No. 91SA53Supreme Court of Colorado.
Decided May 20, 1991.
Original Proceeding in Discipline.
Page 41
Linda Donnelly, Disciplinary Counsel, for Complainant.
No Appearance for Attorney-Respondent.
EN BANC
PER CURIAM
[1] A hearing board of the Supreme Court Grievance Committee recommended that the respondent in this attorney discipline case be suspended from the practice of law for three years, with reinstatement conditioned upon paying certain restitution, and the hearing panel unanimously approved the recommendations. The respondent did not appear and did not answer the complaint filed by the disciplinary counsel, nor has he appeared in this court. We conclude that the recommendation of the hearing panel is appropriate and order that the respondent be suspended for three years, pay restitution prior to reinstatement, and be assessed the costs of these proceedings. I
[2] The respondent was admitted to the bar of this court on October 21, 1976, 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).
(Colo. 1991). Based on the admitted allegations in the complaint and the exhibits tendered by the disciplinary counsel, the board found that the following facts were established by clear and convincing evidence. [5] The respondent was retained to represent David Jeskey in a criminal matter and was paid $400 by Jeskey’s father, Roger Jeskey. The respondent entered his appearance in February 1989 and the court sent David Jeskey notice of a hearing set for May 23, 1989. The Jeskeys attempted to contact the respondent but he did not return their calls. The court had entered an order allowing the respondent to withdraw on April 20, 1989, and although the court file contained a certificate of mailing of notice to withdraw, the Jeskeys did not receive it. Roger Jeskey attended the May 23 hearing and learned that the respondent was working as an assistant district attorney. Because David did not appear, his bond was forfeited and a warrant issued
Page 42
for his arrest. Neither David nor Roger Jeskey heard from the respondent thereafter.
[6] The hearing board concluded that the respondent’s conduct violated DR 6-101(A)(3) (neglect), as well as 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). [7] With respect to count II, the hearing board found that W.D. Tripp retained the respondent to file a malpractice action against a Denver law firm in January 1989. Tripp paid the respondent $2,500 in cash and delivered a Jeep Honcho as collateral against future attorney’s fees. The respondent filed the complaint on February 13, 1989, and a motion in April 1989 asking for an extension of time to comply with the district court’s delay reduction order. The respondent was hired as an assistant district attorney in April 1989, but he did not file a motion to withdraw from the Tripp case. In addition, the respondent failed to return Tripp’s telephone calls between February and July 1989. [8] Tripp hired another attorney in August 1989 to pursue a claim against the respondent for the return of his property and case file. When that attorney’s letter to the respondent demanding the return of the $2,500 retainer, the vehicle, and the case file went unanswered, Tripp’s attorney filed a replevin action against the respondent. On October 23, 1989, a default judgment was entered against the respondent in Mesa County District Court for $6,332.40, and the respondent’s wages were garnished in November 1989. Tripp received $1,275 pursuant to the writ of garnishment, until the respondent was discharged as an assistant district attorney. [9] As the hearing board found, the foregoing conduct of the respondent violated DR 6-101(A)(3), DR 7-101(A)(1), DR 7-101(A)(2), DR 7-101(A)(3), and DR 9-102(B)(4). In addition, because the respondent did not respond to the grievance committee’s requests for investigation, and did not appear or answer the complaint filed by the disciplinary counsel, he violated C.R.C.P. 241.6(7). II
[10] The respondent’s misconduct and abandonment caused actual damage to two clients. The Jeskeys have been unable to recover the $400 retainer paid to the respondent. Tripp has only recovered $1,275 of the $6,332.40 judgment he obtained against the respondent in the replevin action. Tripp was also required to hire another attorney, at the cost of approximately $700 in attorney’s fees, just to recover the retainer and property the respondent refused to return to him.
Page 43
of the hearing panel, although two members of the court would disbar the respondent. We also find that the respondent should be required to make restitution prior to reinstatement, as recommended by the hearing board and hearing panel.
III
[14] The respondent was previously suspended by this court for ninety days for neglect of three client matters and for failure to cooperate with the grievance committee. See People v. Creasey, 793 P.2d 1159, 1162 (Colo. 1990).
Page 379