Opinions

• Publication year: 2000
• Pages: 101
• Citation: Vol. 29 No. 3 Pg. 101

29 Colo.Law. 101 Colorado Lawyer 2000.

2000, March, Pg. 101. Opinions

---

101

Vol. 29, No. 3, Pg. 101

The Colorado Lawyer
March 2000
Vol. 29, No. 3 [Page 101]

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 100 for details.

Case No. 99AD002

In the Matter of Doug Vincent,

Attorney-Respondent.

January 26, 2000

Proceeding in Discipline

EN BANC

ATTORNEY SUSPENDED

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.

I.

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...