The Colorado Lawyer
Vol. 29, No. 10 [Page 123]
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From the Courts
Colorado Disciplinary Cases
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 131 for details.
Case No. 99PDJ033
(consolidated with 99PDJ066 and 99PDJ126)
The People of the State of Colorado,
Michael P. Andersen,
July 21, 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 Madeline A. Collison and Kathleen M. O’Brien, both members of the bar.
SANCTION IMPOSED: ATTORNEY DISBARRED
This matter was heard on January 11, 2000, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Madeline A. Collison and Kathleen M. O’Brien, both members of the Bar. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado ( the "People") and David C. Little appeared on behalf of Michael P. Andersen ("Andersen") who was also present. The People’s Exhibits 1, 2 and 3 and Andersen’s Exhibit A were admitted into evidence by stipulation. The PDJ and Hearing Board heard testimony from the People’s witnesses Patricia M. Marrison and Mary Lynn Elliott, and from Andersen’s witness Jay Michael Stranges. Andersen testified on his own behalf.
Two disciplinary matters pending against Andersen — Case No. 99PDJ066 and Case No. 99PDJ033 — were consolidated on November 16, 1999. Shortly before trial, the parties elected to consolidate Case No. 99PDJ126 into the other two matters so that all pending matters against Andersen could be addressed at the same hearing.1
Default had previously entered in both Case No. 99PDJ033 and Case No. 99PDJ066. Upon Andersen’s motion, by Order dated January 4, 2000, the PDJ set aside the default in Case No. 99PDJ033. At the commencement of the hearing, Andersen moved that the PDJ also set aside the default in Case No. 99PDJ066. The People did not object; accordingly the PDJ set aside the default in Case No. 99PDJ066 and accepted respondent’s Answer filed in all three matters.2
The PDJ and Hearing Board considered the exhibits and argument, the testimony of the witnesses, 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
Andersen has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 15, 1992, and is registered upon the official records of the Court, attorney registration number 22139. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
A. Case No. 99PDJ033
(1) The Trust Account Checks
Andersen met M. Patricia Marrison ("Marrison") in the summer of 1997. At the time he was suffering from depression. Andersen worked for Marrison’s law firm in Colorado Springs, Colorado from July 1997 until February 16, 1999. Marrison acted as a mentor to Andersen. For a short period of time she allowed him to occupy a basement apartment in her home. Marrison considered Andersen to be a friend. From September 1998 to February 1999, because of a dispute with another of Marrison’s employees, Andersen worked for Marrison from his home.
By early 1999, Andersen was using alcohol and cocaine. On February 17, 1999, Andersen left Colorado Springs, Colorado. At the time, he intended to have one final fling in Las Vegas before he committed suicide. Prior to leaving Colorado, Andersen took three checks from Marrison’s law firm trust account checkbook without her knowledge or authority. He removed the checks from a section of the checkbook where they would not be readily noticed. Andersen placed Marrison’s signature on the checks using a signature stamp. Andersen was aware at the time he used the stamp that he did not have Marrison’s authority to do so. On February 17, 1999, Andersen negotiated one of the checks for $3,400. The check was drawn on the Marrison law office trust account which contained only client funds. Andersen knew the funds in that account did not belong to him. On February 22, 1999, Marrison’s office received a call from a Las Vegas business requesting authorization to cash a trust account check for Andersen in the amount of $750. Marrison declined to authorize the payment, and examined the trust account checkbook and the trust account statements. She discovered that $3,400 had been withdrawn from the bank and that checks were missing from the trust account checkbook. She stopped payment on the missing checks.3
At the time Andersen took the $3,400 from the trust account, Marrison was experiencing a period of personal financial hardship of which Andersen was aware. Andersen has not yet repaid the $3,400 to the trust account.
(2) Incidents of Failing to Appear
In September 1996, Andersen failed to appear at the arraignment of his client Michael Edward Mock although he was aware of the scheduling. Neither Andersen nor his client appeared for the rescheduled arraignment in October 1996. Consequently, an arrest warrant was issued for Andersen’s client.
Also in September 1996, Andersen entered his appearance in a criminal action on behalf of defendant S. J. Andersen failed to appear for the trial in December and again at the rescheduled trial date in February 1997. The court issued a contempt citation against Andersen for failing to appear. Andersen appeared for the contempt hearing and the court assessed fines and costs against him. After several resettings, the trial was set in May 1997 and Andersen again failed to appear to represent his client. Andersen’s client — who was a juvenile — proceeded without counsel.
In June 1997, Andersen failed to appear at a preliminary hearing on behalf of his client Christopher Ming Yuan. Andersen’s failure to appear resulted in the issuance of a contempt citation against him. Andersen failed to appear for the contempt hearing.
Also in June 1997, Andersen failed to appear for the arraignment of his client Buck Juanito Whatley. The court reset the arraignment and, on the same date, scheduled a hearing on a show cause order the court issued against Andersen for failing to appear. Andersen again failed to appear.
C. Case No. 99PDJ126
On March 15, 1999, while using alcohol, Andersen took a 1994 Pontiac Firebird automobile from a dealership in Las Vegas, Nevada, and drove the car to Los Angeles, California. At the time he took the vehicle he understood the car did not belong to him. The car was reported as stolen and Andersen was arrested and jailed by the Los Angeles police department. On April 9, 1999, Andersen pled no contest to a violation of the Cal. Vehicle Code § 10851(a) (West 2000), taking a vehicle without the owner’s consent, a felony. Andersen was placed on formal probation for a period of three years, was ordered to serve thirty-eight days and was given credit for time served.
II. CONCLUSIONS OF LAW
The Amended Complaint in Case No. 99PDJ033 alleges that Andersen violated § 18-5-102(1)(c), 6 C.R.S. (1999)(forgery) by knowingly using Marrison’s signature stamp to endorse checks on Marrison’s law office trust account, and that Andersen violated § 18-4-401, 6 C.R.S. (1999)(theft) by knowingly taking trust account checks and using one of them to withdraw $3,400 from the trust account without authorization. The Amended Complaint further alleges that Andersen’s violation of these statutory provisions provided grounds for discipline pursuant to C.R.C.P. 251.5, 4 C.R.C.P. 251.5(b), and also violates Colo. RPC 8.4(b) 5 and Colo. RPC 8.4(c).
Colorado Revised Statutes § 18-5-102, 6 (1999) provides:
(1) A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
(c) A deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status;6
The facts set forth in 99PDJ033 establish that Andersen engaged in conduct which satisfies each element of the crime of forgery. Andersen affixed the signature of another to a check knowing that he was not authorized to do so. He completed the check payable to himself in the amount of $3,400, presented it for payment and received funds from the account. In so doing, Andersen intended to deceive and defraud the entity to which the check was presented for payment, and he succeeded.
The Complaint also alleges that Anderson’s conduct ". . . violated . . . C.R.S. 18-4-401, theft." Colorado Revised Statutes §18-4-401, 6 (1999) provides:
(1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:
(a) Intends to deprive the other person permanently of the use or benefit of the thing of value; or
(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; or
(c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use and benefit; or
(d) Demands any consideration to which he is not legally entitled as a condition of restoring the thing of value to the other person.
Colorado Revised Statutes § 18-5-102 (1.5) 6 C.R.S. (1999) provides that "[f]or the purposes of this section, a thing of value is that of "another" if anyone other than the defendant has a possessory or proprietary interest therein."
The Complaint does not specify which subsection of the criminal theft statute Anderson is alleged to have violated. C.R.C.P. 251.14 requires the Complaint to set forth clearly and with particularity the grounds for discipline and the conduct which gives rise to the charges. Pleading the general theft statute without identification of the specific subsection applicable to the conduct relied upon does not provide adequate notice to either the respondent or the PDJ and Hearing Board which statutory provision the respondent’s conduct is to be tested against. Notwithstanding the pleading deficiency, Anderson admitted in his Combined Answer and Response that the conduct alleged in the Complaint violated "criminal statutes." Having admitted his conduct violated criminal statutes, the pleading deficiency in the Complaint does not alter the decision of the PDJ and Hearing Board.
Andersen’s conduct provides grounds for discipline under C.R.C.P. 251.5, C.R.C.P. 251.5(b), and violates Colo. RPC 8.4(b) and Colo. RPC 8.4(c). The fact that he took funds knowing he had no right to do so is sufficient to prove knowing misappropriation. Such conduct is commonly referred to as conversion, is usually plead as a violation of Colo. RPC 8.4(c) and almost always merits disbarment. See People v. Varallo, 913 P.2d 1, 10 (Colo. 1996)(citing People v. Lefly¸ 902 P.2d 361 (Colo. 1995)(lawyer’s knowing conversion of client funds almost always merits disbarment even if the funds are eventually replaced)).
Engaging in conduct which is shown to violate the forgery statute or the theft statute likewise almost always results in disbarment. See People v. Goldstein, 887 P.2d 634, 640 (Colo. 1994)(attorney disbarred for forging a United States Bankruptcy Court judge’s signature, fabricating and forging two legal documents, and knowingly misrepresenting material facts to his employer on client matters); People v. Goens, 803 P.2d 480, 483 (Colo. 1990)(attorney disbarred for forging estate representatives’ signatures and converting funds from estate to attorney’s own use).
The Complaint in Case No. 99PDJ126 alleges that Andersen violated Cal. Vehicle Code § 10851(a) (West 2000) which provides:
Theft and unlawful driving or taking of a vehicle.
(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . is guilty of a public offense . . .
California defines a violation of this statute as a felony. The Complaint in Case No. 99PDJ126 alleges that in violating Cal. Vehicle Code § 10851(a), Andersen’s conduct provides grounds for discipline under C.R.C.P. 251.5 and C.R.C.P. 251.5(b), and constitutes violations of Colo. RPC 8.4(b) and Colo. RPC 8.4(c). Andersen knew at the time he took the vehicle that it did not belong to him. By driving the vehicle to another state, Andersen established that he had the intent to permanently or temporarily deprive the owner of the possession of the vehicle. Andersen pled no contest to a violation of this provision. C.R.C.P. 251.20(h) provides that a plea of nolo contendere (no contest) is a conviction for purposes of attorney discipline.7 Conviction of a felony is conclusive proof that an individual has engaged in dishonest conduct and is, therefore, a violation of Colo. RPC 8.4(c).
Colo. RPC 8.4(b) prohibits lawyers from engaging in "criminal conduct that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects." Not all convictions of the criminal laws necessarily justify the conclusion that Colo. RPC 8.4(b) has also been violated. Although the line of demarcation between such crimes has not yet been clearly drawn, the taking of another’s property having substantial value without authorization exceeds the criteria required for such a violation. Such conduct is both dishonest and so lacking in trust as to place in serious question a person’s fundamental character and adversely reflects upon his fitness to practice law. Andersen’s California conviction provides grounds for discipline under C.R.C.P. 251.5(d) and constitutes a violation of Colo. RPC 8.4(b) and Colo. RPC 8.4(c).
The Complaint in case no. 99PDJ066 alleges four separate violations of Colo. RPC 1.38 and Colo. RPC 8.4(d).9 In all four matters, Andersen failed to appear at scheduled hearings, neglected his client’s matters and ignored the orders of the courts. Over a period of ten months, from September 1996 to July 1997, Andersen entered his appearance on behalf of his clients in criminal matters and repeatedly failed to appear for trials and hearings. In one case, Andersen’s juvenile client, who was particularly vulnerable, proceeded to trial when Andersen failed to appear. The potential for harm to each of his four clients arising from Anderson’s conduct is beyond question. Andersen’s conduct constitutes four separate violations of Colo. RPC 1.3 and Colo. RPC 8.4(d).10
III. SANCTIONS/IMPOSITION OF DISCIPLINE
The PDJ and Hearing Board found that Andersen’s conduct constitutes a violation of duties owed to the profession and to the public. The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.
ABA Standard 4.42 provides:
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; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
ABA Standard 4.11 provides:
Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
ABA Standard 5.11 provides:
Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft;
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
The Commentary to ABA Standards 5.11 further provides:
A lawyer who engages in any of the illegal acts listed above has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity. This duty to the public is breached regardless of whether a criminal charge has been brought against the lawyer . . . [i]n imposing final discipline in such cases, most courts impose disbarment on lawyers who are convicted of serious felonies.
Andersen’s conduct meets the criteria under ABA Standards 4.42 (the neglect of Andersen’s four clients), 4.11(conversion of the trust account funds) and 5.11(engaging in criminal conduct).
Andersen knowingly converted client funds and caused injury to Marrison and the clients whose funds were held in her trust account. Colorado case law consistently holds that when a lawyer knowingly converts client funds, disbarment is "virtually automatic," at least in the absence of significant factors in mitigation. People v. Young, 864 P.2d 563, 564 (Colo.1993) (knowing conversion of clients’ funds warrants disbarment even absent prior disciplinary history and despite cooperation and making restitution). See also People v. Motsenbocker, 926 P.2d 576, 577 (Colo. 1996)(disbarring attorney pursuant to conditional admission of misconduct for the attorney’s misappropriation of bar association funds in the amount of $2,350 while serving as treasurer even though attorney repaid funds and other mitigating factors were present). In People v. Guyerson, 898 P. 2d 1062, 1063 (Colo. 1995) the attorney was disbarred for converting large amounts of law firm and client funds by fraudulent billing practices. The respondent in Guyerson "not only wrongfully converted firm property, but [his conduct] also resulted in conversion of client funds, regardless of his intention." Id. at 1063. See also People v. Finesilver, 826 P.2d 1256, 1258 (Colo. 1992)(disbarring the attorney and holding that "[t]hievery and deception on the part of a lawyer corrupt and betray the relationships between lawyer and client and between the legal profession and the public."); People v. Whitcomb, 819 P.2d 493 (Colo.1991) (conversion of trust funds warrants disbarment); People v. Mulligan, 817 P.2d 1028 (Colo.1991) (attorney disbarred for conversion of client funds); People v. Grossenbach, 814 P.2d 810 (Colo.1991) (conversion of client funds and knowing deception of clients warrants disbarment); People v. Quick 716 P.2d 1082, 1086 (Colo. 1986)(approving the parties’ conditional admission of misconduct and disbarring attorney for, among other things, theft of client’s money). But see People v. Lujan, 890 P.2d 109, 110 (Colo.1995)(attorney suspended rather than disbarred where attorney stole funds from her law firm but the Court found certain extraordinary and tragic factors in mitigation, including the sudden emergence of a mental disorder that caused the misconduct).
Similarly, case law suggests that Andersen’s use of Marrison’s signature stamp to negotiate the stolen trust account checks warrants disbarment. See People v. Jackson, 943 P.2d 450, 456 (Colo. 1997)(disbarring the attorney for submitting fraudulent documents to a lender with the intention of inducing the lender to lend money, resulting in the lender’s relying on the fraudulent representations); People v. Goldstein, 887 P.2d 634, 642 (Colo. 1994)(disbarring attorney for felony offense of forging federal bankruptcy court judge’s signature and dishonest and deceitful behavior in handling of legal matters, notwithstanding claims that alleged mental condition of success neurosis contributed to misconduct); People v. Rice, 728 P.2d 714, 715 (Colo. 1986) (disbarring attorney for practicing while under suspension and for the felony of forgery based on forging his deceased mother’s name to several of her social security checks).
Andersen’s counsel requested that the PDJ and Hearing Board impose a "conditional disbarment" on Andersen for a period of time, allow Anderson to continue practicing law for the purpose of allowing Andersen to demonstrate his intention to rehabilitate himself and his commitment to recovery.11 The rules regarding attorney discipline do not authorize a "conditional disbarment." The structure of the system requires disbarment upon a showing of sufficiently grievous conduct. If, after the passage of not less than eight years, the offending lawyer desires to be readmitted to the practice of law, a subsequent proceeding is required in which the offending lawyer must prove that he has successfully retaken the bar examination and that he is rehabilitated before he is readmitted to the practice of law. Imposition of the requested "conditional disbarment" would eliminate those requirements and is contrary to the intent underlying the structure of the system. In light of the present facts and in accordance with the requirement to protect the public, the PDJ and Hearing Board find that disbarment is warranted and required. The acts in which Andersen knowingly engaged demonstrate that he is both dishonest and not sufficiently trustworthy to practice law. The public would be placed at continuing risk if he were allowed to do so. A lesser sanction would simply not comport with the principles of the legal profession nor with prior case law for similar misconduct.
The PDJ and Hearing Board considered aggravating and mitigating factors pursuant to ABA Standards 9.22. Andersen had one prior letter of admonition in 1997 for conduct unrelated to the facts in this case, id. at 9.22(a); he had a dishonest and selfish motive when taking the trust account checks, forging Marrison’s signature, using the client funds for his own purposes, and taking a vehicle that did not belong to him; id. at 9.22(b); Andersen demonstrated a pattern of misconduct in both the neglect of his clients, the forgery of the checks, the conversion of the client funds, and the taking of the vehicle, id. at 9.22(c); he committed multiple offenses, id. at 9.22(d); and at least two of the victims who were impacted by Andersen’s behavior were vulnerable, Marrison and his juvenile client; id. at 9.22(h).
The PDJ and Hearing Board considered factors in mitigation pursuant to ABA Standards 9.32. Andersen suffered from depression during the time period in question, id. at 9.32 (c), and he made full and free disclosure to the disciplinary board and demonstrated a cooperative attitude toward the proceedings, id. at 9.32(e). It should be noted in this regard that Andersen flew from California where he is presently employed as a paralegal in a law firm to attend the hearing. Andersen suffered from physical impairment arising from cocaine and alcohol abuse, id. at 9.32(h), and he demonstrated remorse for his conduct, id. at 9.32(l).
Andersen is committed to his rehabilitation through his affiliation with a recovery program in California. He has remained drug and alcohol free since July 25, 1999 and intends to remain so. Although the factors in mitigation are substantial, they are insufficient to reduce the presumed sanction of disbarment. They do, however, at least in part, suggest that Andersen has begun the process of rehabilitation. C.R.C.P. 251.29.
It is therefore ORDERED:
- Michael P. Andersen, registration number 22139, is DISBARRED from the practice of law effective thirty-one days from the date of this Order, and his name shall be stricken from the roll of attorneys licensed to practice law in this state;
- Andersen is ORDERED to pay the costs of these proceedings;
- The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days thereafter to submit a response thereto;
- Prior to the submission of any Petition for Readmission pursuant to C.R.C.P. 251.29, Andersen shall pay to Patricia Marrison the sum of $3,400.00 plus statutory interest from February 17, 1999.
1. Case No. 99PDJ126 had been filed on December 15, 1999, only twenty-eight days before trial. By moving to consolidate this matter into the other two matters, respondent agreed to waive: the sixty-day notice of trial pursuant to C.R.C.P. 251.18(a); the right to discovery; the right to file an Answer within twenty days of service of process; the right to adequate trial preparation time; the right to object to the hearing board members, and waived all other jurisdictional grounds. The respondent stipulated he was prepared to proceed.
2. Andersen requested that his Answer in Case No. 99PDJ126 be amended to state under Claim II "The Respondent admits that his conduct amounted to neglect of the representation of his client in violation of Colo. RPC 1.3 and violated the provisions of Colo. RPC 8.4(d)." The People requested that the Complaint in Case No. 99PDJ126 be amended to allege a violation of the Cal. Vehicle Code § 10851(a) (West 2000) instead of §1085(a). Andersen did not object and the PDJ granted both the People’s and the respondent’s Motions to Amend.
3. Based upon his conduct in the Marrison matter, Andersen was immediately suspended from the practice of law by the Colorado Supreme Court on March 25, 1999.
4. C.R.C.P. 251.5 provides that misconduct by an attorney . . . 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: (b) Any act or omission which violates the criminal laws of this state or any other state, or of the United States; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings.
5. C.R.C.P. 8.4 states that: It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
6. § 18-5-102(2), 6 C.R.S. (1999) provides that forgery is a class 5 felony.
7. Conviction of a felony is a serious offense which C.R.C.P. 251.8 recognizes as presenting a sufficient threat to the public so as to constitute grounds for the immediate suspension of a lawyer’s license to practice law.
8. Colo. RPC 1.3 provides: A lawyer shall act with reasonable diligence and promptness in representing a client.
9. Colo. RPC 8.4 provides that it is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice.
10. The Complaint in Case No. 99PDJ066 neither alleged that the clients suffered harm nor that Andersen abandoned them.
11. Andersen’s counsel acknowledged that the rules do not expressly provide for a "conditional disbarment."
Case No. 00PDJ023
Richard J. Goff,
The People of the State of Colorado,
August 4, 2000
Original Proceeding in Discipline before the
Presiding Disciplinary Judge
OPINION AND ORDER DENYING REINSTATEMENT
Opinion by Presiding Disciplinary Judge Roger L. Keithley, Frances L. Winston, a representative of the public, and Laird T. Milburn, a member of the bar.
Attorney Reinstatement Denied
This reinstatement hearing was heard on May 17 and 18, 2000, pursuant to C.R.C.P. 251.29(b) and (c) before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Frances L. Winston and Laird T. Milburn. Nancy L. Cohen, Deputy Regulation Counsel, represented the People of the State of Colorado (the "People"). Philipp C. Theune represented petitioner Richard James Goff ("Goff"). The following witnesses testified on behalf of Goff: Dr. Frank T. Timmons, David N. Bolocofsky, Michael J. Grills, Roslyn Cohen, Cathy Ferin, Cleveland Holmes, Lois Leder, Norbert A. Tanguay, Daniel A. Brittsan and Dr. Jonathan T. Ritvo. Richard J. Goff testified on his own behalf. James Henderson, Gregory Rawlings, Joseph Q. Lynch, David Smith, Sonya Chandler (by video deposition), Rita Loseke, Judge John Leopold and Janet Corley testified on behalf of the People. Joint Exhibits 1 though 12 were admitted by stipulation. Respondent offered and the PDJ admitted Exhibit 13 into evidence as a sanction for the People’s late disclosure of relevant information. The People’s Exhibits A and B were also admitted.
In pre-trial proceedings, the PDJ ruled that character and fitness to practice law are issues to be resolved in reinstatement proceedings pursuant to C.R.C.P. 251.29(b), and allowed the admission into evidence of matters currently under investigation by the Office of Attorney Regulation Counsel. The PDJ ordered that the evidence presented regarding the Sonya Chandler and Michael Bonghi matters could be considered by the Hearing Board only for purposes relating to Goff’s character and fitness to practice law and could not be considered to establish independent violations of The Rules of Professional Conduct. At trial, the PDJ informed the hearing board of the evidentiary limitation relating to evidence bearing upon the Chandler and Bonghi matters.
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
Goff has taken the oath of admission and was admitted to the bar of this court on May 16, 1990 and is registered as an attorney upon the official records of this court, attorney registration no. 19348. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).
Richard J. Goff was suspended from the practice of law effective October 11, 1999 by Order of the PDJ. The Order approved a Stipulation and Agreement Containing the Respondent’s Conditional Admission of Misconduct ("Conditional Admission"), pursuant to which the People and Goff agreed to a six month suspension with conditions. One of the express conditions was the requirement that Goff undergo a reinstatement proceeding. In addition, Goff was ordered to pay the costs of the disciplinary proceeding. Goff paid the costs of the disciplinary proceeding in a timely fashion.
Goff gave notice to his clients of his suspension in accordance with C.R.C.P. 251.28(b),1 notice to opposing parties in litigation pursuant to C.R.C.P. 251.28(c) and filed the requisite affidavit under C.R.C.P. 251.28(d). Additional Requests for Investigation were received by the Office of Attorney Regulation Counsel subsequent to the effective date of the Order suspending Goff from the practice of law. As required by C.R.C.P. 251.10(a), Goff has filed a written response to each Request for Investigation.
Goff’s suspension arose from three separate matters. In the Conditional Admission approved by the PDJ, Goff admitted that in June 1994 he filed a civil suit on behalf of his client, Anthony Ciocchetti. The suit alleged the defendant engaged in a sexual relationship with Ciocchetti while acting as his marriage counselor. In January 1996, following nearly eighteen months of litigation and two motions for summary judgment, the trial court entered judgment in favor of the defendant, granted the defendant’s motion for sanctions and ordered Goff and his client, jointly and severally, to pay the sum of $22,381.76 for "knowing that [all] claim[s] contained in the complaint against [the defendant] . . . lacked substantial justification, were imposed for delay and harassment, were unnecessarily expanded by their improper conduct . . . and that there at no time existed any factual support for any of [the] claims, all of which were prosecuted by and through Goff with full knowledge of the above." Goff eventually satisfied the sanctions judgment. Goff’s misconduct violated Colo. RPC 3.1(a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous), Colo. RPC 8.4(d)(conduct prejudicial to the administration of justice) and Colo. RPC 8.4(a)(violating a rule of professional conduct).
In the second matter, a 1997 domestic relations case, Goff violated Colo. RPC 8.4(d)(prejudice to the administration of justice) by advising his client to ignore a court order requiring that the client immediately list the marital property for sale and advising him not to cooperate in the listing of the property.
In the third matter, Goff was appointed in 1995 to represent Cory Morrison, a defendant in a criminal action accused of sexual assault on two children. Goff admitted that he failed to interview witnesses prior to trial, failed to utilize an expert to rebut the prosecution’s expert, failed to present testimony of which he was aware challenging the reliability of the complaining witnesses, failed to pursue records relating to the complaining witnesses which may have assisted in the defense of the charges, failed to discover the prosecution’s expert witness opinions prior to trial, and failed to enlist the assistance of experienced co-counsel notwithstanding his lack of experience in defending similar charges. Goff’s client was convicted and sentenced to two consecutive sixteen-year terms of imprisonment. Goff stipulated that his conduct violated Colo. RPC 1.1(competent representation).
The Conditional Admission which resulted in Goff’s six month suspension also set forth the prior discipline imposed upon him for previous misconduct.2 Joint Exhibit 7 includes Goff’s prior discipline. In March 1994, Goff received two letters of admonition. The first recites that Goff contacted individuals he knew to be represented by counsel and threatened them with contempt of court and imprisonment in connection with a domestic relations case. The letter of admonition found that Goff’s conduct reflected adversely upon his fitness to practice law. The second 1994 letter of admonition, also concerning a domestic relations case, recites that Goff became threatening, improper and unprofessional in his dealings with his client. In addition, the letter of admonition recites that Goff phoned his client’s mother and threatened to shred her in little pieces if she did not stop talking about Goff at the office where she worked. Again, the letter of admonition found that Goff’s conduct reflected adversely upon his fitness to practice law.
In January 1996, Goff received two more letters of admonition. The first recites that Goff knowingly allowed another attorney to prepare pleadings for use in the Bankruptcy Court notwithstanding a prior court order precluding the same attorney from appearing in that court on behalf of that client. The second recites that Goff signed motions prepared by other counsel without becoming familiar with the relevance of such motions and attempted to argue the motions without the ability to do so. Both 1996 letters of admonition included findings that the misconduct was prejudicial to the administration of justice.
In September 1997, Goff received a private censure from the Supreme Court in connection with a paternity matter involving the client’s son. An oral motion made by Goff during a temporary orders hearing was denied because it was not in writing. Goff failed to submit a written motion following the denial, was discharged by his client, and, notwithstanding his knowledge of his client’s current address, mailed the client’s copy of his motion to withdraw to an old address. The Supreme Court found that Goff’s conduct was prejudicial to the administration of justice and that he failed to protect his client’s interests following termination, in violation of Colo. RPC 8.4(d) and Colo. RPC 1.16. The 1997 private censure also found that at the time Goff engaged in the misconduct, he was suffering from suicidal depression, had initiated treatment and, as a consequence, declined to impose more severe discipline in light of Goff’s prior disciplinary record. The Supreme Court, however, did impose conditions upon Goff’s continued practice of law designed to insure that he remained in treatment for his depression for at least two years.
The Conditional Admission which resulted in this reinstatement proceeding required that Goff attend the ethics course offered by the Office of Attorney Regulation Counsel and imposed various safeguards within his law office prior to the submission of the Petition for Reinstatement. In part, it required that a practice monitor having at least ten years’ experience review Goff’s legal files and method of handling his case load following his reinstatement. The review procedure specified in the Conditional Admission and in the PDJ’s Order required Goff’s demonstration of a workable reminder or "tickler" system, meetings for case load review at specified intervals which necessitated Goff’s preparation of lists of current active files, the monitor’s review of the files, the monitor’s making suggestions necessary to assure that the case load was being properly and professionally handled, and determinations by the monitor that Goff was progressing in a satisfactory manner.
In an effort to satisfy these prophylactic provisions, Goff hired Phillip Theune, an attorney licensed in Colorado with extensive legal and firm management experience, as the managing attorney for Richard J. Goff, P.C. Mr. Theune is responsible for all hiring and firing decisions for the firm. Mr. Theune, in turn, hired another lawyer who has over ten years’ experience in the criminal law field to handle cases for the firm. The firm implemented policies and procedures requiring the approval of two lawyers before accepting any case. A formal procedure manual is currently under consideration. Since Goff’s suspension, the firm has developed a centralized calendaring system, has created a system of checklists to be followed in cases, has implemented a centralized file storage system, now requires that attorneys invest more time and effort before taking cases, and has instituted policies requiring all attorneys to keep track of their time on all cases.
During the period of suspension, Goff worked as a paralegal with the other lawyers in the firm and performed research and drafting under their supervision. Goff attended and passed the ethics course offered by the Office of Attorney Regulation Counsel. Goff, however, took no continuing legal education courses during the period of suspension; he testified that he could not bring himself to do so. Apart from the ethics course, no evidence was presented at the reinstatement hearing suggesting that Goff undertook any efforts from 1994 to the date of the hearing to enhance his competency in any area of the law.3 During the period of suspension, Goff was not convicted of any crime and was not subject to any civil judgments.
Goff was, however, involved in at least two civil disputes involving litigation arising out of events pre-dating his suspension but continuing during the suspension. One of those civil disputes is relevant to this reinstatement case. That matter concerned a fee dispute with Goff’s former client, Michael Bonghi. Goff admitted that notwithstanding a court order requiring arbitration of the dispute, the arbitration was delayed by his failure to supply a Consent to Arbitration necessary for the arbitration to proceed. Goff justified the failure to supply the required documentation by deflecting responsibility for compliance with the court order to Mr. Theune, his counsel and firm managing attorney.4
The disagreement was in fact between Richard J. Goff, P.C. and Goff’s former client. Goff was the sole shareholder of the firm and signed the original fee agreement with the client which contained a mandatory arbitration clause. During the relevant time period was involved in firm administration, and, indeed, engaged in discussions with Mr. Theune regarding arbitration of the dispute.5
Goff’s treating therapist and an independent medical evaluator presented medical testimony that Goff currently suffers from and receives treatment for depression. The level of his depression has ranged from mild to suicidal. Both because of the private censure imposed against him in 1997 and his recognition of his depression, Goff has remained in therapy and continues to take medication. Shortly after his suspension in 1999, Goff once again suffered from suicidal depressive episodes. Both medical professionals agreed that Goff’s conduct was not the result of his medical condition, although both admit that the condition may have played a minor role in his conduct. Goff’s condition is neither pervasive nor inflexible: Goff has the ability to conform his conduct to the standards of his profession and he recognizes that his conduct has not been in accord with those standards. Both medical professionals opined that with additional education and close supervision, Goff could conform his conduct to that required of attorneys. The medical professionals expressed reservations that Goff may rebuff monitoring of his practice or that the imposed monitoring conditions contained in the Conditional Admission are insufficient. Goff’s treating therapist acknowledged that Goff recognizes imposed limitations but that he has difficulty agreeing to or complying with those limitations. Both medical professionals opined that there is no medical or psychological reason Goff cannot conform his conduct to the requirements of the profession.
The People presented evidence relating to Goff’s court appointment to represent Sonya Chandler in 1995.6 Chandler was charged with child abuse resulting in death. The prosecution identified two experts in that case prior to trial. At least one was a pathologist designated to express opinions on the manner and cause of death. Goff did not interview either expert prior to trial nor did he consult with or retain a defense pathologist to rebut the anticipated testimony. During the course of the pre-trial preparations, the trial judge became sufficiently concerned about Goff’s lack of motion practice to summon him and the prosecutor to court to discuss the importance of pre-trial motion proceedings.
Following the judge’s conference, Goff obtained copies of motions filed by counsel for a co-defendant, copied or paraphrased the motions and filed them with the court on behalf of his client. Goff, with one exception, failed to follow through on the motions. Goff’s file in the case lacked notes of interviews with his client, contained few witness statements and reflected no effort to obtain experts to rebut those designated by the prosecution. Goff admitted to successor counsel that he did not interview the prosecution witnesses prior to trial. Goff’s file, however, contained extensive notes referring to delays in receiving compensation for his services. Goff’s client was convicted and sentenced to a term of incarceration. Successor counsel was obtained to proceed with a Crim. P. 35(c) motion based upon ineffective assistance of counsel. Although the trial court hearing the Crim. P. 35(c) motion ruled that Goff’s conduct would not have altered the eventual outcome of the trial and, therefore, denied relief, the court did find that Goff’s failure to consult with a pathologist was substandard and deficient performance by an attorney.7
Goff became an attorney at age forty-two following a career as an engineer. After graduating in the upper portion of his law school class and passing the bar, Goff became a solo practitioner. He received no mentoring and learned to practice law by picking up experience in county court cases and observing other attorneys. Goff is committed to his family and his faith, and is passionate about the law including the prospect of assisting those in need of legal services. Goff freely acknowledged that he frequently allows his passion for his client’s cause to impede the exercise of rational judgment.
Goff testified regarding each instance of prior discipline. In addressing the three instances of misconduct to which he admitted in the Conditional Admission, Goff minimized his misconduct, attributed his misconduct to the actions of others, explained his misconduct as stemming from his passion for his client’s cause and acknowledged that even after being advised to alter his course of conduct by those he respected he continued to engage in the improper conduct.
II. CONCLUSIONS OF LAW
Initiation of the reinstatement process begins with the submission of a Verified Petition for Reinstatement. C.R.C.P. 251.29(c) requires that the attorney’s Petition for Reinstatement set forth, in part:
(3) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;8
(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;
(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.
The attorney seeking reinstatement must establish the three elements set forth in the rule by clear and convincing evidence. See C.R.C.P. 251.29(d). A petitioning attorney’s failure to satisfy the standard of proof has dire consequences: the attorney who is unable to meet the requisite burden of proof may not reapply for reinstatement for a period of two years following the denial of a previous petition. See C.R.C.P. 251.29(g).
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.9
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.10
People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988) interprets the language of the prior reinstatement rule, C.R.C.P. 241.22, and sets forth
criteria which must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. Klein requires:
[A]ny determination of that issue [rehabilitation] must include consideration 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.
However, that decision does not define — except by example — what constitutes rehabilitation.
Rehabilitation for purposes of attorney reinstatement and readmission to the bar has been defined as "the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society." Avrom Robin, Character and Fitness Requirements for Bar Admission in New York, 13 Touro L. Rev. 569, 583 (1997)(quoting In re Carson, 294 S. E. 2d 520, 522-23 (Ga. 1982)). Other factors which are considered are the applicant’s age at the time of the offense and the likelihood that the applicant will repeat the behavior in the future. Id. Courts, including those in Colorado, focus upon the applicant’s current mental state. Id., See Klein, 756 P.2d at 1016.
Rehabilitation has also been defined as the regeneration of an erring attorney. Miriam D. Gibson, Proving Rehabilitation, 20 J. Legal Prof. 239, 239 (1996)(quoting In re Cantrell, 785 P.2d 312, 313 (Okla. 1989)). Regeneration denotes an overwhelming change in the applicant’s state of mind. Id. An erring attorney who seeks readmission [or reinstatement] bears a heavy burden of proof, for he must show by the most clear and convincing evidence that efforts toward rehabilitation have been successful. Id. Because rehabilitation begins with a change in the applicant’s way of thinking, there are no certain or unmistakable outward signs which evidence rehabilitation. Id. Nevertheless, courts have identified criteria which are probative of rehabilitation. Id.11
"[R]einstatement will not automatically be granted on evidence that the Applicant has engaged in only proper conduct, even where no contrary evidence is presented." In re Sharpe, 499 P.2d 406, 409 (Okla. 1972). In determining whether an attorney may be reinstated to practice law, foremost consideration must be given to protecting public welfare. Cantrell, 785 P.2d at 313. Each case for reinstatement must be reviewed on its own merits. Id. at 313. Each case will fail or succeed on the evidence presented and the circumstances peculiar to that particular case. Id.
It is fundamental to the reinstatement decision that the reinstatement board determine that rehabilitation has already occurred. C.R.C.P. 251.29(b) specifically provides that the petitioner prove that "the attorney has been rehabilitated" (emphasis added). Mere proof that measures have been undertaken which, if successful, may result in rehabilitation is insufficient. Although an order allowing reinstatement may include conditions which must be followed by the reinstated attorney, it is a prerequisite to any such order that the attorney has already been successfully rehabilitated. See C.R.C.P. 251.29(b).12 Proof of anticipated changes in conduct or working environment do not satisfy the requirement of C.R.C.P. 251.29(b).
Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed upon which the discipline is premised. The shortcoming may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. It necessarily follows that the analysis of rehabilitation should be directed at the professional or moral shortcoming which resulted in the discipline imposed. See C.R.C.P. 251.29(c)(5); Tardiff v. State Bar, 612 P.2d 919, 923 (Cal. 1980)(citing 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)). But see C.R.C.P. 251.29(e). The evidence in this case established that Goff’s suspension resulted from three separate events, each one reflecting different professional or personal shortcomings.13
In the first instance of misconduct Goff pursued a civil action on behalf of a client long after it should have been apparent that the suit had no merit. Although Goff was aware the claims had no substantial justification, for purposes of delay and harassment, Goff doggedly continued to pursue those claims. Such misconduct raises serious questions regarding his professional judgment. It is a deficit related more to his character and integrity than his professional environment. Passionate pursuit of a client’s cause must be tempered by objective, independent professional judgment. It is as important to recognize when to terminate a case as it is to initiate one.
Although a structured professional environment might have some tendency to minimize the likelihood of the recurrence of such misconduct, externally imposed practice conditions do not and cannot correct the fundamental problem: the failure to exercise objective judgment. Proof of the imposition of external prophylactic controls, without more, does not prove rehabilitation under circumstances where character shortcomings exist and are manifested in the exercise of poor professional judgment. Rehabilitation requires proof establishing that Goff has, in some way, altered the manner in which he exercises his judgment so as to preclude a loss of objectivity. No such evidence was forthcoming in this proceeding. Indeed, apart from Goff’s instituting the minimum conditions required by the Conditional Admission, the only evidence bearing upon Goff’s rehabilitation for his misconduct was his testimony that he had engaged in "soul searching" during the period of suspension.14 That assurance, absent some corroborating evidence and/or evidence showing positive action to correct the character deficit, is insufficient to meet his burden of proof.
The second instance of misconduct arose out of Goff’s advice to a client to delay or defer compliance with a court order. For the same reasons set forth above, the imposition of external conditions does not prove Goff’s rehabilitation from this prior misconduct. The misconduct arose from Goff’s willingness to ignore a court order with which he disagreed. Such misconduct manifests from personal and professional shortcomings in character and integrity, not from the surroundings in which the misconduct occurred.
Moreover, evidence introduced at trial negates rehabilitation for this character shortcoming. Goff’s failure to supply a Consent to Arbitration or otherwise timely comply with the court’s order for arbitration in the Bonghi dispute occurred during the period of suspension and is reflective of the same character deficit: a refusal to comply or delay in complying with a court order which is counter to Goff’s perception of the appropriate course of action. Thus, Goff has failed to prove rehabilitation in connection with the second instance of misconduct.
The third instance of misconduct is based upon a lack of professional competence. The professional services Goff provided to a defendant in a criminal action charged with a serious crime fell far below that required of members of the Colorado Bar. Rehabilitation for such misconduct would necessarily require proof that Goff was presently aware of what professional services were required to competently represent a criminal defendant, proof of a willingness and ability to provide such services, and proof of the development of sufficient knowledge to recognize the need for co-counsel. Goff offered evidence that he had worked as a paralegal in his law office during the period of suspension, conducted research on cases handled by other lawyers and drafted pleadings, had read The Colorado Lawyer, a bar association publication which includes articles of general interest to the bar, articles analyzing issues of law and the reported decisions of state appellate courts and federal trial and appellate courts, and weekly publications relating to the law. Goff testified that he could not bring himself to attend continuing legal education courses during the period of suspension. Although this evidence tends to indicate that Goff made some effort to keep abreast of current developments in the law, it is not persuasive evidence, if evidence at all, that he expanded his professional knowledge base to the extent necessary to competently represent a criminal defendant charged with a serious crime, nor that he had developed sufficient insight to recognize when co-counsel was necessary.
In each of the three instances of misconduct which led to his suspension, Goff has failed to meet his burden of proof of rehabilitation. On that basis alone reinstatement must be denied.
There are additional grounds to deny Goff’s reinstatement to the practice of law. Rehabilitation and fitness to practice law, although separate and distinct concepts, are often interrelated. The imposition of prior discipline of sufficient severity so as to require a formal reinstatement proceeding is the functional equivalent of a finding that the offending attorney is not fit to practice law.
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. Goff’s lack of rehabilitation, in light of the prior disciplinary findings, compels the conclusion that he is not presently fit to practice law.
Moreover, C.R.C.P. 251.29(e) requires the reinstatement board to consider all of Goff’s prior discipline in arriving at its decision. Tardiff, 612 P.2d at 923; Roth, 253 P.2d at 972. Doing so reinforces the PDJ and Hearing Board’s conclusion regarding Goff’s fitness to practice law. Examination of his four letters of admonition and his one private censure reveal conduct strikingly similar to the misconduct which resulted in his 1999 suspension. Goff’s prior discipline reveals misconduct beginning in 1993 reflective of a willingness to shortcut processes and procedures proven over time to be necessary for proper representation of clients, to undertake representation of clients whose legal difficulty falls in areas of the law in which Goff lacks basic competency, and to ignore or fail to comply with court orders and rulings with which he disagrees. Notwithstanding prior efforts by the Supreme Court to warn and afford Goff an opportunity to reform his deficient conduct and competency, Goff’s most recent misconduct reflects the same lack of character and fundamental integrity required of attorneys in this state.
Goff’s lack of integrity and failure to undertake meaningful efforts to establish minimum competency evident from all of his prior discipline supports the PDJ and Hearing Board’s conclusion that Goff is not presently fit to practice law.
It is therefore ORDERED:
- That the Verified Petition for Reinstatement of Richard James Goff is DENIED and Richard James Goff is DENIED reinstatement to the practice of law;
- Goff is ORDERED to pay the costs of these proceedings;
- The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Petitioner shall have ten (10) days thereafter to submit a response thereto;
- The effective date of the Denial of Richard James Goff’s Verified Petition for Reinstatement is August 4, 2000.
1. Evidence introduced at the reinstatement hearing indicated that Goff may have initially overlooked notifying one client of his suspension but promptly corrected the error. Such conduct meets the substantial compliance test adopted in McCaffrey v. People, No. 99PDJ108, slip op. at 3 (Colo. PDJ March 15, 2000), 29 Colo. Law 109 (May 2000).
2. C.R.C.P. 251.29(e) requires the reinstatement board to consider the petitioner’s entire disciplinary record.
3. Although C.R.C.P. 260.2 requires all attorneys registered in Colorado, with some exceptions not applicable here, to complete forty-five hours of Continuing Legal Education every three years, no evidence was offered at the reinstatement hearing bearing upon the type, scope, topic or amount of continuing legal education courses Goff may have taken in the past.
4. This dispute and the evidence relating to it was considered by the PDJ and Hearing Board only as to character, a factor to be considered in assessing rehabilitation, and as to Goff’s fitness to practice law in accordance with the PDJ’s earlier ruling in pre-trial proceedings.
5. During the pendency of the reinstatement petition, Goff paid Bonghi the sums Bonghi claimed he was owed.
6. This evidence, like the evidence relating to the Bonghi matter, was considered by the PDJ and Hearing Board as relevant only to Goff’s character and fitness to practice law.
7. The standard of proof in a Crim. P. 35(c) proceeding is upon the defendant and is by a preponderance of the evidence. Arnold v. Colorado Department of Corrections, 978 P.2d 149, 153 (Colo. App. 1999). Relief under Crim.P. 35(c) requires both a finding of substandard attorney performance and a determination that the substandard performance was of a sufficient degree to affect the outcome of the criminal proceeding. See People v. Norman, 703 P.2d 1261, 1272 (Colo.1985)(citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.2d 674, 104 S. Ct. 2052 (1984). In this reinstatement proceeding the standard of proof is on Goff to establish by clear and convincing evidence that he has the requisite character to practice law and is fit to do so. Of necessity, fitness incorporates competency.
8. This subsection incorporates the concept that neither the passage of time nor the absence of additional misconduct, by themselves, is sufficient to establish rehabilitation.
9. Reinstatement proceedings are conducted before a hearing board as required by C.R.C.P. 251.29(d).
10. The PDJ and Hearing Board concluded that Goff did establish by clear and convincing evidence that he had complied with all disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys.
11. The Rule Regulating The Florida Bar 3-13 sets forth specific elements of rehabilitation that the attorney must establish:
Any applicant or registrant who affirmatively asserts rehabilitation from prior conduct which bears adversely upon such person’s character and fitness for admission to the Bar shall be required to produce clear and convincing evidence of such rehabilitation including, but not limited to, the following elements:
(a) strict compliance with the specific conditions of any disciplinary, judicial, administrative or other order, where applicable;
(b) Unimpeachable character and moral standing in the community;
(c) good reputation for professional ability, where applicable;
(d) lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative or other proceeding;
(e) personal assurances, supported by corroborating evidence, of a desire and intention to conduct one’s self in an exemplary fashion in the future;
(f) restitution of funds or property, where applicable;
(g) positive action showing rehabilitation by such things as a person’s occupation, religion , or community or civil service. Merely showing that an individual is now living and doing those things he or she should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. The requirement of positive action is appropriate for applicants for admission to the Bar because service to one’s community is an implied obligation of members of the Bar.
12. Disciplinary orders arising from Conditional Admissions requiring reinstatement proceedings frequently contain conditions with which the disciplined attorney must comply prior to petitioning for reinstatement or which he or she has agreed may be imposed upon reinstatement. Such conditions, even when satisfied, do not necessarily establish rehabilitation.
13. Goff’s Verified Petition for Reinstatement suggests that he has not yet recognized that his prior misconduct arose primarily from personal deficits rather than his professional surroundings. At paragraph 3 of the Verified Petition Goff stated "[m]y practice policies, which led to my suspension, have been totally revamped." The Verified Petition then recites the external controls, including the hiring of a firm manager, which reflect the conditions to which he agreed in the Conditional Admission. Apart from his unsupported assertion that he now realizes that he has allowed his passion and emotions to cloud his judgment, neither the Verified Petition nor the evidence presented reveal any facts upon which the PDJ and Hearing Board can rely to conclude that such realization, even if coupled with external controls, will prevent similar future misconduct.
14. In addition to "soul searching" or personal reflection, there must be some illustrative evidence from which it can be concluded that change is real.
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