In
November 2022, A.C. hired Respondent to represent her in an
allocation of parental responsibilities matter in Weld
County. A.C. paid Respondent a $3,500.00 retainer, to be
billed
against hourly. The matter was set for an initial status
conference on December 22, 2022. On that date, however, the
court presiding in that matter closed due to inclement
weather. The court ordered Respondent to reset the matter
within fourteen days or submit a status report. Respondent
did neither.
On
April 27, 2023, the court issued a delay prevention notice
and order. At the time, A.C.'s former spouse had not
filed a response to A.C.'s petition, and neither party
had yet filed the required financial disclosures. The court
cautioned that failure to set an initial status conference
would result in dismissal for failure to prosecute.
Respondent set the initial status conference, as ordered.
On May
26, 2023, for the first time since the representation began
six months prior, Respondent sent A.C. an invoice for her
services. In early June 2023, A.C. asked Respondent for a
refund and terminated the representation. Respondent refused
to issue a refund, asserting that she had earned the full
retainer.
On June
1, 2022, M.W. filed a pro se motion against S.N. concerning
parenting time disputes. The court in that matter entered a
contempt citation against S.N. On June 24, 2022, M.W. hired
Respondent to represent him, paying a $3,500.00 retainer.
Respondent provided neither a basis nor a rate of her fee in
writing to M.W. Nor did she specify the scope of the
representation.
On
August 28, 2022, the court granted S.N.'s motion to
restrict M.W.'s parenting time. On October 12, 2022, the
court appointed a child and family investigator and ordered
that a report be filed within 160 days.
On
December 2, 2022, Respondent's office messaged M.W.,
stating that Respondent's son, who had been hospitalized
for most of the prior month, had recently been readmitted. In
mid-December 2022, M.W. requested an itemized invoice.
Respondent replied on the same date, promising to call M.W.
Respondent also admitted that she was behind on billing and
vowed to get M.W. an invoice soon, but she also advised M.W.
that his account balance was in the negative. Respondent sent
M.W. a request for payment through her case management system
but did not send an itemized invoice, as she believed their
call obviated the need for an itemized invoice.
On
March 7, 2023, the court held a hearing to address parenting
time restrictions and disputes. On March 12, 2023, the court
issued a written order awarding attorney's fees and costs
to M.W. Two days later, the court ordered Respondent to file
an affidavit of attorney's fees and costs by April 4,
2023, and it notified the parties that failure to do so would
result in the issue being deemed abandoned.
Around
March 21, 2023, Respondent was hospitalized for twenty-one
days due to sepsis. Respondent's office timely notified
M.W. of her hospitalization. But Respondent failed to file
the affidavit of attorney's fees and costs by the
deadline of April 4, 2023. Respondent was released from the
hospital on April 8, 2023.
On
April 19, 2023, the parties appeared in court. Respondent
orally moved for an extension of time to file the affidavit
of attorney's fees and costs. The court denied the motion
but invited Respondent to file a motion under C.R.C.P. 60.
Respondent did not file such a motion.
On May
19, 2023, the court held a permanent orders hearing and
entered various orders. The court also ordered Respondent to
file a proposed order of sanctions within fourteen days.
On May
27, 2023, Respondent informed M.W. that she had waived
$3,125.00 in fees, which represented the awarded amount for
which she had failed to file a fee affidavit. Respondent
advised M.W. to review the online case management portal and
pay the remaining balance shown in the invoice right away.
This was the first invoice Respondent issued to M.W., even
though the representation began in June 2022, nearly one year
earlier. That invoice reflected M.W. had paid a total of
$11,300.00 and had an outstanding balance of $8,417.75. M.W.
replied, stating he would pay Respondent $800.00 after she
submitted the proposed sanctions order. At the time, M.W.
operated under the belief that Respondent only needed $800.00
to complete the case and that he would owe no money
thereafter.
On June
2, 2023, the date the proposed sanctions order was due, M.W.
texted Respondent to inquire if she was going to meet the
court's deadline, which was quickly approaching.
Respondent replied that if the document were filed by 11:59
p.m., it would be timely. Respondent also inquired about
payment. She offered to remove the entire amount for the
contempt matter but required M.W. to pay the overdue balance.
Respondent then filed the proposed sanctions order. On June
16, 2023, M.W. terminated Respondent.
Respondent's
invoice dated May 27, 2023, remains outstanding. While
Respondent accurately tracked M.W.'s deposits into her
trust account, she failed to accurately track her withdrawals
related to M.W.'s matter. Respondent is unable to produce
any relevant accounting records regarding those withdrawals.
The
Parties' Sanctions Analysis
The
parties stipulate that Respondent's conduct in the A.C.
and M.W. matters violated Colo. RPC 1.3 (a lawyer must act
with reasonable diligence); Colo. RPC 1.4(a)(3) (a lawyer
must keep the client reasonably informed about the status of
the matter); Colo. RPC 1.5(b) (a lawyer must communicate the
basis or rate of the lawyer's fee in writing); and Colo.
RPC 3.4(c) (a lawyer must not knowingly disobey a court
order).
The
parties agree that Respondent violated her duty to
communicate, her duty to comply with court orders, her duty
to maintain required trust account records, and her duty to
provide her client with a written basis for the fee; that she
did so recklessly; and that she harmed her relationships with
clients and impeded the courts from functioning efficiently.
To
establish a presumptive sanction for Respondent's
admitted misconduct, the parties look to ABA
Standard 4.43 of the American Bar Association
Standards for Imposing Lawyer Sanctions ("ABA
Standards"),[2] which calls for public censure when a
lawyer negligently fails to act with reasonable diligence in
representing a client, thereby injuring or potentially
injuring a client. The parties also rely on ABA
Standard 6.23, which provides that public censure is
generally appropriate when a lawyer negligently fails to
comply with a court order or rule, thereby injuring or
potentially injuring a client or interfering or potentially
interfering with a legal proceeding. The parties agree that
three aggravating factors under ABA Standard 9.22
should apply, including Standard 9.22(a) for prior
disciplinary offenses, which they agree should be afforded
moderate weight; Standard 9.22(c) for a pattern of
misconduct, which they agree should be given moderate weight;
and Standard 9.22(d) for multiple offenses, which
they agree warrants average weight. The parties also agree
that three mitigating factors under ABA Standard
9.32 should apply: Standard 9.32(b) for
Respondent's absence of a dishonest or selfish motive,
which the parties agree should carry average weight;
Standard 9.32(c) for Respondent's personal or
emotional problems, which they agree should be afforded
significant weight; and Standard 9.32(e) for
Respondent's cooperative attitude toward proceedings,
which the parties agree should be given average mitigating
credit. Based on these elements, the parties ask the Court to
publicly censure Respondent.
The
parties also observe that Respondent's misconduct in the
A.C. and M.W. matters occurred in the same timeframe as her
misconduct in case number 23PDJ057, that it implicates
similar rules, and that it was largely driven by the same
family health crises that contributed to the misconduct in
the earlier case. They argue that if the People had known
about the A.C. and M.W. matters at the time they investigated
case number 23PDJ057, the parties likely would have resolved
them through a global resolution in that case for a six-month
stayed suspension. The parties contend that the public
censure here thus serves to notify the public of
Respondent's additional misconduct while the stayed
suspension and probationary terms in case number 23PDJ057
adequately address that misconduct.