Egbune, In re, s. 98SA120
| Decision Date | 19 January 1999 |
| Docket Number | 98SA206,Nos. 98SA120,s. 98SA120 |
| Citation | 971 P.2d 1065 |
| Parties | 1999 CJ C.A.R. 408 In the Matter of Patrick Anene EGBUNE. |
| Court | Colorado Supreme Court |
Linda Donnelly, Attorney Regulation Counsel James S. Sudler, Assistant Attorney Regulation Counsel Denver, for Complainant.
Patrick Anene Egbune, Pro Se Aurora.
We have consolidated two disciplinary proceedings in order to issue one opinion and order. The first discipline case, No. 98SA120, concerns false accusations made by the respondent, Patrick Anene Egbune, against an attorney and a judge. The second case, No. 98SA206 concerns Egbune's sexual assault of a client. In No. 98SA120, a hearing panel of the supreme court grievance committee accepted the findings of a hearing board, but modified the recommendation. The panel recommended that the respondent be suspended for thirty days and be required to comply with certain conditions. The same hearing panel accepted the findings and recommendation of a second hearing board in No. 98SA206, and recommended that the respondent be suspended for one year and one day. Considering the seriousness of both of these cases, we order that the respondent be suspended for a year and a day, which requires the respondent to petition for reinstatement and establish that he is once again fit to practice law.
Patrick Anene Egbune was admitted to practice law in Colorado in 1991. The hearing board in No. 98SA120 made the following findings by clear and convincing evidence.
In 1994, Kola Fadeyi entered into a commercial lease with Zephyr Smoky Hill on behalf of his business, Flavorz Ice Cream. Under the terms of the lease, certain basic construction finish work was Zephyr's responsibility. Any other improvements were the tenant's responsibility. Metro Mechanical Services billed Flavorz for finish work. Fadeyi refused to pay, claiming that the work had been completed at Zephyr's direction, not his. There was no written agreement between Metro and Flavorz for the finish work.
In October 1994, Metro filed a verified complaint in replevin in district court against Fadeyi. Egbune filed an answer on behalf of Fadeyi, but did not assert any counterclaims or cross-claims. About a month later, Metro's lawyer filed a motion to file an amended complaint, adding Zephyr and the general contractor as defendants. Egbune filed an objection to the amended complaint, together with a motion for summary judgment, asserting that Fadeyi had not entered into a written contract with Metro. On January 5, 1995, the district court granted Metro's motion to amend the complaint. Egbune filed an answer to the amended complaint.
Metro's attorney contacted Egbune in February 1994 and offered to dismiss all claims against Fadeyi so that Fadeyi would owe Metro nothing. Egbune declined the offer because Fadeyi wanted to recover attorney fees under section 13-17-102(2), 5 C.R.S. (1998), on the ground that Metro's action lacked substantial justification. No attorney fees may be assessed, however, if a party voluntarily dismisses a claim or action within a reasonable time after the party or lawyer filing the dismissal knows, or should know, that he or she would not prevail. See § 13-17-102(5).
In March 1995, Zephyr, Metro, and the general contractor filed a stipulated dismissal since Zephyr had elected to pay Metro for the finish work. The court-approved stipulation stated that it was not to be construed to affect in any way the claims between Metro and Fadeyi.
Egbune filed a second motion for summary judgment, identical to the first except for the caption, before the court had ruled on his first motion. Both motions for summary judgment were denied. The court also agreed with the plaintiff that the second motion was frivolous and assessed attorney fees against Egbune in the amount of $125. The case was ultimately settled in 1996, whereby all the claims were dismissed and each party would be responsible for its own fees.
Count I of the complaint charged the respondent with providing incompetent representation to his client, see Colo. RPC 1.1; filing a second frivolous motion for summary judgment, see Colo. RPC 3.1; and engaging in conduct prejudicial to the administration of justice, see Colo. RPC 8.4(d). The hearing board recommended that Count I be dismissed for the following reasons. First, the board disagreed with the complainant that Egbune's representation was incompetent. Second, the board declined to find by clear and convincing evidence that the filing of the second motion for summary judgment was frivolous, even though the district court so found.
The district court's ruling was not binding on the hearing board because the burden of proof in a civil action is generally by a preponderance of the evidence, see 13-25-127, 5 C.R.S. (1998), while in a lawyer discipline proceeding proof is by clear and convincing evidence, see C.R.C.P. 241.14(d). Issue preclusion therefore does not apply. See Restatement (Second) of Judgments § 28(4) (1982); see also Grogan v. Garner, 498 U.S. 279, 284-85, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) ().
Finally, the board concluded that the filing of the second motion for summary judgment did not rise to the level of conduct prejudicial to the administration of justice. The complainant did not except to the board's findings, so Count I is dismissed.
Zephyr filed an action against Flavorz and Fadeyi, individually, in May 1995 in county court to recoup the amount paid to Metro in the district court case. Zephyr also sought costs, expenses, and attorney fees. Egbune filed an answer, counterclaim, and a motion for declaratory judgment. In addition, he filed a motion to consolidate the county court claim filed by Zephyr with the claim filed by Metro in the district court, a motion to dismiss the county court claim, and a motion for sanctions.
In her objection to the motion to consolidate, Zephyr's lawyer stated incorrectly that trial was already scheduled in the county court case. Egbune advised the lawyer of her error and indicated that if she failed to correct it, grounds existed for him to file a grievance against her. The lawyer advised the county court of her mistake.
On June 8, 1995, the magistrate denied the motion to consolidate because C.R.C.P. 313 sets out the proper procedure to transfer a case to the district court. He also ruled that Egbune could either transfer the case under Rule 313 and pay Zephyr's attorney fees, or he could remain in the county court and attorney fees would not be imposed. After Egbune filed the appropriate motions to transfer the case, the magistrate asked Zephyr's lawyer to submit an affidavit reflecting the attorney fees she requested. At the same time he filed the motion to transfer, Egbune filed counterclaims alleging damages for intentional and negligent infliction of emotional distress, and bad faith.
Zephyr's lawyer filed an affidavit requesting attorney fees of $1,557.50. Egbune asked the court to reconsider the award of attorney fees and the other lawyer responded with a request for an additional $122.50. Egbune filed a reply to this response. On October 6, 1995, the district court judge awarded Zephyr's lawyer $1,000 in attorney fees against Flavorz and Fadeyi.
On October 17, 1995, the respondent wrote the following to the other lawyer: "I will also be initiating disciplinary investigation against any party including anyone in the judiciary that may have assisted you or the Plaintiff in covering up or ignoring the fact that there is enough evidence to suspect that you failed to exercise candor in your dealings in this case."
Fadeyi was served with a notice of garnishment. Egbune did not receive notice of the garnishment until after Fadeyi had been served. The respondent did not offer to refund the amount garnished from Fadeyi's bank account.
Egbune filed a notice of appeal in the court of appeals with respect to the attorney fees. In his notice of appeal, the respondent stated:
5. In submitting her affidavit, [Zephyr's lawyer] lied under oath....
6. [The county court magistrate] abstained from ruling on the issue of attorney's fees that he had ordered after [Zephyr's lawyer] lied under oath....
7. In continuing her misstatement of facts, [Zephyr's lawyer] submitted an affidavit of attorney's fees of $1,557.50, in the County Court, then in the District Court, by an [sic] through the Order and Judgment she prepared for [the district judge], through what appears to be an ex parte communication, claimed $1,680.00 as attorneys' fees and the District Court awarded $1,000.00.
One of the issues raised in the notice of appeal was "[w]hether attorney's fees should be awarded, given the ex parte communication between [the district judge and Zephyr's lawyer] concerning payment of attorney's fees." Egbune repeated the allegation of an ex parte communication in his appellate brief.
The hearing board found that no ex parte communications between the judge and Zephyr's lawyer took place. Egbune's allegation was based solely on his assumption that because the amount claimed by Zephyr's lawyer had increased, an ex parte communication must have occurred.
The respondent's two successive motions for summary judgment were denied by the district judge. Early on in the case, Zephyr's lawyer offered a settlement whereby Fadeyi would not have to pay anything. The offer was rejected. In December 1996, the parties met with a mediator pursuant to a court order. At the mediation, Egbune offered to settle the case for $250,000 plus $6,000 attorney fees and the $1,000 that had been garnished. He demanded interest at the rate of 45%.
The case went to trial on December 16, 1996. Fadeyi's counterclaims were dismissed...
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