In re Bass

• Decision Date: 11 September 2006
• Docket Number: No. 05SA279.,05SA279.
• Citation: 142 P.3d 1259
• Parties: In the Matter of Betty Ann BASS, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 1259

142 P.3d 1259

In the Matter of Betty Ann BASS, Attorney-Respondent.

No. 05SA279.

Supreme Court of Colorado, En Banc.

September 11, 2006.

Michael D. Brown, Arvada, Colorado, Attorney for Appellant-Respondent Betty Ann Bass.

Kim E. Ikeler, Assistant Regulation Counsel Denver, Colorado, Attorney for Appellee-Petitioner Office of Attorney Regulation Counsel.

Justice EID delivered the Opinion of the Court.

Attorney Betty Ann Bass appeals an order entered by the Presiding Disciplinary Judge ("PDJ") transferring her to disability inactive status pursuant to C.R.C.P. 251.23. We affirm.

I.

For the past several years, Bass has been involved in a consolidated disciplinary proceeding concerning multiple complaints filed against her alleging violations of the Colorado Rules of Professional Conduct. The consolidated proceeding has been contentious and protracted, in large part because of Bass' repeated failure to follow the PDJ's orders.

After Bass failed to attend an agreed-upon mediation session in December 2004, the Office of Attorney Regulation Counsel ("OARC") filed a status report asserting that Bass' conduct raised a "substantial question" as to whether she suffers from a mental or emotional infirmity such that she could neither defend herself in the disciplinary proceeding nor meet her professional responsibilities as an attorney. According to the OARC's status report, several participants in the disciplinary proceeding expressed concern for Bass' mental condition.

At a conference on January 11, 2005, the PDJ provided Bass with the opportunity to show cause why she should not submit to an independent medical examination ("IME") in order to determine whether she suffers from a mental or emotional infirmity. After hearing arguments from the parties, the PDJ ordered Bass to undergo an IME conducted by Dr. David Wahl.

The PDJ directed the OARC to provide Dr. Wahl with a copy of the December 2004 status report as well as copies of two orders previously entered in the disciplinary proceeding. The OARC supplied these materials to Dr. Wahl, along with additional documents. All of these materials were transmitted to Dr. Wahl under a five-page cover letter summarizing the OARC's impressions about Bass' behavior.

Dr. Wahl met with Bass on two occasions and subsequently issued a report finding that she suffered from a delusional disorder that both impaired her ability to defend herself in the disciplinary proceeding and rendered her unable to fulfill her duties as an attorney. At an evidentiary hearing held on March 16, 2005, Dr. Wahl testified that his conclusions were based primarily on the mental status examination he conducted in his meetings with Bass. Dr. Wahl acknowledged that he reviewed the documents disclosed by the OARC, including the additional documents not referenced in the PDJ's directive.

The PDJ also heard the testimony of Dr. Jill McNaul, a forensic psychiatrist retained by Bass to rebut Dr. Wahl's report. Dr. McNaul testified that Bass did not suffer from a mental infirmity or illness, a conclusion she reached after meeting with Bass and talking with her on the telephone in the days preceding the hearing. Dr. McNaul conceded in her testimony that her diagnosis was based primarily on Bass' performance on a mental status examination that only tested for severe psychological disorders.

In an order entered on April 8, 2005, the PDJ held that Dr. Wahl's report was unreliable because it was based at least in part on the additional materials disclosed by the OARC. In the PDJ's view, "[i]t would be pure speculation to predict what Dr. Wahl's opinion would have been absent [the OARC's additional] disclosures." The PDJ explained in a later order that he primarily was concerned about the appearance that the OARC was improperly attempting to influence Dr. Wahl's report, rather than the existence of any actual influence by the OARC. The PDJ also found that Dr. McNaul's report was insufficient because it was the result of a truncated, last-minute examination of Bass.

In light of the additional disclosures to Dr. Wahl, the PDJ entered an order granting Bass' motion for a second IME conducted by another physician, Dr. Fred Miller. In his order, the PDJ made clear that he expected Bass to fully cooperate with Dr. Miller, and that her refusal to do so would result in an adverse inference that she suffers from an infirmity sufficient to warrant her transfer to disability inactive status. At Dr. Miller's request, the PDJ also appointed Dr. Robin Post to conduct psychological testing on Bass.

Bass repeatedly failed to cooperate with Drs. Miller and Post. She met with Dr. Miller on two occasions but refused to take a routine psychological test or provide even the most basic information. Bass failed to keep subsequent appointments with Dr. Miller, notwithstanding the PDJ's orders requiring Bass to attend and cooperate in further evaluation sessions. Bass similarly canceled several sessions scheduled with Dr. Post.

Throughout this process, Bass claimed that financial hardships prevented her from complying with the examination. In response, the PDJ took extraordinary measures to accommodate Bass. The PDJ provided Bass with funds to pay for child care and transportation, and arranged for Bass to meet with Dr. Post at the University of Colorado School of Law, near Bass' home in Boulder.

Nevertheless, Bass continued to avoid the second IME. She refused to make or keep appointments with Drs. Miller and Post by claiming new hardships—specifically, the threat of eviction. Bass attended the session scheduled with Dr. Post in Boulder, but brought her children with her, thereby frustrating Dr. Post's ability to conduct a psychological examination. In Dr. Post's opinion, Bass "was aware that the psychological examination could not be performed with five young children present."

In the course of the second IME process, and despite her repeated claims of financial distress, Bass met twice with her own psychologist, Dr. McNaul. As a result of these meetings, Dr. McNaul issued another report to the PDJ, this time opining that continued psychological testing of Bass would be unwise.

By mid-July, Drs. Miller and Post both informed the PDJ that Bass' behavior prevented a diagnosis of her mental condition. Dr. Post believed that Bass was "strongly motivated ... to avoid the present psychological examination."

On August 15, 2005, after offering Bass multiple opportunities to comply with the examination process, the PDJ heard testimony and received exhibits on the second IME. Included among the exhibits offered by the OARC were letters from Drs. Miller and Post. Against the express order of the PDJ, Bass failed to appear in person at the hearing, but instead testified by telephone.

The PDJ transferred Bass to disability inactive status on September 2, 2005, finding that "the totality of the circumstances" demonstrated by clear and convincing evidence that Bass suffered from a mental or emotional infirmity. The PDJ relied in part on Dr. Wahl's conclusion that Bass suffered from a delusional disorder, explaining that while he "previously found Dr. Wahl might have been influenced" by the OARC's disclosures, "Dr. Wahl testified he primarily based his opinions on the mental status examinations ...." The PDJ also found that Bass' refusal to cooperate in the second IME process made it impossible for Drs. Miller and Post to complete their examinations and arrive at a diagnosis. Because of Bass' failure to comply with the second IME, the PDJ sanctioned her under C.R.C.P. 37(b)(2)(A) by making an "adverse finding" that, had the testing gone forward, Drs. Miller and Post would have concluded that Bass suffers from a mental infirmity rendering her unable to discharge her duties as an attorney.

II.

The Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings require that an attorney be transferred to disability inactive status where, upon petition by any interested party, "it is shown that [the] attorney is unable to fulfill professional responsibilities competently because of physical, mental or emotional infirmity or illness ...." C.R.C.P. 251.23(a). "During such time as an attorney is on disability inactive status the attorney shall not engage in the practice of law." Id.

Our rules permit the Presiding Disciplinary Judge to "direct such action as it deems necessary or proper to determine whether the attorney is incapacitated, including an examination of the attorney by qualified medical experts." C.R.C.P. 251.23(c). If, "upon due consideration," the PDJ determines "that the attorney is incapable of continuing to practice law or is incapable of defending in [disciplinary] proceedings ... the [PDJ] shall enter an order transferring the attorney to disability inactive status." Id.

On appeal, Bass argues that the PDJ committed three errors, each of which requires reversal of her transfer to disability inactive status. First, Bass contends that the disability proceeding was improper because the OARC did not file a petition before the PDJ ordered Bass to submit to an independent medical examination. Second, Bass asserts that the "law of the case" doctrine precluded the PDJ from reconsidering his decision to disregard Dr. Wahl's report. Third, Bass claims that the PDJ erred in drawing an "adverse inference" as a sanction for her refusal to cooperate in the second IME process. For the reasons we explain below, we disagree with Bass' arguments and affirm the PDJ's order transferring Bass to disability inactive status.

A.

C.R.C.P. 251.23(c) allows an "interested party" to "petition" the PDJ for a determination of whether an attorney-respondent is incapable of practicing law due to a mental or emotional infirmity or illness. Bass contends that the OARC's December 2004 status report is not a "petition" within the meaning of Rule 251.23 and, as a consequence, the PDJ lacked jurisdiction to hold the...