Opinions

• Publication year: 2000
• Pages: 109
• Citation: Vol. 29 No. 2 Pg. 109

29 Colo.Law. 109 Colorado Lawyer 2000.

2000, February, Pg. 109. Opinions

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109

Vol. 29, No. 2, Pg. 109

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

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...