The Colorado Lawyer
Vol. 42, No. 12 [Page 111]
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From the Courts
Colorado Disciplinary Cases
Disciplinary Case Summaries
The summaries of disciplinary case Opinions and Conditional Admissions of Misconduct are prepared by the Office of the Presiding Disciplinary Judge (PDJ) and are provided as a service by the Colorado Bar Association (CBA). The CBA cannot guarantee the accuracy or completeness of the summaries. The full text of the disciplinary Opinions, when published by the PDJ, follows the summaries page(s). The summaries and full-text Opinions also are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes"). Opinions, including exhibits, complaints, amended complaints, and summaries, also are available at the PDJ website, www.coloradosupremecourt.com/PDJ/pdj.htm, and on LexisNexis.®
Summary of Decision Issued by the PDJ
No. 12PDJ022, consolidated with Nos. 12PDJ072 & 12PDJ080. People v. McNamara III. 09/10/2013. Attorney Disbarred.
Following a sanctions hearing, a hearing board disbarred John A. McNamara III, attorney registration number 19382. The disbarment was effective October 15, 2013.
Despite being prohibited from practicing law by two orders of suspension, McNamara continued to practice law, solicit new clients, and accept fees from clients. In doing so, he violated Colo. RPC 3.4(c), which provides that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." He also violated Colo. RPC 5.5(a)(1), which bars lawyers from practicing in Colorado without a law license or specific authorization. In addition, McNamara made misrepresentations by omission to his clients, falsely leading them to believe he was a validly licensed attorney. These misrepresentations violated Colo. RPC 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation. Finally, to conceal his unauthorized practice of law, McNamara assumed the identity of a retired lawyer, impersonating that lawyer in pleadings and in a telephone court conference. These misrepresentations violated Colo. RPC 8.4(c). p.115.
Summaries of Decisions Regarding
Conditional Admission of Misconduct Issued by the PDJ
The PDJ’s approval of a Conditional Admission of Misconduct does not result in a written Opinion but only a brief Order, which does not constitute precedent. Conditional Admissions of Misconduct are public record and are available for review at the Office of the PDJ, 1560 Broadway, Ste. 675, Denver, CO 80202; (303) 866-6658; www.coloradosupremecourt.com/PDJ/pdj.htm. They also are available on LexisNexis.®
No. 13PDJ081. People v. Daily. 10/18/2013. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Richard Wescott Daily, attorney registration number 02938, from the practice of law for one year and one day. The suspension was effective November 22, 2013.
In 2008, Daily agreed to perform an audit for clients in connection with a lawsuit he had litigated. He was to receive a fee of $10,000, to be paid from a trust account containing settlement funds from the related lawsuit. Daily confirmed in writing his intent to perform the audit in 2008 and again in 2009, pledging he would conduct the audit in late 2009. Daily did not complete the audit until April 2013, after receiving notice of a disciplinary investigation. He also failed to return the $10,000 advance fee when the clients demanded he do so in 2012.
Daily violated Colo. RPC 1.3, failing to act with reasonable diligence and promptness; 1.4(a)(3), failing to keep a client reasonably informed about a matter; 1.4(a)(4), failing to promptly comply with reasonable requests for information; and 1.16(d), failing to refund advance fees on termination of representation. Moreover, Daily misrepresented to his clients that he was safeguarding the $10,000 fee in the settlement fund trust account, pending completion of the audit. The balance of that account fell below $0 before Daily performed the audit. Daily’s conduct violated Colo. RPC 1.15(a), which deals with safeguarding client funds; and 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation.
No. 13PDJ030. People v. Evans. 09/26/2013. Attorney Disbarred.
The PDJ approved the parties’ conditional admission of misconduct and disbarred Thomas Bruce Evans, attorney registration number 18785, from the practice of law. The disbarment was effect September 26, 2013.
Evans pleaded guilty to conspiracy to commit mail and wire fraud for theft of investment funds belonging to more than seventy victims. He received a sentence of 168 months in federal prison and was ordered to pay $12,339,038.53 in restitution. Evans violated Colo. RPC 8.4(b), which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
No. 13PDJ082. People v. Frassetto. 10/17/2013. Attorney Publicly Censured.
The PDJ approved the parties’ conditional admission of misconduct and publicly censured Vincent A. Frassetto, attorney registration number 31064. The sanction was effective October 17, 2013.
On January 22, 2013, Frassetto pleaded guilty in Aurora Municipal Court to display of a deadly weapon, a misdemeanor. The event underlying the criminal case was an altercation between Frassetto and a man who had struck the bumper of a parked car belonging to Frassetto’s wife. Frassetto received a twelve-month deferred judgment and sentence, was ordered to pay fines and costs, and was ordered to perform fifty hours of community service. He has since paid the fines and costs and completed his community service. Frassetto’s conduct violated Colo. RPC 8.4(b).
No. 12PDJ089, consolidated with Nos. 13PDJ013, 13PDJ040, 11PDJ070 & 13PDJ062. People v. Greene. 10/15/2013. Attorney Disbarred.
The PDJ approved the parties’ conditional admission of misconduct and disbarred David Jerome Greene, attorney registration number 08994, from the practice of law. The disbarment was effective October 15, 2013.
On February 28, 2012, Greene’s law license was suspended for misconduct involving lack of diligence and competence, failing to safeguard client funds, inadequately communicating with clients, and unreasonably delaying the return of a client’s file on termination of representation. Greene failed to notify clients and opposing counsel of that suspension as required by CRCP 251.28(b) and (c). In the general timeframe of 2009 through 2012, Greene committed additional violations that mirrored the misconduct underlying his previous suspension. He violated Colo. RPC 1.3, by failing to answer interrogatories and to appear for a hearing in one client matter; 3.4(c), by knowingly failing to follow court orders; 3.4(d), by failing to comply with discovery obligations; and 8.4(d), by engaging in conduct prejudicial to the administration of justice.
In several client matters, Greene engaged in extensive mishandling of funds, committing several Colo. RPC violations, including: 1.15(a), failing to deposit client funds in a trust account and using trust and settlement funds to pay personal and business expenses; 1.15(d)(2), failing to deposit funds received for professional services into a business account; and 1.15(i)(3), making prohibited cash withdrawals from a trust account. Greene also violated Colo. RPC 8.4(d) by neglecting to pay a court reporter nearly $2,000 he owed her for transcripts. Greene also violated Colo. RPC 1.4(a) and (b), regarding communication with clients, and Colo. RPC 1.5(f), regarding contingent fee agreements. He also violated 1.15(j), by neglecting to maintain required accounting records; 1.16(d), by failing to protect a client’s interest on termination of representation; and 8.1(b), by failing to respond to a lawful demand for information from a disciplinary authority.
No. 13PDJ036. People v. Layton. 09/25/2013. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Angelique Layton (now Angelique Layton Anderson), attorney registration number 36480, from the practice of law for six months. The entire suspension was stayed pending the completion of a three-year probation, with conditions. The probation began October 30, 2013.
Layton hired a client whom she had represented in several legal matters to clean her house and to work on her political campaign. Layton planned to offset the money she owed her client for that work against the legal fees her client owed her. However, Layton did not specify the hourly rate the client would be credited for her work, nor did Layton communicate in writing the basis or rate of her legal fees. Layton thereby violated Colo. RPC 1.5(b). Layton also posted bond for the client and paid the client’s rent and vehicle impound fees, which were not legitimate litigation expenses, contravening the conflict of interest limitations in Colo. RPC 1.8(e). Finally, Layton provided the client legal advice by filing the client’s income taxes; she did so with the expectation that the client’s tax refund would be applied to amounts the client owed her for posting bond. Layton’s personal interest in obtaining the tax refund created a significant risk that this interest would materially influence her tax and general legal advice, and Layton did not obtain the client’s informed consent in writing to the conflict of interest. This misconduct violated Colo. RPC 1.7.
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