People v. Fagan
| Decision Date | 07 June 2018 |
| Docket Number | Case Number: 17PDJ088 |
| Citation | 423 P.3d 412 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Charles Douglas FAGAN, #07791, Respondent. |
| Court | Colorado Supreme Court |
Charles Douglas Fagan ("Respondent") was hired to take over a pending civil lawsuit. He entered his appearance but did not send his client a fee agreement or any other written explanation of his fee. Respondent attended mediation with his client but thereafter became unavailable. His client never paid him any attorney's fees. Respondent then failed to participate in this disciplinary proceeding. Respondent's conduct in violation of Colo. RPC 1.3, 1.4(a), 1.16(d), and 8.1(b), as well as C.R.C.P. 251.5(d), warrants suspension for nine months.
Erin R. Kristofco, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the Court") on December 27, 2017. The People sent a copy of the complaint to Respondent's registered business and home addresses. Respondent failed to file an answer. By order dated February 21, 2018, the Court entered default, thereby deeming admitted the allegations and claims in the complaint.
On May 7, 2018, the Court held a sanctions hearing under C.R.C.P. 251.15(b). Kristofco represented the People; Respondent did not appear. During the hearing, the Court considered telephone testimony from Rosalyn Pergande1 and admitted the People's exhibits 1-3.
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 on October 21, 1976, under attorney registration number 07791. He is thus subject to the Court's jurisdiction in this disciplinary proceeding.2
In February 2015, Rosalyn Pergande hired Respondent to take over her pending civil litigation, involving her claims of theft and sexual assault. She asked Respondent for a fee agreement, but he did not provide one. Nor did he give her any written explanation of his fee. Pergande did not pay him any attorney's fees.
On November 18, 2015, Respondent entered his appearance in Pergande's case.3 He attended mediation with Pergande on February 16, 2016. The parties did not reach a settlement but agreed to continue settlement discussions. After the mediation, Pergande was unable to reach Respondent by phone or email or by visiting his home.
Around this time, Pergande received a letter from opposing counsel stating that counsel had tried to reach Respondent but never received a response. Pergande decided to proceed with her lawsuit pro se and was able to settle the case. Respondent never withdrew as Pergande's counsel.
The People left several voicemail messages for Respondent and sent him multiple letters at his registered address, asking for information about Pergande's case. He failed to respond.
In this matter, Respondent violated four Rules of Professional Conduct:
The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ")4 and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.5 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 : Respondent violated several obligations central to the lawyer-client relationship, including his duties of diligence, communication, and loyalty. He also violated his duty owed as a professional to cooperate with disciplinary authorities and to protect his client's interests upon termination.
Mental State : The Court's order entering default establishes that Respondent knowingly violated Colo. RPC 8.1(b) and C.R.C.P. 251.5(d). The admitted facts in the complaint establish a strong inference that he violated the other rules with a knowing state of mind when he failed to act with diligence, to respond to Pergande's and opposing counsel's communications, and to keep his client informed about her case.
Injury : Pergande testified that during her case, she felt harmed by Respondent's inaction. She said that her family experienced additional stress because he abandoned her representation, and she was fearful about what would happen to her lawsuit. Respondent's decision to abandon Pergande's case after the mediation also caused her potential injury. Settlement negotiations were ongoing yet he did not advise Pergande to hire a new lawyer. Had Pergande been unable to settle her case, she would have been forced to proceed pro se or retain a new lawyer.
ABA Standard 4.42 provides that suspension is generally appropriate when a lawyer knowingly fails to perform a service for a client and causes injury or potential injury to a client. ABA Standard 7.2 applies when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system. As the theoretical framework of the ABA Standards notes, "[t]he ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct among a number of violations; it might well be and generally should be greater than the sanction for the most serious misconduct."6
Aggravating circumstances include any considerations or factors that may justify an increase in the degree of the presumptive sanction to be imposed, while mitigating circumstances may warrant a reduction in the severity of the sanction.7 Three aggravating factors are present here: Respondent was previously disciplined in 1989 and 1990; he violated multiple rules; and he has substantial experience in the practice of law.8 Because Respondent did not participate in this proceeding, the Court is aware of only one mitigating factor: remoteness of prior disciplinary offenses.9 Because the aggravator of prior discipline is counter-balanced by the mitigator of remoteness in time, the Court applies only the remaining two aggravating factors.
The Court is aware of the Colorado Supreme Court's directive to exercise discretion in imposing a sanction and to carefully apply aggravating and mitigating factors,10 mindful that "individual circumstances make extremely problematic any meaningful comparison of discipline ultimately imposed in different cases."11 Though prior cases are helpful by way of analogy, the Court is charged with determining the appropriate sanction for a lawyer's misconduct on a case-by-case basis.
Colorado Supreme Court case law supports imposition of a sanction somewhat less severe than a fully served suspension for one year and one day, as the People request.12 In cases involving the type of misconduct at issue here, suspensions lasting one year or longer typically have addressed instances of serious neglect resulting in grave injury.13 For instance, in People v. Rishel , the Colorado Supreme Court suspended a lawyer for one year and one day for engaging in significant neglect of two client matters.14 In the first matter, the lawyer failed to notify his client of a hearing concerning modification of child support, visitation, and his client's contempt; the client was forced to hire another attorney when she by chance learned of the hearing two days before it occurred.15 In addition, the lawyer never refunded the client's unearned fees, provided an accounting, or moved to withdraw from the client's representation.16 While representing a second client, the lawyer failed to respond to the client's communications, to provide an accounting, or to refund unearned fees.17
In People v. Johnson , the Colorado Supreme Court accepted a conditional admission and suspended for a year and a day a lawyer who engaged in serious misconduct in two cases.18 In the first matter, the lawyer failed to safeguard client funds and to file an opening brief, leading to a determination that the client received ineffective assistance of counsel.19 The lawyer also refused to provide a written accounting upon request, neglected to surrender client...
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