People v. Cohen
| Decision Date | 11 January 2016 |
| Docket Number | No. 15PDJ045.,15PDJ045. |
| Citation | 369 P.3d 289 |
| Parties | The PEOPLE of the State of Colorado, Complainant v. Emily E. COHEN, Respondent. |
| Court | Colorado Supreme Court |
Emily E. Cohen ("Respondent") was convicted of thirteen counts of theft—including five felony counts—in April 2015. In this disciplinary case, Presiding Disciplinary Judge William R. Lucero ("the PDJ") entered judgment on the pleadings, finding as a matter of law that her conviction established a violation of Colo. RPC 8.4(b) and C.R.C.P. 251.5(b). Those rules provide that it is professional misconduct and grounds for discipline for a lawyer to commit a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Respondent's conduct warrants disbarment.
In February 2014, the Office of Attorney Regulation Counsel ("the People") filed a petition to immediately suspend Respondent's law license under C.R.C.P. 251.8.1 Respondent did not participate in the proceeding before the PDJ. The PDJ found reasonable cause to believe that Respondent had caused immediate and substantial harm by converting client funds.2 The Colorado Supreme Court accepted the PDJ's recommendation and immediately suspended Respondent, effective March 21, 2014.
The PDJ transferred Respondent to disability inactive status under C.R.C.P. 251.23(d) in connection with separate disciplinary matters,3 first in September 2014 and again in January 2015. By order of April 23, 2015, the PDJ found that Petitioner could assist in her defense of disciplinary proceedings yet was unable to represent herself or clients. The PDJ therefore appointed counsel for Respondent in her pending cases and placed her on disability inactive status under C.R.C.P. 251.23(c), rather than C.R.C.P. 251.23(d), thus allowing the disciplinary cases against her to proceed.4
The People filed their complaint in the present case on June 22, 2015, alleging that Respondent violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b). Attached to the complaint was a certified copy of a sentence order issued by the Boulder County District Court. Respondent submitted an "Answer and Motion for Appointment of Counsel" on July 24, 2015. Three days later, the PDJ appointed Alexander R. Rothrock and Sara Van Deusen to serve as Respondent's counsel in this case.
The People moved for judgment on the pleadings on August 10, 2015, arguing that as a matter of law a theft conviction constitutes a violation of Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).5 Per C.R.C.P. 251.20(a), conviction of a crime is "conclusive proof of the commission of that crime" for disciplinary purposes. Respondent did not contest that her conviction, viewed in isolation, would establish a violation of these rules. Instead, she argued that the PDJ should not enter judgment because her criminal appeal remained pending. By order of September 10, 2015, the PDJ rejected Respondent's argument, entered judgment on the pleadings, and converted the disciplinary hearing to a sanctions hearing.
On October 29, 2015, the PDJ granted a joint motion in limine, ruling that the sanctions hearing could take place without Respondent present. In that motion, the parties stated that Respondent strongly desired not to participate in the hearing.
On November 16, 2015, a Hearing Board comprising Ted D. Gardenswartz and Jennifer H. Hunt, members of the bar, and the PDJ held a sanctions hearing pursuant to C.R.C.P. 251.18. Alan C. Obye represented the People, while Rothrock and Van Deusen appeared for Respondent, who did not attend. The Hearing Board considered testimony from David Stevens, Ph.D., the stipulated facts, and stipulated exhibit S1.
Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 17, 2010, under attorney registration number 41972. She is thus subject to the jurisdiction of the Hearing Board in this disciplinary proceeding.6
The findings regarding Respondent's conviction are drawn from the stipulated facts and stipulated exhibit S1. Respondent was convicted of thirteen counts of theft in Boulder County District Court on April 24, 2015. Specifically, she was convicted of two counts of class-four felony theft of $1,000.00–$20,000.00; two counts of class-five felony theft of $5,000.00–$20,000.00; one count of class-six felony theft of $2,000.00–$5,000.00; five counts of class-one misdemeanor theft of $750.00–$2,000.00; and three counts of class-two misdemeanor theft of $300.00–$750.00.7
As just one example, the jury convicted Respondent of the following charge of class-five felony theft (count 9 of the criminal complaint):
That on or about March 01, 2012 to November 01, 2013 in, or triable in, the County of Boulder, State of Colorado Emily Elizabeth Cohen unlawfully, feloniously, and knowingly, without authorization or by threat or deception, obtained, retained, or exercised control over a thing of value, namely: U.S. Currency, of Tayde Jimenez and Oscar Gordillo, with the value of five thousand dollars or more but less than twenty thousand dollars, and intended to deprive Tayde Jimenez and Oscar Gordillo permanently of its use or benefit; in violation of section 18–4–401(a)(a), (2)(g), C.R.S.
The actions underlying the conviction took place between early 2011 and early 2014. The victims were Respondent's immigration clients or individuals who paid her legal fees on behalf of immigration clients.
Although the April 2015 sentence order indicated that the amount of restitution was to be determined in ninety days, the parties in the disciplinary case did not know as of the date of the sanctions hearing whether restitution had been established.
At the sanctions hearing, David Stevens, Ph.D., a clinical psychologist, testified about his evaluation of Respondent. Respondent was referred to him in January 2015 in connection with her disability proceeding. He met with her on three occasions, in January, February, and March 2015. In addition, he interviewed Respondent's previous mental health treatment providers and reviewed an array of relevant documents.
Dr. Stevens diagnosed Respondent with Bipolar 2 Disorder and Posttraumatic Stress Disorder ("PTSD"). He explained that Bipolar 2 Disorder patients have marked affective instability, typically characterized by long periods of significant depression, elevated anxiety, suicidal ideation, inability to concentrate, and sleep disturbance. These periods may be punctuated by brief periods of hypomania, which involves a flight of ideas, reduced need for sleep, impaired judgment, and an excessively expansive or elevated view of one's capacities.
People with PTSD, Dr. Stevens said, endure a series of "arousal" symptoms, whereby they remain in a state of constant alert. In this state, patients anticipate some negative event consistent with their history, and they experience tension, low-grade paranoia, and difficulty in differentiating the past from present. In other words, patients tend to misconstrue present circumstances as posing dangers associated with past experiences.
Dr. Stevens's diagnoses were based in part on Respondent's developmental history, which he described as "very chaotic." Among other stresses, Respondent was abandoned by her mother for a time in infancy, she was shuffled between households throughout her childhood, and she had limited contact with her alcoholic father, who periodically reviled her. This history, Dr. Stevens said, predisposed her to PTSD.
Respondent began taking medications to address her mental health in late adolescence, after she voiced suicidal thoughts. Since that time, she has taken medications on an episodic basis, with mixed responses. She has, in "chaotic" fashion, seen a variety of mental health treatment providers, to whom she reported a history consistent with that she reported to Dr. Stevens. Dr. Stevens is aware of no evidence that Respondent has recovered from her mental health conditions since he last saw her this past March.
The American Bar Association's Standards for Imposing Lawyer Sanctions ("ABA Standards ")8 and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.9 In imposing a sanction after a finding of lawyer misconduct, the Hearing Board must consider the duty violated, the lawyer's mental state, and the actual or potential injury caused by the lawyer's misconduct. These variables yield a presumptive sanction that may be adjusted based on aggravating and mitigating factors.
Duty: According to the ABA Standards, when a lawyer violates Colo. RPC 8.4(b), the lawyer violates her duty to the public to maintain her personal integrity.
Mental State: In convicting Respondent of theft, the jury was required to find that she acted with a knowing state of mind and that she intended to permanently deprive others of the use or benefit of their money. Because the jury reached that finding beyond a reasonable doubt after an adversary process, we adopt the jury's determination.10
Injury: We likewise adopt the jury's determination that Respondent deprived numerous clients of large sums of money. We conclude that Respondent's dishonesty caused her clients severe injury. In addition, the Hearing Board...
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