Disciplinary Opinions

• Publication year: 2004
• Pages: 117

33 Colo.Law. 117 Colorado Lawyer 2004.

2004, March, Pg. 117. Disciplinary Opinions

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117

Vol. 33, No. 3, Pg. 117

The Colorado Lawyer
March 2004
Vol. 33, No. 3 [Page 117]

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 140 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: 02PDJ039

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

CHARLES C. CORBIN

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE OFFICE OF THE PRESIDING

DISCIPLINARY JUDGE

November 20, 2003

REPORT, DECISION AND IMPOSITION OF SANCTION

Opinion by Presiding Disciplinary Judge Roger L. Keithley and Hearing Board Members Helen R. Stone and Paul Willumstad, both members of the bar.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. BACKGROUND

The People filed a Complaint in this matter on May 17, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The People filed a Proof of Service of Citation and Complaint on June 6, 2002. The Proof of Service showed that the Office of Attorney Regulation Counsel sent Respondent Charles C. Corbin ("Corbin") a certified mailing of the Citation and the Complaint at his registered address in Denver, Colorado. Respondent failed to file an Answer or otherwise respond to the Complaint.

On July 10, 2002, upon the People's motion, the PDJ entered default as to the facts set forth in the Complaint, which were deemed admitted, and as to the claims set forth in the Complaint, which were deemed established. On October 22, 2002, the PDJ vacated the entry of default and the hearing, based on a question of law which remained unresolved by the Complaint: whether an attorney could continue to practice before the United States Patent and Trademark Office although suspended from the practice of law in Colorado.

The People filed an Amended Complaint on January 13, 2003. The Amended Complaint was sent via regular mail to Corbin on the same date. Corbin failed to file an Answer or otherwise respond to the Amended Complaint. On March 5, 2003, upon the People's Motion, the PDJ entered default as to the facts set forth in the Complaint, which were deemed admitted, and as to three claims set forth in the Amended Complaint - Colo. RPC 5.5(a) in Claim I; Colo. RPC 8.4(c) in Claim II; Colo. RPC 3.4(c) in Claim III, which were deemed established. Corbin had adequate notice of the hearing and did not appear in person or through counsel.

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on October 22, 2002, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Helen R. Stone and Paul Willumstad, both members of the bar. A continued hearing was held on June 16, 2003. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado at both hearings. Corbin did not appear either in person or by counsel at the hearing. At the Sanctions Hearing on October 22, 2002, the People's exhibits 1 through 9 were admitted into evidence. Subsequently, on June 16, 2003, the People's exhibits 10 and 12 were admitted into evidence. The Hearing Board considered the People's argument, the facts established by the entry of default, and the exhibits, and made the following findings of fact, which were established by clear and convincing evidence.

II. FINDINGS OF FACT

Corbin has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on January 14, 1987, and is registered upon the official records of the Colorado Supreme Court, registration number 16382. Corbin is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Amended Complaint were deemed admitted by the entry of default, and are therefore established by clear and convincing evidence. See the Amended Complaint attached hereto as exhibit 1. The entry of default as to violations of Colo. RPC 5.5(a), 3.4(c) and 8.4(c) determined that the alleged violations of the Rules of Professional Conduct set forth in the order were established.

III. CONCLUSIONS OF LAW

Corbin was immediately suspended from the practice of law in Colorado on September 18, 1997, and has not applied for reinstatement. Corbin's practice included appearances in twelve trademark matters before the United States Patent and Trademark Office ("Office") despite his suspension in Colorado. Under the relevant federal regulations, and the case law interpreting them, such practice was in violation of the rules governing the practice of law. The relevant federal regulations provide that a trademark owner1 may only be represented by an attorney or other individual authorized to practice in trademark cases; the provision does not include agents (non-lawyers).

37 C.F.R. § 2.11 (2003). Definitions pertaining to practice before the Office specify what is meant by the term "attorney" or "lawyer":

Attorney or lawyer means an individual who is a member in good standing of the bar of any United States court or the highest court of any State. A "non-lawyer" is a person who is not an attorney or lawyer.

37 C.F.R. § 10.1(c). There is no category of non-lawyer agents in trademark matters.

Practitioners before the Office include (1) an attorney or agent in patent cases or (2) an individual authorized under 5 U.S.C. § 500(b)2 or otherwise3 to practice before the Office in trademark or other non-patent cases. 37 C.F.R. § 10.1(r).(emphasis supplied). Thus, attorneys in good standing in a state or other court may represent others before the Office in trademark cases, while non-lawyers (with an exception inapplicable here) may not.4 Id. § 10.14(b).

The framework for practice before the Office in patent cases is differentiated from that in trademark cases. Non-lawyers are specifically permitted to practice in patent cases, but are not permitted to practice in trademark cases. Failure to specifically include non-attorneys in trademark matters while including them in the patent area supports the conclusion that the omission was intentional. Beeghly v. Mack, 220 P.3d 610, 613 (Colo. 2001) (under rule of interpretation expressio unius exclusio alterius, the inclusion of certain items implies the exclusion of others).

According to these regulatory provisions, the respondent could only practice before the Office in trademark cases if he was in good standing of the bar of any United States court or the highest court of any state. Evidence was presented that showed the respondent was not in good standing in any court at the time of the incidents in question.5 Having been suspended by the Colorado Supreme Court, the respondent's continued practice in trademark cases constituted the unauthorized practice of law.

In Marinangeli v. Lehman, 32 F. Supp.2d 1 (D.D.C. 1998), the subject attorney had been suspended in New York and New Jersey for disciplinary reasons related to felony theft. When an investigator for the Office received this information, the investigator informed Marinangeli that he could no longer practice before the Office in trademark cases because of his suspension in New York and New Jersey. Marinangeli was, however, able to continue practicing before the Office as a patent agent, because he did not need bar membership to do so. The Office filed a disciplinary complaint against Marinangeli in 1995 in relation to the felony theft conviction. Thereafter, Marinangeli was suspended for two years for practicing before the Office in patent and trademark cases, even though he had been reinstated from his suspensions in New York and New Jersey. The District Court determined that the subsequent suspension was appropriate. The court noted that it was undisputed that Marinangeli continued to practice trademark law despite being suspended from the New York and New Jersey bars. The court pointed out that attorneys are expected to know and abide by the disciplinary rules, which Marinangeli had not done.

The respondent initiated at least 12 separate applications for trademarks on behalf of others after February 10, 1998 the date of his suspension in Ohio. Each of the 12 trademark applications lists Charles C. Corbin as the attorney of record and lists the respondent's address as 1306 South Parker Road, #375,...