People v. Bowman

894 P.2d 761, 19 Brief Times Rptr. 751, 1995 Colo. LEXIS 223, 1995 WL 262836
Procedural entryThis page is a short order in People v. Bowman. Read the opinion of the Court — 18 Brief Times Rptr. 2140
Supreme Court of Colorado·Decided May 8, 1995·No. No. 95SA39·Published

Opinion

PER CURIAM.

The respondent in this lawyer discipline proceeding was disbarred on December 19, 1994. People v. Bowman, 887 P.2d 18 (Colo. 1994). Following the respondent’s disbarment, this disciplinary proceeding was submitted to the court. A hearing panel of the Supreme Court Grievance Committee approved the findings and recommendation of the hearing board that the respondent be disbarred, pay restitution prior to any application for readmission, and be assessed the costs of the proceeding. The respondent defaulted before the grievance committee and has not appeared in this court. We approve the findings of the panel and board, and order that the respondent pay restitution prior to any application for readmission as set forth in the board’s report, and pay the costs of the proceeding. We need not actually reach the issue of the appropriate discipline since the respondent has already been disbarred, although the panel’s recommendation is obviously correct.

I

The respondent was admitted to the Colorado bar on October 17, 1977. Even though now disbarred, he remains subject to the jurisdiction of this court and its grievance committee for his failure to comply with the Code of Professional Responsibility and the Rules of Professional Conduct while he practiced law. People v. Koransky, 830 P.2d 490, 491 (Colo.1992); C.R.C.P. 241.1(b). Two formal complaints filed by the assistant disciplinary counsel were consolidated. The respondent did not appear and did not answer the complaints, so an order of default was entered and the allegations of fact in the complaints were deemed admitted. People v. Barr, 855 P.2d 1386, 1386 (Colo.1993); C.R.C.P. 241.13(b). Based on the respondent’s default, and evidence tendered by the assistant disciplinary counsel, the hearing board found that the following was established by clear and convincing evidence.

A

Beginning in June 1992, and continuing through 1993, the respondent neglected a legal matter between two of his clients that had been entrusted to him, and then did not recognize serious conflicts arising from the dual representation. He even continued to represent one of the clients against the other, former, client. The board found that the respondent’s conduct violated DR 5-105(A) (a lawyer shall decline proffered employment if the exercise of the lawyer’s independent professional judgment in behalf of a client will be or is likely to be affected by the acceptance of the proffered employment, or which would be likely to involve the lawyer in representing differing interests); DR 5-105(B) (a lawyer shall not continue multiple employment if the exercise of the lawyer’s independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer’s representation of another client, or if it would be likely to involve the lawyer in representing different interests, except to the extent permitted by DR 5-105(C)); and DR 6-101(A)(2) (a lawyer shall not handle a legal matter entrusted to the lawyer without adequate preparation under the circumstances). On and after January 1, 1993, the effective date of the Rules of Professional Conduct, he violated R.P.C. 1.9(a) (a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation).

B

In 1985, the respondent was divorced from his former spouse, and as part of the stipulation and order, he agreed to execute a $40,-000 promissory note payable to his former wife. In November 1985, he married Laurie A. Daniels, and in 1989, the respondent and [763]*763Daniels borrowed $40,000 from Daniels’s parents to purchase a home. The respondent then had Daniels sign a blank deed of trust, saying that it would secure her parents’ loan, but he instead used the deed of trust to secure the $40,000 obligation to his former wife. He therefore defrauded Daniels contrary to DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Daniels filed for dissolution of marriage from the respondent in 1991. He lied, in violation of DR 1-102(A)(4), during a deposition taken by Daniels’s lawyer when he stated that he had filed all state and federal tax returns from 1985 through 1991. In fact, a tax lien was filed against the house owned by Daniels and the respondent for back taxes the respondent owed.

In September 1993, the respondent moved to set aside the separation agreement on the ground that he entered into the agreement on the condition that Daniels not file a grievance with the supreme court against him related to the deed of trust he gave to his ex-wife. Attached to the motion was an unsigned release agreement purportedly between himself and Daniels. In fact, Daniels had not signed the release agreement and did not agree to its terms. The respondent’s conduct thus violated R.P.C. 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal); R.P.C. 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and R.P.C. 8.4(d) (engage in conduct that is prejudicial to the administration of justice).

In addition, the respondent did not respond to the request for investigation that Daniels filed against him, contrary to C.R.C.P. 241.6(7) (failure to respond to a request by the grievance committee without good cause shown, or obstruction of the committee or any part thereof in the performance of its duties constitutes ground for lawyer discipline).

C

In 1991, Midway Land Fill, Inc., represented by the respondent, filed an action for money due on a contract against General Motors Corporation (GMC). In June 1992, GMC issued a settlement check for $85,000 to Midway. Midway’s owner, Vernie Houtchens, endorsed the check. The respondent told him that a recently discovered document showed that GMC had hidden some evidence and that GMC might be persuaded to pay more than the $85,000, so the funds would be placed in escrow. The respondent, however, deposited it into the law firm’s operating account.

In March 1993, without Houtchens’s knowledge or permission, the respondent directed the firm’s bookkeeper to release the $85,000 to him. The respondent told one of his partners that the Midway case had settled and he paid the partner $2,250 for legal research the partner had performed on the case. In December 1993, Houtchens called the law firm of one of the respondent’s former partners and was informed that the $85,000 had already been disbursed on the respondent’s instructions.

The respondent converted the $85,000 to his personal use. There is no evidence that the respondent has paid any of the money to Houtchens. The hearing board concluded that the respondent’s conduct violated section 18-4-401, 8B C.R.S. (1986 & 1992 Supp.) (theft), as well as DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation); R.P.C. 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer); R.P.C. 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); R.P.C. 1.15(a) (a lawyer shall hold property of clients separate from the lawyer’s own property); R.P.C.

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People v. Bowman, 894 P.2d 761, 19 Brief Times Rptr. 751, 1995 Colo. LEXIS 223, 1995 WL 262836 (Colo. 1995).

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Related

People v. Barr
855 P.2d 1386 (Supreme Court of Colorado, 1993)
People v. Koransky
830 P.2d 490 (Supreme Court of Colorado, 1992)
People v. Bowman
887 P.2d 18 (Supreme Court of Colorado, 1994)