Disciplinary Opinion
| Publication year | 2013 |
| Pages | 115 |
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.l2PDJ022 (consolidated with 12PDJ072 andl2PDJ080)
THE PEOPLE OF THE S TATE OF COLORADO, Complainant:
v.
JOHN A. MCNAMARA, Respondent:
September 10, 2013
OPINION AND DECISION IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
On July 15, 2013, a Hearing Board comprised of James D. Brown and Richard P. Holme, members of the bar, and William R Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a hearing pursuant to C.RC.P. 251.18. Timothy J. O'Neill appeared for the Office of Attorney Regulation Counsel ("the People"), and John A. McNamara III ("Respondent") appeared pro se. The Hearing Board now issues this "Opinion and Decision Imposing Sanctions Pursuant to C.RC.P. 251.19(b)."
I. SUMMARY
Despite being prohibited from practicing law by two orders of suspension, Respondent failed to promptly notify clients that he could no longer represent them. Rather, he knowingly continued to practice law in violation of his suspension orders, solicited new clients, and accepted fees from them. To conceal his unauthorized practice of law, Respondent assumed the identity of a retired lawyer, impersonating that lawyer in pleadings and in a telephone court conference. Because honesty, candor, and a due respect for the rule of law are cornerstones of the legal profession, misconduct such as Respondent's cannot and will not be tolerated. [1]Respondent must therefore be disbarred.
II. PROCEDURAL HISTORY
The People filed a complaint with ten claims in case number 12PDJ022 on February 29, 2012, and Respondent answered the complaint on May 24, 2012. On October 19, 2012, Respondent moved to recuse hearing board members Brown and Holme pursuant to C.RC.P. 97, alleging they would be unable to treat him fairly. The PDJ denied that motion on November 16, 2012, reasoning that Respondent had not established either apparent or actual bias warranting recusal.
On October 1, 2012, the People filed a complaint in case number 12PDJ072, pleading an additional forty claims. Respondent answered on October 22, 2012. The People then filed a complaint in a third case, case number 12PDJ080, on November 2, 2012, asserting seven claims and seeking to consolidate the case with the prior two. The PDJ consolidated the three cases into the present action on November 21, 2012. Respondent filed a combined motion to dismiss and an answer to the claims in case number 12PDJ080 on December 7, 2012; the PDJ denied Respondent's motion to dismiss on January 11, 2013.
An at-issue conference in the consolidated action was held January 4, 2013. During that conference, a five-day hearing was set for July 15-19, 2013.
On May 20, 2013, the People sought summary judgment on twelve of the claims pled in case number 12PDJ072. On June 3, 2013, just a day before his response was due, Respondent sought an extension of time.[2] Although the PDJ found that Respondent had failed to elucidate why he could not timely respond to the People's motion, the PDJ granted Respondent an extension until June 19, 2013, in the interests of judicial efficiency and because the PDJ felt he would benefit from Respondent's response. On June 19, 2013, Respondent requested additional time to respond, which the People opposed; the PDJ declined to grant another extension during the prehearing conference on June 24, 2013.
Also during the prehearing conference—which Respondent did not attend—the PDJ announced that he would grant summary judgment on eleven of the twelve claims for which the People sought such disposition: Claims IV, V, VI, DC, XI, XXXIII, XXXIV, XXXV, XXXVIII, XXXDC, and XL in case number 12PDJ072.[3] As such, the PDJ declared that the five-day trial scheduled to commence July 15, 2013, would be converted to a one-day sanctions hearing on the eleven claims on which judgment had entered and that the remaining forty-six claims would be placed in abeyance.
On June 21, 2013, the People filed a motion for discovery sanctions pursuant to C.R.C.P. 37(d) and 251.18(d), citing as grounds Respondent's failure to appear at his two-day deposition and his refusal to respond to written discovery requests. Although Respondent's response was due on July 5, 2013, he instead filed on that date a motion for enlargement of time to respond and filed three days later the response itself. The PDJ did not formally grant Respondent's request for additional time but nevertheless considered the response when reviewing the People's motion for sanctions. The PDJ granted the People's motion and awarded them the reasonable expenses they incurred in attempting to depose Respondent.
At the start of the sanctions hearing, Respondent orally moved to recuse the PDJ, whom Respondent argued was biased. Respondent expressed concern that the PDJ would retaliate against him for filing a federal lawsuit and for requesting that the Denver District Attorney bring criminal charges against the PDJ. [4]The PDJ denied that motion, relying on C.RC.P. 97, [5] Moody v. Corsentino, [6]and In re Mann.[7]
During the sanctions hearing, neither the People nor Respondent called any witnesses to testify or introduced any exhibits. Respondent also rebuffed several invitations to testify, offer evidence in mitigation, or generally address the facts underlying this case. Respondent asserted that the outcome of the case was predetermined and that his only chance of relief was to seek a remedy in federal district court. Complaining that he had been repeatedly denied extensions of time in this matter, he contended that to begin to participate in t he proceedings at this stage would, in essence, waive his argument that he needed additional time to respond to the People's claims. He pledged to present legal arguments and mitigating evidence in a C.R.C.P. 60(b) motion after issuance of the Hearing Board's sanctions decision.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 16, 1990, under attorney registration number 19382. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings.[8]
On July 15, 2011, a hearing board issued a "Decision and Order Imposing Sanctions Pursuant to C.RC.P. 251.19(b)" in case number 10PDJ119, suspending Respondent for one year and one day, all but three months stayed, with the requirements that he seek reinstatement pursuant to C.RC.P. 251.29(c) and that he thereafter complete one year of probation, with conditions. Respondent appealed, and the hearing board stayed his sanction pending appeal.
On September 22, 2011, the Colorado Supreme Court issued an order in case number 11SA245, immediately suspending Respondent from the practice of law for failure to cooperate with the People during a disciplinary investigation. On September 23, 2011, a copy of this order was sent via the state's mail services division to Respondent's registered address: P.O. Box 100273, Denver, Colorado 80250. The Colorado Supreme Court lifted Respondent's immediate suspension on November 8, 2011.
However, on November 23, 2011, the Colorado Supreme Court dismissed Respondent's appeal in case number 10PDJ119. Soon thereafter, jurisdiction was returned to the PDJ, who suspended Respondent effective December 20, 2011. The order was sent to Respondent's email account and to his registered address by first-class mail. Respondent has not been reinstated to the practice of law, and his license remains suspended.
The Doll-Shearer Matter—Claims IV, V, and VI
On August 12, 2011, Christine Doll-Shearer retained Respondent to represent her in an agister's hen action. Doll-Shearer signed Respondent's fee agreement and paid him $800.00 by personal check. On August 30, 2011, Respondent filed an entry of appearance with the Arapahoe County District Court in Doll-Shearer's case.
After the People had petitioned to immediately suspend his license for failing to cooperate with a disciplinary investigation, Respondent appeared in court with Doll-Shearer on September 15, 2011, for a show cause hearing. At that hearing, the opposing party did not appear, and the matter was reset for September 27, 2011. Following the hearing, Doll-Shearer emailed Respondent with a list of witnesses to contact. She also called him on September 22, 2011, to inquire about the status of her case. That same day, Respondent was immediately suspended by the Colorado Supreme Court pursuant to C.RC.P. 251.8.6 for failure to cooperate with a disciplinary investigation.
Having received no response from Respondent, Doll-Shearer requested an update on September 25, 2011. The next day...
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