452 P.3d 287 (Colo.O.P.D.J. 2019), 19PDJ016, Olson v. People
|Citation:||452 P.3d 287|
|Opinion Judge:||WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE|
|Party Name:||David L. OLSON II, #37228, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.|
|Case Date:||August 15, 2019|
|Court:||Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado|
OPINION AND DECISION GRANTING REINSTATEMENT UNDER C.R.C.P. 251.29(e)
WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE
David L. Olson II ("Petitioner") seeks reinstatement of his law license after a thirty-month suspension from the practice of law. The suspension was premised on two types of misconduct: Petitioners guilty plea to a petty offense of disorderly conduct in a case involving domestic violence, and his efforts in the ensuing disciplinary proceeding to persuade his then-wife to ignore a subpoena and to testify falsely about the domestic violence incident. Petitioner has now proved by clear and convincing evidence that he is rehabilitated and has experienced a change in his character since his misconduct that makes him worthy of reinstatement to the practice of law.
I. PROCEDURAL HISTORY
On May 17 and 18, 2016, Petitioners disciplinary hearing under C.R.C.P. 251.18 was held before a hearing board. On July 25, 2016, that hearing board issued an "Opinion and Decision Imposing Sanctions Under C.R.C.P. 251.19(b)," suspending Petitioners law license for thirty months. The sanction carried the requirement that he petition for reinstatement under C.R.C.P. 251.29(c).
On February 26, 2019, Petitioner filed with the Presiding Disciplinary Judge ("the PDJ") a "Verified Petition for Reinstatement Pursuant to C.R.C.P. 251.29(e)." Jacob M. Vos, on behalf of the Office of Attorney Regulation Counsel ("the People"), filed an answer on March 19, 2019.
At the reinstatement hearing held on June 20, 2019, the PDJ presided; he was joined by lawyer Hearing Board members Andrew A. Saliman and Paul J. Willumstad. Petitioner appeared with his counsel,
Kathleen A. Sullivan,1 and Vos represented the People. The Hearing Board considered testimony from Susan Payne, Dr. Randy Braley, Nathan Rand, and Petitioner. The PDJ admitted stipulated exhibits S1-S6, to which the parties stipulated before the hearing, as well as stipulated exhibits S7 and S8, which the parties agreed to introduce as exhibits during the hearing.
II. FINDINGS OF FACT
The findings of fact here— aside from the sections describing Petitioners background and his prior discipline— are drawn from testimony offered at the reinstatement hearing, where not otherwise noted. The Hearing Board found the testimony offered at the reinstatement hearing to be uncontroverted and generally credible. The Hearing Board also found the quality of advocacy at the hearing to be commendable: the lawyers for both parties conducted themselves competently and with professionalism.
Petitioner was admitted to practice law in Colorado on May 15, 2006, under attorney registration number 37228. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this reinstatement proceeding.
The Basis for Petitioners Discipline
As set forth in the July 2016 disciplinary opinion, Petitioners suspension was premised in part on his conviction of disorderly conduct stemming from a domestic dispute with his then-wife. But the suspension was premised to a larger measure on Petitioners attempts to persuade her not to testify truthfully and to avoid service of a subpoena in the ensuing disciplinary proceeding.
As described in that opinion, late on the night of June 18, 2014, Petitioner and his ex-wife, Jamie Olson, argued in their bedroom following her discovery of Petitioners infidelity. Though the accounts of what transpired differ depending on the narrator, Petitioner conceded that he engaged in a shoving match with Ms. Olson, pushed her with enough force to knock her off the bed, picked her up off the floor from her fetal position, and tried to physically remove her from their bedroom by dragging or carrying her toward the door, despite her resistance and pleas to stop. After Petitioner let her go, she called the police, who soon arrived at their house.
Petitioner was taken into custody, where he was held for domestic violence and harassment. The harassment charge was dismissed, and on July 30, 2014, Petitioner pleaded guilty to the petty offense of disorderly conduct (unreasonable noise) under C.R.S. section 18-9-106(1)(c).4 The charging document for this offense stated "Domestic Violence Status" and "Proven."5 Petitioner reported his conviction to the People, and he fulfilled all of the probationary conditions attached to his conviction. His conduct violated Colo. RPC 8.4(b), which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects.6 The People filed a disciplinary complaint against Petitioner based on the conviction, and a hearing initially was set for December 2015.
In autumn 2015, Petitioner began repeatedly calling Ms. Olson, inquiring about the Peoples investigation and urging her to "work with [him]" by downplaying the events leading to his conviction or even to ignore the Peoples subpoena when it issued.7
Ultimately, the disciplinary hearing board found that Petitioner had intentionally engaged in two separate instances of in-person witness tampering in September 2015. In the first instance, Petitioner approached Ms. Olson
after their daughters cross-country meet and stressed the importance of his upcoming disciplinary hearing. He told her the People might subpoena her but that she could be "out of town" or "forget" she had been subpoenaed.8 In the second instance, which took place around ten days after the first, Petitioner dropped off his two daughters with Ms. Olson and asked to speak with her. During their discussion, Petitioner told Ms. Olson to "soften" her testimony by saying that the events of June 18, 2014, were not as bad as were reflected in the police report.9 He also remarked that she could say that it was "a one-time moment" or she could go out of town, ignore the subpoena, or forget about the subpoena.10 The disciplinary opinion concluded that Petitioner intentionally attempted to induce Ms. Olson to ignore the Peoples subpoena and to testify falsely by softening her description of the events leading to his conviction. The hearing board found that he did so because he was worried about the possible disciplinary sanction and his ability to continue to financially support their children.
The opinion concluded that Petitioners conduct both satisfied the elements of C.R.S. sections 18-8-707(1)(a) and (1)(c) and adversely reflected on his fitness as a lawyer, thus contravening Colo. RPC 8.4(b). It also found that Petitioner violated Colo. RPC 3.4(a), which, as relevant to the case, precludes a lawyer from unlawfully obstructing another partys access to evidence; Colo. RPC 3.4(f), which prohibits a lawyer from requesting a person other than a client to refrain from voluntarily giving relevant information to another party; and Colo. RPC 8.4(d), which provides that it is professional misconduct for a lawyer to engage in conduct that prejudices the administration of justice.
During the disciplinary hearing, Petitioner argued that he should be privately admonished. He admitted only his act of domestic violence and contended that Ms. Olson fabricated her allegations of witness tampering. The People, on the other hand, sought Petitioners disbarment. The disciplinary hearing board found that Petitioners criminal conduct inflicted just a "moderate level of violence"; it emphasized, in contrast, that his acts of witness tampering struck "at the very core of the legal profession and impugn[ed] the integrity of the legal system as a whole."11 But the opinion also took into consideration that Petitioner "fell victim to the circumstances of his personal life, acting in furtherance of his own interests during the dissolution of his marriage, rather than while representing a client," and that he was "well-respected within the education law community and maintain[ed] an ethical reputation." Ultimately, the opinion concluded, Petitioners behavior appeared "atypical when viewed in the context of his character witnesses testimony and his lack of prior discipline."13 The hearing board thus deemed "the chances ... slim that he will engage in future interference with the legal system while serving clients."14
The disciplinary hearing board declined to adopt the Peoples recommendation of disbarment and instead suspended Petitioner for thirty months. His suspension took effect on August 29, 2016.15 He complied with the winding up provisions of C.R.C.P. 251.28,16 and he timely paid all costs...
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