People v. Davis, 80SA461
| Decision Date | 22 December 1980 |
| Docket Number | No. 80SA461,80SA461 |
| Citation | 620 P.2d 725 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Albert G. DAVIS, Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Prosecutor, Denver, for complainant.
Dale Tursi, Denver, for attorney-respondent.
The respondent, Albert G. Davis, was the subject of proceedings before the Grievance Committee of this court based upon a formal complaint which charged that his conduct as an attorney created cause for discipline pursuant to C.R.C.P. 241 B, and DR9-102(A) and (B) of the Code of Professional Responsibility. As a result of those proceedings, the Grievance Committee found that cause for discipline had been established and recommended that the respondent be disbarred and that he make restitution and pay the costs of the proceedings. We adopt that recommendation.
Two hearings were conducted before the hearings panel. The respondent was represented by counsel at each hearing, but did not appear personally. We summarize the facts, which the hearing committee found to have been established by clear and convincing evidence. 1
The respondent represented a client who was the complaining party in a personal injury case arising out of an automobile accident in 1977. An agreement was reached, as a result of which $7106.76 was received by the respondent in October 1978 in settlement of the client's claim. The payment was made by check payable jointly to the respondent and his client. The respondent deposited the funds in an account where they were commingled with the respondent's personal funds. The cancelled check reflects a handwritten endorsement, purportedly by the client, but it is not the client's signature.
Five days after depositing the check, the respondent mailed to his client in Texas a check dated October 27, 1978, in the amount of $5330.07, the correct amount owing after deduction of the respondent's twenty-five percent contingent fee. Between the time the check for the settlement funds was deposited and the time when the respondent's check was received by his client, the respondent wrote numerous other checks on the same account to such payees as Visa, Super Foods, and a travel agent (for a trip to Las Vegas). As a result, when the client presented the check for payment it was returned for insufficient funds. By November 30, 1978, the account was overdrawn by $1276.24.
The client and several others on his behalf asked the respondent numerous times when payment would be made. In response the respondent assured them on each occasion that the money was on its way or would be forthcoming shortly. At the time of the first hearing before the hearing committee on February 21, 1980, the client had not been paid. The respondent's attorney advised the Grievance Committee that $4176.03 of the $5330.07 originally owed to the client has now been paid, leaving a balance of $1154.04.
The Grievance Committee concluded that the evidence established the respondent was either misapplying trust moneys for his own personal expenses or, at the very least, commingling trust funds with his own personal funds. It further concluded that the respondent's conduct violated both DR9-102(A) (commingling funds) and DR9-102(B) (failure to pay to the client upon request the funds he is entitled to receive). We agree. These violations in turn constitute violations of C.R.C.P. 241 B(1) and create cause for discipline.
The Grievance Committee recommended disbarment. We have reviewed that recommendation, as it is our duty to do, People v. Berge, Colo., 620 P.2d 23 (1980) (Supreme Court No. 80SA195, announced November 24, 1980); People v. Sussman, 196 Colo. 458, 587 P.2d 782 (1978), and conclude that it is appropriate.
In our review we have considered the aggravating and mitigating circumstances established by the record. See A.B.A....
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Colorado Supreme Court Grievance Committee v. District Court, City and County of Denver, Colo.
...and it ultimately decides what discipline, if any, is appropriate. People v. Vigil, 779 P.2d 372, 375 (Colo.1989); People v. Davis, 620 P.2d 725, 726 (Colo.1980); see also People v. Shipp, 793 P.2d 574, 575 (Colo.1990) (holding that recommendations of Grievance Committee are only advisory);......
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People v. Dixon, 80SA426
...be required to demonstrate his competence to practice law by again taking and passing the Colorado bar examination. See People v. Davis, Colo., 620 P.2d 725(1980); People v. Kluver, Colo., 611 P.2d 971 (1980). In addition, the Respondent shall take the required action after suspension presc......