People v. Betterton-Fike, Case Number: 18PDJ043

Docket NºCase Number: 18PDJ043
Citation479 P.3d 436
Case DateApril 15, 2020
CourtSupreme Court of Colorado

479 P.3d 436

The PEOPLE of the State of Colorado
v.
W. Bradley BETTERTON-FIKE, #36250

Case Number: 18PDJ043

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

April 15, 2020


479 P.3d 437

OPINION AND DECISION ON REMAND IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(b)

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

Before a hearing board comprising lawyer Karen A. Hammer, citizen member Clarence Low, and Presiding Disciplinary Judge William R. Lucero (the "Hearing Board") is a mandate from the Colorado Supreme Court. That tribunal remanded this matter for a redetermination of the appropriate sanction after it affirmed in part and reversed in part the Hearing Board's findings that W. Bradley Betterton-Fike ("Respondent") violated Colo. RPC 8.4(b) and Colo. RPC 8.4(d). Specifically, the Colorado Supreme Court affirmed the Hearing Board's finding that Respondent violated Colo. RPC 8.4(b)

479 P.3d 438

by committing criminal conduct when he physically assaulted his wife, causing her injuries. The Colorado Supreme Court reversed a majority finding that Respondent violated Colo. RPC 8.4(d) by failing to pay a court reporting bill for more than two years. On remand, the Hearing Board determines that Respondent should serve an eight-month served suspension with the requirement that he petition for reinstatement under C.R.C.P. 251.29(c).

I. PROCEDURAL HISTORY

Respondent was admitted to practice law in Colorado on May 18, 2005, under attorney registration number 36250. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.1

On July 12, 2018, Alan C. Obye, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the PDJ"), alleging that Respondent violated Colo. RPC 8.4(d), Colo. RPC 8.4(b), and Colo. RPC 3.4(c). The PDJ granted Respondent an extension of time to file an answer, which Respondent submitted pro se on August 17, 2018. David R. Juarez later entered his appearance as Respondent's counsel.

In late 2018, the People moved for partial judgment on the pleadings under C.R.C.P. 12(c). On January 11, 2019, the PDJ granted that motion as to Claim II ( Colo. RPC 8.4(b) ) but denied the motion as to Claim I ( Colo. RPC 8.4(d) ), finding that consideration of the claim should be reserved for the Hearing Board. At the People's request, the PDJ then dismissed with prejudice Claim III, which alleged a violation of Colo. RPC 3.4(c).

On February 5, 2019, the Hearing Board held a hearing under C.R.C.P. 251.18. Gregory G. Sapakoff, who had earlier entered his appearance, represented the People; Respondent appeared with Juarez.

On March 22, 2019, the Hearing Board issued an "Opinion and Decision Imposing Sanctions Under C.R.C.P. 251.19(b)," suspending Respondent for nine months and requiring him to petition for reinstatement under C.R.C.P. 251.29(c). In that opinion, the Hearing Board reiterated the PDJ's findings in the entry of partial judgment on the pleadings. Specifically, the Hearing Board concluded that Respondent assaulted his wife in their marital bedroom when he spat in her face and punched her multiple times in the arm, leading to his criminal assault conviction. Respondent's criminal conviction, as a matter of law, violated Colo. RPC 8.4(b), which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. The Hearing Board also found that in a separate client matter, Respondent ordered deposition transcripts in a client representation but then failed to pay the court reporting bill for more than two years, until he was sued in small claims court. The majority concluded that Respondent's nonpayment of the bill prejudiced the administration of justice in violation of Colo. RPC 8.4(d), but the dissent found no transgression of that rule based on the absence of any contract. The full Hearing Board agreed, however, that Respondent should serve a nine-month suspension, with the requirement that he seek reinstatement, if at all, under C.R.C.P. 251.29(c).

Respondent filed a motion for reconsideration under C.R.C.P. 59, which was denied on April 19, 2019. He later sought—and was granted—a stay pending appeal before the Colorado Supreme Court. On appeal, where he was represented by lawyer Nora Nye, Respondent contended that the Hearing Board majority had erroneously concluded he violated Colo. RPC 8.4(d) by failing to pay a court reporting bill. He also argued the Hearing Board imposed a sanction that was manifestly excessive and unreasonable.

On March 9, 2020, the Colorado Supreme Court issued an opinion affirming in part and reversing in part the Hearing Board's opinion.2 In its opinion, the Colorado Supreme Court found that the Hearing Board had erred in concluding that Respondent violated

479 P.3d 439

Colo. RPC 8.4(d), as Respondent had no legal obligation to pay the court reporter. The Colorado Supreme Court noted that the Hearing Board's opinion was unclear as to what extent Respondent's Colo. RPC 8.4(d) violation influenced the decision to impose a nine-month suspension, and it remanded the case to the Hearing Board for reconsideration of the sanction based on Respondent's violation of Colo. RPC 8.4(b) alone.3 The mandate issued on March 26, 2020.

II. SANCTIONS

On remand, the Hearing Board must determine the appropriate sanction in this matter, considering the relevant factual findings in our opinion concerning Respondent's violation of Colo. RPC 8.4(b). We are guided in this task by the American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ")4 and Colorado Supreme Court case law.5 When imposing a sanction on a finding of lawyer misconduct, we must consider the duty violated, the lawyer's mental state, and the injury caused by the lawyer's misconduct. These three variables yield a presumptive sanction that may be adjusted based on aggravating and mitigating factors.

ABA Standard 3.0 – Duty, Mental State, and Injury

Duty : Respondent's assault on his wife violated his duty to the public to maintain standards of personal integrity and to abide by the principle that disputes must be resolved by observing controlling standards of conduct, without recourse to illegal acts or to acts that violate the Rules of Professional Conduct. "The public expects lawyers to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal or other dishonest conduct."6

Mental State : We conclude that Respondent acted knowingly in violating Colo. RPC 8.4(b).7 The evidence showed that Respondent was aware of the fact that he repeatedly hit his wife.

Injury : By failing to comply with legally controlling standards of conduct, Respondent damaged the public's trust in the legal profession. More important, the evidence showed that Respondent caused Ms. Betterton-Fike legally cognizable harm when he assaulted her. The evidence included her credible and uncontroverted testimony that her injuries were painful and that she continued to suffer emotionally, including by experiencing nightmares and reliving the assault during the resulting court proceedings.

ABA Standards 4.0-7.0 – Presumptive Sanction

ABA Standard 5.12 states that suspension is generally appropriate when a lawyer knowingly engages in criminal conduct that does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice law.8 Here, Colorado case law makes plain that the infliction of bodily harm on another person seriously adversely reflects on a lawyer's fitness to practice.9 This is because "the use of violence to settle disputes is the antithesis

479 P.3d 440

of the rule of law."10 We thus begin our analysis with the presumptive sanction of suspension.

ABA Standard 9.0 – Aggravating and Mitigating Factors

Aggravating circumstances include any considerations that may justify an increase in the degree of the sanction to be imposed, while mitigating factors may warrant a reduction in the severity of the sanction.11 As explained below, the Hearing Board considers four factors in aggravation, one of which carries significant weight. We apply three mitigating factors, one of which merits comparatively little weight. We evaluate the following factors proposed by the parties.

Aggravating Factors

Dishonest or Selfish Motive – 9.22(b) : Respondent's assault on his wife was an act inherently premised on a selfish motive. Through the use of violence, he sought to exercise control over a family member in a vulnerable position.12 We apply this factor in aggravation.

Refusal to Acknowledge Wrongful Nature of Conduct – 9.22(g) : Respondent refused to acknowledge in this proceeding that he engaged in any wrongdoing. He was adamant in this regard, despite the fact that a jury found him guilty of assault...

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1 practice notes
  • Perez v. People, Supreme Court Case No. 19SC356
    • United States
    • Colorado Supreme Court of Colorado
    • January 19, 2021
    ...was reasonable to believe that Perez had been armed with a firearm at some point and that the situation posed a public safety threat. See 479 P.3d 436 Quarles , 467 U.S. at 652, 104 S.Ct. 2626 (noting that an officer had "frisked [the defendant] and discovered that he was wearing a shoulder......
1 cases
  • Perez v. People, Supreme Court Case No. 19SC356
    • United States
    • Colorado Supreme Court of Colorado
    • January 19, 2021
    ...was reasonable to believe that Perez had been armed with a firearm at some point and that the situation posed a public safety threat. See 479 P.3d 436 Quarles , 467 U.S. at 652, 104 S.Ct. 2626 (noting that an officer had "frisked [the defendant] and discovered that he was wearing a shoulder......

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