Disciplinary Opinion: People v. Smith
| Publication year | 2011 |
| Pages | 154 |
2011, July, Pg. 154. Disciplinary Opinion: People v. Smith
July 2011
Vol. 40, No. 7 [Page 154]
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. 10PDJ103
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Respondent:
MATTHEW SMITH
On February 25, 2011, a Hearing Board composed of Linda S. Kato and John E. Hayes, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge (the PDJ), held a one-day hearing pursuant to C.R.C.P. 251.18. April M. McMurrey appeared on behalf of the Office of Attorney Regulation Counsel (the People), and Matthew Smith (Respondent) appeared pro se. The Hearing Board now issues the following "Decision and Order Dismissing Complaint pursuant to C.R.C.P. 251.19(b)."
Respondent was suspended from the practice of law in 2004 and has not been reinstated to the bar. In 2008, Respondent began to work as a paralegal/law clerk. In that capacity, he drafted letters to opposing counsel concerning post-dissolution decree matters and arguably communicated settlement proposals to opposing counsel. Although the tone of Respondent's letters to opposing counsel was somewhat lawyerly, Respondent was forthcoming about his suspended status, and he worked under the direct supervision of his employer, a licensed attorney. The Hearing Board concludes that the People have failed to present clear and convincing evidence that Respondent violated Colo. RPC 3.4(c) or 5.5(a). Accordingly, the Hearing Board dismisses the People's complaint.
On September 24, 2010, the People filed a complaint in case number 10PDJ103, alleging that Respondent violated Colo. RPC 3.4(c) and 5.5(a). Respondent filed an answer on October 14, 2010. The PDJ held an at-issue conference on November 3, 2010. During the hearing on February 25, 2011, the Hearing Board heard testimony and considered the People's stipulated exhibits 1-13.
The Hearing Board finds the following facts 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 May 13, 1993. He is registered upon the official records under attorney registration number 22681 and is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings.(fn1) Respondent's address is 10150 East Virginia Avenue, Bldg. 4-301, Denver, CO 80247.
Pursuant to a stipulation, Respondent was suspended for one year and one day on June 29, 2004, effective July 31, 2004. While Respondent was serving the suspension, he was suspended again for three years pursuant to another stipulation. The order of suspension was entered on June 6, 2006, and it took effect on July 7, 2006. Respondent has remained suspended since July 31, 2004, and he has not been reinstated to the practice of law.
A reinstatement hearing for Respondent was scheduled for December 1, 2009, but Respondent requested a continuance. The hearing was continued to February 11, 2010. On January 15, 2010, Respondent requested a second continuance of the reinstatement hearing, in part to permit him time to fully repay monies owed to the Colorado Attorneys' Fund for Client Protection. The reinstatement hearing was continued to June 8, 2010. Respondent withdrew his petition for reinstatement after the complaint was filed in this matter.
Respondent began working for Colorado attorney Gary Fielder (Fielder) as a paralegal/law clerk in October 2008. Fielder practices criminal and family law, and his court appearances keep him out of the office frequently. No other attorneys work in Fielder's office, but from time to time he contracts for the assistance of independent attorneys.
Respondent recommended to Gary Tisch (Tisch), a childhood friend, that he hire Fielder to assist him in resolving post-dissolution decree legal disputes, including issues related to spousal maintenance and child visitation.(fn2) Tisch hired Fielder's firm in late 2008. Tisch's ex-wife, Susan Ryan (Ryan) was represented in these mattersby Robin Lutz Beattie (Beattie).
According to Fielder, Tisch used Respondent "as his point person in the office to communicate his position."(fn3) Respondent testified that Tisch usually called Fielder with questions, but if Fielder was unavailable Tisch would speak with Respondent. Respondent frequently relayed information between Tisch and Fielder. Respondent attended most hearings in Tisch's matter along with Fielder, and in some instances he sat at counsel's table. He never represented to the court that he was an attorney, however, nor did he sign pleadings on Tisch's behalf. Respondent did draft letters to and converse with Beattie, as further detailed below.
Respondent visited Beattie's office on December 22, 2008, to drop off paperwork. Beattie testified that she and Respondent discussed several issues related to a motion Tisch had filed for modification of child support. According to Beattie, she and Respondent discussed the issues of Ryan's future income, parenting time, which payments should be counted as maintenance, and whether a certain agreement superseded another agreement.(fn4) No resolution on any of these issues was reached. They also talked for a few minutes about personal issues, including the suspension of Respondent's law license.
On January 5, 2009, Respondent mailed Beattie a letter which states:
Respondent testified that he placed this letter and any other letters he drafted to Beattie on Fielder's desk for his review before they were mailed.(fn6)We have been requesting from your office for several weeks now the amount that Mr. Tisch owes the school for tuition. We have yet to hear what that amount is. I have told you that my client will issue a check immediately as soon as we know what the amount is. Additionally, it is my understanding there are some unpaid medical expenses that need to be paid. Please advise as to that figure as well ... . Sincerely, Matthew Smith, Law Clerk to Gary D. Fielder.(fn5)
Fielder and Beattie's relationship became strained, and in March 2009, Fielder advised Beattie he would no longer speak with her in person.(fn7) Beattie testified that she and Respondent spokeby telephone on August 24, 2009, regarding attorney's fees. Beattie recalls that Respondent stated he had no authority to make an offer, but he asked whether Ryan would accept $8,000.00 rather than $11,000.00 in exchange for Tisch dropping an appeal. According to Beattie, she responded that the offer was not helpful because Tisch's appeal was frivolous. She characterizes the substance of Respondent's communication as a proposal.
In August 2009, Respondent attended a hearing in Tisch's matter along with Richard Martillaro (Martillaro), an independent attorney Fielder hired to cover the hearing. On August 31, 2009, Beattie emailed Respondent a proposed order for Fielder's or Martillaro's review.(fn8) The same day, Respondent responded to Beattie. In that letter, he writes that he and Martillaro had reviewed the proposed order and states: (1) "We believe you need to state the date the hearing took place ... ."; (2) a motion for review of a magistrate's order should be due on...
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