People v. Lowery

894 P.2d 758, 19 Brief Times Rptr. 747, 1995 Colo. LEXIS 228, 1995 WL 262834
Supreme Court of Colorado·Decided May 8, 1995·No. 94SA288·Published·Cited by 14 cases

Opinion

PER CURIAM.

In this lawyer discipline proceeding three complaining witnesses (the victims), employees of the law firm of the respondent, Philip E. Lowery, asserted that on several occasions the respondent inflicted vulgar, degrading non-consensual sexually abusive conduct *759 on them. The hearing board (the board) entered findings and conclusions to the effect that the respondent engaged in professional misconduct and recommended imposition of a thirty-day suspension as a sanction. A hearing panel of the Supreme Court Grievance Committee approved the board’s findings of fact and conclusions but recommended the imposition of a ninety-day suspension. The respondent filed exceptions to the hearing panel’s recommended discipline, asserting that it was too severe. We accept the findings and conclusions of the board. However, in view of the gravity and extent of the respondent’s misconduct, we conclude that suspension for a period of one year and one day is the appropriate sanction.

I

The respondent was admitted to the Colorado Bar in 1960 and is subject to the jurisdiction of this court and of the committee. Prior to the commencement of the evidentia-ry hearing in this matter the respondent and the assistant disciplinary counsel entered into an unconditional stipulation, agreement, and admission of misconduct containing the respondent’s admission that his “general course of conduct with the complaining witnesses, as detailed in the complaint, was inappropriate” and violated DR 1 — 102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the lawyer’s fitness to practice law) and C.R.C.P. 241.6(3) (misconduct involving any act or omission violating the highest standards of honesty, justice or morality is grounds for discipline). However, the stipulation also contained a provision that the respondent “does not agree with each and every factual allegation of the Complaint ... and wishes to testify thereto, and to present other evidence in mitigation.”

At the evidentiary hearing, the victims and the respondent testified with respect to the particular circumstances constituting the respondent’s admitted misconduct. Because the respondent’s testimony frequently conflicted with testimony presented by the victims, the board was required to assess his credibility. The board concluded that the' stipulation served to confuse the issues rather than to clarify them and that if the stipulation had been submitted to the board for approval prior to the hearing the board would have rejected the stipulation. We agree with that conclusion.

II

The board found that the following facts were established by clear and convincing evidence.

In October 1990, the respondent’s firm hired one of the victims as a paralegal. She resigned her position four days later. During that period of time the respondent engaged in sexually provocative conduct in her presence and made numerous lewd, sexually graphic remarks to her. On one occasion he prevented her from leaving his office and, notwithstanding her protests, grabbed her hips and kissed her. She reported this incident by telephone to a rape crisis center.

Another of the victims worked as a receptionist at the respondent’s law firm from 1985 until March 30, 1990. On several occasions subsequent to 1988 the respondent kissed her or grabbed her crotch, or touched her breasts in the sight of other employees. 1 He also repeatedly made lewd and sexually suggestive comments to her.

The third victim began working for the respondent’s law firm as a paralegal in December 1987. When she was admitted to practice in 1988, she was employed by the firm as an associate attorney. Soon after she commenced her employment as an associate attorney the respondent initiated a conversation of a sexual nature with her in a courtroom while she was observing a trial in progress. At other times he made comments about the sexual abilities of himself and others. In May of 1989, the respondent asked this victim to discuss a case in his office. When she entered the office he grabbed her shoulders, tried to hug her, and kissed the side of her head in spite of her protests. She then screamed and left the office. In August *760 of 1989 this victim filed a complaint with an administrative agency alleging discrimination in her employment. Two days later the law firm terminated her employment.

Because the respondent’s sworn testimony at times directly contradicted testimony presented by the victims, the board was required to weigh the credibility of the witnesses. The board determined that the testimony of the three victims was more credible than the respondent’s testimony. The board did not, however, find that the respondent submitted false evidence. See People v. Good, 893 P.2d 101 (Colo.1995), slip op. at 10; People v. Wechsler, 854 P.2d 217, 222-23 (Colo.1993); cf. American Bar Association Standards for Imposing Lawyer Sanctions 9.22(f) (1991 & Supp.1992) (ABA Standards) (submission of false evidence is an aggravating factor with respect to discipline).

Ill

The hearing panel recommended imposition of a ninety-day suspension. The respondent filed exceptions to this recommendation, arguing that a private censure would constitute an appropriate sanction. As the parties recognize in their briefs, the ABA Standards do not directly address the question of appropriate discipline for lawyers who sexually harass their employees.

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People v. Lowery, 894 P.2d 758, 19 Brief Times Rptr. 747, 1995 Colo. LEXIS 228, 1995 WL 262834 (Colo. 1995).

894 P.2d 758 (People v. Lowery) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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