People v. Bernal
| Decision Date | 03 July 2019 |
| Docket Number | Case Number: 19PDJ009 |
| Citation | 452 P.3d 270 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Marie BERNAL, #45617, Respondent. |
| Court | Colorado Supreme Court |
After she was suspended from the practice of law for administrative reasons, Marie Bernal ("Respondent") failed to wind down her law practice, including by failing to withdraw from matters pending before the Denver immigration court. She also refused to cooperate with disciplinary authorities investigating this case. Respondent will thus be suspended for a period of three months, with the requirement that she seek reinstatement, if at all, by petitioning to regain her license.
On January 30, 2019, Bryon M. Large, 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 mail to her registered business address.1 When the due date for Respondent’s answer had passed, the People sent her a letter on February 25, 2019, reminding her to answer.
On March 12, 2019, the People moved for entry of default. The Court granted the People’s default motion on April 8, 2019. 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.2
At the sanctions hearing held under C.R.C.P. 251.15(b) on June 26, 2019, Large represented the People. Respondent did not appear. During the hearing, the People’s exhibits 1-6 were admitted into evidence. No testimony was offered.
Respondent was admitted to practice law in Colorado on February 19, 2013, under attorney registration number 45617. She is thus subject to the Court’s jurisdiction in this disciplinary proceeding.3
In June 2017, Respondent was administratively suspended for failing to comply with continuing legal education requirements. On May 1, 2018, she was administratively suspended for failing to comply with lawyer registration requirements for the 2018 calendar year.
As of May 25, 2018, Respondent was listed as the attorney of record in at least six cases pending before the Denver immigration court. She was listed as the nonprimary attorney of record—co-counseling with lawyer Miguel Velasco—in the immigration matters of Carmen Figueroa-Lopez, Alfredo Toloza-Diaz, and Omar Tellez-Hernandez. She was the primary attorney of record in the immigration matters of Sergio Antonio Venegas-Guzman, Raul May-Dzib, and Erick Castrejon-Sanchez.
Per 8 C.F.R. § 1292.1(a)(1), a licensed "attorney" may practice law before immigration tribunals. "Attorney," in turn, is defined in 8 C.F.R. § 1001.1(f), which requires an attorney to be eligible to practice law in, and be a member in good standing of, the bar of any state. Further, the attorney cannot be subject any order suspending, enjoining, restraining, disbarring, or otherwise restricting the attorney in the practice of law.4 But Respondent is administratively suspended in Colorado, so under these provisions she is not in good standing or eligible to practice law in Denver immigration court.
C.R.C.P. 251.28 requires an attorney to complete certain steps when an order is issued suspending the attorney. Those steps include winding up affairs, providing notice to clients of the suspension, surrendering client property, and notifying opposing counsel by certified mail of the suspension and the attorney’s consequent inability to represent clients after the order’s effective date. The rule also requires an attorney to notify every other jurisdiction in which the attorney is admitted to practice law of the order entered against the attorney, and to file an affidavit certifying compliance with the rule. C.R.C.P. 251.28(c) expressly extends these requirements to administratively suspended attorneys who are not reinstated within fourteen days of the suspension order.
Respondent failed to notify the Executive Office for Immigration Review ("EOIR") of her suspension and ineligibility to practice law.5 She failed to notify by certified mail the Chief Counsel for Immigration and Customs Enforcement—opposing counsel in the May-Dzib and Castrejon-Sanchez matters—of her suspension. Nor did she withdraw from either matter.6 And she did not file an affidavit with disciplinary authorities certifying her compliance with C.R.C.P. 251.28.
On June 18, 2018, the People sent a letter to Respondent’s registered business address, advising her of the request for investigation in this matter and requesting a response.7 She failed to respond to this inquiry. On July 6, 2018, the People sent a letter to Respondent’s registered address, notifying her of their investigation under C.R.C.P. 251.10.8 She did not respond to this letter, either. On July 30, 2018, the People sent her another such letter,9 but she did not reply. The People have also emailed Respondent, using her registered business email address, but she has not responded. In fact, she failed to respond to any of the People’s inquiries during their investigation.
Through this misconduct, Respondent violated Colo. RPC 1.16(d), which provides that a lawyer must take steps upon termination to protect a client’s interests, including by giving reasonable notice to the client; Colo. RPC 3.4(c), which prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal; and Colo. RPC 8.1(b), which provides that a lawyer shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority.
The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ")10 and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.11 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 breached some of her most basic obligations to the legal system and to the legal profession: she violated orders prohibiting her from practicing law during her administrative suspension, and she failed to respond to the People’s lawful demands for information during their disciplinary investigation.
Mental State : The order of default establishes that Respondent knowingly practiced law while her law license was suspended and knowingly failed to cooperate with the People’s investigation. Because the Court can point to no evidence suggesting that Respondent knowingly violated the remaining rule at issue, it concludes that Respondent acted only negligently when she failed to notify opposing counsel and to withdraw from representation in the May-Dzib and Castrejon-Sanchez matters.
Injury : Respondent caused actual harm by undermining lawyers’ system of self-regulation when she practiced law while her license was administratively suspended. She also disrespected the legal system and the profession by failing to respond to the People’s requests for information during their investigation.
Suspension is the presumptive sanction under ABA Standard 6.22 when a lawyer knowingly violates a court order or rule, thereby causing a client or party injury or potential injury, or interfering or potentially interfering with a legal proceeding. Likewise, ABA Standard 7.2 calls for suspension when a lawyer knowingly engages in conduct that violates a duty owed as a professional, resulting in injury or potential injury to a client, the public, or the legal system.
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.12 The People ask the Court to apply the aggravating factor of bad faith obstruction of the disciplinary proceeding by failing to comply with orders of the disciplinary authority.13 But the Court declines to do so, as this aggravator is based on the same conduct underlying the claim premised on Colo. RPC 8.1(b). Because Respondent did not appear at the hearing, the Court is aware of just one applicable mitigating factor: her lack of prior discipline.14
The Court recognizes the Colorado Supreme Court’s directive to exercise discretion in imposing a sanction and to carefully apply aggravating and mitigating factors,15 mindful that "individual circumstances make extremely problematic any meaningful comparison of discipline ultimately imposed in different cases."16 Though prior cases may be instructive by way of analogy, the Court is charged with determining the appropriate sanction for a lawyer’s misconduct on a case-by-case basis.
The ABA Standards peg suspension as the presumptive sanction in this case, and the lone mitigator does not militate in favor of a different outcome. Colorado disciplinary jurisprudence also counsels for suspension of a lawyer who practices law during an administrative suspension, regardless of whether the lawyer’s conduct results in actual harm.17
Accordingly, the Court must decide the appropriate length of that suspension. The Colorado Supreme Court typically imposes less stringent discipline for violations of administrative suspension orders than for violations of disciplinary suspension orders,18 but the ultimate sanction often hinges on a mix of factors, including whether the lawyer committed other misconduct, whether the misconduct resulted in actual harm, and...
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The Duty of Competence in the New Normal
...Ziankovich, 474 P.3d 253, 258 (Colo. O.P.D.J. 2020) (relying on ABA Standards to determine the sanction for misconduct); People v. Bernal, 452 P.3d 270, 272-73 (Colo. O.P.D.J. 2019) (same). [11] ABA Standards 4.51-4.54. [12] ABA Standard 4.51. See also, e.g., People v. Varallo, 61 P.3d 38, ......