Disciplinary Opinions
| Publication year | 2014 |
| Pages | 147 |
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., 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. 13PDJ073
Complainant: THE PEOPLE OF THE STATE OF COLORADO
v.
Respondent: MARC F. BENDINELLI
May 19, 2014
OPINION AND DECISION IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
From March 17 to 20, 2014, a Hearing Board comprising Douglas D. Piersel and James X. Quinn, members of the bar, and William R, Lucero, the Presiding Disciplinary Judge ("the PDJ"), held a hearing pursuant to C.R.C.P. 251.18. Erin R. Kristofco appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Marc F. Bendinelli ("Respondent") appeared with his counsel, Nancy L. Cohen. The Hearing Board now issues the following "Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
I. SUMMARY
Respondent engaged in misconduct while representing a client on a loss of consortium claim. He failed to keep his client reasonably informed about the status of her case and failed to obtain her informed consent in writing to settle an aggregate claim. He then signed his client's name to a settlement agreement without her authority and knowingly misrepresented the facts of her case, intending that she rely upon the misrepresentations and agree to dismiss a claim he had already settled. These actions violated Colo. RPC 1.2(a), 1.4(a)(2) and (3), 1.4(b), 1.8(g), and 8.4(c).
The Hearing Board determines, however, the People did not prove by clear and convincing evidence that Respondent failed to verbally obtain his client's informed consent to settle her claim in violation of Colo. RPC 1.2(a) and 1.4(b). We further find that the People were unable to prove a violation of Colo. RPC 8.4(c) based upon what they allege was Respondent's dishonesty in settling his client's claim without her consent or by advising her that her loss of consortium claim was weak. In light of the significant mitigating factors present here, the Hearing Board concludes that the appropriate sanction is a sixty-day suspension, all stayed upon the completion of a one-year period of probation with conditions.
II. PROCEDURAL HISTORY
On September 17, 2013, the People filed a complaint against Respondent, alleging he violated Colo. RPC 1.2 (scope of representation), 1.4(a) and (b) (communication), 1.7(a)(2) (concurrent conflict of interest), 1.8(g) (aggregate settlement of two clients' claims), 1.15(c) (failure to provide an accounting), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). On October 18, 2013, Respondent answered the People's complaint. He contemporaneously filed, pursuant to C.RC.P. 12(b)(5) and 251.15(a), a motion to dismiss Claim III, premised upon Colo. RPC 1.7(a)(2). The PDJ dismissed Claim III on December 10, 2013, but granted leave to amend the complaint with particularity. The People did not do so.
On November 20, 2013, the parties filed, and the PDJ granted, a protective order governing Respondent's confidential medical information. Respondent then filed a motion for judgment on the pleadings and a motion for partial summary judgment on February 4, 2014, asking the PDJ to strike paragraphs 105-107 from the People's complaint and to enter summary judgment on Claim V (Colo. RPC 1.15(c)) and paragraph 134. In their response to these motions, the People agreed to withdraw paragraphs 105-107 and 134 as well as to dismiss Claim V. The PDJ then struck paragraphs 105-107 from the complaint and dismissed Claim V. As a result, the hearing proceeded on Respondent's alleged violations of Colo. RPC 1.2, 1.4(a) and (b), 1.8(g), and 8.4(c).
On February 13, 2014, and February 26, 2014, respectively, the People filed motions to strike Dr. David S. Wahl's report and opinions and to strike his affidavit. The PDJ denied these motions, allowing Dr. Wahl to testify at trial.[1] Respondent next filed a motion in limine on March 10, 2014, seeking to preclude the People from introducing evidence of Respondent's alleged failure to timely disclose emails that were produced in his second and third supplemental disclosures and evidence of his alleged failure to disclose an email string that a third party produced to the People after the discovery deadline. The PDJ denied Respondent's motion on March 14, 2014, permitting the People to offer this evidence to refute Respondent's defense that his client was aware of a settlement offer, and finding the evidence potentially relevant to certain aggravating factors.[2]
During the hearing on March 17-20, 2014, the PDJ directed the court reporter to seal portions of the transcript that contained testimony related to the protective order, including Respondent's opening statement, Dr. Wahl's testimony, Jonathan DeCarlo's testimony, and portions of Respondent's testimony. On April 3, 2014, Respondent withdrew his request to seal the transcript in this matter. Accordingly, the PDJ UNSEALS the portions of the transcript previously designated as confidential.
The Hearing Board heard testimony from the People's witnesses Andrea Peters, Mary Van Meter, Bruce McLarty, Sean Dormer, Adrian Sak,[3] and Laurie Seab[4] and rebuttal expert witnesses Bradley A. Levin and Dr. Hal Wortzel. We also heard testimony from Respondent and his witnesses Mark G. Mayberry and Jonathan DeCarlo[5] and expert witnesses William L. Keating and Dr. Wahl. The Hearing Board considered stipulated exhibits S-1 to S-43 and S-70; the People's exhibits 44-47, 52-53, 58, 64, and 67-69; and Respondent's exhibit A.[6]
At the close of the People's evidence, Respondent moved for a directed verdict, asserting that the People failed to present sufficient evidence to support the application of two aggravating factors: bad faith obstruction of the disciplinary proceeding and deceptive practices. Respondent also moved for a directed verdict on Claim VI (Colo. RPC 8.4(c)), limited to paragraphs 171-174 of the People's complaint. Respondent argued that the People should be precluded from asserting either aggravating factor during closing argument because of a lack of evidence presented and further asserted that the People did not prove that he engaged in dishonesty as alleged in paragraphs 171-174. For their part, the People maintained that the disciplinary rules do not permit directed verdicts and that they adduced sufficient evidence regarding these two aggravating factors and Claim VI to warrant the Hearing Board's review. In viewing the evidence in the light most favorable to the People, the PDJ denied Respondent's motion.
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 September 15, 1997, under attorney registration number 28425.[7] He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings.[8]
Findings of Fact
When Respondent moved to Denver in 1997, he started the Bendinelli Law Office ("BLO"). Today, BLO i s a high-volume practice specializing in personal injury litigation. From 2010 to 2013, Respondent handled personal injury cases exclusively. During that time, his caseload approached 130 prelitigation matters and approximately thirty-five litigation cases. Respondent assigned all pretrial litigation responsibilities to associates and litigation paralegals, who handled the discovery and took depositions, while Respondent tried the cases.
In 2008, Damien Peters, who was married to Andrea Peters, was injured in an automobile accident.[9] He retained BLO to represent him in his case against the other driver.[10] A contingency fee agreement was executed on March 18, 2008, by associate attorney Rebecca Albano and Mr. Peters.[11] This case settled for $25,000.00 in March 2010.[12]
Mr. and Ms. Peters had an uninsured/underinsured policy through American Family Insurance Company ("Am Fam").[13] Am Fam denied coverage for Mr. Peters's injuries, so BLO filed a lawsuit against the company.[14] In fall 2010, Ms. Peters met with Albano to discuss adding a loss of consortium derivative claim on her behalf in the suit against Am Fam.[15] On October 5, 2010, Ms. Peters signed a contingency fee agreement allowing BLO to proceed on a loss of consortium claim.[16] Ms. Peters testified that Albano told her the derivative claim would help prove her husband's case and, if they prevailed, would make their family whole, if not in a slightly better position than they were before the accident.[17]
Respondent testified that in late 2010, a convergence of unfortunate events occurred. While he was recovering from two back surgeries, he divorced his wife of twenty-four years. His mother, who was suffering from Alzheimer's, passed away a week after his...
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