In re Green, No. 99SA150.

• Decision Date: 11 September 2000
• Docket Number: No. 99SA150.
• Citation: 11 P.3d 1078
• Parties: In the MATTER OF Lawrence Jamalian GREEN, Attorney-Respondent.
• Court: Colorado Supreme Court

11 P.3d 1078

In the MATTER OF Lawrence Jamalian GREEN, Attorney-Respondent.

No. 99SA150.

Supreme Court of Colorado, En Banc.

September 11, 2000.

Rehearing Denied October 10, 2000.

John S. Gleason, Attorney Regulation Counsel, James S. Sudler, Assistant Regulation Counsel, Denver, Colorado, for Complainant.

Lawrence Jamalian Green, Pro Se, Littleton, Colorado.

PER CURIAM.

Lawrence Jamalian Green, the respondent in this lawyer regulation case, was admitted to practice law in Colorado in 1979. A hearing panel of the former grievance committee¹ approved the findings and recommendations of a hearing board that Green be suspended for sixty days. The hearing board found that Green charged an excessive fee in a civil case and authored letters and motions to a trial judge containing "relentless criticism and contempt for the judge" constituting "a serious breach of acceptable behavior for an attorney toward a member of the judiciary." We conclude that the First Amendment prohibits disciplining Green on the basis of his communications with the judge because the communications did not make or imply false statements of fact. However, we agree that Green violated Colo. RPC 1.5 by charging an unreasonable fee. Thus, we reject the recommendation of a sixty-day suspension, and we determine that public censure is an adequate sanction this case.

I. FACTS AND PROCEDURAL HISTORY

Following an evidentiary hearing, the board issued its findings of fact, conclusions of law, and recommendation. We include undisputed portions of the record, together with the board's findings of fact as the basis of our discussion.

A tile contractor hired Green in 1991 to sue a homeowner and her husband for failure to pay for the contractor's installation of ceramic tile in their house. Green filed an action in Douglas County District Court on behalf of the contractor against the homeowners for breach of contract and to foreclose a mechanics' lien in the amount of $7,422.33. The defendants counterclaimed, asserting that the contractor breached implied warranties of fitness for a particular purpose and merchantability. The contract between the tile contractor and the homeowners entitled the party who prevailed at trial to attorney's fees and costs. Green and his client agreed that if the client prevailed, then Green would accept as his fee whatever amount the court awarded. Otherwise, the client would owe Green nothing.

After a bench trial, the trial judge issued findings of fact, conclusions of law, and an order. The court sustained the contractor's breach of contract claim and dismissed the homeowners' counterclaim. The judge awarded Green's client damages in the amount of $7,422.33, plus costs, interest, and attorney's fees. The court directed Green to file an affidavit for fees and costs within fifteen days.

In an affidavit filed following trial, Green requested attorney's fees in the amount of $29,554.80, which he calculated by multiplying his hourly rate of $165 by the 179.12 hours he claimed to have worked on the case. After a hearing, the trial judge determined that Green's billing rate was reasonable, but that the itemized list of services Green personally performed included secretarial or other non-attorney services that are not usually billed to clients. Thus, the judge ruled that the amount Green claimed was excessive and that a reasonable fee under the circumstances was $12,000.

Several months after the trial court's award, Green filed a motion under C.R.C.P. 97 to recuse the trial judge "for bias and prejudice against Plaintiff and this attorney." In his affidavit in support of the motion to recuse, Green asserted that the trial judge interrupted him while he was making an argument for his fees and directed Green, over his objections, to conclude his argument. In addition, Green accused the trial judge of "callous indifference and impatience with [Green's] oral arguments as reflected in [the judge's] facial grimaces." Green also objected to the substance of various rulings by the trial judge. The trial judge denied the motion to recuse.

The homeowners appealed the trial court's judgment in the contractor's favor on the breach of contract claim. The contractor and Green cross-appealed the amount of the fee award. The court of appeals affirmed the trial court's judgment regarding the contractor's breach of contract claim and dismissal of the homeowners' counterclaim. See Tile Design Studio v. Rosendahl, 1995 WL 761995 No. 94CA0060, slip op. at 4-5 (Colo. App. Aug.31, 1995) (not selected for official publication). However, the court of appeals reversed the trial court's judgment on the issue of Green's fees, holding that it was not supported by the trial court's findings:

[T]he record does not reflect that the trial court actually derived the amount of fees awarded by considering both a reasonable hourly rate and a reasonable number of hours, then making any necessary adjustments. In particular, the trial court's order does not indicate its finding as to the reasonable number of hours expended on the claims involving the homeowners.

Id. at 9-10. Remanding the case, the court of appeals directed the trial court to reconsider the issue of Green's fees and make additional findings on the reasonableness of the hours Green worked on the case. See id. at 10, 12.

While the trial judge was reconsidering the reasonableness of Green's fees, Green wrote three letters to the judge. In the first letter, Green stated, "Aside from the errors attributed to you by the appellate court I am aggrieved personally by comments and expressions made about me in your order [awarding attorney's fees]." Green indicated that he was offended because the trial judge, in the order, evaluated his performance as only "competent" while, according to Green's letter, he had "single-handedly prevailed throughout this litigation against four attorneys and no less significantly I prevailed against you, the trial judge." Green (who is African-American) continued that the use of the word "competent" reminded him of allegedly racist remarks attributed to a former justice of this court in 1978. In conclusion, Green "request[ed] an in camera pre-hearing conference attended by me and of course [opposing counsel] at the earliest possible date." Below Green's signature was a notation that he sent a copy of the letter to the opposing counsel.

The trial court issued an order, stating that it would reconsider the issue of attorney's fees pursuant to the court of appeals decision. However, the trial court also stated that no further hearing was necessary and that Green's request for an in camera hearing was therefore denied.

Before the trial court finished reconsidering Green's fees, Green filed a supplementary affidavit for attorney's fees in addition to those he had already claimed. Green stated that, through trial and the appeal, he had expended 618.13 hours of time and that his hourly fee rate was $165, amounting to $101,991.45 in attorney's fees. Subtracting the amount of fees he had previously claimed for the trial ($29,554.80), Green asked for $72,436.65 in attorney's fees for his work on the appeal.

Green sent a second letter to the judge on January 3, 1996, a copy of which Green also sent to opposing counsel. In this letter, Green suggested that the trial judge was unfairly biased against him. Green noted that he and his client have a right "not to have our issues of attorney fees and costs heard and decided by a judge with a `bent of mind.' . . . Basic to our system of justice is the precept that a judge must be free of all taint of bias and impartiality."

Also in the second letter, Green recounted the first time that he met the trial judge. Green stated that while he was in the court clerk's office, the judge came out, looked at him, and asked the clerk on behalf of which attorney was Green reviewing the file. Green's letter claimed, "Those circumstances characterize you as a racist and bigot for racially stereotyping me as unable to be an attorney because I was black."

In this letter Green also alleged that the judge entered an order releasing the mechanics' lien and lis pendens without providing Green a copy of the order. Green concluded the letter by stating, "I believe the totality of the circumstances dictate and require you to recuse yourself from any further proceedings in this case."

Green followed the second letter with a second motion to recuse. The second motion reiterated Green's version of his 1993 meeting with the judge and listed the judge's actions in the present case that Green believed cast aspersions on his legal abilities.

Green sent a third letter to the trial judge on February 29, 1996, again sending a copy to opposing counsel. Green stated that "the time is ripe for you to recuse yourself." He continued, accusing the trial judge of racism:

I do not believe I can state my case more emphatically than I already have; I want you off this case. I am entitled to and I affirm my right not to have my attorney fees determined by a racist judge. Merely sitting on this powder keg will not prevent it from exploding. My attitude toward you shall not change; in fact I am even more convinced now of your racism. . . . Recuse yourself!!

The other critical element is time . . . . This case has been underway in one forum or another for over four years. Your dilatoriness in recusing yourself is delaying determination of my fee by a replacement judge. I want my fee determined promptly by another judge. I need not remind you of the dilatoriness standard for judges established by the Colorado Supreme Court in In re Jones.

Again I urge you, recuse yourself from this action, immediately!!

The trial court issued its order reconsidering the award of attorney's fees on March 27, 1996. The judge first subtracted the hours the judge found were related to the performance of secretarial functions from the total number of hours that Green claimed to have expended...