Disciplinary Opinions

• Publication year: 2005
• Pages: 115
• Citation: Vol. 34 No. 2 Pg. 115

34 Colo.Law. 115 Colorado Bar Journal 2005.

2005, February, Pg. 115. Disciplinary Opinions

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115

Vol. 34, No. 2, Pg. 115

The Colorado Lawyer
February 2005
Vol. 34, No. 2 [Page 115]

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). These Opinions may be appealed in accordance with C.R.C.P. 251.27

The Colorado Lawyer publishes the summaries and full-text Opinions of the Presiding Disciplinary Judge, William R Lucero, and a two-member hearing board, whose members are drawn from a pool appointed by the Supreme Court. For space purposes, Exhibits, Complaints, and Amended Complaints may not be printed.

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 142 for details. Opinions, including Exhibits, Complaints, and Amended Complaints and summaries, are also available at the Office of Presiding Disciplinary Judge website: http://www.coloradosupremecourt.com/PDJ/pdj.htm; and 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: 03PDJ093

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

ROBERT MELVIN HOHERTZ.

ORIGINAL PROCEEDING IN DISCIPLINE
BEFORE THE PRESIDING DISCIPLINARY JUDGE

October 13, 2004

DECISION RE: SANCTIONS
PURSUANT TO C.R.C.P. 251.15(b)

The Hearing Board, consisting of Melinda M. Harper, CPA, Henry C. Frey, a member of the bar, and Presiding Disciplinary Judge, William R. Lucero, conducted a sanctions hearing in this matter on August 16, 2004. Fredrick J. Kraus appeared on behalf of the People of the State of Colorado ("Complainant") and tendered a proposed stipulation. Respondent, Robert Melvin Hohertz ("Respondent"), pro se, did not appear. After reviewing the stipulation and Respondent's disciplinary history, the Presiding Disciplinary Judge ("PDJ") rejected the stipulation. Because the Hearing Board was concerned that Respondent may have failed to appear at the August 16, 2004 hearing due to believing the stipulation would be accepted, it continued the matter until September 7, 2004 to give Respondent the opportunity to appear. After sending notice to Respondent of the continuance and giving him the opportunity to appear, the Hearing Board reconvened the sanctions hearing on September 7, 2004. Fredrick J. Kraus appeared on behalf of Complainant. Respondent did not appear.

The Hearing Board issues the following opinion.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. PROCEDURAL HISTORY AND BACKGROUND

Complainant charged Robert M. Hohertz, Respondent, with neglecting several client matters entrusted to him, violating a client confidence, failing to return fees and other client property after termination, and deceiving a client by saying he had taken steps to correct an error when he had not done so. Respondent did not answer the Complaint, leading to entry of default. After considering Respondent's conduct, the serious injuries he caused clients, aggravating factors, including prior discipline, and the potential mitigating factor of depression on which no evidence was offered, the Hearing Board concluded Respondent should be disbarred.

On November 20, 2003, Complainant filed a complaint in this matter and sent the Citation and Complaint to Robert Melvin Hohertz, Respondent, via regular and certified mail. On November 21, 2003, Complainant filed Proof of Service. The Proof of Service shows that the Citation and Complaint were sent to Robert Melvin Hohertz, 301 South Weber Street, Colorado Springs, CO 80903. This was the address Respondent provided to the Colorado Supreme Court Office of Attorney Registration as required by C.R.C.P. 227. This certified letter and its contents were returned on November 24, 2003 with the notation "Moved Left No Address." The regular mail copy of the Complaint was not returned.1

Respondent did not file an answer to the Complaint. On February 2, 2004, Complainant filed a motion for default pursuant to C.R.C.P. 251.15(b) and C.R.C.P. 121, Section 1-14. On June 7, 2004, the PDJ granted this motion. By the entry of default under C.R.C.P. 251.15(b), all factual allegations and rule violations set forth in the Complaint are deemed admitted and are therefore established by clear and convincing evidence. People v. Richards, 748 P.2d 341, 347 (Colo. 1987). See also the Complaint, attached as Exhibit 1.

The Complaint enumerates five separate client matters, which are fully detailed. In summary, the Complainant alleges Respondent failed to deliver contracted services, failed to return fees he did not earn, and, in all but one case, failed to surrender fees, papers, and property belonging to clients. Since Respondent failed to appear at the sanctions hearing or otherwise contest Complainant's recommendation, the Hearing Board heard no evidence from Respondent neither on these issues, nor on the issues of the proper sanction and potential mitigation.

The factual background in this case is fully detailed in the Complaint. The Hearing Board adopts and incorporates by reference the Complaint and the facts and rule violations alleged therein.

II. FINDINGS AND CONCLUSIONS

The Hearing Board considered the Complainant's argument, the facts established by the entry of default, and exhibits offered and admitted into evidence. These included the Disciplinary Report of Investigation, a true copy of Respondent's attorney registration, and two letters addressed to the Respondent in Colorado Springs, Colorado. Both letters notified Respondent of the date and place of the sanctions hearing. One of these letters was sent by certified mail to the address Respondent provided to the Attorney Registration Office of the Colorado Supreme Court as required by C.R.C.P. 227.

Based upon the forgoing, the Hearing Board makes the following findings and conclusions by clear and convincing evidence:

(1) Respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on July 13, 1984, and is registered upon the official records of this court, registration no. 13910. He is therefore subject to the jurisdiction of this Court in these disciplinary proceedings.

(2) As set forth in the Complaint in the Heitz, Cantrell, Morris, Becker, and Gancarski matters, the Hearing Board finds by clear and convincing evidence Respondent violated Colo. RPC 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client and shall not neglect an entrusted legal matter). Respondent failed in these matters to act with reasonable diligence and neglected these clients. See People v. Holmes, 951 P.2d 477 (Colo. 1998).

(3) As set forth in the Complaint in the Heitz matter, Claim II, Respondent violated Colo. RPC 1.6(a) (lawyer shall not reveal client confidences) when he disclosed without Heitz's consent information to her friend about his representation. Client information is broadly interpreted. The comment to Colo. RPC 1.6(a) provides: "The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."

(4) As set forth in the Complaint in the Heitz, Cantrell, and Gancarski matters, Claims III, IV, VI, VII, IX, XII, and XIV, the Hearing Board finds Respondent violated Colo. RPC 1.15(b) (failing to promptly deliver client funds and render accounting after termination) and 1.16(d) (failing to take steps to protect and surrender client papers and property). Holmes, id.

(5) As set forth in the Complaint in the Morris matter, Claim X, the Hearing Board finds Respondent violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) when he told his client he had corrected an inaccurate child support order and was waiting to hear from the court, but this was not true.

III. SANCTIONS

When imposing sanctions for violations as found above, ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") 3.0 (1992) directs the Hearing Board to consider the following factors:

(1) Duty violated;

(2) Lawyer's mental state;

(3) Actual or potential injury caused by the lawyer's misconduct;

(4) Existence of aggravating or mitigating factors.

(1) Duty

Respondent violated the duty to professionally represent clients by failing to preserve client property and confidences and to act with diligence and competence.

(2) Mental State

While it is clear Respondent has been diagnosed with clinical depression in the past and the Hearing Board suspects Respondent was probably suffering from depression at the time he represented the clients in this case, there is no evidence to determine what role, if any, depression had on his state of mind. What is undisputed, however, is that Respondent consciously took on these clients and failed to act with diligence in their cases even when they...