Disciplinary Opinions
| Jurisdiction | Colorado,United States |
| Citation | Vol. 39 No. 10 Pg. 97 |
| Pages | 97 |
| Publication year | 2010 |
2010, October, Pg. 97. Disciplinary Opinions
October 2010
Vol. 39, No. 10 [Page 97]
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 Lawyerpublishes 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 ofThe Colorado Lawyer.
Case No. 08PDJ059
Complainant:
THE PEOPLE OF THE STATE OF COLORADO,
Respondent:
ALISON MAYNARD.
June 30, 2009
AMENDED OPINION AND ORDER IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
Commencing on January 27, 2009, a Hearing Board composed of Richard P. Holme and James L. Cox, Jr., both members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a three-day hearing pursuant to C.R. C.P. 251.18. April M. Seekamp appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Gregory G. Sapakoff appeared on behalf of Alison Maynard ("Respondent"). The Hearing Board now issues the following "Amended Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."(fn1)
I. ISSUE
A lawyer acts unethically if she knowingly disobeys a court order or engages in a pattern of conduct prejudicial to the administration of justice. Respondent's clients retained her after losing a lawsuit, which had become a final judgment. Thereafter, Respondent repetitively challenged the judgment collaterally in the state, federal, and water courts, filed a frivolous lawsuit and motions, and ignored a judge's order to stop her collateral attacks or face sanctions. What, if any, is the appropriate sanction?
II. SUMMARY
After careful consideration of the evidence presented and the arguments of counsel, the Hearing Board finds and concludes there is clear and convincing evidence that Respondent violated the Colorado Rules of Professional Conduct as set forth below:
*CLAIM I, Colo. RPC 1.1 (A lawyer shall provide competent representation to a client). By failing to undertake even the most rudimentary analysis of the facts and legal requirements necessary to bring a RICO suit Respondent failed to competently represent her clients.
*CLAIM II, Colo. RPC 3.1 (A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for extension, modification or reversal of existing law). By filing a RICO lawsuit without an elementary analysis of the facts and law necessary to allege a violation of RICO and essentially ignoring a state court final judgment, which was contrary to allegations in her RICO suit that the defendants had engaged in fraud, Respondent filed a frivolous lawsuit. Furthermore, because Respondent failed to undertake an elementary analysis of the facts and law necessary to file a RICO suit, she could not make a good faith argument on the merits or support a good faith argument for an extension, modification, or reversal of existing law.
*CLAIM III, Colo. RPC 8.4(d) (A lawyer shall not engage in conduct that is prejudicial to the administration of justice). Respondent initiated a lawsuit without minimally appropriate preparation and investigation of the factual and legal predicates for doing so. Respondent's misconduct caused the federal court to expend valuable time and resources and was prejudicial to the administration of justice.
*CLAIM IV, Colo. RPC 3.1. (A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for extension, modification or reversal of existing law). Respondent's motion to recuse Judge Lass was essentially denied twice, not appealed, and filed on the eve of trial a third time without substantial change. We find Respondent's tortured efforts to derail the scheduled trial by filing a third motion to recuse demonstrates clear and convincing evidence that it was frivolous.
*CLAIM V, Colo. RPC 3.2 (A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client). The record demonstrates that Respondent's repeated filings of essentially duplicative arguments and thereby extensively delayed the proceedings.
*CLAIM VI, Colo. RPC 3.5(c) (A lawyer shall not engage in conduct intended to disrupt a tribunal). By electronically filing a third motion to recuse on the eve of trial, Respondent delayed it without substantial purpose. Given the background and her numerous attempts to recuse Judge Lass, we find that Respondent filed the motion as a tactic to delay the proceedings and preserve a lis pendens that she had obtained in order to frustrate her opponent's efforts to sell property.
*CLAIM VII, Colo. RPC 8.4(d). (A lawyer shall not engage in conduct that is prejudicial to the administration of justice). Respondent's third motion to recuse Judge Lass, electronically filed on the eve of trial, was a misguided tactic designed to delay the proceedings and was prejudicial to the administration of justice.
*CLAIM VIII, Colo. RPC 3.4(c) (A lawyer shall not knowingly disobey an obligation under the rules of a tribunal). By arguing issues precluded by a prior final judgment and in spite of Judge Ossola's written order not to do so, Respondent acted knowingly and disobeyed an order of the court.
*CLAIM IX, Colo. RPC 8.4(d). (A lawyer shall not engage in conduct that is prejudicial to the administration of justice). Respondent's refusal to obey Judge Ossola's order to cease arguing issues resolved in 99CV277 was detrimental to the administration of justice.
SANCTION IMPOSED: ATTORNEY SUSPENDED
FROM THE PRACTICE OF LAW FOR A PERIOD
OF ONE (1) YEAR.
III. PROCEDURAL HISTORY
On June 19, 2008, the People filed a Complaint alleging nine separate violations of the Colorado Rules of Professional Conduct. Respondent filed an Answer on August 4, 2008. Both parties filed motions for summary judgment, which the PDJ denied. On September 4, 2008, the PDJ held an At-Issue Conference and a three-day hearing commenced on January 27, 2009.
IV. FINDINGS OF MATERIAL FACT
The Hearing Board finds that the following facts have been established by clear and convincing evidence.(fn2)
Jurisdiction
Respondent has taken and subscribed the oath of admission, was admitted to the Bar of this Colorado Supreme Court on May 20, 1987, and is registered upon the official records, Attorney Registration No. 16561. She is therefore subject to the jurisdiction of the Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1 (a). Respondent's registered business address is P. O. Box 22135, Denver, Colorado 80222.
Overview
Before retaining Respondent, her clients lost a declaratory judgment in state court, case number 99CV277, which became a final order when they failed to appeal it. Thereafter, these defendants refused to cooperate with the prevailing parties in finalizing a settlement agreement as ordered by the court. The former defendants in the declaratory judgment case then retained Respondent to represent them.
Without any recourse in state court and relying heavily on her clients' wishes to continue litigation, Respondent filed suits in the state, federal, and water courts, and collaterally attacked the state court's jurisdiction and final order in 99CV277. In the first of these suits, Respondent alleged, without essential preparation or legal foundation and in contravention of the state court's order in 99CV277, that the prevailing parties and others engaged in a criminal conspiracy, violated the Racketeer Influenced and Corrupt Organizations Act (RICO), the Colorado Organized Crime Control Act (COCCA), and deprived her clients of their water rights. Ultimately, Respondent knowingly disobeyed a court order to stop her collateral attacks on the judgment in 99CV277 or face sanctions.
Background to Dispute Between Respondent's Clients and their Homeowners Association
Spring Creek Ranch (SCR), real property located in Summit County, was initially developed in the 1980s. As part of a planned unit development (PUD), the developer built seven homes in Phase I and applied for, and received, a water decree in case number 80CW504, which included a proposed Phase II, an undeveloped portion of SCR.(fn3) This decree allowed the lot owners, a total of 300 contemplated units on the 6000 acres of property, to use 175 acre-feet of water per year when SCR was "at full development." However, before the developer undertook the development of Phase II, he defaulted on the mortgage for SCR. At that point, the mortgage holder foreclosed on the SCR development, which included the undeveloped portion, Phase II.
The mortgage holder then sold part of the undeveloped land to Nelson and Catherine Lane. At the same time, the mortgage holder, the Lanes, individual lot owners...
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