People v. Underhill

683 P.2d 349, 1984 Colo. LEXIS 560
CourtSupreme Court of Colorado
DecidedJune 11, 1984
DocketNo. 84SA176
StatusPublished
Cited by2 cases

This text of 683 P.2d 349 (People v. Underhill) 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. Underhill, 683 P.2d 349, 1984 Colo. LEXIS 560 (Colo. 1984).

Opinion

LOHR, Justice.

After a formal complaint was filed with the Grievance Committee charging the respondent, Burton C. Underhill, with three counts of professional misconduct, the disciplinary prosecutor and the respondent executed a Stipulation, Agreement, and Conditional Admission of Misconduct. The document, as later supplemented, contained a recommendation that the respondent be suspended from the practice of law for one year and one day, and be assessed costs. An inquiry panel of the Grievance Committee approved the stipulation and agreement and forwarded it to this court. We agree that the proposed discipline is appropriate for the violations of the Code of Professional Responsibility admitted in the stipulation. Therefore, we accept the Grievance Committee recommendation.

The respondent was admitted to the bar in 1966, is registered as an attorney, and accordingly is subject to the jurisdiction of this court and its Grievance Committee with respect to his conduct as an attorney. We summarize each of the three transactions involving the misconduct upon which the disciplinary proceeding is based, taking the facts from the stipulation of the parties.

I.

In the spring of 1981, Bertha L. Ostrom retained the respondent to represent her in a transaction in which she was returning a bar and restaurant to its former owner because of inability to make a large required payment. During the course of this representation, the respondent asked Os-trom and her husband, George, if they would like to reenter the bar business by purchasing Pier 11, an establishment owned by Leroy Jaramillo, who also was a client of respondent Underhill. Although the Ostroms lacked the funds for the $25,-000 down payment on the $145,000 purchase price, the respondent assured them that he could obtain financing for the transaction notwithstanding the poor credit rating of the Ostroms. On June 9, 1981, Bertha Ostrom paid the respondent $1,000 [350]*350as a retainer on his $3,500 fee for the transaction.

On August 24, 1981, George Ostrom signed a management contract with Jaram-illo and began operating the Pier 11 business. He purchased the inventory for $6,500, using a $5,000 loan arranged by the respondent, to be repaid by coin machine returns, and paying the $1,500 balance from the bar receipts during the first two weeks of operation. When the management contract was signed, the respondent assured the parties that the closing of the Pier 11 purchase would occur in four to five weeks.

The closing did not occur as promised, and between August 24 and December 31, 1981, Jaramillo and George Ostrom attempted to get Underhill to set the closing. The liquor license for Pier 11 was to expire on December 31, and the parties were relying on Underhill to renew the license and to accomplish its transfer from Jaramillo to George Ostrom. Although the respondent eventually obtained a renewal, he never proceeded with the transfer of the license.

Despite numerous demands by the parties during January and February 1982 that the respondent arrange the closing, he did not do so. Jaramillo then learned that George Ostrom had failed to pay nearly $5,000 in Pier 11 bills and had defaulted on a loan to be assumed by the Ostroms as part of the purchase price. Jaramillo obtained other counsel, eventually recovered complete ownership and control of Pier 11, and sued and obtained judgment against George Ostrom for damages based on the unpaid bills.

The Ostroms paid Underhill $2,550 in attorney fees for this transaction, and Jaram-illo paid him $4,950. In addition, Underhill obtained a $1,500 personal loan from Jar-amillo, did not prepare a promissory note to protect his client, did not repay the loan within a few days as promised, but paid it about four months later and only after Jaramillo’s new attorney imposed pressure for repayment.

Underhill did not adequately advise either the Ostroms or Jaramillo of the possible conflicts of interest that might develop in representing both parties in the Pier 11 transaction. Despite demands by the parties, Underhill failed and refused to return essential original documents relating to that matter until subsequent counsel intervened. His actions in presenting Jaramillo with unqualified buyers and inducing the Ostroms to enter into a business venture they could not afford, with assurances that he would find financing for them, prejudiced both clients. Jaramillo also kept the Ostroms’ $2,500 earnest money payment.

The sale agreement was poorly drafted and its provisions were not followed by Underhill in structuring the prospective sale. Also, the management contract provided for the complete operation of the business by George Ostrom under Jaramil-lo’s liquor license, a procedure violating relevant liquor code regulations.

We conclude that, as the parties agreed, respondent Underhill’s conduct in the Pier 11 transaction violated C.R.C.P. 241.6 (misconduct by a lawyer); C.P.R. DR5-104(A) (entering into a business transaction with a client without full disclosure and consent); C.P.R. DR5-105(A), (B), and (C) (representing clients with differing interests without full disclosure and consent); C.P.R. DR6-101(A)(3) (neglecting a legal matter entrusted to the lawyer); and C.P.R. DR9-102(B)(4) (failure promptly to deliver properties in the possession of the lawyer and which the client is entitled to receive).

II.

After the respondent was first retained by the Ostroms in 1981, those clients expressed an interest in buying the Candelite Tavern, a bar that George Ostrom had managed for about four years and that was owned by the Kains, who also were clients of respondent Underhill. Underhill assured the Ostroms that he could arrange the necessary financing, and Bertha Os-trom then paid him $1,000 as a retainer on his $3,500 total fee for the transaction.

After a meeting between the Ostroms and the Kains, the parties agreed that Ber[351]*351tha Ostrom would purchase the Candelite for $150,000, with $25,000 down payment, including $2,500 earnest money, and the balance to be carried for seven years by the Kains. The Kains wanted Bertha Os-trom to take over the business on July 1, 1981, before the sale could be completed, and the respondent advised that this could be accomplished by use of a management contract while all necessary licenses, loans, inspections, and other matters necessary to close the sale were being obtained and accomplished. The sale and management contracts were signed on June 28, 1981, and Bertha Ostrom began operating the business on July 1. She purchased the inventory for $8,600, including $5,600 cash, with the balance to be paid to the Kains over three months. Underhill was to obtain transfer of the liquor license.

Thereafter, at least once a week until December 31, 1981, the parties contacted Underhill to inquire about setting the closing, and about the status of the liquor license. Mrs. Kain advised Bertha Ostrom that she would retake possession of the bar on January 1, 1982, unless the transaction were closed earlier. On December 31, Un-derhill advised Bertha Ostrom that the financing was arranged and that he would deliver the $22,500 balance of the down payment that afternoon. He failed to do so until January 7, 1982, when he delivered a cashier’s check obtained from his own bank.

Later, the respondent took Bertha Os-trom to his bank where she signed documents for a $30,600 loan. The proceeds were used in major part to pay the $22,500 down payment and to pay $7,000 to the respondent.

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Related

People v. Lopez
796 P.2d 957 (Supreme Court of Colorado, 1990)
People v. Underhill
708 P.2d 790 (Supreme Court of Colorado, 1985)

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Bluebook (online)
683 P.2d 349, 1984 Colo. LEXIS 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-underhill-colo-1984.