People v. Carrigan
| Decision Date | 28 July 2015 |
| Docket Number | No. 14PDJ045.,14PDJ045. |
| Citation | 358 P.3d 650 |
| Parties | The PEOPLE of the State of Colorado, Complainant v. Daniel W. CARRIGAN, Respondent. |
| Court | Colorado Supreme Court |
On May 18, 2015, a Hearing Board comprising Marna M. Lake and William H. Levis, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge (“the PDJ”), held a hearing pursuant to C.R.C.P. 251.18. Catherine S. Shea appeared on behalf of the Office of Attorney Regulation Counsel (“the People”). Daniel W. Carrigan (“Respondent”) did not appear. The Hearing Board now issues the following “Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(b).”
I. SUMMARY
Respondent, who admitted many of the People's allegations but did not attend the hearing in this matter, disregarded his duty as a professional in three client matters to obey court orders and to comply with the People's requests for information. In one of those matters, Respondent also failed to meet with his client, failed to communicate with the client about the client's criminal case, and failed to return unearned fees. Considering the totality of the circumstances, the Hearing Board concludes that Respondent should be suspended from the practice of law for three years.
II. PROCEDURAL HISTORY
The People filed a complaint on May 28, 2014, alleging sixteen claims of unprofessional conduct. The People later withdrew three of these claims.1 Respondent answered the complaint on July 23, 2014. Although the answer was due on June 18, the PDJ accepted it out of time on Respondent's motion. During an at-issue conference on August 14, 2014, a hearing was set for February 5–6, 2015. Respondent submitted an amended answer on August 22, 2014. Respondent's initial disclosures were due on August 28, 2014, but the People advised the PDJ on September 25, 2014, that he had not submitted them.
Nancy L. Cohen entered her appearance for Respondent on October 2, 2014, and with leave of court she filed a second amended answer on Respondent's behalf on January 12, 2015. On January 14, 2015, the People notified the PDJ that Respondent had not served his initial disclosures until October 17, 2014, and that he had just produced copies of client files on January 14, 2015—one day before the discovery cutoff date. By order issued the same day, the PDJ extended the discovery cutoff date to January 23.
On January 21, the PDJ continued the hearing after holding a status conference during which Cohen represented that she had been unable to confer with Respondent to schedule his deposition. The PDJ re-set the hearing for May 18–19, 2015, and established a new discovery cutoff deadline of April 20. Cohen moved to withdraw as counsel on February 18, and the PDJ granted that motion on March 10. The People then filed a motion seeking sanctions against Respondent based on his failure to attend a scheduled deposition and to otherwise participate in the case. On April 28, the PDJ granted the motion in part, barring Respondent from testifying on his own behalf as to the alleged rule violations and from presenting any documentary evidence not disclosed to the People.
During the hearing on May 18, the Hearing Board heard testimony from Margaret Pearson, David Pearson, Kim Pask, and Karen Bershenyi, and the PDJ admitted the People's exhibits 1–9. The Hearing Board also considered the People's arguments concerning rule violations and sanctions, and Respondent's admissions as set forth in his second amended answer. Respondent did not attend the hearing.
III. FINDINGS OF FACT AND RULE VIOLATIONS
Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on March 1, 2011, under attorney registration number 43029.2 He is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.3
Around July 25, 2013, David Pearson was arrested on multiple felony weapons charges in Arapahoe County.4 A jailmate advised Mr. Pearson to retain Respondent, so he directed his mother, Margaret Pearson, to contact Respondent. She did so around August 16, 2013.5 Ms. Pearson advised Respondent that Mr. Pearson had upcoming hearings on August 28 in Arapahoe County and on September 16 in Denver.6 Respondent agreed to obtain a disposition of Mr. Pearson's two Arapahoe County cases (12CR1626 and 10CR2841) and two Denver cases (08CR3368 and 10CR2934).7 As Ms. Pearson explained, Respondent was retained to obtain discovery, explain the charges, figure out what Mr. Pearson's sentences should be, and negotiate pleas in the various courts. As a courtesy, Respondent told Ms. Pearson that he would also inquire about resolution of a case pending against Mr. Pearson in New Mexico.8
Respondent's fee agreement, dated August 17, 2013, states that he will provide Mr. Pearson criminal defense representation in “all open cases” (except the New Mexico case) for a flat fee of $2,000.00.9 The fee agreement requires an “initial down payment” of $500.00 before Respondent would enter any appearance in court.10 Under the agreement, the balance is to be paid off “according to the agreed upon payment plan.”11 Ms. Pearson agreed to pay Respondent $500.00 per month.12 Respondent told Ms. Pearson that $1,000.00 of his fee was for legal services up through the motions practice stage, while the remaining $1,000.00 would cover the rest of the representation.13 Sometime after their meeting, Ms. Pearson mailed a signed fee agreement and a $500.00 retainer check to Respondent's home address.
Mr. Pearson's first appearance in the Arapahoe County case was on August 28, 2013.14 Respondent did not appear because he had not received Ms. Pearson's retainer check.15 At that appearance, Mr. Pearson's preliminary hearing was set for a month hence, on September 26.16 On September 2, after discovering that her initial mailing to Respondent had been returned as undeliverable, Ms. Pearson hand-delivered the $500.00 check and signed fee agreement to Respondent at his residence.17
A hearing was scheduled in Mr. Pearson's Denver case on September 16. According to Ms. Pearson, Respondent told her that he would let Mr. Pearson's public defender handle the case because he did not want to interfere with the work of the public defender.18 As a result, Respondent did not enter his appearance at Mr. Pearson's hearing in the Denver case on September 16.19 Ms. Pearson testified that Respondent did promise, however, to meet with her son after that hearing. But Respondent was late, said Ms. Pearson, and by the time he arrived Mr. Pearson had been sent back to jail. Although, as Ms. Pearson put it, Respondent could have “walked across the plaza” to meet Mr. Pearson, he did not. Ultimately, Respondent never entered his appearance in Mr. Pearson's Denver case.20
On September 26, 2013, the date scheduled for Mr. Pearson's preliminary hearing in Arapahoe County, Respondent appeared approximately forty-five minutes to an hour late and entered his appearance on Mr. Pearson's behalf.21 The parties stipulated to a continuance for another month, until October 28.22 Respondent had advised Ms. Pearson that he would obtain discovery in Mr. Pearson's cases prior to the September hearing, review it, and discuss the cases with her after the hearing.23 He did not obtain discovery from the Arapahoe County District Attorney's office until after the hearing, however.24 Ms. Pearson recalled that Respondent requested she pay for the discovery because he did not have the funds to cover the discovery fee.
On October 1, Respondent left a voicemail message for Ms. Pearson on her home phone, requesting the monthly $500.00 payment.25 The next evening, Respondent texted Ms. Pearson, asking to speak with her about her payment.26 Ms. Pearson responded by text, stating that Mr. Pearson wanted to speak with Respondent about his cases before his mother paid any more money.27 Respondent told Ms. Pearson via text that he had already “put in a decent amount of time” on Mr. Pearson's case and that he would be happy to visit Mr. Pearson in jail, but not until he received Ms. Pearson's payment.28
Respondent last contacted Ms. Pearson in a voicemail message left on October 14, 2013, in which he said that he had not yet received Ms. Pearson's check and that failure to pay him was not a viable option.29 He also stated that terminating his services would not let Ms. Pearson off the hook for his fees because she had agreed to mediate by signing a binding arbitration agreement.30 He reminded her that mediating the matter would cost them both a lot of money.31
On October 21, 2013, Mr. Pearson filed pro se a “Motion to Substitute Counsel and to Reappoint the State Public Defender [sic] Office to Represent Defendant” in the Arapahoe County case.32 In his motion, Mr. Pearson states that his mother had terminated Respondent's representation.33 On October 28, Respondent failed to appear at Mr. Pearson's rescheduled preliminary hearing in the Arapahoe County case.34 Magistrate Moschetti continued the hearing to the next day, October 29, but Respondent did not appear then, either.35 Magistrate Moschetti submitted a request for investigation with the People that same day.36
The People notified Respondent of the request for investigation in letters dated October 29, November 26, and December 12, 2013, asking for information and Respondent's response.37 Respondent did not comply with the People's lawful demands for information regarding Magistrate Moschetti's grievance until June 2014.38
According to Mr. Pearson, Respondent never spoke or met with him; “it was all through my mom,” Mr. Pearson testified. Nor did Respondent perform much, if any, work tangibly benefitting Mr. Pearson or return to Ms. Pearson any portion of the $500.00 she had given him, even though she requested an accounting and a refund when she terminated his services.
The Hearing Board concludes the People proved...
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