Opinions

• Publication year: 2000
• Pages: 137
• Citation: Vol. 29 No. 11 Pg. 137

29 Colo.Law. 137 Colorado Lawyer 2000.

2000, November, Pg. 137. Opinions

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137

Vol. 29, No. 11, Pg. 137

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 137]

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 136 for details.

Case No. 99PDJ096

The People of the State of Colorado,

Complainant,

v.

Robert A. Carvell,

Respondent.

September 11, 2000

Original Proceeding in Discipline before the

Presiding Disciplinary Judge

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Corinne Martinez-Casias and Henry C. Frey, both members of the bar.

SANCTION IMPOSED: ONE YEAR AND ONE DAY SUSPENSION

A sanctions hearing was held on March 8, 2000, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Corinne Martinez-Casias and Henry C. Frey. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). The respondent Robert A. Carvell ("Carvell") failed to appear.

On September 17, 1999, the People filed the Complaint in this matter. The Citation and Complaint were served upon Carvell on September 20, 1999 by certified mail. Carvell personally signed for receipt of the papers. Carvell failed to answer the allegations in the Complaint and on December 23, 1999, default entered against him. The facts set forth in the Complaint were deemed admitted. Default was granted as to the rule violations set forth in claims one, three and five, which were deemed confessed, and denied as to the rule violations set forth in claims two and four.

The People’s exhibits 1 through 8 were offered and admitted into evidence. The PDJ and Hearing Board heard testimony from the People’s witnesses Patrick Averill and Marjorie Averill, reviewed the facts established by the entry of default and the admitted exhibits, considered argument of the People, and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Robert A. Carvell has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on September 20, 1960, and is registered upon the official records as attorney registration number 03576. Carvell is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On March 6, 1998 Marjorie Averill and her son Patrick Averill ("Averill") met with Carvell concerning Patrick Averill’s dissolution of marriage proceeding. Averill retained Carvell to represent him in that proceeding. Averill paid Carvell a retainer in the amount of $1,000. On April 21, 1998, Carvell entered his appearance in the dissolution of marriage action by filing a response to the petition for dissolution and a motion for temporary orders. Carvell set the temporary orders hearing and later attended that hearing on behalf of his client. A day or two after the hearing, Averill’s mother went to Carvell’s office and picked up copies of the pleadings. Thereafter, from late April, 1998 to August, 1998, Carvell did not communicate with Averill. Despite repeated attempts to contact him, Carvell returned none of the Averills’ phone calls. On August 31, 1998, Marjorie Averill went to Carvell’s office and discovered his office had moved. Carvell had not advised the Averills that he was changing office locations.

On September 16, 1998, Averill was finally successful in contacting Carvell by telephone. Carvell made an appointment with Averill at his new office location on September 17, 1998. Shortly thereafter, Carvell then cancelled the appointment and rescheduled it for September 22, 1998, which he also cancelled. Carvell rescheduled and subsequently cancelled other appointments for September 23 and 24, 1998. After September 24, 1998, Carvell did not schedule any further appointments.

A final orders hearing was held on October 1, 1998 and neither Carvell nor Averill appeared. Carvell never informed Averill of the final orders hearing date. At the final orders hearing, the court based its ruling and judgment regarding the parties’ financial information solely on Averill’s estranged wife’s information. Although Averill had provided the necessary financial information to Carvell, Carvell had not filed the financial information with the court.

At the October 1, 1998 hearing, the court awarded Averill’s wife sole custody of the couple’s two minor children, spousal maintenance, child support, the couple’s one operating vehicle, the marital home and furnishings, and one-half of Averill’s pension. Additionally, Averill was ordered to pay the first and second mortgages on the marital home. Carvell failed to notify Averill of the final orders in the dissolution of marriage action. Averill has had no communication with or from Carvell since the series of appointment cancellations in September of 1998 prior to the final orders hearing. Averill learned that the final orders had entered on October 1, 1998 when a copy of the court order was attached to his door approximately three weeks later.

Averill obtained successor counsel to protect his interests. On October 30, 1998 successor counsel entered his appearance on behalf of Averill and attempted to have the court vacate the final orders based upon Carvell’s neglect. The court denied the motion. Averill spent an additional $2,000 in an unsuccessful attempt to set aside the order of the court.

On December 15, 1998, the Office of Attorney Regulation Counsel sent Carvell a request for investigation regarding the charges in the Complaint. He never responded. Carvell has failed to participate in these proceedings.

II. CONCLUSIONS OF LAW

The Complaint alleged that Carvell’s conduct violated five separate provisions of The Colorado Rules of Professional Conduct ("Colo. RPC"): claim one alleged a violation of Colo. RPC 1.3 (a lawyer shall not neglect a legal matter entrusted to that lawyer); claim two alleged a violation of Colo. RPC 1.5(a) (a lawyer’s fee shall be reasonable); claim three alleged a violation of Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information), and claim four alleged a violation of Colo. RPC 1.16(d) (upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests). Claim five alleged that Carvell’s failure to respond without good cause shown to a request for investigation by Attorney Regulation Counsel constituted grounds for discipline pursuant to C.R.C.P. 251.5(d)1 and its predecessor C.R.C.P. 241.6(7). The Order of Default entered on December 23, 1999, granted default on the factual allegations giving rise to each of the five claims, and found violations of Colo. RPC 1.3(claim one), Colo. RPC 1.4(a) (claim three) and C.R.C.P. 251.5(d)(claim five). The Order denied default on the alleged rule violations of Colo. RPC 1.5(a) (claim two) and Colo. RPC 1.16(d) (claim four).

Carvell entered into a formal attorney-client relationship with Averill, accepted $1,000 from Averill for Carvell’s legal services, agreed to provide specific professional services, provided some but not all of the agreed upon services, failed to communicate with his client regarding the dissolution of marriage action, failed to appear at the final orders hearing and failed to advise the client of the hearing date. Final orders were entered in Averill’s dissolution case without his knowledge and without Carvell being present to represent his interests.

When a lawyer enters into an attorney-client relationship with another, an obligation to perform the agreed-upon professional services arises. People v. Hotle, No. 99PDJ038 slip op. at 3, (Colo. PDJ November 16, 1999) 29 Colo. Law 107, 108 (January 2000). Carvell initially performed work for his client, but thereafter neglected his client’s matter at a critical stage of the proceedings. He failed to provide his client’s financial affidavit to the court, he failed to advise his client of the final orders hearing date, and he failed to appear at the final orders hearing in order to protect his client’s interests. His neglect of Averill’s matter constitutes a violation of Colo. RPC 1.3. His failure to keep appointments...