Search



Not a CBA Member? Join Now!
Find A Lawyer Directory
STRATUM
Find A Lawyer Directory
Know Your Judge

TCL > February 2000 Issue > Opinions

The Colorado Lawyer
February 2000
Vol. 29, No. 2 [Page  109]

© 2000 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

From the Courts
Colorado Disciplinary Cases

Opinions

Case No. 99AD003

In the Matter of Rodolfo Reveles,

Attorney-Respondent.

December 17, 1999

EN BANC

PUBLIC CENSURE

John S. Gleason, Attorney Regulation Counsel, James C. Coyle, Assistant Regulation Counsel, Denver, Colorado, Attorneys for Complainant

R.D. Jorgensen, Pueblo, Colorado, Attorney for Attorney-Respondent

BY THE COMMISSION

Commissioners Lebsack and Fulton do not participate.

Respondent was charged with two counts of violating the following Rules of Professional Conduct: Rule 8.4(a) (violation of a rule of professional conduct); Rule 3.5(c) (conduct intended to disrupt a tribunal); Rule 8.4(d) (conduct prejudicial to the administration of justice); and Rule 8.4(h) (other conduct that adversely reflects on fitness to practice law). These charges arose out of the following facts, which were found by the hearing board and adopted by a Hearing Panel of the grievance committee. These findings are binding before this Commission unless it is determined that based upon the record, the findings are clearly erroneous. See C.R.C.P. 251.26(a). We do not believe these findings to be clearly erroneous:

FACTS

1. The Respondent has taken and subscribed to the oath of admission, was admitted to the board of this court on October 29, 1991, and is registered upon the official records of this court, registration no. 20958. He is subject to the jurisdiction of this court and its grievance committee in these proceedings. The Respondent's registered business address is 134 West Main Street, Suite 35, Trinidad, Colorado 81082.

Count I

2. The Respondent is a deputy public defender in southern Colorado. On May 6, 1997, the Respondent represented a juvenile in a trial to the court in Huerfano County before the Honorable Claude W. Appel.

3. At the conclusion of the trial, as Judge Appel was reading from the statute and issuing a guilty verdict, the Respondent openly argued with the judge in the presence of the juvenile client, members of the client's family, court officers and personnel. The Respondent came out from behind counsel table and paced in front of the jury box, while talking in a loud, indignant, argumentative voice and waiving his hands above his head.

4. The Respondent repeatedly interrupted Judge Appel as the judge attempted to make his ruling, despite the judge's requests that the Respondent allow him to finish. The Respondent appeared to be "spoiling for a fight" and intent on "egging the judge on." At one point, the following exchange took place:

THE COURT: I'm not going to allow you to take over the courtroom, Mr. Reveles. Sit down or we're going to have a contempt action.

MR. REVELES: Okay, Judge. I think the first issue then is under People versus — Rodriguez versus District Court I'm entitled to make a record. The third issue is the Court interrupted me.

THE COURT: I interrupted you, Mr. Reveles? Take five minutes and chill out.

MR. REVELES: I need to make a record based on what the Court just said.

THE COURT: The Court just found your client guilty. Like courts do every day. And they don't end up in an argument with an attorney.

5. Judge Appel then attempted to schedule a sentencing date for Mr. Reveles' client. Despite the judge's earlier warnings, the Respondent continued to interrupt the judge, claiming a case entitled Rodriguez vs. District Court allowed him to make a contemporaneous record. The Respondent refused to cooperate in the scheduling of a sentencing date [and] the judge indicated he was inclined to impose a sentence at that time, except he lacked a pre-sentence report; and the court scheduled the sentencing for May 16, 1997.

6. Between the time of the trial and the date of sentencing, the Respondent did not speak to Judge Appel about his conduct. On May 16, 1997, at sentencing, Judge Appel summarized the Respondent's conduct at trial and warned that he would find the Respondent in contempt if there were a recurrence of the Respondent's conduct. The judge also indicated that he had reviewed the case cited by the Respondent regarding objections. Both Judge Appel and the Respondent acknowledged that the correct case name was People v. Jones, 780 P.2d 526 (Colo. 1989). Judge Appel found that the Jones case was not relevant to the issue of the Respondent's conduct at the bench trial. The Respondent alleged that the court had failed to provide him with an opportunity to establish a record for appeal and he again asserted his position that the Jones case was applicable.

Count II

7. On April 7, 1997, the Respondent appeared on behalf of his client, Juan Mares, at a preliminary hearing before the Honorable Jesse Manzanares in Las Animas County District Court. During direct and cross-examination of a police officer, the Respondent openly argued with the judge in the presence of the Respondent's client, court officers and personnel. The Respondent's tone of voice was loud and excited, and he gestured with his arms above his head.

8. The Respondent repeatedly failed to comply with the court's directives to continue with his cross-examination of the witness. The judge indicated that if the Respondent did not "move on," he would ask the sheriff to escort the Respondent downstairs to "think about how long it might take before agreeing to following the court's ruling and the court's order."

9. In response, the Respondent asked: "(t)he court is not permitting further questioning in spite of Rodriguez v. District Court, is that correct?" The court directed the Respondent to make his record and proceed with relevant questions, and at that time the Respondent complied with this request.

PROCEEDINGS BELOW

Based upon these facts, the complainant argued that the Respondent should be publicly censured and that he be required to attend ethics school or a National Institute of Trial Advocacy Training Program. Relying on ABA Standards for Imposing Lawyers Sanctions (1991 and Supp. 1992) ("ABA Standards"), the hearing board recommended that the Respondent be suspended because he acted "knowing, not negligently, when he became loud, disrespectful, argumentative and disruptive with Judge Appel and Judge Manzanares." Additionally, the hearing board found aggravating factors which included a pattern of misconduct, refusal to acknowledge the wrongful nature of his conduct, and the fact that Respondent focused only on himself and not how his conduct might adversely affect his client. Further, the board was "concerned by the Respondent's testimony that he has, on three other occasions, been threatened with contempt by different judges. On one occasion, the court issued a contempt order which it later rescinded." As a mitigating factor, the board noted the absence of prior disciplinary record.

The board recommended that the Respondent be suspended for a period of 60 days, with all but 30 days of the suspension stayed on the condition that the Respondent successfully complete a one-year period of probation, and that as a condition of probation, the Respondent be required to undergo a mental health examination using a mental health professional approved by the Office of Disciplinary Counsel. The board further required that Respondent follow any treatment plan suggested by the mental health professional, and submit periodic reports from the professional to the Office of Disciplinary Counsel concerning Respondent's progress and treatment. As further conditions, the board recommended that the Respondent participate in either ethics school or a trial advocacy program sponsored by the National Institute of Trial Advocacy, as selected by the Respondent; that he commit no further violation of the Colorado Rules of Professional Conduct; and that he be assessed the costs of the proceedings.

The Hearing Panel (Panel A) accepted the findings of fact as well as the recommended sanction with the modification that the mental health examination would be optional and not a condition of probation.

DISCUSSION

As stated above, the findings of the hearing board are not clearly erroneous and are hereby adopted.

That is not true with respect to the discipline imposed. The Appellate Discipline Commission is required to affirm the form of discipline imposed by the Panel unless it determines that such discipline bears no relation to the misconduct, is manifestly excessive, or is otherwise unreasonable. C.R.C.P. 251.26(a). For the reasons discussed below, we concluded that the discipline is manifestly excessive and unreasonable.

First, we are aware of no authority, and none has been cited, that would support this level of discipline for these actions. Indeed, counsel for Complainant conceded at oral argument that he was unaware of any such authority.

The four cases relied on by the hearing board not only failed to support the discipline imposed here, but appear to mandate a public censure as the maximum discipline for these offenses. In People v. Dalton, 840 P.2d 351 (Colo. 1992), an attorney made allegations against, and displayed disrespect for, a county court judge, prosecutor and court reporter. A public censure was imposed. In People v. Cohan, 913 P.2d 523 (Colo. 1996), the attorney became embroiled in a series of verbal interactions with a presiding trial judge in the state of Washington, and the attorney was suspended for three years in that court. The Colorado Supreme Court, however, declined to impose similar discipline, and instead imposed a public censure. In People v. Tatum, 814 P.2d 388 (Colo. 1991), the attorney threatened to invoke disciplinary proceedings against a judge in order to obtain a favorable ruling in a motion to continue. The court imposed a public censure. In People v. Bobbit, 859 P.2d 902 (Colo. 1993), the attorney was suspended for 30 days for neglecting six separate professional matters over a three-year period. The court upheld the discipline as being appropriate under ABA Standards 4.42(b) which applies when "A lawyer engages in a pattern of neglect and causes injury or potential injury to a client." In that context, the court also noted that as a public official (public defender) the attorney was held to a high standard of accountability. 859 P.2d at 904-5.

Here, there is no allegation or proof of injury to Respondent's clients as a result of his conduct. Moreover, the fact Respondent is a public official neither excuses nor exacerbates his conduct. Although a high standard of accountability was imposed on the public defender in Bobbit, that case dealt with prolonged and repeated neglect of client matters, all of which were prejudicial to the client. None of that is present in this case.

Second, the fact Respondent has no prior disciplinary record militates strongly in favor of a lower form of discipline for his actions in this case. Given the nature of the conduct, it appears to us that a strongly worded public censure would be adequate to vindicate the dignity of the judicial system and deter any further similar conduct by the Respondent.

Finally, we disagree with the requirement that Respondent be ordered to take a trial advocacy or ethics course. There is nothing in the record to suggest that Respondent is an ineffective trial lawyer in need of a trial advocacy course; nor is there anything to suggest that, aside from the contemptuous disrespect he showed in this case, he has any deeper problem that would require ethics training. Simply, Respondent's conduct violated the rules of common sense, decency and courtesy, all of which are generally learned in the primary grades and not taught in trial advocacy or ethics courses.

CONCLUSION

For the reasons set forth herein, we affirm the finding below that the Respondent committed the violations with which he was charged. Because we have concluded that a suspension is manifestly excessive and unreasonable, we decline to follow the recommendation of the Hearing Panel and instead order the imposition of a public censure.1 C.R.C.P. 251.26(m). Accordingly, Rodolfo Reveles is hereby publicly censured. He is also ordered to pay the costs of this proceeding in the amount of $1,136.70 within thirty (30) days after this opinion is announced, to the Attorney Regulation Committee, 600 17th Street, Suite 200 S, Denver, Colorado 80202-5432.

_______

1. Ordinarily, the Appellate Discipline Commission would hear appeals taken directly from decisions made by the Presiding Disciplinary Judge or a Hearing Board. This matter, however, had been pending with the supreme court upon recommendation of a hearing panel of the Grievance Committee. When the rules regarding attorney discipline were repealed and reenacted, the supreme court remanded this matter to the Commission for appellate review.


Case No. 99PDJ073

Martin J. Berkley,

Petitioner,

v.

The People of the State of Colorado,

Respondent.

December 7, 1999

Original Proceeding in Discipline Before the
Presiding Disciplinary Judge

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members Melissa M. Esquibel and J.D. Snodgrass.

OPINION AND ORDER OF REINSTATEMENT

This reinstatement proceeding was held on October 21, 1999, before the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, J.D. Snodgrass and Melissa M. Esquibel, both members of the bar, to determine whether Martin J. Berkley ("Berkley") is qualified to be reinstated to the practice of law. George S. Meyer represented respondent, and James C. Coyle, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). The following witnesses testified on behalf of Berkley: Allen D. Butler, Russell Brown, and Martin J. Berkley. Berkley submitted Exhibits A through I, and Exhibits K through M, which were admitted into evidence.

The PDJ and Hearing Board considered the testimony and exhibits admitted, assessed the credibility of the witnesses, and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Martin J. Berkley was suspended from the practice of law for a period of one year and one day effective May 1, 1996, in People v. Berkley, 914 P.2d 338 (Colo. 1996). Berkley's 1996 suspension arose from his neglect of client matters and the resulting prejudice to the administration of justice involving several clients. Although his mandatory suspension from the practice of law expired in May 1997, Berkley did not seek reinstatement until May 20, 1999, when he filed a Petition for Reinstatement. On June 2, 1999, the People filed a response objecting to respondent's reinstatement.1

The Supreme Court's 1996 suspension order required Berkley to pay restitution as a condition of reinstatement to one former client in the amount of $400 plus statutory interest, and to pay costs of that disciplinary proceeding in the amount of $104.75. Although Berkley has paid the restitution, he did not pay the assessed costs within thirty days of the order.

Before his suspension in 1996, Berkley became disenchanted with the law and decided to pursue other endeavors.2 Disciplinary Counsel sent correspondence to him advising that he must pay the costs assessment within thirty days of the order and provide notice of his suspension to every jurisdiction in which he had been admitted to practice in accordance with C.R.C.P. 241.21. Berkley, having then decided not to reenter the field of law, did not read the letter, did not timely pay the costs assessment, and did not file the required affidavit with the Supreme Court, nor did he provide notice of his suspension to every jurisdiction in which he had been admitted to practice.

Less than a year after he decided to pursue a non-law career path, Berkley realized that his decision was not well-considered. In late 1996 or early 1997, Berkley obtained a position as a paralegal with Allen Butler, an Arizona lawyer specializing in bankruptcy. By April 1997, Berkley rediscovered his enthusiasm for the law and filed a motion with the Supreme Court seeking additional time within which to file the affidavit required by C.R.C.P. 241.21. The proposed affidavit was attached to the motion. The People objected to allowing additional time and by order dated May 6, 1997, the Supreme Court denied Berkley's request for additional time.

While working as a paralegal for Butler, Berkley was exposed to a well-organized law office which incorporated into its routine law office management several checks and balances on docketing, client communications and scheduling. Under Butler's supervision, Berkley actively participated in the scheduling and docketing of trial deadlines and dates, and the timely communication with clients. Although Berkley did not have direct responsibility for all docketing in Butler's organization, he became capable of maintaining the docketing system and has maintained it. Through the training provided to him under Butler's guidance, Berkley now understands the importance of proper calendaring and the maintenance of reliable and effective communication with clients. Berkley has adopted the checks and balances in routine law office management utilized by Butler to assist in the prevention of client neglect.

Berkley has attended numerous bankruptcy and bankruptcy- related seminars conducted under the auspices of the bankruptcy trustee in Arizona and has improved his professional competence. However, he has not completed continuing legal education in areas outside of the practice of bankruptcy law.

Berkley is involved with his family and has participated in his children's school activities, parent-teacher conferences and fund-raising events. He is active in his church and is well-settled in his community. Berkley intends, if reinstated to the bar of this state, to sit for the Arizona bar examination, and if successful, practice law in the state of Arizona with Butler. Berkley does not presently intend to resume an active law practice in the state of Colorado. Rather, Berkley seeks reinstatement to the bar of Colorado because he may not sit for the Arizona bar until he is reinstated in Colorado.

Berkley recognizes the deficiencies that existed in his previous practice, specifically the lack of organization that ultimately led to neglect of client matters, and has learned and intends to adopt procedures designed and proven to assist in the prevention of client neglect. Berkley experienced considerable difficulty in initially accepting the fact of his misconduct, however, he expressed genuine remorse for the injury his neglect inflicted upon his former clients.

In his work as a paralegal with Butler, Berkley has been meticulously careful to work within the limits of his paralegal responsibilities. His work as a paralegal has enhanced his proficiency in bankruptcy law. Berkley's experience with the United States Bankruptcy Court in Arizona confirms that he is trustworthy, has an admirable work ethic, consistently meets deadlines, is well-prepared, regularly communicates with clients, and engages in extensive follow-up with clients. Berkley demonstrates the qualities of perseverance, honesty, integrity and truthfulness that the legal profession holds in esteem and requires of its members.

II. CONCLUSIONS OF LAW

Martin J. Berkley is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Consideration of the issue of rehabilitation requires the PDJ and Hearing Board to consider numerous factors bearing on the petitioner's state of mind and professional ability, including character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, present business pursuits, personal and community service, and the petitioner's recognition of the seriousness of his previous misconduct. People v Klein, 756 P. 2d 1013, 1016 (Colo. 1988).

Under the factors set forth in Klein, 756 P.2d at 1016, the PDJ and Hearing Board found that Berkley established by clear and convincing evidence that he is rehabilitated, possesses the requisite ability and professional competence to practice law, and has conducted himself in a manner which comports with the requirements of the legal profession during the period of his suspension. Berkley was candid and sincere during the reinstatement proceedings.

The evidence presented established that Berkley not only fully comprehends the nature and extent of his prior misconduct, but has actively pursued proven methods to minimize the opportunity for such misconduct to recur. Moreover, he has implemented those methods in his daily routine. Berkley's involvement with his community, his family, and his interim paralegal responsibilities all reflect that he has conducted himself in a manner consistent with the requirements of the legal profession during the time of his suspension. Although Berkley established by the requisite proof that he possesses the professional competence to practice law as required by Klein and C.R.C.P. 251.29, the PDJ and Hearing Board members were concerned with the limited focus on bankruptcy law and procedure in continuing legal education courses he took during the period of suspension. Notwithstanding the limited scope of his continuing legal education courses, Berkley has satisfied the requirements of Klein and is fit to practice law in the State of Colorado.

Satisfaction of the Klein requirements, however, does not conclude our analysis. The Petition for Reinstatement and the evidence presented at the hearing disclosed that Berkley ultimately paid the costs assessment, attempted to submit the affidavit required by C.R.C.P. 241.21 and eventually notified other jurisdictions in which he had been admitted to practice. He did not, however, do so in a timely fashion.

C.R.C.P. 251.29(b) provides in part:

An attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law (emphasis added).

C.R.C.P. 251.29(c)(4) requires that the Petition for Reinstatement set forth:

Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys (emphasis added).

The question presented is whether Berkley's lack of timeliness in complying with the Supreme Court's disciplinary order and the rule requiring submission of the affidavit within ten (10) days of the effective date of the order of suspension rises to the level of non-compliance envisioned by C.R.C.P. 251.29 to preclude his reinstatement to the bar. C.R.C.P. 251 et seq. does not provide definitions for the terms "complied" or "compliance."

"Compliance" involves the act of conforming to formal or official requirements or norms, Webster's Third New International Dictionary 465 (3d ed. 1961); see also Black's Law Dictionary 258 (5th ed. 1979), and without further modification, connotes an element of degree. Woodsmall v. Regional Transportation District, 800 P.2d 63, 67 (Colo. 1990). Compliance, for example, may be absolute or strict, on the one hand, or somewhat less than absolute but nonetheless substantial, on the other. Id. In determining whether a particular . . . requirement has been satisfied, [the Supreme Court] has imposed a degree of compliance consistent with the objective sought to be achieved by the requirement under consideration. Id. (citations omitted).

Since the Woodsmall decision, the scope of this definition has been clarified in several subsequent decisions. See Brock v. Nyland, 955 P.2d 1037, 1041(Colo. 1998); Regional Transportation District v. Lopez, 916 P.2d 1187, 1190 (Colo. 1996), East Lakewood Sanitation District v. District Court, 842 P.2d 233, 236 (Colo. 1992). These decisions suggest that when jurisdiction is at issue, the definition of compliance which must be used is one of absolute compliance. When jurisdiction is not at issue, such as in the Woodsmall case, where the content of a statutorily required notice was challenged, the "degree of compliance required must be consistent with the objective to be achieved by the requirement under consideration." 800 P.2d at 67. Compliance with C.R.C.P. 241.21 was not a jurisdictional provision for attorney reinstatement proceedings. Jurisdiction over attorney reinstatement proceedings is conferred by C.R.C.P. 251.1 and C.R.C.P. 251.29. The Petition for Reinstatement at issue here was filed in accordance with C.R.C.P. 251.29 and jurisdiction is not in question. Consequently, whether Berkley is in "compliance" with the Supreme Court's order of suspension and the provisions of C.R.C.P. 241.21 may be tested under a substantial compliance standard.3

An examination of C.R.C.P. 241.21 reveals that its primary objective was the protection of the public, the protection of the disciplined attorney's clients, and the protection of opposing parties in pending litigation. This objective was met by the disciplined attorney giving written notice of his suspension to clients and opposing parties in pending litigation. Further protection was provided by the requirement that the disciplined attorney submit an affidavit to the Supreme Court that he had, in fact, provided the required notices and informed all jurisdictions in which he had been admitted to practice.

In this case, although Berkley did not practice law in either jurisdiction subsequent to his suspension, he failed to notify either the United States District Court for the District of Colorado or the United States District Court for the District of Arizona of his suspension. The evidence established that Berkley was not aware that these courts were separate jurisdictions for purposes of C.R.C.P. 241.21(d)(2) notification. Prior to filing his Petition for Reinstatement, Berkley notified both jurisdictions of his 1996 suspension.

At the time of Berkley's suspension in 1996, he had no clients and he was not counsel to any party involved in litigation. Indeed, Berkley had stopped practicing law long before the Supreme Court entered its 1996 suspension order. Although Berkley should have filed an affidavit notifying the Supreme Court that he had no clients and was not involved in any pending litigation, under the facts of this case, no enhanced protection to the public, existing clients or opposing parties in pending litigation would have been provided by Berkley's timely compliance with the provisions of C.R.C.P. 241.21.

Berkley also failed to pay the costs assessment in accordance with the 1996 order of suspension. The unrebutted evidence introduced at the hearing established that Berkley did not have the funds available to him at the time the costs assessment became due. Prior to the submission of the Petition for Reinstatement in this proceeding, however, Berkley had paid the costs assessment in full.

Although his failure to timely give notice as required by the rule of procedure cannot and should not be overlooked and, in another case, under differing facts, might justify denial of the attorney's Petition for Reinstatement, Berkley's compliance with the provisions of C.R.C.P. 241.21, although late, is sufficient to satisfy the requirements of C.R.C.P. 251.29 allowing reinstatement.

The PDJ and Hearing Board are required to protect the public interest in allowing Berkley to resume the practice of law. In accordance with that responsibility, the PDJ and Hearing Board impose the following express conditions upon Berkley's resumption of the practice of law:

1. Berkley is required to complete thirty (30) hours of Continuing Legal Education within twelve (12) months of the date of this Order in areas of the law unrelated to bankruptcy. The thirty hours of Continuing Legal Education requirement is in addition to the requirements set forth in C.R.C.P. 260.2.

2. If Berkley returns to the practice of law within the State of Colorado in the next two (2) years:

a. Berkley is required to perform such practice within a legal environment where he can benefit from the free exchange of ideas and constructive feedback from other practicing attorneys. This environment must include adequate support staff to ensure Berkley's adherence to the well-organized practice of law, and;

b. Berkley must retain a practice monitor. Such monitor may work with him in the legal environment described above. Such monitor must have at least five (5) years' experience practicing law in Colorado. Within thirty (30) days of the placement of a practice monitor, Berkley shall inform the Office of Attorney Regulation Counsel of the identity, address and phone number of the practice monitor. The practice monitor shall submit a written report to the Office of Attorney Regulation Counsel on a quarterly basis disclosing the nature and frequency of the monitoring, Berkley's compliance with recommendations of the monitor and any areas of difficulty which may be experienced. Monitoring shall continue for a period of twelve months.

ORDER OF REINSTATEMENT

It is therefore ORDERED:

Upon the conditions set forth herein, MARTIN J. BERKLEY, attorney registration number 05065, is REINSTATED TO THE PRACTICE OF LAW pursuant to C.R.C.P. 251.29(b). The reinstatement shall be effective twenty-one days from the date of this Order.

_______

1. At trial, the People withdrew their objection to reinstatement and requested that conditions be imposed upon Berkley's reinstatement.

2. In August 1994, Berkley permanently relocated to Arizona and thereafter ceased practicing law.

3. At the time Berkley sought additional time to file his C.R.C.P. 241.21 affidavit, the People opposed his request on the ground that "the respondent provide[d] no justification for why he did not file this affidavit in a timely fashion. This issue is relevant to the reinstatement proceeding." The denial of Berkley's request in light of the People's argument suggests the reinstatement hearing board should consider the lack of timeliness as a factor to be considered and not a permanent bar to reinstatement.


Case No. 99PDJ036

The People of the State of Colorado,

Complainant,

v.

Gary C. Johnson,

Respondent.

December 17, 1999

Original Proceeding in Discipline Before

The Presiding Disciplinary Judge

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by Presiding Disciplinary Judge Roger L. Keithley, Mark Achen, a representative of the public, and Dorothy A. Radakovich, Esq.

SANCTION IMPOSED: ONE YEAR AND ONE DAY SUSPENSION

A sanctions hearing was held on July 27, 1999 pursuant to C.R.C.P. 251.15(b). Debora D. Jones represented the People of the State of Colorado (the "People"). Gary C. Johnson ("Johnson") appeared pro se.

On March 10, 1999, the People filed a Complaint in this matter. The Complaint and Citation were served upon respondent by certified mail on March 11, 1999. Although Johnson signed for receipt of the Complaint and Citation, he failed to file a responsive pleading. Default judgment entered against respondent by Order of this court on May 19, 1999. The factual allegations in the Complaint were deemed admitted. See In the Matter of Michael F. Scott¸979 P.2d 572, 573 (Colo. 1999).

The People presented testimony from Karen Bershenyi, an investigator from the Office of Attorney Regulation Counsel. Johnson testified on his own behalf. The People's Exhibits 2 and 3 were admitted into evidence. The Presiding Disciplinary Judge ("PDJ") and Hearing Board considered argument of the parties, the facts established by the entry of default, the testimony of the witnesses, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence:

I. Findings of Fact

Johnson has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 19, 1982, and is registered upon the official records of the Court as attorney registration number 12340. Johnson is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On January 22, 1990, a decree of dissolution was entered dissolving the marriage of Johnson and his wife. As part of the dissolution proceeding, Johnson was ordered to pay child support for his three children. In November 1990, Johnson was laid off from his employment, and he began making payments in an amount less than that ordered by the court. In August 1991, Johnson sought modification of the child support order. Although the court granted Johnson's motion to reduce the child support payment, Johnson made no payments, even in the reduced amount, until August 1992. In February 1993, pursuant to a contempt citation originally sought by his ex-wife, the court found that Johnson had failed to pay child support despite his ability to do so. The court found respondent in willful contempt of court and sentenced him to ninety days in jail. Upon Johnson's motion to reconsider, the court later modified the sentence but did not change its findings of willful contempt. Johnson served five days of the jail sentence.

On November 9, 1994, pursuant to a stipulation entered into between Johnson and his ex-wife, a judgment in the amount of $20,909.30 was entered against Johnson for his child support arrearages through August 31, 1994. The parties agreed to waive interest upon the condition that Johnson remain current on his monthly arrearage payments. Although Johnson remained current on monthly child support payments until November 1996, he failed to make any payment toward the judgment for child support arrearages. In November 1996, Johnson failed to pay either the current child support payment or the arrearage payment.

Between November 1996 and April 1997, Johnson made no payments for child support or upon the outstanding arrearages. On April 18, 1997, the district attorney's office filed an advance notice of activation of income assignment for child support and payment towards the child support arrearage judgment. Johnson filed an objection to the income assignment and the matter was set for a hearing. However, Johnson failed to appear at the hearing and the court found that he had abandoned his objection to the income assignment.

In this disciplinary proceeding, Johnson did not respond to the Complaint, and, although ordered to do so, did not appear for the At Issue Conference scheduled for May 19, 1999. By Order dated May 19, 1999, the PDJ directed Johnson to respond in writing and state his reasons for failing to appear at the conference. Johnson failed to do so.1 As of February 28, 1999, Johnson was in arrears on child support in the amount of $36,126.50.

II. CONCLUSIONS OF LAW

Johnson failed to comply with child support orders entered in conjunction with the decree of dissolution of marriage and the subsequent modification of the amount of monthly child support to be paid. A district court of this state determined that Johnson had failed to comply with the court's orders of child support despite having the ability to do so, and found Johnson in willful contempt.2 By willfully failing to comply with the court-ordered child support obligations, Johnson violated The Colorado Rules of Professional Conduct ("Colo. RPC") 3.4(c) (an attorney shall not knowingly disobey an obligation under the rules of a tribunal).

Johnson and his ex-wife entered into a stipulation regarding pre-1995 arrearages which resulted in the district court entering a judgment against Johnson in the amount of $20,909.30. The stipulation between the parties provided that so long as Johnson remained current on the monthly arrearage payments called for in the agreement, interest would be waived. Johnson made no payments under the agreement or in partial satisfaction of the judgment. As a direct consequence of Johnson's failure to abide by his agreement and pay the arrearages pursuant to the agreement, as well as his continuing failure to pay current child support obligations, the district attorney filed an advance notice of activation of income assignment and scheduled a hearing. Notwithstanding his formal objection to the income assignment, Johnson failed to appear at the hearing. By so doing, Johnson directly delayed and altered the course of court proceedings concerning the income assignment and thereby prejudiced the administration of justice. See People v. Hotle, No. 99PDJ038 (Colo. P.D.J. 1999). Consequently, Johnson violated Colo. RPC 8.4(d)(an attorney shall not engage in conduct prejudicial to the administration of justice).3

Having violated Colo. RPC 3.4(c) and Colo. RPC 8.4(d) by his misconduct, Johnson has also violated Colo. RPC 8.4(a)(an attorney shall not violate the rules of professional conduct).

III. SANCTIONS / IMPOSITION OF DISCIPLINE

The PDJ and Hearing Board found that Johnson's conduct constituted a violation of duties owed to the legal system, the profession and to the public. The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 6.22 provides:

Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.

The Commentary to ABA Standard 6.22 further provides:

In many cases, lawyers are suspended when they knowingly violate court orders. Such knowing violations can occur when a lawyer fails to comply with a court order that applies directly to him . . . as in the case of lawyers who do not comply with a divorce decree ordering spousal maintenance or child support.

Johnson's misconduct meets the criteria under ABA Standard 6.22. A sanction of one year and one day is the presumptive sanction imposed in Colorado for willful failure to comply with court-ordered child support obligations. See In re the Matter of Green, 982 P.2d 838, 839 (Colo. 1999)(suspending attorney for one year and one day with conditions for failure to pay court-ordered child and spousal support); People v. Hanks, 967 P.2d 144, 145 (Colo. 1998) (suspending attorney for one year and one day for willfully failing to comply with court-ordered child support obligations).

The PDJ and Hearing Board considered certain factors in aggravation pursuant to ABA Standards 9.22. The People offered evidence in aggravation that Johnson has had prior discipline in the nature of two letters of admonition for unrelated misconduct, see. id. at 9.22(a); Johnson had a selfish motive, see id. at 9.22(b); and that Johnson engaged in bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, see id. at 9.22(e). The PDJ and Hearing Board considered the following factors in mitigation: other sanctions or penalties have been imposed against Johnson by his serving a jail sentence for being held in contempt of court, see id. at 9.32(k); and Johnson has expressed remorse for his conduct, see id. at 9.32(l). Although Johnson expressed remorse for failing to pay the required child support and violating both the court's orders and his agreement to pay arrearages, no evidence was submitted suggesting that Johnson had made any effort to reduce the arrearages owed since the filing of this action or the entry of the order of immediate suspension pursuant to C.R.C.P. 251.8.5. Accordingly, his expression of remorse, as opposed to conduct reflecting remorse, is not a significant factor in mitigation.

Accordingly, the PDJ and Hearing Board herein suspend Johnson for one year and one day, effective thirty-one days from the date of this Order. However, if at any time prior to the expiration of the year and a day, Johnson demonstrates to the PDJ that he has paid his past due child support obligations, or negotiated a payment plan approved by the appropriate court, he may apply for reinstatement.4 Prior to reinstatement from this disciplinary sanction and as a condition thereof, Johnson must establish that he has either satisfied his past due child support obligations, or has negotiated a payment plan approved by the appropriate court and is current with his obligations under the plan. If Johnson is reinstated prior to the expiration of the year and a day suspension period, he shall be placed on probation for a period of three years, subject to the following conditions: (1) Johnson shall certify to the Office of Attorney Regulation Counsel each month that he is in full compliance with his court-ordered child support obligations, and (2) Johnson shall not violate any of The Rules of Professional Conduct. If Johnson is not reinstated before the expiration of the year and a day suspension, then he must petition for reinstatement pursuant to C.R.C.P. 251.29.

IV. ORDER

It is therefore ORDERED:

1. Gary C. Johnson, registration number 12340, is SUSPENDED from the practice of law effective thirty-one days from the date of this Order, for a period of one year and one day, upon the conditions set forth herein;

2. Johnson is ORDERED to pay the costs of these proceedings within sixty (60) days of the date of this Order.

3. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

_______

1. In a separate proceeding, People v. Johnson, 99PDJ029, Johnson was immediately suspended by Order of the PDJ pursuant to C.R.C.P. 251.8.5 on March 26, 1999, for being in arrears on child support payments.

2. The record in this case does not establish whether the contempt entered by the district court was punitive or remedial in nature. See C.R.C.P. 107(4) and C.R.C.P. 107(5). However, under the circumstances of this case where proof of misconduct must be established by clear and convincing evidence, willfulness was established by the entry of default and the type of contempt entered by the district court makes no difference. See In re the Marriage of Nussbeck, 974 P.2d 493 (Colo. 1999).

3. The People also charged Johnson with a violation of Colo. RPC 8.4(h) based on the same conduct relied upon to establish the violation of Colo. RPC 8.4(d). A violation of Colo. RPC 8.4(h) cannot arise from the same misconduct upon which a violation of Colo. RPC 8.4(d) is premised. Consequently, the charged violation of Colo. RPC 8.4(h) is dismissed. People v. Righter, No. GC98A120, (Colo. P.D.J. 1999), 28 Colo. Law. 140-41 (Sept. 1999).

4. As in Green, 982 P.2d at 839, n.2, the PDJ and Hearing Board have concluded that the filing of a motion to modify the child support obligation is not sufficient to qualify Johnson for reinstatement from this disciplinary sanction. The discipline imposed in this disciplinary case arises not only from Johnson's failure to comply with the district court's child support order, it also arises from his misconduct which caused prejudice to the administration of justice. See C.R.C.P. 251.8.5. Moreover, submission of a motion to modify, although recognized as a basis for reinstatement from the C.R.C.P. 251.8.5 suspension, neither rectifies the consequences of Johnson's misconduct for which this disciplinary sanction is, in part, imposed, nor constitutes timely mitigation of his wrong doing.

© 2000 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2000.


Back