Disciplinary Opinions
| Publication year | 2013 |
| Pages | 109 |
| Citation | Vol. 42 No. 3 Pg. 109 |
From the Courts
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. 10PDJ088
Complainant:
THE PEOPLE OF THE STATE OF COLORADO Respondent:
DEREKW. COLE
November 30, 2012
OPINION AND DECISION IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
On September 27 and 28, 2011, a Hearing Board composed of Douglas D. Piersel and Terry F. Rogers, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a C.R.C.P. 251.18 hearing. Adam J. Espinosa appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Derek W. Cole ("Respondent") appeared pro se. The Hearing Board now issues the following "Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
I. SUMMARY
The People allege Respondent violated Colo. RPC 1.1 by failing to competently represent his client, who was accused of sexual assault on a child, pattern of abuse. They contend that Respondent, who had never before accepted a case involving such charges, did not acquire sufficient knowledge or skill to conduct the client's defense, nor did he adequately prepare or investigate the case. The Hearing Board agrees and finds Respondent violated Colo. RPC 1.1, warranting a suspension of his law license for ninety days.
II. PROCEDURAL HISTORY
The People filed a complaint against Respondent on August 13, 2010. On September 8, 2010, Respondent filed a motion seeking an enlargement of time to file his answer, and the PDJ granted him a new deadline of September 27, 2010. On that date. Respondent filed motions seeking dismissal of the case or, in the alternative, an order compelling the People to respond to his demands for records. The PDJ denied both of Respondent's motions. After obtaining another extension of time. Respondent filed his answer on November 15, 2010.
The People then filed a motion for a more definite statement pursuant to C.R.C.P. 12(e), which the PDJ denied on January 20, 2011. The PDJ also denied on February 18, 2011, Respondent’s request to continue the scheduled disciplinary hearing. Following a telephonic status conference on March 22, 2011, the PDJ ruled on a number of discovery issues arising out of the People’s deposition of Respondent. The PDJ also made rulings concerning several issues during a pre-hearing conference held on March 28, 2011.
On the morning of April 20, 2011, the first day of a scheduled two-day hearing, the People informed the PDJ that Respondent’s former client Allen William Toner, a key witness who is currently incarcerated and was appealing his conviction, would refuse to testify. Respondent requested a continuance of the hearing due to constitutional Confrontation Clause concerns, and the People did not object to a continuance. Out of an abundance of caution, the PDJ continued the hearing. On May 11, 2011, the PDJ denied Respondent’s motions—both filed on the eve of the April hearing—seeking to recuse the PDJ and Hearing Board member Douglas D. Piersel.
The hearing was rescheduled for September 27 and 28, 2011. At that hearing, Lori Maier, Tamara (Knoepfle) Hoffscheldt, Lori McKay, Sandra Embry, Steven Jacobson, Mary Kay Bunting, [1] S.G., [2] and Respondent testified. The PDJ admitted the People’s exhibits 1–6, 8–12, 15–25, [3] and 27–28. Respondent did not move to introduce any exhibits, but at Respondent’s request the PDJ took judicial notice of the court of appeals’ unpublished decision in People v. Toner, case number 09CA0971 (June 16, 2011).[4]
III. FINDINGS OF FACT AND RULE VIOLATIONS
Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on June 7, 1985, under attorney registration number 14761. He is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.[5]
On January 27, 2003, Allen William Toner ("Toner"), along with his wife, Mary Kay Toner ("Ms. Toner"), visited Respondent in anticipation that Toner would soon thereafter face criminal charges alleging he had sexually assaulted his thirteen-year-old niece. Toner’s brother-in-law had discovered a letter in the trash, written by his daughter and addressed to Toner, discussing their sexual contact. Toner’s brother-in-law confronted Toner, who then sought Respondent’s counsel. Respondent testified that the Toners wanted an attorney "on standby to be a buffer" between Toner and law enforcement, since Toner was "basically waiting for law enforcement to show up at his door." During the meeting, the Toners paid Respondent $300.00 in cash for two future hours of attorney services;[6] Ms. Toner also recalled Respondent advising them as to the penalties associated with possible charges by showing them a table in a book concerning various classes of felonies. She did not recall any discussion of indeterminate sentencing during that consultation.
In late March 2003, an arrest warrant for Toner issued in People v. Toner, Adams County District Court case number 03CR820.[7] The Adams County District Attorney alleged that on several occasions Toner had sexually assaulted his niece, charging Toner with sexual assault on a child by a person in a position of trust, a class three felony; sexual assault on a child, pattern of abuse, a class three felony; and sexual assault on a child, a class four felony.
Toner formally retained Respondent on April 1, 2003. During a meeting that day, which lasted for seven-tenths of an hour, [8] Toner and Respondent discussed the criminal charges, negotiated the terms of the representation, and arranged for payment. Because Respondent had reason to believe that Pueblo County might also bring charges against Toner, Respondent asked Toner to sign two fee agreements for a $1, 000.00 flat fee[9] for representation in Pueblo and Adams Counties.[10]
Between April 1, 2003, and April 14, 2003—the date of Toner’s bond hearing—Respondent and Toner only spoke for six minutes.[11] Respondent appeared at the bond hearing and requested a preliminary hearing in order to preserve Toner’s rights.[12] Thereafter, Respondent did just over an hour of work in preparation for the scheduled May 27, 2003, preliminary hearing, [13] which he did not attend; Toner, who did appear, reported to the court that Respondent had been hospitalized with a pinched nerve.[14] Toner requested a continuance, which the court granted, resetting the preliminary hearing for July 7, 2003.[15]
Just a week before the preliminary hearing, Respondent submitted a written motion seeking to reschedule the preliminary hearing or, in the alternative, waive it; his motion indicated that the July 7, 2003, setting, which had not been cleared with his calendar, conflicted with a planned vacation.[16]
Having received no ruling on his motion to reschedule, Respondent did not appear before the court on July 7, 2003, and instead advised Toner to waive the preliminary hearing, even though Respondent had not obtained or reviewed the prosecution’s discovery at that point.[17] At the disciplinary hearing, Respondent defended this decision, arguing that his strategy was to curry favor with the deputy district attorney by waiving the preliminary hearing, which he thought would be a "good bargaining chip."
Not until July 15, 2003, did Respondent pick up the deputy district attorney’s discovery file in Toner’s case, [18] which included a videotape of an interview of the victim conducted by the police. Two weeks later, on July 29, 2003, Respondent and Toner appeared for an arraignment hearing, during which Toner pled not guilty.[19] The case was set for a jury trial on December 3, 2003.[20]
In late August 2003, Respondent suffered a significant stroke that, as he recalled, left him hospitalized for six to eight weeks. Respondent testified the stroke did "physical damage to his brain" and for a while it was "touch and go, " since he was "very much in a fog." Although Respondent remembered feeling "concerned for a time" about his capacity to represent others, he regained confidence: "as I got through further, I felt I was able to understand. . . . I didn’t feel I wasn’t capable of working [on] the case." Respondent also said he advised Toner that he was free to retain new counsel, but, according to Respondent, Toner declined to do so.
As a result of his incapacitation, Respondent did not appear for the motions hearing on September 26, 2003. During the motions hearing, the deputy district attorney notified the court that Respondent’s paralegal had contacted him with the news of Respondent’s stroke, and Toner mentioned that he had received the same information from Respondent’s associate.[21] Following his recovery, Respondent did not seek additional time to file pre-trial motions concerning application of the spousal privilege, the propriety of piercing...
To continue reading
Request your trial