People v. Convery

758 P.2d 1338, 12 Brief Times Rptr. 751, 1988 Colo. LEXIS 85, 1988 WL 43454
CourtSupreme Court of Colorado
DecidedMay 9, 1988
DocketNo. 87SA445
StatusPublished
Cited by2 cases

This text of 758 P.2d 1338 (People v. Convery) 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
People v. Convery, 758 P.2d 1338, 12 Brief Times Rptr. 751, 1988 Colo. LEXIS 85, 1988 WL 43454 (Colo. 1988).

Opinion

VOLLACK, Justice.

In this disciplinary proceeding, a Hearing Panel of the Supreme Court Grievance Committee (panel) has recommended that the respondent-attorney, William J. Con-very (Convery or the respondent), be suspended from the practice of law for six months and assessed the costs of these proceedings. We decline to accept this recommendation, and order the respondent suspended for one year and one day. We further order that the costs of these proceedings be assessed against him.

I.

The respondent, William J. Convery, was admitted to the bar of the Supreme Court of the State of Colorado in 1979 and is registered upon the official records of this Court, Registration Number 9385. He is subject to the jurisdiction of this Court and its Grievance Committee }n these disciplinary proceedings.

This disciplinary action arose from the respondent’s dealings with his clients Alex and Norma Anderson. The respondent and the disciplinary prosecutor entered into a Stipulation of Facts which established the following conduct. Alex Anderson, the complainant, owned ninety percent of Energy Associated Products, Inc. (Energy Associated). In 1978, Anderson signed a promissory note on behalf of Energy Associated for a loan of approximately $125,000 from Western National Bank (the bank). In January 1979, Anderson entered into an agreement with D. Powelson to sell his Energy Associated stock to Powelson. Anderson alleges that prior to his agreement with Powelson, the bank had agreed to cancel the $125,000 note in exchange for the receipt of new notes from Anderson and Powelson for $50,000 and $75,000, respectively. Instead, the bank suggested and it was agreed at closing that the bank would assist Powelson in obtaining a Small Business Administration loan with which to pay the note. However, by June the bank had not obtained the SBA loan. Powelson lost interest and the deal “fell through.”

Because the sale was not completed, Anderson had to renew the entire note in June 1979 when it came due. He renewed the note on behalf of Energy Associated, personally guaranteed by him and due and payable in June 1984. Several months later the bank realized that it had not included the interest accumulated on the original 1978 note when it calculated the 1979 renewal note. The bank requested that Anderson sign and personally guarantee a second note, due in April 1980, for the unpaid interest of $8,937.67 on the original note.

In August 1980, Anderson retained counsel and suit was filed against the bank. Anderson claimed that the bank had breached its agreement to permit Powelson to assume $75,000 of the loan, and he sought actual damages of $75,000 plus the interest accrued on the $125,000 loan. The bank counterclaimed, alleging that the payments on the original $125,000 note were in default and seeking to recover the amount of the unpaid balance plus interest and attorney fees. In September 1981 the bank obtained a $118,008.45 judgment against Anderson on its Motion for Partial Summary Judgment. In an effort to satisfy the judgment, the bank filed foreclosure proceedings against Anderson’s home. Anderson obtained another loan and redeemed his property by paying the bank approximately $135,000.

In the meantime, in June of 1981 the bank filed a second counterclaim alleging that the second note for $8,937.67 was in default, and seeking a judgment for that amount plus interest and attorney fees. Anderson’s defense was that he had signed the note in blank, and that when the bank completed the form it had added terms not authorized by him. Anderson’s claims in the original action and his claims regarding the second note and counterclaim were scheduled for trial in July 1983.

A pretrial conference was scheduled on June 13, 1983; Anderson’s attorney did not attend and did not submit a pretrial data certificate. Two days later, the judge or[1340]*1340dered the complaint dismissed with prejudice and entered judgment in favor of the bank, against Anderson.

Shortly thereafter, Anderson retained the respondent to represent him and paid Convery $500. Convery told Anderson that he would handle the matter and entered a Substitution of Counsel and Motion to Set Aside the Default Judgment. However, the respondent never set the motion for hearing, and he did not file a Motion for Stay of Execution or post a bond under C.R.C.P. 62. As a result, Anderson’s bank account was garnished in September 1983 for approximately $7,000. When Anderson notified Convery of the garnishment, Con-very assured his client that he would take action.

At this point, a balance of $13,000 remained outstanding on the bank’s judgment against Anderson, and the bank brought levy and execution proceedings against rental property owned by Anderson and his wife. In February 1984, the respondent filed three documents: a forthwith motion requesting that the sheriff be prohibited from selling the rental property, a motion to stay execution of the sale, and a notice to set the motions for hearing. The motions were not heard by the court and the sale was held in late February 1984. In July of 1984 the respondent filed a Motion to Set Aside the Foreclosure and Sheriff's Deed; the motion was denied as being frivolous and groundless.

The rental property which was the subject of the levy and execution proceedings was a duplex owned one-half by Alex Anderson and one-half by his wife, Norma Anderson. Since the bank now owned Mr. Anderson’s half of the duplex, it filed suit against Mrs. Anderson requesting that the court order the duplex sold and the proceeds divided between Mrs. Anderson and the bank. The bank’s attorneys sent notice to Convery scheduling a date to take Mrs. Anderson’s deposition; neither Convery nor his client appeared on the scheduled deposition date. Mrs. Anderson stated that Convery had not informed her of the date. Due to her failure to appear, the court ordered sale of the property and later imposed sanctions against her. Her answer in the case was stricken and judgment was entered for the bank. In February 1986 the proceeds of the sale were distributed to the bank as follows: reimbursement for the sale cost and commissioner’s fee ($536.88), attorney fees, costs, rents and interest ($13,257.05), and the remainder as the bank’s half share of the sale proceeds ($20,000).

In the meantime, the bank served interrogatories on Anderson in February 1985 concerning his assets. The respondent agreed to take care of the interrogatories for Anderson but did not do so. No response was filed and a contempt citation was issued in April 1985 for Anderson’s failure to respond.

One month later, the respondent was suspended by this court for one year and one day as the result of misconduct unrelated to the case presently before the court. See People v. Convery, 704 P.2d 296 (Colo.1985). The respondent withdrew from his representation of Mr. and Mrs. Anderson. Mr. Anderson brought this matter to the attention of the Supreme Court Grievance Committee.

II.

The disciplinary prosecutor and Convery agreed by stipulation that Convery’s conduct was in violation of C.R.C.P. 241.6 (discipline of attorneys), DR 1-102(A)(1) (violation of a disciplinary rule), DR 6-101(A)(2) and (A)(3) (handling a legal matter without adequate preparation; neglect of legal matter entrusted to him), and DR 7-101(A)(2) and (A)(3) (intentional failure to carry out a contract of employment with a client for professional services; prejudice or damage to a client during the course of a professional relationship).

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Bluebook (online)
758 P.2d 1338, 12 Brief Times Rptr. 751, 1988 Colo. LEXIS 85, 1988 WL 43454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-convery-colo-1988.