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TCL > December 2012 Issue > Disciplinary Opinions

December 2012       Vol. 41, No. 12       Page  125
From the Courts
Colorado Disciplinary Cases

Disciplinary Opinions

The Colorado Supreme Court adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge (PDJ), pursuant to CRCP 251.16. The Court also made extensive revisions to the rules governing the disciplinary process, repealing CRCP 241 et seq., and replacing those rules with CRCP 251 et seq. The PDJ presides over attorney regulation proceedings and, together with a two-member Hearing Board, issues orders at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the PDJ. See CRCP 251.18(d). Disciplinary Opinions may be appealed in accordance with CRCP 251.27.

The Colorado Lawyer publishes the summaries and full-text Opinions of PDJ William R. Lucero and the Hearing Board, whose members are drawn from a pool appointed by the Supreme Court. For space purposes, exhibits, complaints, and amended complaints may not be printed. Disciplinary Opinions are printed as submitted by the Office of the?PDJ and are not edited by the staff of The Colorado Lawyer.


Case No. 12PDJ019

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

THEODORA H. LENIHAN

July 3, 2012

DECISION AND ORDER IMPOSING RECIPROCAL
DISCIPLINE PURSUANT TO C.R.C.P. 251.21(e)

This matter is before the Presiding Disciplinary Judge ("the Court") on "Complainant’s Motion for Determination of a Question of Law Regarding Sanctions and to Vacate Sanctions Hearing" filed by Adam J. Espinosa, Office of Attorney Regulation Counsel ("the People"), on June 14, 2012. Theodora H. Lenihan ("Respondent") did not file a response to the motion.1 The Court now issues the following "Decision and Order Imposing Reciprocal Discipline Pursuant to C.R.C.P. 251.21(e)."

I. SUMMARY

The Court may impose the same discipline as imposed by a foreign jurisdiction if the People do not seek substantially different discipline and if the respondent does not challenge the order on any of the grounds set forth in C.R.C.P. 251.21(d)(1)-(4). Here, Respondent has not challenged her suspension of sixty days imposed by the Supreme Court of Oregon for failing to comply with trust account certification requirements and failing to respond to inquiries from the Oregon Disciplinary Counsel ("Disciplinary Counsel"), and the People seek an identical sanction. Accordingly, the Court suspends Respondent from the practice of law in Colorado for sixty days.

II. PROCEDURAL HISTORY

The People filed a citation and complaint in this matter on February 21, 2012. Respondent did not file an answer or any other responsive pleading. The People filed a "Proof of Service of Citation and Complaint" on February 27, 2012. On March 15, 2012, the People sent a letter to Respondent advising her that her answer to the complaint had been due on March 14, 2012, and requesting that she file her answer within ten days.

On March 26, 2012, the People filed a motion for default. Respondent failed to respond to the motion, and the Court granted the default on April 23, 2012, and set the matter for a sanctions hearing on July 25, 2012. Because the Court granted default in this matter, the facts and rule violations contained in the complaint have been established by clear and convincing evidence.2

In their pending motion, the People ask the Court, pursuant to C.R.C.P. 251.21(e), to impose an identical sanction to that which the Supreme Court of Oregon ordered, and to vacate the sanctions hearing. The People also assert that because there is no genuine issue of material fact they are entitled to judgment as a matter of law in accordance with C.R.C.P. 56(h).

III. ANALYSIS

The Court hereby adopts and incorporates by reference the factual background of this case, as fully detailed in the admitted complaint.3 Respondent took the oath of admission and was admitted to the Bar of the Colorado Supreme Court on November 30, 2010, under attorney registration number 42886.4 She is thus subject to the Court’s jurisdiction in these disciplinary proceedings.5

Pursuant to Oregon RPC 1.15-2(m), every member of the Oregon State Bar ("Oregon Bar") is required to certify annually that the lawyer is in compliance with trust account management procedures in accordance with Oregon RPC 1.15-1 and 1.15-2(m) ("IOLTA certification").6 In December 2009, the Oregon Bar mailed an IOLTA certification compliance form to all active Oregon Bar members, including Respondent, setting February 1, 2010, as the due date for filing the certification. Respondent failed to complete and submit the IOLTA certification compliance form. From May 2010 to August 2010, the Oregon Bar repeatedly asked Respondent to respond to the lawful inquires of the Disciplinary Counsel regarding her IOLTA certification compliance. Respondent failed to respond to those inquiries.

Disciplinary Counsel commenced formal disciplinary proceedings against Respondent. In October 2011, Respondent and the Oregon Bar entered into a "Stipulation for Discipline." The parties agreed to a sixty-day suspension for Respondent’s violations of Oregon RPC 1.15-2(m) and 8.1(a)(2). On October 25, 2011, the Supreme Court of Oregon approved the stipulation and entered an order suspending Respondent from the practice of law for sixty days, effective on the date of the order.7

Pursuant to C.R.C.P. 257.21(e), if the People do not seek substantially different discipline and the respondent does not challenge the final adjudication of misconduct, the Court may, without a hearing or a hearing board, issue a decision imposing the same discipline as imposed by the foreign jurisdiction. Here, the People seek the same discipline as that imposed by the Supreme Court of Oregon, and Respondent has not challenged the order in these proceedings.8 Accordingly, the Court concludes that a hearing is unnecessary and suspension for sixty days is the appropriate sanction in this case.

IV. ORDER

The Court therefore ORDERS:

1. Theodora H. Lenihan, attorney registration number 42886, is SUSPENDED from the practice of law for 60 days. The suspension SHALL become effective 35 days from the date of this order upon the issuance of an "Order and Notice of Suspension" by the Court and in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h).9

2. The sanctions hearing scheduled for July 25, 2012, is VACATED.

3. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the Court on or before July 24, 2012. No extensions of time will be granted.

4. Respondent SHALL pay the costs of these proceedings. The People SHALL submit a "Statement of Costs" within 14 days of the date of this order. Respondent shall have 7 days within which to respond.

5. Respondent SHALL file with the Court, within 14 days of the effective date of the suspension, an affidavit complying with C.R.C.P. 251.28(d).

6. Should Respondent wish to resume the practice of law, Respondent will be required to submit to the People, within 28 days prior to the end of her period of suspension, an affidavit complying with C.R.C.P. 251.29(b).

__________

1. See C.R.C.P. 121, § 1-15 (stating that a responding party shall have fourteen days to respond to a motion filed within forty-two days of a trial date).

2. C.R.C.P. 251.15(b); People v. Richards, 748 P.2d 341, 346 (Colo. 1987); see also C.R.C.P. 251.21(a) ("Except as otherwise provided by these Rules, a final adjudication in another jurisdiction of misconduct constituting grounds for discipline of an attorney shall, for purpose of proceedings pursuant to these Rules, conclusively establish such misconduct.").

3. See the People’s complaint for further detailed findings of fact.

4. Respondent’s registered business address is 1722 Emerson Street, Denver, Colorado 80218. Her last known home address is 430 SW 13th Avenue, Portland, Oregon 97205.

5. See C.R.C.P. 251.1(b).

6. IOLTA is short for "Interest on Lawyers Trust Accounts."

7. See People’s Mot. for Determination of Question of Law Ex. 1.

8. In their complaint, the People cite C.R.C.P. 56(h) in support of a judgment as a matter of law imposing reciprocal discipline. However, C.R.C.P. 251.21 governs this matter and establishes both that reciprocal discipline is applicable and, because Respondent did not challenge the order, that the Court may impose reciprocal discipline without a hearing. Therefore, it is not necessary to address the matter under C.R.C.P. 56(h).

9. In general, an order and notice of sanction will issue thirty-five days after a decision is entered pursuant to C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later thirty-five days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.

_______________

Case No. 12PDJ021
(consolidated with 12PDJ043)

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

MARTIN R. STAAB

September 25, 2012

OPINION AND DECISION IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)

On August 28, 2012, the Presiding Disciplinary Judge ("the Court") held a sanctions hearing pursuant to C.R.C.P. 251.15(b). Kelly A. Murphy appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Martin R. Staab ("Respondent") did not appear, nor did counsel appear on his behalf. The Court now issues the following "Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. SUMMARY

Respondent failed to diligently represent the interests of two clients, and he neglected to communicate with them about the status of their matters. In one of those matters, he made false statements to his client about the setting of a trial date. Respondent did not cooperate with the disciplinary investigation, nor did he participate in the disciplinary proceeding. After considering the nature of Respondent’s misconduct and its consequences, the aggravating factors, and the single mitigating factor, the Court finds the appropriate sanction is suspension for one year and one day.

II. PROCEDURAL HISTORY

The People filed their complaint in case number 12PDJ021 on February 24, 2012.1 Respondent failed to answer the complaint, and the Court granted a motion for default on May 21, 2012. The People filed a complaint in case number 12PDJ043 on May 24, 2012, and filed an amended version of that complaint on July 12, 2012. On August 21, 2012, the Court granted the People’s motion for default in case number 12PDJ043 and consolidated that case with case number 12PDJ021. Upon the entries of default, the Court deems all facts set forth in the complaints admitted and all rule violations established by clear and convincing evidence.2 No evidence or testimony was presented at the sanctions hearing on August 28, 2012.

III. ESTABLISHED FACTS AND
RULE VIOLATIONS

The Court hereby adopts and incorporates by reference the factual background of this case, as fully detailed in the admitted complaints.3 Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on November 14, 1986, under attorney registration number 16218.4 He is thus subject to the Court’s jurisdiction in these disciplinary proceedings.5

Zissimos Matter

In the complaint filed under case number 12PDJ021, the People allege that Respondent violated several Rules of Professional Conduct in the course of representing Shelly Zissimos ("Zissimos"). Zissimos hired Respondent in 2006 to probate the estate of her grandmother, Velma C. Hanson ("Hanson"). Zissimos gave Respondent documents pertaining to the estate, including Hanson’s will. In a letter dated April 7, 2006, Respondent informed Zissimos that he had prepared several documents relating to the estate but he still needed to prepare additional documents. The same day, he wrote to the four heirs of the estate, including Zissimos’s mother, Patricia Hawkins ("Hawkins"), stating that his rate was $150.00 an hour and that he did not expect to spend more than ten hours on the matter. Respondent filed several estate-related documents with the probate court, and in June 2006 the court authorized Zissimos to act as the personal representative for Hanson’s estate.

On June 22, 2006, Respondent wrote to Zissimos, outlining the work that remained to be done. Respondent did not bill for the work he had performed to this point. After June 2006, he stopped working on the matter. Hawkins called Respondent on September 25, 2008, and he admitted he had "dropped the ball" on the case. He pledged to recommence work on the case, but then failed to follow through.

In January 2009, Hawkins and her husband declared bankruptcy. Hawkins had received $15,000.00 from the Hanson estate by this time and she understood she would receive an additional $4,000.00—a fact that was relevant to her bankruptcy. On June 8, 2009, Hawkins faxed Respondent a request for information about her remaining interest in the estate. Although this fax was in the case file that Respondent subsequently provided to the People in their investigation, Respondent did not respond to Hawkins at the time of her request.

Hawkins again faxed Respondent on June 24, 2009, stating that the bankruptcy trustee needed information about the status of the final distribution. Although this fax likewise was in Respondent’s case file, he did not respond to the fax at the time.

Zissimos visited Respondent’s office on numerous occasions, but he was never there. On July 9, 2009, she finally saw him at his office. Respondent told her that the case kept getting pushed to the bottom of his pile of work, but he again promised to complete work on the case. He failed to honor his promise. Hawkins’s bankruptcy trustee wrote to Respondent on July 13, 2009, requesting information about the estate, but Respondent did not reply.

In May 2011, Hawkins contacted the probate court and learned the matter had been closed in August 2009 due to Respondent’s inaction. Also in May 2011, Zissimos visited Respondent’s office. A receptionist told her Respondent no longer worked there but could be reached at his home phone number. Respondent did not return messages Zissimos left for him at his home number.

During the People’s investigation of this matter and the disciplinary proceeding, Respondent failed to respond in writing to the request for investigation and failed to cooperate in setting his deposition.

In this matter, Respondent violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about a matter and promptly comply with reasonable requests for information); Colo. RPC 1.16(d) (upon termination, a lawyer shall take steps to protect a client’s interest and surrender a client’s file); Colo. RPC 8.1(b) (a lawyer shall not knowingly fail to respond reasonably to a lawful demand for information from a disciplinary authority); and C.R.C.P. 251.5(d) (a lawyer shall respond to a request by regulation counsel for information).

Reisig Matter

The People’s complaint filed under case number 12PDJ043 concerns Respondent’s representation of Larry Reisig ("Reisig"), a longtime client of Respondent and the president and sole shareholder of AABC Truck Sales, Inc. ("AABC"). In April 2010, Reisig hired Respondent to represent AABC in a lawsuit against a person for whom AABC had done work. Respondent filed a complaint in Arapahoe County District Court on April 16, 2010. On July 22, 2010, the court issued an order indicating that a trial had not been set, there had been no filings in more than ninety days, and the case would be dismissed in thirty days unless AABC took action. Respondent then filed two notices to set a trial date, but he failed to set a trial date.

Respondent told Reisig after filing the lawsuit that he expected a trial would be held in November or December 2010. He later told Reisig that the trial would take place in 2011, even though he had failed to set a date. On November 30, 2010, the court issued another order stating that because no trial had been set, the case would be dismissed in thirty days unless AABC took action. Respondent filed a status report on December 30, 2010, indicating that he was working on clearing trial dates. On January 5, 2011, the court ordered the case to remain docketed pending the setting of trial within thirty days. Respondent did not set the trial within that period.

On February 7, 2011, the court entered an order providing that the case would be dismissed if AABC did not take action within ten days. Respondent did not take the requisite action. Yet on February 8, 2011, Respondent told Reisig that the case was set for trial in May 2011, even though he knew that was not true. Respondent took no further action on the lawsuit.

After February 8, 2011, Respondent did not respond to Reisig’s phone messages and emails. The court dismissed AABC’s lawsuit without prejudice on February 22, 2011. Reisig only learned of the dismissal upon contacting the court in April 2011. Respondent also had failed to send Reisig copies of court orders and to inform Reisig of delays in the lawsuit.

In April 2011, Reisig hired new counsel. Reisig and his new counsel attempted without success to obtain the case file from Respondent. When Reisig visited Respondent’s office in May or June 2011, someone at the office helped find the case file for Reisig.

Respondent did not respond in writing to the request for investigation in this matter, nor did he respond to the People’s communications regarding setting his deposition.

In the Reisig matter, as in the Zissimos matter, Respondent violated Colo. RPC 1.3, 1.4(a), 1.16(d), and 8.1(b), as well as C.R.C.P. 251.5(d). In addition, he violated Colo. RPC 3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).

IV. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.6 In imposing a sanction after a finding of lawyer misconduct, the Court must consider the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct, and any aggravating and mitigating evidence.

ABA Standard 3.0—Duty, Mental State, and Injury

Duty: Respondent violated a duty to his clients by not exercising reasonable diligence, providing inadequate communication, and making a false statement to Reisig.7 Respondent also neglected his duties to the legal system in the Reisig matter when he ignored several court orders directing him to take action.8 In addition, by failing to take appropriate measures upon termination of his representations, he violated his duties as a professional.9

Mental State: The complaints explicitly establish that Respondent knowingly failed to cooperate with the People’s investigation. The complaints also strongly suggest that Respondent engaged in the other misconduct either knowingly or recklessly.

Injury: Respondent injured his clients by denying them a fair opportunity to participate in court proceedings and by delaying resolution of their cases.

ABA Standards 4.0-7.0—Presumptive Sanction

ABA Standard 4.42 calls for suspension when a lawyer causes injury or potential injury to a client by knowingly failing to perform services or engaging in a pattern of neglect. Suspension also is the presumptive sanction when a lawyer knowingly deceives a client, thereby causing injury or potential injury, pursuant to ABA Standard 4.62. Likewise, suspension often is the appropriate sanction for a lawyer’s knowing violation of a court order, when that conduct actually or potentially injures a client or interferes with a legal proceeding.10

ABA Standard 9.0—Aggravating and Mitigating Factors

Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed, while mitigating circumstances may justify a reduction in the severity of the sanction.11 The Court considered evidence of the following aggravating and mitigating circumstances in deciding the appropriate sanction. Because Respondent did not participate in the disciplinary proceeding, the Court is aware of just one mitigating circumstance.

Pattern of Misconduct—9.22(c): Respondent engaged in the same misconduct in two client matters during the same general timeframe, demonstrating an incipient pattern of misconduct.12

Multiple Offenses—9.22(d): Respondent engaged in myriad types of misconduct, ranging from inadequate communication to lack of diligence to dishonesty.

Substantial Experience in the Practice of Law—9.22(i): Respondent was admitted to the bar in 1986. The misconduct at issue here reflects particularly poorly on such a long-standing practitioner.

Absence of Prior Disciplinary Record—9.32(a): The Court considers Respondent’s lack of prior discipline as a mitigating factor.

Analysis Under ABA Standards and Colorado Case Law

The balance of aggravating and mitigating factors in this case—which tips in favor of aggravation—does not call for a deviation from the presumptive sanction of suspension. However, the aggravators do suggest that a relatively lengthy suspension is appropriate here. To determine the length of suspension that is warranted under these circumstances, the Court looks to case law for guidance.

In People v. Rishel, the Colorado Supreme Court suspended an attorney for a year and a day after he seriously neglected two client matters and defaulted in the disciplinary proceeding.13 Here, unlike in Rishel, it does not appear that Respondent kept unearned client fees, yet the Rishel matter did not involve dishonesty toward a client.14 As such, the Court determines that Rishel, on the whole, provides highly relevant guidance.

In People v. Eaton, the Colorado Supreme Court approved the suspension of an attorney’s law license for a year and a day after she neglected three clients’ cases—leading to entry of default judgment in one such case—and made multiple dishonest statements to those clients.15 Although the misconduct in Eaton was somewhat more significant than that presented here, the misconduct was counterbalanced by "substantial" mitigation; as such, the Court finds that Eaton presents a helpful basis for comparison.16

Finally, the Colorado Supreme Court imposed a suspension for a year and a day in People v. Flores, which involved an attorney’s serious neglect of one client matter spanning a period of four years, and where several aggravating factors but no mitigating factors applied.17

In sum, the comparable decisions of the Colorado Supreme Court cited above and the ABA Standards support the People’s recommendation that the Respondent serve a suspension for a year and a day.

V. CONCLUSION

Respondent abandoned his fundamental duty to represent his clients with loyalty and candor. His misconduct, coupled with his violation of court orders and failure to cooperate with the People’s investigation, merits the suspension of his law license for a year and a day.

VI. ORDER

The Court therefore ORDERS:

1. MARTIN R. STAAB, attorney registration number 16218, is SUSPENDED for one year and one day. The SUSPENSION SHALL take effect only upon issuance of an "Order and Notice of Suspension."18

2. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the Court on or before October 16, 2012. No extensions of time will be granted. If Respondent files a post-hearing motion or an application for stay pending appeal, the People SHALL file any response thereto within seven days, unless otherwise ordered by the Court.

3. Respondent SHALL pay the costs of these proceedings. The People SHALL submit a "Statement of Costs" within fourteen days from the date of this order. Respondent’s response to the People’s statement, if any, must be filed no later than fourteen days thereafter.

__________

1. Two administrative suspension orders were issued to Respondent in May 2011 for failure to pay registration fees and failure to complete continuing legal education requirements. The Colorado Supreme Court attorney information website indicates that Respondent has not disclosed professional liability coverage in compliance with C.R.C.P. 227.

2. See People v. Richards, 748 P.2d 341, 346 (Colo. 1987); C.R.C.P. 251.15(b).

3. See the People’s complaints for further detailed findings of fact.

4. Respondent’s registered business address is 813 Main St., P.O. Box 748, Louisville, Colorado 80027.

5. See C.R.C.P. 251.1(b).

6. See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).

7. See ABA Standard 4.0.

8. See ABA Standard 6.0.

9. See ABA Standard 7.0.

10. ABA Standard 6.22. But see ABA Standard 6.23 cmt. (stating that "[m]ost courts impose a reprimand upon lawyers who . . . violate a court order or rule that causes injury or potential injury to a client . . ., or who cause interference or potential interference with a legal proceeding") (emphasis added).

11. See ABA Standards 9.21 & 9.31.

12. See People v. Sather, 936 P.2d 576, 579 (Colo. 1997) (accepting a conditional admission of misconduct and stating that a letter of admonition issued the previous year was "evidence of a pattern of misconduct" under ABA Standard 9.22(c) because it "concern[ed] events apparently occurring during the same time period as in this case"); In re Reardon, 759 A.2d 568, 577 (Del. 2000) ("A pattern may be discerned from two or more recognizably consistent acts that serve as a predictor of future misconduct.").

13. 956 P.2d 542, 544 (Colo. 1998).

14. Id. at 542-44.

15. 828 P.2d 246, 247-49 (Colo. 1992).

16. Id. at 248.

17. 804 P.2d 192, 194 (Colo. 1991).

18. In general, an order and notice of sanction will issue thirty-five days after a decision is entered pursuant to C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later than thirty-five days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.

_______________

Case N. 11PDJ076

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

JOSEPH JAMES VERCE

June 11, 2012

DECISION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(c)

On May 1, 2012, the Presiding Disciplinary Judge ("the Court") held a sanctions hearing pursuant to C.R.C.P. 251.19(c). Elizabeth E. Krupa appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Joseph James Verce ("Respondent") did not appear. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."

I. SUMMARY

Respondent violated Colo. RPC 3.4(c) by knowingly disobeying a court order to pay child support and Colo. RPC 8.4(d) by failing to pay child support. After considering the nature of Respondent’s misconduct and its consequences, the aggravating factors, and the scarcity of countervailing mitigating factors, the Court finds the appropriate sanction for Respondent’s misconduct is suspension for one year and one day.

II. PROCEDURAL HISTORY

On June 23, 2011, in case number 11PDJ039, Respondent was immediately suspended pursuant to C.R.C.P. 251.8.5(b) for failing to pay child support. Respondent remains suspended. The People filed a complaint in this matter on October 11, 2011, setting forth two claims for relief based on violations of Colo. RPC 3.4(c) and 8.4(d). The People mailed the complaint on that date by certified and regular mail to Respondent’s registered business address. Respondent failed to answer the complaint.

On January 4, 2012, the People filed a motion for default, to which Respondent did not respond. The Court granted the People’s motion and entered default on all claims in the People’s complaint on January 30, 2012. Upon the entry of default, the Court deems the well-pled facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.1

III. ESTABLISHED FACTS AND
RULE VIOLATIONS

The Court hereby adopts and incorporates by reference the factual background of this case as fully detailed in the admitted complaint.2 Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on October 2, 1983, under attorney registration number 12084. He is thus subject to the Court’s jurisdiction in these proceedings.3

On October 28, 2008, Respondent was ordered by the La Plata County District Court ("district court") in case number 06DR312 to pay $587.35 per month in child support to his ex-wife, Melanie Williams-Verce ("Williams-Verce"). Respondent was present at the time the district court entered this order. Respondent has paid no child support since April 1, 2010.

On January 19, 2011, Willams-Verce filed a verified entry of support judgment with the district court, indicating that Respondent owed $5,930.00 in child support, with accrued interest of $299.64. Respondent has not participated in this disciplinary matter.4 At the time of the hearing, it is estimated that Respondent owes approximately $15,000.00 in child support arrearages.5

By knowingly disobeying a court order to pay child support, Respondent violated Colo. RPC 3.4(c), which states that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal. Respondent also violated Colo. RPC 8.4(d), which provides that it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice. By failing to pay child support from April 1, 2010, to the present, in violation of the district court’s order, Respondent has acted in contravention of the district court’s authority.

IV. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct.6 In imposing a sanction after a finding of lawyer misconduct, the Court must consider the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct, and the existence of aggravating and mitigating evidence pursuant to ABA Standard 3.0.

ABA Standard 3.0—Duty, Mental State, and Injury

Duty: By neglecting to pay court-ordered child support, Respondent failed to obey an obligation under the rules of a tribunal. As an officer of the court, Respondent is expected to abide by the legal rules of substance and procedure.7 By ignoring the court order, Respondent violated duties owed to the legal system and engaged in conduct prejudicial to the administration of justice.

Mental State: Respondent knowingly disobeyed the district court’s October 28, 2008, child support order by failing to make any child support payments from April 1, 2010, through the present.

Injury: Respondent caused actual injury to the legal system, the public and his minor child. His conduct caused injury to the legal system by interfering with the administration of justice. He harmed the public by acting in a manner that undermines the public’s expectation that lawyers will abide by the legal rules of substance and procedure. Moreover, Respondent harmed his minor child by failing to pay court-ordered child support to which his child was entitled.

ABA Standard 9.0—Aggravating and Mitigating Factors

Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed,8 while mitigating circumstances may justify a reduction in the severity of the sanction.9 The Court considered evidence regarding the following aggravating circumstances, but because Respondent did not participate in the disciplinary proceedings, the Court is aware of only one mitigating factor.

Prior Disciplinary Offenses—9.22(a): Respondent received a letter of private admonition from the Colorado Supreme Court on November 25, 1991.

Dishonest or Selfish Motive—9.22(b): Respondent acted with a dishonest or selfish motive by failing to resolve his court-ordered child support debt.10

Substantial Experience in the Practice of Law—9.22(i): Respondent was admitted to the bar in 1983. The misconduct at issue here reflects particularly poorly on such a long-standing practitioner.

Remoteness of Prior Offenses—9.32(m): Respondent’s prior discipline took place in 1991. The Court regards the existence of the prior discipline and the remoteness of that offense as offsetting each other, and therefore it considers these factors neither in mitigation nor aggravation.

Analysis Under ABA Standards and Colorado Case Law

Under the ABA Standards, the presumptive sanction for Respondent’s misconduct is suspension. ABA Standard 6.22 provides that suspension is appropriate when a lawyer knowingly violates a court order or rule and there is injury or potential injury to a client or a party. Likewise, ABA Standard 7.2 states that suspension is generally appropriate when a lawyer knowingly engages in conduct that violates a duty owed to the legal profession and thereby causes injury or potential injury to a client, the public, or the legal system.

Colorado Supreme Court case law supports the imposition of a suspension for failure to pay child support. In In re Green, the Colorado Supreme Court imposed a suspension of one year and one day upon an attorney who was immediately suspended for defaulting on his child support obligation and, who knowingly over a five-year period, failed to pay over $33,000.00 of court-ordered child and spousal support.11

A suspension of one year and one day was also imposed upon an attorney for willfully failing to pay child support in People v. Hanks.12 In Hanks, the attorney was ordered to pay $20,000.00 in past-due child support and $1,500.00 per month for his three children going forward.13 Although the attorney in Hanks had contributed some money towards child support, he made little or no payments over a three-year period.14 He was $55,282.62 in arrears on his support obligations at the time of the disciplinary hearing.15

The ABA Standards and Colorado case law establish that a suspension of one year and one day is appropriate in this case. Like the attorneys’ conduct in Green and Hanks, Respondent here has neglected to pay a significant amount of child support—over $15,000.00. Furthermore, there is no indication that Respondent has paid his past-due child support obligation or negotiated a payment plan to take steps toward compliance with the child-support order. Indeed, at present, Respondent remains immediately suspended from the practice of law for his failure to meet his child support obligations. Accordingly, the appropriate sanction for Respondent’s misconduct is a suspension for one year and one day.

V. CONCLUSION

Admission to the Colorado bar obligates attorneys to adhere to high moral and ethical standards. Respondent knowingly disobeyed a court order and engaged in conduct that is prejudicial to the administration of justice when he failed to pay a significant sum of court-ordered child support for more than two years. In light of the serious actual and potential harm Respondent has caused, the applicable aggravating factors, and the scarcity of mitigating factors, the Court concludes Respondent should be suspended for one year and one day.

VI. ORDER

The Court therefore ORDERS:

1. Joseph James Verce, Attorney Registration Number 12084, is hereby SUSPENDED FOR ONE YEAR AND ONE DAY. The SUSPENSION SHALL become effective upon issuance of an "Order and Notice of Suspension."16

2. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the Court on or before July 2, 2012. No extensions of time will be granted.

3. Respondent SHALL pay the costs of these proceedings. The People SHALL submit a "Statement of Costs" within 14 days of the date of this order. Respondent SHALL have 7 days within which to respond.

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1. See People v. Richards, 748 P.2d 341, 346 (Colo. 1987); C.R.C.P. 251.15(b).

2. See Compl. for further detailed findings of fact.

3. See C.R.C.P 251.1(b).

4. Nor did Respondent participate in his immediate suspension hearing.

5. As of June 1, 2012, Respondent has failed to pay his monthly $587.35 support obligation for the past 26 months, including interest.

6. See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).

7. See ABA Standard 6.0.

8. See ABA Standard 9.21.

9. See ABA Standard 9.31.

10. See In re Green, 982 P.2d 838, 839 (Colo. 1999) (stating that attorney’s failure to resolve child support debt evidences a selfish motive); People v. Hanks, 967 P.2d 144, 145 (Colo. 1998) (same).

11. 982 P.2d 838, 838 (Colo. 1999).

12. 967 P.2d 144, 145 (Colo. 1998).

13. Id.

14. Id.

15. Cf. People v. Tucker, 837 P.2d 1225, 1226-29 (Colo. 1992) (imposing a six month suspension on an attorney who willfully failed to pay $8,000.00 in court-ordered child support during a twelve month period.); People v. Kane, 655 P.2d 390, 392-93 (Colo. 1982) (imposing a three-year suspension on an attorney for failing to honor a child support order where several factors aggravated his misconduct including: being held in contempt twice for willful disobedience of a court order, eluding arrest, and abusing the judicial process by expending unnecessary judicial resources).

16. In general, an order and notice of sanction will issue thirty-five days after a decision is entered pursuant to C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later than thirty-five days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.

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