428 P.3d 739 (Colo.O.P.D.J. 2018), 17PDJ031, People v. Holcomb
|Citation:||428 P.3d 739|
|Opinion Judge:||WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE|
|Party Name:||The PEOPLE of the State of Colorado, Complainant, v. Shannon Charles HOLCOMB, #28675, Respondent.|
|Case Date:||May 18, 2018|
|Court:||Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado|
OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(c)
WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE
In six client matters, Shannon Charles Holcomb ("Respondent") engaged in unethical conduct, ranging from lack of communication
and diligence to failure to protect his clients interests on termination to failing to obey court orders. Most critically, Respondent abandoned two clients and converted unearned fees of three clients. This pattern of misconduct warrants disbarment.
I. PROCEDURAL HISTORY
Under C.R.C.P. 251.8, Respondent was immediately suspended by the Colorado Supreme Court on June 13, 2017.
On July 21, 2017, Alan C. Obye, Office of Attorney Regulation Counsel ("the People"), filed a complaint with the Presiding Disciplinary Judge ("the Court"). The same day, the People sent copies of the complaint to Respondent via certified and regular mail at his registered business and home addresses, as well as three other known addresses.
On September 8, 2017, the People moved for additional time to file a motion for default in order to allow Respondent more time to answer. The Court granted that motion. Nevertheless, Respondent failed to answer, and the Court granted the Peoples motion for default on October 31, 2017. In the default order, the Court noted that Respondent had contacted the Court by telephone around October 10, 2017, and was informed that he could file a handwritten response to the default motion. Upon the entry of default, the Court deemed all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.1
A sanctions hearing was set for January 29, 2018, but it was later rescheduled for April 20, 2018, at the parties request. Both the Court and the People sent confirmation of the sanctions hearing to the same addresses mentioned above, along with a newly discovered address. The People filed a hearing brief on April 13, 2018; Respondent did not submit briefing.
On the morning of the sanctions hearing, April 20, 2018, Respondent filed a motion to set aside entry of default, and the People responded a few hours later. That afternoon, the Court held a sanctions hearing under C.R.C.P. 251.15(b). Obye represented the People, and Respondent appeared pro se.
The Court asked the parties to argue Respondents motion at the sanctions hearing. Respondent explained that in mid-2017, he received in close succession several citations for driving while impaired. He was sentenced to work release between August 15, 2017, and March 9, 2018, during which time, he said, he did not have use of a computer or printer and could not access his client files. Under those circumstances, he argued, the Court could reasonably find excusable neglect. The People disagreed, noting that Respondent could have submitted (but did not submit) a handwritten answer or a handwritten response to the motion for default, as he was invited to do by the Court. The Court concluded that no valid basis existed to grant Respondents request to vacate entry of default.
Respondent then orally moved for a continuance in order to better prepare for the hearing, but the PDJ denied that request as well, observing that Respondent had been out of work release for more than a month and therefore already had been afforded ample opportunity to prepare for the hearing.
At the sanctions hearing, the Peoples exhibits 1-2 were admitted into evidence, and the Court heard testimony from Respondent.
II. ESTABLISHED FACTS AND RULE VIOLATIONS
Respondent took the oath of admission and was admitted to practice law in Colorado on October 21, 1997, under attorney registration number 28675. He is thus subject to the Courts jurisdiction in this disciplinary proceeding.
On October 18, 2015, Lisa Fields paid Respondent a $3,500.00 retainer for legal representation in a post-dissolution matter in Larimer County District Court. Respondent was hired to help Fields modify parenting time and child support. Fields signed a retainer
agreement. Respondent told Fields he would provide her a copy of the retainer agreement, but he never did.
Respondent sent Fields a draft motion to modify parenting time and a draft motion to modify child support on November 5, 2015. Fields notarized and returned the motions the next day. Respondent then filed the motions on November 9, 2015. On December 3, 2015, Fields requested that Respondent provide an update and an accounting of her retainer. He agreed, but did not do so.
The court issued a case management order on December 8, 2015, which required the parties to attend mediation within thirty days. Neither party provided proof of mediation or a notice to set, however, so the court dismissed the pending motions without prejudice. Fields left a voicemail for Respondent on January 15, 2016, requesting an update and an accounting. Respondent did not respond. He did, however, refile the motion to modify parenting time and child support on February 16, 2016.
Between February 11 and September 7, 2016, Fields repeatedly attempted to contact Respondent for an update on her case and the status of her retainer. Respondent rarely responded to Fieldss attempts to contact him, and he never provided an update or accounting.
On March 10, 2016, the parties attended mediation; the mediator filed a status report on the same day. On April 18, 2016, the court sua sponte issued an order noting that no action had been taken and warning that all pending motions would be dismissed if no new action were taken within ten days. The case appears to have been closed on April 29, 2016, but reopened on May 20, 2016, when Respondent filed a notice to set.
The parties filed a stipulation as to parenting time issues on May 27, 2016, which the court approved a few days later. A hearing was set for July 6, 2016. On June 21, 2016, the court sua sponte dismissed the motion to modify child support because Respondent failed to file financial disclosures, even though Fields had provided him the financial documentation for the disclosures. Fields learned from the opposing party that the case had been dismissed on June 22, 2016.
On July 8, 2016, Fields moved pro se to reopen the motion to modify. She stated that she had been unable to reach Respondent despite her numerous efforts, and that he had failed to file the proper financial disclosures. She also filed a pro se motion to remove Respondent from her case. The court granted both motions.
On September 7, 2016, Fields spoke with Respondent on the phone and requested an accounting. Fields maintained that Respondent should refund a majority of her retainer, considering the lack of work he completed. Respondent agreed and stated that he could return Fieldss funds after selling items from his fathers estate, but as of July 2017, Fields had received neither an accounting nor a refund from Respondent.
Through this misconduct, Respondent violated Colo. RPC 1.3, which provides that a lawyer must act with reasonable promptness and diligence when representing a client; Colo. RPC 1.4(a)(3), which provides that a lawyer must keep a client reasonably informed about the status of the clients matter; Colo. RPC 1.4(a)(4), which provides that a lawyer must promptly comply with reasonable requests for information; Colo. RPC 1.16(d), which provides that a lawyer must take steps upon termination to protect a clients interests, including giving reasonable notice to the client and providing a refund of unearned fees; and Colo. RPC 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Brent Fletcher retained Respondent in February 2016 in a child support and parenting time matter. Fletcher signed a fee agreement— though he was never...
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