Disciplinary Opinions
| Publication year | 2009 |
| Pages | 155 |
| Citation | Vol. 38 No. 9 Pg. 155 |
2009, September, Pg. 155. Disciplinary Opinions
September 2009
Vol. 38, No. 9 [Page 155]
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.
Complainant:
THE PEOPLE OF THE STATE OF COLORADO,
Respondent:
ROBERT JOHN MASON.
On March 10, 2009, a Hearing Board composed of Frances L. Winston, a citizen board member, Sisto J. Mazza, a member of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a one-day hearing pursuant to C.R.C.P. 251.18. James S. Sudler appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Michael D. Gross appeared on behalf of Robert John Mason ("Respondent") who also appeared. The Hearing Board now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
Disbarment is generally appropriate when a lawyer knowingly violates the terms of a prior disciplinary order and thereby causes injury to a client, the public, the legal system, or the profession. The PDJ issued an order suspending Respondent from the practice of law and specifically ordered him not to practice law during his suspension. Thereafter, Respondent provided legal advice to one client and prepared legal documents for a second client. Is disbarment the appropriate sanction for his misconduct?
The Hearing Board finds clear and convincing evidence that Respondent knew that he could not counsel, advise, or assist any person in connection with legal rights and duties or to prepare any legal documents for anyone while under the PDJ's order of suspension. Nevertheless, Respondent ignored the PDJ's order and practiced law. Respondent's claim that he did not know his actions constituted the unauthorized practice of law rings hollow given his disciplinary history, which included a three-year suspension for substantially similar conduct. Based upon the clear and convincing evidence presented, the Hearing Board finds that Respondent knowingly disobeyed a court order in violation of Colo. RPC 3.4(c) as alleged in Claim One and engaged in the unauthorized practice of law in violation of Colo. RPC 5.5(a) as alleged in Claim Two. Accordingly, the Hearing Board concludes that the presumptive sanction of disbarment is appropriate in this case.
On September 11, 2008, the People filed a "Complaint" alleging two separate violations of the Colorado Rules of Professional Conduct. Respondent filed an "Answer" on October 10, 2008. On February 5, 2009, the PDJ held a hearing and thereafter denied a "Motion for Summary Judgment" filed by Respondent on November 7, 2008, and "Complainant's Response to Motion for Summary Judgment and Complainant's Motion for Judgment on the Pleadings of (sic) for Summary Judgment" filed by the People on December 9, 2008.
The Hearing Board finds that the following facts and rule violations have been established by clear and convincing evidence.(fn1)
Respondent has taken and subscribed the oath of admission, was admitted to the bar of this Colorado Supreme Court on October 18, 1961, and is registered upon the official records, Attorney Registration No. 04324. Therefore, he is subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent's registered business address is 2993 Broadmoor Valley Road, Suite 204, Colorado Springs, Colorado 80906.
In consolidated case number 05PDJ035, Respondent admitted that he had represented Sun Hee Park in a liquor licensing matter and had prepared and filed a liquor license application on behalf of Chong Suk Rosbach.(fn2) Respondent also admitted that by knowingly engaging in the practice of law while under a prior order of suspension, his actions in representing these two clients violated Colo. RPC 3.4(c) and Colo. RPC 5.5(a). The Hearing Board notes that these rule violations are the same rule violations alleged by the People in the present complaint against Respondent.
On August 24, 2005, consistent with the stipulation of the parties, the PDJ entered an "Order Approving Conditional Admission of Misconduct and Imposing Sanctions Pursuant to C.R.C.P. 251.22" in consolidated case number 05PDJ035. This order incorporated an "Agreement to Refrain from Practice of Law" signed by Respondent in which he expressly agreed to refrain from the practice of law during the stipulated three-year period of suspension. The agreement defined the practice of law as follows:
The practice of law includes but is not limited to an unlicensed person's or a suspended lawyer's actions as a representative in protecting, enforcing or defending the legal rights and duties of another and/or counseling, advising and assisting that person in connection with legal rights and duties. In addition, preparation of any legal documents for others as a suspended lawyer is the unauthorized and unlicensed practice of law. All of the aforementioned actions constitute the practice of law regardless of theforum, court, agency, administrative body or governmental agency in which such actions occur or to which they may be related (emphasis added).(fn3)
Respondent also acknowledged that he would be in violation of the agreement if he engaged in any actions constituting the practice of law:
The respondent specifically agrees to refrain from any actions constituting the practice of law in Colorado. Should the respondent engage in any actions constituting the practice of law while his license is suspended he shall be subject to contempt of court proceedings and he shall be in violation of the Stipulation, Agreement, and Affidavit Containing the Respondent's Conditional Admission of Misconduct and Affidavit Containing the Respondent's Conditional Admission of Misconduct in Case Number 05PDJ035 (Consolidated with 05PDJ048).(fn4)
As stated above, the PDJ's order accepting Respondent's conditional admission of misconduct incorporated his written agreement. The PDJ specifically ordered the following:
Respondent agrees to refrain from engaging in the practice of law unless he is under the direct supervision of another Colorado licensed attorney. Respondent signed an agreement attached as Exhibit D to the Stipulation. Respondent agrees any violation of this agreement shall subject him to contempt of court proceedings.(fn5)
The Hearing Board finds that the agreement signed by Respondent and approved by the PDJ is consistent with Colorado Supreme Court case law defining the practice of law.(fn6) The agreement affirmed that Respondent had read, studied, and understood it. Based upon this record, the Hearing Board finds that Respondent knew that filing legal documents or giving legal advice or counseling another while suspended would be unauthorized and would therefore constitute a violation of a condition of his agreement to refrain from the practice of law.
On or about June 25, 2007, less than two years after agreeing to refrain from the practice of law in consolidated case number 05PDJ035, Respondent filed a "Notice of Election and Demand for Sale by Public Trustee" with the Pueblo County Clerk and Recorder. Respondent signed this document and others in the foreclosure action as "Agent" or "Agent of Owner." Respondent also submitted a bid of $29,672.20 and other documents arising out of the notice of election and demand.(fn7) While none of these documents necessitated a legal or adjudicatory analysis by a judge, the Public Trustee, other official, or the appearance of Respondent in a court of law, the Hearing Board finds that the "Notice of Election and Demand for Sale by Public Trustee" and other foreclosure documents submitted to the Public Trustee were in-fact legal documents as the term is commonly used and understood; that is, documents affecting legal rights.(fn8)
On October 29, 2007, Lighthouse Investments ("Lighthouse"), a mortgagor, sent Respondent a letter notifying him that their mortgagee, Mike Nelson, had defaulted on a mortgage held by Lighthouse.(fn9) The letter followed a discussion Respondent had with a representative of Lighthouse who requested Respondent's counsel concerning their difficulties with collecting delinquent mortgage payments from Mr. Nelson. Lighthouse sought a means to collect these delinquent mortgage payments. In their letter to Respondent, Lighthouse...
To continue reading
Request your trial