Disciplinary Opinion: People v. Gilbert
| Publication year | 2011 |
| Pages | 132 |
2011, May, Pg. 132. Disciplinary Opinion: People v. Gilbert
May 2011
Vol. 40, No. 5 [Page132]
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.10PDJ067
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Respondent:
ROBERT EDWARD GILBERT
On October 25 and 26, 2010, a Hearing Board composed of Terry F. Rogers and Boston H. Stanton, Jr., members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge (PDJ), held a hearing pursuant to C.R.C.P. 251.18. Elizabeth E. Krupa appeared on behalf of the Office of Attorney Regulation Counsel (People), and Frederick P. Bibik appeared on behalf of Robert Edward Gilbert (Respondent). The Hearing Board now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
This case requires us to consider whether Respondent's lack of civility to court staff, intemperate behavior during a hearing, or use of a repugnant gender-based epithet in the course of representing his client violate the Rules of Professional Conduct. While Respondent's rudeness and lack of common courtesy has, no doubt, contributed to tarnishing the image of the bar in the eyes of the public, the Hearing Board cannot find, under the facts presented at the hearing, that Respondent violated Colo. RPC 4.4(a) or 3.5(d).
Nor does the Hearing Board find that Respondent violated Colo. RPC 8.4(d)by referring, in the course of negotiating a plea deal with prosecutors, to a female judge as a "c**t;" Respondent's subjective opinion, however uncouth, did not prejudice the administration of justice. However, the Hearing Board does find that Respondent's use of this slur violated Colo. RPC 8.4(g), which specifically proscribes a lawyer from engaging in conduct that exhibits bias or prejudice in the course of representing a client.
On June 21, 2010, the People filed a complaint, and Respondent filed an answer on August 9, 2010. An at-issue conference was held on August 24, 2010. At the October 25-26, 2010, hearing, the Hearing Board heard testimony and the PDJ admitted the People's exhibits 1-4. At the request of Respondent, to which the People did not object, the PDJ also re-opened the evidence following the trial to allow the Hearing Board to consider an audio recording of Respondent's April 21, 2009, court appearance in Clear Creek County Court.
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 19, 1984. He is registered upon the official records, Attorney Registration No. 13603, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.(fn1) Respondent's registered business address is P.O. Box 740712, Arvada, Colorado 80006.
On the morning of March 17, 2009, Respondent, attorney of record for Eli Curry-Elrod, telephoned the Clear Creek County Court to advise the court of a resolution of the DUI case People v. Eli Curry-Elrod, Case No. 08T1524, and to further advise the court that the hearing scheduled for that afternoon could be vacated. Respondent spoke with Assistant Court Clerk Kimberly Devlin, who put Respondent on hold to confirm the court's procedures with Clerk of Court Kim Hill. Having conferred with Hill, Devlin resumed her conversation with Respondent, conveying to him that he was required to fax to the court a motion and a proposed order, with a fax charge of $1.00 per page. Respondent became agitated and responded, "Who the hell made that rule [governing fax charges], Judge Ruckriegle?" He also protested that every other court he had dealt with would vacate a motions hearing based on a verbal request. Devlin testified that it was clear Respondent was angry, and although she was bothered Respondent "would say something like he did about the judge," she was neither embarrassed nor upset by Respondent's behavior.
Following Devlin's instructions, Respondent drafted a cursory motion to vacate the hearing, which he faxed to the Clear Creek court at approximately 1:49 p.m. that afternoon(fn2)-forty minutes in advance of the scheduled 2:30 p.m. hearing. The Honorable Rachel J. Olguin-Fresquez quickly reviewed and denied the motion, commenting that "Def[endant] has given no reason to vacate the hearing."(fn3)
Assistant Court Clerk Debbie Dhyne then called Respondent prior to the scheduled hearing to alert him to the judge's basis for denial and to advise Respondent to submit a more detailed motion memorializing his verbal request to vacate. Respondent, who was practicing in another court, was not in a position to fax another pleading, and he demanded Dhyne transfer his call to Judge Olguin-Fresquez to discuss the matter. Dhyne demurred, since the judge was in trial and, in any event, court policy dictated that "calls don't go to the judge." Respondent became irate and impolite; his voice changed, becoming "curt, short, and louder," and his "tone was condescending and angry." He berated Dhyne for not understanding her job and not knowing proper procedure, after which he abruptly hung up. Dhyne testified that Respondent's conduct "made me feel belittled," and "his telephone call made me antsy for the rest of the day." Nevertheless, Dhyne said Respondent's insults did not prevent her from doing her job and, on the whole, merely caused her frustration.
At 2:30 p.m., Respondent failed to appear for the scheduled motions hearing. Although Respondent had advised the court staff verbally that the matter was resolved, Judge Olguin-Fresquez nonetheless issued a bench warrant for Curry-Elrod's arrest, with execution of the warrant stayed until a court date of March 24, 2009.(fn4) Less than an hour later, at 3:20 p.m., Respondent faxed in a more thorough motion articulating his reasons for seeking to vacate the hearing.(fn5)by then, however, the time for the hearing had already passed.
Clerk of Court Kim Hill testified that she could not locate Respondent's fax number and thus decided to telephone Respondent soon thereafter to notify him of the bench warrant and the March 24, 2009, hearing date. When she reached Respondent, she requested his facsimile number so she could fax to him a copy of the order.(fn6) Respondent replied that Hill would have to pay him $5.00 to use his facsimile machine, so Hill asked Respondent whether she could instead read the order to him. Before she could deliver the substance of the order, Respondent hung up on her. Respondent acknowledged this was discourteous but explained he did so to avoid causing further harm: he testified, "I hung up before I said something I would regret."
Prior to leaving the court that evening, Judge Olguin-Fresquez telephoned Respondent directly to confront him about his behavior with the court clerks. She left a message for him, and he attempted to return her call that night, but the two never spoke with one another. Nonetheless, Respondent telephoned Dhyne the following day to apologize for his behavior, acknowledging he treated her unfairly. Also the next day, Judge Olguin-Fresquez wrote a letter to Respondent in which she instructed him to submit all subsequent communications to the court in writing and explicitly forbade him from initiating telephone contact with the court clerks.(fn7)
Two days later, on March 19, 2009, Judge Olguin-Fresquez formally denied Respondent's second more detailed motion to vacate, noting that "Matter is moot having been filed after B[ench]W[arrant] had issued. BW is stayed to court date on 3/24/09."(fn8) Hill testified that because she could not locate Respondent's fax number, she mailed the order on Friday, March 20, 2009. Respondent testified that he did not receive the order until the night of Tuesday, March 24, 2009, after the hearing had already taken place and during which Judge Olguin-Fresquez lifted the stay on the bench warrant for Curry-Elrod's arrest.(fn9)
The People contend Respondent's conduct violated Colo. RPC 4.4(a), which proscribes a lawyer, in the course of representing a client, from using means that have no substantial purpose other than to embarrass, delay, or burden a third party. Pointing to the asperity with which he treated court staff while representing Curry-Elrod, the People argue that Respondent's conduct served no purpose other than to embarrass, delay, or burden court personnel, and thus is sanctionable under the...
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