Opinions

• Jurisdiction: Colorado,United States
• Citation: Vol. 32 No. 4 Pg. 127
• Pages: 127
• Publication year: 2003

32 Colo.Law. 127 Colorado Lawyer 2003.

2003, April, Pg. 127. Opinions

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127

Vol. 32, No. 4, Pg. 127

The Colorado Lawyer
April 2003
Vol. 32, No. 4 [Page 127]

From the Courts
Colorado Disciplinary Cases
Opinions

Case Number: 02PDJ058

Complainant

THE PEOPLE OF THE STATE OF COLORADO

Respondent

MARK JOSEPH FISCHER.

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

February 5, 2003

OPINION AND ORDER IMPOSING SANCTIONS

Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members Sherry A. Caloia, a member of the bar, and Larry A. Daveline, a representative of the public.

SANCTION IMPOSED: ATTORNEY DISBARRED

A trial pursuant to C.R.C.P. 251.18(d) was held on November 12, 2002, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Sherry A. Caloia, a member of the bar, and Larry A. Daveline, a representative of the public. Kim E. Ikeler, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Ralph A. Cantafio represented the respondent, Mark J. Fischer ("Fischer") who was also present.

On September 3, 2002, the People moved for Judgment on the Pleadings with regard to claims three four, five, and six alleged in the Complaint. On October 1, 2002, Fischer filed a responsive pleading, confessing the motion as to claims four, five, and six. The PDJ granted the Motion for Judgment on the Pleadings by Order dated October 3, 2002, as to claims four, five, and six.

On September 13, 2002, the People moved for Summary Judgment as to claims one and two of the Complaint. On October 1, 2002, Fischer filed a responsive pleading confessing the motion as to these claims. On October 3, 2002, the PDJ granted the motion, establishing a violation of claims one and two. The People withdrew claim three.

At the trial on November 12, 2002, the following witnesses testified on behalf of Fischer: Dan Ellingson, Bryon Rickman, Michael A. O'Hara, and Nancy Muhme. Judge Richard P. Doucette testified by telephone. Fischer testified on his own behalf. Fischer offered and the PDJ admitted the following exhibits into evidence: exhibits A, B, C,

C-1, D, E, F, G, H, I-1, I-2, J, K, L, M, and N. The Hearing Board considered the People's argument and Fischer's argument in mitigation, the evidence presented by Fischer in mitigation, Fischer's Trial Brief filed November 6, 2002, the Stipulation of Facts set forth in the Trial Management Order filed October 25, 2002, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

On November 6, 2002, the People and Fischer submitted the following Stipulation of Facts in this proceeding. The Stipulated Facts are therefore findings of fact for purposes of this Opinion and Order:

1. Mr. Fischer has taken and subscribed the oath of admission, was admitted to the bar of this court on May 17, 1976, and is registered upon the official records of this court, registration no. 07161. He is subject to the jurisdiction of this court in these disciplinary proceedings. Mr. Fischer's registered business address is P.O. Drawer 490, Hayden, Colorado 81639.

2. This case arises out of a divorce between Gerald Hallman ("Mr. Hallman") and Fran McKinney ("Ms. McKinney"). Melanie Douglas, Esq. represented Mr. Hallman and Mr. Fischer represented Ms. McKinney. The principal asset of the marriage was a piece of real property located near Hayden, Colorado, known as 42855 McGuire Lane (the "property"). The property was unimproved land, except for a mobile home located on it.

3. In September 2001, Mr. Hallman and Ms. McKinney entered into a Separation and Property Settlement Agreement (the "Separation Agreement"). The Separation Agreement, paragraph 3, provided that Ms. McKinney was to sell the land and the mobile home. Out of the closing proceeds, Ms. McKinney agreed to pay a number of debts specifically enumerated in paragraph 3 of the Separation Agreement. These debts included three liens secured by the land, personal debts owed by Ms. McKinney and Mr. Hallman, a $10,000 tax obligation, $36,000 due on the purchase price of the mobile home, with $10,000 to be distributed to Mr. Hallman. The Separation Agreement, paragraph 3, further provided that Ms. McKinney would be responsible for all costs of closing, attorney fees, title fees and other such costs. Only after all these debts were paid, Ms. McKinney was entitled to receive net proceeds, if any.

4. The same paragraph of the Separation Agreement specifically provided that payment of the debts would be made either directly out of the closing proceeds or, if not paid at closing, out of proceeds deposited in Mr. Fischer's trust account.

5. The Separation Agreement was made an Order of court pursuant to a Decree of Dissolution of Marriage entered September 18, 2001 (hereinafter the "Court Order"). The Court Order was signed by the Honorable Richard P. Doucette, the Chief Judge of the Fourteenth Judicial District, of which Routt County is a part. In the Court Order, Judge Doucette specifically Ordered: "[e]ach party shall perform all of the applicable provisions of the Separation Agreement. . . ."

6. Ms. McKinney encountered difficulties in selling the property. Mr. Hallman neglected to obtain certain permits related to the mobile home and failed to register the mobile home with the county. As a result, a certificate of occupancy had never been issued for the mobile home. Also certain taxes had not been paid. These problems in turn made it difficult for a prospective buyer to find financing to purchase the real property.

7. Ultimately, Mr. Fischer located a private investor to finance $70,000 of the purchase price of the real property and Ms. McKinney agreed to take back a secured promissory note for $23,000. The promissory note was due after the initial closing of the sale of the property. Because of this, there were two closings, the first in early November 2001 and the second in December 2001.

8. Neither Mr. Hallman nor his attorney, Ms. Douglas, attended either of the closings. However, in a letter to Mr. Fischer in October 2001, prior to the first closing, Ms. Douglas confirmed her understanding that Mr. Fischer would be disbursing $10,000 to Mr. Hallman out of the proceeds of the sale held in Mr. Fischer's trust account.

9. After the first closing, Mr. Fischer on November 6, 2001, wrote to Ms. Douglas. He stated that the liens on the property had been paid out of the closing proceeds. Mr. Fischer stated that, from the remaining funds, he had paid certain of Ms. McKinney's personal debts and paid $4,000 to himself for fees accrued in the divorce proceedings. Mr. Fischer explained that, because Ms. McKinney had taken the $23,000 promissory note in lieu of full payment of the purchase price, '[t]he other debts that Franni [Ms. McKinney] is obligated to pay under the terms of the Separation Agreement will be dealt with when the $23,000 payment is made." Mr. Fischer neglected to inform Ms. Douglas that, from the proceeds available at the first closing, Mr. Fischer had transferred $28,000 to an escrow account for Ms. McKinney's benefit and had paid her an additional $9,616.10.1 With regard to the $10,000 payment due to Mr. Hallman, Mr. Fischer stated:

I was instructed not to pay Jerry [Mr. Hallman] any money at this time. Franni [Ms. McKinney] had to discount the property by at least $5,000 because of the inadequate and unapproved sewer system. At this time I am uncertain if Franni [Ms. McKinney] will instruct me to pay $5,000 to Jerry [Mr. Hallman] out of the proceeds of the second deed of trust when it is paid.

10. In making his determination to pay certain debts, and not others, to disburse amounts to Ms. McKinney, and to pay himself $4,000 for accrued fees, Mr. Fischer claims to have acted at the direction of his client, Ms. McKinney. Although Mr. Fischer was aware, e.g., of Mr. Hallman's claim to $10,000 of the proceeds, Mr. Fischer did not seek the court's direction concerning disbursement of the proceeds of the first closing; nor did Mr. Fischer place any portion of the proceeds in escrow or retain any portion in his trust account.

11. Mr. Fischer claims that, on November 30, 2001, before the second closing, his paralegal, Nancy Muhme, telephoned Melanie Douglas and left a message that Ms. McKinney had instructed Mr. Fischer not to pay any of the sale proceeds to Mr. Hallman. Ms. Douglas denies receiving this message.

12. Despite having received an additional $23,000 at the second closing in December 2001, Mr. Fischer made no provision for paying Mr. Hallman. Nor did Mr. Fischer retain in his trust account the disputed funds. Mr. Fischer did not seek the direction of the Routt County District Court as to resolution with disputes concerning these monies, but instead at the direction of his client disbursed all of the funds from the second closing, including to himself and Ms. McKinney.

13. In early December 2001, Ms. Douglas on behalf of Mr. Hallman, filed a Motion for Release of Money Pursuant to the Settlement Agreement. Ms. McKinney filed a Response to the same. After some procedural delays, another Routt County District Court Acting Judge, the Honorable James Herbert Garrecht, entered an Order setting the matter for a Hearing on March 11, 2002. Judge Garrecht at that time also Ordered Mr. Fischer to provide an accounting.

14. Mr. Fischer filed his Accounting to Court on February 19 2002. Mr. Fischer attached to the Accounting to Court an exhibit showing that, at the first and second...