Opinions

• Publication year: 2003
• Pages: 131

32 Colo.Law. 131 Colorado Lawyer 2003.

2003, June, Pg. 131. Opinions

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131

131

The Colorado Lawyer
June 2003
Vol. 32, No. 6 [Page 131]

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. 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).
The Colorado Lawyer publishes 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. For space purposes, accompanying Exhibits may not be printed.
These Opinions may be appealed in accordance with C.R.C.P 251.27.
The full-text Opinions, along with their summaries, are available on the CBA home page at http://www.cobar.org/tcl/index.htm. See page 156 for details.Opinions, including Exhibits, and summaries are also available on LexisNexisTM at http://www.lexis.com/research by clicking on States LegalU.S./Colorado/Cases and Court Rules/By Court/Colorado Supreme Court Disciplinary Opinions.

Case Number: 02PDJ088

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

DAVID BURTON APKER

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

April 7, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Edwin S. Kahn and David A. Helmer both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on March 6, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley and two hearing board members, David A. Helmer and Edwin S. Kahn, both members of the bar. Terry Bernuth, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Respondent David Burton Apker ("Apker") did not appear either in person or by counsel.

The People filed a Complaint in this matter on Oct. 18, 2002. The Citation and Complaint were sent via regular and certified mail to Apker on the same date to Apker's two registered addresses. The People filed a Proof of Service on Oct. 23, 2002, which indicates that Apker signed for receipt of the Citation and Complaint at his registered business address. Apker failed to file an Answer or otherwise respond to the Complaint.

On Dec. 12, 2002, the People moved for default on the claims set forth in the Complaint. On Jan. 8, 2003, the PDJ granted the motion for default as to the facts set forth in the Complaint, which were deemed admitted, and as to the violation of the claims set forth in the Complaint, which were deemed established.

This is a reciprocal discipline matter from the State of Arizona brought pursuant to C.R.C.P. 251.21. The Complaint in this action gave notice to Apker that the Office of Attorney Regulation Counsel would seek substantially different discipline before the Colorado Supreme Court than that imposed in the State of Arizona. See C.R.C.P. 251.21(d).

At the sanctions hearing, exhibits 1 through 3 were offered by the People and admitted into evidence. The Hearing Board considered the People's argument, the facts and violations 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

David Burton Apker has taken and subscribed to the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 17, 1977 and is registered upon the official records of this court, attorney registration number 08105. Apker is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On October 18, 2001, the Arizona Supreme Court entered an Order suspending Apker from the practice of law in that state for a period of six months and one day. Under Arizona law, a suspension for a period of time greater than six months requires a formal reinstatement proceeding. A copy of the Order of Suspension is attached hereto as Exhibit "A."

II. CONCLUSIONS OF LAW AND
IMPOSITION OF SANCTION

The Complaint in this action seeks imposition of discipline under the reciprocal discipline provisions of C.R.C.P. 251.21. Pursuant to subsection (d) of that Rule, the Office of Attorney Regulation Counsel seeks substantially different discipline than that imposed by Arizona. C.R.C.P. 251.21 (d) provides that the same discipline imposed in the foreign jurisdiction shall be imposed in Colorado unless certain exceptions exist. See People v. Calder, 897 P.2d 831, 832 (1995).

C.R.C.P. 251.21(d) provides in part:

At the conclusion of proceedings brought under this Rule, the Hearing Board shall issue a decision imposing the same discipline as was imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:

(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;

(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;

(3) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or

(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline is, for purposes of attorney disciplinary proceedings in Colorado, conclusively established. See C.R.C.P. 251.21(a). The suspension order issued by the Arizona Supreme Court is such a final order.

In order to determine if any of the four factors set forth in C.R.C.P. 251.21(d) are satisfied, the Hearing Board must consider the evidence before it. In this default proceeding, the evidence before the Hearing Board are the findings made by the Arizona Supreme Court.

The Arizona Supreme Court found that Apker failed to notify and deliver trust funds that his client had paid to him. Apker's conduct violated the Arizona Rules of Professional Conduct, ER 1.15(b)(receipt of third party funds), 8.4(b)(committing a criminal act that reflects adversely on the lawyer), ER 8.4(d)(engaging in conduct that is prejudicial to the administration of justice) and SCR43(d) (trust account/ guideline authority).

The Arizona Supreme Court also found that Apker, in connection with his failure to deliver funds, committed theft, under A.R.S. § 13-1802.A.2. Pursuant to that statute, a person commits theft:

[I]f, without lawful authority, the person knowingly "[c]onverts for an unauthorized term or use services of property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use."

Theft by an attorney, as theft is defined under Arizona law, constitutes knowing conversion of client property under Colorado law. The knowing conversion of client property almost invariably results in disbarment under Colorado law. See People v. Rishel, 50 P.3d 938 (Colo. O.P.D.J. 2002) (holding that the theft of funds warrants the sanction of disbarment, regardless of whether the funds belonged to a third party or to a client). See also People v. Varallo, 9913 P.2d 1 (Colo. 1996) (knowing conversion of the property of a client without authority from the client results in disbarment); People v. Coyne, 913 P.2d 12 (Colo. 1996)(holding that attorney's personal use of funds held in trust for clients warranted disbarment).

Under the analysis set forth in People v. Lujan, 890 P.2d 109 (Colo. 1995), the mitigation necessary to reduce the presumptive sanction of disbarment for knowing conversion to some lesser sanction has to be "extraordinary and tragic." Since Apker neither responded to the charges against him nor appeared at this proceeding, no mitigation has been presented.

Accordingly, the Hearing Board concludes that the misconduct found by the Arizona Supreme Court warrants a substantially different form of discipline under Colorado law than that imposed under the law of Arizona. See C.R.C.P. 251.21(d)(4).

III. ORDER

It is therefore ORDERED:

1. DAVID BURTON APKER, attorney registration number 08105 is disbarred from the practice of law in the State of Colorado, effective thirty-one days from the date of this Order, and his name shall be stricken from the roll of attorneys licensed to practice law in this state;

2. Apker is ordered to pay the costs of these proceedings. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT A
BEFORE THE DISCIPLINARY COMMISSION
OF THE SUPREME COURT OF ARIZONA

______________

IN THE MATTER OF A

SUSPENDED MEMBER OF THE Comm. No. 99-2298

STATE BAR OF ARIZONA,

DAVID B. APKER,

Attorney No. 004741 Disciplinary Commission Report

Respondent.

This matter was...