People v. Koeberle

810 P.2d 1072, 15 Brief Times Rptr. 623, 1991 Colo. LEXIS 289, 1991 WL 75379
CourtSupreme Court of Colorado
DecidedMay 13, 1991
DocketNo. 90SA490
StatusPublished

This text of 810 P.2d 1072 (People v. Koeberle) 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. Koeberle, 810 P.2d 1072, 15 Brief Times Rptr. 623, 1991 Colo. LEXIS 289, 1991 WL 75379 (Colo. 1991).

Opinion

PER CURIAM.

The respondent in this consolidated attorney discipline case was charged with three counts of misconduct in two separate complaints. A majority of the hearing panel of the Supreme Court Grievance Committee approved the findings and recommendation of the hearing board that the respondent be suspended from the practice of law for a year and a day, pay restitution, and be assessed the costs of the proceedings. Neither the respondent nor the assistant disciplinary counsel has excepted to the hearing panel’s action. We accept the recommendation of the hearing panel.

I

The respondent was admitted to the bar of this court on April 7, 1966, is registered as an attorney upon this court’s official records, and is subject to the jurisdiction of this court. C.R.C.P. 241.1(b). The parties entered into an unconditional partial stipulation of facts and admission of misconduct. In addition, the board received exhibits and heard the testimony of witnesses called by the assistant disciplinary counsel and the respondent. The board found that the following facts were established by clear and convincing evidence.

A

Complaint GC 89A-3

The complaint in GC 89A-3 arose from the respondent’s representation of Darlene Koetting and Jerry McDonald. Count I charged the respondent with violations of DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration of justice); DR 5-105(A) (a lawyer shall decline proffered employment which would be likely to involve him in representing differing interests); DR 7-101(A)(3) (a lawyer shall not intentionally prejudice or damage his client during the course of the professional relationship); and DR 9-102(B) (a lawyer shall not mishandle the funds or property of a client).

Count II alleged that the respondent violated DR 6-101(A)(3) (a lawyer shall not neglect a legal matter entrusted to him). The complaint also charged the respondent with violating DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule), and C.R.C.P. 241.6(1) (any act or omission violating the provisions of the Code of Professional Responsibility is grounds for attorney discipline).

Darlene Koetting, who was a former client of the respondent, introduced the respondent to her husband, Jerry McDonald, in January 1981. McDonald retained the respondent to represent him in certain post-dissolution matters involving his former [1074]*1074wife, Gwen Ferree. McDonald also consulted the respondent with respect to insurance claims arising from an arson that occurred at a residence owned by McDonald and Ferree in December 1980, and from a burglary in November 1980 in which several of McDonald’s guns disappeared. McDonald was a suspect in the arson and the respondent called the Clear Creek County District Attorney on McDonald’s behalf. No charges were filed against McDonald at that time. The respondent eventually was successful in resolving McDonald’s insurance claims.

In April 1982, Koetting informed the Clear Creek County Sheriff’s Office that McDonald had confessed to the December 1980 arson. The respondent accompanied McDonald and Koetting to the sheriff’s office where McDonald met privately with Officer Woodmancy. McDonald did not confess to the arson at this time, but subsequently confessed in June 1982. He eventually pleaded guilty to first-degree arson and was sentenced to five years probation. At the providency hearing, McDonald informed the court that he was representing himself. On conflicting evidence, the hearing board found that the respondent did not persuade McDonald to confess to the arson as charged in the complaint, but advised him to obtain other criminal defense counsel.

In October 1981, the respondent drafted a petition for dissolution of marriage on behalf of Koetting, and the petition was filed in Clear Creek County district court and McDonald was served with a copy. Koetting and McDonald then reconciled and the petition was dismissed for failure to prosecute in November 1983. Nothing further was done on the divorce until 1984 when, at Koetting’s request, the respondent attempted to obtain permanent orders without refiling or reopening the case. The case was again dismissed on motion of counsel for McDonald.

The respondent obtained no written waiver of the conflict between his representation of Koetting and his employment by McDonald regarding the dissolution of his first marriage. Although the testimony was conflicting, the hearing board found that the respondent did not obtain McDonald’s oral waiver to the conflict. Until he was permitted to withdraw in September 1983, the respondent continued to represent McDonald in the action involving post-dissolution matters from McDonald’s first marriage.

In October 1984, workers found six guns that McDonald listed as missing after the November 1980 burglary of his residence in a false wall in the residence. The respondent took possession of the six guns and filed an attorney’s lien on the guns in Koet-ting’s dissolution action. The district judge in the dissolution action ordered the respondent’s partner to instruct the respondent to deliver the guns to McDonald or bring them to the court. The respondent did neither, but rather delivered two of the guns to a gun dealer who refused to return them. The respondent was eventually able to deliver two of the guns to the grievance committee, but the rest were lost.

The hearing board found, and we agree, that the respondent violated DR 5-105(A) when he filed the dissolution petition on behalf of Koetting while still representing McDonald in the post-dissolution matters from his first marriage. The multiple representation presented an obvious conflict, and the respondent did not obtain McDonald’s consent to the conflict after full disclosure as required by DR 5-105(C). The respondent violated DR 1-102(A)(5) when he disregarded the court order to turn in the guns, and mishandled client property contrary to DR 9-102(B). By virtue of the foregoing, the respondent also violated DR 1-102(A)(1) (violation of disciplinary rule) and C.R.C.P. 241.6(1) (act vio-lative of Code of Professional Responsibility).1 The respondent admitted that his handling of Koetting’s dissolution action constituted neglect in violation of DR 6-101(A)(3).

[1075]*1075B

Complaint GC 90A-3

This complaint arose out of the respondent’s handling of the estates of Richie and Helen Boatman. The Boatmans, husband and wife, were friends of the respondent and both died as the result of a house fire in May 1982. The respondent was named as the personal representative of both estates. The companion wills, prepared by the respondent, provided that the assets of the estates would go into a trust to be divided into equal shares for the benefit of Eric Boatman, Amie Anderson, and the St. Andrew Presbyterian Church. Eric Boatman and Amie Anderson, the Boatmans’ son and daughter, were to receive one-third of their shares of the trust upon reaching age 21, one-third at 25, and the remainder at age 30.

The respondent distributed assets of the estates directly to Eric and Amie and not into the family trust. The wills were lodged with the court in May 1982, and the respondent was named personal representative of the estates within the same month. No inventory, accounting, or other filing was made with the probate court over the next two years.

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Related

People v. Sullivan
802 P.2d 1091 (Supreme Court of Colorado, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
810 P.2d 1072, 15 Brief Times Rptr. 623, 1991 Colo. LEXIS 289, 1991 WL 75379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-koeberle-colo-1991.