Opinions

• Publication year: 2002
• Pages: 133
• Citation: Vol. 31 No. 5 Pg. 133

31 Colo.Law. 133 Colorado Lawyer 2002.

2002, May, Pg. 133. Opinions

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133

Vol. 31, No. 5, Pg. 133

The Colorado Lawyer
May 2002
Vol. 31, No. 5 [Page 133]

From the Courts
Colorado Disciplinary Cases
Opinions

Case Number: 01PDJ062

Complainant

THE PEOPLE OF THE STATE OF COLORADO

Respondent

EDWARD J. POSSELIUS

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

March 20, 2002

REPORT, DECISION AND IMPOSITION OF SANCTIONS

Opinion issued by the Presiding Disciplinary Judge and hearing board members Barbara Weil Gall and Victoria J Koury,

both members of the bar.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR SIX MONTHS, REINSTATEMENT PROCEEDINGS PURSUANT TO C.R.C.P. 251.29(c) AND (d) REQUIRED.

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on February 28, 2002, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Barbara Weil Gall and Victoria J. Koury, both members of the bar. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Edward J. Posselius, the respondent, did not appear either in person or by counsel.

The Complaint in this action was filed June 8, 2001. Posselius did not file an Answer to the Complaint. On October 22, 2001, the People filed a Motion for Default. Posselius did not respond. On December 3, 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 found that all violations of The Rules of Professional Conduct alleged in the Complaint were deemed established.

At the sanctions hearing, exhibits 1 through 3 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, and made the following findings of fact which were established by clear and convincing evidence.

I. Findings of Fact

Posselius has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on October 21, 1987 and is registered upon the official records of this court, registration number 17010. Posselius 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, and were therefore established by clear and convincing evidence. The order entering default also granted default as to all alleged violations of The Rules of Professional Conduct set forth therein. The facts set forth in the Complaint reveal that Posselius was retained by Mark Voting Systems, Inc. (the "corporation") on June 26, 1999 to handle the defense of a case filed against it by plaintiff Judith Powelson in Boulder County District Court. The plaintiff in that matter was a corporate officer and shareholder of the corporation. The essence of her claim was that she had been misled about her investment in the corporation. Posselius had previously represented the corporation and he was personally aware of many of the facts that Ms. Powelson alleged in her complaint against the corporation.

There were several discussions between Posselius and his client's representative designed to provide Posselius with sufficient information to respond to the complaint and engage in settlement discussions. Posselius requested and received two extensions of time within which to respond to the complaint. Notwithstanding the extensions of time to respond, Posselius did not file a timely answer. Opposing counsel sent formal written notice to Posselius informing him that in the absence of an answer being filed within three days, the plaintiff intended to seek the entry of default. Being aware that the extensions of time had expired and that the opposing party intended to seek the entry of default, Posselius still did not file the answer he had agreed to file on behalf of his client. Consequently, on November 16, 2000, default judgment was entered against Posselius's corporate client and a copy of the Order of Default Judgment was mailed to Posselius.

During the period of time that opposing counsel was seeking to obtain an answer from Posselius, Linda Rosa, the representative of Posselius's corporate client, was trying to contact Posselius to obtain information about the status of the case. She made several telephone attempts to contact him and in late October sent a certified letter to Posselius requesting information. The letter was returned unclaimed to Ms. Rosa on November 19. The same day, Ms. Rosa went to Posselius's home, which also served as his office, to seek information and meet with Posselius.

Posselius told Ms. Rosa there was still time to file a response and that he would contact the president of the corporate client within two days concerning the matter. Posselius neither divulged nor discussed his failure to file an answer with Ms. Rosa nor any other representative of his client at that time or at any later time.

In January 2000, the corporation hired new counsel, and after a hearing on the matter, the District Court vacated the default judgment against the corporation, but awarded attorney fees in favor of the plaintiff and against the respondent and the corporation in the amount of $3,500.00, plus costs of $375.00. The corporation incurred attorney fees in the sum of $2,375.00 in order to get the default judgment set aside.

The respondent has not participated in these proceedings and he has not cooperated with the Office of Attorney Regulation Counsel in the investigation of this case.

II. CONCLUSIONS OF LAW

The entry of default established the following violations of the Colorado Rules of Professional Conduct ("Colo. RPC"): in claim one, Colo. RPC 1.3 (neglect of a legal matter); in claim two, Colo. RPC 1.4(a) and (b)(failure to communicate adequately and failure to explain a matter to the client so that the client can make informed decisions regarding the representation); and in claim three, grounds for discipline have been established pursuant to C.R.C.P. 251.5(d) (failure to respond without good cause to the Regulation Counsel), and 251.10 (failure to respond to the allegations in a request for investigation).

The facts established by the Complaint and the entry of default show that Posselius neglected the matter entrusted to him by his client, that he failed to communicate with his client and failed to keep them accurately informed of the status of the case. His misconduct caused serious injury, which, without his assistance, was mitigated by the actions of others.

Moreover, when confronted with his misconduct by the Office of Attorney Regulation Counsel, Posselius chose to ignore his mandatory obligation to cooperate in the investigation of the matter and failed to participate in these proceedings. See C.R.C.P. 251.5(d). Posselius's misconduct in connection with his client's case and his misconduct in connection with the investigation of this disciplinary matter reflect adversely upon his fitness to practice law.

III. SANCTION/IMPOSITION OF DISCIPLINE

The misconduct engaged in by Posselius amounted to neglect and lack of communication with his client. The ABA...