People v. Bottinelli

• Decision Date: 30 October 1989
• Docket Number: No. 88SA353,88SA353
• Citation: 782 P.2d 746
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Gary Alan BOTTINELLI, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 746

782 P.2d 746

The PEOPLE of the State of Colorado, Complainant, v. Gary Alan BOTTINELLI, Attorney-Respondent.

No. 88SA353.

Supreme Court of Colorado En Banc.

Oct. 30, 1989.

Linda Donnelly, Disciplinary Counsel, and Susan L. Fralick, Asst. Disciplinary Counsel, Denver, for complainant.

Berger & Berger, David Berger, Commerce City, for attorney-respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

A disciplinary complaint was filed with the Grievance Committee charging the respondent, Gary Alan Bottinelli, with numerous counts of unprofessional conduct in connection with his representation of himself and two business entities in two civil actions. A hearing panel unanimously approved the hearing board's findings of fact and recommendations that respondent be suspended from the practice of law for a period of three months and be assessed the costs of these proceedings. We conclude that under the circumstances suspension from the practice of law for a period of six months is a more appropriate sanction.

I

The respondent was admitted to the bar of this court on April 26, 1972, and is subject to the jurisdiction of this court and the Committee. C.R.C.P. 241.1(b). The respondent contests the jurisdiction of the Committee to conduct inquiry into his alleged professional misconduct while the two lawsuits in question were pending. The alleged misconduct arose in the context of ongoing litigation, and respondent contends that the Committee's investigation had a chilling effect on his participation in the lawsuits, both as a party and as the attorney representing himself and other entities.

We reject the argument that the Committee may not consider allegations of professional misconduct during the pendency of a lawsuit giving rise to the subject matter of the grievance proceeding. All attorneys licensed to practice law in Colorado are subject at all times to the jurisdiction of the Supreme Court in matters relating to the practice of law. C.R.C.P. 241.1(b). While trial courts have authority to rule on questions of law and fact as they arise in the course of trial, including the authority to rule on matters that are also relevant to issues raised during the course of disciplinary proceedings, that fact does not restrict the ability of the disciplinary counsel to conduct investigations into alleged misconduct or disability of attorneys. See Royal Indem. Co. v. J.C. Penney Co., Inc., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986). While deferment of disciplinary action until the conclusion of pending litigation may be appropriate in some cases, the Committee and its disciplinary counsel has discretion to make such determination.

Respondent also asserts that the Committee improperly exercised its discretion to proceed with the grievance process while the civil litigation was pending. We disagree. Under the circumstances revealed by the record, including the fact that one of the lawsuits was initiated by respondent subsequent to the institution of grievance proceedings against him, the Committee was fully justified in carrying out its responsibilities while the litigation giving rise to the complaint progressed.

II

In 1984, the respondent formed a barter exchange organization, Exchange Network Corporation. Ray Joy and J. Gunson joined the business and respondent hired Linda Wilmore to perform secretarial work for Exchange Network.

In February of 1985, Wilmore issued a $200 check from Exchange Network to Steve Vignali, a commissioned salesman for the company, in contravention of respondent's specific instructions. Respondent, who believed Wilmore issued the check because of her personal relationship with Vignali, accused Wilmore of being a thief. Wilmore promptly ceased working for Exchange Network.

Joy and Gunson later severed their ties with Exchange Network due to deteriorating business relationships with respondent. On June 14, 1985, Joy, Gunson, and Wilmore filed a seven-claim civil action in the Jefferson County District Court, civil action No. 85CV1812, against respondent, Exchange Network and Xnet Corporation, another business entity owned by respondent. All three plaintiffs were represented by attorney Allan Lenefsky. Joy and Gunson sought compensatory damages of $37,250 and exemplary damages of $352,500 on grounds of fraud, payments owed for trade credits and breach of contract. Wilmore sought $3,000 in compensatory damages and $30,000 exemplary damages for defamation.

On October 8, 1985, respondent, on behalf of himself as pro se defendant, served a set of interrogatories and a request for production of documents on Wilmore. Several of the interrogatories sought information about Wilmore's attendance at church functions; her social and religious activities while a college student; names, addresses and telephone numbers of her neighbors, friends and persons who attended her wedding; and the number of times she had lunch with or engaged in telephone conversations with Ray Joy while she was an Exchange Network employee.

On December 10, 1985, respondent, representing all defendants, sent a second set of interrogatories and request for production to Wilmore, together with a request for admissions and an affidavit of Brian Dale Burt. The interrogatories contained additional requests for information concerning Wilmore's personal and religious activities, including her relationships with men other than her husband. ¹

Wilmore filed objections to these discovery requests, and on January 10, 1986, the trial court issued an order sustaining the objections to questions regarding Wilmore's religious beliefs, the social organizations to which she belonged, her sexual practices and her reputation. The trial court stated:

The rules of discovery are to be applied liberally, but are not to be used in an oppressive manner. Discovery should lead to discoverable material.... The court finds that it is hard-pressed to see the relevance of plaintiff's sexual reputation. It is not probative ... of whether ... Wilmore was slandered when she was referred to as a thief.

....

The questions regarding her husband's employment, her religious beliefs, including Bible meetings, social organizations she belongs to and her sexual practices and reputation are not discoverable.

....

Questions to [Wilmore] regarding her date of birth, parents, social, religious organizations, neighbors and education are too broad and not discoverable....

On January 9, 1986, Lenefsky withdrew as attorney for plaintiffs and Samuel Escamilla entered his appearance. Lenefsky took this step because of mounting frustration and anger at what he perceived to be overly aggressive litigation tactics employed by respondent. He at no time suggested that he agreed with respondent's expressed view that Lenefsky's representation of all three plaintiffs constituted a conflict of interest.

On January 15, 1986, respondent filed a motion to disqualify Escamilla on the ground of conflict of interest and requested appointment of separate counsel to represent Wilmore. That motion contained the following statement: "The original attorney for plaintiffs in this action withdrew as their counsel for an obvious conflict of interest between the plaintiffs." On March 17, 1986, the trial court denied the motion.

On January 18, 1986, respondent sent a letter to the Committee indicating interest in filing grievances against Escamilla and Lenefsky. The letter stated that Lenefsky had withdrawn as counsel for the plaintiffs in the pending civil action because of a conflict of interest and that Escamilla had assumed representation of the plaintiffs with knowledge of this conflict of interest.

On March 12, 1986, the trial court ordered a separate trial of Wilmore's defamation claim. The trial court also noted that both sides were being extremely uncooperative with regard to discovery matters and warned respondent and Escamilla to stop such conduct.

On March 21, 1986, respondent and Escamilla conducted a deposition of Burt in a conference room at respondent's office. At the same time, Joy, Gunson, an accountant they had employed and an employee of respondent were in another room copying documents of respondent in connection with plaintiffs' discovery requests. Joy and Gunson left the document area and joined respondent, Escamilla, Burt and an investigator employed by respondent.

Shortly thereafter respondent's employee entered the conference room and spoke to respondent. Respondent left the room, returned and accused Joy and Gunson of having removed documents without respondent's permission. Joy and Gunson denied the accusation. Respondent then accused Escamilla of hiding the documents, attempted to seize Escamilla's briefcase and, when met with resistance, pushed Escamilla. During the ensuing struggle, Escamilla's shirt was torn and he was thrown to the floor. Although Joy and the investigator also participated in the struggle, respondent acknowledged that he initiated the fracas by attempting to seize the briefcase.

On March 24, 1986, respondent sent a letter to Escamilla berating Escamilla for refusing to negotiate Wilmore's claim "alone," accusing Escamilla of failing to adequately advise or represent Wilmore, and stating that "it is distressing to observe your callous disregard of [Wilmore's] plight of being involved in a legal action in which she cannot possibly win, and in which she is being sacrificed by her attorney for the benefit of his other two clients." Respondent sent a copy of this letter to Wilmore without first obtaining Escamilla's consent.

In March of 1986, Wilmore, Joy and Escamilla filed separate requests for investigation with the Committee. On April 7, 1986, an investigative counsel sent a letter to respondent advising him of Joy's request for investigation and expressly referring to the confidentiality provisions of C.R.C.P. 241.24(b). On May 2, 1986, respondent filed a motion to amend a counterclaim in the pending civil action, which...