In re People, Case Number: 18PDJ038

• Decision Date: 11 January 2019
• Docket Number: Case Number: 18PDJ038
• Citation: 452 P.3d 240
• Parties: The PEOPLE of the State of Colorado, Complainant David R. STEINMAN, #39853, Respondent
• Court: Colorado Supreme Court

452 P.3d 240

The PEOPLE of the State of Colorado, Complainant David R. STEINMAN, #39853, Respondent

Case Number: 18PDJ038

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

January 11, 2019

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

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

In 2017, David R. Steinman ("Respondent") was hired as a full-time deputy district attorney in the 18th Judicial District. The elected district attorney told Respondent that he had to stop working on outside cases, as required by state statute. Respondent later confirmed to the district attorney’s office that he was no longer working on outside cases. Yet he represented a client in a civil matter for about six months while employed in the 18th Judicial District. Further, on several occasions he misrepresented his status as a deputy district attorney to a lawyer involved in the civil case. When his deceit was discovered, he misrepresented his involvement in the civil case to his supervisors in the district attorney’s office. Respondent stipulated to judgment on the pleadings as to Colo. RPC 8.4(c), which states that it is professional misconduct for a lawyer to make misrepresentations. Respondent’s multiple breaches of Colo. RPC 8.4(c) warrant a suspension of six months, with three months to be served and three months to be stayed upon successful completion of a one-year period of probation.

I. PROCEDURAL HISTORY

Jacob M. Vos, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the PDJ") on June 11, 2018, alleging that Respondent violated Colo. RPC 4.1(a) and 8.4(c). Through his counsel, Patrick L. Ridley, Respondent answered on July 2, 2018, denying the People’s claims.

On September 21, 2018, the Court granted the parties’ stipulated motion to judgment on the pleadings. In that order, the Court entered judgment on Claim II ( Colo. RPC 8.4(c) ), dismissed Claim I ( Colo. RPC 4.1(a) ), and converted the disciplinary hearing to a hearing on the sanctions.

On November 15 and 16, 2018, a Hearing Board comprising the PDJ and lawyers John A. Sadwith and Patrick D. Tooley held a hearing under C.R.C.P. 251.18. Vos represented the People, and Respondent appeared with his counsel. The Hearing Board considered stipulated exhibits S1-S13, the People’s exhibits 8-9, and the testimony of William Kelly, Michael J. Carrigan, Jacob Edson, Bob Troyer, Greg Goldberg, Jaime Steinman, Jaime Pena, and Respondent.

II. FACTUAL FINDINGS ¹

Background

Respondent was admitted to practice law in Colorado on May 20, 2008, under attorney registration number 39853. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.²

After graduating from St. Louis University School of Law in 1994, Respondent clerked for a federal judge in Texas and for the Fifth Circuit Court of Appeals. Following a one-year stint at a D.C. law firm, he worked for the U.S. Attorney’s office in Texas from 1998 to 2000. He left Texas for a civil litigation firm in San Diego and then rejoined the U.S. Attorney’s office—this time in Denver—from 2002 through about 2006. Respondent next held a series of private sector positions in Colorado. He managed Nestlé’s North American litigation and served as general counsel for both RE/MAX and Concord Energy. He left Concord Energy for an energy-related company that terminated his employment in January 2017 due to a funding shortfall.

Events from January 2017 Through June 2017

Respondent began looking for new employment in early 2017. William Kelly, a partner at Kelly & Walker, a professional liability defense firm, offered Respondent work on a contract basis. Kelly and Respondent are close friends; according to Kelly, they have interacted since 2007 on "probably [a] daily basis, professionally and personally." Respondent completed some assignments for Kelly’s law partner. In early May, the firm received a litigation referral involving a company called BullRest. Kelly’s own time was already fully committed on a large class-action matter, but he accepted the BullRest matter because he thought Respondent was well suited to handle the case. No litigation was pending in BullRest at the time, and Kelly expected the matter to be resolved within days or weeks.

Later in May 2017, Respondent accepted a job as a deputy district attorney in the 18th Judicial District.³ The new position would preclude him from continuing to work on any outside cases under C.R.S. section 20-1-201(1)(a), which provides that deputy district attorneys "shall not engage in the private practice of law nor receive any income from any private law firm." Though the statute provides an exception for part-time deputy district attorneys,⁴ Respondent’s new position was full-time.

On June 12, 2017, Respondent received a copy of the office’s policy manual, which prohibits the private practice of law per C.R.S. section 20-1-201.⁵ His employment file contained a separate document stating that deputy district attorneys are statutorily barred from engaging in the private practice of law and that the office "interprets this provision broadly."⁶ On June 29, 2017, Respondent attended an orientation at the district attorney’s office where office policies were discussed, and he signed a written acknowledgement that he had reviewed the office policy manual.⁷ During the orientation, he was shown a slide presentation that also mentioned C.R.S. section 20-1-201. At the disciplinary hearing, Respondent testified that he did not pay close attention to the slide presentation and never noticed any reference to C.R.S. section 20-1-201 in his employment materials.

Around the time Respondent was offered the position as a deputy district attorney, he spoke to George Brauchler, the elected district attorney, who made clear that Respondent must extricate himself from his outside cases. Respondent conceded that Brauchler surely expected he would do so. After accepting the job, Respondent spoke to Brauchler’s HR Director and to Matt Maillaro, a senior chief deputy district attorney, about whether he could keep any pending private cases. He was told he could not.⁸ Respondent later confirmed to the office that he no longer was working on any such cases.⁹

Before starting work at the district attorney’s office, Respondent told Kelly he wanted to transfer BullRest to him. Respondent remembers informing Kelly that his new job precluded such work; Kelly does not recall that part of the discussion. Kelly testified that he was opposed "in very strong terms" to taking over BullRest given the large class-action case he was handling. As Kelly recalls, Respondent replied that because Kelly had done him a favor and Respondent did not want to appear ungrateful, he would keep BullRest and work toward settlement.¹⁰ Respondent told the Hearing Board that he believed he could wrap up the case within a month or two and that he wanted to avoid prejudicing his client, whom he liked and who lacked the funds necessary to hire a new lawyer. Neither Respondent nor Kelly informed the BullRest clients of Respondent’s employment with the district attorney’s office.

Respondent started his position at the district attorney’s office on June 29, 2017.¹¹

Boulder County Filing

Notwithstanding his new position in the 18th Judicial District, on August 15, 2017, Respondent filed a brief in a civil case separate from BullRest —a Boulder County District Court matter involving his acquaintance Martin Tindall.¹² Respondent signed the thirty-page "Response to Subpoena Duces Tecum – Martin H. Tindall" and filed it on behalf of "Steinman Law Offices LLC."¹³ Respondent admitted that the People asked him numerous times during the disciplinary investigation and proceeding whether his work on BullRest was the only civil work he completed while serving as a deputy district attorney, yet he never mentioned this filing.

Respondent first testified that he did not consider his filing of the response to subpoena duces tecum to be "civil work" and alternately testified that he did not disclose the filing to the People because he had forgotten about it. He explained to the Hearing Board that he submitted the document as a favor for Tindall because the lawyer who had prepared the response either could not or would not file it. Respondent said Tindall did not pay him to file the document and Respondent made clear to counsel in the case that he was not serving as counsel of record. He testified that he decided to file the response because it took him "five seconds" and "six dollars," and he was just "being helpful." When pressed, he admitted that he read the thirty-page filing before submitting it, which, of course, would have taken much longer than five seconds. The Hearing Board finds Respondent’s testimony that he forgot about this matter not credible. This was a recent event that we believe he likely remembered. Even if the filing did somehow slip his mind, he failed to diligently research his activities of the relevant timeframe to ensure his representations to the People were correct.

Events from July 2017 Through December 2017

During summer 2017, the posture of BullRest shifted. Respondent’s clients in the matter—BullRest and one of the company’s founders—were involved in a dispute with the other founder. On July 13, Respondent filed on his clients’ behalf a complaint he had drafted in May. He prepared the complaint and other court filings, most of which Kelly signed per firm policy. In their answer, the opposing party lodged counterclaims against Respondent’s clients as well as one of BullRest’s investors, an entity represented by Michael Carrigan, a lawyer at Holland & Hart.¹⁴ Respondent’s and Carrigan’s clients had similar interests in the litigation.

Respondent continued to work about one hour a week on BullRest . He testified that he billed a total of thirty to thirty-two hours on the case from May...