|The Colorado Lawyer|
Vol. 29, No. 6 [Page 121]
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From the Courts
Colorado Disciplinary Cases
Presiding Disciplinary Judge
Appellate Discipline Commission
The Colorado Supreme Court has adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge, pursuant to C.R.C.P. 251.16, and a new intermediate appellate entity known as the Appellate Discipline Commission, pursuant to C.R.C.P. 251.24. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The Presiding Disciplinary Judge presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the Presiding Disciplinary Judge. See C.R.C.P. 251.18(d).
Beginning with the September 1999 issue, The Colorado Lawyer will publish the summaries and full-text opinions of the Presiding Disciplinary Judge, Roger L. Keithley, and a two-member hearing board, whose members are drawn from a pool appointed by the Supreme Court, and the opinions of the Appellate Discipline Commission.
These Opinions may be appealed in accordance with C.R.C.P. 251.26 and C.R.C.P. 251.27.
The full-text opinions, along with their summaries, are available on the CBA homepage at http://www.cobar.org/tcl/index.htm. See page 119 for details.
Case No. 99AD005
In the Matter of Mary Jody Sheffer,
April 6, 2000
Proceeding in Discipline
Reversed and Remanded
John S. Gleason, Attorney Regulation Counsel, James S. Sudler, Assistant Regulation Counsel, Denver, Colorado, Attorneys for Complainant
George S. Meyer, Denver, Colorado, Attorney for Attorney-Respondent
BY THE COMMISSION
Commissioners Jeffrey A. Chase and Denise S. Maes did not participate.
In this attorney regulation case, a Hearing Board ("Board") suspended the respondent, Mary Jody Sheffer, from the practice of law for two years. The Board also ordered Sheffer to take and satisfactorily complete the Multistate Professional Responsibil ity Examination prior to reinstatement, and it ordered her to pay the costs of the proceeding below. Subsequently, the Presiding Disciplinary Judge granted Sheffer's motion to stay the Board's order pending her appeal.
Sheffer contends in her appeal that the Board erred in concluding that she violated two criminal statutes; that the Board's sanction bears no relation to the conduct, is manifestly excessive, or is otherwise unreasonable; and, that the sanction should be reduced to a public censure.
For the reasons expressed herein, we reverse the decision of the Board and remand this case to the Board solely for the purpose of determining the appropriate sanction.
At the conclusion of the hearing, the Board made factual findings by clear and convincing evidence and drew legal conclusions in two matters identified respectively as the Vialpando Dissolution and the Notary Matter.1 This appeal arises solely, however, from the findings and conclusions pertaining to the events identified as the Notary Matter.2
Mary Jody Sheffer is licensed to practice law in the state of Colorado and has practiced as a solo practitioner for more than ten years.3 She has devoted her legal career to representing clients who have difficulty affording legal services and has focused a substantial portion of her practice on issues relating to battered women.
While representing her son in early 1997 in his dissolution of marriage action, Sheffer notarized his answers to interrogatories, his financial affidavit, a deed of trust he had issued on his marital home, and a request for release of deed of trust and release. The deed of trust was recorded in Arapahoe County.
When she notarized the various documents, Sheffer used the notary seal of a former employee and signed the employee's name to the jurat. Opposing counsel learned of Sheffer's conduct. One result, among others, was that the completion of the sale of her son's marital residence was delayed for two days until a properly notarized request for release of deed of trust and release could be obtained.
Sheffer wrote to opposing counsel the day after the closing was to have been completed, admitting that she had used her former employee's notary seal, etc. She also wrote to the Office of Disciplinary Counsel (now Regulation Counsel), admitting that she had used the notary seal, etc., on a few occasions during the last two years. She apologized, expressed remorse, and attributed her conduct to laziness.
Sheffer was charged in the Eighteenth Judicial District with forgery, §18-5-102(1)(c), 6 C.R.S. (1998), a class 5 felony; criminal impersonation, §18-5-113(1)(d), 6 C.R.S. (1998), a class 6 felony; and wrongful possession of a journal or seal, §12-55-118, 6 C.R.S. (1998), a class 3 misdemeanor. She entered into a plea agreement and pleaded guilty to a fourth charge of abuse of public records, §18-8-114(1)(c), 6 C.R.S. (1998), a class 1 misdemeanor. She was sentenced to eighteen months probation, fined $500, assessed costs and fees of $285, and ordered to undergo a mental health evaluation and treatment. The three original charges were dismissed.
Sheffer admitted and the Board concluded that she violated Colo. RPC 8.4(b) (committed a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer); Colo. RPC 8.4(d)(engaged in conduct prejudicial to the administration of justice); and Colo. RPC 8.4(a)(violated a rule of professional conduct).
Sheffer also admitted that she violated Colo. RPC 8.4(h)(engaged in other conduct that reflects adversely on her fitness to practice law). The Board observed, however, that it found no evidence of other conduct adversely reflecting on her fitness to practice despite her admission or lack of objection to the alleged violation. It then noted that her admission of having violated Colo. RPC 8.4(h) played no part in the Board's formulation of its sanction.
In addition, the Board found that Sheffer violated Colo. RPC 8.4(c)(engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation), and it concluded that her commission of a crime constituted grounds for discipline under C.R.C.P. 241.6(5). The Board observed that:
Sheffer's falsification of … [her former employee's] signature, and her improper use of the notary seal on the Deed of Trust and the Request for Release of Deed of Trust and Release is (sic) of particular significance because these actions call into question the very foundation of trust and authenticity which the legal system invests in any document affecting the ownership and chain of title of real property. Such documents, once signed, notarized and filed in the public records, carry with them an inherent reliability not accorded to normal documentation. Indeed, in light of the high level of reliability accorded them under law, such documents are both self-authenticating and excluded from the hearsay rule. On their face, they establish what they purport to be.
People v. Sheffer, No. GC98A112 (consolidated with GC98A113)(Colo. P.D.J. June 10, 1999), slip op. at 10 (citation omitted). The Board further indicated that it viewed the documents notarized by Sheffer as false:
The Deed of Trust falsely notarized by Sheffer was subsequently recorded with the Clerk and Recorder of Arapahoe County and infected the integrity of the chain of title to the subject property. The Request for Release of Deed of Trust and Release prepared and submitted by Sheffer to effectuate a closing on the subject property was intended by Sheffer to mislead the closing's participants into believing the document was genuine.
Id. (emphasis added). As it continued its analysis of Sheffer's behavior, the Board observed that:
Sheffer's conduct would have succeeded in its intended deceit absent the astute intervention of opposing counsel. Opposing counsel's intervention prevented further personal harm to the closing's participants as well as future owners of the property.4 The prevention of greater harm to the closing's participants by opposing counsel does not lessen the severity of Sheffer's misconduct.
Id. (emphasis added). The Board, speaking again of false documents, concluded its assessment of Sheffer's conduct, as follows:
The conduct addressed here is Sheffer's intentional undertaking of a course of action to mislead and deceive others and to falsify documents with the intent to use them for a fraudulent purpose. Although the actual harm resulting in this case to the parties was minor, there was significant potential harm for Sheffer's acts to all subsequent owners in the chain of title. More importantly, the harm to the public arising from this attorney's willingness to knowingly falsify important legal documents affecting title to real property and thereby to place in question the integrity of this state's recorded documents, is wholly inconsistent with the level of trust the public must place in members of the bar. Sheffer's misconduct erodes the essential trust and inherent honesty of the entire legal profession.
Id. (emphasis added)(citation omitted). In getting to this point, the Board had first concluded as a matter of law that Sheffer had violated certain criminal statutes, none of which was cited in the Regulation Counsel's complaint against her.5
In particular, the Board found that Sheffer had been charged in the Eighteenth Judicial District with three crimes: forgery, criminal impersonation, and wrongful possession of a journal or seal. The Board found that Sheffer had pleaded guilty to a fourth: abuse of public record; a violation of §18-8-114(1)(c), 6 C.R.S. (1998), a class 1 misdemeanor. It noted that the three original charges were dismissed, but it nonetheless turned its attention to the first two and concluded without specifically saying so that Sheffer had violated §18-5-102(1)(c), 6 C.R.S. (1998), a class 5 felony (forgery), and §18-5-113(1)(d), 6 C.R.S. (1998), a class 6 felony (criminal impersonation). It said nothing more about the third original charge (the alleged wrongful possession of a journal or seal, a class 3 misdemeanor)6 and little about the class 1 misdemeanor to which Sheffer had actually pleaded guilty, except to list it.
In short, the Board concentrated on its conclusion that Sheffer had committed "serious criminal offenses" by producing false documents (forgery) and engaging in criminal impersonation with the intent to defraud other persons. Sheffer, No. GC98A112, slip op. at 9. From there, the Board determined that the presumptive sanction was "disbarment" under §5.11 of the American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards). Id. at 11. It then examined a comprehensive selection of cases involving lawyers who had produced false documents, usually forged and usually for personal financial benefit, and who had been disbarred. Thereafter, it issued its order suspending Sheffer for two years, rather than disbarring her, after taking into account substantial and significant factors in mitigation that far outweighed those in aggravation.
Sheffer contends that the Board erred in concluding that she committed two felonies. She then argues that the Board's two-year suspension bears no relation to her misconduct, is manifestly excessive, or otherwise unreasonable; and that the Board's sanction should be reduced to a public censure. Regulation Counsel argues that Sheffer violated Colo. RPC 1.15(c) in the Vialpando Dissolution; concedes that she did not commit the two felonies but argues that she committed two misdemeanors, including one never mentioned by the Board; and contends therefore that a two-year suspension remains an appropriate sanction in this case.7
We turn first to Sheffer's contention that the Board erred in concluding that she violated §18-5-102(1)(c), 6 C.R.S. (1998), a class 5 felony (forgery), and §18-5-113(1)(d), 6 C.R.S. (1998), a class 6 felony (criminal impersonation), and note that because Regulation Counsel now concedes that Sheffer did not actually commit either felony, notwithstanding the record below, we will dispense with an in-depth consideration of her arguments on this point.
In other words, at this juncture, we accept the position of counsel for the parties: Sheffer did not commit either felony.
Next, we turn to Sheffer's argument that the Board's sanction bears no relation to her conduct, is manifestly excessive, or otherwise unreasonable, and to her request that we reduce the sanction to a public censure. She bases her argument and request on her position that she did not commit two felonies or engage in serious criminal conduct.
C.R.C.P. 251.26(a) provides that we must affirm the sanction imposed below unless we determine that, based on the record, the sanction imposed bears no relation to the conduct, is manifestly excessive (or insufficient) in relation to the needs of the public, or is otherwise unreasonable. In Re Vincent, No. 99AD002, slip op. at 13 (Colo.App. Disc.Comm. January 26, 2000). In Vincent, we noted among other things that the issue for the reviewing court (or body) regarding the imposed sanction is not whether it would reach the same conclusion on the same facts. Id. at 14. Moreover, we observed that a court (or body) may not substitute its judgment for that of the agency vested with discretion to impose sanctions. Id.
As noted, however, Sheffer contends and Regulation Counsel now concedes that Sheffer did not commit two felonies, either forgery or criminal impersonation, notwithstanding how the facts and elements of the alleged crimes unfolded in the record before the Board. In other words, the facts have changed. It seems obvious therefore that the Board's sanction could bear no relation to Sheffer's actual conduct, regardless of what the record below might otherwise suggest.
Nonetheless, on appeal, Sheffer acknowledges that her conduct warrants some discipline: a public censure. At the same time, Regulation Counsel contends in their answer brief that Sheffer violated Colo. RPC 1.15(c), committed two misdemeanors (i.e., violated §18-8- 114(1)(c), 6 C.R.S. (1998) and §12-55-117, 4 C.R.S. (1998)), and should still be suspended for two years.
Regulation Counsel did not preserve the Board's treatment of Sheffer's violation of Colo. RPC 1.15(c) or her guilty plea to a violation of §18-8-114(1)(c), 6 C.R.S. (1998) as issues for our review.8 Turning then to Regulation Counsel's contention that Sheffer violated §12-55-117, 4 C.R.S. (1998), a class 2 misdemeanor (willful impersonation), we note that the Board said nothing at all about this statute. Indeed, Regulation Counsel never charged Sheffer with violating §12-55-117, 4 C.R.S. (1998), nor did a district attorney, and Regulation Counsel never asked the Board to find her guilty of having done so. As a result, there is nothing in the record or in the Board's decision on §12-55-117, 4 C.R.S. (1998) for us to affirm or reverse.9 Moreover, in reply, Sheffer contends that she was never given the notice required by due process that she would face the accusation of having violated §12-55-117, 4 C.R.S. (1998).10 She contends that it is too late for Regulation Counsel to raise the accusation for the first time in an answer brief. We agree.
At this point, we are left with a case where Sheffer has admitted to the Board and conceded at oral argument that she engaged in misconduct relating to her misuse of her former employee's notary seal and "signature." In particular, in the proceeding below identified as the Notary Matter, Sheffer admitted violating: 1) Colo. RPC 8.4(a) (violating a rule of professional conduct); 2) Colo. RPC 8.4(b) (committing a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer) [this admission seems to derive, however, from her guilty plea to having violated §18-8-114(1)(c), 6 C.R.S. (1998), a class 1 misdemeanor ( abuse of public record)]; and, 3) Colo. RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice) . Moreover, the Board found Sheffer guilty of violating Colo. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). It also found that she had engaged in conduct constituting grounds for discipline, as specified in C.R.C.P. 241.6(5), although this latter conclusion apparently stems more from the Board's conclusion that she had committed two felonies, not that she had pleaded guilty to a misdemeanor.
Sheffer asserted on appeal and again at oral argument that she ought to be publicly censured at most. Regulation Counsel, on the other hand, conceded at oral argument that they could cite no case in which a two-year suspension had been imposed, even for the misconduct that they now asserted on appeal. We agree with Sheffer that the imposition of a two-year suspension, chiefly for crimes that Regulation Counsel concedes that Sheffer did not commit, would be unreasonable, notwithstanding the record before the Board.
As for the actual sanction, our supreme court has held that "(w)e have generally found public censure to be an appropriate disciplinary sanction for lawyers who have committed misdemeanor offenses, at least where the offense was not directly related to the attorney's practice of law." People v. Flores, 871 P.2d 1182, 1183 (Colo. 1994) (emphasis added). The emphasized phrase certainly suggests that a suspension of some duration might be appropriate in this case.
On the other hand, the court has also imposed a private censure (now private admonition) on a lawyer who on two occasions, forged his clients' signatures to sets of interrogatories, notarized the signatures, and then submitted the interrogatories to opposing counsel. Disciplinary Case Summaries, 19 Colo. Lawyer 267 (1990).11 Certainly it appears that this attorney's offenses related directly to the attorney's practice of law.
More often than not, however, the court has publicly censured lawyers who commit misdemeanors. See People v. Perkell, 969 P.2d 703 (Colo. 1998) (lawyer publicly censured for failing to file his federal tax return); People v. Barnthouse, 941 P.2d 916 (Colo. 1997) (experienced lawyer with history of previous discipline publicly censured for being convicted of fighting in a public place and failing to report his conviction); and, People v. Buckley, 848 P.2d 353 (Colo. 1993) (deputy district attorney publicly censured for theft of an item having a value of less than $50). See also, People v. Small, 962 P.2d 258 (Colo. 1998) (lawyer publicly censured for falsely testifying under oath that he had insurance at the time of an automobile accident).
Nevertheless, at what might be regarded as the other end of the sanctioning range in cases like this one, the court imposed a 60-day suspension where an attorney committed misconduct by instructing his secretary to simulate his client's signature on a workers' compensation stipulation and check even though the relevant statute provided that such claims were not assignable and that powers of attorney were prohibited. The attorney had been disciplined in the past but had not acted out of selfish motive in that he thought he was saving his client a significant amount of time. The attorney also had no intent to harm his client, the misconduct occurred before the attorney had been sanctioned in other disciplinary proceedings, and the attorney fully cooperated with the Office of Disciplinary Counsel. People v. Dowhan, 908 P.2d 72 (Colo. 1995).
In addition to the foregoing, other courts have addressed conduct similar to Sheffer's. In In re Celsor, 499 S.E.2d 809 (S.C. 1998), the lawyer was publicly reprimanded for multiple acts of misconduct, including signing a client's name and then notarizing the signature on documents filed in probate court, and in In re Boyd, 430 N.W.2d 666 (Minn. 1988), the lawyer was suspended for six months for preparing a false deed and causing it to be forged, notarized, and filed, and then issuing a false title opinion based on that deed.
In Boyd, the Minnesota court stresses the importance of carefully examining the facts in each lawyer disciplinary case, and then it undertakes a careful analysis of its cases involving true documents with true contents and false signatures; forged documents with true contents and false signatures; and, false documents with forged signatures. Of significance is that in three cases where lawyers used true documents with true contents and false signatures, the court reasoned that a public censure was the appropriate sanction.
Keeping in mind the different sanctions imposed in those cases where lawyers engaged in misconduct arguably as grave as Sheffer's, it seems that one might determine that an appropriate range of sanctions, beginning with private admonition and ending with short suspension, has been established. When one then considers the range together with the extensive factors in mitigation that the Board recognized in this case — e.g., ABA Standards 9.32(a), 9.32(e), 9.32(b), 9.32(g), 9.32(l), and 9.32(k) (each of the foregoing ABA Standards was expressly found by the Board to apply in this case) — it seems that only in the rarest situation would the facts in a case like this one warrant a sanction as severe as suspension from the practice of law. On the other hand, the Board found that aggravating factors also existed in this case — e.g., ABA Standards 9.22(c), 9.22(i).12
Given the unusual developments with respect to the record before us, we conclude that we are not in a position to weigh the mitigating and aggravating factors or to apply them in formulating a specific sanction of our own in this case. It is, we believe, for the Board in this case to decide how the unique factors in mitigation and aggravation play out against Sheffer's actual misconduct, and then to impose an appropriate sanction.
As a consequence therefore, the Board's decision must be reversed and this matter must be remanded solely to permit the Board to reformulate an appropriate sanction. We are persuaded that since the parties are now represented by new counsel, a fairer and more consistent resolution of this case can be reached, where the sanction imposed would be more proportional to and related to Sheffer's conduct, and would not be manifestly excessive or otherwise unreasonable. Accordingly, it is hereby ordered that the decision of the Board is reversed and this case is remanded to the Board solely for the purpose of determining the appropriate sanction.13
1. Regulation Counsel filed two complaints, later consolidated, against Sheffer. The first complaint contained two counts arising from the Vialpando Dissolution. With the exception of Sheffer's admitted violation of Colo. RPC 1.15(c), the Board concluded that the Regulation Counsel had not proven the charges in the first complaint by clear and convincing evidence and dismissed them. Regulation Counsel did not appeal this aspect of the Board's decision, and therefore we will not address it further.
2. The Board referred to Sheffer's admitted violation of Colo. RPC 1.15(c) in the Vialpando Dissolution and made findings pertaining thereto, i.e., that she retained a disputed fee payment but did not segregate and hold the disputed amount in a separate account as the rule requires, but it disregarded this violation when formulating the sanction.
3. Sheffer is subject to the jurisdiction of the supreme court and this commission in these proceedings. C.R.C.P. 251.1(b) and C.R.C.P. 251.26.
4. This observation probably overstates the gravity of the effect of Sheffer's conduct. The Board's subsequent reference to "greater harm" assumes that had both of the falsely notarized documents been recorded, some serious problem in the chain of title would have been created. This is not so, however, given that the documents themselves were not false.
5. Sheffer was charged in one paragraph with violating "criminal statutes pertaining to forgery and impersonation as well as improper possession of a notary seal." The same paragraph contained other allegations. Sheffer admitted the allegations in part and denied the allegations in part but without making it clear which were which.
6. The Board mentioned this statute, §12-55-118, 6 C.R.S. (1998), once but never discussed it.
7. Regulation Counsel, believing that the charges in both complaints had been proved at trial, asked the Board to impose a suspension of one year and one day, with all but 30 days stayed, and two years probation. With nearly all of the charges in one complaint dismissed at trial and with their concession as to the felonies, it is puzzling that Regulation Counsel would now contend in their answer brief that a two-year suspension is appropriate.
8. See footnote 2. Moreover, the Board never expressly found Sheffer guilty of violating §18-8- 114(1)(c), 6 C.R.S. (1998).
9. Even if there were something in the record or in the Board's decision touching on this statute, Regulation Counsel did not preserve the Board's treatment of it as an issue for our review on appeal.
10. See In re Quiat, 979 P.2d 1029, 1039 (Colo. 1999).
11. We are aware that the court said in People v. Meier, 954 P.2d 1068, 1071 (Colo. 1998) that summaries of private discipline do not constitute binding precedent, and later, that citation to and reliance upon them is discouraged. See People v. Small, 962 P.2d 258, 261 (Colo. 1998). The summaries remind us, nonetheless, that in some cases, including this one, the range of appropriate sanction might begin with a private sanction.
12. Although the Board treated the ABA Standards as "guiding authority" (Sheffer, No. GC98A11 2, slip op. at 11) for selecting the appropriate sanction to impose, we are not aware that the supreme court has ever done so. E.g., People v. Moore, 849 P.2d 40, 43 (Colo. 1993).
13. C.R.C.P. 251.26(m) provides in part that "(t)he Appellate Discipline Commission may . . . enter other appropriate orders… ." We construe this language to permit us to remand this case to the Board.
Case No. 99AD001
In the Matter of Jeffrey A. Parsley,
April 26, 2000
Proceeding in Discipline
John S. Gleason, Attorney Regulation Counsel, Debora D. Jones, Assistant Regulation Counsel, Denver, Colorado, Attorneys for Complainant
Jay P. K. Kenney, Denver, Colorado, Attorney for Attorney-Respondent
BY THE COMMISSION
The respondent, Jeffrey Allan Parsley, appeals the recommendation of the Grievance Committee1 that his license to practice law be suspended for ninety days, and that conditions be imposed on his practice through a twelve-month term of probation. We hold that the sanction recommended by the Grievance Committee does not violate Mr. Parsley's due process rights; is supported by appropriate findings of fact; is not manifestly excessive in relation to the needs of the public; bears a relation to Mr. Parsley's conduct; and is not otherwise unreasonable.
The facts of this disciplinary action are not in dispute. Mr. Parsley represented petitioners in thirteen separate Chapter 13 bankruptcy proceedings. Mr. Parsley failed to file required documents and missed numerous court deadlines. In several cases, Mr. Parsley re-filed Chapter 7 cases rather than filing motions for conversion to Chapter 13. This re-filing violated F.R.Bankr.Proc. 1007(c) and 3015(b), and Local Bankr. Rule 320(c)(2). These acts occurred over a two-year period, 1996 to 1998. Mr. Parsley admits that his conduct violates Colo. RPC 1.1 (failure to provide competent representation); Colo. RPC 1.3 (lack of diligence and neglect of a legal matter); Colo. RPC 8.4(a) (violation of a rule of professional conduct); and Colo. RPC 8.4(d) (conduct prejudicial to the administration of justice).
This case was presented to a hearing board of the Grievance Committee, which found that this misconduct warranted a ninety-day suspension, with sixty days stayed, conditioned on compliance with the conditions of a twelve month term of probation. A hearing panel of the Grievance Committee accepted the recommendation of the hearing board, altering only one condition. The condition regarding hours of practice was modified to read "Mr. Parsley shall practice law for fifteen hours per week during the time he is to receive credit for the twelve months probation."
In this appeal, Mr. Parsley contends that due process requires that a sanction agreed to by the parties be imposed; that the hearing board ignored binding stipulations as to character, reputation, and remorse; and that the conditions imposed bear no relation to Mr. Parsley's conduct or to the protection of the public. We disagree with Mr. Parsley's characterization of the facts and the law, and affirm the recommendation of the committee.
Mr. Parsley contends that the parties agreed that the board would recommend discipline no greater than a ninety-day, fully-stayed suspension, and that this agreement defined the limits of discipline that could be recommended by the hearing board. Neither the record nor the law supports this contention.
This case was heard on October 22, 1998, by a hearing board of the Grievance Committee. By written stipulation, Mr. Parsley admitted substantially all of the allegations of the complaint. At the hearing, Mr. Parsley testified about certain specific facts in the thirteen bankruptcy cases, his reasons for missing deadlines and re-filing cases, and the management problems in his office that contributed to these problems. Mr. Parsley characterized his testimony as offered in mitigation, and "to supplement generally the kind of skeletal facts that are in the stipulation of fact." R., Vol. III, p. 7.
In its findings of fact, conclusions of law, and recommendation regarding sanction, the hearing board accepted the parties' stipulation as to the findings of evidentiary fact regarding the thirteen bankruptcy cases. The hearing board also accepted the stipulation that these acts violated Colo. RPC 1.1, Colo. RPC 1.3, Colo. RPC 8.4(a), and Colo. RPC 8.4(d).
On the issue of sanction, Mr. Parsley asserted at the hearing that a public censure, with conditions and either with or without a term of probation, was the appropriate remedy. Disciplinary counsel argued for a term of suspension, commensurate with Mr. Parsley's serious misconduct. Disciplinary counsel did not argue against a stay of the entire suspension, but did not advise the board that she considered a fully-stayed suspension to be a stipulated upper-range of sanction. The parties informed the board that they agreed on some conditions of practice: attendance at ethics school, a restriction on practice in Chapter 13 Bankruptcy, and a practice monitor.
While disciplinary counsel and Mr. Parsley characterized the difference in their recommendations as a "disagreement [about] the terminology used to describe the disposition," neither party proposed to the hearing board that it was limited to a choice between the recommendations of the parties, or to a sanction that did not exceed that recommended by disciplinary counsel. Neither party suggested to the board that the parties expected to return for another hearing if the stipulation was rejected.
Clearly, it was not the understanding of the hearing board that they were asked to decide only the question of what was the proper legal characterization of an agreed sanction. The presiding officer began the hearing by discussing the trial management order (R., Vol. III, p. 4):
[The] People are asking for 90 days suspension with conditions. The Respondent is requesting a public censure with conditions. You are in agreement about the conditions, and there is some disagreement about how this is to be worded, and that has me totally mystified as to what that means. And I assume that the exhibits are ready to be admitted by stipulation?
We find nothing in the record indicating that there was a stipulation as to sanction. Moreover, any such stipulation would have been inconsistent with the law in effect at the time. There was no authority in the Rules of Civil Procedure at the time of this hearing that allowed the parties to bind the board by agreement to a sanction, and there was no process in the Rules that allowed presentation to a hearing board, instead of an inquiry panel, of a "conditional admission."
In the system of checks and balances provided by the Colorado Rules of Civil Procedure for the disciplinary process prior to January 1, 1999, there was no instance in which disciplinary counsel could agree to a sanction without the approval of an inquiry panel. Rule 241.18, C.R.C.P., provided that a respondent in a disciplinary action could tender a conditional admission to an inquiry panel of the committee. By this process, Mr. Parsley could have proposed a range of discipline to the panel, offering to admit to misconduct as described in the conditional admission, so long as the committee, and ultimately the court, imposed discipline within that range.
That process was not followed here. The record demonstrates, instead, that the parties argued for sanctions that were different in nature. Each simply hoped to convince the hearing board that the facts justified his or her proposal. No conditional admission could have been presented to an inquiry panel, because disciplinary counsel never agreed that probation without a suspension was acceptable.
Mr. Parsley's second contention is that the board ignored stipulations as to Mr. Parsley's good character and his remorse.
Mr. Parsley does not provide a record citation to support his claim that there was a stipulation that he was remorseful. We have not located such a stipulation. There is, however, substantial evidence in the record to support the hearing board's conclusion that, although Mr. Parsley stated that he was embarrassed and sorry, his failure to accept responsibility for his misconduct belied his statement that he was truly remorseful.
The record contains an oral representation by Mr. Parsley's lawyer, at hearing, that the parties stipulated to his good character and reputation. The hearing board did not acknowledge that stipulation in their findings. However, the record before us contains all of the testimony and evidence that was presented on these issues. Considering the facts of this case and the factors in aggravation and mitigation that are before us, we conclude that the factors of Mr. Parsley's good character and reputation would not change the outcome. Remand, solely for consideration of the issue of character, is not warranted. See People v. Bertagnolli, 922 P.2d 935 (Colo. 1996). The sanction recommended by the hearing board, and ultimately by the Grievance Committee, is designed to protect the public. A finding of good reputation or character would not alter the need for public protection from misconduct of this nature. Id. at 939.
Last, Mr. Parsley contends that his conduct does not warrant, and public protection will not be furthered by, the conditions placed on his practice. We disagree.
First, as a factual matter, Mr. Parsley misstates the condition regarding active practice. He is not required to "practice law at least fifteen hours a week." As amended by the hearing panel, the requirement is that he practice law at least fifteen hours a week during the twelve months he asks to have counted toward his probation service. This requirement assures that he will have one year of monitored practice before he resumes unsupervised practice.
We next consider the nexus between Mr. Parsley's conduct and the sanction. The board found that although Mr. Parsley stated that he was embarrassed and sorry about his failures to act, he failed to accept full responsibility for his conduct, or to demonstrate genuine remorse. The board noted that Mr. Parsley provided no explanation for why he failed to meet the deadlines in the bankruptcy cases. He acknowledged that he had received the notices from the bankruptcy court requiring action on his part, discussed them with his paralegal, and recorded the deadlines on his own calendar and that of his secretary. When specifically asked why he did not meet the deadlines, Mr. Parsley responded that he was not sure. The hearing board found that, to the extent that Mr. Parsley provided any explanation for this conduct, he blamed it on his paralegal.
Despite Mr. Parsley's argument to the contrary, the hearing board found that his actions and inaction caused real harm to the bankruptcy court and potential harm to creditors of those who were filing for bankruptcy. The hearing board agreed with the comments of the bankruptcy judge, who stated in an order denying a motion to reinstate a Chapter 13 case (R., Vol. II, p. 43; Exhibit 14, paragraph 5):
Contrary to the representations in the motion, creditors and taxpayers have been inconvenienced and prejudiced by the debtor's failure to correct the deficiency filing in a timely manner.
The hearing board found, in aggravation, that Mr. Parsley had a history of previous discipline, which included a letter of admonition for neglecting a legal matter. He had engaged in a pattern of misconduct; had committed multiple offenses; had done so in cases where his clients were vulnerable; and had substantial experience in the practice of law. In mitigation, the hearing board found that he had no dishonest or selfish motive, and that he had displayed a cooperative attitude toward the proceedings. The hearing board was "particularly troubled" by the number of cases in which misconduct occurred and by Mr. Parsley's knowing state of mind. As a result, it found that a sanction greater than either party recommended was warranted. This conclusion is supported by substantial evidence. The sanction, as amended by the hearing panel, is reasonable and appropriate. It is not manifestly excessive in relation to the needs of the public, and it appropriately addresses Mr. Parsley's misconduct.
For the reasons set forth herein, we affirm the recommendation of the Grievance Committee in all respects. In accordance with C.R.C.P. 251.26(m), Mr. Parsley is ordered suspended from the practice of law for a period of ninety days, effective thirty-one days after the date of this opinion. Sixty days of the suspension is stayed, conditioned on his successful completion of twelve months of probation, as authorized by C.R.C.P. 251.7, during which time he must be in active practice at least fifteen hours per week. Terms of probation are that Mr. Parsley successfully complete ethics school within thirty days of completion of probation, or such additional time as is agreed to by Regulation Counsel; be monitored in the practice of law according to the terms set out in the hearing board's recommendation; pay all costs of the monitoring; and commit no ethical violations during the probation term. Additionally, he is ordered to pay the costs of the proceeding below, in the amount of $390.49 within thirty days after this opinion is announced, to the Office of Attorney Regulation Counsel, 600 17th Street, Suite 200-S, Denver, Colorado, 80202-5432.2
1. The Colorado Supreme Court reorganized the Colorado Attorney Regulation System, effective January 1, 1999. The Grievance Committee has been replaced by a Presiding Disciplinary Judge and by the new Attorney Regulation Committee. The Appellate Discipline Commission was created as an intermediate appellate body. Mr. Parsley appealed this matter to the Supreme Court before the reorganization took effect. After January 1, 1999, the Supreme Court remanded this case to the Appellate Discipline Commission.
2. The decision in this case is final upon the expiration of thirty days from the date of this opinion. C.R.C.P. 251.26(n).
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