Disciplinary Opinion
| Publication year | 2012 |
| Pages | 131 |
2012, September, Pg. 131. Disciplinary Opinion
September 2012
Vol. 41, No. 9 [Page131]
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.
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Respondent:
DAVID ROSS CALVERT
From July 6 through 8, 2011, a Hearing Board composed of Marilyn L. Robertson, a member of the bar, Melinda M. Harper, CPA/ABV, CFE, a citizen member, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a C.R.C.P. 251.18 hearing. Margaret B. Funk appeared on behalf of the Office of Attorney Regulation Counsel ("People"), and David Ross Calvert ("Respondent") appeared, represented by his counsel, Richard C. Casey. The Hearing Board now issues the following "Amended Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."(fn1)
In this consolidated action, the Hearing Board concludes Respondent's many self-serving acts of misconduct represent an acute breach of client trust warranting disbarment. In one case, Respondent plied a vulnerable client with loans in excess of one hundred thousand dollars without memorializing the terms of those loans. To secure his interest in those loan funds, he recorded a false deed of trust on the client's home in a second client's name without the clients' knowledge or consent. Respondent then attempted to persuade the second client to assign the deed of trust to Respondent's real estate company which, when taken together with his earlier acts, signals a calculated scheme to deprive his client of her home. In another case, he failed to supervise a non-lawyer while she provided direct legal services to two of his law firm's clients, resulting in the dismissal of the clients' bankruptcy petitions filed by the paralegal under Respondent's name using his federal bankruptcy court electronic log-in and password.
The People filed a complaint in case number 09PDJ064 on June 26, 2009. Following an extension of time to answer, Respondent filed an answer on October 13, 2009. A hearing in the case was set to begin April 6, 2010, but was rescheduled for January 4, 2011, when Respondent experienced significant health issues. By order of November 29, 2010, the hearing was again rescheduled to May 3, 2011, due to concerns about Respondent's health.
On December 9, 2010, the People filed a complaint in case number 10PDJ128. Respondent answered on January 14, 2011. The People then filed a motion to consolidate the two cases, which the PDJ granted on April 25, 2011, vacating the May 3, 2011, setting and scheduling the hearing in the consolidated action to begin on July 6, 2011. Immediately prior to the hearing, the PDJ declined to again continue the proceeding based on Respondent's concern that his prescribed medication might have "mind-altering" effects. The PDJ observed Respondent appeared cogent and articulate, evincing no problem recalling events or understanding questions, and the PDJ thus determined there was no reason why Respondent would be unable to participate meaningfully in the hearing.
At the hearing, the Hearing Board heard testimony from Linda Weinhauer, Stanislav Weinhauer, Cindy Weinhauer-Howe, Diane Mayberry, Desiree Mayberry, Stephen Peters, Kelly Sweeny, Jeanne Jagow, Erdal Sonmez, Afthimia Sonmez, James Reitz, Yetty Yhin, Michelle Rahn, and Respondent. The PDJ admitted the parties' stipulated exhibits 1-99 and the People's exhibits 101-102.
At the conclusion of the hearing, the PDJ instructed both parties to file written closing arguments, which were submitted on August 1, 2011. Respondent filed an amended closing argument on August 23, 2011, with no objection from the People.
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 April 13, 1962. He is registered upon the official records, attorney registration number 01828, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.(fn2) Respondent's registered business address is 5460 South Quebec Street, Suite 388, Greenwood Village, Colorado 80111.
In April 2008, Stanislav (Stanley) Weinhauer ("Mr. Weinhauer"), an immigrant from the former communist state of Czechoslovakia, hired Respondent to represent him. Mr. Weinhauer sought to reach a final settlement with his former employer, King Soopers, in a worker's compensation matter, having been injured on the job in 1993 and placed on disability. Mr. Weinhauer had been represented by several prior attorneys, but he sought Respondent's assistance when he was referred by Jana Kantor ("Kantor"), a Weinhauer family friend and a pro bono client of Respondent. Respondent and Mr. Weinhauer executed a fee agreement on July 18, 2008, which provided Respondent would be paid twenty percent of Mr. Weinhauer's gross recovery.
On February 17, 2009, Respondent met with Mr. Weinhauer and his wife, Linda Weinhauer ("Mrs. Weinhauer"), to discuss a settlement proposal. One of Respondent's staff members memorialized the comprehensive settlement package in a written memorandum: King Soopers would pay an agreed amount, plus additional funds for a Medicare set-aside (which could only be accessed by Mr. Weinhauer to pay future medical expenses related to his worker's compensation injury), and Respondent would reduce his fee to ten percent of the gross recovery.(fn4)
Although the Weinhauers were hesitant to do so, they eventually agreed to settle the case, and they visited Respondent's office to sign the settlement agreement on February 27, 2009. During this meeting, they requested that Respondent review the settlement paperwork with them and explain how the Medicare set-aside would be funded. They also expressed concern about outstanding medical bills, but Respondent assured them he would handle payment of all such bills. Relying on these representations, Mr. Weinhauer executed the settlement agreement and received all of the settlement funds due him.
During the spring of 2009, Respondent wrote letters on the Weinhauers' behalf to resolve these billing issues with the Division of Worker's Compensation, but he was not successful in doing so.(fn5) As a result, the Weinhauers began to receive calls around that time from collection agencies seeking payment of four unpaid medical bills. Because they understood from Respondent's assurances that he would handle these outstanding medical bills, the Weinhauers called Respondent, with assistance from their daughter, Cindy Weinhauer-Howe ("Weinhauer-Howe"), to voice their concerns and urge him to take action. Weinhauer-Howe and Respondent offered divergent versions of this discussion; Weinhauer-Howe testified that Respondent promised to "take care" of the bills and then hung up on her, while Respondent claimed she "excoriated" him for his failure to resolve the payment issues. Nevertheless, both agreed that the call concluded with Respondent volunteering to pay these bills out of his own pocket.
On July 23, 2009, Respondent drafted letters to the health care providers whom Mr. Weinhauer still owed for medical treatment, enclosing with each letter a check "as an offer of settlement to conclude th[e] matter to closure."(fn6) Respondent sent Mr. Weinhauer copies of these letters and copies of the front of the four checks(fn7) to demonstrate they had been paid, promising him the matter had been resolved. Despite these assurances, however, Respondent placed stop payment orders on two of the checks without notifying Mr. Weinhauer, leaving those bills unpaid. Indeed, Mr. Weinhauer only discovered these bills remained outstanding when collection agencies contacted him to seek payment.
The People argue Respondent's failure to notify Mr. Weinhauer that he never paid these two medical bills constitutes a violation of Colo. RPC 1.4(a)(2) and (3) and Colo. RPC 8.4(c). They argue that Respondent failed to comply with his duty, pursuant to Colo. RPC 1.4(a)(2) and (3), to reasonably consult with Mr. Weinhauer about the means by which his objectives were to be accomplished and to keep Mr. Weinhauer reasonably informed about the status of his matter. And they contend Respondent misled Mr. Weinhauer, in contravention of Colo. RPC 8.4(c), by promising to pay his medical bills, then failing to inform him that two bills remained unpaid following issuance of the stop...
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