Disciplinary Opinion
| Publication year | 2013 |
| Pages | 151 |
From the Courts Colorado Disciplinary Cases
Disciplinary Opinion
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 CRCP 251.16. The Court also made extensive revisions to the rules governing the disciplinary process, repealing CRCP 241 et seq., and replacing those rules with CRCP 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 CRCP 251.18(d). Disciplinary Opinions may be appealed in accordance with CRCP 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. 12PDJ012
Complainant: THE PEOPLE OF THE STATE OF COLORADO
Respondent: PAUL A. GARGANO
June 1, 2012
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, GRANTING COMPLAINANT'S MOTION FOR SUMMARY JUDGMENT, AND IMPOSING SANCTIONS PURSUANT TO CRCP. 251.21
This matter is before the Presiding Disciplinary Judge ("the Court") on cross-mot ions for summary judgment filed by Paul A. Gargano ("Respondent"), who is representing himself pro se, and Kelly A. Murphy, Office of Attorney Regulation Counsel ("the People").[1]
Respondent filed "Respondent's Motion for Summary Judgment" on March 26, 2012.[2] On April 17, 2012, the People filed "Complainant's Response in Opposition to Respondent's Motion for Summary Judgment," followed on April 30, 2012, by "Complainant's Motion for Summary Judgment."[3] After Respondent filed "Repspondents [sic] Opposition to Petition for Summary Judgement" on May 15, 2012,[4] the People filed "Complainant's Reply in Support of Motion for Summary Judgment" on May 22, 2012.
I. LEGAL STANDARDS
CRCP. 56(c) provides that summary judgment is appropriate when the pleadings, affidavits, depositions, or admissions show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.[5] Summary judgment permits the parties to pierce the formal allegations of the pleadings and save the time and expense involved in a trial when, as a matter of law and based on undisputed facts, one party could not prevail.[6]
The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party.[7] This burden is satisfied by demonstrating that there is an absence of evidence in the record to support the nonmoving party's case.8 Once the moving party meets this initial burden, the burden shifts to the nonmoving party to establish that there is a triable issue of fact.[9] The nonmoving party cannot rest upon mere allegations or denials; rather, it must present specific facts showing the existence of a genuine and material factual dispute.[10]
In reciprocal discipline proceedings, "a final adjudication in another jurisdiction of misconduct constituting grounds for discipline of an attorney shall . . . conclusively establish such misconduct."[11] C.RC.P. 251.21 directs the Court to order the same discipline as was imposed in a sister jurisdiction unless certain exceptions exist.[12] As relevant here, the same discipline should be imposed unless it is determined that, as Respondent alleges, the procedure followed in Massachusetts did not comport with due process requirements.[13]
II. UNDISPUTED MATERIAL FACTS[14]
Respondent has taken the oath of admission, was admitted to the bar of the State of Colorado on July 14, 1994, and is registered upon the official records under attorney registration number 24262.[15] He is thus subject to the jurisdiction of the Court in these disciplinary proceedings.[16] At present, Respondent is on inactive status in Colorado.[17] He has also been admitted to the bar of the Commonwealth of Massachusetts.[18]
On August 27, 2009, Massachusetts bar counsel filed a petition for discipline against Respondent with the Massachusetts Board of Bar Overseers of the Supreme Judicial Court ("BBO").[19] A four-day hearing regarding Respondent's alleged violations of the Massachusetts Rules of Professional Conduct commenced before the hearing committee on January 20, 2010.[20] During the hearing, Respondent represented himself with the assistance of two of his associates.[21] He testified in his own defense and called one other witness to testify.[22]
The BBO heard testimony regarding three separate counts of Respondent's misconduct during the hearing. The first count concerned a fee dispute arising during Respondent's representation of the same client in three separate matters (a workers' compensation claim, a tort claim, and an eviction action).[23]
The second count concerned two lawsuits that Respondent lodged in Massachusetts federal district court in December 2003 and April 2006 against contractors who had been building a vacation home for him in the Cayman Islands (the "Zimmer" matter).[24] The federal court dismissed the first suit for lack of personal jurisdiction, and the First Circuit Court of Appeals denied Respondent's appeal.[25] The federal court likewise dismissed the second Zimmer suit.[26] After Respondent filed a motion for reconsideration, the court assessed Rule 11 sanctions against him.[27]
The third count in the Massachusetts proceeding concerned a lien that predecessor counsel had filed in a workers' compensation matter in which Respondent served as successor counsel.[28] Bar counsel alleged that Respondent falsely testified at a deposition and that he directed his associate to draft- and his client to sign-a false affidavit and disclosure form indicating no outstanding liens had been placed upon the workers' compensation matter.[29]
In the course of the Massachusetts disciplinary proceedings, there were two procedural developments in particular that Respondent now alleges amounted to violations of his due process rights. First, bar counsel moved for an order of issue preclusion in regard to the Zimmer matter on December 31, 2009.[30] On January 19, 2010, the day before the hearing commenced, the hearing committee issued an order establishing, under standards governing issue preclusion, that Respondent had made an objectively false statement of fact to the federal court.[31] Sometime after the hearing, bar counsel filed two motions to reopen the disciplinary proceeding in order to permit the filing of two decisions that were issued after the close of the hearing.[32] In its report, the hearing committee noted that it could have simply taken official notice of these two decisions, but instead it permitted bar counsel's motions to clarify the record.[33] The second procedural development that Respondent complains of is bar counsel's failure to call several witnesses to testify as to the lien-related claims, after bar counsel listed those persons as witnesses.[34]
On September 17, 2010, the hearing committee submitted a hearing report to the BBO, recommending that Respondent be indefinitely suspended from the practice of law.[35] With respect to Count I, the hearing committee concluded that Respondent had failed to explain to his client the basis for his fee, neglected to place in escrow disputed funds, and neither accounted for nor credited to the client a retainer, in violation of Mass. R Prof. C. 1.5(b), 1.15(b)(2)(H), and 1.15(c)-(d).[36]
Under Count II, the committee determined that Respondent had filed a frivolous lawsuit and knowingly made false statements in violation of Mass. R Prof. C. 3.1, 3.3(a)(1), and 8.4(d) and (h).[37] The hearing committee in the Massachusetts disciplinary matter determined that the only meaningful difference between the two Zimmer suits was that Respondent claimed in Zimmer II that the contractors resided in the Cayman Islands rather than Pennsylvania.[38] The hearing committee found Respondent had misrepresented to the federal court that the new complaint differed from the old complaint in that it relied on a certain case, when in fact Respondent had relied upon the same case in Zimmer I.[39] In addition, the hearing committee concluded that Respondent knowingly made false statements in his motion for reconsideration.[40]
Finally, in its analysis of Count III, the committee concluded Respondent had knowingly caused or permitted a client's affidavits to be prepared or filed despite their falsity and had intentionally given false, misleading, or deceitful testimony at a deposition, thereby violating Mass. R Prof. C. 3.3(a)(1), 3.3(a)(4), 3.4(b), and 8.4(c)-(d), and (h).[41]
Respondent appealed on October 29, 2010.[42] On February 14, 2011, the BBO issued a decision rejecting Respondent's due process arguments and adopting the hearing committee's findings of fact, conclusions of law, and recommendation of indefinite suspension.[43]
On July 6, 2011, a single justice of the Commonwealth of Massachusetts Supreme Judicial Court for Suffolk County entered an order indefinitely suspending Respondent from the practice of law, with the opportunity to petition for reinstatement four years and nine months from the effective date of the order of suspension.[44] The single justice found that the BBO's findings were supported by substantial evidence, and he adopted the BBO's conclusions of law.[45] In addition, the justice rejected Respondent's contention that the proceedings had violated his due process rights.[46]
On November 21, 2011, the...
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