414 P.3d 1168 (Colo.O.P.D.J. 2018), 17PDJ038, People v. Swarts

Docket Nº:17PDJ038
Citation:414 P.3d 1168
Opinion Judge:WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGE
Party Name:The PEOPLE of the State of Colorado, Complainant, v. Kem W. SWARTS, Respondent.
Case Date:March 01, 2018
Court:Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado
 
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414 P.3d 1168 (Colo.O.P.D.J. 2018)

The PEOPLE of the State of Colorado, Complainant,

v.

Kem W. SWARTS, Respondent.

No. 17PDJ038

Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado

March 1, 2018

Following a sanctions hearing, the Presiding Disciplinary Judge suspended Kem W. Swarts (attorney registration number 29242) for three years, effective April 6, 2018.

Swarts’s law license was suspended in 2010 after he practiced law in violation of an administrative suspension order. He never sought reinstatement of his law license. Nevertheless, in 2016 he took on a role as the legal representative of a person who had been involved in a ski collision. Acting on behalf of the skier alleged to be at fault, Swarts wrote to counsel for the injured skier. He held himself out as a lawyer by misrepresenting himself as " general counsel" and " retired." In the letter, he made allegations regarding the injured skier’s degree of fault and the other skier’s insurance coverage.

Through his conduct, Swarts violated Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal) and Colo. RPC 5.5(a)(1) (a lawyer shall not practice law without a law license or other specific authorization).

Please see the full opinion below.

OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(c)

WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGE

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.

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I. PROCEDURAL HISTORY

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.

II. ESTABLISHED FACTS AND RULE VIOLATIONS

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: [W]e have completed a very brief investigation with the ski area, ski patrol, and witnesses. From the statements, it is apparent that Vivien Russell was at fault as [sic] her descent form [sic] the peak chair lift; she was skiing improperly, skiing across the heavy traffic upon exiting from the chair lift.

Regarding homeowner insurance or lack thereof, Artur Kunzek[ ] has renter insurance for the premises in Keystone. There is no coverage for this occurrence.

Lastly, Artur Kunzek has just completed his Chapter 7 proceedings and we are assisting him in his attempt to have a new economic start and to reestablish himself; thus this is pro bono.4

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

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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.

III. SANCTIONS

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.

ABA Standard 3.0— Duty, Mental State, and Injury

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.

ABA Standards 4.0-7.0— Presumptive Sanction

In this case, four separate ABA Standards arguably apply: • ABA Standard 8.1(a) provides that disbarment is generally warranted when a lawyer knowingly violates a prior disciplinary order, causing injury or potential injury to a client, the public, the legal system, or the legal profession.

• ABA Standard 8.1(b) pegs disbarment as the presumptive standard when a lawyer has been suspended for the same or similar misconduct,10 yet knowingly engages in further misconduct that harms or potentially harms a client, the public, the legal system, or the profession.

• ABA Standard 6.22 calls for suspension when a lawyer knowingly violates a court order, causing injury or potential injury to a client or other party or

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• ABA...

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