In re Rosen

• Decision Date: 15 December 2008
• Docket Number: No. 07SA363.,07SA363.
• Citation: 198 P.3d 116
• Parties: In the Matter of Daniel R. ROSEN.
• Court: Colorado Supreme Court

198 P.3d 116

In the Matter of Daniel R. ROSEN.

No. 07SA363.

Supreme Court of Colorado, En Banc.

December 15, 2008.

Charles E. Mortimer, Jr., Assistant Regulation Counsel, Denver, CO, Attorney for Complainant-Appellant.

Cecil E. Morris, Jr., Karen E. Lorenz, Denver, CO, Attorneys for Respondent-Appellee.

Justice COATS delivered the Opinion of the Court.

The Attorney Regulation Counsel appealed an order of a disciplinary hearing board, dismissing one of the six claims for relief filed against Daniel R. Rosen and ordering probation for the remaining five. The regulation counsel challenges as clearly erroneous the board's finding that he failed to prove by clear and convincing evidence the commission of attempted theft. He further challenges as unreasonable the board's imposition of a six-month suspension, stayed pending a commensurate period of probation, arguing that this court should increase that discipline to a suspension of a year and a day, without probation.

Because the hearing board did not err in finding unproven the sixth claim for relief and because the form of discipline imposed by the board for the respondent's proven violations is not unreasonable, its order is affirmed.

I.

In February 2007, the Attorney Regulation Counsel filed a complaint against attorney Daniel R. Rosen, asserting six separate claims for relief. The first five alleged various violations of the prohibition against knowingly making a false statement of material fact or law to a person other than a client, found at Rule 4.1(a) of the Colorado Rules of Professional Conduct. The complaint asserted that these transgressions were designated misconduct by Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), and made grounds for discipline by C.R.C.P. 251.5(a). The sixth claim alleged that the respondent committed the crime of attempted theft, in violation of sections 18-4-401 and 18-1-201 of the Colorado Criminal Code, which are designated attorney misconduct by Rule 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, other than by violating or attempting to violate the Rules of Professional Conduct, assisting another to do so, or doing so through the acts of another), and made sanctionable by C.R.C.P. 251.5(b).

All six of the claims for relief arose from Rosen's conduct in connection with a settlement negotiation with Safeco Insurance Company on behalf of his client, David Bourelle. Before the hearing, the parties entered into a stipulation of facts. Few if any facts, apart from the respondent's intent, were therefore disputed.

The board found that the respondent is a sole practitioner with a high-volume practice specializing in the settlement of personal injury claims. Bourelle engaged the respondent in February 2004, to represent him with regard to injuries he suffered in an automobile accident. At his client's direction, the respondent prepared a settlement demand for $65,000, but before he could deliver it, he was informed by his client's brother that the client had died. The respondent nevertheless delivered to Safeco the written settlement demand, including a demand for damages for pain and suffering.

In April the respondent rejected a counteroffer of $23,000, indicating in his response to Safeco that his client needed additional medical treatment. Weeks later, after learning for the first time that a claim for pain and suffering abates upon the death of the injured party, the respondent received a second offer to settle, along with a check for $31,765 and a release from liability, requiring his client's signature. Still without notifying Safeco of his client's death, the respondent faxed a copy of the release to his client's brother in California, along with a closing settlement statement, indicating that the client's share of the settlement would be $12,579.29.

Only after sending the closing settlement statement did the respondent come to understand that the Bourelle family was not taking action to probate the estate, and therefore his client's father was not, as he had earlier thought, in a position to sign the release on behalf of the estate. In the meantime, the client's brother communicated his concern about the propriety of signing the release to a member of the respondent's staff and, without notifying the respondent, advised Safeco that the family had been provided the release and had been asked to sign it. Finally in August, nearly three weeks after the brother's call, the respondent informed Safeco by letter that his client had died.

Even in this letter, however, the respondent expressly indicated that his client had died subsequent to the settlement offer, and he offered to hold the check until a personal representative was appointed. During the ensuing months, the respondent avoided being interviewed by Safeco's investigator and once more indicated by letter that he had only recently become aware of the client's death. Ultimately, in February 2006, when Safeco requested that its settlement check be returned, the respondent immediately complied.

At the disciplinary hearing, the respondent testified that no other client of his had ever died during the course of his representation, and as a result he was unaware of the effect a client's death would have on the attorney-client relationship. He admitted his misrepresentations constituting the violations alleged in the first five claims for relief, but he denied ever having an intent to steal money from Safeco. He testified instead that his initial settlement demand, delivered after his client's death, was made in ignorance of its impropriety, and that his subsequent delay in notifying Safeco, as well as his misrepresentations concerning the timing of his client's death, were merely part of an attempt to extricate himself from an embarrassing situation rather than an attempt to increase his fee.

In consideration of the respondent's explanation that once he learned of its significance, he always intended his client's death to become known to Safeco, the hearing board was unconvinced that he acted with an intent to deceive Safeco into settling for damages to which his client's estate was not entitled. It therefore dismissed the sixth claim for relief, which alleged an attempt to commit the crime of theft. Although the board considered the respondent's admitted misrepresentations to Safeco to be violations of his duty to the legal profession, which by their very nature caused injury to the profession, it ultimately concluded that the public would be adequately protected by imposing and staying a six-month suspension, pending successful completion of a similar period of probation and ethics school.

The Attorney Regulation Counsel appealed, challenging both the board's failure to find the commission of attempted theft and its sanction of probation.

II.

With regard to its sixth claim for relief, the Attorney Regulation Counsel assigns error to the board's failure to be convinced that the respondent acted with the specific intent to permanently deprive Safeco of its property. Rather than disputing the board's understanding of the elements of either criminal attempt or theft, see §§ 18-2-101(1),¹ 18-4-401(1),² C.R.S. (2008), regulation counsel marshals the evidence presented at the hearing disputing the respondent's denial of any such intent and asks this court to find the elements of attempted theft established.

In a disciplinary proceeding, this court is of course not the fact finder. In re Haines, 177 P.3d 1239, 1244 (Colo.2008). It may review and reverse the hearing board's order only for legal error; for clearly erroneous findings of fact; or for imposing unreasonable discipline. C.R.C.P. 251.27(a). A determination of the board that an allegation of the complaint has not been proven to its satisfaction by clear and convincing evidence, however, is not itself a finding of fact. Quite the contrary, it is the absence of, or inability to make, a factual finding and is therefore not subject to review according to the clearly erroneous standard.

To the extent that reasonable people could not differ as to the proof of attempted theft presented at the hearing, the denial of a motion for directed verdict, see C.R.C.P. 50, or motion notwithstanding the verdict, see C.R.C.P. 59, might nevertheless be subject to reversal for legal error. No such motion was made in this case, and we have previously held, in the context of civil litigation, that an appellate court cannot simply direct a verdict or order a judgment notwithstanding a verdict, in the absence of the denial of either motion by the trial court. See Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1249 (Colo. 1996) (whether either party is entitled to judgment as a matter of law is preserved by making a motion for directed verdict or judgment notwithstanding the verdict); Olmstead v. District Court, 157 Colo. 326, 331, 403 P.2d 442, 444 (1965) (we will not pass judgment on a post-trial motion if not first ruled upon by the trial court).

Because, however, we have emphasized our plenary authority in matters involving attorney regulation, see C.R.C.P. 251.1(d), and because the unique role of the Presiding Disciplinary Judge, requiring him to sit as both judge and panel member, may render largely meaningless the function of a motion for judgment notwithstanding the verdict, we decline to so rigidly limit our review in disciplinary matters. Nevertheless, considering the regulation counsel's challenge according to the standard required for a motion for directed verdict or motion for judgment notwithstanding the verdict, we cannot say, as a matter of law, that no reasonable fact finder could be unconvinced by the circumstantial evidence of the respondent's subjective intent to permanently deprive presented at the hearing, and instead believe the respondent's own explanation for his actions.

III.

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