Opinions

• Publication year: 2002
• Pages: 167

31 Colo.Law. 77 Colorado Lawyer 2002.

2002, January, Pg. 167. Opinions

---

167

Vol. 31, No. 1, Pg. 77

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 167]

From the Courts
Colorado Disciplinary Cases
Opinions

Case Number: 01PDJ013

Complainant

THE PEOPLE OF THE STATE OF COLORADO

Respondent

PHYLLIS M. AIN.

October 29, 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, Dianne K. Barry and Sherry A. Caloia, both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on August 28, 2001, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Dianne K. Barry and Sherry A. Caloia, both members of the bar. James C. Coyle, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Phyllis M. Ain ("Ain"), the respondent, did not appear either in person or by counsel.

The Complaint in this action was filed February 12, 2001. Ain did not file an Answer to the Complaint. On April 13, 2001 the People filed a Motion for Default. Ain did not respond. On June 6, 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). The default Order also granted default on certain violations of The Rules of Professional Conduct ("Colo. RPC") alleged in the Complaint which were deemed admitted, e.g., People v. Richards, 748 P.2d 341 (Colo. 1987), and denied default on certain other violations, which were subsequently dismissed by Order dated July 5, 2001.1

At the sanctions hearing, the People presented evidence from Dr. Robert E. Baker. Exhibits 1 through 5 were 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 exhibits admitted, assessed the testimony of the witness and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Ain has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on October 27, 1987 and is registered upon the official records of this court, registration number 17112. Ain is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

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 remaining violations of The Rules of Professional Conduct.

II. CONCLUSIONS OF LAW

The Brown Matter

Sue Brown ("Brown") hired Ain to represent her in a potential discrimination/wrongful termination action against Brown's employer. After initially filing a claim on Brown's behalf, Ain failed to specify Brown's claims for relief for several months despite opposing counsel's requests that she do so; she failed to respond to opposing counsel's correspondence; she failed to timely and adequately provide discovery; she missed scheduled meetings with the client, and she failed to comply with the court's order requiring her to formally set forth Brown's claims. Consequently, Ain failed to act with reasonable diligence and promptness and neglected Brown's matter in violation of Colo. RPC 1.3 (an attorney shall not neglect a legal matter entrusted to that attorney).

Ain violated Colo. RPC 3.4(c)(an attorney shall not knowingly disobey an obligation under the rules of a tribunal) by failing to comply with the court's order directing her to file a complaint that formally stated her client's claims against the various defendants. Ain failed to keep Brown informed about the status of the matter in violation of Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information). Ain failed to make reasonable efforts to expedite the client's matter in violation of Colo. RPC 3.2(an attorney shall make reasonable efforts to expedite litigation consistent with the interests of a client). Ain knowingly misrepresented to her client that she was proceeding adequately in the case when in fact she was not. Such conduct is a violation of Colo. RPC 8.4(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). After withdrawing as Brown's attorney, Ain failed to return Brown's papers upon request in violation of Colo. RPC 1.16(d)(upon termination of representation, taking steps to the extent reasonably practicable to protect a client's interests, and refunding any advance payment of any fee not earned).

The Baker Matter

Dr. and Mrs. Baker (the "Bakers") retained Ain in August 1996, to represent them in a dispute over an automobile service contract with an automobile manufacturer. They paid Ain a $500 cost retainer and later paid her an additional $600. Ain provided incompetent advice to the Bakers with regard to the statute of limitations applicable to their claim in violation of Colo. RPC 1.1(an attorney shall provide competent representation to a client). Ain engaged in numerous acts of neglect in violation of Colo. RPC 1.3(neglect of a legal matter): she filed a complaint on behalf of the Bakers after the statute of limitations had expired; she tendered a check for filing costs drawn on her operating account with insufficient funds on deposit to cover the check; she failed to respond to opposing counsel's correspondence when advised of the legal deficiencies in the case; she delayed the case by failing to produce the clients' vehicle for inspection despite being requested to do so numerous times by defense counsel; she failed to respond to discovery requests; she neglected to interview certain essential witnesses for over sixteen months; she failed to draft a trial management order; she failed to obtain an expert opinion, and she failed to prepare the matter for trial.

Ain violated Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) by repeatedly failing to respond to the Bakers' requests for information. Ain failed to communicate the client's rejection of the settlement offer to the defendant manufacturer; she failed to advise the clients of opposing counsel's correspondence regarding deficiencies in the lawsuit and affirmative defenses; she failed to advise the Bakers of the defendants' dispositive motions and Ain's failure to timely respond to the motions; she failed to inform the Bakers of the court's ruling on the motions and that the court dismissed their case, and she failed to inform them of the judgment against herself and her clients jointly and severally in the amount of $11,438.60 for attorney fees and $215.27 in costs.

Ain violated Colo. RPC 1.15(a)(an attorney shall hold clients' property separate from the attorney's own property) by placing the Bakers' $500 cost retainer in her operating account and commingling their funds with her own funds. Ain violated Colo. RPC 8.4(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) by misrepresenting to the court that she could not file a timely response to a summary judgment motion due to the client's failure to provide her with an affidavit when in fact she had never requested that the Bakers prepare an affidavit. Ain's repeated misrepresentations to the Bakers regarding the status of the case constitutes additional violations of Colo. RPC 8.4(c).

Ain violated Colo. RPC 3.2 (an attorney shall make reasonable efforts to expedite litigation consistent with the interests of a client) by failing to produce the Bakers' vehicle for inspection which precipitated delay in the case, and failing to make reasonable efforts to expedite litigation. Ain knowingly disobeyed a court order in violation of Colo. RPC 3.4(c)(an attorney shall not knowingly disobey an obligation under the rules of a tribunal) by failing to appear for her rule 69 deposition when ordered to do so by the court. Ain violated Colo. RPC 1.16(d)(an attorney shall, upon termination of representation, take steps to the extent reasonably practicable to protect a client's interests) by failing to return the Bakers' file when requested.

The Page/Densmore Matter

Nancy Page and her son, Case Densmore, hired Ain in late 1998 to represent Densmore regarding a dissolution of his marriage. Densmore paid Ain a $500 retainer. Ain was aware that Densmore was psychologically vulnerable. Densmore had recently attempted suicide as a result of the failed marriage. Ain incorrectly informed Densmore that the dissolution proceeding would take only forty-five days due to the short duration of the marriage. Such advice was incompetent and a violation of Colo. RPC 1.1 (an attorney shall provide competent representation to a client). Ain violated Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) by repeatedly failing to return Densmore's phone calls and failing to communicate with Densmore from late 1998 to late summer 1999. Indeed, after her initial meeting with Densmore in which she stated that the matter would be resolved within forty-five days, Ain failed to take any further legal action on the case. Such Failure to act with reasonable...