Opinions

• Publication year: 2000
• Pages: 147
• Citation: Vol. 29 No. 7 Pg. 147

29 Colo.Law. 147 Colorado Lawyer 2000.

2000, July, Pg. 147. Opinions

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147

Vol. 29, No. 7, Pg. 147

The Colorado Lawyer
July 2000
Vol. 29, No. 7 [Page 147]

From the Courts
Colorado Disciplinary Cases
Opinions

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 146 for details.

Case No. 99PDJ051

The People of the State of Colorado,

Complainant,

v.

Richard B. Bauer,

Respondent.

May 22, 2000

Original Proceeding in Discipline before the

Presiding Disciplinary Judge

OPINION AND ORDER IMPOSING SANCTIONS

Opinion issued by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members Lisa M. Wayne and Thomas C. Henley, both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

This matter was heard on February 2, 2000, before the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, Lisa M. Wayne and Thomas C. Henley, both members of the bar. Nancy L. Cohen, Deputy Regulation Counsel, represented the People of the State of Colorado (the "People"). Respondent did not appear either in person or by counsel.1 The People's Exhibits 1 through 18 were admitted into evidence. The PDJ and Hearing Board heard testimony from the People's witnesses Deborah L. Ortiz, M. Kent Olsen, and David S. Wahl, M.D. The PDJ and Hearing Board considered the exhibits and the Stipulation of Facts submitted by the parties, 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

Richard Burton Bauer ("Bauer") has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on April 7, 1966, and is registered upon the official records of the Court, attorney registration number 01024. Bauer is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).2

Bauer has practiced law in Colorado for thirty-four years primarily in the areas of estate, probate and real estate law. On March 7, 1998, Joyce Bauer, respondent Bauer's wife, passed away. Mrs. Bauer had been receiving $1,063.00 in monthly social security benefits for five years prior to her death. Bauer was aware that his wife received Social Security Administration ("SSA") benefit payments. Prior to her death, Mrs. Bauer had maintained two personal accounts at Colorado National Bank, n/k/a US Bank: a checking account and a money market account. Her social security payments were electronically transferred monthly from the SSA into her checking account. The monthly account summaries for the two accounts were provided to the account holder on the same statement.

During her last hospitalization, Mrs. Bauer directed Bauer to sign her name to checks drawn on her checking account to pay personal expenses and he did so.3 On the date of her death, Mrs. Bauer's checking account was in an overdraft condition. Approximately one week later, on March 16, 1998, Bauer deposited $100 from his law office trust account into Mrs. Bauer's checking account to remedy the overdraft condition. At that time, Bauer knew there was less than $100 in his deceased wife's checking account.

Mrs. Bauer's will designated Bauer as the personal representative, her sole beneficiary and surviving spouse. Bauer filed Mrs. Bauer's original will with the clerk of the Jefferson County Clerk and Recorder's Office but did not conclude her estate matters.

Although Bauer had advised clients in similar situations that the SSA must be notified of the death so as to terminate SSA benefits, Bauer did not notify the SSA of Mrs. Bauer's death. He knew that until such time as the SSA was informed of Mrs. Bauer's death, SSA would continue to send benefit payments. On May 22, 1998, Bauer submitted a small estate affidavit to the bank for the purpose of closing Mrs. Bauer's money market account. At that time, Bauer did not close the checking account into which the SSA payments were being electronically deposited. SSA continued to electronically transfer monthly payments into Mrs. Bauer's checking account.

Notwithstanding Bauer's knowledge that his wife's checking account contained less than $100 following her death, between March 13, 1998 and November 30, 1998, Bauer wrote nine checks on his late wife's checking account made payable to himself in the total amount of $7,175.00.4 Bauer signed his deceased wife's name to each of the nine checks. The funds removed from the account were used to pay personal expenses.

In November 1998, the SSA received notification of Mrs. Bauer's death. An SSA representative contacted Bauer on November 23, 1998 and advised him that the total amount paid by the SSA since Mrs. Bauer's death was $8,504.00 and would have to be repaid. Bauer did not dispute the SSA's entitlement to a refund and remitted that amount to the SSA on the same day.

Bauer testified5 that during the eight month period following his wife's death, he never reviewed her account statements to determine whether there were sufficient funds in the account to cover the checks he wrote, nor was he aware of the source of the funds in the account. In light of Bauer's extensive probate and estate experience, his knowledge regarding the duties and responsibilities of personal representatives and the procedures necessary to close an estate, Bauer's testimony regarding the source and contents of the checking account is not credible.

Prior to her death, the Bauers had sold the marital home and Bauer...