People v. Swarts
| Decision Date | 01 March 2018 |
| Docket Number | Case Number: 17PDJ038 |
| Citation | 414 P.3d 1168 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Kem W. SWARTS, Respondent. |
| Court | Colorado Supreme Court |
Kem W. Swarts ("Respondent") was suspended from the practice of law in 2010 and never sought reinstatement of his law license. Nevertheless, in 2016 he acted as the legal representative of a person who had been involved in a ski collision. Respondent's conduct in violation of Colo. RPC 3.4(c) and 5.5(a)(1) warrants a three-year suspension.
Alan C. Obye, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero (the "Court") on May 31, 2017. The People sent a copy of the complaint the same day to Respondent's registered business address as well as two last-known addresses. Respondent failed to answer. By order dated August 16, 2017, the Court entered default, thereby deeming admitted the allegations and claims in the complaint.
A sanctions hearing was originally set for November 1, 2017, but the Court continued the hearing to January 17, 2018. At the hearing that day, Obye represented the People and Respondent did not appear. The People's exhibits 1-2 were admitted into evidence. No testimony was provided.
The Court adopts and incorporates by reference the averments in the admitted complaint, presented here in condensed form. Respondent took the oath of admission and was admitted to practice law in Colorado on March 10, 1998, under attorney registration number 29242. He is thus subject to the Court's jurisdiction in this disciplinary proceeding.1
In June 2010, the Court issued an order suspending Respondent's law license for ninety days, with the requirement that he file for reinstatement, if at all, under C.R.C.P. 251.29(c). This order, which was issued under case number 09PDJ080, was based on Respondent's practice of law in violation of an administrative suspension order by representing his wife in a matter in Arapahoe County Court. Respondent's administrative suspension had been premised on his failure to comply with rules governing continuing legal education and registration fees. Respondent has never been reinstated from his disciplinary suspension.
The present case relates to the aftermath of a March 2015 collision at Breckenridge ski resort between two skiers, Vivien Russell and Artur Kunzek. Following the collision, Russell retained attorneys Russell Hatten and Michael Kleeman. Kleeman wrote to Kunzek in February 2016, saying that Russell had retained his office in connection with injuries she suffered in the collision. The letter asked Kunzek to notify his homeowners' insurance company of Russell's claim.
In May 2016, Respondent wrote to Kleeman on Kunzek's behalf. The letterhead of Respondent's letter reads: "GLOBAL TECHNOLOGIES, LTD. GENERAL COUNSEL."2 Respondent's address, phone number, and email address appear on one side of the letterhead. The other side reads: "RETIRED Colorado Nebraska Iowa Arizona."3 The body of the letter states:
After receiving this letter and finding public records showing that Kunzek owned his residence in Breckenridge, Hatten attempted to call Respondent. Hatten left two messages but did not hear back from Respondent. Hatten then discovered that Respondent's law license was suspended.
After Respondent sent the May 2016 letter, Kunzek hired counsel. Kunzek's counsel sent Hatten a copy of Kunzek's homeowner's insurance policy, which had a $5,000.00 medical payments benefit and a $300,000.00 liability limit. According to Hatten, the policy refutes Respondent's statement that "[t]here is no coverage for [the collision]."5 Russell sued Kunzek; the case settled and was dismissed in January 2017.
By acting as Kunzek's counsel while subject to a disciplinary order of suspension, Respondent violated Colo. RPC 3.4(c), which provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal. The same conduct also violated Colo. RPC 5.5(a)(1), which states that a lawyer shall not practice law without a law license or other specific authorization.
The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ")6 and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.7 When imposing a sanction after a finding of lawyer misconduct, the Court must consider the duty violated, the lawyer's mental state, and the actual or potential injury caused by the misconduct. These three variables yield a presumptive sanction that may be adjusted based on aggravating and mitigating factors.
Duty : By practicing law in defiance of a disciplinary suspension order, Respondent violated his duties to both the legal system and the legal profession. Respondent held himself out as a lawyer by misrepresenting himself as "general counsel" and "retired."8 His letter also made legal assertions on Kunzek's behalf.9 Respondent's actions thus flouted the Colorado Supreme Court's disciplinary authority.
Mental State : The entry of default establishes that Respondent knowingly practiced law while under an order of suspension.
Injury : Respondent charged no fee for his work and there is no evidence that he meaningfully harmed Kunzek, although his misstatement about Kunzek's insurance could have created some difficulties for both Kunzek and opposing counsel. Respondent injured the legal system and legal profession by disobeying a court order that restricted his practice of law.
In this case, four separate ABA Standards arguably apply:
The Court recognizes that ABA Standard 8.0 is unique among the Standards because it serves as an overlay to other presumptive sanctions. The Colorado Supreme Court has elected to apply Standards 8.1(a) or (b) in a variety of cases in which the elements enumerated in those Standards are present,11 yet it has not mentioned Standards 8.1(a) or (b) in other cases in which the elements appear to have been satisfied.12 Though the Colorado Supreme Court has not set forth a framework guiding application of Standards 8.1(a) and (b), guidance may be drawn from the tenor of the case law as well as from the Annotated Standards for Imposing Lawyer Sanctions .
As explained in the Annotated Standards for Imposing Lawyer Sanctions, Standard 8.1(a), in particular, exists to maintain the integrity of the disciplinary process as well as to protect the public.13 In other jurisdictions, Standard 8.1(a) is "nearly always" applied when a violation of a disciplinary order causes injury or potential injury, whether to a client, the public, the legal system, or the legal profession.14 Standard 8.1(b), meanwhile, "protect[s] the public from further misdeeds when lesser sanctions have proved inadequate to dissuade similar misconduct."15 In addition, Standard 8.1(b) helps to maintain the efficacy of the disciplinary system by deterring further misconduct and providing a clear message to other lawyers.16 As this Court understands it, Standards 8.1(a) or (b)—as "presumptive sanctions"—normally should be applied where their elements are satisfied so as to promote consistency.17 Yet in limited circumstances,18 these Standards may be deemed unsuitable based on factors including the degree of injury or potential injury,19 whether recidivism appears likely,20 the degree to which the lawyer acted willfully,21 the magnitude of the violation of a disciplinary order,22 the level of similarity between past and present offenses,23 whether the lawyer has a "long track record of repeating the same misconduct,"24 and the amount of time that elapsed between past and present offenses.25
Here, the elements of ABA Standard 8.1(a) and 8.1(b) are satisfied: Respondent knowingly violated a prior disciplinary order and knowingly committed similar misconduct (practicing law without a valid law license) on two successive occasions. Nevertheless, the degree of injury appears to be quite small, the magnitude of the misconduct very modest, and the pattern of misconduct only an incipient one. As such, the Court finds that ABA Standards 8.1(a) and...
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