Vol. 43, No. 1
From the Courts
Colorado Disciplinary Cases
Disciplinary Case Summaries
The summaries of disciplinary case Opinions and Conditional Admissions of Misconduct are prepared by the Office of the Presiding Disciplinary Judge (PDJ) and are provided as a service by the Colorado Bar Association (CBA). The CBA cannot guarantee the accuracy or completeness of the summaries. The full text of the disciplinary Opinions, when published by the PDJ, follows the summaries page(s). The summaries and full-text Opinions also are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes"). Opinions, including exhibits, complaints, amended complaints, and summaries, also are available at the PDJ website, www.coloradosupremecourt.com/PDJ/pdj.htm, and on LexisNexis.®
Summaries of Decisions Regarding
Conditional Admission of Misconduct Issued by the PDJ
The PDJ’s approval of a Conditional Admission of Misconduct does not result in a written Opinion but only a brief Order, which does not constitute precedent. Conditional Admissions of Misconduct are public record and are available for review at the Office of the PDJ, 1560 Broadway, Ste. 675, Denver, CO 80202; (303) 866-6658; www.coloradosupremecourt.com/PDJ/pdj.htm. They also are available on LexisNexis.®
No. 13PDJ037. People v. Atherton. 11/07/2013. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Rodney C. Atherton, attorney registration number 18702, for eighteen months, with four months to be served and the remainder stayed pending successful completion of a two-year period of probation, with conditions. The suspension was effective November 15, 2013.
When Colorado law began allowing generous tax credits for conservation easements in the early 2000s, Atherton began creating corporate entities to invest in other entities owning properties that could be donated for conservation easements. Atherton acted in multiple overlapping roles: he managed some of the entities he created; prepared legal documents to transfer properties; served on the board of directors for the charity that received the donated easements; recommended appraisers for the easements; prepared legal documents concerning the sale of some tax credits that resulted from the easement donations; and, in some instances, recommended—without adequate disclosure—that a client hire his father’s company to prepare reports integral to the easement donation process. Because Atherton represented clients with conflicting interests and failed to disclose his personal and professional conflicts, many investors—some of whom were also Atherton’s clients—suffered injury by having their tax credits disallowed.
In addition, Atherton structured a company managed by his brother but intentionally did not inform the company’s investors, one of whom also was a client, that his brother previously had been accused of mismanaging a loan. Later, Atherton suspected his brother had stolen money from the company, investigated the matter, demanded his brother resign, and assumed a de facto manager role. Atherton intentionally did not disclose to investors his suspicion that his brother had stolen money from the company.
The PDJ determined Atherton violated several Rules of Professional Conduct. He violated Colo. RPC 1.7(a) and (b) (version 2002) (limiting a lawyer’s permission to represent a client where the representation is directly adverse to another client, or where the representation may be materially limited by the lawyer’s responsibilities or interests); 1.8(a) and (f) (version 2002) (restricting the circumstances in which a lawyer may enter into a business transaction with a client or knowingly acquire a pecuniary interest adverse to the client, and the circumstances in which a lawyer may accept fees for representing a client from one other than the client); 1.3 (version 2002) (a lawyer shall exercise reasonable diligence and promptness); 1.4(a) and (b) (version 2002) (a lawyer shall keep a client reasonably informed about the status of a matter, promptly comply with reasonable requests for information, and explain a matter so that a client can make informed decisions); and 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).
No. 12PDJ084, consolidated with No. 13PDJ039. People v. Lee. 10/31/2013. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Linda Marie Lee, attorney registration number 39528, for one year and one day, with six months to be served and the remainder stayed pending successful completion of a two-year period of probation, with conditions. Those conditions include attending Ethics School and Trust Account School, submitting to financial monitoring, and working with an attorney mentor. The suspension was effective December 5, 2013.
In a juvenile theft case, Lee believed her client, the defendant, had been misidentified by the victim. At trial, she arranged for her client to sit in the back of the courtroom and for a friend of her client to sit at counsel table. During her opening statement, Lee pointed to the client’s friend, saying "my client is innocent." This stratagem worked to her client’s detriment, because the victim accurately identified the defendant in the gallery. The judge found Lee in contempt and granted the defendant a new trial based on Lee’s fraud on the court. Lee violated Colo. RPC 1.2(d) (counseling a client to engage in fraudulent conduct); 3.3(a)(1) (knowingly making a false statement of material law or fact to a tribunal); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice).
In a second criminal defense case, Lee accepted two payments of $5,000 in legal fees. In both instances, she initially put the fees in her trust account and then transferred them the following day into her operating account without having fully earned the fees. She therefore violated Colo. RPC 1.5(f) (fees are not earned until a lawyer confers a benefit on the client or performs legal services); 1.15(a) (failing to keep client funds separate from a lawyer’s own property and negligently converting client funds); and 1.15(c) (neglecting to keep disputed property separate until there is an accounting and severance).
After Lee was removed from the case due to a conflict, she never provided an accounting. She refunded the full retainer eight months after the representation terminated, after a petition for immediate suspension of her law license was filed. Lee thereby breached Colo. RPC 1.15(b) (failing to provide a full accounting on request) and 1.16(d) (failing, on termination, to surrender papers and property to which a client is entitled).
No. 13PDJ086. People v. Martinez. 11/14/2013. Attorney Suspended.
The PDJ approved the parties’ conditional admission of misconduct and suspended Leonard Anthony Martinez, attorney registration number 26160, for six months, all stayed pending the successful completion of a two-year period of probation, with conditions, including attending Ethics School, submitting to a financial audit and financial monitoring, and paying costs. The suspension was effective November 14, 2013.
Martinez represented a client in a personal injury suit. He settled the matter and deposited the settlement proceeds in his trust account, disbursing a portion to his client but holding back some funds to pay his client’s medical liens and other bills. Although Martinez believed that he had sent checks in early 2011 to satisfy certain liens, no payments were made at that time. As a result, the client faced a collection action, and one doctor refused to provide him further medical treatment. The client contacted Martinez throughout late 2011 and early 2012 to ask for proof of payment, but Martinez did not do so. His conduct violated Colo. RPC 1.2(a) (a lawyer shall abide by a client’s decisions concerning the objectives of the representation); 1.3 (a lawyer shall act with reasonable diligence and promptness); and 1.4(a)(2) through (4) (a lawyer shall communicate with the client and comply with reasonable requests for information).
In June 2012, Martinez settled the collection action but did not pay any other liens or bills until learning of the client’s request for investigation. During the summer of 2012, Martinez had no more than $9,000 in his trust account, even though he was holding more than $17,000 of the client’s funds, thereby contravening Colo. RPC 1.15(a) and (c) (a lawyer shall hold client property separate from the lawyer’s own property until there is an accounting and severance of interests). After receiving the client’s request for investigation, Martinez reviewed his accounting records and learned that the client’s ledger incorrectly had been closed. He thereafter terminated the employment of the staff member responsible, completed payment of the client’s liens, and disbursed to the client his remaining funds.
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