People v. Miller

913 P.2d 23, 20 Brief Times Rptr. 363, 1996 Colo. LEXIS 44, 1996 WL 116357
CourtSupreme Court of Colorado
DecidedMarch 18, 1996
DocketNo. 96SA60
StatusPublished
Cited by1 cases

This text of 913 P.2d 23 (People v. Miller) 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. Miller, 913 P.2d 23, 20 Brief Times Rptr. 363, 1996 Colo. LEXIS 44, 1996 WL 116357 (Colo. 1996).

Opinion

PER CURIAM.

The respondent in this lawyer discipline proceeding entered into a stipulation, agreement and conditional admission of misconduct with the assistant disciplinary counsel. C.R.C.P. 241.18. The conditional admission recommended that the respondent be suspended from the practice of law in a range from ninety days to one year and one day. An inquiry panel of the supreme court grievance committee approved the conditional admission, and recommended suspension for one year and one day. We accept the conditional admission and the panel’s recommendation.

I

The respondent was admitted to practice law in Colorado in 1976. The conditional admission contains two counts, and the parties stipulated to the following facts and disciplinary violations.

A. The New Mexico Racetrack

Jane Ann Hebert moved to Colorado from Louisiana with $400,000 in life insurance proceeds following her husband’s death. Hebert met Tony Ciocchetti, a business promoter and entrepreneur who persuaded her to invest in the acquisition of a New Mexico track license. San Juan Downs Corporation was established for this acquisition. Hebert believed that she was the 100 percent shareholder, although Ciocchetti later asserted that he held 51 percent of the San Juan shares.

In order to demonstrate to the New Mexico Racing Commission that ample funds were available to develop the racetrack, the respondent arranged a loan prior to the racing commission hearing scheduled for March 19, 1992. The loan to Hebert was made by a physician who was a long-time client of the [24]*24respondent. The physician deposited $239,-500 into an account in Hebert’s and the respondent’s names. The respondent was a required signatory. The physician received a fee of $14,416 for the loan, and the funds remained in Hebert’s account for three weeks. The racing commission denied the license to San Juan Downs Corporation and the money was transferred back to the physician. According to Hebert and the physician, the respondent failed to disclose to them that his professional judgment was likely to be adversely affected by his representation of both parties.

The respondent also arranged two other loans from the physician to Hebert, and prepared the promissory notes for both loans. The first note dated March 17,1992, shows a loan of $14,925 with an interest rate of 12 percent. The principal was due March 31, 1992, and the note includes a default interest rate of 36 percent. The second note, dated June 12, 1992, is for $9,000, payable on August 11, 1992. The note shows an interest rate of zero percent with a default interest rate of 24 percent. According to the physician and Hebert, the respondent failed to disclose the parties’ differing interests fully at the time the respondent suggested the loans to them.

The respondent admitted that the foregoing conduct violated DR 5-105(A) (a lawyer shall decline proffered employment if the exercise of the lawyer’s independent professional judgment in behalf of a client will be or is likely to be affected by the acceptance of the proffered employment, or which would be likely to involve the lawyer in represents mg differing interests, unless it is obvious the lawyer can represent the interests of each client, and both clients consent after full disclosure); and DR 5-105(B) (a lawyer shall not continue multiple employment if the exercise of the lawyer’s independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer’s representation of another client, or if it would be likely to involve the lawyer in representing different interests, except to the extent permitted by DR S-lOSiC)).1

B. Accidental Oil

In July or early August, 1991, Hebert and Ciocchetti became interested in purchasing an interest in Accidental Oil, an oil company which had filed for bankruptcy in Wyoming. The purchase was to be made through Inter-circle Corporation, a company in which Cioc-chetti was a principal. A term of the deal was that Intercircle was to escrow $45,000 in earnest money.

Hebert gave $45,000 in cash to Ciocchetti along with a $5,000 cheek dated August 28, 1991. She believed that the cash constituted the earnest money for the oil company deal and that Ciocchetti had delivered the $45,000 to the respondent. Ciocchetti states that Hebert’s $45,000 never went to the respondent. Instead, Ciocchetti says that the entire $45,000 was expended on expenses used in furtherance of the attempt to acquire the oil company.

The physician says that the respondent approached him about loaning Intercircle Corporation $45,000 to invest in purchasing the oil company. Because the physician did not have liquid funds in the amount of $45,-000 available to lend, the respondent, through the Miller family trust, loaned the physician the $45,000 that was then given to Intercircle Corporation for earnest money in purchasing the oil company. The respondent is the settlor and the trustee of the Miller family trust.

Hebert thought that her $5,000 check was for a service fee. The payee line on the cheek was left blank.. The copy of the check that Ciocchetti gave to Hebert indicated that it had been, made payable to the respondent. According to Ciocchetti, he copied the check while the payee line was still blank then filled in the respondent’s name on the copy he gave to Hebert. The actual cheek was made payable to the physician as a loan fee.

On August 28, 1991, the physician endorsed the $45,000 family trust check and [25]*25Hebert’s $5,000 check, and gave them to the respondent who deposited both checks in his lawyer trust account the same day. This $45,000 was actually used to support Inter-circle Corporation’s bid to acquire the oil company. Intercircle’s bid was denied and the funds remained in the respondent’s trust account until September 12, 1991, when the entire $50,000 was transferred to the family trust account. The account records indicate that Hebert’s $5,000 remained in the account.

According to Hebert, the respondent never advised her of this series of events and never advised her of the conflict between his personal interests and hers when he decided to loan the physician the $45,000 from his family trust. The respondent acknowledges that he failed to disclose to Hebert that he had loaned the money from his family trust to the physician to invest in the Accidental Oil deal.

In February 1992, the respondent also arranged a loan to Hebert from another of his clients, evidenced by a February 4, 1992, promissory note in the amount of $33,000 with an interest rate of 24 percent. The note was secured by a second mortgage on Hebert’s home. The closing instructions show a loan discount fee of $1,200 and loan brokerage fee of $1,800, both of which were retained by the lender. In addition, $1,750 from the loan proceeds was paid directly to the respondent. The lender and Hebert assert that the $1,750 was paid to the respondent as an attorney fee. The respondent indicates that the $1,750 was for past attorney fees incurred by San Juan Downs Corporation and Hebert. Both the lender and the respondent agree that the respondent was not representing the lender with respect to this matter or any other matter at the time of the loan.

The respondent admits that he improperly entered into the Accidental Oil loan transaction without advising Hebert of the conflict between his personal interests and her interests.

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938 P.2d 1157 (Supreme Court of Colorado, 1997)

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Bluebook (online)
913 P.2d 23, 20 Brief Times Rptr. 363, 1996 Colo. LEXIS 44, 1996 WL 116357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-miller-colo-1996.