452 P.3d 230 (Colo.O.P.D.J. 2018), 18PDJ023, People v. Rosenfeld

Docket Nº:18PDJ023
Citation:452 P.3d 230
Opinion Judge:WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE
Party Name:The PEOPLE of the State of Colorado, Complainant, v. Alan David ROSENFELD, Respondent.
Case Date:November 23, 2018
Court:Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado
 
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452 P.3d 230 (Colo.O.P.D.J. 2018)

The PEOPLE of the State of Colorado, Complainant,

v.

Alan David ROSENFELD, Respondent.

No. 18PDJ023

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

November 23, 2018

Page 231

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

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

Alan David Rosenfeld ("Respondent") did not pay any court-ordered child support between June 2016 and December 2016. Between January 2017 and April 2017, he paid only half of the monthly ordered amount of child support. Yet he failed to seek reconsideration of the child support order or to ask for a modification of the amount awarded. Because he did not obey his court-mandated child support obligations, Respondent breached Colo. RPC 3.4(c). This conduct warrants suspension for one year and one day, with three months to be served and the remainder to be stayed upon successful completion of a three-year period of probation, with conditions.

I. PROCEDURAL HISTORY

Sara C. Van Deusen, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the PDJ") on April 25, 2018, alleging that Respondent violated Colo. RPC 3.4(c), which provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists. The People claim that Respondent violated this rule by failing to fully honor his child support obligations for an eleven-month period.

Respondent answered the complaint on May 16, 2018, denying that he committed misconduct. In the request for additional relief incorporated into his answer, he asserted that this disciplinary case is in violation of an automatic stay issued on August 3, 2017, by the United States Bankruptcy Court. He claimed that the stay applies to any actions included in his Chapter 13 bankruptcy petition. Respondent asked the PDJ to stay the

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disciplinary proceeding and sought appointment of a special prosecutor to determine whether charges should be filed against the People for violating Colo. RPC 3.4(c) and the bankruptcy stay. The PDJ denied Respondent’s requests for relief on June 1, 2018. The PDJ first noted that Respondent had neither provided any documentary support regarding the bankruptcy proceeding nor cited any applicable legal authority. But apart from those issues, the PDJ found as a matter of law that a bankruptcy stay would not apply to this disciplinary case under 11 U.S.C. § 362(b)(4).[1]

On September 27, 2018, a Hearing Board comprising the PDJ, lawyer Mark W. Earnhart, and lay member Alires J. Almon held a hearing under C.R.C.P. 251.28. Geanne R. Moroye represented the People,2 and Respondent appeared pro se. The Hearing Board considered testimony from Respondent and the People’s exhibits 1-2.3

Soon after the close of the hearing, Respondent filed with the United States Bankruptcy Court an ex parte motion for a temporary restraining order and a preliminary injunction pending ruling on a complaint he had earlier filed against the People and the PDJ.4 On October 5, 2018, the bankruptcy court held a consolidated hearing on Respondent’s request for a temporary restraining order and for a preliminary injunction; Respondent asked the bankruptcy court to declare that the automatic stay under 11 U.S.C. § 362(a) applies to this disciplinary matter and to prevent the People from seeking or the PDJ from issuing any sanctions against him. After hearing argument, the bankruptcy court denied Respondent’s motion for a temporary restraining order and preliminary injunction in a ruling from the bench. At the parties’ suggestion, the bankruptcy court suspended all deadlines in the proceeding until thirty days after issuance of this opinion.

II. FACTS AND RULE VIOLATIONS [5]

Respondent was admitted to practice law in Vermont in the early 1980s. Later, in 1998, he took the oath of admission and was admitted to practice law in Colorado under attorney registration number 30317. He is thus subject to the Hearing Board’s jurisdiction in this disciplinary proceeding.6

Respondent got his start as a lawyer in the early 1980s after graduating from the State University of New York law school. He moved to Vermont, first working in the legal aid program there and then hanging his own shingle in a solo practice. Over time, he began to specialize in representing victims of domestic violence, adult survivors of childhood sexual abuse, and mothers of sexually abused kids. According to Respondent, although he achieved professional renown as a leading authority in this field, he never tried to "monetize" his practice. In fact, he testified that his "history as a lawyer" has not been "remunerative," because making money was never his priority; rather, his goal was "how to do more or better, not how to earn more." He lived cheaply and juggled bills to make ends meet, he said.

In the early 1990s, Respondent testified, he decided to slow down and start a family. He married his now ex-wife; his eldest son was born in 1996. He then took a year’s sabbatical to be his son’s main caregiver. His daughter was born several years later.

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Thereafter, his wife was the primary wage earner in the marriage. Though he continued to do work for clients, he directed much of his time and attention to parenting. He noted that he felt very "tied" emotionally to both of his kids.

In autumn 2009 Respondent’s ex-wife moved out of their marital home. Later, she filed for divorce, which was finalized around 2011. According to Respondent, he made many compromises in the course of those proceedings, including a stipulation that he and his ex-wife each should be imputed annual income of $50,000.00. But in actual fact, he said, his ex-wife earned more than double that amount at the time, whereas he was making $30,000.00-40,000.00 annually. No child support was awarded to either party and parenting time was split fifty/fifty, though Respondent testified that his son and daughter lived exclusively with him for two-and-a-half years, during which time he was essentially "a sole parent."7

At some point Respondent’s daughter began to struggle psychologically.8 In early 2016 she moved in with her mother, who sought reallocation of parenting time and child support, among other things.9 During a two-day hearing in Boulder County District Court in spring 2016, the parties were given an equal allotment of time to present their respective positions and requests. As Respondent recounted, he chose to elicit testimony and introduce evidence focusing on his daughter’s mental health needs, while addressing his parenting time as a secondary matter. He noted, "I didn’t want to fight about money." In fact, he said, he ran out of time to address questions of child support, though his financial data was available to the family court. When the judge asked him whether there was any reason not to continue to impute annual income to him of $50,000.00, he felt that he "had to acknowledge as a matter of law ... that it was legally reasonable for [the judge] to continue to impute $5,000.00 a month to me." He reasoned, "I had stipulated to it so I had to live by it."

After the hearing, the Boulder County District Court issued an order in June 2016 addressing several matters, one of which was child support. The court ruled that, due to changed financial circumstances and parenting time schedules— Respondent’s ex-wife was awarded the bulk of parenting time for their daughter during the school year— Respondent should pay $800.06 per month in child support.[10] He was ordered to pay this sum every month to the Family Support Registry, beginning June 15, 2016.11 According to Respondent, the court arrived at the figure by imputing to him monthly income of $5,000.00, or $60,000.00 per year.

Despite the courts order, Respondent made no child support payments for the next seven months— from June through December 2016. Then, from January through August 2017, Respondent sent monthly payments of $400.00 directly to his ex-wife (rather than to the Family Support Registry). Respondent explained that he did not fully comply with the child support order because he simply did not have the funds available to do so. His income in 2016 was exceptionally meager, he recalled, and he incurred additional expenses that summer, when his daughter lived with him for eight weeks. He was also spending additional cash out of pocket for his own therapy so he could cope during that time. Respondent described this period as "devastating": his daughters struggles and his worry for her gnawed at him, and he did not feel as though he could ethically take on new clients. But he also said that he did everything he could to earn money, including begging other lawyers...

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