McDonnell v. People

85 P.3d 145, 2004 WL 318589
CourtSupreme Court of Colorado
DecidedJanuary 23, 2004
DocketNo. 03PDJ063
StatusPublished

This text of 85 P.3d 145 (McDonnell v. People) 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
McDonnell v. People, 85 P.3d 145, 2004 WL 318589 (Colo. 2004).

Opinion

OPINION AND ORDER READMITTING JOHN PHILIP MCDONNELL, JR. TO THE PRACTICE OF LAW

ATTORNEY READMITTED TO THE PRACTICE OF LAW

On December 11, 2003, a readmission hearing was held pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Officer Gail C. Harriss, a member of the bar, and two hearing board members, Melinda M. Harper, a representative of the public and Barbara Weil Laff, a member of the bar. Alexander R. Rothrock represented John P. McDonnell, Jr. (“McDonnell”). James S. Sudler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the “People”). The following witnesses testified on behalf of McDonnell: Sheryl S. Branney, Michael E. Canges, Francine S. Salazar, Laurinda L. McDonnell, Michael H. Gendel, M.D., Mark L. Held, Ph.D., and Andrew F. Czopek, Ph.D. McDonnell also testified on his own behalf. McDonnell’s exhibits 1 through 6 were admitted into evidence.

The Hearing Board considered the testimony and exhibits admitted as well as a Stipulation signed by the parties; addressed the credibility of the witnesses; and made [146]*146the following findings of fact, which were established by clear and convincing evidence.

I. FINDINGS OF FACT

John Philip McDonnell, Jr. took the oath of admission and was admitted to the bar of the State of Colorado on October 21, 1981. The Supreme Court accepted the parties’ Conditional Admission of Misconduct and disbarred McDonnell from the practice of law in Colorado on June 19, 1995, effective on that date. People v. McDonnell, 897 P.2d 829, 830 (Colo.1995).

After graduating from law school in 1981, McDonnell was employed by a small firm until 1986, when he decided to open his own law practice. His firm enjoyed moderate success and a growing clientele. His wife joined the firm upon her graduation from law school in 1987. McDonnell moved the firm to a larger office and hired staff. A change in policy by one of the firm’s main clients resulted in a sudden decrease in firm revenue.

During this time, McDonnell turned increasingly to alcohol to relieve stress. Then, in August 1990, McDonnell’s father — an important figure in his life — died suddenly. For many months thereafter, McDonnell dealt with his father’s business affairs and tried to run his law practice. He improvidently moved his firm to even larger office space, thereby increasing overhead at a time when firm revenues were on the decline. McDonnell attributes this poor business judgment to muddled thinking following the death of his father, magnified by the effects of alcohol.

In June 1992, McDonnell’s wife was expecting their third child and ceased working at the firm to be at home with the children. This caused added financial stress to McDonnell. Due to the increased need for a predictable income, in August 1993, McDonnell accepted a position as an associate attorney with an insurance defense firm. He closed his firm, but remained obligated for the firm’s debts. During this time frame, McDonnell did not speak openly to the firm, to friends, or to his wife about his financial difficulties. Instead, he turned to alcohol. He believed at the time that he could quit drinking at any time. He frequently began drinking early in the afternoon, and was consequently not present in his firm office during the afternoon hours. He failed to accomplish necessary tasks on his cases.

In one of the cases he handled during this period, McDonnell represented an insurance company in a subrogation case. He received a settlement check made payable to both the insurance company and himself. The firm’s bookkeeper deposited the check in the firm’s trust account and issued a check to the insurance company in the amount of $8,850.35. McDonnell obtained this check in order to deliver it to the insurance company. Instead of doing so, he forged the name of a representative of the insurance company and deposited the check into his own account. McDonnell took the funds to pay his debts, believing that he could repay them when the firm paid him an expected bonus. McDonnell also converted “small” amounts of funds belonging to two former insurance company clients. He concealed his use of the funds from the firm and from the client, assuring the client that the funds were forthcoming. Shortly thereafter, the firm suspended McDonnell’s employment with the firm, began auditing his files, and discovered that McDonnell had utilized the funds belonging to the insurance company. The firm subsequently terminated McDonnell’s employment. McDonnell was immediately suspended from the practice of law by Order of the Supreme Court on April 28, 1994, pending resolution of the disciplinary action against him.1

As a result of the conversion of client funds, criminal charges were filed against McDonnell in the District Court for Arapahoe County. McDonnell pled guilty to felony theft and misdemeanor theft and received a deferred judgment on a plea to fourth degree felony theft. McDonnell complied with all terms of his probation and deferred judgment.

McDonnell “hit bottom” during the period of January to March 1994. He had lost his employment, was suspended from the prac[147]*147tice of law, had incurred substantial debt, and had lost the trust of his wife. Beginning in March 1994, McDonnell set out to rebuild his personal and professional life. He dates his sobriety from March 11,1994. He participated in an outpatient alcohol rehabilitation program for the remainder of 1994 and most of 1995. Over the past nine years, McDonnell has undergone individual and marital counseling. He and his wife worked together to rebuild trust and remain together as a family. He is now open and honest in his communications with his wife and others. He has developed a strong support system extending beyond his family. He regularly attends Colorado Lawyers Health Program (“CLHP”) meetings and continues in individual therapy.

McDonnell returned to work in June 1994 as an attorney’s legal assistant. After two years in this position, McDonnell accepted employment as a personal assistant to the late Joseph J. Branney. McDonnell provided paralegal assistance to Mr. Branney in his law practice. He also came to earn the trust of Mrs. Branney, and he acted as a business and financial assistant to Mr. and Mrs. Bran-ney. McDonnell paid the Branneys’ personal bills, oversaw their investments, interacted with Mr. Branney’s business partners, and routinely transferred funds between various bank accounts. In this role, McDonnell demonstrated honesty and trustworthiness.

In addition to responsibly handling funds belonging to the Branneys, McDonnell has handled funds for neighborhood organizations and in his volunteer work with his church. He acted as co-treasurer for the charity auctions for two consecutive years. He currently acts as a bookkeeper and makes all the deposits for his wife’s law firm.

In September 2000, McDonnell obtained paralegal employment with a law firm in Denver. He was considered organized, punctual, detail-oriented, and reliable. As a paralegal, McDonnell demonstrated competence in handling multiple responsibilities under demanding conditions. McDonnell will be offered a position with the firm in the event of his readmission, if the firm is able to do so.

McDonnell sat for and passed the February 2003 Bar Examination and the March 2003 Multistate Professional Responsibility Examination.

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Related

People v. Klein
756 P.2d 1013 (Supreme Court of Colorado, 1988)
People v. McDonnell
897 P.2d 829 (Supreme Court of Colorado, 1995)
Tardiff v. State Bar
612 P.2d 919 (California Supreme Court, 1980)
Roth v. State Bar
253 P.2d 969 (California Supreme Court, 1953)

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Bluebook (online)
85 P.3d 145, 2004 WL 318589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonnell-v-people-colo-2004.