People v. Brown

• Decision Date: 14 October 1986
• Docket Number: No. 86SA151,86SA151
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Nolan L. BROWN, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 638

726 P.2d 638

The PEOPLE of the State of Colorado, Complainant, v. Nolan L. BROWN, Attorney-Respondent.

No. 86SA151.

Supreme Court of Colorado,

En Banc.

Oct. 14, 1986.

Linda Donnelly, Disciplinary Prosecutor, George S. Meyer, Deputy Disciplinary Prosecutor, Denver, for complainant.

Roath & Brega, P.C., Charles F. Brega, Christopher C. Cross, Denver, for attorney-respondent.

ROVIRA, Justice.

On October 17, 1985, the respondent, Nolan L. Brown, was suspended from the practice of law during the pendency of disciplinary proceedings against him due to his conviction of serious crimes as defined in C.R.C.P. 241.16(e). We now disbar the respondent and order that he pay the costs of the disciplinary proceedings.

I.

In November 1985, a complaint was filed against the respondent with the Colorado Supreme Court Grievance Committee (Grievance Committee). It alleged that the respondent was admitted to the practice of law in Colorado in 1961 and that on October 9, 1985, he was convicted by a jury verdict of the offenses of second-degree forgery, a class four felony; abuse of public records, a class one misdemeanor; and computer crime, a class four felony. ¹ It also alleged that the crimes for which respondent was convicted are serious crimes as defined in C.R.C.P. 241.16(e).

The complaint stated that the respondent's conduct violated C.R.C.P. 241.6(1) (any act which violates the Code of Professional Responsibility), C.R.C.P. 241.6(2) (any act which violates accepted rules or standards of legal ethics), C.R.C.P. 241.6(3) (any act which violates the highest standards of honesty, justice, or morality), C.R.C.P. 241.6(5) (any act which violates the criminal laws of Colorado), and C.R.C.P. 241.16 (conviction of a serious crime).

The respondent's answer admitted violation of C.R.C.P. 241.6(1) and (5) and C.R.C.P. 241.16, but denied that he violated C.R.C.P. 241.6(2) and (3). Prior to proceedings before the Hearing Board (Board) of the Grievance Committee, the respondent, through counsel, entered into a Stipulation of Facts and Testimony with the Disciplinary Prosecutor. The Board accepted the stipulation and incorporated it into its findings.

The Board made the following findings concerning the events which led to respondent's conviction:

5. At the time of the events leading to Respondent's conviction, Respondent was the elected District Attorney for the First Judicial District, which includes Jefferson County. Among the many persons then working in Respondent's office was a man named James Shaw, an employee from the Department of Motor Vehicles. Mr. Shaw was assigned to the District Attorney's Office to act as liaison officer between that office and the Department of Motor Vehicles. His primary function was to assemble driver history records and files and to discuss those records with a deputy district attorney before trial.

6. At some time or another, but presumably before the latter part of September 1983, Respondent or his secretary asked Mr. Shaw to obtain a copy of Respondent's driving record. After the record was obtained, Respondent and Mr. Shaw discussed its contents in late September 1983. In the criminal proceeding, Respondent testified that he told Mr. Shaw that one of the three speeding convictions shown on his record might be erroneous because he thought he had been given a deferred judgment on one traffic ticket. In the hearing before the Board, Respondent testified that he thought his record was erroneous because earlier he had personally called his counterpart, Robert Russel, who was at that time the elected District Attorney in El Paso County, to negotiate a disposition of one of those tickets. During the discussion with Mr. Shaw, Respondent also told him that he (Respondent) had too many points on his driving record and stated that he needed some of the points taken off because of an insurance problem.

7. Mr. Shaw went to a supervisor, William Smyth, and relayed Respondent's request. Mr. Smyth then instructed a subordinate to delete the two oldest tickets from Respondent's driving record. Mr. Shaw delivered the altered driving record to Respondent on October 19, 1983.

8. Respondent's counsel conceded at the outset of the hearing the fact of Respondent's conviction. In view, therefore, of C.R.C.P. 241.16(c), Respondent's counsel called three witnesses who testified favorably about the integrity of Respondent and his long history of worthwhile public service. No evidence to the contrary was offered. Thus, based on the testimony presented, the Board finds that, with the exception of the matters which are the subject of this proceeding, Respondent's record, especially since his admission to the bar in 1961, has been exemplary both as to his personal and professional life.

The Board concluded that respondent had engaged in conduct which established grounds for discipline under C.R.C.P. 241.6(1), (2), (3), and (5). It also determined that respondent had violated the following disciplinary rules of the Code of Professional Responsibility: DR 1-102(A)(4) (engaging in conduct involving dishonesty); DR1-102(A)(6) (engaging in conduct adversely reflecting on fitness to practice law); and DR 1-102(A)(1) (violating a disciplinary rule). Recognizing that the respondent, a public official, had been convicted of three crimes and that discipline was warranted, the Board recommended that respondent be suspended from the practice of law for one year and one day. Subsequently, the Hearing Panel approved the findings, conclusions, and recommendation. Respondent did not file any exceptions pursuant to C.R.C.P. 241.20(b).

When the matter was submitted to this court, we entered an order requiring the respondent to show cause why he should not be disbarred. A response was filed in which respondent argued that the recommendation of the Hearing Board was appropriate because of his otherwise unblemished career, his reputation in the community, and his demonstrated competence and performance during his twenty-five years of law practice.

The Disciplinary Prosecutor also filed a response in which, after analyzing our prior disciplinary opinions and reviewing the ABA Standards for Imposing Lawyer Sanctions, she concluded that a three-year suspension would be appropriate discipline.

II.

In arriving at its recommendation that the respondent should be suspended for one year and one day, the Board considered his claim that suspension should be for a lesser period because his conduct, resulting in conviction, was an isolated event, because he had been held up to public scrutiny and ridicule, and because of his otherwise good character. It also recognized that because the respondent was an elected district attorney his conduct damaged not only himself, but the public, the courts, and the legal profession.

As we have stated before, and reaffirm today, while we have always given the recommendation for discipline by the Grievance Committee great weight, we reserve the right to exercise our independent judgment in arriving at the proper level of discipline. People v. Fitzke, 716 P.2d 1065 (Colo.1986).

Here, the respondent violated the very laws which he had sworn to uphold. He abused the power and the office which the citizens of the First Judicial District entrusted to him, and misused his position to obtain an advantage for himself to which he was not entitled. He is guilty of a breach of trust placed in him as a public official and prosecutor and violations of his oath of office.

While it is true that respondent has not been subject to prior discipline, that is only one factor that must be considered. Of more concern is our responsibility to protect the public interest by ensuring continued confidence of the people of this state in the function and role of the office of district attorney and the integrity of the legal profession and the judicial system.

Were we to accept the recommendation of the Hearing Board and Panel, we believe that it would reflect a benign acceptance of conduct that cannot and should not be tolerated. It is not too much to say that a lawyer who holds the position of district attorney, with the substantial powers of that office, assumes responsibilities beyond those of other lawyers and must be held to the highest standard of conduct. When those powers are abused and duties ignored, the discipline must be commensurate with the act.

Here, respondent's convictions arose out of his efforts to reduce the number of points on his driving record in order to obtain a more favorable insurance rate on his automobiles. He used the power and prestige of his position to attain his objective, and thus implicated the office of district attorney in his unlawful activity.

In the final analysis, the question is what discipline should be imposed on the respondent. Our task is difficult in light of the respondent's contributions as a lawyer, public official, and citizen. However, under the circumstances here, we are convinced that conviction of a district attorney of two felonies and a misdemeanor while in office warrants the most severe sanction which we have the authority to impose. See People v. Unruh, 621 P.2d 948 (1980); and ABA, Standards for Imposing Lawyer Sanctions, Standard 5.21 (1986) ("Disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another...."). See also People v. Fitzke, 716 P.2d 1065 (Colo.1986); People v. Loseke, 698 P.2d 809 (Colo.1985).

Accordingly, it is ordered that respondent be disbarred and his name be stricken from the roll of lawyers authorized to practice before the Supreme Court. Costs of $234.59 are assessed against the respondent and must be paid within sixty days from the date of the announcement of this opinion to the Supreme Court Grievance Committee, 600 17th Street, Suite 500 South, Denver, Colorado 80202. The respondent's...