Disciplinary Opinion: People v. Cabral
| Publication year | 2011 |
| Pages | 147 |
2011, July, Pg. 147. Disciplinary Opinion: People v. Cabral
July 2011
Vol. 40, No. 7 [Page 147]
Colorado Disciplinary Cases
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 appointedby the Supreme Court. For space purposes, exhibits, complaints, and amended complaints may not be printed. Disciplinary Opinions are printed as submittedby the Office of the?PDJ and are not editedby the staff of The Colorado Lawyer.
Case No. 10PDJ077
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Respondent:
ALFONSO S. CABRAL
On December 9, 2010, a Hearing Board composed of Richard P. Holme, a member of the bar, Larry A. Daveline, a citizen Hearing Board member, and William R. Lucero, the Presiding Disciplinary Judge (the PDJ), held a hearing pursuant to C.R.C.P. 251.18. Katrin Miller Rothgery appeared on behalf of the Office of Attorney Regulation Counsel (the People), and Alfonso S. Cabral (Respondent) appeared pro se. The Hearing Board now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
Following at least five prior instances of discipline for similar misconduct, Respondent neglected three client matters in violation of Colo. RPC 1.3 and 1.16, repeatedly failed to communicate with his clients in violation of Colo. RPC 1.4, and engaged in conduct that prejudiced the administration of justice in violation of Colo. RPC 8.4(d). Given his extensive disciplinary history and the presence of several other aggravating factors, the Hearing Board concludes Respondent should be suspended for three years.
On July 21, 2010, the People filed a complaint, and Respondent filed an answer on August 6, 2010. An at-issue conference was held on August 24, 2010, and the parties submitted stipulated facts and a stipulated exhibit list on November 23, 2010. At the December 9-10, 2010, hearing, the Hearing Board heard testimony and considered stipulated exhibits 1-9.
The Hearing Board finds the following facts and rule violations have been establishedby clear and convincing evidence.
Respondent took the oath of admission and was admitted to the Bar of the Colorado Supreme Court on April 27, 1989. He is registered upon the official records, Attorney Registration No. 18328, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.(fn1) Respondent's registered business address is 200 South Sheridan Blvd., Suite 220, Denver, CO 80226.
On June 17, 2008, Emily Pacheco, a bondsperson, filed a lawsuit in Denver District Court against Maria Alvarez(fn2) in Pacheco v. Alvarez, Case No. 2008CV5179. The complaint alleged claims for breach of contract and unjust enrichment based upon Alvarez's apparent default on a February 10, 2007, promissory note for $50,000.00. The promissory note had allegedly become due as a result of Alvarez's son's failure to appear in pending Adams County District Court criminal matters.
On July 2, 2008, Alvarez was served with the complaint, and on July 9, 2008, Alvarez visited Respondent. Respondent and Alvarez agreed that she initially sought his assistance to deal with the armed bounty hunters who came to her home at Pacheco's behest, often in the early hours of the morning. Respondent testified that he called Pacheco while Alvarez was present, and he maintained-though Alvarez disagreed-that his efforts brought an immediate halt to the bounty hunters' nighttime visits. According to Respondent, "that service was free."
At the same meeting, Alvarez also showed Respondent the complaint with which she had been served, asking for his help. Alvarez testified that Respondent told her there was always a way to fix things and agreed to represent her. Respondent, in contrast, remembered telling Alvarez that her agreement with Pacheco was "iron-clad," to which there was no defense, but that he could arrange a settlement of the matter on her behalf. In either event, Alvarez retained Respondent to represent her in the lawsuit, and Respondent provided Alvarez with a receipt for $700.00, noting the payment was for a "civil case." The receipt also stated that the balance due was $300.00 plus costs. Respondent's client intake sheet, which provided space to describe the "type of case," was left blank, although Respondent wrote on the intake sheet that the "total fee" was "$1,000 plus costs."(fn3)
On September 18, 2008, the Denver District Court notified the parties that Pacheco's lawsuit would be dismissed on October 20, 2008, due to Pacheco's failure to prosecute. Respondent provided Alvarez with a copy of the court's notice, and, she says, advised her that "the case was closed" and there was "nothing to worry about." Although Respondent did warn her that there was a chance Pacheco might re-file the case, he also told her that it was "unlikely to happen, or to happen very soon." Based on Respondent's statements, Alvarez considered the case closed and the matter over.
After the Denver District Court dismissed the matter for failure to prosecute, Respondent consented to a change of venue to Arapahoe County District Court on October 17, 2008. The Arapahoe County District Court issued a case management order in the matter on October 29, 2008.
Without alerting Alvarez to these developments, Respondent filed an answer on her behalf on November 6, 2008. The answer generally denied the allegations of the complaint, raised numerous defenses, and argued that any damages sufferedby Pacheco were due to Pacheco's own inactions in failing to ensure Alvarez's son appeared in the criminal court matters for which the bond was issued. On December 5, 2008, the court set the matter for a pre-trial conference on February 20, 2009, and for a trial on March 5, 2009. Pacheco, through her attorneys Joseph Murr and Bradley Neiman, filed disclosures on December 22, 2008, and a motion for summary judgment on December 31, 2008.
On January 5, 2009, Respondent sent Alvarez a letter, written in English, which stated:
Alvarez testified that although she cannot read in English, she went to Respondent's office when she received his letter. She waited for him, but Respondent never appeared. She also placed telephone calls to him, but Respondent failed to return those calls. When Alvarez asked Respondent's receptionist about the meaning of the...We have received a verified motion for summary judgment from the Plaintiff in the above-mentioned case. Our office is required to take action on this matter soon. However, our records indicate that you have not been in contact with our office in some time. In order for us to continue representing you, it is vital that you contact our office via phone or in person as soon as possible. We must speak with you regarding any settlement offers you wish to provide the plaintiff, and regarding any other action you wish us to take. Please respond within ten (10) daysof receipt of this letter. Ifby that time you have not been in further contact with us, our office will have no choice but to withdraw as counsel.(fn4)
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