People v. Bertagnolli, 93SA120
| Decision Date | 01 November 1993 |
| Docket Number | No. 93SA120,93SA120 |
| Citation | 861 P.2d 717 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. James S. BERTAGNOLLI, Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Counsel, Kenneth B. Pennywell, Asst. Disciplinary Counsel, Denver, for complainant.
John Patrick Michael Murphy, Colorado Springs, Michael D. Gross, Colorado Springs, for attorney-respondent.
A hearing board in this attorney discipline proceeding found that the respondent 1 violated the Code of Professional Responsibility and recommended that he receive a letter of admonition and be assessed costs. A hearing panel of the Supreme Court Grievance Committee approved the findings, but modified the recommendation of discipline to a private censure. The respondent has excepted to the panel's action on the grounds that no ethical violation was demonstrated as a matter of law or as a matter of fact, and that even if there was a violation, no sanction is warranted.
The assistant disciplinary counsel, on the other hand, asserts that a private sanction is unduly lenient under the circumstances here. We agree with the latter view and order that the respondent be publicly censured and bear the costs of the proceeding.
The hearing board was presented with the testimony of witnesses for complainant and for the respondent. The respondent himself testified, and certain exhibits were admitted into evidence, including a "Stipulation of Fact" entered into between the parties. The board concluded that the following facts, most of which were set forth in the stipulation, were established by clear and convincing evidence.
The respondent represented a child in arbitration proceedings arising from an automobile accident. The arbitration proceedings were conducted pursuant to a provision of the child's parent's uninsured motorist insurance policy. The child, who was sixteen years old at the time of the accident, sustained brain damage. One of the manifestations of the brain damage was anosmia, which is a loss of, or interference with, the sense of smell.
One of the respondent's witnesses at the arbitration proceedings was Arthur C. Roberts, M.D., a psychiatrist. Dr. Roberts testified on July 8, 1991, that he believed that the child had total anosmia. One week later, on July 15, 1991, Dr. Roberts sent a letter to the respondent which stated:
Last week, on July 8, 1991, I testified regarding my clinical conclusions that [the child] had suffered frontal lobe damage as a result of her automobile accident.
In part, I based my findings on the presence of anosmia. On one occasion, early in her treatment course, I thought she had sustained total anosmia on one side and in retesting more recently with a much more sensitive instrument I concluded that she continued to suffer from anosmia.
However, I am sorry to say that I have misinterpreted the results. Based on this test, it seems to indicate that she does not have anosmia.
Of course, I need to protect my reputation for accuracy and so I am letting you know. Incidentally, I still do feel that [the child] suffered frontal lobe damage, which persists, and which has resulted in behavioral changes.
I would appreciate a reply acknowledging that you have received this letter.
On July 24, 1991, Dr. Roberts again wrote to the respondent, expressing his concerns regarding his testimony:
I have not heard from you, in response to my letter of regarding [sic] [the child].
I really find myself in an ethical dilemma regarding this case. As you know, I depend upon my credibility and I would not want to have any decision made in this case or any other based upon erroneous evidence.
I again ask you to please let me know what should be done in this case, as soon as possible.
Dr. Roberts also attempted to contact the respondent by phone on one or two occasions, but the respondent did not call Dr. Roberts until August 2, 1991, when the doctor was out of town.
The arbitration hearing was conducted intermittently for approximately sixty days. In addition to Dr. Roberts's testimony, the arbitrators were presented with other evidence that the child suffered from anosmia, including the testimony of the child and her parents and that of an independent medical examiner.
At the time that Dr. Roberts sent his first letter to the respondent, both parties had completed the presentation of evidence. Closing arguments would not take place, however, until July 30, 1991, after Dr. Roberts's second letter was sent. During closing argument, the respondent argued that anosmia was one of the major elements of his client's damages and he specifically or implicitly referred to the testimony of Dr. Roberts. At no time did the respondent advise the arbitrators, or opposing counsel for the insurer, that Dr. Roberts had notified the respondent that he believed his testimony was in error.
On August 2, 1991, Dr. Roberts contacted one of the three arbitrators, and expressed his concern about his erroneous testimony. The arbitrator sent the respondent a letter dated August 7, 1991, describing the substance of his conversation with the doctor:
As you know, we completed the ... presentation of evidence and arguments on July 31, 1991. On August 2nd I received a call from Dr. Arthur Roberts expressing concern about the issue of anosmia. Dr. Roberts informed me that after testifying at the arbitration that [the child] was suffering from anosmia he returned to his office and reviewed his data and found that there was no objective test data to support that finding. He informed me that he had been in error.
Dr. Roberts advised that he called your offices more than once and wrote you at least one letter telling you of the problem and that you initially did not respond and then left a message that it was taken care of.
I recall you specifically arguing at the end of the arbitration that she was suffering from anosmia and listed that as one of your elements of damages. It appears that you made this presentation with the knowledge of Dr. Robert's [sic] change of testimony and that you let Dr. Robert's [sic] testimony stand knowing that he wished to change it.
Before deciding what to do with Dr. Robert's [sic] report, I thought it would be appropriate to allow you the opportunity to respond to his statements, if you wish. You should also be aware but for the removal of anosmia as an element of damages that this will not affect the arbitrators' deliberation of your client's damages.
In his reply to the arbitrator's letter on August 22, 1991, the respondent admitted that he knew about the issue that Dr. Roberts had raised regarding the presence of anosmia, and he summarized the other evidence indicating that the child had suffered total anosmia. The respondent's letter concluded:
It would be greatly prejudicial to [the child] to remove the anosmia as an element of damages, as suggested in your letter, since this is a significant element of her damages and is supported by the evidence. I do not know why Dr. Roberts decided after his testimony to review his testing and change his mind. However, since the panel is the finder of fact in this case, his unsolicited phone call to you would be analogous to an expert witness contacting a juror directly.
Since this is such an unusual situation, I will follow any further directions from the panel. However, this matter would never have come up had the arbitration hearing not been extended more than 60 days. In a trial situation, a verdict would have been rendered and the matter would have been moot.
My understanding is that Dr. Roberts' test data was unreliable, not that [the child] does not suffer from anosmia.
Please advise is [sic] you desire any further clarification.
The hearing board determined that the final award to the child was not affected by the respondent's withholding of Dr. Roberts's concerns regarding anosmia, and the arbitration panel was able to consider Dr. Roberts's change of testimony.
The board also found that the respondent realized he faced a dilemma in that he had some obligation to reveal Dr. Roberts's change in position to the arbitrators, but that to do so might hurt his client's case. He therefore sought guidance from a colleague. The other lawyer understood, incorrectly, that the arbitration proceeding had ended, and advised the respondent to say nothing about Dr. Roberts's concerns. The respondent chose to accept the colleague's assessment of his duty because it apparently did not conflict with his own assessment.
Two of the three members of the board concluded that the gravamen of the respondent's misconduct was his explicit or implicit reference to Dr. Roberts's testimony in his closing argument to the arbitrators. All three board members agreed that by referring to Dr. Roberts's testimony in closing, the respondent knowingly made a false statement of fact to the arbitrators, contrary to DR 7-102(A)(5) (); as well as DR 1-102(A)(4) (); and DR 1-102(A)(5) (). 2
The hearing panel approved the board's findings of fact and conclusions, but modified the board's recommendation of a letter of admonition to a private censure. The assistant disciplinary counsel asserts that private discipline is too lenient under the facts of this case. The respondent has also excepted to the panel's action on three grounds: (1) there was no evidence whatsoever to support the hearing board's determination that the respondent made an inappropriate reference to Dr. Roberts's mistaken testimony; (2) the respondent was under no duty to disclose a mistake in Dr. Roberts's testimony during argument where he learned of the mistake after the close of the evidence; and (3) even if a duty...
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