Disciplinary Opinions
| Publication year | 2009 |
| Pages | 139 |
2009, October, Pg. 139. Disciplinary Opinions
October 2009
Vol. 38, No. 10 [Page 139]
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. Disciplinary Opinions are printed as submitted by the Office of the PDJ and are not edited by the staff of The Colorado Lawyer.
Case No. 08PDJ063 (consolidated with 08PDJ094)
Complainant:
THE PEOPLE OF THE STATE OF COLORADO,
Respondent:
TIMOTHY JOHN MARTIN.
On April 28, 2009, the Presiding Disciplinary Judge ("the Court") held a Sanctions Hearing pursuant to C.R.C.P. 251.15(b). Margaret B. Funk appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Timothy John Martin ("Respondent") failed to appear. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."
Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. Respondent engaged in a pattern of misconduct, which included the knowing conversion of client property. Respondent failed to answer the complaints or otherwise participate in these proceedings. What is the appropriate sanction for his misconduct?
The People filed complaints in this consolidated matter on July 30, 2008 (08PDJ063) and October 8, 2008 (08PDJ094). Respondent failed to answer either complaint and the Court granted a motion for default in the consolidated matter on January 9, 2009. Upon the entry of default, the Court deems all facts set forth in the complaints admitted and all rule violations established by clear and convincing evidence.(fn1)
The Court hereby adopts and incorporates by reference the factual background of this case fully detailed in the admitted complaints.(fn2) Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on September 29, 1978. He is registered upon the official records, Attorney Registration No. 09083, and is therefore subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1.(fn3)
Respondent represented clients in patent and trademark cases both in the United States and overseas. Generally, these types of cases required Respondent to arrange for counsel in other countries to ensure the protection of patents overseas. Respondent's work on these cases includes paying maintenance fees and meeting application deadlines for his institutional clients. Respondent's clients provided him funds to pay these fees and complete applications for submission on their behalf.
In the summer of 2007, Respondent's partner, Michael Henson, left the firm and opened his own practice. Due to a lack of communication with Respondent, a number of clients decided to transfer their matters to Mr. Henson's firm. Correspondence was sent to Respondent indicating his clients' wishes to transfer their case to other counsel, but Respondent failed to turn over or make available these clients' files.
Since approximately October 2007, Respondent's presence at his office address has been infrequent and sporadic. Respondent's office telephone and facsimile lines have been shut off, as well as his home and cellular phones.
Respondent is part owner of the office building in which his law office is located. Between January 2008 and May 2008, Dr. Richard Wihera, co-owner of the office building, received Respondent's office mail because there was no one in Respondent's locked office to receive the mail. Dr. Wihera also has an office in the same building. During that time, Dr. Wihera placed Respondent's mail in Respondent's office. As of June 2008, Dr. Wihera estimated there were nine banker's boxes of unopened mail in Respondent's office. Much of this mail came from the U.S. Patent and Trademark Office ("USPTO").
The building that houses Respondent's office has been sold. Dr. Wihera believed that Respondent's mail and client files were in jeopardy of being discarded by the new owner. Accordingly, the District Court of Jefferson County appointed Inventory Counsel. As part of those proceedings, the People requested that the District Court order Dr. Wihera to freeze Respondent's share of the proceeds generated from the sale of their building.
Philip Wyers is the president and sole owner of Wyers Products Group, Inc. Respondent had been counsel for Mr. Wyers' company for the last ten years. His responsibilities included filing patent and trademark applications, contact with possible patent infringers, and the handling of patent infringement cases.
On July 26, 2007, Mr. Wyers remitted a payment of $5,000.00 to Respondent to retain an expert witness to aid him in a patent infringement case. On November 9, 2007, Mr. Wyers sent Respondent an additional $40,000.00 to pay the remainder of the expert's bill. Mr. Wyers later learned that the expert's reports were never filed in his case and that the expert was not paid for his work. Mr. Wyers made repeated attempts to contact Respondent beginning in February 2008. As of June 16, 2008, Respondent had failed to communicate in any way with Mr. Wyers, failed to account to Mr. Wyers for the $45,000.00 submitted by Mr. Wyers to Respondent to secure expert reports, and failed to secure the expert's report for use in Mr. Wyers' patent litigation. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a), 1.4(b) and 8.4(c).
Jennifer Kelly is employed with Magic Carpet Ski Lifts, Inc. and Eagle Chase Investments, L.L.C. Ms. Kelly entrusted Respondent with ensuring that the corporations' trademarks remained valid, including renewing them and filing related reports by the appropriate deadlines.
On September 9, 2007, Ms. Kelly sent Respondent instructions to renew one of the corporations' trademarks along with a check for $750.00.This check later cleared the corporate account, but Respondent never filed the trademark renewal. Ms. Kelly later found out that a $200.00 late filing fee was required to keep the trademark alive, on top of the $750.00 originally owed.
Beginning in October 2007, Ms. Kelly made repeated attempts to contact Respondent regarding the status of the trademarks. As of June 16, 2008, she had not received a phone call, letter, or email from Respondent. Ms. Kelly transferred her trademark matters to Respondent's former partner, Mr. Henson, due to lack of communication with Respondent. Ms. Kelly has since tried to retrieve her company's files from Respondent. However, all attempts at communication with Respondent regarding her files have gone unanswered. Respondent has not returned her company's $750.00. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a), 1.4(b) and 8.4(c).
Donald Sonntag is a Division Manager of ProSys Packaging Equipment ("ProSys"). ProSys designs and manufactures high-speed packaging machines for the pharmaceutical, cosmetic and chemical industries. ProSys' ability to patent its designs has been a key component in its competitive edge against foreign competitors. Mr. Sonntag and his company have been working with Respondent since 1989 and his work has included meeting deadlines to pay fees and submitting applications to the USPTO and foreign patent offices.
On August 6, 2007, ProSys instructed Respondent to file a patent application with a deadline of October 25, 2007. Respondent never filed this application. The deadline passed, as well as a six-month extension/grace period, and ProSys was thereafter unable to obtain patent coverage due to Respondent's negligence. This allows competitors of ProSys to copy their unique and innovative technology. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a) and 1.4(b).
Howard Bernstein is the president of LazorBlades, Inc. Respondent handled all patent work for this corporation. This work includes filing patent applications and ensuring specific and time sensitive deadlines are met.
Beginning in late 2007, Respondent stopped returning calls from Mr. Bernstein and his corporation. Mr. Bernstein became concerned that correspondence from the USPTO may be waiting unattended in Respondent's office. Missed deadlines in the application process can be fatal and can result in the abandonment of the patent, making it nearly impossible to recover. These types of situations can also cost Mr. Bernstein's company thousands of dollars in re-filing fees, if that option is even available. As a result of this conduct, Respondent violated Colo. RPC 1.1, 1.3, 1.4(a) and 1.4(b).
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