The Colorado Lawyer
Vol. 43, No. 7 [Page 137]
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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. 13PDJ068. Essling v. People. 02/28/2014. Attorney’s Request for Reinstatement Denied.
Following a reinstatement hearing, a hearing board denied Timothy J. Essling, attorney registration number 12785, reinstatement to the practice of law pursuant to CRCP 251.29. Essling knowingly neglected three client matters over a period of three years, causing the statute of limitations to run on one client’s personal injury claim. Essling then failed to adequately communicate with another of those clients and knowingly disobeyed a court order. The hearing board concluded that reinstatement was not appropriate because Essling was unable to prove by clear and convincing evidence his rehabilitation, his fitness to practice law, and his full compliance with all applicable disciplinary orders. p.139.
No. 14PDJ004. Lyons v. People. 05/01/2014. Attorney Reinstated.
The PDJ approved a stipulation and agreement concerning reinstatement pursuant to CRCP 251.29(j) and reinstated Matthew Lightner Lyons, attorney registration number 32942, to the practice of law, effective May 1, 2014. No opinion was issued.
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. 14PDJ005. People v. Anderson. 03/24/2014. Attorney Suspended.
The PDJ suspended Carla A. Anderson, attorney registration number 15539, for ninety days. The suspension was effective April 28, 2014.
Anderson violated Oregon RPC 3.1 for pursuing a frivolous claim; Oregon RPC 4.4(a) for using means with no substantial purpose other than to embarrass, delay, harass, or burden a third person; and Oregon RPC 8.1(a)(2) for failing to respond to a lawful demand for information from a disciplinary authority. On September 12, 2013, the Supreme Court of Oregon suspended Anderson from the practice of law for ninety days.
The Office of Attorney Regulation Counsel sought the same discipline as that imposed by the Supreme Court of Oregon, and Anderson did not challenge the order imposed by the Supreme Court of Oregon. In an order entering default and imposing reciprocal discipline, the PDJ concluded that Anderson’s misconduct constituted grounds for the imposition of reciprocal discipline in Colorado pursuant to CRCP 251.21(e).
No. 14PDJ037. People v. Bantz. 04/25/2014. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Victoria Bevin Bantz, attorney registration number 35788, for eighteen months, all stayed pending completion of a three-year period of probation, with conditions. The probation was effective April 25, 2014.
Bantz, who was admitted to the bar in 2004, was asked in 2006 by attorney James W. Faber, for whom she had been working as an associate, to become a partner in a new firm. She agreed, and Faber Bantz P.C. was formed. Faber directed Bantz to form several business entities for estate planning clients. Faber and Bantz acquired ownership or management roles in several of these entities.
In 2006, Faber Bantz assisted a certain client with tax and investment issues. At Faber’s direction, Bantz drafted documents for a loan from the client to one of the entities in which Faber and Bantz held interests. Bantz did not advise the client in writing of those interests. When the client’s funds were not invested according to the original plan and were instead placed in an investment company operated in part by Faber, the client also did not receive written disclosure or give her written consent.
Faber Bantz had difficulty paying its expenses in 2007 or 2008, and Bantz transferred funds on Faber’s instructions between the investment company and the law firm’s accounts. When the client’s loan came due in 2009, she did not receive the promised payment because Faber had converted those funds.
In 2007, in a separate representation, Faber Bantz failed to advise a client to seek independent legal counsel regarding the client’s transaction with a business entity in which Bantz and Faber held interests. The client transferred $500,000 into the entity and then lost those funds when they were consumed by Faber Bantz’s legal fees. Bantz accepted Faber’s representation that the $500,000 could be recorded as a tax-deductible donation for the client without researching whether this advice was proper.
Bantz failed to make appropriate inquiries about these transactions, to question Faber or his instructions, and to independently assess her duties to her clients. In so doing, she violated Colo. RPC 1.7 (restricting the circumstances in which a lawyer may represent a client if the representation involves a concurrent conflict of interest); 1.8(a) (a lawyer shall not enter into a business transaction with a client unless the client is advised to seek independent legal counsel and the client gives written informed consent to the transaction); 1.15(a) and (c) (safekeeping of client property); and 5.1(a) (a partner should ensure that the firm implements measures, giving reasonable assurance that all lawyers in the firm comply with the Rules of Professional Conduct).
After Bantz resigned from Faber Bantz in 2008, she became aware that Faber might have engaged in misconduct with respect to client funds, and she contacted the Denver District Attorney’s Office. In 2013, Faber pleaded guilty to a class 2 felony, received a correctional sentence of up to ten years, and was disbarred. Bantz was not criminally charged.
No. 14PDJ030. People v. Jay. 05/13/2014. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Stuart Adam Jay, attorney registration number 34622, for six months with the requirement of reinstatement pursuant to CRCP 251.19(c). The suspension was effective May 13, 2014.
On November 13, 2013, Jay made a threatening phone call to an Arizona Charles Schwab office because he was locked out of his wife’s 401k account and wanted access. In the call, he made threats against the Denver Charles Schwab office, stating that if he did not gain access to his wife’s account, innocent people at the Denver office would be "hurt" and the office would be "gone." The Denver police dispatched two officers to Jay’s residence. Jay answered the door holding a two-foot long antique bayonet. The officers drew their firearms and asked Jay to drop the sword. Jay complied and was taken to jail. Jay’s lengthy struggle with depression, anxiety, and treatment for those conditions may have contributed to his misconduct.
Jay pleaded guilty to a charge of felony menacing, and on January 30, 2014, he was sentenced to two years deferred judgment and supervised probation. He timely self-reported his criminal conviction. Jay’s misconduct violated Colo. RPC 8.4(b), which prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
No. 14PDJ002. People v. Miller. 05/08/2014. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Byron L. Miller, attorney registration number 35166, for one year and one day, with six months served and the remainder stayed pending completion of an eighteen-month period of probation, with conditions. The suspension was effective May 8, 2014.
On June 20, 2013, Miller pleaded guilty to third-degree assault, a class 1 misdemeanor. The plea, which included a stipulation that the underlying conduct involved unlawful sexual behavior, arose out of an incident of nonconsensual sexual intercourse that occurred earlier in 2013. Miller received a two-year deferred judgment and sentence. He has complied with the terms of that deferred judgment and sentence, which include sex-specific evaluation and treatment, monitored abstinence from drugs and alcohol, attendance at Alcoholics Anonymous, and weekly group therapy. He also has closed his law practice.
Miller’s misconduct violated Colo. RPC 8.4(b), which prohibits lawyers from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. He caused serious harm to the victim and caused significant injury to the legal profession by bringing disrepute to the bar.
No. 14PDJ034. People v. Mock. 04/29/2014. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Douglas L. Thomas Mock, attorney registration number 40879, for two years. The suspension was effective April 29, 2014.
In 2013, Mock received a $1,000 retainer, which he deposited into his COLTAF account. He then mailed his client an accounting on March 6, 2013, along with a $700 check for the balance of the retainer. On April 3, 2013, Mock called his bank and requested a stop-payment on the check; he was concerned that his client, who had yet to cash the check, had misplaced it. Mock attempted to contact his client to express his concerns but was unable to reach him.
On April 3, 2013, Mock withdrew the client’s $700 from his COLTAF account and deposited it into his personal checking account, after which his client attempted unsuccessfully to cash the check. Mock’s bank initially paid the check, causing the COLTAF account to be overdrawn, but then reversed payment. Mock’s client agreed to accept another check from Mock. Mock deposited $700 into his COLTAF account to cover this second check.
Mock also wrote checks payable to "Bank-cash" from his COLTAF account, retained earned fees in his COLTAF account to cover client-related expenses, and made multiple cash deposits into his COLTAF account without indicating from which client those funds were received. Mock’s misconduct violated Colo. RPC 1.5(f), which provides that advances of unearned fees must be deposited in an attorney’s trust account until earned; Colo. RPC 1.15(a), which requires attorneys to hold the property of their client separate from the property of the lawyer; Colo. RPC 1.15(i), which prohibits writing checks from trust accounts payable to "cash"; and Colo. RPC 1.15(j), which requires lawyers to retain an accounting for seven years.
No. 14PDJ036. People v. Ross. 04/21/2014. Attorney Suspended.
The PDJ approved a conditional admission of misconduct submitted by the parties and suspended Mark L. Ross, attorney registration number 15480, for six months, all stayed pending the successful completion of a two-year period of probation, with conditions. The probation was effective April 21, 2014.
Ross violated Louisiana Rule of Professional Conduct 1.15 by commingling personal and client funds and allowing his trust account to be overdrawn. On January 10, 2014, the Supreme Court of Louisiana suspended Ross from the practice of law in the state of Louisiana for six months, all stayed pending the successful completion of a two-year period of probation, with conditions. The People sought the same discipline as that imposed by the Supreme Court of Louisiana, and Ross did not challenge the order imposed by the Supreme Court of Louisiana. Ross’s misconduct constituted grounds for the imposition of reciprocal discipline pursuant to CRCP 251.5 and 251.21(a).
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