In re Cardwell, No. 01SA251.

• Decision Date: 24 June 2002
• Docket Number: No. 01SA251.
• Citation: 50 P.3d 897
• Parties: In the Matter of Jerry E. CARDWELL, Attorney-Respondent.
• Court: Colorado Supreme Court

50 P.3d 897

In the Matter of Jerry E. CARDWELL, Attorney-Respondent.

No. 01SA251.

Supreme Court of Colorado, En Banc.

June 24, 2002.

John Gleason, Regulation Counsel, Gregory G. Sapakoff, Assistant Regulation Counsel, Denver, Colorado Attorneys for Petitioner.

George T. Ashen, Law Firm of George T. Ashen, Denver, Colorado, Attorney for Attorney Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

Jerry E. Cardwell is the respondent in this lawyer regulation proceeding. While assisting his client to plead guilty in a driving under the influence (DUI) case, Cardwell failed to disclose to the prosecutor and to the court that his client had previously been convicted of driving while ability impaired (DWAI). As a result, the trial court accepted a plea agreement, found the client guilty of the reduced offense of DWAI (first offense), and suspended the client's jail sentence. This was not a legal sentence for a defendant who has previously been convicted of DUI or DWAI. A hearing board consisting of the presiding disciplinary judge¹ and two other members found that Cardwell's conduct violated the Rules of Professional Conduct and ordered that he be suspended for three years, with eighteen months of the suspension stayed. Cardwell appealed the board's decision and order. C.R.C.P. 251.27. We affirm.

I.

Jerry E. Cardwell was admitted to practice law in Colorado in 1983. A recitation of the procedural history of this case is important for us to analyze the issues Cardwell presents in this appeal.

This case arose and was brought under our old disciplinary system. In 1998, a hearing panel of the former supreme court grievance committee approved a hearing board's findings and recommendation that Cardwell be publicly censured for his misconduct. See C.R.C.P. 241.14, -.15, 12 C.R.S. (1998). Reviewing the panel's and board's findings and recommendation, we could not reconcile the board's findings and conclusions because they were inconsistent. We therefore remanded the case for a new hearing under the current attorney regulation system.

The hearing was held on April 16, 2001 and the hearing board made the following findings by clear and convincing evidence.

A.

Cardwell represented the client in two unrelated DUI cases, the first in Jefferson County and the second in Arapahoe County. After the client was arrested in Jefferson County on September 29, 1995, he hired Cardwell to represent him. But before that case was resolved, the client was arrested again for DUI in Arapahoe County. He retained Cardwell for the second case. On February 5, 1996, with Cardwell present, the client pleaded guilty, under a plea agreement, to DWAI in Jefferson County.² He was sentenced to probation for the DWAI and was referred for an alcohol evaluation. The court records indicated that the level of the client's alcohol education and therapy would be determined by the court after the evaluation was done.

On May 6, 1996, Cardwell and his client appeared for trial in the Arapahoe County Court. While waiting for the case to be called, the client told Cardwell that he had changed his mind and wanted to plead guilty. Cardwell negotiated a plea agreement with the Arapahoe County District Attorney. He did not inform the district attorney, however, about the Jefferson County case. Both Cardwell and his client signed a plea motion and agreement containing the condition that the client had "[n]o prior or pending alcohol related driving offenses in this or any state." Cardwell had told his client about the mandatory jail sentence that would be imposed for a conviction of a second alcohol-related driving offense. See § 42-4-1301(9)(b)(II), 17 C.R.S. (Supp.1996). When he signed the document, Cardwell knew that his client had previously been charged with an unrelated DUI and had entered a guilty plea to DWAI in Jefferson County. The transcript of the May 6 sentencing hearing provides as follows:

COURT: . . . [Your client] is going to be entering a plea of guilty today to a charge of driving while impaired, first offense, is that correct?

MR. CARDWELL: That is correct your Honor.

COURT: And all other charges would be dismissed?

MR. CARDWELL: That is correct. That is our understanding. I don't know if the Court is able to do this — go for immediate sentencing or not?

COURT: Have you ever had an alcohol driving offense before?

MR. CARDWELL: No sir.

COURT: [To the client] Okay, is that your representation . . . ?

[CLIENT]: Yes sir.

COURT: Okay, never ever, at any time, any place?

[CLIENT]: No.

COURT: Okay. We will be able to do that then.

(Emphasis added.) Based on these representations, and unaware of the prior offense, Judge Feldman sentenced the client as a first time offender. See § 42-4-1301(9)(b)(I), 17 C.R.S. (Supp.1996). The client was sentenced to twelve months' probation, with no jail time. At the time when the client was arrested in Arapahoe County for DUI, section 42-4-1301(9)(b)(II), 17 C.R.S. (Supp. 1996), provided in part:

(II) Upon a conviction of a second or subsequent [DWAI] violation . . ., which violation occurred within five years of the date of a previous violation, for which there has been a conviction, of paragraph (b) of subsection (1) of this section, the offender shall be punished by imprisonment in the county jail for not less than forty-five days nor more than one year, and, in addition, the court may impose a fine of not less than three hundred dollars nor more than one thousand dollars. The minimum period of imprisonment as provided for such violation shall be mandatory, but the court may suspend up to forty days of the period of imprisonment if the offender complies with the provisions of subparagraph (I) of paragraph (f) of this subsection (9).

(Emphasis added.) Because the client had previously been convicted of DWAI, the judge did not have the authority to suspend all of the jail time. As required, the client reported to Arapahoe County probation to begin the alcohol evaluation process. He spoke to a probation officer who was an alcohol and drug evaluation specialist on May 17, 1996. The probation officer's report of that meeting stated:

[The defendant] appeared visibly upset upon arriving at the Probation Department. The defendant informed this officer he was upset because his attorney recommended he plead guilty to a Driving While Ability Impaired, first offense, when he had already been convicted in Jefferson County on February 5, 1996 for Driving While Ability Impaired. [The defendant] informed this officer he was upset, worried, and not able to sleep because he believed he was misle[]d by his attorney and that he did not tell the truth in Court.

On May 31, 1996, after his client told him he wanted to proceed without counsel, Cardwell filed a motion to withdraw. Judge Feldman denied the motion and held a hearing on June 13, where he confronted Cardwell about his misrepresentations to the court. Cardwell stated that he mistakenly believed that his client's Jefferson County conviction was not final when he entered the plea in Arapahoe County. The judge had to correct the client's illegal sentence based on Cardwell's and his client's misrepresentations.

Cardwell was charged with various crimes because of his misrepresentations in the Arapahoe County case. On April 23, 1997, Cardwell pleaded guilty to attempting to influence a public servant, a class 4 felony, see § 18-8-306, 6 C.R.S. (2001),³ and to perjury in the second degree, a class 1 misdemeanor, see § 18-8-503, 6 C.R.S. (2001).⁴ Cardwell received a deferred judgment and a four year sentence on the felony count. He was required to pay $4000 in fines, attend ethics courses, and serve 200 hours of community service. Cardwell has satisfied all of the conditions of his probation.

The complaint before the hearing board charged Cardwell with violating eight provisions of the Rules of Professional Conduct and one procedural rule governing lawyer regulation proceedings.

The complainant moved for judgment on the pleadings under C.R.C.P. 12(c) with respect to violations of Colo. RPC 1.1, 8.4(b), 8.4(d), and C.R.C.P. 251.5(b). Cardwell confessed the motion and judgment was entered against him on those charges. He went to trial on the remaining charges.

B.

Following the hearing, the board unanimously found that Cardwell had violated the following Rules of Professional Conduct. First, he violated Colo. RPC 1.2(d), which provides:

(d) A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

The board found that Cardwell knew that his client's oral and written statements in conjunction with his guilty plea in Arapahoe County were fraudulent, and that the court acted in reliance on those fraudulent representations.

Second, Cardwell's conduct violated Colo. RPC 3.3(a)(1), which states, "A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal. . . ." The board determined that Cardwell's false statement to Judge Feldman was made knowingly and, because the court relied upon the misrepresentation in determining the appropriate sentence, was material. Cardwell argued that his false statements to the judge were made negligently because they arose out of his failure to research the meaning of "final conviction," and therefore did not violate Colo. RPC 3.3, because the rule requires a mental state of knowingly.⁵ Cardwell testified that at the time of the guilty plea, he thought the argument could be made that his client's DWAI conviction in Jefferson County was not actually final because the judge had given them the opportunity to come back in and object to the recommendations of the probation department. In addition,...