Disciplinary Opinion
| Publication year | 2012 |
| Pages | 111 |
2012, May, Pg. 111. Disciplinary Opinion
May 2012
Vol. 41, No. 5 [Page111]
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. 10PDJ137 (consolidated with 11PDJ006)
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Respondent:
DAVID J. GREENE
October 3, 2011
OPINION AND DECISION IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
On August 1 and 2, 2011, a Hearing Board composed of John M. Lebsack and Paul J. Willumstad, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a hearing pursuant to C.R.C.P. 251.18. Adam J. Espinosa appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and David J. Greene ("Respondent") appeared with counsel, Gary D. Fielder. The Hearing Board now issues the following "Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
The People allege Respondent breached numerous Rules of Professional Conduct in his representation of four clients. The PDJ determined earlier in this proceeding, on the People's motion for summary judgment, that Respondent violated Colo. RPC 1.3 by acting without the requisite diligence in one client matter, and he violated Colo. RPC 1.15(i)(3) by failing to safeguard client funds in another matter. We now conclude that, through the course of the four matters at issue, Respondent also violated Colo. RPC 1.1, 1.4(a)(3), 1.4(a)(4), and 1.16(d) by inadequately communicating with clients, failing to represent a client competently, and unreasonably delaying the return of a client's file after the representation ended. We do not, however, find clear and convincing evidence that Respondent contravened Colo. RPC 1.15(a), 8.1(a), or 8.4(c), as alleged by the People. In light of the nature of Respondent's misconduct, the ramifications of that misconduct, and the aggravating and mitigating factors here, we determine the appropriate sanction is suspension for nine months, with three months served and six months stayed pending the successful completion of a two-year probationary period with conditions.
On December 21, 2010, the People filed a complaint in case number 10PDJ137, alleging Respondent violated Colo. RPC 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(a), 1.15(i)(3), 1.16(d), and 8.4(c) with respect to two clients, Ky Nguyen ("Nguyen") and Gertrude Barnes ("Barnes"). Respondent filed an answer on February 7, 2011.
On February 1, 2011, the People filed a second complaint-this time under case number 11PDJ006-alleging Respondent violated Colo. RPC 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 8.1(a), and 8.4(c) in matters involving two additional clients, Dennis Justi ("Justi") and Anna Caraghar ("Caraghar"). Respondent answered the second complaint on February 23, 2011. On April 29, 2011, the PDJ consolidated case number 11PDJ006 into case number 10PDJ137.
The People filed a motion for summary judgment on June 2, 2011, to which Respondent responded on July 7, 2011. The People sought summary judgment as to all of the claims originally pled under case number 10PDJ137. Although Respondent admitted he violated Colo. RPC 1.15(i)(3) in the Barnes matter, he otherwise contested entry of summary judgment. The PDJ entered summary judgment on Claims I (Colo. RPC 1.3) and IX (Colo. RPC 1.15(i)(3)) of the complaint in case number 10PDJ137, but the PDJ denied summary judgment as to the remainder of the claims at issue.
During the hearing on August 1 and 2, 2011, the Hearing Board heard testimony and considered stipulated exhibits 1-19, Respondent's exhibits A - I, and the People's exhibits 20 - 36 and 38 - 40. At the conclusion of the hearing, the PDJ permitted Respondent to file a supplemental brief outlining Respondent's proposed course of action to ensure his future compliance with the Rules of Professional Conduct. The PDJ also allowed the People to file a responsive brief.
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 September 29, 1978. He is registered upon the official records under attorney registration number 08994 and is thus subject to the jurisdiction of the Colorado Supreme Court, the PDJ, and the Hearing Board in these disciplinary proceedings.(fn1) Respondent's address is 5775 Olde Wadsworth Boulevard, #R700, Arvada, Colorado 80002.
On October 30, 2005, Respondent filed a complaint in Adams County District Court on behalf of Nguyen, whose son was killed in a November 2003 car accident. In this lawsuit, Nguyen asserted wrongful death claims as father and executor of his son's estate against the E-470 Public Highway Authority ("E-470"), the Colorado Department of Transportation ("CDOT"), Ideal Fencing Corporation ("Ideal"), and American Civil Constructors, Inc. ("ACC"). The district court dismissed the claims against E-470 in pre-trial litigation.(fn2) On June 5, 2007, the court dismissed Nguyen's claims against CDOT on governmental immunity grounds and conditionally dismissed the claims against Ideal and ACC on the basis that those companies lacked responsibility for the highway guardrail at issue.(fn3) Although the court stayed the conditional dismissal for thirty days to permit Nguyen to request an opportunity to conduct additional discovery regarding Ideal and ACC, Respondent did not exercise that right; he testified at the disciplinary hearing that he had concluded CDOT was accountable for the guardrail, so he had no basis for contesting the dismissal of Ideal and ACC.
On December 18, 2007, the court reviewed the status of the Nguyen matter. In light of several pending motions for reconsideration, for attorney's fees, for amendment of the complaint, and for extensions of time, the court ordered Respondent to file a status report within fifteen days indicating which issues remained before the court and whether Nguyen intended to move forward with the case.(fn4) Although the order specifically noted that failure to file the requested status report would lead to an order dismissing the case in its entirety,(fn5) Respondent filed no status report with the court.(fn6)
A status conference was then set in Nguyen's matter for February 13, 2008.(fn7) Although Respondent concedes he was served with the notice of status conference, he did not see the notice and therefore failed to attend the conference. He attributes this error to the facts that he no longer employed a secretary and the notice arrived while he was busy caring for his children at Christmastime. At the status conference, the court determined Respondent had previously received appropriate notice that Nguyen's case would be dismissed if Respondent did not file the ordered status report.(fn8) The court entered a written order ruling that Respondent had not complied with its earlier directive and dismissing Nguyen's case without prejudice.(fn9)
As noted above, the PDJ granted summary judgment on the People's Colo. RPC 1.3 claim, determining as a matter of law that Respondent did not represent Nguyen with the requisite diligence and promptness.(fn10) Even though the evidence does not establish that Nguyen's case would have remained viable if Respondent had submitted the status report and attended the status conference, his failure to take those actions amounted to a violation of his duty to diligently represent his client.
Nguyen related at the disciplinary hearing that after the court dismissed his case, Respondent told him only that his case had been "denied" and that the judge did not "agree with the case." According to Nguyen, Respondent never mentioned that he had failed to comply with court orders and that his inaction precipitated the dismissal. Respondent, for his part, made varying and inconsistent assertions on this score: he testified on direct examination that he remembered telling Nguyen his failure to attend the status conference had led to the dismissal; he said on cross-examination that he did not remember exactly how he explained the dismissal to Nguyen; and he admits in his answer he did not tell Nguyen that his case was dismissed due to his failure to appear for the status conference.(fn11) Respondent's equivocation impugns his reliability as a witness on this issue; meanwhile, even though Nguyen has a limited command of English(fn12) and may not have correctly recalled the precise terms used by Respondent, we find Nguyen credible and we believe his testimony that he did not realize Respondent had failed to comply with court directives.
The...
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