course of discussions regarding the civil matter Weisbard brought against Mawhinney, Weisbard threatened criminal or disciplinary action against Mawhinney unless the money in dispute was returned to him. Weisbard sent correspondence to Mawhinney’s attorney in which he stated:

[I]n the event that the entire fees in the amount of $20,000 are not immediately returned to the firm by 3:00 p.m. today, I must then consider Ms. Mawhinney’s actions as the intent to permanently deprive the firm of such funds and will be forced to contact the disciplinary counsel of the Colorado Supreme Court and the local law enforcement agencies of a potential criminal act.

Colo. RPC 4.5(a) provides:

A lawyer shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.

The Comment to the Rule states that:

Threats [of criminal, administrative or disciplinary charges] are prohibited if a purpose is to obtain any advantage in a civil Matter . . . . [T]he abuse of the judicial process is at its greatest when a threat of filing charges is used as a lever to obtain an advantage in a collateral, civil proceeding (emphasis in original).

The thrust of Weisbard’s demand in his letter to Mawhinney’s attorney — return the money or criminal and disciplinary complaints will be advanced — necessarily carries with it the implication that if the money is returned, the complaints will not be advanced. Consequently, Weisbard’s purpose in making the threat is clear: he sought to obtain an advantage in his civil dispute with Mawhinney and was willing to abuse the judicial process to gain that advantage. Weisbard’s threat to advance criminal and/or disciplinary charges against Mawhinney clearly violated Colo. RPC 4.5(a).

The Complaint alleged that Weisbard commingled personal funds with client funds in violation of Colo. RPC 1.15(a).6 At the time of the breakup of the LLC, Weisbard transferred funds from both the operating and trust accounts of the LLC to a new trust account in his name. As a result of his fee sharing agreement with Mawhinney, a portion of the funds in the old LLC operating account belonged to him. Consequently, when he combined the old LLC operating account with the old LLC trust account into a single new trust account, client funds were commingled with Weisbard’s personal funds and Colo. RPC 1.15(a) was violated. The evidence also established that after the new trust account was created Weisbard deposited $2,000 of his personal funds into the new trust account and thereafter wrote a check on the new trust account to purchase a certificate of deposit as security for a new credit card merchant account. The transfer of the $2,000 in personal funds through the trust account, of necessity, resulted in the commingling of Weisbard’s personal funds with client funds and is a separate violation of Colo. RPC 1.15(a).

Weisbard transferred $3,500 by check from the new trust account to the operating account, identified the transfer as a "trust transfer" and did not indicate on the check that the withdrawal from the trust account was for earned fees. In addition, Weisbard allowed Norwest Bank to withdraw a total of $259.81 from the trust account to pay fees on the new credit card merchant account. The Complaint contends that both of these events evidenced the utilization of unearned client funds and constituted dishonesty in violation of Colo. RPC 8.4(c). Neither the allegations advanced in the Complaint nor the evidence presented at trial, however, established by clear and convincing evidence that the $3,500 was not earned at the time of transfer. Merely alleging that the check utilized to transfer the $3,500 did not "indicate" that the funds were earned does not establish that they were not. More is required. Moreover, the allegations of fact set forth in the Complaint and deemed admitted by the entry of default established that Weisbard deposited funds from both the operating and trust accounts of the old LLC into the new trust account. Accordingly, some portion of the funds in the new trust account were funds belonging to Weisbard and not client funds. In order to establish that Weisbard’s conduct was dishonest and therefore violated Colo. RPC 8.4(c), the People must prove by clear and convincing evidence that some portion of the $3,500 consisted of client funds. They did not meet that burden.

The evidence was undisputed that Weisbard allowed Norwest Bank to deduct fees for the new credit card merchant account from funds on deposit in the new trust account. It is equally undisputed that the new account contained both client and operating funds from the old LLC accounts. Without evidence that the fees deducted by Norwest Bank were from funds clearly belonging to clients, it cannot be concluded that Weisbard allowed client funds to be improperly utilized to pay his personal expenses or that his conduct was dishonest.7 Accordingly, the alleged violation of Colo. RPC 8.4(c) in connection with the $3500 check and the merchant account fees is dismissed.

The Complaint also charged a violation of Colo. RPC 8.4(c)(dishonesty) in connection with Weisbard’s failure to refund $186.50 to Hammons. Weisbard acknowledged, in response to the disciplinary complaint made by Hammons, that he held $186.50 of her funds which were not earned. In connection with Hammons’ small claims suit, Weisbard refused to refund the $186.50 to Hammons until she granted him a complete release from claims which she might have against him. At the time of the sanctions hearing, Weisbard had not yet refunded the $186.50. Indeed, by way of mitigation, Weisbard contended at the sanctions hearing that his offer to refund the $186.50 in return for a release was an effort to remedy his misconduct. It is not. The $186.50 was never Weisbard’s property with which to bargain. Those funds belonged to Hammons and he had a professional duty to refund them on demand. His attempt to extract a release from Hammons in return for funds he was obligated to promptly convey to her is reprehensible. Weisbard’s failure to promptly refund the $186.50 to Hammons is a violation of Colo. RPC 8.4(c)(dishonesty).

The evidence presented at the sanctions hearing established that Weisbard knowingly placed his personal interests before those of his clients. Following the eruption of the dispute with Mawhinney, Weisbard used the clients to further his bargaining position with her. Although disagreements between lawyers in business combinations frequently occur, those disagreements may not be allowed to adversely affect the representation of clients.

Finally, Weisbard violated C.R.P.C. 251.10(a)8 by failing to respond to the Office of Attorney Regulation Counsel’s investigation regarding the Smith, Walker and Barton matters.

IV. SANCTIONS/IMPOSITION OF DISCIPLINE

Following the finding of misconduct, Beverly Hammons and Lee Remus, two of the complaining witnesses in this case, presented comments to the PDJ and Hearing Board regarding the form of discipline pursuant to C.R.C.P. 251.18(a).

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

ABA Standard 4.12 provides:

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.

ABA Standard 4.42 provides that suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client.

Both of the ABA Standards apply to Weisbard’s misconduct. Weisbard knew or should have known that he had a duty to return the funds and client files to the clients immediately when they were requested. His failure to do so, in at least two instances, caused significant delay to the clients’ resolution of their legal matters and thereby caused injury. Retaining client funds over a substantial period of time while informing the clients that the funds would be returned shortly with an accounting, and then failing to take steps to conclude the accounting in a prompt fashion resulted in injury to at least two of Weisbard’s clients. This conduct, taken together with Weisbard’s failure to return phone calls, neglect of the Hammons matter and commingling client funds with personal funds warrants a period of suspension. Weisbard’s threat of criminal charges or disciplinary action against Mawhinney in the course of a civil action in order to obtain an advantage also warrants a period of suspension.

The PDJ and Hearing Board considered factors in aggravation pursuant to ABA Standards 9.21. Weisbard had a dishonest or selfish motive, id. at 9.22(b); he demonstrated a pattern of misconduct, id. at 9.22(c); Weisbard’s conduct constituted multiple offenses, id. at 9.22(d); and by failing to respond to the requests for investigation in the Smith, Walker and Barton matters, Weisbard demonstrated bad faith obstruction of the disciplinary proceeding, id. at 9.22(e). Further, Weisbard had substantial experience in the practice of law, id. at 9.22(i), and demonstrated an indifference to making restitution to Hammons, id. at 9.22(j). Weisbard’s conduct regarding Mrs. Hammons was particularly egregious.9

At the sanctions hearing, Weisbard’s testimony was considered by the PDJ and Hearing Board solely in mitigation pursuant to ABA Standards 9.32. Weisbard did not have a prior disciplinary record, id. at 9.32(a). Weisbard argued that his personal and emotional problems significantly impacted his ability to respond to his client needs and prevented him from responding to the Office of Attorney Regulation Counsel’s requests for investigation. Weisbard acknowledged, however, that he made a conscious choice not to respond to the disciplinary complaints. Personal or emotional problems may be a mitigating factor pursuant to ABA Standards 9.32(c). Since the evidence is clear that Weisbard’s personal and emotional problems did not prevent him from continuing to practice law during the pendency of the disciplinary proceedings, the degree of mitigation arising from those personal and emotional problems is minimal.

Weisbard, although verbally expressing remorse, continued during the course of the sanctions hearing to lay blame for his misconduct upon others instead of accepting responsibility for his actions. He argued that no client was harmed by his actions, that the funds he withheld were in small amounts, and that all clients, with the exception of Hammons, had ultimately received their funds. He continued to argue that he was unaware he had possession of the client files, and for this reason did not return them to the clients. Once Weisbard had assumed control of the LLC, it was incumbent upon him to inventory the files. He did not. Weisbard’s argument that he was not aware that the files were in his possession in light of his failure to determine whether he had possession of them does not provide mitigation for his misconduct.

The clients were put at substantial disadvantage and exposed to potential injury as a result of the dispute between Weisbard and Mawhinney and Weisbard’s response to it. Weisbard’s attempted deflection of responsibility for his misconduct arising from that dispute to his former partner does not suggest any genuine measure of remorse on his part justifying reduction of the sanction. See ABA Standards 9.32(l).

The PDJ and Hearing Board find that Weisbard’s misconduct warrants a period of suspension. Weisbard’s commingling of funds, failing to return phone calls over an extended period of time to several clients, failing to return the clients’ files when requested, and failing to promptly return the clients’ balance of their retainers warrants a substantial period of suspension. People v. Paulson, 930 P.2d 582, 583 (Colo. 1997)(suspending attorney for one year and one day for, among other things, neglecting a legal matter in violation of Colo. RPC 1.3, failing to communicate with clients in violation of Colo. RPC 1.4(a), and failing to promptly deliver to the clients funds or other property the client is entitled to receive in violation of Colo. RPC 1.15(b)); People v. Fager, 925 P.2d 280, 282 (Colo. 1996)(attorney suspended for one year and one day for neglecting a legal matter in violation of Colo. RPC 1.3, failing to keep funds in a separate account and to maintain complete records of the funds in violation of Colo. RPC 1.15(a), failing to promptly return client property and funds upon request in violation of Colo. RPC 1.15(b) and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Colo. RPC 8.4(c)). An attorney’s threatening prosecution or a disciplinary action to gain an advantage in a civil proceeding also warrants a period of suspension. People v. Farrant, 852 P.2d 452, 454 (Colo. 1993)(attorney suspended for sixty days where he threatened criminal prosecution of principal of corporate client in order to induce principal to withdraw objection to application for attorney fees and to immediately pay fees solely to obtain advantage in civil matter).

The aggravating factors present in this case substantially outweigh the mitigating factors. Weisbard’s lack of genuine remorse indicates a failure to recognize the seriousness of his misconduct and is a significant consideration in arriving at the appropriate discipline.

V. ORDER

It is therefore ORDERED:

  1. Robert J. Weisbard, registration number 18038, is suspended from the practice of law for a period of eighteen months effective thirty-one days from the date of this Order;

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

  3. The alleged violations of Colo. RPC 1.4(a) in the Hammons claim (claim two); Colo. RPC 1.3 in the Barton claim (claim seven), Colo. RPC 8.4(c) in the Trust Account claim (claim eight), are dismissed.

_______

1. At oral argument on the motion to set aside default, it was represented to the PDJ that Weisbard had recently refunded the $186.50. The People neither alleged nor argued that Weisbard’s retention of the $186.50 constituted conversion.

2. The LLC’s credit card merchant account had previously been personally guaranteed by Mawhinney, who withdrew her guarantee upon the breakup of the LLC.

3. Colo. RPC 1.15(b) provides:

Upon receiving funds or other property in which a client or a third person has an interest, an attorney shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, render a full accounting regarding such property.

4. Colo. RPC 1.4(a) provides:

A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

Weisbard was also charged with a violation of Colo. RPC 1.4(a) in the Hammons matter. No evidence was introduced supporting that charge. Accordingly, the alleged violation of Colo. RPC 1.4(a) in the Hammons matter is Dismissed.

5. 18 Colo. RPC 1.3 provides:

A lawyer shall act with reasonable diligence and promptness in representing a client. A lawyer shall not neglect a legal matter entrusted to that lawyer.

6. Colo. RPC 1.15(a) provides:

In connection with a representation, an attorney shall hold property of clients or third persons that is in an attorney’s possession separate from the attorney’s own property.

7. Allowing credit card fees to be deducted directly from an attorney trust account is an extremely poor practice and is highly suspicious of misuse. In light of the other evidence in this case, namely, that the new trust account contained both funds belonging to Weisbard and client funds, the PDJ and Hearing Board cannot conclude by clear and convincing evidence that the $259.81 deducted by Norwest Bank consisted of client funds and not funds belonging to Weisbard.

8. C.R.C.P. 251.10(a) requires that an attorney respond to a written notice that he or she is under investigation within twenty days after notice of the investigation is given.

9. The Complaint in this matter did not allege that Weisbard’s misuse of the $186.50 was conversion. Consequently, whether Weisbard’s conduct constituted conversion calling for disbarment is not an issue to be determined in this proceeding. People v. Varallo, 913 P.2d 1, 11 (Colo. 1999).

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