Opinions

• Publication year: 2002
• Pages: 109
• Citation: Vol. 31 No. 2 Pg. 109

31 Colo.Law. 109 Colorado Lawyer 2002.

2002, February, Pg. 109. Opinions

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109

Vol. 31, No. 2, Pg. 109

The Colorado Lawyer
February 2002
Vol. 31, No. 2 [Page 109]

From the Courts
Colorado Disciplinary Cases
Opinions

Case Number: 01PDJ049

Complainant

THE PEOPLE OF THE STATE OF COLORADO

Respondent

EVAN S. POWELL.

December 10, 2001

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Sisto J. Mazza and Beth L. Krulewitch, both members of the bar.

SANCTION IMPOSED: ONE YEAR AND ONE DAY SUSPENSION

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on October 11, 2001, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Sisto J. Mazza and Beth L. Krulewitch, both members of the bar. Charles E. Mortimer, Jr., Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Evan Shawn Powell ("Powell"), the respondent, did not appear either in person or by counsel.

The Complaint in this action was filed April 27, 2001. Powell did not file an Answer to the Complaint. On June 26, 2001, the People filed a Motion for Default. Powell did not respond. On July 19, 2001 the PDJ issued an Order granting default, stating that all factual allegations set forth in the Complaint were deemed admitted pursuant to C.R.C.P. 251.15(b), and all violations of The Rules of Professional Conduct ("Colo. RPC") alleged in the Complaint were deemed established.

At the sanctions hearing, exhibit 1 was offered by the People and admitted into evidence. The PDJ and Hearing Board considered the People's argument, the facts established by the entry of default, the exhibit admitted, and made the following findings of fact which were established by clear and convincing evidence, and reached the following conclusions of law.

I. FINDINGS OF FACT

All factual allegations set forth in the Complaint were deemed admitted by the entry of default. The facts set forth therein are therefore established by clear and convincing evidence. See Complaint attached hereto as exhibit 1. The Order entering default also granted default as to the violations of The Rules of Professional Conduct.

II. CONCLUSIONS OF LAW

The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on October 15, 1992, and is registered upon the official records of this court, registration No. 22148. He is subject to the jurisdiction of this court in these disciplinary proceedings.

Claims I and II

On January 12, 2000, Jovoni Mercado ("Mercado") hired Powell to represent her in a dissolution of marriage action, and paid him a retainer of $300. Powell did not file the petition for dissolution of marriage on Mercado's behalf until March 26, 2000, and thereafter took no other action on her case. Consequently, Powell violated Colo. RPC 1.3(a lawyer shall act with reasonable diligence and promptness in representing a client) by neglecting Mercado's legal matter. Powell also violated 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) by failing to communicate with Mercado, by failing to keep Mercado reasonably informed about the status of her legal matter and failing to comply with Mercado's reasonable requests for information, despite Mercado's repeated attempts to communicate with Powell.

Claims III and IV

In February 1999, Norma Eastridge ("Eastridge") hired Powell to assist her in acquiring title to three separate retirement assets that had been awarded to her in a dissolution of marriage action and to represent her interests in connection with marital property in a bankruptcy proceeding filed by her former spouse. When Eastridge contacted Powell on November 12, 1999, Powell had done nothing on Eastridge's legal matters. After her meeting with Powell in November 1999, Eastridge called Powell four to five times a month and received only voice mail. On November 1, 2000, Eastridge hired a new attorney to represent her. Powell violated Colo. RPC 1.3(a lawyer shall act with reasonable diligence and promptness in representing a client) by failing to file an adversary proceeding with regard to the bankruptcy matter filed by Eastridge's former spouse, and by failing to prepare documentation to divide two retirement plans between Eastridge and her former spouse. Powell violated 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) by failing to keep Eastridge reasonably informed about the status of her legal matters and failing to promptly comply with Eastridge's reasonable requests for information.

Claims V, VI, VII and VIII

In 1997, Jim Lottig ("Lottig") retained Powell on a contingency fee basis to sue certain individuals who built Lottig's residence. Powell commenced the civil action and engaged in some investigation and discovery. In May 2000 Lottig settled with one of the defendants, and the civil action against the other defendants continued.1By September 2000, Lottig had not heard from Powell concerning...