417 P.3d 215 (Colo.O.P.D.J. 2018), 17PDJ065, Falco v. People

Docket Nº:17PDJ065
Citation:417 P.3d 215
Opinion Judge:WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE
Party Name:Philip M. FALCO III, #27930, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
Case Date:March 06, 2018
Court:Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado
 
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417 P.3d 215 (Colo.O.P.D.J. 2018)

Philip M. FALCO III, #27930, Petitioner,

v.

The PEOPLE of the State of Colorado, Respondent.

No. 17PDJ065

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

March 6, 2018

OPINION AND DECISION GRANTING REINSTATEMENT UNDER C.R.C.P. 251.29(e)

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

Philip M. Falco III ("Petitioner") seeks reinstatement of his law license after a nine-month suspension from the practice of law. In 2013, he pleaded guilty to attempted third-degree assault on his then-wife, who was pregnant at the time. The couple’s children were nearby at the time of the assault. Petitioner’s credibility and expressions of remorse were called into doubt at the disciplinary hearing, and he was required to petition for reinstatement. Petitioner has now proved by clear and convincing evidence that he is rehabilitated and has experienced a change in his character since his misconduct that makes him worthy of reinstatement to the practice of law.

I. PROCEDURAL HISTORY

On January 20, 2016, in Petitioner’s underlying disciplinary case, Presiding Disciplinary Judge William R. Lucero ("the PDJ") granted a motion for judgment on the pleadings filed by Geanne R. Moroye, Office of Attorney Regulation Counsel ("the People"). A hearing on the sanctions was held before a hearing board on June 1, 2016. On July 7, 2016, that hearing board issued an "Opinion and Decision Imposing Sanctions Under C.R.C.P. 251.19(b)," suspending Petitioner’s law license for nine months, with the requirement

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that he petition for reinstatement under C.R.C.P. 251.29(c).

On September 12, 2017, Petitioner filed with the PDJ a "Verified Petition for Reinstatement After Suspension Pursuant to C.R.C.P. 251.29(c) (with Exhibits)." The People filed an answer on October 3, 2017.

At the reinstatement hearing held on January 30, 2018, the PDJ presided, and was joined by Hearing Board members E. Lee Reichert III and John E. Hayes, both lawyers. Petitioner appeared pro se, and Moroye attended on behalf of the People. The Hearing Board considered testimony from Armando Payan, Petitioner,1 and Laurie Ann Seab. The PDJ admitted stipulated exhibits S1-S13 and Petitioner’s exhibit 1. At the conclusion of the hearing, the People conceded that Petitioner should be reinstated because he met his burden of proving that he is rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law.

II. FINDINGS OF FACT

The findings of fact here— aside from the section describing Petitioner’s prior discipline— are drawn from testimony offered at the reinstatement hearing, where not otherwise noted. In general, the Hearing Board found the testimony offered at the reinstatement hearing to be both credible and uncontroverted.

Petitioner took the oath of admission and was admitted to practice law in Colorado on March 31, 1997, under attorney registration number 27930. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this reinstatement proceeding.2

The Basis for Petitioner’s Discipline

As set forth in the "Opinion and Decision Imposing Sanctions Under C.R.C.P. 251.19(b)," Petitioner’s discipline was premised on his assault of his then-wife, Amber Falco, who was, at the time, twenty weeks pregnant with their fourth child.3 On December 1, 2013, Petitioner and Ms. Falco argued in their garage while retrieving Christmas decorations.4 After Petitioner made belittling comments to Ms. Falco, the couple went into the kitchen, near where their young children were watching a movie.5 Ms. Falco got her phone to call 9-1-1, but Petitioner took the phone from her hand and hit her on the face.6 She managed to get the phone and run into the bedroom to call 9-1-1, but her call did not go through.7 Petitioner kicked in the door, pushed Ms. Falco onto the bed, and punched her in the face multiple times with a closed fist while he straddled her stomach.8 She was able to push and kick him off her, but he grabbed her foot and pulled her off the bed.9 The couple’s children entered the bedroom.10 Ms. Falco rushed the children from the house and drove away.11 She later called 9-1-1.12 The next day, she went to St. Anthony’s North Hospital where she was diagnosed with a concussion.13

Petitioner pleaded guilty in Adams County to attempted third-degree assault, domestic violence, on February 3, 2015.14 He was sentenced to twelve months of probation, with a domestic violence evaluation and domestic violence counseling.15 His probation required (1) domestic violence group therapy— ninety-minute classes over the course of nine months; (2) two-hour weekly anger management

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classes for nine months; (3) regular visits with his probation officer; and (4) random drug and alcohol EtG tests.16 After nine months, Petitioner completed his probation. He also paid $1,474.50 in fines and costs.17

During the 2016 disciplinary hearing, Petitioner’s testimony about the assault was deemed not to be credible, in part because it was inconsistent with testimony provided by Ms. Falco’s and the sheriff deputy who responded to her 9-1-1 call.18 The disciplinary opinion concluded that Petitioner "struck Ms. Falco with a closed fist several times" and that it was "highly implausible" that Petitioner hit her with an open hand, as he claimed during his testimony.19 The opinion further stated that Petitioner "in subtle but numerous ways sought to minimize his own conduct and to malign Ms. Falco."20 Given Petitioner’s lack of candor and his efforts to minimize his own conduct, Petitioner was deemed not to have been "rehabilitated from the underlying issues that led to his assault upon Ms. Falco."21

Petitioner’s conduct violated Colo. RPC 8.4(b). That rule provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.22 Petitioner’s lack of remorse and refusal to take responsibility for his misconduct influenced the sanction: he was suspended for nine months with the requirement that he petition for reinstatement, if at all, under C.R.C.P. 251.29(c).23 Petitioner’s suspension took effect on August 11, 2016. After his suspension, Petitioner complied with the requirements set forth in the disciplinary opinion and the PDJ’s August 2016 order of suspension.24

Petitioner’s Reflections on His Misconduct

At his reinstatement hearing, Petitioner told the Hearing Board that he was married to Ms. Falco from 2007 to 2014. He explained that in December 2013, he was in a "really bad state" and in a "really bad relationship." He maintained that he stayed in the marriage because, as a Catholic, he did not want to divorce.

On reflection, he says, he realized that he waited "way too long" to end the marriage and, as a result, he "blew his top" and "just lost it." Petitioner attested that he failed to communicate with Ms. Falco during the marriage, allowing his anger to build up and fester. He admitted, however, that he was "completely in control" and that there was "no question that [he] was absolutely responsible for [his] own actions."

Petitioner admitted that he minimized his misconduct in the disciplinary hearing. Although he expressed concern that he might face legal consequences if he were to contradict his prior testimony, he said that he did not dispute the validity of the factual findings in the disciplinary opinion, including the finding that he struck Ms. Falco multiple times with a closed fist. There was no question in his mind, he stated, as to what happened during that assault, and he noted that it has been difficult to come to terms with the possibility that he harmed his unborn child. He acknowledged that he now must live with his actions; he said that if he could reverse time he would. He was adamant that such an assault would never happen again.

Petitioner’s Personal and Professional Life

Petitioner’s parents divorced when he was nine years old, and he split his time between

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his father, who drove a cab in Manhattan, and his mother and step-father, who lived on Long Island. Petitioner attended a competitive all-boys Catholic high school, where he excelled in math and accounting. After graduating, Petitioner attended St. John’s University in New York, majoring in accounting. He later became a certified public accountant ("CPA"). Petitioner attended the same university for law school and graduated in 1994. Soon thereafter, he was admitted to the New York bar.

Petitioner testified that he studied Indian law during law school and wanted to visit the Black Hills in South Dakota after graduating. So he drove to South Dakota and lived on a campground for...

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