Tcl - Disciplinary Opinions - December 2005 - Colorado Disciplinary Cases
| Publication year | 2005 |
| Pages | 183 |
| Citation | Vol. 34 No. 12 Pg. 183 |
2005, December, Pg. 183. TCL - Disciplinary Opinions - December 2005 - Colorado Disciplinary Cases
December 2005
Vol. 34, No. 12 [Page 183]
Colorado Disciplinary Cases
Disciplinary Opinions
The Colorado Supreme Court 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, together with a two-member hearing board, issues orders 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). These Opinions may be appealed in accordance with C.R.C.P. 251.27.
Case Number: 04PDJ092
Complainant:
THE PEOPLE OF THE STATE OF COLORADO,
Respondent:
JEFFREY MENTER
September 16, 2005
REPORT, DECISION, AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.15(b)
On July 27, 2005, William R. Lucero, the Presiding Disciplinary Judge ("the Court"), held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Lisa E. Frankel and James C. Coyle appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Jeffrey Menter ("Respondent") did not appear, nor did counsel appear on his behalf. The Court issues the following Report, Decision, and Order Imposing Sanctions:
SANCTION IMPOSED: ATTORNEY DISBARRED
I. ISSUEDisbarment is generally appropriate when a lawyer knowingly violates a court order or rule, or when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, with the intent to obtain a benefit for the lawyer and causes serious or potentially serious injury. If an attorney knowingly violates three separate court orders, and knowingly continues to practice law while under suspension, is disbarment the appropriate sanction?
II. BACKGROUNDRespondent failed to participate in these proceedings, and the Court granted the People's Motions for Default on January 19, 2005, March 22, 2005, and April 28, 2005. Upon the entry of a default, all facts in the Complaints are deemed admitted and all rule violations in the Complaints are deemed established. People v. Richards, 748 P.2d 341, 346 (Colo. 1987).
The factual background in this case is fully detailed in the admitted Complaints, which are hereby adopted and incorporated by reference.1 Respondent essentially failed to meet his professional responsibilities in six separate matters. Respondent engaged in very serious misconduct including the neglect of a client matter, failure to communicate with a client, failure to protect the interests of a client upon termination of representation, failure to cooperate or participate in the People's investigation, knowing violation of court orders, assertion of frivolous claims, engaging in conduct prejudicial to the administration of justice, failure to keep client funds separate from his own property, making improper withdrawals from a trust account, and knowingly continuing to practice law after he had been suspended.
The facts admitted through the entry of default constitute violations of Colo. RPC 1.3 (neglect of a legal matter); 1.4(a) and 1.4(b) (failure to keep a client reasonably informed about the status of a matter and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); 1.5(b) (failure to communicate the basis or rate of the lawyer's fee to a client in writing); 1.15(a) (failure to keep client funds separate from a lawyer's own property); 1.15(g) (improper withdrawals from a trust account); 1.16 (failure upon termination of representation to take steps to the extent reasonably practicable to protect a client's interests); 3.1 (asserting a frivolous claim or issue); 3.4(c) (knowing failure to comply with a court order); 5.5(a) (practicing law in violation of the regulations of the legal profession); 8.1(b) (knowing failure to reasonably respond to lawful demand for information from disciplinary authority); 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice).
III. SANCTIONSThe ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding. ABA Standard 6.21. Disbarment also is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system. ABA Standard 7.1. Therefore, disbarment is the presumptive sanction for Respondent's misconduct in this case.2 However, in imposing a sanction after a finding of lawyer misconduct, the Court must examine the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating and mitigating evidence pursuant to ABA Standard 3.0
Respondent's failure to participate in these proceedings requires the Court to use the allegations set forth in the Complaints in examining the factors listed above. The Court finds Respondent breached his duties to the public, the legal system, and the legal profession. The entry of default established Respondent's knowing mental state when he violated three separate court orders and continued to practice law while under suspension, with the intent to obtain a benefit for himself. The facts established by the entry of default also support a finding of actual and potential harm to the public. At the hearing, Staci Wetzler testified to the harm her husband's company has suffered as a result of Respondent's continued failure to make any payments in satisfaction of Denver District Court Judge Herbert L. Stern's sanctions order. Jack Wesoky testified to Respondent's continued failure to satisfy any portion of the judgment entered against him by United States District Court, District of Colorado Judge Walker B. Miller's sanctions order.
The People presented evidence of aggravating factors including a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings, substantial experience in the practice of law, indifference to making restitution, and refusal to acknowledge the wrongful nature of his conduct. Respondent's failure to appear at the Sanctions Hearing in this case precluded significant evidence of mitigating factors. However, the People represented that Respondent has a good reputation in the legal community and that he apparently separated from his wife of thirty years in 2004.
Colorado Supreme Court case law applying the ABA Standards holds disbarment is the presumptive sanction for an attorney who continues to practice law while under suspension. People v. Wilson, 832 P.2d 943, 945 (Colo. 1992); People v. Redman, 902 P.2d 839, 840 (Colo. 1995); People v. Ebbert, 925 P.2d 274, 279 (Colo. 1996). Further, an attorney who knowingly disobeys a court order, in conjunction with other rule violations such as neglecting a client matter and commingling funds, is justifiably subject to disbarment. People v. Gonzales, 967 P.2d 156, 157-58 (Colo. 1998).
IV. CONCLUSIONOne of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. The admitted Complaints establish Respondent's repeated failures to comply with court orders, his continued practice of law while under suspension, and numerous other rule violations. This conduct warrants serious discipline. Both the ABA Standards and Colorado Supreme Court case law support disbarment under such circumstances, absent extraordinary factors in mitigation not presented here. Thus, upon consideration of the nature of...
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