Disciplinary Opinions
| Jurisdiction | Colorado,United States |
| Citation | Vol. 41 No. 4 Pg. 119 |
| Pages | 119 |
| Publication year | 2012 |
2012, April, Pg. 119. Disciplinary Opinions
April 2012
Vol. 41, No. 4 [Page119]
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 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 of The Colorado Lawyer.
Case No. 10PDJ095
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Respondent:
PETER B. ALBANI
On April 5 and 6, 2011, a Hearing Board composed of David M. Herrera and Robert A. Millman, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a two-day hearing pursuant to C.R.C.P. 251.18. Elizabeth Espinosa Krupa and Adam J. Espinosa appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Peter B. Albani ("Respondent") was represented by Leonard Berenato and David Worstell. The Hearing Board now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
Respondent and his co-counsel represented a client charged with multiple felonies for allegedly stealing $1,200,000.00 from her employer. During two in camera conferences, held without their client present, Respondent and his co-counsel made statements to the prosecutors and the judge expressing their disagreement with their client's decision to reject plea offers in order to combat any future ineffective assistance of counsel claim his client might bring and to disclose to the court a developing conflict in the attorney-client relationship. By doing so, Respondent failed to maintain the confidences of his client in violation of Colo. RPC 1.4(a), 1.6(a), 1.7(b), and 1.8(b). In concealing these two in camera proceedings from his client, Respondent violated Colo. RPC 8.4(c) and 8.4(d).
Even though Respondent attempted to preserve his own interests by divulging client confidences without his client's consent, the Hearing Board cannot find, under the facts here, that Respondent violated Colo. RPC 1.2(a). Nor does the Hearing Board find that Respondent's statements to the tribunal violated Colo. RPC 3.3(a)(1) or 8.4(c).
In light of Respondent's significant experience in the practice of law, but also taking into account several mitigating factors, the Hearing Board determines that a suspension for one year and one day, all stayed upon the successful completion of a two-year period of probation with conditions, is warranted.
On September 15, 2010, the People filed a complaint alleging that Respondent violated Colo. RPC 1.2(a), 1.4(a), 1.6(a), 1.7(b), 1.8(b), 3.3(a)(1), 8.4(c), and 8.4(d) with respect to his conduct in two in camera conferences held without his client present. Respondent filed an answer on November 1, 2010. The parties filed "Stipulated Facts and Law" on March 25, 2011. During the hearing on April 5 and 6, 2011, the Hearing Board heard testimony and considered the stipulated facts and law, the People's stipulated exhibits 1-9, and Respondent's exhibit A.
The Hearing Board finds the following facts and rule violations have been established by clear and convincing evidence. Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on October 30, 1984. He is registered upon the official records, attorney registration number 13982, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.(fn1)
In 2004, Patricia Ragusa ("Ragusa") hired Respondent and his law partner, Robert Grossman ("Grossman"), to defend her against fifty-one counts of theft and attempted theft and fifty-one counts of computer crime and attempted computer crime filed by the Jefferson County District Attorney's Office. The prosecution alleged that she stole $1,200,000.00 from her employer by wire transfers made from her computer.(fn2) Ragusa paid Respondent and Grossman $110,000.00 for their representation. Following a trial in which she was convicted on all counts, Ragusa terminated Grossman and Respondent's services in December 2005.
Ragusa's case was tried before a jury from November 7 to 16, 2005, with Judge Tamara Russell presiding. On November 7, 2005, before the jury was selected, the court held an in camera proceeding with only Respondent, Grossman, and the prosecution present. Respondent initiated this proceeding, and at Respondent's behest, his client was not privy to the discussions that followed.
During this in camera proceeding, Respondent disclosed to the court the district attorneys' plea offers and his discussions with Ragusa concerning those offers. Respondent began by informing the court that he believed it was "appropriate to make a brief Schultheis record."(fn3) Respondent revealed "that the district attorney's office . . . [has] made us a number of plea bargain offers that we have advised our client to take unconditionally."(fn4) Respondent further explained that he and Grossman had "met with [Ragusa] repeatedly and were very adamant that [they] felt she should take that deal,"(fn5) and that "[Ragusa] led us to believe that she was going to take the deal" and they believed it was "folly for her not to have taken the deal, the final deal that was offered by the People."(fn6)
Respondent offered the following additional statements: (1) "We do not believe that [Ragusa is] incompetent";(fn7) (2) "[W]e do not believe she is insane";(fn8) (3) "[W]e believe that her decision is flat out wrong";(fn9) (4) "[W]e believe that her choice is just a very, very poor one";(fn10) and (5) "[W]e have advised [Ragusa] that Mr. Grossman and I have and will carry on with dignity. We will not act like we hate [the prosecutors] and that we do not enjoy this line of work."(fn11) The court noted that Ragusa had "been advised on more than one occasion about [her potential sentence] by a couple of different judges" and decided to go forward with the trial.(fn12)
At the conclusion of the in camera proceeding, Respondent told the court that he would "not advise [Ragusa] of this [proceeding] should she ask [him and Grossman] what this was about. We don't think it was appropriate. It would only throw a monkey wrench thinking that we're against her."(fn13)
Ragusa testified that she did not give Respondent consent to speak to Judge Russell or the district attorneys about communications she had with her attorneys outside her presence. Respondent admits that the intent of this in camera proceeding was, in part, to make a record to protect himself in the event Ragusa brought an ineffective assistance of counsel claim against him in the future and that he did not consider how his conduct impacted his duties to Ragusa.(fn14) Respondent also felt that he had a duty to the tribunal to disclose the fact that Respondent did not accept the plea and he wanted to give the judge insight into an appropriate sentencing range. Respondent also testified that he did not intend to make a Schultheis record or to deceive the court, as at the time he understood that a Schultheis hearing concerned a client who intended to offer perjured testimony; however, this was not Respondent's concern.
On November 9, 2005, following a recess during the prosecution's case-in-chief, the court held another in camera proceeding, again without Ragusa. It is unclear from the record who requested this hearing. Respondent began the proceeding by stating that "a most fortuitous situation happened that under the guise of calling back to talk to us about a question, a sequestration potential violation, that gave us an opportunity to come into chambers . . . ."(fn15)
Respondent also revealed that during the recess he and Grossman were subjected to "perhaps the most vicious attack I've ever had to get from a client saying that I'm not fighting for her. And that I don't-if I can, not to be rude, but to quote her, don't give a sh[**], don't give a f[***] and putting on a patsy defense."(fn16) Respondent wanted to make a "record, because, as [he] anticipated prior to this trial, [Ragusa] seems to be trying to make us a target. . . ."(fn17) He further stated, "I just thought, wow, this [sequestration problem] is fantastic because now we can go back and just cool our jets and make a record of what we perceive to be going on."(fn18)
During the in camera proceeding, Grossman revealed that Ragusa was "expressing that she may not want us continuing to represent her."(fn19) The court asked the attorneys whether Ragusa wanted Respondent and Grossman to withdraw from representation and whether Ragusa wanted them to discontinue the defense now or in a future case.(fn20) Grossman...
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