Disciplinary Opinions

• Publication year: 2004
• Pages: 181

33 Colo.Law. 11 Colorado Lawyer 2004.

2004, August, Pg. 181. Disciplinary Opinions

Vol. 33, No. 8, Pg. 11

The Colorado Lawyer
August 2004
Vol. 33, No. 8 [Page 181]

From the Courts
Colorado Disciplinary Cases
Disciplinary 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 201 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: 03PDJ069

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

M. ASHLEY ALBRIGHT

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE

THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

May 11, 2004

REPORT, DECISION AND IMPOSITION OF SANCTION

The Presiding Disciplinary Judge, William R. Lucero, and Hearing Board Members Mary Deganhart and Andrew A. Saliman, both members of the bar, issue the following opinion. Mary Deganhart participated via telephone.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. BACKGROUND

The People filed a Complaint in this matter on September 23, 2003. The Citation and Complaint were sent via certified mail to M. Ashley Albright, Respondent ("Albright" or "Respondent") at her last known business and home addresses. The People filed a Proof of Service of Citation and Complaint on October 9, 2003. The Proof of Service shows that the Citation and the Complaint were sent both to Albright's registered business and home addresses. The envelopes sent to Albright were returned on September 30, 2003 as "attempted, not known" and "unknown left no address." Albright did not file an answer to the complaint or otherwise participate in these proceedings.

On November 20, 2003, the People filed a motion for default. Albright did not respond. On December 19, 2003, the Presiding Disciplinary Judge ("PDJ") entered an order of default on the complaint. All factual allegations set forth in the Complaint were deemed admitted and all rule violations set forth in the Complaint were deemed proven pursuant to C.R.C.P. 251.15(b) and are therefore established by clear and convincing evidence. E.g. People v. Richards, 748 P.2d 341 (Colo. 1987). The complaint is attached as Exhibit A.

A Sanctions Hearing pursuant to C.R.C.P. 251.15 (b) was held on March 22, 2004 before the Hearing Board. Gregory G. Sapakoff, Office of Attorney Regulation Counsel, represented the People of the State of Colorado ("People" or "Complainant"). Albright did not appear either in person or by counsel.

In approximately December 1998, Denise Klimas and Duane K. McDermond ("Klimas and McDermond") entered into a standard real estate contract to purchase Albright's house. The contract included an inspection contingency. The contract further provided for a process by which the parties could attempt to resolve issues raised as a result of the inspection. If problems identified through the inspection were not resolved by agreement of both parties within a specified period of time, the contract would lapse and would no longer be enforceable.

Klimas and McDermond had the property inspected and notified Albright of unsatisfactory conditions in a timely matter. Although Albright made proposals to attempt to rectify the unsatisfactory conditions, the parties could not reach an agreement to resolve the issues identified in the inspection and, therefore, the closing did not take place. The unsatisfactory conditions as identified through the inspection were not resolved within the period of time provided in the contract and the contract lapsed by its own terms.

In executing the contract, Klimas and McDermond paid an earnest money deposit of $4,000.00, which was held in escrow by the listing broker. Pursuant to the express terms of the contract, Klimas and McDermond were entitled to a refund of their earnest money deposit if the closing did not take place because of an uncorrected problem identified during the inspection.

Klimas and McDermond demanded that Albright refund their earnest money deposit after the closing did not take place. Albright refused to refund the earnest money deposit, contending that Klimas and McDermond had breached their contract to purchase Albright's property.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Hearing Board considered the People's argument, the facts established by the entry of default, and the exhibits admitted, and made the following findings of fact and conclusions of law.

Albright has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on January 10, 1985, and is registered upon the official records of the Supreme Court, registration number 14467. Albright is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

The facts established by the entry of default prove the following misconduct:

Colo. RPC 3.1

Bringing or Defending a Proceeding and

Asserting Issues Therein that were Frivolous

Klimas and McDermond filed suit against Albright in small claims court in Denver County, seeking recovery of their earnest money deposit. Albright later caused the case to be removed to county court, at which time Klimas and McDermond retained James Black, Esq., to represent them in the matter. In responding to the allegations in the civil action, Albright asserted counterclaims against Klimas and McDermond, as well as a third-party claim against Vicki Manton ("Manton"), who was Klimas' and McDermond's broker.

The civil action went to trial to the court beginning on April 22, 1999. At the conclusion of the trial, the court ruled in favor of Klimas and McDermond on their claim against Albright and against Albright on all of her counterclaims. In addition, the court awarded to Klimas and McDermond their reasonable attorney fees incurred in pursuing the action, pursuant to a provision in the real estate contract. The court also found in favor of Manton on Albright's third-party claim against Manton. The court further found that Albright's claim against Manton was substantially groundless and frivolous and, therefore, awarded attorney fees in favor of Manton and against Albright, pursuant to the provisions of C.R.S. § 13-17-102. Following further proceedings in the county court, Albright was ordered to pay Manton the sum of approximately $8,300.00.

Albright appealed the trial court's orders to the Denver District Court. On September 28, 1999, the District Court issued an opinion, order and judgment affirming the judgment of the county court. The Court stated: "This appeal is also frivolous; however, sufficient attorney fees have already been awarded against the appellant."

After receiving the district court's ruling, Albright filed a petition for writ of certiorari in the Colorado Supreme Court. The Supreme Court accepted the case for review and, following briefing by the parties, issued an opinion in November 2000, affirming the judgment of the district court upholding the county court's judgment. Pursuant to a motion filed by Klimas and McDermond, the Supreme Court also remanded the case to the trial court to determine if Klimas and McDermond were entitled to additional attorney fees on appeal pursuant to the real estate contract. On remand, additional fees were awarded to Klimas and McDermond as further damages under the contract.

The contractual attorney fees awarded to Klimas and McDermond at the conclusion of the initial trial court proceedings were satisfied from proceeds of a bond Albright was required to post at the time of her appeal to the district court. No money has since been paid toward satisfaction of the judgment for additional fees incurred on appeal.

Albright's defense of the claims asserted by Klimas and McDermond was not supported by any law or facts and, therefore, was frivolous. Albright did not articulate a good faith argument for an extension, modification or reversal of existing law with respect to that claim. Albright also asserted claims against Klimas and McDermond, and against Manton, which were supported neither by law nor fact.

Albright's attempts to appeal the rulings entered against her in the trial court were also frivolous and did not include good faith arguments for an extension, modification or reversal of existing law. Albright's actions in pursuing frivolous claims, defenses, and appeals caused significant harm to Klimas and McDermond and to Manton, including substantial attorney fees incurred in defending the frivolous claims and issues...