May 2008 - Disciplinary Opinions
| Jurisdiction | Colorado,United States |
| Citation | Vol. 37 No. 5 Pg. 123 |
| Pages | 123 |
| Publication year | 2008 |
2008, May, Pg. 123. May 2008 - Disciplinary Opinions
The Colorado Lawyer
May 2008
Vol. 37, No. 5 [Page 123]
From the Courts
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 (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)
Disciplinary 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.
Case No. 07PDJ024
Complainant:
THE PEOPLE OF THE STATE OF COLORADO,
Respondent:
GRAFTON MINOT BIDDLE.
December 17, 2007
REPORT, DECISION, AND ORDER IMPOSING
SANCTIONS PURSUANT TO C.R.C.P. 251.19(c)
On October 18, 2007, the Presiding Disciplinary Judge
("the Court") held a Sanctions Hearing pursuant to
C.R.C.P. 251.18(d). Kim E. Ikeler and Julie M. Schmidt
appeared on behalf of the Office of Attorney Regulation
Counsel ("the People"). Grafton Minot Biddle
("Respondent") did not appear nor did counsel
appear on his behalf.(fn1) The People presented extensive
legal authority and argued for the disbarment of Respondent.
The Court issues the following "Report, Decision, and
Order Imposing Sanctions pursuant to C.R.C.P.
251.19(c)."
I. ISSUE
Disbarment is appropriate when a lawyer in an official
position knowingly misuses the position with the intent
to obtain a significant benefit or advantage for himself or
another. Suspension is appropriate when a lawyer in an
official position knowingly fails to follow proper procedures
or rules and causes injury or potential injury to the
integrity of the legal process. Respondent engaged in an
affair with a deputy district attorney who practiced in his
courtroom. When judicial officials asked about the affair he
denied it. What is the appropriate sanction?
SANCTION IMPOSED:
ATTORNEY SUSPENDED FOR THREE YEARS.
II. PROCEDURAL HISTORY AND FACTUAL
BACKGROUND
The People filed a complaint with the Court on April 20,
2007. Respondent failed to file an answer and the Court
entered a default judgment on July 17, 2007. The People
charged Respondent with the following rule violations: Colo.
RPC 8.4(c) (a lawyer shall not engage in Conduct involving
dishonesty, fraud, deceit or misrepresentation); Colo. RPC
8.4(a) (a lawyer shall not violate or attempt to violate the
rules of professional conduct or knowingly assist or induce
another to do so); and Colo. RPC 8.4(d), (a lawyer shall not
engage in conduct that is prejudicial to the administration
of justice).
Upon the entry of default, the Court deems all facts set
forth in the complaint admitted and all rule violations
established. People v. Richards, 748 P.2d 341, 346
(Colo. 1987). Thus, the Court adopts and incorporates by
reference the factual background and rule violations detailed
in the complaint.(fn2) The Court briefly summarizes the facts
below.
Respondent took and subscribed the oath of admission, was
admitted to the bar of the Colorado Supreme Court on October
9, 1979, and is registered upon the official records of the
Colorado Supreme Court, Attorney Registration No. 09638.
Respondent is therefore subject to the jurisdiction of the
Colorado Supreme Court and the Office of the Presiding
Disciplinary Judge.
The need for sanctions in this case arise from
Respondent's behavior while acting as a magistrate with
the Eighteenth Judicial District and later as a judge for the
Douglas County Court.(fn3) Respondent served approximately
fifteen years as a magistrate for the Eighteenth Judicial
District before his appointment to the Douglas County Court
bench in July 2006.
In the spring of 2006, Respondent began an affair with Laurie
A. Hurst, f/k/a Laurie A. Steinman, a deputy district
attorney for the Eighteenth Judicial District.(fn4) Ms. Hurst
occasionally appeared in the First Arraignment Center
("FAC") where Respondent sat as a magistrate during
this time. She assisted with the dispositions of FAC cases,
which included appearing in front of Respondent for plea
agreements and sentencing recommendations. The affair ceased
for a period of time and then resumed again when Respondent
transitioned to the position of County Court Judge in
July/August 2006.
After Respondent was appointed to the county court bench, he
and Ms. Hurst engaged in various trysts both inside and
outside the confines of the Douglas County Courthouse where
both served as public officials. Eventually, their activities
were reported to the Chief Judge and the Court Administrator
for Douglas County. Respondent knew his relationship with Ms.
Hurst raised serious ethical questions that could jeopardize
both of their licenses. But instead of ending the
relationship or disclosing the same, Respondent continued the
affair for nearly six months. At Respondent's behest, Ms.
Hurst engaged superiors in the district attorney's
office, as well as court personnel, in an effort to dispel
unconfirmed rumors of their affair. She also attempted to
destroy e-mail revealing the nature of their
relationship.(fn5)
While carrying on their affair, Respondent, acting as a
magistrate, failed to recuse himself when Ms. Hurst presided
over matters of course in his court. Following his
appointment to the county court bench, Respondent presided
over two trials Ms. Hurst prosecuted. She won one and lost
one. Respondent failed to recuse himself or advise the party
opposing Ms. Hurst in these two cases of a conflict of
interest. Nevertheless, the People concede that
Respondent's conduct in these cases did not result in any
favorable treatment to Ms. Hurst or anyone else.
When Chief Judge William Blair Sylvester and Judicial
Administrator Laurie McKager initially phoned Respondent and
questioned him about the reports of an affair between
Respondent and Ms. Hurst, Respondent denied any impropriety.
Later, when Judge Sylvester and Ms. McKager informed
Respondent that his wife had delivered a letter to them
reporting Respondent's affair with Ms. Hurst, Respondent
immediately submitted his resignation and moved to Tennessee.
III. 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
Court 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.
In applying factors found in ABA Standards 3.0, the
Court finds Respondent violated duties to the public, the
legal profession, and fellow members of the bench by
breaching the trust bestowed him as a lawyer entrusted with a
public office. The entry of default established that
Respondent knowingly engaged in the conduct alleged
in the complaint; that is, he was aware of his conduct. The
facts also support a finding that Respondent's conduct
caused actual injury and serious potential injury to the
integrity of the legal process.
The Court finds evidence of the following aggravating factors
under ABA Standards 9.22: dishonest or selfish
motive, a pattern of misconduct, multiple offenses, and
substantial experience with the law. See ABA
Standards 9.22(b), (c), (d), and (i). The Court also
finds Respondent's failure to participate in these
proceedings troubling.(fn6) The only mitigating factor
presented by the People in this matter is the
absence of a prior disciplinary record. See
ABA Standards 9.32(a).
The ABA Standards suggest that the presumptive
sanction for the misconduct established in this case ranges
from suspension to disbarment.
Disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another, or with the intent to cause serious or potentially serious injury to a party or to the integrity of the legal process.
ABA Standards 5.21 (emphasis added).
Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedure or rules, and causes injury or potential injury to a party or to the integrity of the legal process.
ABA Standards 5.22.
The People argued that Respondent received a
"significant benefit" in the form of the
gratification he received while presiding over a case in
which his paramour served as a party. However, they also
concede that no evidence exists to show Respondent exercised
his authority as a public official to "tip the scales of
justice" or otherwise provide favorable treatment to Ms
Hurst at any time. See ABA Standards 5.21,
commentary ("The public officials who are
subject to disbarment generally engage in conduct involving
fraud and deceit, and are generally subject to criminal
sanctions as well."); In...
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