People v. Jones, Case Number: 17PDJ077

• Citation: 422 P.3d 1093
• Decision Date: 23 May 2018
• Docket Number: Case Number: 17PDJ077
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Ken JONES, Respondent.
• Court: Supreme Court of Colorado

422 P.3d 1093

The PEOPLE of the State of Colorado, Complainant,

v.Ken JONES, Respondent.

Case Number: 17PDJ077

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

May 23, 2018

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

WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGE

Ken Jones ("Respondent"), a lawyer licensed in Georgia but not in Colorado, operated a satellite office in Denver. Respondent purchased foreclosure information related to Colorado homes and then sent solicitation letters to homeowners advertising his legal services. The solicitation letters were not clearly marked as advertising material and misled homeowners into believing Respondent was associated with a county public trustee. These letters urged homeowners to take immediate action or risk facing fines or imprisonment. Respondent's conduct in violation of Colo. RPC 7.1(a)(1), 7.3(d), and 8.4(c) warrants suspension for one year and one day.

I. PROCEDURAL HISTORY

Geanne R. Moroye, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the Court") on November 15, 2017. The People sent a copy of the complaint to Respondent's registered business address. Respondent failed to file an answer. By order dated January 29, 2018, the Court entered default, thereby deeming admitted the allegations and claims in the complaint.

On April 26, 2018, the Court held a sanctions hearing under C.R.C.P. 251.15(b).¹ Moroye represented the People; Respondent appeared by telephone.² During the hearing, the Court granted the People's request to DISMISS Claim I of their complaint, alleging a violation of Colo. RPC 4.1(a).

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 Georgia on December 9, 2005, under Georgia attorney registration number 435125. Respondent maintains a satellite office in Colorado, where he provides legal services concerning foreclosure defense and mortgage modification. He is thus subject to the Court's jurisdiction in this disciplinary proceeding.³

Respondent owns and manages Jones & Associates Law Group, LLC. The main office is located in Atlanta, and the satellite office is located in Denver.

Respondent purchased foreclosure information related to Colorado homes from RENAV, a data accumulation resource for short sales, auctions, foreclosures, and other distressed property. After obtaining this information, Respondent sent solicitation letters to homeowners, advertising his legal services. The return address area of the envelopes containing the solicitation letters stated: "Re: Mesa County Public Trustee Auction."⁴ Respondent's name did not appear. The designation implies that the letter came from the Mesa County Public Trustee ("Trustee"). "IMPENDING ACTION" also appeared in bold letters on the front of the envelope above the addressee information.⁵ This statement appeared in red ink, with all capital letters, in a large font. It was underlined for emphasis.

The back of the envelope read: "WARNING: $2,000 FINE, OR FIVE YEARS IMPRISONMENT OR BOTH FOR ANY PERSON INTERFERING WITH OR OBSTRUCTING DELIVERY OF THIS LETTER U.S. MAIL 16 USC 170."⁶ There was no statement on the envelope indicating that it contained advertising material.

Based on the return address, the Trustee received two letters returned as undeliverable by the U.S. mail service. The Trustee had not sent these letters.

The contents of the letter were misleading in several ways. First, the designation "Re: Mesa County Public Trustee" appeared in the upper left-hand corner of the letter.⁷ This suggests that the Trustee sent the letter. Second, the body of the letter stated: "[u]pon completion of the foreclosure sale, the ownership of your home will be immediately transferred to the highest bidder or the servicing lender or note holder."⁸ This is an inaccurate statement. C.R.S. section 38-38-501 states that title does not transfer until all redemption periods have expired, or the nineteenth business day after the foreclosure sale, unless the purchase holder submits a statement to the Trustee declining to assign the certificate of purchase. In that case, title would transfer on the eighth day after the sale.

Third, the letter also stated that if the property is not vacant at the time of transfer, the new owner may immediately exercise his or her rights and begin eviction proceedings to have occupants physically removed by the Mesa County Sheriff's Office. This is also an inaccurate statement. The eviction process takes several weeks to complete.

Fourth, the letter stated that "[p]ublic records indicate that a Notice of Election and Demand has been filed with the Mesa County Office of the Public Trustee with the above-referenced foreclosure case number."⁹ The letter went on to instruct the recipient to call and "[p]lease reference your Foreclosure Case # [ ]."¹⁰ The case number in the letter was not an official case number. Rather, Respondent created the case number to establish a file in his office. Fifth, the letter referred to a sale date that might have been inaccurate and created confusion for the reader. Sixth, although the last statement in the letter contained the phrase "Advertising Material," this statement appeared in a much smaller font.¹¹

The Jones law firm maintained several independent contractor relationships with lawyers admitted in other states. Those lawyers' names were listed on the Jones law firm's letterhead, appearing on the upper right-hand side of the letter. The lawyer listed in Colorado was K. Alexandra Cavin, who answered Respondent's advertisement on Craig's List. Although she and Respondent discussed listing her name on the letterhead, she did not author or review his solicitation letters bearing her name.

In this matter, Respondent violated three Rules of Professional Conduct:

• Respondent violated Colo. RPC 7.1(a)(1), which forbids a lawyer from making false or misleading communications about the lawyer or the lawyer's services, in three ways: by failing to state on the solicitation envelopes that the letters were advertising material; by implying that the letters were sent from the Trustee; and by marking the envelopes with "IMPENDING ACTION," leading the recipient to believe that the Trustee was taking immediate action as to the home in foreclosure status when, in fact, Respondent was soliciting potential clients.

• Respondent violated Colo. RPC 7.3(d), which requires, in part, that every written, recorded, or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services include the words "Advertising Material" on the outside of the envelope. Respondent transgressed this rule because he failed to include the words "Advertising Material" on the solicitation envelope that he mailed to prospective clients.

• Respondent violated Colo. RPC 8.4(c), which interdicts conduct involving dishonesty, fraud, deceit, or misrepresentation, in three ways: by misleading recipients of the letters into believing that the Trustee was contacting them concerning their home in foreclosure when, in fact, he was soliciting business; by failing on the outside of the envelope to notify the recipients that the contents contained advertising material; and by misleading recipients that their foreclosure matters had been assigned an official case number by the Trustee, when it was Respondent who had created the case number.

III. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ")¹² and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.¹³ 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 leading recipients of the letters to falsely believe that the Trustee had sent the letters and assigned their matters an official case number, by creating a misconception that the Trustee was taking immediate action, and by omitting the words "Advertising Material" from his solicitation envelopes, Respondent violated duties he owes as a professional to use candor and transparency in soliciting potential clients.

Mental State : Respondent testified that he did not try to deceive anyone with his advertisements. He said that he consulted with a lawyer in Colorado and thus believed that his advertisements complied with the Colorado Rules of Professional Conduct. The Court did not find these statements credible, however; it concludes that Respondent knowingly committed the misconduct at issue in this case.

Injury : Respondent's conduct caused potential injury to members of the public because his solicitation letters could have misled them. The recipients of the letters could have believed that the Trustee sent the letters and had assigned an official case number to their matter, necessitating their immediate action. Respondent's conduct also eroded public confidence in the legal profession.

ABA Standards 4.0-7.0 – Presumptive Sanction

ABA Standard 7.2 provides that suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, thereby causing injury or potential injury to a client, the public, or the legal system. ABA Standard 5.13, on the other hand, calls for public censure when a lawyer knowingly engages in any non-criminal conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law. The Court begins with the presumptive sanction...