Disciplinary Opinion: People v. Carder
| Publication year | 2011 |
| Pages | 141 |
| Citation | Vol. 40 No. 6 Pg. 141 |
2011, June, Pg. 141. Disciplinary Opinion: People v. Carder
June 2011
Vol. 40, No. 6 [Page 141]
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.
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Respondent:
DENNIS L. CARDER
On January 10, 2011, the Presiding Disciplinary Judge (Court) held a Sanctions Hearing pursuant to C.R.C.P. 251.15(c). Elizabeth E. Krupa appeared on behalf of the Office of Attorney Regulation Counsel (the People). Dennis L. Carder (Respondent) did not appear, nor did counsel appear on his behalf. The Court now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."
In ten client matters, Respondent failed to communicate with his clients and failed to perform work on their behalf, effectively abandoning them. In many of these cases, Respondent's clients sought a refund of their retainers and return of their files, but Respondent never provided accountings or refunds, nor did he ever return their files. Respondent's misconduct constitutes abandonment and conversion, warranting disbarment.
On February 16, 2010, the People petitioned the Colorado Supreme Court to immediately suspend Respondent pursuant to C.R.C.P. 251.8.6 due to Respondent's failure to cooperate on matters involving serious charges. The Colorado Supreme Court granted the People's petition following briefing from the parties and immediately suspended Respondent on March 28, 2010.
On May 21, 2010, the People filed a citation and complaint in case number 10PDJ055 and sent copies via certified mail to Respondent at his registered business address of 3617 South Acoma Street, Englewood, CO 80110. This certified mailing was returned to the People marked "Return to Sender-Unclaimed-Unable to Forward-Return to Sender." The People filed a "Proof (Attempted Service)" on August 26, 2010.(fn1) The People thereafter sent Respondent a reminder letter dated September 21, 2010.(fn2) After Respondent failed to answer the complaint, the Court entered its "Order Entering Default Pursuant to C.R.C.P. 251.15(b)" on November 29, 2010.
During this time, the People also filed separate claims against Respondent in case number 10PDJ069. On June 23, 2010, the People filed a citation and complaint in that matter and sent copies via certified mail to Respondent at his registered business address, which was returned to the People marked "Not deliverable as Addressed." On July 6, 2010, the People sent copies of the citation and an amended complaint to Respondent, and this mailing was likewise returned to the People marked "Not deliverable as Addressed." The People filed a "Proof of Attempted Service" on August 26, 2010.(fn3) Respondent failed to answer the People's complaint, and the Court entered an "Order Entering Default Pursuant to C.R.C.P. 251.15(b)" in case number 10PDJ069 on September 30, 2010.
On January 3, 2011, the Court granted a motion to consolidate case numbers 10PDJ055 and 10PDJ069. During the sanctions hearing, the Court considered testimony and admitted the People's exhibits 1-5.
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 August 29, 2005. He is registered upon the official records, attorney registration number 36474, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.(fn4) Respondent's registered business address is 3617 South Acoma Street, Englewood, Colorado 80110.
On January 19, 2009, Tammy Washington (Washington) hired Respondent on a flat-fee basis to handle her Chapter 7 bankruptcy proceeding, agreeing to pay him $1,000 total, plus a $299 filing fee. Respondent told Washington he would prepare and file the appropriate pleadings to begin her bankruptcy proceedings once she paid the first two payment installments, totaling $599. The flat-fee agreement also provided that "[o]nce Attorney begins work on this contract, any termination of servicesby Client will result in loss of the agreed-upon fee." Respondent asked Washington to provide him with her pay stubs for the prior six months, but he did not request any other records or information necessary to prepare bankruptcy schedules.
Washington paid an initial check of $299 on January 19, 2009, which Respondent deposited in his business account the next day. He also cashed checks he received from her on February 20, 2009 ($300), April 7, 2009 ($100), and April 20, 2009 ($100), even though he had not performed any work up to that time. Respondent and Washington were in intermittent contact the spring and summer of 2009, but between October 2009 and January 2010, Respondent failed to return Washington's calls and was otherwise unavailable to speak with her, despite the many efforts she made to contact him. Respondent never filed a Chapter 7 bankruptcy for Washington, nor did he return any of the funds she had provided him.
Respondent violated many rules governing professional conduct in his handling of the Washington matter: he violated Colo. RPC 1.3 (failed to act diligently and promptly); Colo. RPC 1.4(a)(4) (failed to promptly comply with reasonable requests for information); Colo. RPC 1.5(f) (converted unearned fundsby failing to deposit them in a trust account); Colo. RPC 1.5(g) (included a non-refundable fee provision in fee agreement); Colo. RPC 1.16(d) (failed to refund unearned amount of retainer and filing fees); and Colo. RPC 8.4(c) (knowingly exercised unauthorized dominion over client funds and thus engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation).
On February 12, 2008, Alfred Green (Green) retained Respondent to represent him in two matters. In the first, Green agreed to pay Respondent $75 an hour plus 15% of any settlement, with a $250 retainer, to collect against a judgment Green had earlier obtained against EAP Auto. The second covered Respondent's representation of Green in a warranty dispute with Broadway Dodge, for which Green agreed to pay Respondent $150 per hour, with an initial $500 retainer. Green wrote Respondent a check for $750 to cover both retainers, and Respondent cashed the check that same day.
No evidence exists that, during the remainder of 2008, Respondent performed any work for Green on either the EAP Auto matter or the Broadway Dodge matter. Nevertheless, on seven occasions between February and June 2008, Respondent's trust account dipped below $750, andby July 8, 2008, only $3.30 remained in that account.
On January 8, 2009, another attorney sent a letter to Respondent on Green's behalf, requesting that Respondent provide an itemized account statement of his time spent working on Green's matters. On January 31, 2009, Respondent sent a letter to Green in response, stating he had been out of town and had experienced medical difficulties, and he claimed that he had sent two letters to Broadway Dodge and had conducted legal research in the EAP Auto matter. Respondent volunteered to either refund the unused portion of both retainers and return the files or aggressively pursue both cases with no further charge to Green. Green opted to allow Respondent to continue work on both matters.
Several months later, Respondent contacted Green a few times to discuss the Broadway Dodge case, although Respondent did not provide Green with any documents related to the dispute. On September 23, 2009, seventeen months after he had been retained, Respondent filed a complaint on Green's behalf in that case, but a series of delays ultimately led the court to dismiss the action without prejudice for failure to prosecute on December 24, 2009.by December 18, 2009, Green had been unable to contact Respondent for over nine months.
Respondent's conduct violated Colo. RPC 1.3 (failed to act with diligence and promptness); Colo. RPC 1.4(a) (failed to promptly and reasonably communicate with client); Colo. RPC 1.5(a) (charged an unreasonable fee); Colo. RPC 1.15(b) (failed to provide a full accounting upon request); Colo. RPC 1.5(f) (converted unearned fundsby failing to deposit them in a trust account); and Colo. RPC 8.4(c) (converted retainer without having done any work on client's behalf and thereby engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
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