In re Olsen

2014 CO 42, 326 P.3d 1004, 2014 WL 2516097, 2014 Colo. LEXIS 424
CourtSupreme Court of Colorado
DecidedJune 2, 2014
DocketSupreme Court Case No. 138433
StatusPublished
Cited by7 cases

This text of 2014 CO 42 (In re Olsen) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Olsen, 2014 CO 42, 326 P.3d 1004, 2014 WL 2516097, 2014 Colo. LEXIS 424 (Colo. 2014).

Opinion

JUSTICE HOBBS

delivered the Opinion of the Court.

T1 In this attorney discipline proceeding, we conclude that the Hearing Board's order suspending attorney John R. Olsen for six months with the requirement of reinstatement is unreasonable. The Board found that Olsen had engaged in negligent conduct, not knowing falsehood. Our review of the ABA standards and our prior decisions leads us to conclude that the appropriate sanction against Olsen is public censure rather than suspension. We affirm the Hearing Board's conclusions that Olsen violated Rules of Professional Conduct 3.1 and 8.4(d), but we reverse its imposition of a six-month suspension with the requirement of reinstatement and instead order that Olsen be, and hereby is, publicly censured for his misconduct.

I.

12 Olsen was admitted to practice law in Colorado in 1979. The events leading to this disciplinary proceeding stemmed from an unemployment lawsuit Olsen filed on behalf of his client Melissa Mellott in the United States District Court for the District of Colorado in October 2009.1 Mellott retained Olsen in January 2009 through a pro bono program to represent her in an unemployment claim following her termination from MSN Communications, Inc. ("MSN"). Before agreeing to represent Mellott, Olsen interviewed her and found her to be a highly credentialed engineer. - Mellott explained that her husband was an airman stationed at the Air Force Academy in Colorado Springs and that they both had top-secret military clearances due to the nature of their work. Olsen, himself a military veteran, believed her to be credible. Mellott's initial claim for unemployment was successful and she began collecting benefits.

13 Olsen then filed a complaint in the district court, seeking back pay, equal pay, front pay, and benefits for Mellott. From the outset of the underlying litigation, MSN maintained that Mellott's claims were frivolous. It claimed that Mellott had been employed for substantial compensation since her termination from MSN; that Mellott was fraudulently using another woman's social security number to hide her substantial income while collecting unemployment; that Mellott fabricated documents purporting to authorize her use of a second social security number; and that she lied to the district court by asserting she moved to Germany in the summer of 2010.

A. Mellott's Claim for Lost Wages

14 In January and February 2010, MSN discovered that Mellott had been employed since her termination from MSN, and provided Olsen copies of payroll records it had subpoenaed from Blackstone Technology Group ("Blackstone") and Qwest Communications ("Qwest"). Mellott continued to deny that she had been employed "in any capacity." In her April 16, 2010, deposition, Mel-lott was presented with a W-2 form that contradicted that claim. She asserted that the W-2 was incorrect and denied receiving over $100,000 from Qwest in documented direct-deposited funds. Mellott also denied receiving $51,000 documented by Blackstone. Olsen did not seek to depose Blackstone or Qwest to verify Mellott's version of events. He did claim that he contacted Blackstone's human resources department in an attempt to verify the payroll records and was instructed to obtain a release from Mellott. He did not obtain the release. Olsen also [1006]*1006contacted Qwest and was told that Mellott was being internally investigated and her wages had been frozen as a result. He took no further steps to verify the Qwest documents.

T5 With its motion to dismiss, filed on June 10, 2010, MSN again provided Olsen with the Qwest and Blackstone records and attached an email exchange between Mellott and a third employer in which she asked it to match Qwest's employment package. Despite being presented with this credible evidence that his client had been untruthful about not working, Olsen's response to MSN's motion to dismiss simply reasserted Mellott's declarations that she had not been regularly employed since March 16, 2010, that she had not received most of the direct-deposited funds from Qwest or Blackstone, and that the companies issued "misleading financial, payroll and paystub documents." Olsen did not supplement Mellott's discovery responses or deposition in light of her shifting narrative of events.

B. Mellott's Social Security Number

16 MSN also discovered evidence that Mellott was using another woman's social security number ("SSN") and presented it to Olsen in the early stages of litigation. When questioned during discovery about her use of two SSNs, Mellott first claimed that she had been given a "temporary verification number" which was "linked" to her actual SSN. She submitted a document purportedly assigning her a "temperary" number (the word "temporary" was misspelled three times in the document), and Olsen never questioned its authenticity. During her deposition in April 2010, Mellott advanced a second theory to justify her use of the second SSN. When asked if she was familiar with Sandra Prince, a Florida resident whose SSN was identical to the number Mellott had submitted to Blackstone and Qwest, she claimed Blackstone had somehow erred in entering her information when preparing its I-9 form, mistakenly generating Prince's records. Ol sen later testified that he believed Mellott was merely "confused," rather than dishonest, during her deposition.

T7 In its June 10, 2010, motion to dismiss, MSN claimed Mellott had committed social security fraud. Olsen responded on August 2, 2010, and claimed MSN's motion lacked basis in fact and was frivolous, and he attacked MSN's counsel's motives. He submitted a notarized declaration by Mellott and documents ostensibly authorizing her to use the other SSN. Olsen also attached his own declaration describing his personal knowledge of military security clearances (which Mellott claimed both she and her husband had) and advanced Mellott's improbable theory for why she had used two SSNs. On August 12, 2010, MSN requested that Mellott authorize the Social Security Administration to release her records. Olsen opposed the request because, by that point, the district court had stayed discovery in the case in connection with MSN's June 10, 2010, motion to dismiss.

T8 Olsen later claimed that he had visited the Social Security Administration Office in Boulder on two occasions to try to confirm Mellott's SSN, but he was again unable to obtain information without a release from Mellott. He did not obtain the release. OLl-sen also claimed to have made efforts to investigate Sandra Prince's SSN, but stated that she refused to cooperate. During December 2010 hearings before Colorado Federal District Court Judge Philip Brimmer, a Social Security Administration supervisor testified that the SSN in question was not associated with Mellott, that the document Mellott submitted listing her "temperary" verification number was not a form the agency uses, and that it never issues temporary numbers. Rather than question his client's inconsistent versions of events, Olsen instead claimed that the supervisor was "ignorant" and suggested she lied on the stand. Olsen did not withdraw his assertion that Mellott was legally entitled to use the SSN in question.

C. - Claim that Mellott Relocated to Germany

T9 Mellott's case began to unravel in earnest in summer 2010. In a July 29, 2010, motion for a forthwith hearing, Olsen notified the district court that Mellott had moved to [1007]

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Bluebook (online)
2014 CO 42, 326 P.3d 1004, 2014 WL 2516097, 2014 Colo. LEXIS 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-olsen-colo-2014.