People v. Gilbert

410 P.3d 849
CourtSupreme Court of Colorado
DecidedJanuary 8, 2018
DocketCase Number: 17PDJ044
StatusPublished

This text of 410 P.3d 849 (People v. Gilbert) 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. Gilbert, 410 P.3d 849 (Colo. 2018).

Opinion

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

In June 2013, Jerold R. Gilbert ("Respondent") agreed to assist clients in an immigration matter for a capped fee, the vast majority of which the clients paid him in the first four months of the representation. But Respondent did not hold the money in trust, instead retaining all the funds for himself, even though he did not complete of the promised work. In May 2014, Respondent was administratively suspended from the practice of law. He did not inform his clients of the suspension, however, nor did he cease practicing law. Instead, on at least one occasion following his suspension, he provided his clients with legal advice in derogation of his suspension order. Later, Respondent stopped communicating with his clients. He did not respond to their inquiries or to their requests for a copy of the fee agreement and receipts. Because Respondent failed to complete agreed-upon work, converted unearned fees, and practiced law while administratively suspended, he must be disbarred.

I. PROCEDURAL HISTORY

On June 19, 2017, Sara Cantrick Van Deusen, Office of Attorney Regulation Counsel ("the People"), filed a complaint with the Presiding Disciplinary Judge ("the Court"). The next day, the People sent copies of the complaint to Respondent via certified mail at his registered business address as well as to his last-known address.1 Respondent failed to answer, and the Court granted the People's motion for default on August 31, 2017. Upon the entry of default, the Court deemed all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.2

On November 13, 2017, the Court held a sanctions hearing under C.R.C.P. 251.15(b). Van Deusen represented the People; Respondent did not appear. At the sanctions hearing, Jennie Rico testified and the People's exhibits 1-2 were admitted into evidence.

II. ESTABLISHED FACTS AND RULE VIOLATIONS

Respondent took the oath of admission and was admitted to practice law by in Colorado on March 29, 1991, under attorney registration number 20301. He is thus subject to the Court's jurisdiction in this disciplinary proceeding.3

On June 23, 2013, Jennie Rico and her husband, Johnny Rodriguez, retained Respondent to assist them with an immigration matter. The fee agreement states, in relevant part, that Respondent would:

Represent client on behalf of Jennie Rico to file Form I-130 ... file Form I-601A and accompanying additional forms to accomplish the goal of a Permanent Resident Via for Johnny Rico. Firm will reevaluate status of application to determine if Form I-485 Adjustment of Status will be available.4

The fee agreement states that these services, in total, would cost $3,000.00, and that Respondent would charge $200.00 per hour. The payment terms provided that "Client pays $1,000 today and the balance as follows: $1,000 on 7/28/2013 and $1,000.00 on 8/28/2013."5 Rico and Rodriguez made three cash payments totaling $2,750.00: $1,000.00 each on June 28 and July 26, 2013, and $750.00 on September 6, 2013. Respondent did not deposit any of these funds into his trust account. Nor did he provide Rico or Rodriguez with any invoices showing when he performed legal work or when he earned legal fees.

Respondent worked on Rodriguez's Form I-130 between November 2013 and April 2014. On April 4, 2014, Respondent filed Form I-130 by U.S. priority mail. The form reflects that it was completed on December 12, 2013.

On May 1, 2014, Respondent was administratively suspended from the practice of law. He has remained suspended since that time. Even though C.R.C.P. 251.28(b) mandates that lawyers notify clients by certified mail of any suspension imposed, Respondent never informed Rico or Rodriguez of his suspension how the suspension affected his ability to continue to represent them.

On October 16, 2014, Rico emailed Respondent, noting that she had called him five times yet had not received a return call. Respondent replied the same day:

I am very busy right now doing DACA renewal applications ... the USCIS [United States Citizenship and Immigration Services] is currently processing your file and the time they are taking is normal. I am not concerned about it right now. They will send letters telling us what they decide or they might request more info. After the visa is issued we will begin to Adjust Status. So for now we wait.6

On August 10, 2015, Rico received a letter from USCIS requesting more evidence to support the Form I-130. Rico called Respondent to discuss the letter, but he informed her that he was closing his law practice and would no longer represent her or her husband. On October 2, 2015, Respondent emailed the couple, noting that they spoke by phone on September 30, 2015, and stating, "As I said to you in our last telephone conversation, I must withdraw as your legal *851counsel in this matter. I do this because of my continued ill health and the resulting physical disabilities it has presented me."7

Rico responded, requesting a copy of the fee agreement and receipts for the payments the couple had made, but after October 2, 2015, neither Rico nor Rodriguez received any communications from Respondent.

Through this misconduct, Respondent violated Colo. RPC 1.4(a)(3), which provides that a lawyer must keep a client reasonably informed about the status of a matter; Colo. RPC 1.4(a)(4), which provides that a lawyer must promptly comply with reasonable requests for information; Colo. RPC 1.5(f), which provides that fees are not earned until the lawyer confers a benefit on the client or performs a legal service for the client, and that advances of unearned fees are the client's and must be deposited in the lawyer's trust account; Colo. RPC 1.15A(a), which provides that a lawyer must hold client property separate from the lawyer's own property; Colo. RPC 1.16(d), which provides that a lawyer must promptly deliver to a client funds or other property that the client is entitled to receive; Colo. RPC 3.4(c), which provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; Colo. RPC 5.5(a)(1), which provides that a lawyer shall not practice law in this jurisdiction without a valid license; and Colo. RPC 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

III. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ")8 and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.9 When imposing a sanction after a finding of lawyer misconduct, the Court must consider the duty violated, the lawyer's mental state, and the actual or potential injury caused by the misconduct. These three variables yield a presumptive sanction that may be adjusted based on aggravating and mitigating factors.

ABA Standard 3.0-Duty, Mental State, and Injury

Duty

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Related

People v. Varallo
913 P.2d 1 (Supreme Court of Colorado, 1996)
People v. Richards
748 P.2d 341 (Supreme Court of Colorado, 1987)
In Re Rosen
198 P.3d 116 (Supreme Court of Colorado, 2008)
In Re Roose
69 P.3d 43 (Supreme Court of Colorado, 2003)
In Re Fischer
89 P.3d 817 (Supreme Court of Colorado, 2004)
In re Attorney F.
2012 CO 57 (Supreme Court of Colorado, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
410 P.3d 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gilbert-colo-2018.