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TCL > March 2013 Issue > Disciplinary Opinions

March 2013       Vol. 42, No. 3       Page  109
From the Courts

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. 10PDJ088

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

DEREK W. COLE

November 30, 2012

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

On September 27 and 28, 2011, a Hearing Board composed of Douglas D. Piersel and Terry F. Rogers, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a C.R.C.P. 251.18 hearing. Adam J. Espinosa appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Derek W. Cole ("Respondent") appeared pro se. The Hearing Board now issues the following "Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."

I. SUMMARY

The People allege Respondent violated Colo. RPC 1.1 by failing to competently represent his client, who was accused of sexual assault on a child, pattern of abuse. They contend that Respondent, who had never before accepted a case involving such charges, did not acquire sufficient knowledge or skill to conduct the client’s defense, nor did he adequately prepare or investigate the case. The Hearing Board agrees and finds Respondent violated Colo. RPC 1.1, warranting a suspension of his law license for ninety days.

II. PROCEDURAL HISTORY

The People filed a complaint against Respondent on August 13, 2010. On September 8, 2010, Respondent filed a motion seeking an enlargement of time to file his answer, and the PDJ granted him a new deadline of September 27, 2010. On that date, Respondent filed motions seeking dismissal of the case or, in the alternative, an order compelling the People to respond to his demands for records. The PDJ denied both of Respondent’s motions. After obtaining another extension of time, Respondent filed his answer on November 15, 2010.

The People then filed a motion for a more definite statement pursuant to C.R.C.P. 12(e), which the PDJ denied on January 20, 2011. The PDJ also denied on February 18, 2011, Respondent’s request to continue the scheduled disciplinary hearing. Following a telephonic status conference on March 22, 2011, the PDJ ruled on a number of discovery issues arising out of the People’s deposition of Respondent. The PDJ also made rulings concerning several issues during a pre-hearing conference held on March 28, 2011.

On the morning of April 20, 2011, the first day of a scheduled two-day hearing, the People informed the PDJ that Respondent’s former client Allen William Toner, a key witness who is currently incarcerated and was appealing his conviction, would refuse to testify. Respondent requested a continuance of the hearing due to constitutional Confrontation Clause concerns, and the People did not object to a continuance. Out of an abundance of caution, the PDJ continued the hearing. On May 11, 2011, the PDJ denied Respondent’s motions—both filed on the eve of the April hearing—seeking to recuse the PDJ and Hearing Board member Douglas D. Piersel.

The hearing was rescheduled for September 27 and 28, 2011. At that hearing, Lori Maier, Tamara (Knoepfle) Hoffscheldt, Lori McKay, Sandra Embry, Steven Jacobson, Mary Kay Bunting,1 S.G.,2 and Respondent testified. The PDJ admitted the People’s exhibits 1–6, 8–12, 15–25,3 and 27–28. Respondent did not move to introduce any exhibits, but at Respondent’s request the PDJ took judicial notice of the court of appeals’ unpublished decision in People v. Toner, case number 09CA0971 (June 16, 2011).4

III. FINDINGS OF FACT
AND RULE VIOLATIONS

Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on June 7, 1985, under attorney registration number 14761. He is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.5

On January 27, 2003, Allen William Toner ("Toner"), along with his wife, Mary Kay Toner ("Ms. Toner"), visited Respondent in anticipation that Toner would soon thereafter face criminal charges alleging he had sexually assaulted his thirteen-year-old niece. Toner’s brother-in-law had discovered a letter in the trash, written by his daughter and addressed to Toner, discussing their sexual contact. Toner’s brother-in-law confronted Toner, who then sought Respondent’s counsel. Respondent testified that the Toners wanted an attorney "on standby to be a buffer" between Toner and law enforcement, since Toner was "basically waiting for law enforcement to show up at his door." During the meeting, the Toners paid Respondent $300.00 in cash for two future hours of attorney services;6 Ms. Toner also recalled Respondent advising them as to the penalties associated with possible charges by showing them a table in a book concerning various classes of felonies. She did not recall any discussion of indeterminate sentencing during that consultation.

In late March 2003, an arrest warrant for Toner issued in People v. Toner, Adams County District Court case number 03CR820.7 The Adams County District Attorney alleged that on several occasions Toner had sexually assaulted his niece, charging Toner with sexual assault on a child by a person in a position of trust, a class three felony; sexual assault on a child, pattern of abuse, a class three felony; and sexual assault on a child, a class four felony.

Toner formally retained Respondent on April 1, 2003. During a meeting that day, which lasted for seven-tenths of an hour,8 Toner and Respondent discussed the criminal charges, negotiated the terms of the representation, and arranged for payment. Because Respondent had reason to believe that Pueblo County might also bring charges against Toner, Respondent asked Toner to sign two fee agreements for a $1,000.00 flat fee9 for representation in Pueblo and Adams Counties.10

Between April 1, 2003, and April 14, 2003—the date of Toner’s bond hearing—Respondent and Toner only spoke for six minutes.11 Respondent appeared at the bond hearing and requested a preliminary hearing in order to preserve Toner’s rights.12 Thereafter, Respondent did just over an hour of work in preparation for the scheduled May 27, 2003, preliminary hearing,13 which he did not attend; Toner, who did appear, reported to the court that Respondent had been hospitalized with a pinched nerve.14 Toner requested a continuance, which the court granted, resetting the preliminary hearing for July 7, 2003.15

Just a week before the preliminary hearing, Respondent submitted a written motion seeking to reschedule the preliminary hearing or, in the alternative, waive it; his motion indicated that the July 7, 2003, setting, which had not been cleared with his calendar, conflicted with a planned vacation.16 Having received no ruling on his motion to reschedule, Respondent did not appear before the court on July 7, 2003, and instead advised Toner to waive the preliminary hearing, even though Respondent had not obtained or reviewed the prosecution’s discovery at that point.17 At the disciplinary hearing, Respondent defended this decision, arguing that his strategy was to curry favor with the deputy district attorney by waiving the preliminary hearing, which he thought would be a "good bargaining chip."

Not until July 15, 2003, did Respondent pick up the deputy district attorney’s discovery file in Toner’s case,18 which included a videotape of an interview of the victim conducted by the police. Two weeks later, on July 29, 2003, Respondent and Toner appeared for an arraignment hearing, during which Toner pled not guilty.19 The case was set for a jury trial on December 3, 2003.20

In late August 2003, Respondent suffered a significant stroke that, as he recalled, left him hospitalized for six to eight weeks. Respondent testified the stroke did "physical damage to his brain" and for a while it was "touch and go," since he was "very much in a fog." Although Respondent remembered feeling "concerned for a time" about his capacity to represent others, he regained confidence: "as I got through further, I felt I was able to understand. . . . I didn’t feel I wasn’t capable of working [on] the case." Respondent also said he advised Toner that he was free to retain new counsel, but, according to Respondent, Toner declined to do so.

As a result of his incapacitation, Respondent did not appear for the motions hearing on September 26, 2003. During the motions hearing, the deputy district attorney notified the court that Respondent’s paralegal had contacted him with the news of Respondent’s stroke, and Toner mentioned that he had received the same information from Respondent’s associate.21 Following his recovery, Respondent did not seek additional time to file pre-trial motions concerning application of the spousal privilege, the propriety of piercing the rape-shield statute, the hearsay testimony of the victim, or the victim’s competency to testify. At the disciplinary hearing, he explained this was because he never planned to file pre-trial motions in Toner’s case in the first place, since his "evaluation of the case was that there were no motions . . . eligible or worthy to file." He also inveighed against the suggestion that he should have made efforts to pierce the rape-shield statute or challenge the victim’s competency: "I wouldn’t have done that to a child. My ethic is stronger than that. . . . If I’ve got to be responsible for making a child who is telling the truth go through a lot of stress, I just can’t do that. I’m not going to antagonize a poor child."

In preparation for the trial setting on December 3, 2003, Respondent reviewed the prosecution’s discovery and spoke with Toner, Ms. Toner, and the detective assigned to the case. He admitted, however, that he did not conduct any other investigation to ascertain the accuracy of the victim’s videotaped statements, request that Toner undergo a psycho-sexual evaluation, contact any witnesses endorsed by the prosecution, obtain the outcry letter written by the victim, independently search for physical evidence, procure the drawings created by the victim during her videotaped interview, endorse or subpoena any lay witnesses for trial, or consult with or hire any expert witnesses.

Respondent testified at the disciplinary hearing that all lay witnesses were "against" Toner, so he chose not to endorse any; that he asked the deputy district attorney for all discovery; that he did not deem a psycho-sexual evaluation necessary; and that he chose not to interview witnesses or conduct further investigation because he did not want to enrage Toner’s family by "stirr[ing] up a hornet’s nest." Rather than "bash[ing] around like a bull in a china shop," he said he determined to "finely, delicately navigate around the wasteland" of the case by placating the deputy district attorney in the hopes of securing his lenience during plea bargaining. Respondent also contended that any such investigation on his part was unnecessary and unwanted, since Toner never insisted Respondent undertake any specific work and in fact wished to plead guilty in order to spare his family the trauma of a trial. Somewhat paradoxically, however, Respondent also testified that throughout the representation Toner "went back and forth" regarding whether he should go to trial and often tried to convince Respondent to claim that the child victim had seduced Toner.

Respondent and Toner appeared at a pre-trial conference on November 26, 2003. During that hearing, Respondent advised the court that Toner wished to consider making a plea but requested additional time to consult with a surety so Toner could remain on bond.22 The court advised Respondent that, should Toner plead guilty to sexual assault on a child under the age of fifteen, Toner would not be bond-eligible.23 At Respondent’s request, the court continued the pre-trial conference until December 1, 2003.24

On December 1, 2003, Respondent and Toner again appeared before the court to enter a plea. Per the agreement with the deputy district attorney, Toner pled guilty to the most serious charge against him—sexual assault on a child, pattern of abuse—and in return the deputy district attorney dismissed the two remaining lesser charges.25

After Respondent announced Toner wished to enter this plea, the court advised Toner that such a plea would carry a minimum prison sentence of ten years and a maximum sentence of indeterminate length, not to exceed life in prison, followed by a minimum of twenty years of parole.26 The court also made clear that "this could be a lifetime sentence"27 and that Toner "would not be eligible for probation."28 Ms. Toner, who was in the courtroom, remembered feeling this sentence was "one-hundred times worse" than she had expected, since she did not believe Respondent had ever addressed the possibility of a lifetime sentence with her. S.G., Toner’s sister-in-law and the mother of the victim, was also present in the courtroom that day; she testified that based on her observations of Toner, what she saw "was shock—he collapsed into his chair." As S.G. remarked, Toner’s reaction was not consistent, "body language-wise," with someone who knew beforehand what he was facing.

During this advisement, Respondent requested a break in the proceedings to discuss with Toner the sentencing scheme, saying, "Your Honor, I would like to discuss this with my client, see if he still wishes to enter his plea based on the new information. . . . I was confused."29 At the disciplinary hearing, Respondent testified that the court’s sentencing advisement was "a little different" from what he had expected based on his research, and it was incumbent on him to ensure Toner had a complete understanding of the penalties he faced. "I wanted to make sure if there was something different than I had told him, that there was no more confusion," Respondent said. After a pause in the proceedings to confer, Toner pled guilty, as planned, to sexual assault on a child, pattern of abuse.

On February 9, 2004, the court held a sentencing hearing. Respondent attempted to call to the stand Jack Tagger, a counselor who had been working with Toner, but the court made clear defense witnesses did not have a right to speak.30 The prosecutor requested the minimum mandatory sentence, given that Toner had "stepped up to the plate" by acknowledging his crime, thereby avoiding the need for trial and consequent trauma to the victim, who would have had to testify.31 Respondent then argued for probation, but the judge again instructed him that the plea carried a mandatory prison sentence and probation was not legally possible.32 Toner received a prison sentence of ten years to life, with a parole period of twenty years to life.33

In early 2007, the court appointed Gregory Lansky ("Lansky") as alternate defense counsel. With Lansky’s assistance, Toner filed a motion for post-conviction relief, alleging ineffective assistance of counsel pursuant to Crim. P. 35(c). Lansky hired Steven Jacobson, Esq. ("Jacobson"), as an expert witness in the field of criminal defense.34 As Lansky requested, Respondent tendered his entire file for the Toner case to Lansky and Jacobson, and Jacobson reviewed the file’s contents.

Hearings were held on Toner’s Crim. P. 35(c) motion on March 13, 2009, and April 9, 2009. Respondent testified, as did Jacobson, who was qualified as an expert and, in that capacity, asserted that Respondent’s performance as counsel fell well below the professional standards of the Colorado legal community.35 Despite this testimony, the trial court denied Toner’s motion for post-conviction relief, finding that Respondent’s representation of Toner was deficient but did not result in prejudice to Toner, since Toner would have pled guilty regardless of Respondent’s performance as his attorney. The court reasoned that Toner evidenced an overwhelming sense of guilt and remorse, as well as a desire to avoid further harm to his entire family, and therefore Lansky failed to present evidence showing that a trial would have produced a different result. The court also held that the plea agreement conferred on Toner the benefit of avoiding consecutive sentences. Finally, the court reduced Toner’s sentence from ten years to eight to correct an error in the original sentence.

Toner appealed. The court of appeals found no prejudice had accrued to Toner, given that there was overwhelming evidence of Toner’s guilt and remorse, as well as the fact that Toner benefitted from a negotiated plea that reduced the number of charges and eliminated the risk of consecutive sentences. As such, it affirmed the trial court’s judgment without additional inquiry into whether Respondent’s representation was deficient. Toner remains incarcerated with the Colorado Department of Corrections.

The People plead but one claim in this disciplinary proceeding: that Respondent violated Colo. RPC 1.1, which provides that a lawyer must competently represent clients. According to the rule, competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In bringing this claim, the People rely heavily on the expert witness testimony of Jacobson, who was qualified by the PDJ as an expert in criminal defense with a subspecialty in defense against charges of sexual assault on children.

In accord with the People’s complaint,36 Jacobson opined that Respondent’s representation of Toner did not meet the competency standards demanded by Colo. RPC 1.1. His unfavorable appraisal of Respondent’s representation can broadly be grouped into five categories of errors, as follows: (1) Respondent did not understand the penalties associated with the charges; (2) Respondent senselessly waived the preliminary hearing; (3) Respondent never asked Toner to sit for a psycho-sexual evaluation; (4) Respondent neglected to independently investigate the case and failed to file valid motions; and (5) Respondent did nothing to prepare for trial. We discuss each point in turn.

First, Jacobson believes Respondent lacked proper appreciation for the unique aspects of cases involving sexual assault on a child, particularly given that Toner’s was the first such case Respondent had ever accepted. Jacobson explained that such charges demand a defense response akin to that which is appropriate in a murder case, since the presumption of innocence may erode in order to protect the child victim, the burden of proof may subtly shift, unusual evidentiary and hearsay rules apply, and, most salient, the possible penalties and sentencing schemes differ from those that normally govern felonies.37 As evidence of Respondent’s failure to study—and properly advise Toner of—the possible ramifications associated with his plea, Jacobson pointed to an absence of legal research concerning sentencing in Respondent’s file, Respondent’s failure to bill any time for such research, his minimal contact with Toner after mid-August 2003, and Respondent’s statements and Toner’s reaction at the December 1, 2003, plea hearing.

Second, Jacobson objected to Respondent’s waiver of the preliminary hearing. As the trial court explained to Toner, a preliminary hearing forces the prosecution to prove to the court that probable cause exists to believe the defendant has committed the alleged crimes.38 At the disciplinary hearing, Jacobson expounded on this concept, noting that the preliminary hearing "freeze[s] facts" and exposes the child to cross-examination. For that reason, he said, a preliminary hearing is a right, and one waives it only when one receives something in exchange. Jacobson said that without discovery Respondent was in no position to advise Toner to take such an action, and he had never heard of an attorney advising a client to waive a preliminary hearing prior to the attorney reviewing discovery, remarking that it was "impossible to fathom what [Respondent’s] strategy was," since Toner did not benefit from the waiver.

Third, Jacobson described a psycho-sexual evaluation as a sine qua non in defending against charges of sexual assault on a child, noting that in plea bargaining the results of a psycho-sexual evaluation offer the greatest opportunity for leverage in moving away from an indeterminate sentence. Jacobson painted psycho-sexual evaluations as entirely advantageous for the defense: if the results are favorable, they can be used to negotiate with the prosecution; if the results are adverse, they are not discoverable.39

Fourth, Jacobson challenged Respondent’s decision not to undertake any independent investigation of the case or to file even one motion on Toner’s behalf. In Jacobson’s opinion, the case was "rife with possibility for impeachment," yet Respondent never probed to uncover certain facts, including inconsistencies and dubious accusations in the victim’s recounting, as well as the victim’s prior sexual history, which Jacobson suggested should have been used to argue the victim had transferred her knowledge base from earlier experiences to her interactions with Toner. Jacobson also faulted Respondent for failing to bring a motion to pierce the rape-shield statute, which would have allowed introduction of such evidence, and a motion to preclude Ms. Toner’s testimony under the spousal privilege doctrine. In general, Jacobson reproached Respondent for viewing his defense efforts as inherently limited by Toner’s admission of guilt, arguing that Respondent should have viewed such an admission not as heralding the "end of his job" but the beginning. "Part of a criminal lawyer’s charge," he commented, "is to look under any rock" and raise "any colorable argument"; because Respondent did not do so, Jacobson concluded that Toner was deprived of zealous representation.

Finally, it was Jacobson’s opinion that Respondent failed to adequately prepare for trial. While reviewing Respondent’s file, Jacobson noted it contained none of the documents typically found in the file of a lawyer who anticipates going to trial. Jacobson found in the file no preliminary opening or closing statements, outlines for cross-examination of witnesses, draft jury instructions, or legal research of any kind. Jacobson suggested the file’s contents, coupled with the low flat fee Respondent charged Toner, signals that Respondent never intended to take Toner’s case to trial and had always planned to broker a plea deal.

Indeed, Jacobson theorizes that Respondent’s orientation to the entire case was mirrored by the low fees he charged: Jacobson postulated that because Toner confessed his guilt to his family and to Respondent from the beginning, Respondent believed he need not defend against the substantive allegations and therefore charged Toner a fee reflective of his anticipated level of effort for the case. In fact, Respondent’s testimony in the disciplinary hearing obliquely validates Jacobson’s theory: Respondent said, "I set the fees based on the fact that when allegedly somebody tells the whole world they’re guilty, I—it probably would be pretty unethical of me to, you know, ask for five or ten thousand dollars on the case. . . ."40

The Hearing Board agrees with Jacobson’s analysis and finds Respondent failed to competently represent Toner in violation of Colo. RPC 1.1. The first comment to that rule indicates competent representation is determined by a constellation of factors, including

the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.41

When measured against these standards, Respondent’s knowledge and skill fall woefully short of what is expected of Colorado lawyers, especially in a case where the stakes are so high. Toner’s was Respondent’s first case involving sexual assault on a child, yet Respondent failed to affiliate with a more experienced practitioner or to research and study the complicated and specialized statutes governing such charges.42 Indeed, Respondent’s conduct suggests he lacked understanding of the governing bail and sentencing schemes, was unfamiliar with the singular evidentiary rules that apply in such contexts, and was unaware that experienced practitioners in the field believe a psycho-sexual evaluation is indispensible in defending against such charges.

We also conclude Respondent’s thoroughness and preparation throughout the Toner case were wanting. Comment five to Colo. RPC 1.1 notes that competent handling of a matter requires an "inquiry into and analysis of the factual and legal elements of the problem," as well as sufficient attention and preparation, which is shaped in part "by what is at stake." As Jacobson explained, charges involving sexual assault on a child potentially carry life sentences with little chance of parole, so Respondent had a heightened duty to sedulously prepare both the factual and legal aspects of Toner’s case, which he neglected to do.

Respondent’s proffered justifications for failing to investigate are unavailing, in our view. Despite his protestation that little factual inquiry was necessary because Toner wished to "throw himself under the bus," Respondent also testified that Toner vacillated until the end as to whether to go to trial. But even if Toner wished to plead guilty, Respondent should have conducted more thorough preparation and investigated the charges. The Hearing Board finds clear and convincing evidence that such investigation was likely to have been fruitful. Had Respondent conducted interviews of key witnesses, he might have discovered that S.G. and her husband, the victim’s parents, were of the strong opinion—as S.G. testified in the disciplinary hearing—that Toner’s incarceration should last no more than ten years. Because Respondent never attempted to interview S.G., he was not aware of the potentially mitigating effect of her family’s opinion in the sentencing portion of Toner’s trial.

Moreover, Respondent’s concern that additional investigation, even if fruitful, would have "terrorize[d] a child when I kn[e]w she was telling the truth," evidences a misguided notion of his obligations as a defense attorney. And Respondent’s contention that his client’s admissions limited the defense he could provide also founders, since "[t]he duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty."43 We therefore conclude Respondent violated Colo. RPC 1.1 by failing to competently represent Toner.

IV. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law govern the selection and imposition of sanctions for lawyer misconduct. ABA Standard 3.0 mandates that, in selecting the appropriate sanction, the Hearing Board consider the duty breached, Respondent’s mental state, the injury or potential injury caused, and the aggravating and mitigating evidence.

ABA Standard 3.0—Duty, Mental State, and Injury

Duty: Respondent was vested with a duty to zealously represent his client. This duty encompasses the responsibility to acquire the requisite knowledge and skill in order to conduct a client’s defense, to adequately prepare the matter, including inquiry into the legal and factual aspects of the case, and to use methods and procedures that meet the standards of competent Colorado practitioners. As we stated above, a lawyer is not relieved of these obligations because the client has confessed his guilt or is willing to plead guilty to the most serious charge.

Mental State: We conclude Respondent knowingly declined to arm himself with the necessary study and preparation to competently defend Toner.

Injury: Respondent argues Toner was not injured because he obtained for Toner the "best result he could get under the facts," citing in support the court of appeals’ opinion affirming the trial court’s Crim. P. 35(c) conclusions. The court of appeals reasoned that because Respondent negotiated a plea to reduce the number of charges and eliminate the risk of consecutive sentences, Respondent’s representation did not prejudice Toner.44 But Jacobson viewed the court of appeals’ conclusion with skepticism, opining that Respondent’s efforts did not, in fact, enable Toner to avoid consecutive sentences, which were unlikely in the first place. As a result, Jacobson testified at the disciplinary hearing that had Respondent competently defended Toner, Toner likely could have benefitted from an outcome far more favorable than the sentence he ultimately received.

The task before us, however, is not to question the court of appeals’ legal conclusions, which are based on altogether separate standards, but rather to determine whether Toner was harmed according to the definitions set forth in the ABA Standards. Here, it is enough to find that regardless of the outcome, Respondent’s process and methods were flawed, threatening his client with great potential harm. Respondent advised Toner to accept the plea offer, which carried a mandatory indeterminate prison sentence; and Respondent did so without thoroughly investigating the case, even though he—and by extension Toner—failed to appreciate the legal consequences of such a plea. We therefore conclude Respondent caused Toner serious potential harm.45

ABA Standard 9.0—Aggravating and Mitigating Factors

Aggravating circumstances are any factors that may justify an increase in the degree of discipline to be imposed, and mitigating circumstances are any considerations or factors that may justify a reduction in the severity of the sanction. The Hearing Board considers evidence of the following aggravating and mitigating factors in determining the appropriate sanction.

Pattern of Misconduct—9.22(c): The People argue we should consider a private admonition issued to Respondent in 2009 as a prior disciplinary offense pursuant to ABA Standard 9.22(a). That matter concerned a 2007 case wherein Respondent failed to represent his client diligently and neglected to reasonably communicate with the client in violation of Colo. RPC 1.3 and 1.4(a). Because the underlying events in the Toner case took place well before those addressed in the private admonition, we decline to consider that admonition as prior disciplinary history.46 Instead, we consider the 2009 private admonition, together with the facts before us, as a nascent pattern of misconduct entitled to relatively little weight in aggravation.

Refusal to Acknowledge Wrongful Nature of Conduct—9.22(g): Respondent continues to maintain that he satisfied his professional obligations in Toner’s representation, demonstrating both a misguided notion of a defense lawyer’s ethical obligations to his or her clients and an intractable but erroneous belief that he adequately prepared Toner’s case, even though he did so "differently" than other attorneys would.

Substantial Experience in the Practice of Law—9.22(i): Respondent has been licensed since 1985 and therefore has substantial experience in the practice of law, which we consider in aggravation.

Personal or Emotional Problems—9.32(c): In late August 2003, Respondent suffered a stroke that incapacitated him for almost two months—a critical time for preparation and investigation in Toner’s case. We accord only limited weight to this factor, since Respondent testified he was fully able to orchestrate Toner’s defense to his own satisfaction following his hospitalization.

Delay in Disciplinary Proceedings—9.32(j): We consider this factor in mitigation, given that Respondent represented Toner in 2003 and early 2004, and the People filed their complaint in 2010. The intervening time, combined with the fact that Respondent later surrendered his entire file to Lansky, Toner’s Crim. P. 35(c) counsel, probably hampered Respondent’s recall of events.

Failure of Injured Client to Complain—9.4(f): Throughout this disciplinary proceeding, Respondent has emphasized that Toner never complained to the People. That Toner did not grieve Respondent in the disciplinary process, however, is considered neither an aggravating nor a mitigating factor.

Sanctions Analysis Under ABA Standards and Case Law

We look, in this case, to ABA Standards 4.52 and 4.53. ABA Standard 4.52 provides that suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, thereby causing a client injury or potential injury. ABA Standard 4.53, meanwhile, calls for public censure when a lawyer exhibits failure to understand essential legal doctrines or procedures and therefore injures or potentially injures a client.

The People urge the Hearing Board to impose a six-month suspension with only ninety days served and the remainder stayed upon successful completion of a two-year probationary period. They cite two precedential cases in support of such a sanction.47 In the first, People v. Proctor, an attorney was suspended for six months for neglecting and incompetently handling a case involving sexual assault on a child, resulting in significant injury to his client and the legal system.48 There, the attorney, who did not have prior disciplinary history, failed to move to change venue, use information he possessed that refuted the opinion of the prosecution’s expert, interview a treating physician, consult with experts, follow up on his request for a medical examination of the victim, use an investigator, review certain prospective evidence, file motions to suppress hearsay statements, or study key legal authorities governing evidentiary issues in the case.49

The People also cite People v. Myers, a case where an attorney, who represented a client accused of sexual assault on a child in a position of trust, failed to investigate her client’s case in an appropriate and timely manner, failed to timely file motions, and failed to order necessary transcripts, thereby violating Colo. RPC 1.1 and 1.3.50 She also filed misleading witness and exhibit lists, which constituted dishonesty or misrepresentation in contravention of Colo. RPC 8.4(c).51 Considering the attorney’s recent disciplinary offenses, the seriousness of the misconduct, and the mitigating factor of personal or emotional problems, the Colorado Supreme Court suspended the attorney for thirty days.52

Although the Hearing Board located two cases imposing public censure for stand-alone violations of Colo. RPC 1.1,53 those cases are not as factually analogous as Proctor. Accordingly, we follow Proctor’s example, since Proctor underscores that a defendant accused of sexual assault on a child may face a life sentence as a result of incompetent representation.54 We therefore conclude a short period of suspension is warranted in this case. Nevertheless, in light of our finding that Respondent caused serious potential injury, as opposed to the finding of significant actual injury in Proctor, we cannot go so far as to impose a six-month suspension, as the People request. Accordingly, we determine that a suspension lasting ninety days is appropriate here.

V. CONCLUSION

Defense lawyers, even those involved in defending against the most heinous charges, owe a duty of loyalty to their clients. This duty compels attorneys to competently represent their clients, which entails acquiring the requisite knowledge and adequately preparing and investigating their clients’ cases. This duty transcends empathy for the alleged victim, does not crumble in the face of a client’s admissions, and cannot be reconciled with a "no harm, no foul" attitude toward client representation. Because Respondent failed to honor the duty he owed to Toner, we conclude his license to practice law should be suspended for ninety days.

VI. ORDER

The Hearing Board therefore ORDERS:

1. DEREK W. COLE, attorney registration number 14761, is SUSPENDED FOR NINETY DAYS. The suspension SHALL take effect only upon issuance of an "Order and Notice of Suspension."55

2. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the PDJ on or before Monday, December 19, 2011. No extensions of time will be granted. If Respondent files a post-hearing motion or an application for stay pending appeal, the People SHALL file any response thereto within five days, unless otherwise ordered by the PDJ.

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

4. Respondent SHALL promptly comply with C.R.C.P. 251.28(a)– (c), concerning winding up of affairs, notice to parties in pending matters, and notice to parties in litigation. Respondent also SHALL file the PDJ, within ten days of the issuance of the "Order and Notice of Suspension," an affidavit complying with C.R.C.P. 251.28(d).

__________

1. Mary Kay Bunting was formally known as Mary Kay Toner. She then changed her name to Mary Kay Ferrell and later to Mary Kay Bunting.

2. We identify the victim’s mother by her initials.

3. Exhibits 15 through 24 are transcripts of various hearings. Copies of these transcripts were admitted into evidence. After Respondent questioned the authenticity of these transcripts, the People called to the stand the court reporters who had transcribed them and introduced the sealed official transcripts during their testimony.

4. In assessing the testimony and evidence presented, the Hearing Board is guided by C.R.C.P. 251.18(d), which provides in part that "proof shall be clear and convincing evidence."

5. See C.R.C.P. 251.1(b). Respondent’s registered business address is 1532 Galena Street, Suite 280, Aurora, Colorado 80010-2292.

6. Exs. 2 & 5.

7. Ex. 1.

8. Ex. 8. Respondent agrees his billing invoices reflect that this meeting lasted approximately forty-two minutes, but he could not recall whether these records accurately capture all the time he spent conferring with Toner. Indeed, throughout the disciplinary hearing Respondent contended his invoices fail to capture all the time he spent on Toner’s case. But we cannot adopt Respondent’s characterization of these records. Respondent’s billing invoices are meticulous, recording his activities down to just one-tenth of an hour, and thus we find by clear and convincing evidence that they completely encapsulate the full extent of his work on Toner’s matter.

9. Exs. 3-4 & 6. The Toners later paid Respondent an additional $500.00 for his work on the case. Ex. 6.

10. The Pueblo County District Attorney never filed charges against Toner.

11. Exs. 8-9.

12 Ex. 15 at 2:16-23.

13. Ex. 10.

14. Ex. 16 at 2:9-10.

15. Id. at 2:7-3:8.

16. Ex. 27 at 42-43.

17. Ex. 17 at 4:3-4.

18. Ex. 11.

19. Ex. 18 at 2:9-12.

20. Id. at 2:25-3:2.

21. Ex. 19 at 2:13-3:4.

22. Ex. 20 at 3:16-21.

23. Id. at 3:22-25.

24. Id. at 5:5-16.

25. Id. at 3:6-12.

26. Id. at 4:3-6:19.

27. Id. at 4:16

28. Id. at 6:6-7.

29 Ex. 21 at 5:12-15 (emphasis added).

30. Ex. 22 at 3:3-14.

31 Id. at 5:16-6:14.

32. Id. at 9:4-24.

33. Id. at 10:18-22.

34. See Ex. 25, Jacobson’s curriculum vitae current through March 2011.

35. Ex. 24 at 19:10-13.

36. See Compl. ¶¶ 23(a)-(h).

37. As Jacobson observed, a defense attorney must plan his or her strategy in light of several factors. First, the defendant faces a possible life sentence. Second, practically speaking, parole is not available for at least twelve years. And third, even when parole is available, the parole rate for pattern sex offenders is one percent.

38. Ex. 17 at 3.

39. Jacobson also mentioned that psycho-sexual evaluations are useful in crafting a defense strategy. If the parties strike a plea, the court will order an evaluation for sentencing purposes, so defense lawyers know that adverse psycho-sexual evaluation results may militate against pleading and in favor of going to trial.

40. See also Respondent’s Hrg. Br. at 2 ("Respondent ‘competently’ represented Mr. Toner, at all stages of the latter’s case, based upon the facts and information then know[n] to Respondent, much of which Respondent got from (1) Mr. Toner’s own mouth, and (2) non-suppressible ‘confessions’ (of his guilt), made to family and friends, before Respondent was retained as counsel, which resulted in Respondent achieving the best possible result for Mr. Toner, based upon the ‘totality’ of all the facts and circumstances of Mr. Toner’s case; then known by Respondent."). (Emphasis in original).

41. Colo. RPC 1.1 cmt. 1.

42. As Jacobson testified, many district attorneys’ offices across the Front Range have developed specialized units designed exclusively to prosecute such actions.

43. People v. May, 745 P.2d 218, 221 (Colo. 1987) (quoting I ABA Standards for Criminal Justice, Defense Function § 4-4.1 (1986)).

44. The court of appeals noted that post-conviction relief under Crim.P. 35(c), based on allegations of ineffective assistance of counsel, is appropriate only when the defendant proves by the preponderance of the evidence that both counsel’s assistance was deficient and such performance prejudiced him; that is, but for counsel’s deficiencies, the defendant would not have pled guilty but instead would have insisted on going to trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Naranjo, 840 P.2d 319, 325 (Colo. 1992).

45. See In re Fisher, 202 P.3d 1186, 1194 (Colo. 2009) (affirming hearing board’s finding that if attorney had taken steps to become familiar with standards and procedures prior to his client’s termination of the attorney-client relationship, he could have informed his client of the potential injury she might suffer if she did not allow him to continue working to protect her interests).

46. See People v. Williams, 845 P.2d 1150, 1153 n.3 (Colo. 1993) (electing to consider another sanction, which was imposed after most of the conduct forming the basis of the disciplinary proceeding, as a pattern of misconduct rather than prior discipline); People v. Honaker, 863 P.2d 337, 340 (Colo. 1993) (same).

47. See In re Roose, 69 P.3d 43, 48 (Colo. 2003) (stating that only the Colorado Supreme Court "has the power to determine the law of this jurisdiction as applied in disciplinary proceedings").

48. 922 P.2d 931, 932-33 (Colo. 1996).

49. Id. at 932.

50. 908 P.2d 101, 101-02 (Colo. 1995).

51. Id. at 102.

52. Id.

53. See People v. Moskowitz, 944 P.2d 76, 77 (Colo. 1997) (publicly censuring attorney for failing to adequately prepare and investigate, which prevented him from realizing an involuntary bankruptcy petition was ill-advised and without factual or legal basis, but where several factors were found to mitigate the misconduct); People v. Silvola, 888 P.2d 244, 244-45 (Colo. 1995) (imposing public censure where attorney incompetently represented his nephew on two felony theft charges, where such misconduct was aggravated by a prior admonition but mitigated by honesty and cooperation in disciplinary investigation).

54. 922 P.2d at 933.

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

_______________

Case No. 12PDJ016

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

CHRISTOPHER PAUL FORSYTH

December 17, 2012

OPINION AND DECISION DISMISSING COMPLAINT
PURSUANT TO C.R.C.P. 251.19(b)

On October 2 and 3, 2012, a Hearing Board composed of William H. Levis and Regina M. Rodriguez, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a hearing pursuant to C.R.C.P. 251.18. Adam J. Espinosa appeared for the Office of Attorney Regulation Counsel ("the People"), and Gary S. Cohen appeared on behalf of Christopher Paul Forsyth ("Respondent"). The Hearing Board now issues this "Opinion and Decision Dismissing Complaint Pursuant to C.R.C.P. 251.19(b)."

I. SUMMARY

The People claim that Respondent engaged in frivolous litigation and prejudiced the administration of justice in violation of Colo. RPC 3.1 and 8.4(d) by filing an appeal that the Colorado Court of Appeals deemed to be without merit. The Hearing Board concludes that the People have not proved misconduct by clear and convincing evidence, and we therefore dismiss their complaint.

II. PROCEDURAL HISTORY

The People filed their complaint in this matter on February 14, 2012. Through counsel, Respondent filed an answer on March 5, 2012.1 A one-day hearing was originally scheduled in this case for July 31, 2012. The PDJ subsequently granted Respondent’s motion to continue the trial, and the PDJ re-set the matter as a two-day hearing.

During the hearing, the Hearing Board heard testimony from Respondent, Troy Rackham, Peter Forbes, Doug Thomas, and Carmen Decker and considered the stipulated facts, stipulated exhibits 1-7, the People’s exhibits 13-14 and 20, and Respondent’s exhibit A.2

III. FINDINGS OF FACT
AND CONCLUSIONS OF LAW

Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 13, 1993, under attorney registration number 22608.3 He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings.4

Representation of May McCormick

This disciplinary matter arises out of Respondent’s representation of May McCormick ("McCormick"). Respondent, who primarily practices in the area of worker’s compensation, has represented McCormick since July 2004, when she hired him to file a worker’s compensation claim against her then-employer, Exempla Healthcare ("Exempla"). After filing that claim, Respondent brought a civil complaint on McCormick’s behalf in Denver District Court on August 19, 2005.5 In the civil action, McCormick asserted ten tort claims (bad faith breach of insurance contract, civil conspiracy, and outrageous conduct) against Exempla and several other defendants, including Thomas, Pollart, Miller & Wetmore, LLC ("TPMW") and Brad Miller ("Miller"), the firm and the attorney who defended against her worker’s compensation claim.6

In late 2005, the defendants moved to dismiss the entire civil action for failure to state a claim under C.R.C.P. 12(b)(5).7 On March 22, 2006, Judge R. Michael Mullins dismissed nine of McCormick’s ten claims, leaving one remaining bad faith count against Exempla.8 Respondent filed a notice of appeal contesting the dismissal of the nine tort claims.9

A motions hearing concerning attorney’s fees was then scheduled for February 7, 2008.10 Carmen Decker ("Decker") was present for TPMW, as was Peter Forbes ("Forbes") for Miller and Troy Rackham for Exempla.11 Just before the hearing commenced, Respondent and opposing counsel discussed a possible settlement.12 After the hearing began and the lawyers entered their appearances, Judge Mullins permitted the parties to take a recess to continue their discussion.13

The lawyers engaged in further negotiations and then reconvened in the courtroom to present a settlement to the court. As Decker explained to Judge Mullins, McCormick agreed to discharge against all of the defendants "all claims that were brought in the District Court case that could have been brought and any claims arising out of any facts up to today’s date," in exchange for the defendants waiving their right to attorney’s fees and costs.14 During a colloquy with Judge Mullins, Respondent and defense counsel stated that the settlement did not affect McCormick’s right to proceed with her worker’s compensation claim.15

Judge Mullins asked whether the parties wanted to move to dismiss immediately or after reducing the agreement to writing, and Forbes responded that the statements made on the record would suffice.16 Judge Mullins indicated he would dismiss the case with prejudice and memorialize the dismissal in a minute order.17 He asked if there were any "additional matters to be resolved that ha[d] not been placed on the record" and whether the record contained "the complete agreement of the material terms of this settlement."18 Decker responded, "We anticipate a mutual release."19

Judge Mullins then asked McCormick whether she understood that the settlement agreement "ends the case."20 McCormick affirmed that she understood the agreement and consented to it, and she said she had no questions.21 Just before concluding the hearing, Judge Mullins told the parties, "If you all [have] any problems with the . . .," and then appeared to think better of inviting the parties to return to court with any outstanding issues, saying, "well, I’ll just leave that alone."22 At the disciplinary hearing, Respondent and Forbes both testified that at the conclusion of the February 7 hearing, they believed the agreement was "done."

Eight days later, on February 15, 2008, Decker sent Respondent a "Mutual Settlement Agreement and Release of All Claims" ("Release").23 The Release comprised nearly seven single-spaced pages of text, not including signature pages. It contained eight recitals, including the statement that McCormick’s worker’s compensation claim was "still pending and [was] in no way affected by the resolution of the claims covered by [the Release]" and the representation that the district court had ruled the nine dismissed tort claims to be "groundless, frivolous or filed without substantial justification."24

The second section of the Release set forth nine "operative provisions," including the requirements that McCormick release "any and all past, present or future claims" against the defendants and that she indemnify and hold the defendants harmless from liability.25 Also included was a "non-disparagement" clause, which provided that McCormick "shall not engage in any publicity regarding the matters that are the subject of this Agreement and shall not make any statements or criticize, disparage, slander, libel, defame, or otherwise, in any manner, directly or indirectly impugn, damage or take any action that could adversely affect the reputation of Defendants."26

Like the non-disparagement clause, other provisions of the Release were broadly worded, such as the following: "If it ever becomes necessary to do so, this document shall be construed or interpreted in its broadest and most complete sense in order to accomplish a complete termination of all controversies, claims, or defenses heretofore existing between or among the Parties."27 Further, McCormick was to "forever end any claim she [might] have" against the defendants and "never, ever, sue" them, and the purpose of Release was to "forever terminate any and all claims, demands, suits and actions of any type and for Defendants to forever find their peace from her claims."28 In addition, a provision entitled "Entire Agreement" indicates that the Release "embodies the entire agreement among the Parties [and] supersedes all prior agreements and understandings, if any, whether oral or written, express or implied, relating to the subject matter hereof. . . ."29

Respondent testified at the disciplinary hearing that the Release bore little resemblance to his expectations. Based upon his experience in worker’s compensation cases, he anticipated that any release would be "a paragraph or two" and would not include a non-disparagement clause. Forbes also testified that he had expected the release would be only one to five paragraphs long.

Since Respondent viewed McCormick’s matter as "the most contentious case he ha[d] ever handled in any arena," he resolved to examine the Release with a "fine-toothed comb." Upon review, Respondent grew concerned that the defendants could assert the non-disparagement clause limited McCormick’s arguments in her worker’s compensation case. Even though the parties stated during the February 7 hearing that the settlement agreement would not affect that case and the Release contained a recital to that effect, the Release also represented that it superseded all prior agreements of the parties as to the same subject matter.30 As such, Respondent believed the defendants might argue that the non-disparagement clause barred McCormick from asserting in the worker’s compensation case that her treating physician, an employee of Exempla, had a conflict of interest.

Respondent presented the Release and his concerns to McCormick. McCormick said that the Release contained terms to which she had not agreed, and they checked the transcript of the February 7 hearing to be sure. According to Respondent, she instructed him "in no uncertain terms" that there was no settlement and that he was to "proceed and fight as long as he could."31 Decker, meanwhile, sent Respondent two follow-up letters, indicating that she was hoping to get the matter "wrapped up."32 Although Respondent "did not like the situation," he sent the defense lawyers a fax on March 24, 2008, stating that McCormick would not sign the Release.33 Respondent wrote that McCormick intended to claim duress and that his research revealed the district court lacked jurisdiction to dismiss the appeal.34 He indicated that he planned the next day to file the brief in McCormick’s appeal of the nine dismissed tort claims—as he in fact did—and invited defense counsel to contact him with any questions thereafter.35

Two days later, the defendants responded by filing a joint motion asking Judge Mullins to "enforce the settlement entered into by the parties at the February 7 hearing and placed on the record at that time," to order McCormick to file a notice of dismissal of her appeal, and to impose sanctions.36 The defendants attached to their motion copies of the Release, Decker’s follow-up letters, and Respondent’s fax.37 Respondent objected to the motion and requested a hearing,38 but Judge Mullins granted the motion with a stamp on May 22, 2008.39

Respondent appealed that order on July 7, 2008.40 In his opening brief, he argues first that there was no meeting of the minds between the parties and thus there was no settlement.41 In essence, he claims that the Release contains terms not stated on the record during the hearing—including dismissal of the appeal, "a broad construction clause that would have dismissed all claims against Exempla," a non-disparagement clause, and a warranty of capacity to execute agreement.42 Second, Respondent asserts that the district court lacked jurisdiction to dismiss the appeal and that a court cannot compel a party to do something she did not agree to do.43 Next, Respondent raises an equal protection argument, contending that a settlement must be written and signed to be enforceable under the statute governing third-party mediation, and that there is no rational basis for treating non-mediated settlement negotiations differently from mediated negotiations.44 Respondent’s fourth argument is that the defendants should be estopped from claiming a settlement occurred, in light of Decker’s letters requesting that McCormick sign the Release to "wrap up" the matter.45 Finally, Respondent advances the alternative argument that McCormick agreed to the settlement under duress. He characterizes her as an elderly woman who was terminated from her job after filing her lawsuit and was "backed against a wall" by threats of attorney’s fees.46

The court of appeals found that Respondent’s arguments lacked merit.47 It held that the agreement reached at the February 7 hearing was binding because it was not contingent upon the mutual release.48 While agreeing with Respondent that trial courts lack jurisdiction to dismiss appeals, the court of appeals held that Judge Mullins was not precluded from enforcing the agreement, even though the court of appeals had jurisdiction over the appeal itself.49 The decision further characterized Respondent’s equal protection argument as baseless and held that Decker’s correspondence regarding "wrapping up" the matter did not form a reasonable basis for an estoppel claim.50 Finally, the court of appeals concluded that the "tough choices" McCormick may have faced did not amount to duress.51

The court of appeals’ opinion awarded attorney’s fees to the appellees, pointing to the "clarity of the record made in open court" as to the settlement of the case and concluding the appeal was frivolous.52 On remand, the district court awarded approximately $60,000.00 in fees to the defendants. Respondent paid that award.

Legal Analysis

Colo. RPC 3.1 provides, in relevant part: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." The rule contemplates that a lawyer has dual duties: to use the legal process for the client’s "fullest benefit" while refraining from abusive conduct.53 As further gloss on the rule, a lawyer must account for "the law’s ambiguities and potential for change," and legal action is not frivolous "even though the lawyer believes that the client’s position ultimately will not prevail."54 Or, in the Colorado Supreme Court’s words in a related context, "While the pursuit of losing arguments may not be a recipe for success, neither does it bear the hallmark of punishable or necessarily undesirable litigation conduct."55

It is now well-accepted that a lawyer’s conduct is to be judged by an objective standard under Colo. RPC 3.1 and the synonymous Model Rule of Professional Conduct 3.1.56 Yet courts in Colorado and other jurisdictions still struggle to distinguish frivolous litigation from meritorious litigation under this rule. On the one hand, unrestrained prosecution of lawyers for frivolous litigation would chill lawyers’ zeal and ingenuity while allowing the state of the law to languish.57 On the other hand, "lawyers are supposed to know the difference between ‘nonfrivolous argument’ and beating a horse that has recently been pronounced dead by a unanimous court."58 One test used to distinguish such cases is to examine whether a lawyer "persist[ed] in the error."59

A lawyer’s other professional duties add a layer of complexity to the analysis of Colo. RPC 3.1 claims. One such duty is to provide competent representation to a client and to anticipate reasonably foreseeable risks to the client’s interests.60 In addition, a lawyer’s obligations under Colo. RPC 3.1 may bump up against the lawyer’s concurrent obligation under Colo. RPC 1.2(a) to "abide by a client’s decisions concerning the objectives of representation," including the "decision whether to settle a matter." In such cases, Colo. RPC 3.1 trumps Colo. RPC 1.2(a). When a client seeks a lawyer’s assistance in pursuing a frivolous claim, the lawyer must advise the client that the claim is baseless.61 If the client nonetheless insists on proceeding, Colo. RPC 1.16(a) requires the lawyer to withdraw from the representation rather than violate the rules of professional conduct by prosecuting a non-meritorious claim.62

In assessing Respondent’s conduct, this Hearing Board is not bound by the court of appeals’ ruling that Respondent filed a frivolous appeal. To be sure, the court of appeals’ opinion can be considered as evidence in this matter, but the Hearing Board also must recognize that a higher standard of proof—clear and convincing evidence—applies in this proceeding.63 Moreover, the Hearing Board heard evidence that was not presented to the court of appeals, in particular, defense counsel’s testimony and Respondent’s testimony as to his own perceptions and to his client’s views. We also must be mindful of how the goals and standards for sanctioning frivolous litigation differ in the disciplinary setting. Here, the "paramount concern . . . is the protection of the public and not punishment of the errant lawyer."64 Indeed, disciplinary authorities have seldom seen fit to rebuke lawyers who already have been sanctioned under Rule 11.65 Punishment for frivolous litigation has instead been left to the presiding tribunals in all but the most egregious cases.66

In the case at hand, Respondent’s client informed him upon reviewing the Release that she did not agree to the settlement. As Colo. RPC 1.2 pointedly emphasizes, the decision whether to settle a claim is reserved to the client and is a decision to which the lawyer must defer. Respondent was faced with an ambiguous situation where it appeared to him and his client that some of the material terms of the agreement stated on the record had been unilaterally modified by opposing counsel in the Release. McCormick instructed him not to proceed "under any circumstances" with the settlement because she feared the impact it would have on her pending worker’s compensation case.

Perhaps the more prudent approach for Respondent would have been to seek guidance from the court. However, Respondent did file a response to the defendants’ motion to enforce the settlement, in which he explained the ambiguity of the situation and requested a hearing. The court issued an order enforcing the settlement without holding a hearing and did not specifically address the issues raised in Respondent’s response. Thus, Respondent faced the difficult decision of whether to file the appeal. It should be noted that had he failed to file the appeal against McCormick’s instructions, he might similarly have faced a complaint from her.

Once McCormick asked him to file the appeal, it was Respondent’s duty to assess whether there was a plausible basis in law and fact to support his client’s position. If he could make such an argument, he was obligated to follow his client’s wishes unless he viewed such action as "repugnant" or he could invoke another basis for permissive withdrawal under Colo. RPC 1.16(b). If, by contrast, he could not advance McCormick’s argument without running afoul of Colo. RPC 3.1, he was obligated under Colo. RPC 1.16(a) to withdraw from the representation.67

The Hearing Board turns to legal principles governing the enforceability of settlement agreements to determine whether Respondent had a colorable basis for his actions. Courts interpret and enforce settlement agreements in accord with principles of contract law and with the policy favoring dispute resolution.68 Where parties arrive at a settlement agreement yet intend to subsequently execute a document memorializing the terms, courts will hold parties to their agreement.69 If, by contrast, parties merely reach a tentative settlement that lacks sufficiently definite terms or is contingent upon a later signed writing, the agreement lacks force.70 "While parties may definitely agree on some issues, the absence of agreement on other material issues prevents the formation of a binding contract."71 Courts determine what the essential terms of a contract are by reference to the parties’ intentions, which are in turn evidenced by the surrounding circumstances.72 Parties to a settlement agreement may not set it aside if the terms later strike them as unsatisfactory.73

Under these principles, agreements to settle that include consent to execute mutual releases often are enforceable. But exceptions abound. For instance, in a Florida case, Gaines v. Nortrust Realty Management, a lessor and lessee of an office suite disagreed about the rate the lessee was to pay when exercising an option to extend the lease term.74 During a trial recess, the parties reached an agreement as to the rental amount due in current and future lease terms and they also agreed to exchange "releases."75 Thereafter, the lessor insisted upon an exchange of "general releases," while the lessee agreed only to sign a release with respect to the specific dispute at hand, so the lessor moved to enforce the alleged settlement agreement.76 The court of appeals ruled that the trial court had erred in granting the lessor’s motion, finding there was no meeting of the minds as to the scope of the releases—an essential element of the parties’ alleged agreement.77

The Seventh Circuit reached a similar decision in United States v. Orr Construction Co., a case involving a subcontractor’s suit against a contractor to recover unpaid sums of money.78 The parties entered into a written agreement establishing the payment due and stating that the "proper legal releases from all parties" would be exchanged by a certain date.79 When the parties had difficulty negotiating those releases, the subcontractor moved to enforce the settlement agreement.80 The trial court ruled the agreement enforceable, but the Seventh Circuit reversed, applying federal law.81 While it found the parties intended to be bound, the Seventh Circuit concluded that the agreement concerning the releases could not be enforced because "[t]he phrase ‘proper legal releases’ could have any number of meanings depending on the view of the person interpreting it," and the parties’ conduct after reaching the initial agreement did not support an inference that they had in fact reached a meeting of the minds.82 Because the court could not "attach a definite meaning" to the original agreement, the court ruled it unenforceable.83

Under slightly different factual patterns, however, courts have ruled settlement agreements enforceable despite outstanding feuds regarding the nature of releases. For example, the Seventh Circuit distinguished Orr in the subsequent Wilson v. Wilson decision, which concerned a motion to enforce a settlement of litigation involving fiduciary duties.84 In that case, the parties agreed in open court that the plaintiff would receive $1.2 million and would be barred from suing the defendants, though the parties did not specifically agree whether that objective would be achieved by means of mutual releases or mutual covenants not to sue.85 Although the district court concluded that the parties had "nailed down an agreement," the parties continued to haggle over specifics.86 A year later, the district court granted the plaintiff’s motion to compel enforcement of the agreement, even though the defendants challenged its very existence.87 The Seventh Circuit rejected the defendants’ contention that the parties’ failure to agree on the form of the releases rendered the agreement too indefinite to be enforceable, finding it sufficient under Illinois law that "there [could] be no doubt over what the parties in open court had agreed to do."88

In view of the legal authorities discussed above, the Hearing Board concludes that Respondent did not violate Colo. RPC 3.1 by advancing his client’s position. Respondent had a colorable basis in both law and fact to argue that the parties had different understandings of the Release and that the Release was a material element of the agreement.

As we have explained, the Release as drafted was at odds with Respondent’s expectations of a one- or two-paragraph mutual release. Forbes’s testimony that he expected the Release to be just one to five paragraphs in length indicates that Respondent’s assumptions did not simply reflect his own mistake.89 Not only was the Release much longer than Respondent anticipated, but it had terms he did not foresee, including the non-disparagement clause, the "entire agreement" clause, and the inaccurate representation that McCormick’s nine tort claims had been ruled frivolous.90 As such, when confronted with the Release, Respondent had a colorable basis to question the scope and very existence of the agreement supposedly reached at the February 7 hearing.91

In addition to the argument that the Release differed from Respondent’s understanding, Respondent also had several grounds to argue that it was a material element of the agreement. At the February 7 hearing, Decker stated that a mutual release remained to be drafted immediately after Judge Mullins asked whether the parties’ statements comprised the material terms of the agreement.92 And although defense counsel characterized the Release at the disciplinary hearing as a mere "detail" to "button up," Decker conceded that it was the product of nearly ten hours of her time, even though she had boilerplate language available to draw upon.

While Respondent might not have contemplated during the February 7 hearing that the "mutual release" to be exchanged was a material element of the agreement, he had a valid basis to view it as such upon review of the document. Several elements of the Release could have reasonably led Respondent to fear the defendants would seek to limit McCormick’s worker’s compensation claim. The non-disparagement clause contained language that precluded McCormick from making any statements or criticism that would "in any manner, directly or indirectly impugn [or] damage" the defendants.93 Also disquieting to Respondent were the various instances of expansive language, such as the provision requiring the Release to be "interpreted in its broadest and most complete sense in order to accomplish a complete termination of all controversies, claims, or defenses heretofore existing between or among the Parties."94

Of course, those provisions were to be read in concert with the recitals, which included the statement that McCormick’s worker’s compensation claim was not to be affected by the Release. Principles of contract law instruct that recitals "should be reconciled with the operative clauses of the contract and given effect as far as possible."95 In light of the recital indicating that McCormick’s worker’s compensation claim would not be affected, a court probably would not have construed the non-disparagement clause or any other operative provision of the Release to restrict McCormick’s worker’s compensation claim. Yet that recital arguably conflicted with another, which stated that the parties intended to "forever end. . . any and all claims" and that "[t]he desire to end any claim by the Parties against the other is paramount and is intended to end any relationship between Ms. McCormick and the Defendants no matter how created, envisioned, hypothecated, presumed, or alleged."96 Moreover, there is case law holding that recitals in a contract are not binding upon the parties.97 These legal authorities, coupled with Respondent’s duty to anticipate reasonably foreseeable risks to his client, provided him with a reasonable basis for apprehension about future interpretation of the Release.

We also find some support for Respondent’s concern that the defendants meant the Release to serve as the record of the agreement made at the February 7 hearing. After all, the title of the Release was expansive: "Mutual Settlement Agreement and Release of All Claims." Further, as noted above, the Release was meant to "embod[y] the entire agreement among the Parties [and] supersede[] all prior agreements and understandings. . . ."98 Respondent testified that he was worried Judge Mullins’s stamped approval of the defendants’ motion to compel, to which the Release was attached, might have placed the court’s imprimatur of approval upon the Release itself. Indeed, the defendants represented in their answer brief filed in the court of appeals that the Release "was intended to memorialize the parties’ binding oral settlement agreement, per the representations made during the hearing by all counsel."99

The Hearing Board does not mean the foregoing analysis to suggest that the defendants or the court of appeals incorrectly interpreted the law. In fact, we believe the law favors the position that the parties reached a meeting of the minds at the February 7 hearing and that the material terms of the agreement were limited to the defendants’ waiver of attorney’s fees and McCormick’s dismissal of all remaining claims save for her worker’s compensation claim. But the standard of proof here is clear and convincing evidence, and our task is to determine whether Respondent had a colorable basis for filing McCormick’s appeal. In light of his duty to exercise vigilance on his client’s behalf, we believe he did.

In our view, the strongest arguments in Respondent’s appeal brief were that the parties had not achieved a meeting of the minds and that the Release was a material term of the agreement.100 The secondary arguments in the appeal were weaker, but we find they still pass muster under Colo. RPC 3.1. Although some of his assertions had comparatively little chance of success, Respondent supported them with references to the record, citations to germane case law in good standing, and succinct, logically structured argument.101

For instance, in arguing that Judge Mullins lacked jurisdiction to order dismissal of McCormick’s appeal, Respondent cited several pertinent cases, including a Colorado Supreme Court decision.102 The court of appeals explicitly agreed with Respondent that "[a] trial court does not have jurisdiction to dismiss an appeal."103 Nevertheless, the court of appeals found that the district court merely "held" McCormick to her agreement, rather than actually dismissing the appeal.104 In arriving at that decision, the court of appeals cited no authority contradicting Respondent’s argument, nor did it explain the distinction between the district court requiring McCormick to dismiss her appeal and the district court itself dismissing the appeal. This suggests to the Hearing Board that Respondent’s creative argument was colorable under Colo. RPC 3.1, even if common sense suggests Respondent’s position should not prevail.

In summary, Respondent found himself in a difficult position: he believed an agreement had been reached, but his client did not share that view. He thus faced a potential conflict between his duties to the legal profession and the courts and his duty of loyalty to his client. Respondent chose to advance his client’s arguments at significant risk to himself. Indeed, he paid approximately $60,000.00 as a consequence of agreeing to file McCormick’s appeal. Although Respondent’s arguments on appeal were unsuccessful, the Hearing Board concludes they had some basis in law and fact. We therefore find the People have not proved by clear and convincing evidence that Respondent violated Colo. RPC 3.1.

The People’s allegation that Respondent engaged in conduct prejudicial to the administration of justice in violation of Colo. RPC 8.4(d) rests on a premise identical to their Colo. RPC 3.1 claim: that Respondent should not have appealed Judge Mullins’s decision to enforce the settlement agreement and should not have advanced the claims contained in that appeal. Because the Hearing Board has determined that Respondent did not assert frivolous claims in the appeal, we also conclude that he did not violate Colo. RPC 8.4(d).

IV. CONCLUSION AND ORDER

The Hearing Board determines the People have failed to demonstrate by clear and convincing evidence that Respondent engaged in any professional misconduct, and accordingly we DISMISS their complaint.

__________

1. Respondent originally was represented by Philip A. Cherner. Through a substitution of counsel filed on July 23, 2012, Mr. Cohen took Mr. Cherner’s place as counsel for Respondent.

2. The PDJ admitted exhibits 5, 13-14, and A for limited purposes. Respondent stipulated to admission of exhibit 5 to show "what happened," but not for its truth. Exhibit 13 was admitted to show a position taken in litigation, while exhibit A was admitted to show the validity of Respondent’s concern regarding a non-disparagement clause. The PDJ’s admission of exhibit 14 is discussed in footnote 47.

3. Respondent’s registered business address is 303 East 17th Avenue, Suite 1080, Denver, Colorado 80203.

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

5. That case was captioned McCormick v. Exempla Healthcare, et al., case number 05CV6518.

6. Stipulation of Facts ¶ 4; Exs. 1-2. The other defendants, all of whom were involved in the evaluation of the worker’s compensation claim, were Dr. William Woo and Michelle Horning, employees of Exempla, and Sedgwick CMS, a third-party claims administrator. Ex. 13 at 7.

7. Stipulation of Facts ¶ 5.

8. Exs. 1-2; Stipulation of Facts ¶¶ 6, 8.

9. Ex. 5 at 507.

10. Defendants TPMW and Miller had requested approximately $23,000.00 in attorney’s fees under CRS § 13 17-201, which entitles defendants to reasonable attorney’s fees when tort cases involving injury are dismissed pursuant to C.R.C.P. 12(b).

11. Ex. 3 at 524-25.

12. Ex. 3 at 524.

13. Ex. 3 at 524.

14. Ex. 3 at 525.

15. Ex. 3 at 526-27.

16. Ex. 3 at 527-28.

17. Ex. 3 at 529.

18. Ex. 3 at 529-30.

19. Ex. 3 at 530.

20. Ex. 3 at 530.

21. Ex. 3 at 530-31.

22. Ex. 3 at 531.

23. Ex. 5 at 506-14.

24. Ex. 5 at 506-07.

25. Ex. 5 at 508, 510.

26. Ex. 5 at 511-12.

27. Ex. 5 at 510.

28. Ex. 5 at 511.

29. Ex. 5 at 511.

30. Ex. 5 at 506, 511.

31. McCormick did not testify at the disciplinary hearing. Given that the People have the burden of proof and that Respondent’s characterization of McCormick’s directions bears no indicia of unreliability, the Hearing Board accepts his characterization.

32. Ex. 5 at 505, 515.

33. Ex. 5 at 518.

34. Ex. 5 at 518.

35. Ex. 5 at 518.

36. Ex. 5 at 1-3.

37. Once a transcript of the February 7 hearing became available, Decker filed it with the court. Ex. 5 at 519.

38. Ex. 4.

39. Ex. 5. At the disciplinary hearing, Respondent testified that he believed it was unclear whether Judge Mullins’s stamped approval encompassed the attached Release, while defense counsel argued that their motion only requested enforcement of the agreement placed on the record at the February 7 hearing, not enforcement of the Release.

40. The appeal was captioned May B. McCormick v. Exempla Healthcare, et al., 08CA1409.

41. Ex. 6 at 566-67.

42. Ex. 6 at 567.

43. Ex. 6 at 567-69.

44. Ex. 6 at 569-71.

45. Ex. 6 at 571-72.

46. Ex. 6 at 573-75.

47. The PDJ admitted the court of appeals’ opinion as exhibit 14 at the disciplinary hearing over Respondent’s objection. Respondent argued that the People may not use that opinion to bolster their claim because the clear and convincing standard of proof in a disciplinary case is higher than in a civil appeal. Respondent urged the PDJ to rule the opinion inadmissible, citing Colorado Dog Fanciers, Inc. v. City & County of Denver, 820 P.2d 644, 649 (Colo. 1991), and Attorney Grievance Commission of Maryland v. Bear, 763 A.2d 175, 181 (Md.App. 2000). The PDJ reads the case law not as precluding admission of prior adjudications made subject to a lower standard of proof but rather indicating that such adjudications merit limited weight. See People v. Fitzgibbons, 909 P.2d 1098, 1104 (Colo. 1996) ("The conclusions of the district court and the court of appeals . . . are certainly evidence that the respondent’s claims were ‘frivolous and groundless.’"). Accordingly, the PDJ instructed the Hearing Board to review the court of appeals’ opinion in light of the applicable standards of proof.

48. Ex. 14 at 6.

49. Ex. 14 at 9-10.

50. Ex. 14 at 11-12.

51. Ex. 14 at 12-13.

52. Ex. 14 at 14.

53. Colo. RPC 3.1 cmt. 1.

54. Colo. RPC 3.1 cmts. 1-2.

55. In re Foster, 253 P.3d 1244, 1256 (Colo. 2011).

56. See 2 Geoffrey C. Hazard Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 27.12 (3d ed. Supp. 2012). However, an attorney’s state of mind is not completely irrelevant. See id.

57. See id.

58. See id.

59. See id.

60. Colo. RPC 1.1; First Interstate Bank of Denver, N.A. v. Berenbaum, 872 P.2d 1297, 1300 (Colo.App. 1993).

61. ABA/BNA Lawyers’ Manual on Professional Conduct § 61:112 (2012) (citation omitted).

62. See also id. at § 61:112.

63. See In re Egbune, 971 P.2d 1065, 1067 (Colo. 1999) (noting that a trial court’s ruling did not bind a hearing board because proof in civil actions typically is by a preponderance of the evidence, while in disciplinary proceedings proof is by clear and convincing evidence) (citing CRS § 13-25-127); Brown, 725 A.2d at 1074-75 ("Although sanctions by other tribunals may constitute part of the findings supporting a conclusion that MRPC 3.1 has been violated, such sanctions cannot, standing alone without other findings, sufficiently prove such a violation occurred.").

64. People v. Richardson, 820 P.2d 1120, 1121 (Colo. 1991); see also In re Attorney C, 47 P.3d 1167, 1174 (Colo. 2002) (noting that revisions to Colorado’s grievance system were intended to emphasize prevention, rather than punishment).

65. See Peter A. Joy, The Relationship Between Civil Rule 11 and Lawyer Discipline: An Empirical Analysis Suggesting Institutional Choices in the Regulation of Lawyers, 37 Loy. L.A. L.Rev. 765, 806-07 (Winter 2004) (pointing to the "negligible correlation between [F.R.C.P.] 11 sanctions and reported lawyer discipline for that same conduct").

66. See id. at 815; Ted Schneyer, A Tale of Four Systems: Reflections on How Law Influences the "Ethical Infrastructure" of Law Firms, 39 S. Tex. L.Rev. 245, 255-56 (March 1998) (finding that disciplinary authorities typically leave to the courts sanctions for frivolous litigation, and opining that presiding tribunals "have obvious advantages over disciplinary agencies—expertise in evaluating pleadings and motions, a strong interest in protecting the integrity of proceedings in their own courtrooms, and power to dispose of the issue without initiating an entirely new proceeding"). Cf. In re Attorney C, 47 P.3d at 1174 (observing that Colorado has "an adjudicative system in place that deals regularly with discovery issues, and also an attorney grievance system that is ill-suited to addressing any but the most serious discovery violations").

67. It was suggested during the disciplinary hearing that Respondent was obligated to withdraw from the representation because his duty of candor compelled him to do so or because he had personally assented to the agreement at the February 7 hearing. But Respondent himself was not a party to the agreement and therefore could not have offered personal assent. Nor can the Hearing Board see how the duty of candor is relevant here.

68. See Yaekle v. Andrews, 195 P.3d 1101, 1107 (Colo. 2008); Yaekle v. Andrews, 169 P.3d 196, 200 (Colo.App. 2007) aff’d on other grounds, Yaekle, 195 P.3d 1101.

69. See I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 888 (Colo. 1986) ("The mere intention to reduce an oral or informal agreement to writing, or to a more formal writing, is not of itself sufficient to show that the parties intended that until such formal writing was executed the parol or informal contract should be without binding force.") (quotation omitted).

70. Stice v. Peterson, 144 Colo. 219, 224, 355 P.2d 948, 952 (1960) (holding that contractual terms must be sufficiently definite to enable a court to determine whether the contract has been performed); DiFrancesco v. Particle Interconnect Corp., 39 P.3d 1243, 1248 (Colo.App. 2001) ("there can be no binding contract if it appears that further negotiations are required to work out important and essential terms"); see also Golding v. Floyd, 539 S.E.2d 735, 738 (Va. 2001) (holding that a handwritten "Settlement Agreement Memorandum" agreed to at a mediation was not a binding settlement agreement where the parties understood that a formal settlement agreement had to be drafted and signed).

71. DiFrancesco, 39 P.3d at 1248 (citing Am. Mining Co. v. Himrod-Kimball Mines Co., 124 Colo. 186, 235 P.2d 804 (1951)); see also Greater Serv. Homebuilders’ Inv. Ass’n v. Albright, 88 Colo. 146, 153-54, 293 P. 345, 348 (1930) ("If essentials are unsettled, and no method of settlement is agreed upon, there is no contract."); Shoels v. Klebold, 375 F.3d 1054, 1067 (10th Cir. 2004) (applying Colorado law and stating: "When the language of a contract contains a latent ambiguity and one of the parties is in fact assenting to something different from what the other party agrees to, the upshot of that ‘mistake’ is that there was never a meeting of the minds as to a material term of the contract, and consequently there was never any contract at all.").

72. Am. Mining Co., 124 Colo. at 190, 235 P.2d at 807.

73. Royal v. Colo. State Pers. Bd., 690 P.2d 253, 255 (Colo.App. 1984).

74. 422 So. 2d 1037, 1038 (Fla.App. 1982)

75. Id.

76. Id.

77. Id. at 1040. But see Robbie v. City of Miami, 469 So. 2d 1384, 1386 (Fla. 1985) (noting that in Gaines, there was no objective evidence of the terms of the agreement).

78. 560 F.2d 765, 767, 772 (7th Cir. 1977).

79. Id. at 767.

80. Id. at 767-68.

81. Id. at 768.

82. Id. at 769-771.

83. Id. at 772; see also Janky v. Batistatos, 559 F.Supp.2d 923, 931 (N.D.Ind. 2008) (holding that the term "mutual global release" was not sufficiently definite to be enforceable).

84. 46 F.3d 660, 665 (7th Cir. 1995).

85. Id. at 662.

86. Id.

87. Id. at 663.

88. Id. at 666-67.

89. See Royal, 690 P.2d at 255 ("A unilateral mistake or mistake of law, if any, is not a ground for setting aside an agreement."). But see Shoels, 375 F.3d at 1066-67 (applying Colorado law and stating that "[a]lthough one party’s mistake about the facts relevant to an agreement is not normally grounds for rescission, the same is not true if the ‘mistake’ goes to a material term of the agreement itself.").

90. Judge Mullins’s dismissal of McCormick’s tort claims under C.R.C.P. 12(b)(5) did not equate to a determination that the claims were frivolous. See Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 337 (2d Cir. 1999) (stating that a judgment as a matter of law against a claim does not necessarily mean that the claim lacks any colorable basis).

91. Judge Mullins himself seemed to contemplate that some aspects of the settlement might remain unresolved when he mentioned the possibility of the parties having "problems" before apparently reversing course and saying he would "leave that alone.". Ex. 3 at 531.

92. Ex. 3 at 530.

93. Ex. 5 at 511-12.

94. Ex. 5 at 510.

95. Stowers v. Cmty. Med. Ctr., Inc., 172 P.3d 1252, 1255 (Mont. 2007); see also 17A C.J.S. Contracts § 403 ("although ‘whereas’ clauses do not control over the express provisions of a contract, they may be read in conjunction with the contract’s operative portions to ascertain the parties’ intention, where the operative clauses are ambiguous") (citations omitted).

96. Ex. 5 at 508.

97. See, e.g., Int’l Trust Co. v. Palisade Light, Heat & Power Co., 60 Colo. 397, 401, 153 P. 1002, 1003 (1916) ("Recitals which are general, and not contractual, merely descriptive, are not binding."); Dornemann v. Dornemann, 850 A.2d 273, 281 (Conn. Super. Ct. 2004) ("Recitals in a contract, such as ‘whereas' clauses, are merely explanations of the circumstances surrounding the execution of the contract, and are not binding obligations unless referred to in the operative provisions of the contract . . . .") (quotation omitted).

98. Ex. 5 at 511.

99. Ex. 13 at 11.

100. The assertion that McCormick did not understand she would have to dismiss her appeal is a less plausible argument, since courts determine whether parties’ minds have met by reference to the parties’ "objective manifestations," not "unexpressed subjective views" they may have held. O’Brien v. Argo Partners, Inc., 736 F. Supp. 2d 528, 534 (E.D.N.Y. 2010) (quotations omitted). Nevertheless, McCormick was unsophisticated in legal affairs and the appeal was not mentioned on February 7. Although Respondent understood the appeal was encompassed in the agreement, it was McCormick—not Respondent—who was the party to the agreement, and Respondent testified that she was unsure of the status of the appeal as of February 7. As such, it was not wholly frivolous for Respondent to contend the parties’ minds did not meet as to the appeal.

101. See Toledo Bar Ass’n v. Rust, 921 N.E.2d 1056, 1063 (Ohio 2010) (dismissing complaint against attorney whose "strategy may have been flawed" but who had "some arguably viable legal support for his actions").

102. See Ex. 6 at 568 (citing People v. Dillon, 655 P.2d 841, 844 (Colo. 1982) (ruling that a trial court was divested of jurisdiction once a notice of appeal had been filed and therefore had no power to grant a motion for a new trial)).

103. Ex. 14 at 10.

104. Ex. 14 at 10.

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