Avila v. People, 02PDJ005.

• Decision Date: 22 July 2002
• Docket Number: No. 02PDJ005.,02PDJ005.
• Citation: 52 P.3d 230
• Parties: Nick AVILA, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

52 P.3d 230

Nick AVILA, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 02PDJ005.

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

July 22, 2002.

Opinion by Presiding Disciplinary Judge ROGER L. KEITHLEY and two hearing board members, THOMAS J. OVERTON and DOUGLAS D. PIERSEL, both members of the bar.

OPINION AND ORDER READMITTING NICK AVILA, JR., TO THE PRACTICE OF LAW.

ATTORNEY READMITTED TO THE PRACTICE OF LAW

A readmission hearing was held in the within matter on May 20 and 21, 2002, pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley and two hearing board members, Thomas J. Overton and Douglas D. Piersel, both members of the bar. John Astuno, Jr. appeared on behalf of petitioner Nick Avila, Jr. ("Avila"), who was also present. James S. Sudler, Assistant Attorney Regulation Counsel, appeared on behalf of the People of the State of Colorado (the "People"). The following witnesses testified on behalf of Avila: Lesile Jordan, Ph.D., Brooke Wunnicke, Manual J. Solano, Cipriano Griego, David W. Givens, Debra Williams, Laurie A. Crook, Renee Schwalger, Marcella Paiz, Judge Aleene Ortiz-White, and Sandy Baca-Sandoval. Nick Avila, Jr. testified on his own behalf. Avila offered and the PDJ admitted into evidence stipulated exhibits A though N. The Hearing Board considered the testimony and credibility of the witnesses, the stipulation entered into by the parties, the exhibits admitted into evidence, and made the following findings of fact, which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Nick Avila, Jr. ("Avila") took the oath of admission and was admitted to the bar on May 17, 1977, registration number 08049. Avila was immediately suspended from the practice of law by Order of the Supreme Court dated July 1, 1986 due to his conviction in Denver District Court on two counts each of second degree forgery and conspiracy to commit second degree forgery. Avila arranged for the unauthorized alteration of two of his clients' driving records in the State Motor Vehicle Division. The two clients' driver's licenses were under revocation for alcohol-related offenses. Avila charged his clients between $1,500 and $3,000 for his services. See People v. Avila, 770 P.2d 1330 (Colo.App.1988)

. Avila was sentenced to a period of probation on these convictions.

Following the suspension of his law license, Avila encountered significant financial problems. Avila financed a drug operation importing cocaine from Florida to Colorado. In three transactions occurring from April through August 1987, Avila received more than three kilograms of cocaine. Avila was convicted in United States District Court for the District of Colorado of one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (1982), and three counts of possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1)(1982). Avila was sentenced to ten years in prison on each count and fined $10,000.00. As a result of the federal convictions, Avila's state probation was revoked and he was sentenced to a term of eight years in state prison to run consecutively with the federal term of incarceration. On July 17, 1989, by Order of the Supreme Court, Avila was disbarred from the practice of law in the State of Colorado. People v. Avila, 778 P.2d 657, 657 (1989). Over eight years have passed since the effective date of Avila's disbarment. See 251.29(a).

Avila served eight years of imprisonment. While serving his sentence in prison, Avila maintained relations with his family and was employed by the prison to work in the educational department where he helped inmates study for and take the high school equivalency exam. In 1995, Avila was released to a halfway house, and in 1996, he was released on parole. He was formally discharged from both sentences in July 1997.

Avila has worked to reestablish relationships with his two sons. His older son, a recent law school graduate, believes his father was and is his inspiration for choosing the legal profession, and remembers that even while he was in prison, Avila provided him with guidance and helped him when he encountered obstacles in school or in his personal life. Avila commits as much time as possible to his younger son. He provides transportation to and from school each day. He participates in his son's school activities and extra-curricular sports activities. He volunteers his time at his son's school, chaperoning dances, working at the church, collecting donations for mission trips and collecting food for the homeless. He extends financial support to his son beyond the child support payments he is required to pay. According to the mother of Avila's younger son, Avila has made a complete transformation since he was released from prison.

In his community, Avila has volunteered his time for several years to a program which helps at-risk teenagers obtain their high school equivalency diplomas. He assists with church functions, and gives presentations through a state agency on learning new skills and changing behavior. He offers himself as an example of the severity of the consequences for improper behavior.

Avila has established his proficiency in the law. He sat for and passed the February 27, 2001 Colorado Bar Exam, and the Multistate Professional Responsibility Examination. Prior to the submission of his Petition for Readmission, Brooke Wunnicke tutored Avila on the ethical obligations of a lawyer in Colorado. Specifically, Ms. Wunnicke instructed Avila on the importance of writing a representation letter at the outset of the attorney/client relationship, the need to render competent representation to the client, the need to clarify the client's and attorney's goals, the importance of discussing fees with clients at the outset, the importance of confirming to the client in writing all major aspects of his representation, the need to confirm in writing all discussions or agreements with opposing counsel, the importance of identifying and addressing conflicts of interest, and the importance of remaining current on Colorado Bar Association Formal Ethics Opinions and the American Bar Association ethics opinions.

In addition to demonstrating his proficiency in the law by taking the bar exam, Avila has worked as a paralegal for the last five years. The attorneys with whom Avila worked as a paralegal—Cipriano Greigo, David Givens and Manuel Solano—uniformly agree that Avila possesses good lawyering skills, good judgment, an ability to quickly comprehend complex legal issues, a solid work ethic, and is technically competent. Accompanied by a supervising attorney, he has met with clients, communicated with clients on behalf of his employers, assisted in the drafting of pleadings and trial preparation, and conducted legal research. As a paralegal, Avila is hard-working, well organized, dedicated to the legal profession, and has earned a reputation for being honest and forthright. Avila has developed a mentoring relationship with these attorneys and will look to them in the event he needs advice on a legal matter. All three attorneys knew Avila personally and professionally prior to his incarceration, have worked with him since his release, and confirmed that Avila is a changed person who takes responsibility for his actions and can competently practice law. One of the attorneys has invited Avila to join his firm as an associate attorney.

Avila consulted with a psychologist, Dr. Leslie Jordan, from March through June 2000. Avila worked to rehabilitate those flaws in his character which resulted in his prior misconduct. Avila recognizes that his background, which included a childhood filled with a considerable amount of punishment but not a lot of guidance, resulted in his not developing core values, and he lacked these core values when entering the practice of law. He was the first member of his family to attend college. He started off as a young lawyer with no one to advise him how to handle his caseload. He worked under conditions of financial insecurity and continual fear of failure. He believed he could not fail in resolving his clients' legal problems, even when his solution did not comport with the law.

On January 15, 2002, Avila filed a Verified Petition for Readmission and Reinstatement. Avila has complied with past disciplinary orders. He fully complied with both his state and federal sentences and completed his period of parole without incident. The parties stipulated that Avila substantially complied with the Supreme Court's Order dated July 17, 1989, requiring him to pay the costs arising from the prior disciplinary proceeding in the amount of $212.61.

Avila acknowledges the seriousness of his misconduct and has expressed genuine remorse. He has demonstrated that he has been willing to put forth the self-discipline and emotional effort to change old patterns.

The People conducted an investigation of Avila's background, resulting in the conclusion that Avila has successfully changed his behavior. Based on this investigation of Avila's post-incarceration conduct, his testimony and the testimony of others in this proceeding, the People stipulated that Avila should be readmitted to the practice of law in Colorado.

II. CONCLUSIONS OF LAW

C.R.C.P. 251.29 provides in relevant part:

(a) Readmission After Disbarment.

To be eligible for readmission the attorney must demonstrate the attorney's fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission... [which] shall be heard in procedures identical to those outlined by these rules governing hearings of complaints, except it is the attorney who must demonstrate by clear and convincing evidence the attorney's rehabilitation and full

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