The Colorado Lawyer
Vol. 29, No. 6 [Page 117]
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From the Courts
Colorado Disciplinary Cases
Summaries of Opinions
Presiding Disciplinary Judge
Appellate Discipline Commission
Summaries of Disciplinary Opinions
Summaries of opinions appear on a space-available basis. The summaries for the Presiding Disciplinary Judge and hearing board are prepared by the Office of the Presiding Disciplinary Judge, and the summaries for the Appellate Discipline Commission are prepared by the Office of the Appellate Discipline Commission. The summaries of the opinions of the Presiding Disciplinary Judge and the Appellate Discipline Commission are provided as a service by the Colorado Bar Association and are not the official language of the Opinion. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Unless otherwise noted, full copies of the opinions follow the summaries pages. The summaries and full-text opinions are also available on the CBA homepage at http://www.cobar.org/tcl/index.htm.
Summaries of Appeal to the Appellate Discipline Commission
In the Matter of Sheffer, No. 99AD005, 04/06/2000. Attorney Regulation.
The Appellate Discipline Commission ("Commission") remanded the case to the Hearing Board ("Board"), following Regulation Counsel's concession that Mary Jody Sheffer, whom the Board had found to have committed two felonies, had not committed either felony. Sheffer had notarized various documents, using a notary seal of a former employee. To complete the jurat, Sheffer also had signed the name of the former employee. She pleaded guilty to a misdemeanor in Arapahoe County, but on the facts before the Board, the Board concluded that she had committed two felonies: forgery and criminal impersonation. Regulation Counsel conceded on appeal that Sheffer had not committed the felonies, but argued that the Board's sanction, a two-year suspension, should be affirmed nonetheless because Sheffer had committed less-serious offenses. In reaching its decision, the Commission determined, notwithstanding the record before the Board, that it would be unreasonable to sustain a sanction that was based on offenses that Regulation Counsel now says Sheffer did not commit. The Commission remanded this case to permit the Board to reformulate its sanction. p.121.
In the Matter of Parsley, No. 99AD001, 04/26/2000. Attorney Regulation.
The Appellate Discipline Commission ("Commission") suspended Jeffrey A. Parsley for failing to provide competent representation, for neglecting legal matters entrusted to him, and for engaging in conduct prejudicial to the administration of justice, thereby violating Colo. RPC 1.1, Colo. RPC 1.3, and Colo. RPC 8.4(d). The Commission stayed a portion of the period of suspension and placed Parsley on probation. Parsley admitted mishandling as many a thirteen separate Chapter 13 bankruptcy proceedings by failing to file required documents, missing deadlines and, in some cases, taking action that was contrary to bankruptcy rules. In reaching its decision, the Commission determined to follow a recommendation of a Hearing Panel of the Grievance Committee ("Panel"), concluding the proceedings below had not violated Parsley's rights to due process, and that the Panel's recommendation bore relation to his misconduct and was not manifestly excessive or otherwise unreasonable. The Panel's recommendation had come to the Commission on remand from the Supreme Court. p.124.
Summaries of Decisions Issued by the Presiding Disciplinary Judge
(March 21, 2000 through April 20, 2000)
People v. Doherty, GC96A140, 04/03/2000. Attorney Regulation.
The Presiding Disciplinary Judge reinstated James P. Doherty to the practice of law effective April 3, 2000. (No Opinion issued.)
People v. Wabeke, 99PDJ113, 03/22/2000. Attorney Regulation.
The Presiding Disciplinary Judge reinstated Ross J. Wabeke to the practice of law effective March 22, 2000. (No Opinion issued.)
Summaries of Decisions Regarding Conditional Admissions of Misconduct
Issued by the Presiding Disciplinary Judge
(March 21, 2000 through April 20, 2000)
[The Presiding Disciplinary Judge's approval of Conditional Admissions 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 Presiding Disciplinary Judge, (303) 825-2797.]
People v. Canty, No. 00PDJ008, 04/13/2000. Attorney Regulation.
The Presiding Disciplinary Judge accepted the parties' Conditional Admission of Misconduct and suspended Respondent Patrick Joseph Canty from the practice of law for a period of ninety days, followed by a one-year period of probation with conditions. In one matter, respondent failed to take any action in the case after filing the complaint, failed to conduct necessary discovery to provide a basis for joining necessary parties to the action, failed to join necessary parties to the action, failed to communicate with the client, failed to advise the client that he had moved his office, failed to withdraw from the matter after ceasing to communicate with the client, and failed to return the client's file and documents when he ceased representation. Respondent's conduct constituted a violation of Colo. RPC 1.1, Colo. RPC 1.4(a), and Colo. RPC 1.3 and Colo. RPC 1.16(d). Respondent was ordered to pay the costs of the disciplinary proceeding.
People v. Hofer, No. 99PDJ118, 03/22/2000. Attorney Regulation.
The Presiding Disciplinary Judge accepted the parties' Amended Conditional Admission of Misconduct and suspended Respondent David Hofer for a period of one year and one day, with the full period stayed subject to conditions. Respondent repeatedly failed to pay child support and arrearages in child support; however, as of the date of the Order approving the Amended Conditional Admission, respondent was current on child support and arrearage payments. Respondent's conduct violated Colo. 8.4(d) and Colo. RPC 8.4(h). Respondent pleaded guilty to driving under the influence of alcohol and failed to report his conviction to the Office of Attorney Regulation Counsel. Respondent's conduct violated prior C.R.C.P. 241.16(b), C.R.C.P. 251.5(b), C.R.C.P. 251.5(c) and Colo. RPC 8.4(h). Respondent was ordered to pay the costs of the disciplinary proceeding.
People v. Lamberson, 99PDJ083 and 99PDJ004, 03/22/00 as amended. Attorney Regulation.
The Presiding Disciplinary Judge accepted the parties' Conditional Admission of Misconduct and disbarred Respondent James W. Lamberson from the practice of law. Respondent's client was directed by the U.S. Bankruptcy Court to turn over certain non-exempt funds and items of personal property to the bankruptcy trustee. Shortly thereafter, respondent received the funds and property from his clients. Respondent failed to turn the funds or items of personal property over to the bankruptcy trustee until ten months later, despite several letters from the bankruptcy trustee requiring him to do so. Respondent, through his conduct, prevented his clients from complying with the bankruptcy court's order, and caused delay in the proceedings. When the bankruptcy trustee presented respondent's trust account check for payment, it was returned twice for insufficient funds. The respondent failed to keep the clients' funds separate from his own property, he engaged in distinct unauthorized acts of dominion or ownership over the funds entrusted to him by his clients, and he was aware that he was using the funds for his own purposes. In two separate matters, respondent deposited client funds into his trust account representing proceeds of a settlement and funds intended to pay the client's creditors and knowingly converted the funds for his own purposes, commingled the client's funds with his own, and failed to maintain the funds in his trust account. Respondent did not have the clients' authority to use the funds in this manner. Additionally, over a twelve-month period, respondent knowingly wrote checks from his trust account when he knew or should have known that he did not have sufficient funds on deposit to cover the checks. Respondent failed to provide documents requested by the Office of Attorney Regulation Counsel. In a separate matter, the respondent handled the sale of a business for his client. The purchasers were to make payments to the respondent's clients pursuant to a promissory note which was secured by certain restaurant equipment. Respondent prepared the security agreement but neglected to prepare or file a financing statement with respect to the security interest with the Colorado Secretary of State. The purchasers defaulted on the promissory note. Respondent led his client to believe that he had taken steps to obtain a judgment against the purchasers, when in fact he contacted the attorney for the purchasers and convinced the purchasers to cure the default. The purchasers later defaulted again. Respondent again assured the client that he was taking steps to protect her interests. Thereafter, respondent failed to take any further steps to assist his client in enforcing the security interest or in collecting the balance due on the promissory note. Both the client and subsequent counsel were unable to contact respondent because his law office phone had been disconnected. The client expended additional attorney fees attempting to discover the status of the matter previously handled by respondent. Respondent has not communicated with the client since approximately February 1999. In a separate matter, respondent engaged in the practice of law while under suspension by engaging in communications with opposing counsel in a representative capacity, appearing in court and entering his appearance on behalf of his client, and attempting to obtain a continuance of the trial. In a separate investigation, respondent opened a trust account, commingled funds belonging to himself with proceeds from a client's settlement, and wrote checks to clients and non-clients on the account. The checks were returned for insufficient funds. The respondent's conduct set forth above constituted violations of Colo. RPC 1.3, Colo. RPC 1.4(a), Colo. RPC 1.15(a), Colo. RPC 3.4(c), C.R.C.P. 251.28, Colo. RPC 5.5(a), Colo. RPC 8.1(b), Colo. RPC 8.4(c), Colo. RPC 8.4(d), and Colo. RPC 8.4(h). The respondent was ordered to pay the costs of these proceedings.
People v. Marturano, No. 00PDJ025, 04/05/00. Attorney Regulation.
The Presiding Disciplinary Judge accepted the parties' Conditional Admission of Misconduct and suspended Donald Evan Marturano from the practice of law for a period of ninety days, with all ninety days stayed on the condition of a two-year period of probation subject to conditions. The respondent failed to pay child support and arrearages of child support, in violation of Colo. RPC 3.4(c); however, respondent was not aware of various orders entered by the court concerning his child support obligations. As of the date the Presiding Disciplinary Judge approved the Conditional Admission of Misconduct, respondent had fully paid the amount due as arrearages pursuant to stipulation, and is involved in proceedings to determine the amount due of child support due from August 1995 forward. The respondent was ordered to pay the costs of these proceedings.
People v. Titoni, No. 00PDJ020, 03/30/00. Attorney Regulation.
The Presiding Disciplinary Judge approved the parties' Conditional Admission of Misconduct and disbarred Frank W. Titoni from the practice of law. Respondent met Walter Sohle, an investor from Germany, who had come to Denver to consider an investment of $650,000 in a certain company. At the initial meeting, Sohle believed that respondent was his lawyer. Respondent first became involved in the transaction because a principal of the company asked him to act as trustee. The representatives of the company presented respondent's client with an engagement agreement which designated respondent as the trustee, and stated that Sohle would make a high rate of return in a short time on his investment. Respondent confirmed this to be true, and Sohle signed the agreement. Although respondent as trustee was obligated to deposit the client's funds into an account with a securities firm, he placed the check instead in a trust account. Respondent misrepresented to the company that the $650,000 was in a specific account with a securities firm. Respondent later wire-transferred the client's funds to a third party, and admits that he did not have the client's approval to do so. Although respondent wrote to the client stating that he would complete an accounting of the investment and transfer funds to the client's account, he never did so; rather, he continued to answer the client's questions with misrepresentations. Respondent agreed without the client's authorization that the third party could take a fee of $100,000 from the funds previously transferred to him. To date, the client has never received the return of any of his funds or interest thereon. Respondent's conduct constituted a violation of Colo. RPC 8.4(c), Colo. RPC 1.15(a) and Colo. RPC 1.15(b), Colo. RPC 1.8(a), and Colo. RPC 1.7(b).
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