Disciplinary Opinions
| Publication year | 2014 |
| Pages | 99 |
| Citation | Vol. 43 No. 2 Pg. 99 |
From the Courts Colorado Disciplinary Cases
Disciplinary Opinions
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.r 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. 11 PDJ084 (consolidated with 12PDJ004, 12PDJ088, and 13PDJ002)
THE PEOPLE OF THE STATE OF COLORADO, Complainant
v.
DAYNEL L. HOOKER, Respondent
October 18, 2013
OPINION AND DECISION IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(c)
On August 29, 2013, the Presiding Disciplinary Judge ("the Court") held a sanctions hearing pursuant to C.R.C.P. 251.15(b). Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Daynel L. Hooker ("Respondent") appeared with her counsel, David C. Little. The Court now issues the following "Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(c)."
I. SUMMARY
Absent significant mitigating factors, disbarment is generally appropriate when an attorney knowingly converts client funds or abandons the practice of law, causing serious injury or potential injury to clients. In this case, Respondent abandoned six clients, converted funds in six matters, practiced law without a license in another, and then failed to cooperate in the resulting disciplinary proceedings. The Court finds the appropriate sanction is disbarment.
II. PROCEDURAL HISTORY
The People filed their complaint in case number 11PDJ084 on November 8, 2011. Respondent failed to answer, and the Court granted the People's motion for default on December 20, 2012. On January 13, 2012, the People filed a complaint in case number 12PDJ004.
On December 8, 2011, the People sought a contempt citation pursuant to C.R.C.P. 251.10(b)(2) against Respondent, filed under case number 11PDJ093. On January 26, 2012, the Court held a status conference in that case. Respondent asserted that she was unable to understand the disciplinary proceedings pending against her and could not defend herself. The next day, the Court placed case numbers 11PDJ084, 11PDJ093, and 12PDJ004 in abeyance, initiated a disability proceeding pursuant to C.RC.P. 251.23(c), and ordered Respondent to undergo an independent medical examination ("IME"). Dr. Michael Sturges conducted the IME on February 11, 2012, and issued a report on February 22, 2012. The Court placed Respondent on disability inactive status on March 23, 2012.
All three cases were resumed on November 19, 2012, when the Court discharged Respondent's disability inactive status under C.RC.P. 251.23(d)(3). However, she remained on disability inactive status pursuant to C.RC.P. 251.23(a).[1] The Court then ordered Respondent to file her answer in case number 12PDJ004 by December 3, 2013. Despite receiving two extensions, Respondent did not answer.
The People filed a third complaint against Respondent on December 18, 2012, under case number 12PDJ088. Respondent never filed an answer. On February 15, 2013, the Court granted default in case numbers 12PDJ004 and 12PDJ088 and consolidated these cases with case number 11PDJ084.[2] The People filed a fourth complaint, in case number 13PDJ002, on January 14, 2013. Respondent again did not file an answer, and the Court entered default on March 20, 2013.
Upon the entries of default, the Court deems all facts set forth in the four complaints admitted and all rule violations established by clear and convincing evidence.[3]
Respondent represented herself in these four consolidated matters until April 12, 2013, when Little entered his appearance. After several resettings, a sanctions hearing was eventually scheduled for April 24, 2013. At that hearing, the Court heard testimony from the People's first witness and then recessed.[4] After the break, Little orally moved to set aside the entries of default in the four consolidated cases, contending that Respondent's mental state impaired her ability to answer the People's complaints. The People objected to Respondent's motion, but the Court continued the sanctions hearing pending a hearing on the motion to set aside the defaults. The Court also ordered Respondent to undergo a second IME with Dr. Sturges. Respondent underwent the IME on May 25, 2013, and Dr. Sturges issued his second report on June 10, 2013.
On June 7, 2013, Respondent filed a petition to withdraw her motion to set aside the defaults, which the Court granted. The matters then proceeded to a second sanctions hearing on August 29, 2013. At this hearing, the Court heard testimony from Maria Flores, Maria Padilla, [5] Kevin Vessels, Sally Zeman, Dr. Michael Sturges, and Respondent and admitted the People's exhibit A.[6] In issuing this opinion and decision, the Court also considers an affidavit by Ahmed Jara Tulu, which the People filed on August 26, 2013, as well as Dr. Sturges's two IME reports.[7]
III. ESTABLISHED FACTS AND RULE VIOLATIONS
This case involves extensive misconduct in eight client matters. Because Respondent has defaulted, the admitted facts and rule violations of each matter are presented in abbreviated form. Further details are available in the People's four complaints.
Respondent is a Wisconsin attorney registered under Wisconsin attorney registration number 1033854; she is not licensed in Colorado. At all relevant times, however, Respondent practiced law in Colorado and was the principal of the DLH Law Firm located in Aurora, Colorado. She is thus subject to the Court's jurisdiction in these disciplinary proceedings.[8]
11PDJ084-Vessels Matter
In 2007, Kevin Vessels, the principal of CFH Productions, was creating a documentary film entitled "A Call for Help." Vessels hired Respondent to prepare an operating agreement and articles of organization and to assist him in forming business entities for CFH Productions. He paid Respondent $550.00 as a retainer and to cover filing fees. Respondent drafted an operating agreement for CFH and corresponded with Vessels's business partner regarding the contents of the agreement. On January 29, 2007, Respondent filed articles of organization for CFH and listed DLH Law Firm as CFH's registered agent. On May 1, 2007, Respondent filed articles of organization for A Call For Help, LLC, again listing DLH Law Firm as the registered agent. By practicing law without a Colorado license, Respondent violated Colo. RPC 5.5(a), which proscribes lawyers from practicing law in a jurisdiction where doing so violates the applicable regulations of the legal profession.
12PDJ004-Tulu Matter
Ahmed Jara Tulu hired Respondent in 2009 to help him bring his Somalian nephew, a fourteen-year-old orphan, to the United States. Tulu agreed to pay Respondent a $2, 000.00 flat fee to file an "Orphan Petition" on behalf of his nephew. He paid Respondent the entire flat fee, as well as $825. 00 f or filing fees. Respondent deposited $525.00 of the filing fees into her firm's operating account but did not deposit the remaining $300.00 into her firm's trust account. Respondent never performed the agreed-upon work. In March and May 2010, Tulu wrote to Respondent, asking for the return of his file and fees. After some delay, Respondent delivered Tulu's file to his new attorney. In October 2010, Tulu requested a detailed accounting of Respondent's services, but she never complied, nor did she refund Tulu's fees.
Through this misconduct, Respondent violated Colo. RPC 1.15(a), which requires an attorney to hold client property in a trust account separate from the lawyer's own property. She also committed three separate violations of Colo. RPC 1.15(b), which requires lawyers to promptly, upon a client's request, render a full accounting regarding funds in which the client has an interest. In addition, Respondent violated Colo. RPC 1.16(d), which requires an attorney to protect the client's interest by surrendering papers and property to which the client is entitled and to refund any unearned fees or expenses. Finally, Re spondent violated Colo. RPC 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation, when she knowingly converted Tulu's $825.00 filing fee.
12PDJ088-Kabuuza Matter
Nicholas Spitzer married Gertrude Kabuuza, a citizen of Uganda, in July 2009, and filed a Form 1-130 (Petition for Alien Relative) on her behalf. On September 14, 2009, Respondent agreed to represent Kabuuza at a December 2009 removal hearing. A week later, Kabuuza entered into a fee agreement with Respondent for $4, 500.00, including $1, 010.00 as a fee for filing Form 1-485 (Application to Register Permanent Residence or Adjust Status). Kabuuza paid Respondent $2, 010.00 by check. Respondent did not deposit these funds into her trust account.
On November 2, 2009, Respondent sent to the United States Citizenship and Immigration Services ("USCIS") a $340.00 filing fee, Form 1-765 (Application for Renewal of Employment...
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