Vol. 29, No. 3
From the Courts
Colorado Disciplinary Cases
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 100 for details.
Case No. 99AD002
In the Matter of Doug Vincent,
January 26, 2000
Proceeding in Discipline
John S. Gleason, Attorney Regulation Counsel, Nancy L. Cohen, Deputy Regulation Counsel, Kenneth B. Pennywell, Assistant Regulation Counsel, Denver, Colorado, Attorneys for Complainant
Michael G. Cooksey, Littleton, Colorado, Attorney for Attorney-Respondent
BY THE COMMISSION
In this attorney regulation case, a Hearing Board ("Board") suspended the respondent, Doug Vincent, from the practice of law for two years.1 The Board further specified in its order that if Vincent were to complete attendance at thirty-five hours of continuing legal education programs (twenty hours of which is to be focused on COLTAF accounting requirements, segregation of client funds, and the rules of professional conduct) and prove successful completion of the Multi-state Professional Responsibility Examination, then one year and three months of his suspension would be stayed, and he would be placed on probation for that same period, under certain terms and conditions.2 The Board also ordered Vincent to file a petition for reinstatement, citing C.R.C.P. 251.29, to be reinstated under the prescribed terms and conditions of probation.3 Subsequently, the Presiding Disciplinary Judge, noting that no objection had been made by the Attorney Regulation Counsel, conditionally granted Vincent's motion to stay the Board's order pending this appeal.
Regulation Counsel, attorneys for the complainant, appeals the decision of the Board, contending that its finding of fact that Vincent did not knowingly convert client funds is clearly erroneous, that the Board's disciplinary sanction is unduly lenient, and that Vincent should be disbarred. Vincent in turn cross-appeals, contending that the Board's sanction is manifestly excessive and that it should be reduced to a six-month suspension, with reinstatement following by operation of rule rather than on petition. He also contends that he should not be placed on probation.
For the reasons expressed herein, we affirm the decision of the Board.
At the conclusion of the hearing in this disciplinary proceeding, the Board made the following factual findings by clear and convincing evidence.
Doug Vincent has been licensed to practice law in Colorado since 1980. In November 1989, a client hired Vincent to represent the client's company in a breach of contract suit against another company and an officer of that company who resided overseas. Vincent, a patent attorney, had no prior experience handling litigation matters, crafting contingent fee agreements, or receiving client funds designated for paying costs. His legal experience had been limited to intellectual property matters involving flat fees from which the lawyer was solely responsible for costs incurred in the representation. Nonetheless, Vincent entered into an oral contingent fee agreement with his client who was to pay costs. Because the details of the fee agreement were not in writing, Vincent and his client held different understandings of how payment of costs would be handled.
In 1990 and 1991, Vincent asked the client for money to cover expenses that Vincent had incurred on the client's behalf in the litigation. The client gave Vincent $700, but Vincent did not deposit all of that amount into his Colorado Trust Account Foundation ("COLTAF") account. Moreover, Vincent did not use all of the money he received to pay those who had supplied the litigation-related services. Rather, Vincent gave credit on his internal accounts to the client for the amounts paid, considered the third-party vendor charges to be his (Vincent's) sole responsibility, and withdrew the funds traceable to the client's payments and spent those funds for goods and services unrelated to the client's matter. Vincent believed the funds were his funds and treated them as such.
In February 1993, the client's wife paid Vincent $400 designated for an asset search to be performed by a third-party vendor. Vincent deposited those funds into his COLTAF account, but he did not use them to pay for the asset search. In July 1993, Vincent received $757.54 from the client for payment of two specific third-party vendor charges. Vincent deposited $500 of the $757.54 into his COLTAF account but took $257.54 in cash as a "cash back" and spent it for personal and business purposes unrelated to the client's matter. Moreover, Vincent did not use the $500 as the client had intended to pay the vendors.
In 1997, nearly four years after the client had provided funds to Vincent to pay the third-party vendors, one of those vendors contacted Vincent to discuss the outstanding indebtedness. During their conversation, Vincent told the vendor that he believed the indebtedness had been discharged in Vincent's personal bankruptcy. He agreed to provide bankruptcy records verifying this discharge to the vendor. Vincent's discharge in bankruptcy was dated June 17, 1992. Vincent had retained the vendor to do investigative work on or about April 8, 1993. Vincent knew or should have known at the time he claimed that his debt had been discharged that his bankruptcy had predated the indebtedness and thus, the indebtedness had not been discharged. Moreover, Vincent did not send the bankruptcy records to the vendor as he promised.
In January 1997, the client learned that Vincent had not paid at least two of the three vendors for which the client previously had paid funds to Vincent. The client subsequently filed a request for investigation with the Disciplinary Counsel. Several months after the request for investigation was filed and more than four years after the vendors had provided the services requested and submitted bills to Vincent, Vincent paid all of the outstanding third-party vendor charges. The client suffered no financial harm as a result of Vincent's mishandling of the funds provided.
Vincent deposited both his personal and client funds into his COLTAF account and expended funds from that account for personal needs and routine office expenditures. Vincent made no effort to segregate client funds from either his personal funds or operating funds, even though on several occasions the client's check reflected the purpose of the funds.
Neither the Complaint nor the Amended Complaint charged Vincent with any violations of the Code of Professional Responsibility which governed lawyer conduct prior to January 1, 1993. As a result, the Board only considered Vincent's conduct after January 1, 1993, in reaching its decisions on violations of the Colorado Rules of Professional Conduct.4
The Board concluded that the funds the client provided to Vincent were for the payment of specific costs. There can be no doubt, therefore, that those funds were client funds until such time as Vincent used them to pay the specific costs for which they were provided or to reimburse himself for expenses he had actually advanced, or used them in an alternative manner as authorized by the client.
The Board concluded that Vincent failed to maintain the client's property separate from his own, exposed his client to potential harm by such failure, and misled the client into believing that the funds had been used for the intended purpose. Vincent's conduct constitutes a violation of Colo. RPC 1.15(a).5 In fact, he so stipulated.
The Board also found that between December 1989 and July 1993, the client gave Vincent a total of $2,357.54 to pay third-party vendors for services they had provided in connection with his suit. Before Vincent learned, however, that his client had filed a request for investigation in 1997, Vincent had paid only $1,365.24 to third-party vendors.
The Board noted that although Vincent had paid portions of the bills of one of the three vendors, he had not paid any portion of the other two vendors' bills for nearly four years despite having received funds from the client for that purpose. Vincent did not fully pay the vendors' bills until after he was aware that a request for investigation had been filed against him. Vincent's failure to pay the vendors' bills promptly is directly related to and a consequence of his failure to comply with the mandatory provisions of Colo. RPC 1.15(a) and, as he stipulated, constitutes a violation of Colo. RPC 1.15(b).6 Vincent also acknowledged by way of stipulation that his conduct violates Colo. RPC 8.4(a) (a lawyer shall not violate a rule of professional conduct) and the Board's findings and conclusions support that stipulation.
On the remaining charge against him, the Board concluded that Vincent deceived his client into believing that the funds paid for satisfaction of costs were used to satisfy incurred costs when, in fact, they were not. It found that Vincent failed to explain fully the workings of the contingent fee agreement to his client, and failed to explain his handling of the client's funds, leaving the client with the impression that the funds had been properly applied. It also found that Vincent misappropriated the funds provided to him by the client and deceptively concealed that fact. Moreover, the Board concluded that Vincent misled at least one vendor by first telling them their bill had been discharged in bankruptcy, agreeing to provide supporting bankruptcy documentation, and then failing to do so. As a result, Vincent also violated Colo. RPC 8.4(c) (engaged in conduct involving dishonesty, fraud, deceit or misrepresentation).
In formulating its sanction in this case, the Board correctly recognized that Vincent's state of mind is the decisive element in deciding between knowing misappropriation and technical conversion, with the former usually leading to disbarment and the latter often ending with a suspension. On this point the Board observed that:
Vincent admitted that he withdrew the funds which had been paid to him by his client and designated for vendor costs, but convincingly testified that consistent with his lengthy experience with fixed fee arrangements, it was his understanding that the funds were his, not his client's. Although Vincent knowingly used the funds paid by his client for purposes other than the client intended and without his client's authorization, the evidence is not clear and convincing that Vincent knew or understood that the funds belonged to his client. On the contrary, Vincent, as the result of his lack of prior experience with contingency fee arrangements and trust account management, misunderstood the import of the facts, believed the funds belonged to him and handled them accordingly.
People v. Vincent, No. GC 97A-113, slip op. at 9 (emphasis added). As it continued its analysis of Vincent's behavior, the Board observed that:
Vincent has had no prior discipline, was cooperative in the investigation and prosecution of this matter, had no prior experience handling client funds designated for cost expenditures and expressed remorse for his conduct. His conduct, however, reflects a selfish motive, involves both multiple offenses and a pattern of misconduct, arose after he had been licensed to practice law for over nine years, and would have been avoided in its entirety had Vincent merely informed himself of the requirements of the rules applicable to all lawyers in the handling of client funds. On balance, the aggravating factors substantially outweigh the mitigating factors and justify a lengthy period of suspension.
Id. at 10 (citation omitted).
The complainant contends that the Board erred in concluding it had not been shown by clear and convincing evidence that Vincent knowingly converted client funds. Nonetheless, the complainant adopts the Board's findings of fact but then submits that the Board should have drawn a different inference about Vincent's state of mind from some of those facts. Without addressing the evidence to the contrary, the complainant argues that the Board should have concluded that Vincent knowingly misappropriated client funds; and then the complainant contends that the Board's conclusion that knowing misappropriation had not been proved by clear and convincing evidence is clearly erroneous. The complainant concludes by arguing that Vincent should be disbarred.
C.R.C.P. 251.26(a) provides in part that the Appellate Discipline Commission ("ADC") must affirm the decision of the Board, unless the ADC determines that, based on the record, the Board's findings of fact are clearly erroneous. In adopting this rule, the court in effect instructs the ADC to apply the same standard of review to the Board's findings of fact that an appellate court would apply when reviewing the findings of fact made by an administrative agency or a trial court, acting without a jury. See § 24-4-106(7), 7 C.R.S. (1998), and C.R.C.P. 52.
When applying this same standard of review in lawyer disciplinary proceedings, the court held that findings of fact are clearly erroneous when they are unsupported by substantial evidence. People v. Gibbons, 685 P.2d 168, 173 (Colo. 1984). Substantial evidence is more than a scintilla, and it must do more than create a suspicion of the existence of the fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995). Under this standard, in determining whether the findings and conclusions are supported by substantial evidence, it is not the province of this commission to measure the weight of the evidence or to resolve the credibility of witnesses. See People v. Robnett, 859 P.2d 872, 877 (Colo. 1993). Whether there is substantial evidence to support an agency's decision is a question of law, and in resolving that question of law, a reviewing court must view the record in the light most favorable to the agency decision. Colorado State Board of Nursing v. Lang, 842 P.2d 1383, 1386 (Colo. App. 1992). Hence, even if our decision on the merits would be different, any such conclusion may not supplant an agency decision that is supported by substantial evidence. See Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 11.2 (3d. ed. 1993). Moreover, when a hearing board acts as a fact finder, it has the duty to assess the credibility of all the evidence before it, both controverted and uncontroverted. People v. Blanck, 700 P.2d 560, 561 (Colo. 1985). These same principles apply when appellate courts review the findings of fact made by trial courts.
Notwithstanding these principles, the complainant does not claim that the evidence that the Board relied upon in reaching its conclusion regarding Vincent's state of mind was insubstantial. Rather, the complainant simply refers to selected portions of the record and contends that the Board should have relied on those portions rather than others and should have concluded that Vincent knowingly misappropriated his client's funds.7
In doing so, the complainant asks us in effect to disregard those portions of the record which provide more than ample support for the Board's findings and conclusion that Vincent had not acted knowingly. Then, the complainant asks us to do that which the supreme court itself would not do: overturn a hearing board's conclusion about whether a conversion was not willful and knowing when the record supports the Board's (opposite) conclusion. People v. Wechsler, 854 P.2d 217, 221 (Colo. 1993).
, the Board's findings of fact and conclusions are supported by substantial evidence in the record, we will not overturn them.
The complainant bases the call for Vincent's disbarment on the contention that Vincent knowingly misappropriated client funds, citing People v. Varallo, 913 P.2d 1 (Colo. 1996), and a number of other cases, all of which involved the knowing misappropriation of funds belonging to clients or third parties. When a knowing misappropriation of client funds is proved, disbarment is the presumed sanction. Id. at 11-12. Citing People v. Rader, 822 P.2d 950 (Colo. 1992), the complainant asks us to draw a different inference from the facts than did the Board and to conclude that Vincent acted recklessly to the point of being deemed to have knowingly taken client funds. Rader offers no legal support for such a proposition, however. Indeed, in cases involving a lawyer's misappropriation of another's property, a reckless state of mind is not equivalent to "knowing" for disciplinary purposes. People v. Small, 262 P.2d 258, 260 (Colo. 1998). The complainant's conclusion regarding the appropriate sanction, i.e., disbarment, is based on a premise that is without merit. Because the premise is without merit, so too is the conclusion drawn from it.
Vincent, on the other hand, contends that the Board's sanction is manifestly excessive, and he asks that we reduce it to six months and dispense with the requirement that he petition for reinstatement.8 He drew our attention to lawyer disciplinary cases where the supreme court imposed sanctions that were less severe in some cases or more severe in others under circumstances somewhat similar to his own. He said little, however, about how much latitude we have to make adjustments to the Board's sanction.
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 Colorado Real Estate Comm. v. Hanegan, 947 P.2d 933 (Colo. 1997), the court concluded that:
C…ourts will uphold an agency sanction unless it (1) bears no relation to the conduct, (2) is manifestly excessive in relation to the needs of the public, or (3) is otherwise a gross abuse of discretion. See Bennett v. Price, 167 Colo. 168, 174, 446 P.2d 419, 421 (1968); People ex rel. Woodard v. Brown, 770 P.2d 1373, 1379 (Colo. App.), cert. denied, 783 P.2d 1223 (Colo. 1989). The relationship of the sanction to the conduct and to public need provides courts with an analytical grid on which to map agency discretion.
. . . .
The imposition of sanctions is a discretionary function which, if within the statutory authority of an agency, must not be overturned unless that discretion is abused. The issue for the reviewing court is not whether it would reach the same conclusion on the same facts. See Bennett, 167 Colo. at 172, 446 P.2d at 420-21. A court may not substitute its judgment for that of the agency vested with discretion to impose sanctions. See Speer v. Kourlis, 935 P.2d 43, 48 (Colo. 1996); Coates, Reid & Waldron v. Vigil, 856 P.2d 850, 858 (Colo. 1993). Hanegan did fail, albeit unintentionally, to meet the continuing education requirements specified by statute. She failed to keep properly abreast of legal requirements for maintaining her broker's license. Of the three thousand licensees whom the Commission audited, less than ten had failed to meet this requirement. In addition, she erroneously represented to the Commission, under penalty of perjury, that she had completed the required course. Evidence before the ALJ indicated that the Commission had imposed public censure on other individuals who failed to take the course. We are sympathetic to the fact that Hanegan's violation was unintentional and that she had no prior record of discipline. However, we are unable to conclude on these facts that public censure bears no relation to Hanegan's conduct or is manifestly excessive in relation to the needs of the public, and is thus an abuse of discretion. See Hickam, 36 Colo. App. at 84, 534 P.2d at 1225-26 (reversing district court's finding of abuse of discretion where Real Estate Commission revoked broker's license even though no party was damaged by broker's actions).
947 P.2d at 936. With Hanegan in mind, we ordinarily would first look to see whether the Board's sanction was within the Board's authority or was legally permissible. We note, however, that neither party suggested that the sanction imposed exceeds the Board's authority or is not permissible under the rules. Moreover, our review of C.R.C.P. 251.7(a), C.R.C.P. 251.19(b), and C.R.C.P. 251.29(b) leads us to conclude that the sanction falls within the authority of the Board to impose.
Turning then to Vincent's claim that the Board's sanction is manifestly excessive, we focus primarily on the nine-month period of actual suspension imposed below and note that that aspect of the sanction falls below the range of sanctions previously imposed by the supreme court in many cases involving unknowing or technical conversions of client funds. For example, in People v. Schaefer, 938 P.2d 147 (Colo. 1997), the lawyer was suspended for two years; in People v. Fager, 925 P.2d 280 (Colo. 1996), the lawyer was suspended for one year and one day, with reinstatement subject to his making restitution; in People v. Zimmermann, 922 P.2d 325 (Colo. 1996), the lawyer was suspended for one year and one day, with reinstatement subject to special conditions; in People v. Dickinson, 903 P.2d 1132 (Colo. 1995), the lawyer was suspended for three years; in People v. Galindo, 884 P.2d 1109 (Colo. 1994), the lawyer was suspended for one year and one day; and, in People v. Wechsler, 854 P.2d 217 (Colo. 1993), the lawyer was suspended for one year and one day.
Keeping the range of discipline imposed in these cases in mind, and noting that a petition for reinstatement was required in each, see C.R.C.P. 241.22(b) (now C.R.C.P. 251.29(b)), we are unable to conclude on the facts in this case that a nine-month period of actual suspension, coupled with the need to petition for reinstatement and a period of probation, bears no relation to Vincent's conduct or is manifestly excessive in relation to the needs of the public. Moreover, while it is true that the imposition of probation, in lieu of some or all of an actual period of suspension, is relatively new, we disagree with Vincent's contention that its imposition enhances the harshness of his suspension. On the contrary, the Board appropriately used conditions of probation to reduce the length of actual suspension that it might otherwise have imposed. In doing so, we conclude that the Board imposed a sanction that is not manifestly excessive.
The decision of the Board is affirmed. In accordance with C.R.C.P. 251.26(m), it is hereby ordered that the respondent, Doug Vincent, is suspended from the practice of law for a period of two years, effective thirty-one days after the date of this opinion.9 Upon submission of a certificate of compliance to the Regulation Counsel of completion of thirty-five hours of attendance at continuing legal education programs (twenty hours of which shall be focused on COLTAF accounting requirements, segregation of client funds, and the rules of professional conduct) and proof of successful completion of the Multi-state Professional Responsibility Examination, one year and three months of the period of suspension shall be stayed, and Vincent shall be placed on probation for a one year and three month period as authorized by C.R.C.P. 251.7, under terms and conditions prescribed by the Board. Should Vincent seek reinstatement to practice law under the terms and conditions of probation prescribed by the Board, he is required to file a petition for such reinstatement as provided in C.R.C.P. 251.29.10
1. The Hearing Board was composed of the Presiding Disciplinary Judge and two members of the bar.
2. While on probation, Vincent is to attend Ethics School; retain a monitor to review his handling of client funds, to pre-approve every deposit and withdrawal from his trust account, and to file monthly reports with Regulation Counsel; pay the costs of probation; and refrain from further violations of the rules of professional conduct.
3. The effect of this last aspect of the Board's order is multi-faceted: Vincent must show not only that he has completed the Board-ordered educational requirements during the first nine months of his suspension, but also that he has complied with the additional requirements contained in C.R.C.P. 251.29(c). Moreover, a reinstatement proceeding by petition, by its very nature, extends the period of actual suspension until a new Board rules on the petition and all appeals, if any, have been exhausted. In other words, the duration of a nine-month suspension under these circumstances is substantially greater than nine months.
4. The Board also said that it would take Vincent's pre-1993 conduct into account as mitigation or aggravation in arriving at an appropriate sanction. It is unclear to what extent the Board might have actually done so, however, as the Board makes no specific reference to the pre-1993 events when formulating its sanction. Neither party has questioned whether the Board's stated intention, if acted upon, would constitute a denial of due process, and so we do not address the issue.
5. Colo. RPC 1.15(a) provides in part:
In connection with a representation, a lawyer shall hold property of clients or third persons that is in a lawyer's possession separate from the lawyer's own property. Funds shall be kept in a separate account. . . .
6. Colo. RPC 1.15(b) requires in part:
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall, promptly or otherwise as permitted by law or by agreement with the client, deliver to the client or third person any funds or other property that the client or third person is entitled to receive. . . .
7. The complainant mistakenly relies on facts which show that Vincent knew where he was depositing the client's funds and knew how he was spending those funds rather than facts that would show whether Vincent understood or knew that his manner of handling those funds was contrary to the rules.
8. Vincent's contention stems from his assessment of the totality of the sanction imposed, not just of the period of actual suspension. He is particularly troubled by having to file a petition for reinstatement at the end of the period of actual suspension, given that a reinstatement proceeding necessarily extends the period of actual suspension for however long it takes to resolve the reinstatement question.
9. As a result, Vincent must comply with the requirements found in C.R.C.P. 251.28.
10. 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).
Case No. GC98C109
The People of the State of Colorado,
Kallman S. Elinoff,
January 5, 2000
Original Proceeding in Discipline Before the
Presiding Disciplinary Judge
ORDER RE: RESPONDENT'S MOTION TO AMEND FINDINGS OF FACT AND MOTION TO AMEND JUDGMENT
On September 17, 1999, an Opinion and Order was issued in this case imposing the sanction of disbarment upon Kallman S. Elinoff ("Elinoff"). On October 4, 1999, Elinoff filed a motion pursuant to C.R.C.P. 251.26(g) requesting that the imposition of discipline be stayed pending post trial proceedings pursuant to C.R.C.P. 251.19. On October 17, 1999, the Presiding Disciplinary Judge ("PDJ") entered an order staying imposition of discipline until such time as all post trial proceedings and/or appeals were concluded. That order is still in place.
On December 1, 1999, following two extensions of time, Elinoff filed a Motion to Amend Findings and Order ("Motion to Amend") pursuant to C.R.C.P. 251.19, C.R.C.P. 59(a)(3) and C.R.C.P. 59(a)(4). The People filed a timely response. On December 22, 1999, Elinoff filed a Motion to Supplement Motion to Amend Findings and Order ("Motion to Supplement") and the People responded. The Motion to Supplement is, in fact, a motion pursuant to C.R.C.P. 59(f) to reopen the record to receive additional evidence. The People did not object to the reopening of the record but did interpose objections to portions of the evidence offered.
On January 4, 2000, the PDJ held a hearing and heard argument on the Motion to Supplement. Harvey A. Steinberg appeared on behalf of Elinoff, who was also present, and Debora D. Jones appeared on behalf of the People. The PDJ treated the Motion to Supplement as a motion under C.R.C.P. 59(f). Pursuant to C.R.C.P. 251.19(b), the PDJ consulted with the members of the Hearing Board prior to ruling upon the Motion to Supplement. Although reopening of a trial record should only occur in the rarest of circumstances, fairness requires it be done in this case. Both counsel for the People and counsel for Elinoff openly acknowledged they had misperceived the gravity of the charges, the proceeding and the potential sanction. The PDJ granted the Motion to Supplement and accepted the testimony of four additional witnesses reflected in deposition transcripts attached to the motion. The PDJ sustained the People's objection and excluded any testimony set forth therein relating to pharmacological effects of medication and sustained the People's objection and excluded any testimony set forth therein opining upon the findings of fact, conclusions of law or sanction imposed by the September 17, 1999, Opinion and Order. The PDJ granted the People's request to limit consideration of the remaining testimony set forth therein to character evidence under C.R.E. 404(a)(1).
Immediately thereafter, the members of the Hearing Board and the PDJ heard argument on the Motion to Amend. Following argument, the PDJ consulted with the members of the Hearing Board and enters the following Order:
1. The Motion to Amend Findings and Order filed pursuant to C.R.C.P. 59(a)(3) requesting that the findings of fact be amended is DENIED. Taking into account the demeanor of the witnesses in this case as exhibited at trial, assessing the credibility of those witnesses and considering the additional character testimony submitted in the deposition transcripts, the PDJ and Hearing Board reaffirm their factual finding that Elinoff had the requisite specific intent required under §18-8-302(1)(a), 6 C.R.S. (1998). His offering money to the police officers and asking them to release his client from custody under the factual circumstances presented at trial was intended to be an effort to influence the decision of the police officers. Elinoff admitted as much when he acknowledged in his testimony that he engaged in the offer to prove to his client that nothing he could do would prevent the client's incarceration.
2. The Motion to Amend Findings and Order filed pursuant to C.R.C.P. 59(a)(4) requesting that the sanction of disbarment be amended is GRANTED.
The PDJ and Hearing Board reaffirm their conclusion in the Opinion and Order dated September 17, 1999 that misconduct constituting a violation of §18-8-302(1)(a), bribery of a public official, requires a presumptive discipline of disbarment both under the case law in this state and under the ABA Standards for Imposing Lawyer Sanctions ("ABA Standards"). The additional character testimony introduced on behalf of Elinoff and Elinoff's dramatically different attitude apparent during the January 4, 2000 hearing, however, established by clear and convincing evidence that Elinoff is genuinely remorseful for this single episode of misconduct,1 and any recurrence of similar misconduct is very unlikely. See ABA Standards 9.32(l). It is evident that Elinoff now comprehends the gravity of his misconduct. This recognition is a significant mitigating factor which was not proven by the requisite standard of proof during the trial of this matter.
Although the PDJ and one member of the Hearing Board are reluctant to acknowledge that misconduct which has been found to constitute bribery of a public official can result in any discipline other than disbarment, they recognize that the function of the attorney regulation system is first and foremost to protect the public and not to punish the offending attorney. See People v. Ableman, 804 P.2d 859, 863 (Colo. 1991). Elinoff's recognition of his misconduct and the remoteness of any likely similar recurrence, combined with the other factors in mitigation previously found, convince the PDJ and Hearing Board that the public is adequately protected in this case with a disciplinary sanction reduced one level from that previously imposed.
It is therefore ORDERED:
1. The Opinion and Order entered September 17, 1999, is amended only as to the sanction imposed.
2. Kallman S. Elinoff, attorney registration number 18677, is hereby SUSPENDED from the practice of law in the State of Colorado for a period of THREE YEARS, with one year of the suspension period stayed while Elinoff is placed on probation pursuant to C.R.C.P 251.7 for a period of one year on the condition that he not engage in any conduct during the period of suspension or probation which results in the commencement of proceedings under C.R.C.P. 251.12(e).
3. The effective date of the suspension is the date the stay presently pending in this case is lifted.
4. All remaining provisions of the September 17, 1999, Opinion and Order are unchanged and the stay of execution previously entered in this case will continue until either the period of time within which to appeal pursuant to C.R.C.P. 251.26(f) has expired or appellate proceedings have concluded.
- One member of the hearing board wrote in a dissenting opinion to the September 17, 1999, ruling that Elinoff was remorseful for his misconduct, a conclusion not shared at that time by the other hearing board member or the PDJ.
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