Office of the Presiding Disciplinary Judge: Disciplinary Opinions - October 2007
| Publication year | 2007 |
| Pages | 159 |
| Citation | Vol. 36 No. 10 Pg. 159 |
2007, October, Pg. 159. Office of the Presiding Disciplinary Judge: Disciplinary Opinions - October 2007
October 2007
Vol. 36, No. 10 [Page 159]
Office of the Presiding Disciplinary Judge 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 (PDJ), 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 PDJ 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 PDJ. 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 PDJ William R. Lucero and the 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 accessible from the CBA website: http://www.cobar.org. Opinions, including exhibits, complaints, amended complaints, and summaries, also are available at the PDJ website: http://www.coloradosupremecourt.com/PDJ/pdj.htm; and on LexisNexis(t) at http://www.lexis.com/research, by clicking on States Legal-U.S./Colorado/Cases/CO Supreme Court Disciplinary Opinions from 1999.
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Case No. 06PDJ085
Complainant:
THE PEOPLE OF THE STATE OF COLORADO,
Respondent:
JAMES F. DONALDSON.
June 29, 2007
OPINION AND ORDER IMPOSING SANCTIONS
On April 30, 2007, a Hearing Board composed of Mark K. Achen, a citizen board member; Boston H. Stanton, Jr., a member of the Bar; and William R. Lucero, the PDJ (the Court), held a Sanctions Hearing pursuant to C.R.C.P. 251.18(d). Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel (the People) and James F. Donaldson (Respondent) appeared pro se. The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b).
I. ISSUE/SUMMARY
Suspension is appropriate when a lawyer knowingly violates a court order or rule and causes potential injury to a client. Respondent filed a petition for reinstatement to the practice of law following his administrative suspension for failing to satisfy CLE requirements. The Colorado Supreme Court clerk advised Respondent that his petition would not be acted on until he paid his attorney registration fees. Is suspension appropriate if Respondent represented a client before paying registration fees?
Although he eventually paid his fees, Respondent knowingly practiced law without a license in violation of the Colorado Supreme Court's administrative order of suspension for failing to comply with CLE requirements. Whereas a public censure might normally accomplish the goals of protecting the public and rehabilitating Respondent, such a sanction is not appropriate in light of Respondent's past disciplinary record. Therefore, the Hearing Board concludes that a three-month suspension is appropriate in this matter.
SANCTION IMPOSED: THREE-MONTH SUSPENSION
II. PROCEDURAL HISTORY
On October 25, 2006, the People filed their complaint in this matter and Respondent filed his answer on November 27, 2006. On February 6, 2007, the People filed "Complainant's Motion for Judgment on the Pleadings." Respondent did not file a responsive pleading. On April 30, 2007, the Court granted the People's motion for judgment on the pleadings and concluded that Respondent violated Colo. RPC 5.5(a) by practicing law after suspension for failing to comply with CLE requirements.
III. FINDINGS OF MATERIAL FACT
The following facts have been established by clear and convincing evidence.(fn1)
Respondent has taken and subscribed the oath of admission and gained admission to the Bar of the Colorado Supreme Court on September 29, 1978. He is registered on the official records of the Colorado Supreme Court, Attorney Registration No. 08951, and is therefore subject to the jurisdiction of the Court. His registered business address is 936 E. 18th Ave., Denver, CO 80218.
Summary of Facts Based on Judgment on the Pleadings
On June 21, 2006, the Colorado Supreme Court suspended Respondent from the practice of law until further order of the court based on his failure to comply with CLE requirements pursuant to Rule 260.6(10) (emphasis added).
On June 28, 2006, Respondent filed a petition for reinstatement.
On July 5, 2006, Marcia Kerr of the Colorado Supreme Court wrote Respondent and informed him that the Court could not act on his petition for reinstatement until he paid his attorney registration fee of $375.
On July 13, 2006, Respondent entered his appearance and filed pleadings in the case of Jacalyn Marie Roberts v. Richard Terrance Roberts, Denver County Court, Case No. 06W0914. In the matter, Respondent filed a Verified Complaint for Civil Protection Order. Judge Robert Crew entered a Temporary Civil Protection Order the same day.
On July 19, 2006, a clerk of the Denver County Court reported Respondent's entry of appearance to the People. The People sent the request for investigation to Respondent on July 20, 2006. On July 20, 2006, Respondent paid his attorney registration fees.
IV. CONCLUSIONS OF LAW - SUBSTANTIVE ALLEGATIONS
Based on the Court's order granting the People's motion for judgment on the pleadings, it has been established that Respondent violated Colo. RPC 5.5, which prohibits a lawyer from practicing law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction. In summary, the Court found that the undisputed facts showed that Respondent practiced law after his administrative suspension for failing to complete his CLE obligations. The Hearing Board must, nevertheless, decide what sanction, if any, is the appropriate sanction for violating Colo. RPC 5.5.
V. SANCTIONS
The 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. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the Hearing Board must first consider 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.
A. Duties Breached
Respondent breached his duty to the Colorado Supreme Court to follow its order of suspension. Instead of fully complying with all conditions precedent to his reinstatement, Respondent practiced law despite the fact that he had been notified in writing that he would have to pay his attorney registration fees before his petition for reinstatement would be acted on. While Respondent ultimately paid his attorney fees, he nevertheless practiced law before he was reinstated.
B. State of Mind
Respondent acted knowingly, that is, he was aware of his conduct and the likely consequence of his actions. He had been previously disciplined for practicing law while on administrative suspension for failing to complete CLE requirements.
C. Injury
Respondent did not cause injury to the client he represented while practicing law without a license. To the contrary, he obtained a crucial restraining order for her. However, Respondent did not preserve the respect due the Colorado Supreme Court and its approved processes in attorney regulation matters, specifically the reinstatement process. Respondent's view was that he would likely be reinstated when he later paid his attorney fees. This no harm, no foul approach misses the point that Respondent is required to follow the rules. In flouting them, he injures the integrity of the process.
D. Aggravating and Mitigating Factors -
On December 16, 1994, Respondent received a Letter of Admonition for representing clients with conflicting interests.
On July 30, 1999, Respondent received a sixty-day suspension, stayed on the condition that he successfully complete a two-year period of probation. Respondent received this sanction, in part, for continuing to practice law after he was suspended for noncompliance with CLE requirements.
On April 25, 2001, Respondent received a ninety-day suspension, all but thirty days stayed on the successful completion of a one-year period of probation with conditions. Respondent received this sanction, in part, for failing to obey a court order requiring him to find an independent attorney to advise a client on whether he had a conflict of interest.
On November 29, 2004, Respondent received a one-year and one-day suspension, stayed on the condition that he complete a three-year period of probation, with conditions. Respondent had neglected a matter, which resulted in the entry of a default judgment against his client. The Hearing Board notes, however, that Respondent had suffered a minor stroke during this time and had been diagnosed with high blood pressure and diabetes. Similar to stipulations and admissions of misconduct submitted to the Court in the past, Respondent agreed that he would not engage in any conduct that would result in the imposition of discipline.
On January 25, 2005, Respondent received a thirty-day suspension, stayed on successful completion of a one-year period of probation...
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