Disciplinary Opinion
| Publication year | 2013 |
| Pages | 91 |
From the Courts Colorado Disciplinary Cases
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. 12PDJ018 Complainant:
THE PEOPLE OF THE STATE OF COLORADO Respondent:
DAVID A. HARPER
September 21, 2012
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING COMPLAINANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Presiding Disciplinary Judge ("the Court") on the following pleadings: (1) "Respondent's Motion for Summary Judgment under C.R.C.P. 56(h), " filed by William Muhr, counsel for David A. Harper ("Respondent") on August 15, 2012; (2) "Complainant's Response to Respondent's Motion for Summary Judgment under C.R.C.P. 56(b), " filed by Adam J. Espinosa, Office of Attorney Regulation Counsel ("the People") on August 29, 2012; (3) Respondent's "Reply to Complainant's Response to Respondent's Motion for Summary Judgment under C.R.C.P. 56(h), " filed on September 5, 2012; (4) "Complainant's Motion for Summary Judgment, " filed on August 14, 2012; (5) Respondent's "Response to Complainant's Motion for Summary Judgment, " filed on August 28, 2012; (6) "Complainant's Reply to Motion for Summary Judgment, " filed on September 4, 2012; and (7) the People's "Addendum to Complainant's Reply to Motion for Summary Judgment, " filed on September 12, 2012.[1]
I. Background
Respondent was admitted to the bar of the State of Colorado on November 29, 1985, and is listed upon the official records under attorney registration number 15400, with the business address of 2015 W. Cheyenne Road, Colorado Springs, Colorado 80906.[2] He is thus subject to the jurisdiction of the Court in these disciplinary proceedings.[3]
This is a reciprocal discipline case arising out of Respondent's suspension from the practice of law in the State of Florida. C.R.C.P. 251.21(d) requires disciplinary counsel to file a complaint against a Colorado attorney who has been publicly disciplined in another jurisdiction. The People filed their complaint in this matter on February 17, 2012, and Respondent filed an answer on April 16, 2012. A three-day hearing was set to commence on October 10, 2012.
II. Legal standards
C.R.C.P. 56(h)
C.R.C.P. 56(h), the rule under which Respondent filed his motion for summary judgment, provides:
Determination of a Question of Law. At any time after the last required pleading, with or without supporting affidavits, a party may move for determination of a question of law. If there is no genuine issue of any material fact necessary for the determination of the question of law, the court may enter an order deciding the question.
The Colorado Supreme Court has recognized that the purpose of this rule is:
to allow the court to address issues of law which are not dispositive of a claim (thus warranting summary judgment) but which nonetheless will have a significant impact upon the manner in which the litigation proceeds. [Resolving such issues] will enhance the ability of the parties to prepare for and realistically evaluate their cases . . . and allow the parties and the court to eliminate significant uncertainties on the basis of briefs and argument, and to do so at a time when the determination is thought to be desirable by the parties.[4]
When a court reviews a motion filed under C.R.C.P. 56(h), "[t]he nonmoving party is entitled to all favorable inferences."[5]
C.R.C.P. 56(c)
The Court reviews the People’s motion for summary judgment under C.R.C.P. 56(c). That rule 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.[6] 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.[7]
The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party.[8] This burden is satisfied by demonstrating that there is an absence of evidence in the record to support the nonmoving party’s case.[9] 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.[10] 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.[11]
C.R.C.P. 251.21
In reciprocal discipline proceedings, except as otherwise provided by rule, "a final adjudication in another jurisdiction of misconduct constituting grounds for discipline of an attorney shall . . . conclusively establish such misconduct."[12] C.R.C.P. 251.21 directs the Court to order the same discipline as was imposed in a sister jurisdiction unless certain exceptions exist.[13] As relevant here, the same discipline should be imposed unless the Court determines that, as Respondent alleges, the disciplinary proceeding in Florida did not comport with due process requirements.[14]
Respondent is mistaken in his view—which he does not support with any legal authority—that he is "entitled to an independent review of the actions taken in the foreign bar proceedings."[15] The legality and validity of already-adjudicated proceedings may not be collaterally attacked or re-tried in reciprocal disciplinary proceedings.[16] "There is no need for a de novo repetition of the entire process" when "another jurisdiction has already afforded the attorney a disciplinary procedure that includes notice, an opportunity to be heard, sufficient proof of misconduct, and a determined sanction."[17]
In reviewing Respondent’s due process arguments, the Court is mindful that, while a respondent attorney is entitled to due process in disciplinary proceedings, [18] the lawyer need not be afforded the full panoply of constitutional safeguards granted to defendants in criminal trials.[19] The Colorado Supreme Court has found that disciplinary proceedings comported with due process standards where respondents had notice of the proceedings, were present or were represented at the proceedings, had the opportunity to question witnesses and to introduce evidence, and were able to file an appeal.[20]
Where there are sufficient undisputed facts material to a due process determination under C.R.C.P. 251.21(d)(1), the Court may resolve such a case as a matter of law[21] based on Colorado’s due process standards.[22]
III. Undisputed Material Facts
Respondent was licensed to practice law in Florida in 1985.[23] Florida bar counsel filed a complaint against Respondent and served a copy upon him on December 21, 2009.[24] The complaint alleged that Respondent engaged in misconduct while assisting his parents in litigation filed against United States Automobile Association ("USAA") in Seminole County, Florida, in February 2005 (Harper v. USAA, Case Number 05-CA-401).[25]
Judge Alan Dickey presided over the USAA lawsuit beginning in 2006.[26] In June 2008, disagreements arose in the case regarding the coordinated scheduling of hearings.[27] After Judge Dickey issued rulings adverse to Respondent, Respondent moved to disqualify him.[28] The case was reassigned to Judge Nancy Alley, who Respondent moved to disqualify on the grounds that she worked in the same division as Judge Dickey.[29] He also sought Judge Alley’s removal by filing a petition for writ of prohibition in the court of appeals.[30] Judge Alley ultimately recused herself and filed a grievance against Respondent.[31]
Judge Robert L. Pegg served as referee in the Florida disciplinary proceeding. Prior to the hearing, Judge Pegg quashed Respondent’s subpoenas of four members of the grievance committee and denied Respondent’s motion to disqualify him.[32] A three-day disciplinary hearing commenced on September 28, 2010.[33] Respondent represented himself at that hearing.[34] He called four witnesses and entered fourteen documents into evidence.[35]
Judge Pegg issued a "Report of Referee" on October 26, 2010.[36] The report concluded that Respondent violated Florida Rules of Professional Conduct 41.1 (a lawyer shall provide competent representation), 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation), 4-3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), 4-8.2(a) (a lawyer shall not knowingly or recklessly make a false statement concerning a judge’s integrity), 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), 4-8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice), and 4-3.4(c) (a lawyer shall not knowingly disobey an...
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