People v. Barringer

• Court: Colorado Supreme Court
• Citation: People v. Barringer, 61 P.3d 495 (Colo. 2001)
• Decision Date: 19 July 2001
• Docket Number: No. 99PDJ052.,99PDJ052.
• Parties: The PEOPLE of the State of Colorado, Complainant, Montie L. BARRINGER, Respondent.

61 P.3d 495

The PEOPLE of the State of Colorado, Complainant,

Montie L. BARRINGER, Respondent.

No. 99PDJ052.

Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.

July 19, 2001.

Opinion issued by Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members EDWIN S. KAHN and ROBERT M. MAES, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: ATTORNEY DISBARRED

The Complaint in this matter was filed on June 2, 1999.¹ Montie L. Barringer ("Barringer") moved for an Order staying the proceedings pending resolution of a civil proceeding in Pueblo County District Court, Case No. 98CV1053, involving the allegations set forth in the Complaint. The Presiding Disciplinary Judge ("PDJ") granted Barringer's motion by Order dated August 18, 1999. The stay was then lifted on December 21, 1999, due to Barringer's failure to comply with the terms of the stay. Upon the People's motion, by Order dated March 3, 2000, default entered as to the facts set forth in the Complaint, which were deemed established. See People v. Richards, 748 P.2d 341, 347 (Colo.1987).

This matter was heard on March 27, 2000, before the PDJ and two hearing board members, Edwin S. Kahn and Robert M. Maes, both members of the Bar. James S. Sudler, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Barringer failed to appear in person or through counsel.

The People's exhibits 1 through 8 were admitted into evidence. The PDJ and Hearing Board heard testimony from the People's witness Deborah Ortiz, Chief Investigator for the Office of Attorney Regulation Counsel. The PDJ and Hearing Board considered argument of counsel, the exhibits admitted, assessed the credibility of the witness, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Montie L. Barringer has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 22, 1978, and is registered upon the official records of the Court, attorney registration number 08658.

In December 1996 Gary Ciancio ("Ciancio") retained Barringer to represent him in a workers' compensation claim, a wrongful termination action, and an unlawful detainer action. Barringer had prior experience as an administrative law judge and previously presided over worker's compensation matters. On December 19, 1996, Ciancio, who has limited reading abilities, signed a fee agreement with Barringer providing for a thirty-three and one third percent contingent fee for Barringer's services regarding these three matters. At the time the fee agreement was executed, § 8-43-403, 3 C.R.S. (1993) provided that, with regard to worker's compensation matters, a contingent fee exceeding twenty percent of the amount of contested benefits was presumed unreasonable.

Barringer filed formal claims for workers' compensation on Ciancio's behalf and proceeded with the prosecution of those claims under the rules and procedures applicable to worker's compensation claims. In June 1997, while Barringer was attempting to settle the worker's compensation claims, Ciancio requested that Barringer represent him in three additional criminal and traffic matters and Barringer agreed to do so. Barringer entered his appearance on Ciancio's behalf in the three matters pending in Fremont County Court: Case No. 96T1531, a probation revocation matter, Case No. 97T606, a matter involving a charge of driving under the influence, and Case No. 97T965, a matter involving a charge of driving while under restraint.

On July 27, 1997, Barringer and Ciancio agreed that Barringer would be paid for these three additional matters out of any settlement reached on Ciancio's worker's compensation claim. Barringer quoted Ciancio an aggregate fee of $7,500 as compensation for the three new matters. As part of the fee agreement on the three new matters, Barringer required that Ciancio sign an Assignment of Proceeds and Power of Attorney (the "Assignment") which, on its face, authorized Barringer to deduct the $7,500 from any settlement Barringer obtained for Ciancio in the worker's compensation case. The Assignment also authorized Barringer to retain any sums received in settlement of the workers' compensation matters until all fees and costs were paid in the three new criminal and traffic matters. In early August 1997, a settlement document was prepared and signed to resolve Ciancio's worker's compensation matter. Barringer did not communicate with Ciancio regarding the settlement; rather, without Ciancio's knowledge, authority or consent, Barringer signed Ciancio's name to the settlement document, and caused it to be filed with the Colorado Compensation Insurance Authority. Barringer also notarized the settlement document attesting to the veracity of Ciancio's signature. Shortly thereafter, in August 1997, Barringer received the settlement proceeds on Ciancio's worker's compensation claim in the amount of $15,000. He endorsed the settlement check with Ciancio's signature although he did not have the authority to do so, and deposited the funds into his trust account. Between September 1997 and October 1998, Ciancio called Barringer numerous times inquiring about the worker's compensation case and Barringer informed him that the case had not settled. Barringer intended to deceive Ciancio into believing that the case had not settled. Between August 1997 and October 1998, Barringer made no distribution of the worker's compensation settlement funds to Ciancio. By September 25, 1997, Barringer had, in fact, spent all but $233.74 of Ciancio's $15,000 settlement funds on personal and business expenses.

During the investigation of this matter, a representative of the Office of Attorney Regulation Counsel asked Barringer whether he had notarized the settlement document as a notary. Barringer admitted that he had notarized the settlement document and stated that his notary commission would not expire until June 1, 2001. In fact, Barringer's notary powers expired in 1982.

On September 22, 1997, Barringer obtained a resolution of the three newer matters pending against Ciancio: Case No. 96T1531, Case No. 97T606 and Case No. 97T965. In early 1998, Ciancio asked Barringer to represent him in two new criminal matters. Barringer entered his appearance on Ciancio's behalf in Case No. 97T1727 and Case No. 96M1015 in Fremont County Court. In October, 1998, Barringer withdrew from representing Ciancio in these two matters.

In October 1998, Ciancio contacted the Colorado Compensation Insurance Authority and learned that his worker's compensation case had settled in August 1997. He was provided with a copy of the settlement check. Ciancio confronted Barringer. Barringer told Ciancio that the funds were in his trust account when in fact they were not, tendered a check in the amount of $1,200 to Ciancio as his portion of the $15,000 worker's compensation settlement proceeds and told Ciancio that a child support lien had attached to the remaining settlement funds in his trust account. Barringer provided a "trust account summary" to Ciancio, reflecting that from the $15,000 worker's compensation settlement funds, Barringer deducted $7,500 for fees for his representation of Ciancio in Case No. 97T606, 97T965, and 97T1531, $5,000 as a contingency fee in the worker's compensation matter, $1,300 for additional unspecified attorney's fees, and a $1,200 distribution to Ciancio as his portion of the worker's compensation settlement.

Pursuant to the Agreement between Barringer and Ciancio, Barringer was required to retain any sums received in settlement of the workers' compensation matters until all fees and costs were paid" relating to the three criminal and traffic matters. Notwithstanding this requirement, Barringer spent virtually all of Ciancio's settlement funds. Even if Barringer had fully earned the $7,500 fees associated with the criminal and traffic matters and the $5,000 contingency fee in the worker's compensation matter prior to September 26, 1997, Barringer's trust account should have still retained no less than $2,500 of Ciancio's funds on that date. It did not. Barringer therefore converted at least $2,266.26 of his client's funds between August 26, 1997 and September 26, 1997.

II. CONCLUSIONS OF LAW

Default entered as to the facts alleged in the Complaint, which were deemed admitted. Claim One alleges that Barringer violated C.R.C.P. ch. 23.3, The Rules of Professional Conduct ("Colo.RPC") 8.4(d)(engaging in conduct prejudicial to the administration of justice) and Colo. RPC 1.5(a)(charging an unreasonable fee). Colorado Revised Statutes § 8-43-403, 3 (2000) provides in part that "[o]n unappealed contested cases, a contingent fee exceeding twenty percent of the amount of contested benefits shall be presumed to be unreasonable."² Barringer failed to appear at the sanctions hearing in this matter; therefore no evidence was presented to rebut the presumption that the amount Barringer charged was unreasonable. Accordingly, the PDJ and Hearing Board find that Barringer's contingency fee agreement failed to comply with the requirements of C.R.C.P. ch. 23.3 Rule 3 (contingent fee agreements may not be unreasonable), and Barringer violated Colo. RPC 1.5(a) by charging Ciancio an unreasonable fee. See In re Wimmershoff, 3 P.3d 417, 419 (Colo.2000)(finding that attorney charged an unreasonable fee where he charged and collected an amount in excess of twenty percent in a workers' compensation matter in violation of Colo. RPC 1.5(a)).

Claim one also alleges that Barringer violated Colo. RPC 8.4(d) "by entering into a contingent fee agreement of the type prohibited by statute." However, no evidence was presented which would establish that Barringer's misconduct, although related to a pending court proceeding, prejudicially affected, delayed, interfered with or altered the course of that...