People v. Peters

• Decision Date: 23 December 2003
• Docket Number: No. 03PDJ010.,03PDJ010.
• Citation: 82 P.3d 389
• Parties: The PEOPLE of the State of Colorado, Complainant, v. William E. PETERS and Edward C. Kusick, Jr., Respondent.
• Court: Colorado Supreme Court

82 P.3d 389

The PEOPLE of the State of Colorado, Complainant, v. William E. PETERS and Edward C. Kusick, Jr., Respondent.

No. 03PDJ010.

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

December 23, 2003.

Opinion issued by a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") ROGER L. KEITHLEY and JERRY D. OTERO and JOHN M. LEBSACK, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

Sanction: Re: William E. Peters: PUBLIC CENSURE

Re: Edward C. Kusick: PUBLIC CENSURE

A trial in this matter was held on August 4, 2003, before a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley and two Hearing Board Members, Jerry D. Otero and John M. Lebsack, both members of the bar. Fredrick J. Kraus, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). William E. Peters ("Peters") appeared pro se. Alexander R. Rothrock appeared on behalf of Edward C. Kusick, Jr., ("Kusick") who was also present.

At the trial, the People's exhibits 1, 5 and 6 (except page 2), and Kusick's exhibits A and B were admitted into evidence. Judge Claudia Jordan testified on behalf of the People. Peters and Kusick testified on behalf of themselves. The Hearing Board considered the testimony of the witnesses and the exhibits admitted into evidence, the argument of the parties, the Joint Stipulation of Facts submitted by the parties on July 31, 2003, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

William E. Peters and Edward C. Kusick, Jr. have taken and subscribed the oath of admission, and were admitted to the bar of the Supreme Court on October 19, 1981 and October 28, 1989 respectively. Peters is registered upon the official records of the Court, attorney registration number 11326, and Kusick is registered under attorney registration number 18876. They are subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Peters is a friend and former law partner of Kusick. Kusick was suspended from the practice of law for thirty-six months beginning on July 7, 2001. Immediately prior to the effective date of his disciplinary suspension, Kusick through his professional corporation, Edward C. Kusick, Jr., P.C. filed numerous suits against his former clients for fees owing. After the effective date of suspension, Peters agreed to represent Kusick and Edward C. Kusick, Jr. P.C. in all pending suits and agreed to file any additional suits to collect Kusick's fees. The suits were filed in the County Court for the City and County of Denver.

Harry Gerlock ("Gerlock") was a former client of Kusick who owed money to Kusick for attorney fees. Kusick had a judgment against Gerlock for fees owing. Kusick had also obtained a judgment against Gerlock's son-in-law, Richard Jiron, for checks given to Kusick to pay Gerlock's attorney fees which did not clear the bank.

Peters employed Gerlock as a process server commencing in June 2001. An arrangement was made that Gerlock would receive a flat fee for serving each set of papers. Gerlock was only paid for his efforts when service upon a defendant was complete. One half of Gerlock's fee would be credited toward the outstanding judgment of Richard Jiron and one-half would consist of a payment to Gerlock. Kusick agreed to this arrangement.

Peters knew that Gerlock was a taxi driver, had no previous experience as a process server but was familiar with the local streets, and had worked for a traffic accident videographer. Peters knew that Gerlock had previously testified in court. Peters did not seek references for Gerlock and did not conduct a criminal background check on him.

Because there were numerous papers to be served in these many lawsuits, Peters devised a method for completing an affidavit of service by devising a form entitled "Affidavit/Certificate of Service." The affidavit forms were preprinted and contained blanks for the case caption, the case number, the person served, the documents served, the method of service, where service was effected, and the date of service. The affidavits also contained blanks indicating the date the "Affidavit/Certificate of Service" was sworn in front of the notary public, a blank for the notary public's signature, and the date the notary public's commission expired.

Peters and Gerlock also set up a process for serving papers. Peters prepared a second form called a "service sheet," which consisted of the name, home and work address, telephone numbers, date of birth, age, Social Security number, height, weight, hair color, eye color, vehicle description, a space for any other information, and the auto license number of the person to be served. The service sheet was then attached to the documents to be served. Gerlock picked up the documents to be served from Kusick or Peters with the service sheet attached.

Gerlock traveled around the metropolitan Denver area and served documents for Peters. On a regular basis, Gerlock would come to Peters' office and report to Peters whom he had served, how he served them, and when and where the service took place. Gerlock would write on the bottom of the service sheet the name of the person, time, place and date of service. Gerlock would then sign one blank Affidavit/Certificate of Service document for every person he had served since his last visit.

Peters did not accompany Gerlock while he was performing service of process. On more than one occasion, however, Peters went over with Gerlock the fundamentals of process service, including how to handle himself with the defendants, who qualified for substitute service, and where to locate public information on elusive defendants. Peters instructed Gerlock that in serving contempt citations, service must be effected on the named respondent and substitute service would not be adequate. On occasion Gerlock took photos of the defendants he had served. At Peter's request, another employee of Peters occasionally rode with Gerlock to make sure Gerlock understood how to accomplish proper service.

Peters went over the service sheets with Gerlock in person in order to confirm the details of service so that he could prepare the affidavits for filing with the court, and to confirm each successful service before he paid Gerlock.

In order to expedite the process, Peters had Gerlock pre-sign the affidavit forms in batches of ten or twenty. Peters would then cause the signed affidavit forms to be completed based upon the information Gerlock supplied on the informal service sheet forms. Peters did not have Gerlock review the pre-signed forms after their completion.

Three women who worked for a law firm next to Peter's office were notaries public. In June, 2001, at the outset of the arrangement, Gerlock executed an Affidavit/Certificate of Service in front of two of the three notaries public so that they could confirm that he was indeed the person he purported to be by his signature.

Thereafter, Kusick, Peters or both of them took completed, pre-signed affidavits to the three notaries to have Gerlock's signature notarized without Gerlock being present. Peters knew that Gerlock had signed the affidavits when they were blank, and knew that Gerlock had not reviewed the "filled in" portions of the affidavit. Kusick knew that Gerlock had signed the affidavit in blank.

Peters caused the notarized, pre-signed Affidavits/Certificates of Service to be filed with the Denver County Court approximately 349 times in approximately 187 separate lawsuits pending in the Denver County Court.

Peters knew the affidavits were required by the Colorado Rules of Civil Procedure, Rule 4(h)(2), and that the affidavits were material to demonstrating service of process in the lawsuits. Peters filed the affidavits with the court to show the defendants were served with the described documents.

On several occasions Kusick took documents to the notaries public for notarization. On those occasions, Kusick requested that the notaries notarize the documents although the person whose signature was being notarized was not physically present before the notary.

Some of lawsuits in which the pre-signed affidavits were used were assigned to the Honorable Claudia Jordan of the Denver County Court. In one matter assigned to Judge Jordan, the defendant appeared in court to state that she had not been served with the legal papers in question. Judge Jordan held a hearing on November 15, 2001, and learned of Peters' method of completing the affidavits. When the court made inquiry into proper service in several other cases, Peters acknowledged the arrangement he had devised with Gerlock and the notaries. Recognizing that the service in those cases were based upon defective affidavits of service, Peters confessed the dismissal of those cases or agreed to vacate hearings scheduled with the court.

At the time Peters filed the defective affidavits with the court he did not recognize that the notarization arrangement he had devised would affect the validity of service. Peters was not trying to deceive the court. To Peters' knowledge, the information supplied by Gerlock on the service sheets which was transferred to the pre-signed affidavits was true and correct and reflected that the persons identified as being served were, in fact, served with the necessary documentation.

Peters lost confidence in Gerlock in mid to late October 2001 because Gerlock was entrusted with funds by Peters and the funds disappeared. Peters contacted the police to investigate the possible theft of those funds. The employment relationship between Gerlock and Peters terminated in October 2001.

In December 2001, Gerlock filed a request for investigation against Kusick with the Office of Attorney Regulation Counsel. Gerlock's report suggested that he had not served everyone he had previously told Peters he had served. Upon learning that Gerlock had...