Opinions

• Publication year: 2003
• Pages: 155
• Citation: Vol. 32 No. 10 Pg. 155

32 Colo.Law. 155 Colorado Lawyer 2003.

2003, October, Pg. 155. Opinions

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155

Vol. 32, No. 10, Pg. 155

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 155]

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 194 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: 02PDJ097

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

KJAERE ANDREWS, f/k/a KAREN MCLAUGHLIN

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

August 6, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board members, Jerry D. Otero and Marilyn L. Robertson, both members of the bar.

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR SIX MONTHS

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on April 15, 2003 in this default proceeding before the Presiding Disciplinary Judge ("PDJ") and two hearing board members Jerry D. Otero and Marilyn L. Robertson, both members of the bar. Terry Bernuth, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Kjaere Andrews ("Andrews"), the respondent, did not appear in person or by counsel.

The Complaint in this action was filed November 7, 2002. The People filed a proof of attempted service with this court on November 20, 2002, establishing that the Citation and Complaint were sent via regular and certified mail to Andrews' last known address on November 7, 2002, and were returned with no forwarding address available. Andrews did not file an Answer to the Complaint. Service was therefore proper pursuant to C.R.C.P. 251.32(b). On February 3, 2003, upon the People's motion, the PDJ entered an Order granting default. As a result of the Order granting default, all factual allegations set forth in the Complaint were deemed admitted and all rule violations set forth in the Complaint were deemed established pursuant to C.R.C.P. 251.15(b).

This is a reciprocal discipline matter from the State of Vermont brought pursuant to C.R.C.P. 251.221. C.R.C.P. 251.21(d) requires that in a reciprocal discipline matter from another jurisdiction, if the rules of professional conduct governing the attorney in Colorado would warrant a substantially different discipline than that warranted in the sister jurisdiction, the People must provide notice of the intent to seek harsher discipline in the Complaint. Claim III of the Complaint provided notice to Andrews that the People would seek identical discipline to the discipline imposed in Vermont.

At the sanctions hearing, the People's exhibits 1 through 9 were offered and admitted into evidence. Karen L. Bershenyi testified on behalf of the People. The Hearing Board considered the People's argument, the facts established by the entry of default, the exhibits admitted, the testimony of the witness, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Andrews has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court of Colorado on October 28, 1985 and is registered upon the official records of this court, registration No. 14895. Andrews is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).1

All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and are therefore established by clear and convincing evidence. See Complaint attached hereto as exhibit "A." The violations set forth in the Complaint were also deemed established by the entry of default.

On September 28, 2001, the State of Vermont Professional Responsibility Board entered a judgment suspending Andrews from the practice of law for a period of six months and one day. In Vermont, a suspension for a period of time greater than six months requires a formal reinstatement proceeding. On October 31, 2001, the order became final and the Supreme Court of Vermont suspended Andrews for a period of six months and one day effective on that date. A copy of the Order of Suspension is attached hereto as Exhibit "B."

This reciprocal discipline matter arises from Andrews' representation of Corylinn Jenne ("Jenne") commencing in June 2000, regarding Jenne's divorce. Andrews and Jenne agreed to a rate of $50 per hour which was not reduced to writing. Jenne paid Andrews $1,000 as a retainer. Andrews did not maintain a trust account and deposited the retainer into her personal or business account. Within a few weeks, Jenne notified Andrews that she wanted to represent herself pro se and requested an accounting and refund of the balance of the retainer.

Andrews did not have funds available to return the unused portion of the retainer to the client: she had spent the retainer on her own personal or business expenses. In July 2000, Andrews sent a letter and final bill to Jenne, informing her that the bill reflected an hourly rate of $100, instead of the agreed-upon $50 hourly rate. Andrews did not discuss the increased rate with her client. After applying the increased rate, Andrews indicated in the letter that she owed Jenne $150.75 which she later paid to Jenne. Jenne accepted the $150.75 as partial payment of $575.35, the retainer balance at the $50 hourly rate. Despite her understanding that Jenne did not accept the partial payment as a resolution of her request for a refund, Andrews did not pay the balance due to Jenne, and used the funds for her own purposes.

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. The Supreme Court of Vermont held that Andrews violated the following Vermont Rules of Professional Conduct; 1.5(b)(the basis or rate of fee shall be communicated in writing), 1.15(a)(an attorney shall hold client's property separate from attorney's own property), 1.15(a)(every attorney in private practice who receives funds of a client shall maintain a trust accounting system), and 1.16(d)(upon termination a lawyer shall refund any advance payment of fee not yet earned). The Complaint in the within matter alleged that Andrews' conduct constituted grounds for discipline pursuant to C.R.C.P. 251.21 in claim I. Claim II asserts that Andrews' failure to report her suspension in Vermont to the Office of Attorney Regulation Counsel constitutes grounds for discipline pursuant to C.R.C.P. 251.5(d) and C.R.C.P. 251.21(b) in claim II. Claim III provides notice to Andrews that the People did not intend to seek imposition of a sanction harsher than that imposed by Vermont. See C.R.C.P. 251.21(d)(stating that "[i]f the Regulation Counsel intends either to claim that substantially different discipline is warranted or to present additional evidence, notice of that intent shall be given in the Complaint"); People v. Calder, 897 P.2d 831, 832 (Colo. 1995)(analyzed under C.R.C.P. 241.17(d), the predecessor to C.R.C.P. 251.21(d) and stating that in a reciprocal discipline case, the Supreme Court imposes the same discipline as that imposed in the foreign jurisdiction unless certain exceptions exist.)2

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline is, for purposes of attorney disciplinary proceedings in Colorado, sufficient to conclusively establish such conduct. See C.R.C.P. 251.21(a). The Order of the Supreme Court of Vermont constitutes such a final order.

Pursuant to C.R.C.P. 251.21(d)(4), the misconduct proved by the Order of the Supreme Court of Vermont warrants a substantially different form of discipline in Colorado. See e.g., People v. Varallo, 913 P.2d 1, 11 (Colo. 1996)(stating that "[k]nowing misappropriation [for which the lawyer is almost invariably disbarred] 'consists simply of a lawyer taking a client's money entrusted to him, knowing that it is the client's money and knowing that the client has not authorized the taking,' citing In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986)). Because no notice was provided by the People, the Hearing Board cannot impose a greater sanction than that imposed by the State of Vermont. See also People v. Apker, 67 P.3d 23, 25 (Colo. O.P.D.J. 2003)(hearing board finding that disbarment was the...