People v. Johnson

944 P.2d 524, 1997 Colo. J. C.A.R. 1907, 1997 Colo. LEXIS 843, 1997 WL 570409
CourtSupreme Court of Colorado
DecidedSeptember 15, 1997
DocketNo. 97SA247
StatusPublished
Cited by4 cases

This text of 944 P.2d 524 (People v. Johnson) 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. Johnson, 944 P.2d 524, 1997 Colo. J. C.A.R. 1907, 1997 Colo. LEXIS 843, 1997 WL 570409 (Colo. 1997).

Opinion

PER CURIAM.

In this disciplinary proceeding, an inquiry panel of the supreme court grievance committee approved a stipulation, agreement, and conditional admission of misconduct between the respondent and the assistant disciplinary counsel. See C.R.C.P. 241.18. In accordance with the conditional admission, the inquiry panel recommended that the respondent be suspended for one year and one day and be required to comply with certain conditions. We accept the conditional admission and the inquiry panel’s recommendation.

I.

The respondent was admitted to practice law in Colorado in 1978. The conditional admission provides the factual basis for this disciplinary proceeding.

A. The Osmon Matter

On December 22, 1992, Douglas Osmon and his parents retained the respondent to appeal Osmon’s convictions for burglary, theft, and aggravated motor vehicle theft. The Osmons paid the respondent an advance fee and a $500 cost retainer. The respondent did not at that time have a client trust account or trust account registered with the Colorado Lawyer Trust Account Foundation (COLTAF). See Colo. RPC 1.15(e)(2). He did maintain a so-called “special” account for client funds. However, the respondent did not deposit the $500 cost retainer into his “special” account. The stipulation provides that the respondent did pay several expenses including the filing fee for Osmon’s appeal in excess of the cost deposit.

The respondent filed the notice of appeal in Osmon’s case on February 17,1993. However, because the respondent did not file the opening brief when it was due, the court of appeals issued an order to show cause on July 20, 1993, why the appeal should not be dismissed. The court of appeals granted two motions for an extension of time filed by the respondent. Nonetheless, the respondent failed to file the opening brief. The court of appeals issued a second order to show cause why the appeal should not be dismissed. Because no response was filed, the court of appeals dismissed Osmon’s appeal on September 7,1993.

The respondent did, however, file a motion for reconsideration of his client’s sentence before the trial court. Following a hearing on the motion to reconsider the sentence, Osmon’s sentence on each count was reduced from eight years to seven years.

On May 1, 1994, Osmon terminated the respondent’s legal services and requested an accounting of all unearned fees. The respondent did not provide a written accounting, although the respondent represents that he did provide an oral accounting, which Osmon disputes.

Osmon subsequently hired another lawyer who filed a motion for postconviction relief based on the respondent’s ineffective assistance of counsel. On May 10, 1995, the district court ruled that the respondent’s handling of the appeal amounted to the ineffective assistance of counsel.

From January through December 1993, the respondent failed to segregate his own funds from client funds in his “special” account, and he wrote checks on this special account for personal expenses. He also failed to keep proper records of client funds coming into his possession throughout his representation of Osmon.

The respondent has admitted that the foregoing conduct violated Colo. RPC 1.3 (neglecting a legal matter), Colo. RPC 1.4. (failing to communicate with a client), Colo. RPC 1.15(a) (failing to segregate and deposit client funds in a trust account and failing to keep client account records), Colo. RPC 1.15(b) (failing to account for client funds upon request); as well as C.R.C.P. 241.6(4) (committing gross negligence).

ii.

During the course of his representation, the Osmons gave the respondent a certain amount of funds to hold in case of an emergency since Osmon was in prison and Osmon’s wife did not have a bank account. Although the individuals involved do not remember the exact amount that was given to [526]*526the respondent to hold for emergencies, they agree that a balance of $240 was owed to the Osmons when he was fired in May 1994. The respondent did not return the $240 nor has he accounted for it. He therefore again violated C.R.C.P. 241.6(4), Colo. RPC 1.15(a) and (b); and also Colo. RPC 1.16(d) (failing to surrender client property upon termination of representation).

iii.

After he filed the notice of appeal in the Osmon case, Osmon’s parents sent the respondent a cashier’s check in the amount of $1,300 to páy the court reporter to transcribe the record. When the transcript was completed, the court reporter submitted a written statement to the respondent on April 15, 1993, reflecting a refund of $164 from the $1,300 received, and enclosing a check in that amount. The respondent deposited the $164 check into his “special” account on April 29.

The respondent wrote two personal checks on his “special” account in June 1993, and by July 1993, the “special” account had a balance of $41.70 in it. The respondent never notified Osmon’s parents of the transcript refund and has not returned these funds to them. He used the majority of the funds for his personal purposes, and the parties have stipulated that the respondent thereby “negligently converted” these funds to his own use. The respondent admits that he again violated C.R.C.P. 241.6(4), Colo. RPC 1.15(b), and Colo. RPC 1.16(d).

iv.

From January through December 1993, the respondent engaged in two non-sufficient funds transactions involving his “special” account, and twenty-two non-sufficient funds transactions in his personal account, in violation of C.R.C.P. 241.6(4), and Colo. RPC 8.4(h) (engaging in conduct that adversely reflects on fitness to practice law).

B. The Tombling Matter

Georgia Tombling and her sisters hired the respondent in May 1989 to represent their mother’s interests following an injury she sustained while at Villa Manor Care Center. In September 1989 they removed their mother from Villa Manor, and she died on September, 24, 1989 from causes unrelated to the injury at Villa Manor.

Villa Manor filed a complaint in the Jefferson County Court against Georgia Tombling and her deceased mother seeking $3,779.22 for health care services from August 1 to September 5,1989. The respondent was given the summons and complaint and he agreed to file an answer. Because he failed to do so, however, a default judgment was entered against Georgia Tombling and her mother.

On December 6, 1989, the respondent filed a complaint in Jefferson County District Court against Villa Manor on behalf of Georgia Tombling, her two sisters, and her mother’s estate, alleging breach of contract and negligence. He filed a motion for relief from the default judgment in the county court on January 2, 1990. The court issued a ten-day stay of the judgment with the provision that the respondent set the matter for hearing by January 12. When the respondent failed to do so, the stay of execution of judgment expired.

Also on January 2,1990, the respondent filed in the district court a notice of suit pending in county court, and requested that the two separate actions be consolidated in the district court. See C.R.C.P. 313(b)(1), 7B C.R.S. (1984). Although the district court did consolidate the cases, the default judgment was not set aside.

The case was placed on the district court’s arbitration docket on March 1, 1991. On respondent’s motion, an arbitration hearing was set for October 3, 1991.

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Related

People v. Fagan
423 P.3d 412 (Supreme Court of Colorado, 2018)
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Johnson v. People
35 P.3d 635 (Supreme Court of Colorado, 2001)

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Bluebook (online)
944 P.2d 524, 1997 Colo. J. C.A.R. 1907, 1997 Colo. LEXIS 843, 1997 WL 570409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-colo-1997.