Disciplinary Opinion
| Publication year | 2010 |
| Pages | 99 |
| Citation | Vol. 39 No. 2 Pg. 99 |
2010, February, Pg. 99. Disciplinary Opinion
February 2010
Vol. 39, No. 2 [Page 99]
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. 07PDJ081
Complainant:
THE PEOPLE OF THE STATE OF COLORADO,
Respondent:
NORMAN B. BEECHER.
February 3, 2009
OPINION AND ORDER IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
On December 2-4, 2008, a Hearing Board composed of Gail C. Harriss, and Henry R. Reeve, both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("the Court"), held a hearing pursuant to C.R.C.P. 251.18. James S. Sudler appeared on behalf of the Office of Attorney Regulation Counsel ("the People"). Norman B. Beecher ("Respondent") appeared pro se. The Hearing Board now issues the following "Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
I. ISSUE
A lawyer violates the Colorado Rules of Professional Conduct if he represents a client with whom a conflict exists or uses tactics in the representation of the client that serve no purpose other than to harass witnesses. Respondent was disqualified from representation after he carried on an intimate relationship with his client, conducted depositions of witnesses that served no substantial legal purpose, and created unnecessary animus amongst the parties. What is the appropriate sanction, if any?
II. SUMMARY
The clear and convincing evidence shows that Respondent was negligent in failing to heed a substantial risk that his intimate, albeit non-sexual, relationship with his client created a conflict in representing her interests in a divorce where the legal issues involved division of property and maintenance, but not marital fault.(fn1) Respondent's client wanted to use depositions to demonstrate her husband's alleged misconduct during the marriage. The client's misguided strategy prevailed when Respondent adopted it. By following his client's plan, Respondent failed to exercise professional and independent judgment on behalf of his client.
Instead of litigating the legal issues of marital property and maintenance, Respondent knowingly agreed with his client to depose her husband and the parties' adult son about the husband's alleged sexual misconduct during the course of their twenty-four year marriage, including an alleged sexual conduct involving a minor daughter.
After carefully considering all of the evidence, the Hearing Board concludes by clear and convincing evidence that Respondent violated the following rules:
* Colo. RPC 4.4 (Claims One and Two, in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person) (emphasis added).
* Colo. RPC 1.7(b) (Claim Four, a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests).
* Colo. RPC 8.4(d) (Claim Five, it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).
While a public censure is generally appropriate when a lawyer negligently violates Colo. RPC 1.7 (conflict rule) we find that a stricter sanction is appropriate when, as here, Respondent knowingly violates Colo. RPC 4.4 by engaging in tactics that serve no substantial purpose other than to harass witnesses. We therefore impose the following sanction:
SANCTION IMPOSED: ATTORNEY SUSPENDED FOR ONE YEAR AND ONE DAY, ALL BUT NINETY (90) DAYS STAYED UPON THE SUCCESSFUL COMPLETION OF A TWO-YEAR PERIOD OF PROBATION WITH THE CONDITION OF ETHICS SCHOOL.
III. FINDINGS OF MATERIAL FACT
On December 18, 2007, the People filed their Complaint and Respondent filed his Answer on February 11, 2008. On February 26, 2008, the Court held an At-Issue Conference and scheduled the matter for hearing to be held on December 2-4, 2008. At the hearing, the Hearing Board considered the testimony of each witness and exhibits admitted into evidence, and now makes the following findings of material fact by clear and convincing evidence.
Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on May 25, 1983. He is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 12722. Respondent is therefore subject to the jurisdiction of the Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b).
Background
Respondent is a 50-year-old lawyer who has been engaged in the solo practice of law since 2005. Overall, he has practiced for nearly twenty years in Colorado. During this time, he served as an Assistant City Attorney in Aurora for nine years and later worked for a private firm. Respondent estimates that he now spends up to 20% of his time on domestic cases. He also practices transactional, immigration, and general litigation law. Respondent presently maintains a law office in his residence.
In June 2006, while representing his former wife in a dissolution of marriage proceeding, Respondent met Mrs. E at a party. At that time, Mrs. E had been married to her husband, Mr. E, for twenty-four years. Mrs. E and her husband had raised two children, who at the time of the divorce proceedings were young adults living outside the family home. In 2006, the couple lived apart while Mr. E worked outside the state of Colorado.
While living apart, Mr. E worked as a general manager in the car dealership business in South Carolina. Mrs. E lived in Colorado and did not work outside the home. She cared for two of her grandchildren from a previous marriage and she had not worked outside the home in a number of years. Sometime during October 2006, after meeting Respondent, Mrs. E asked Respondent if he would represent her in a dissolution of marriage proceeding against her husband. Respondent agreed to represent her on a pro bono basis.
At the time Mrs. E filed her original dissolution of marriage petition, she had alleged that the marriage was "irretrievably broken."(fn2) Although Mr. E initially answered the petition and alleged that the marriage was not irretrievably broken, he later agreed (through his attorney during his deposition) that the marriage was irretrievably broken. The parties stipulated in these proceedings that the primary legal issues in the dissolution of marriage proceedings concerned the division of property and maintenance.(fn3)
Sometime after Respondent commenced his representation of Mrs. E, the parties' adult son discovered Respondent's laptop computer in his mother's bedroom. The laptop computer contained pictures of his mother and Respondent in Belize, a trip they took over the Thanksgiving holiday. The adult son also noticed Respondent's car parked in the garage of the family residence. The parties' adult daughter too noted Mrs. E's relationship with Respondent and expressed concern.(fn4)
Respondent admitted that he had traveled to Belize with Mrs. E and that he had stayed overnight in her home. He also admitted that he and Mrs. E had kissed and had embraced on at least two occasions while at her residence. Furthermore, he and Mrs. E used terms of endearment in their missives to each other during the course of Respondent's representation.(fn5)
Respondent Sets up an Office in the Parties' Marital Residence(fn6)
After Respondent agreed to represent Mrs. E, she allowed him to use her home as an office. As a result, Respondent kept Mrs. E's files in her home, as well as those concerning Respondent's former wife, another client Respondent represented in a pending divorce. In addition, Respondent hired Mrs. E to help him organize her case file and that of his former wife, Mrs. E's best friend. Respondent's ex-wife, and [sic] airline pilot, stayed with Mrs. E when she was back from work. Mrs. E testified that her home accommodated a large number of people and that she often welcomed friends and relatives to...
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