People v. Distel
| Citation | 759 P.2d 654 |
| Decision Date | 18 April 1988 |
| Docket Number | No. 86SA418,86SA418 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Eddie G. DISTEL, Attorney-Respondent. |
| Court | Supreme Court of Colorado |
Linda Donnelly, Disciplinary Prosecutor, George S. Meyer, Deputy Disciplinary Prosecutor, Denver, for complainant.
Hall & Evans, Gary R. Cowan, Colorado Springs, for attorney-respondent.
In this disciplinary proceeding, a hearing panel of the Supreme Court Grievance Committee recommended that respondent, Eddie G. Distel, be suspended from practicing law for one year and one day, that he be ordered to pay the costs of these proceedings, and to make restitution. The recommendation was based on several incidents of professional misconduct which resulted in the violation of the disciplinary rules and Rule 241.6 of the Colorado Rules of Civil Procedure. We accept the recommendation and order that the respondent be suspended for one year and one day, pay the costs of these proceedings, and make restitution.
The respondent was admitted to the bar of the Supreme Court of the State of Colorado in 1974, and is subject to the jurisdiction of this court and its Grievance Committee.
In August 1985, a complaint was filed against the respondent by the People in accordance with C.R.C.P. 241.12(a). The complaint was assigned Case No. GC 85B-26 and alleged that Betty Rowley, the complaining witness, had consulted with the respondent concerning a malpractice claim against a Grand Junction doctor. The respondent informed her that he was not knowledgeable in the area but would have a consulting firm in Chicago investigate the matter. The respondent requested a $1,000 retainer to cover the cost of the consulting firm. On June 30, 1980, Rowley gave the respondent a check for $1,000. Rowley called the respondent's office on numerous occasions and was informed that he had not heard from the Chicago firm. In December 1981, the respondent informed Rowley that the investigation firm informed him that her case had no merit, but he neglected to inform her that a two-year statute of limitations would apply to her malpractice claim. The complaint stated that in January 1982, Rowley decided to change attorneys and asked for her files. On receiving her files, a year after her first request, Rowley found no correspondence or report from the investigation firm. She asked for such documents and an explanation of how the $1,000 had been spent, but she received no satisfactory response. All that Rowley received from the respondent was a copy of a letter to the Chicago firm, dated July 8, 1980, inquiring as to its fees for evaluation, an invoice from a local hospital for medical records, along with copies of her medical records. The complaint alleged that the respondent's conduct violated C.R.C.P. 241.6 and the Code of Professional Responsibility, DR1-102(A)(1) (a lawyer shall not violate a disciplinary rule), DR2-106(A) (a lawyer shall not charge or collect a clearly excessive fee), DR6-101(A)(3) (a lawyer shall not neglect a legal matter entrusted to him), and DR9-102(B)(4) (a lawyer shall promptly deliver to the client as requested by a client properties in the possession of the lawyer which the client is entitled to receive).
The respondent, appearing pro se, filed an answer in which he denied the material allegations of the complaint. He admitted receiving $1,000, but claimed that it was for the purpose of investigating the malpractice claim. He also stated by way of affirmative defenses that since four years had elapsed since Rowley was informed by him that her claim did not warrant a suit, the People should be estopped to maintain this action "after any reasonable time has been grossly exceeded." Also, since Rowley had taken her files from the respondent's office, the People should now be estopped "to complain about the inclusion or non-inclusion of any matters concerning that file."
In December 1985, another complaint was filed with the Grievance Committee and assigned Case No. GC 85B-43. In count I it alleged that beginning in 1981, the respondent represented Gary Bizer and Donna Fitzpatrick on various legal matters, including a worker's compensation case that was concluded in early 1982. In October 1982, the respondent filed an answer on behalf of Bizer in Financial Collection Agencies, Inc. v. Bizer, involving collection of an overdue school loan. In May 1983, a judgment in that case was entered by stipulation in the amount of $2,985.86, plus costs. The complaint stated that the respondent claimed over $3,500 in unpaid fees from Bizer and Fitzpatrick for past legal services. In July 1983, Fitzpatrick hand-delivered to the respondent a personal check in the amount of $2,000. Of that amount, $1,800 was to be paid to the collection agency in satisfaction of the student loan judgment against Bizer and $200 was to be applied to the respondent's fees. On the face of the check Fitzpatrick wrote "Gary Bizer School Loan." The respondent deposited the check in his trust account.
The complaint further alleged that the school loan judgment remained unpaid. Fitzpatrick later learned that the respondent did not pay the collection agency, but converted the money to his own use. When a new attorney retained by Fitzpatrick demanded reimbursement of her funds, the respondent maintained that it was payment toward his fees.
The complainant claimed that the respondent's conduct violated C.R.C.P. 241.6 and DR1-102(A)(1), DR9-102(A) (preserving identity of funds and property of a client), and DR9-102(B)(4).
Count II alleged that the respondent, in his response to the request for investigation, falsely stated that he did not represent Bizer in the student loan matter and did not stipulate to a judgment. The court file revealed that the respondent signed a stipulated judgment in May 1983.
The complaint stated that the respondent's conduct violated C.R.C.P. 241.6(1) and (7) (act or omission which violates Code of Professional Responsibility or obstruction of Grievance Committee is ground for discipline), DR1-102(A)(1) and (4) (conduct involving dishonesty, fraud, deceit, or misrepresentation).
The respondent, appearing pro se, filed an answer in which he admitted: (1) representing Bizer in the school loan matter and entering into a stipulation for judgment; (2) receiving $2,000 in July 1983; and (3) that he made an erroneous response to the request for investigation, but that the error was not intentional. He also stated that Bizer and Fitzpatrick owed him over $3,500 for past services. The other allegations of the complaint were denied. A motion to consolidate both cases was granted and they were set for hearing on March 11, 1986.
On January 17, 1986, the respondent was ordered by the presiding officer of the hearing board (board) to attend a prehearing conference on February 18, and to submit his prehearing statement no later than February 11. The respondent agreed to have his deposition taken on February 18. The respondent failed to file a prehearing statement and did not appear for the matters scheduled on February 18. The People moved for an entry of default as a sanction against the respondent for his failure to comply with the presiding officer's order. In response, the respondent claimed that his failure to appear was due to illness and he was willing to cooperate in all respects. The motion was denied.
At the February 18 hearing, the presiding officer entered a written order requiring the respondent to object to the admissibility of exhibits no later than February 28, ordered the respondent to file a statement and list of authorities supporting any claim by the respondent that the $1,800 given to him by Fitzpatrick was the respondent's property under an attorney's lien, and that the respondent could not raise that issue in GC 85B-43 unless the statement was filed by February 28. The order also required counsel for the People to file a brief on the admissibility, at trial, of the respondent's prior disciplinary history by February 21, and for the respondent to file an opposing brief by February 28. The order provided that in the absence of the respondent's filing a brief, evidence of his prior disciplinary history would be admissible at trial for uses consistent with the Colorado Rules of Evidence. On March 10, 1986, the respondent filed a trial data certificate, but neither filed a statement regarding an attorney's lien nor a brief on the admissibility of prior discipline by the time specified or at any other time through the end of the hearing.
On March 11, 1986, the presiding officer vacated the hearing scheduled for March 11 and 12 upon motion by the respondent. The respondent claimed that he had been unable to prepare for the hearing because of health and emotional problems. The hearing was then rescheduled for August 28 and 29, 1986. At that time, three matters were to be considered by the board: (1) the Rowley grievance; (2) the Bizer-Fitzpatrick grievance; and (3) the charge that the respondent misrepresented facts during the board's investigation of the Bizer-Fitzpatrick matter.
Two weeks before the hearing set for August 28, counsel entered an appearance for the respondent. After a one-day hearing, the board found that Rowley went to the respondent during the summer of 1980 for legal advice concerning a potential malpractice suit based upon treatment of a cancerous condition in her ear. The respondent told her that he thought her case had merit, but that since he was not an authority, he would contact a "Chicago firm" to evaluate the merits of her claim and that the Chicago firm would charge an initial fee of $1,000 to undertake the evaluation. Rowley gave the respondent $1,000 in June 1980.
Rowley waited several weeks, then began to inquire about the status of the matter. Initially, the respondent stated that he had not heard from the Chicago firm. Finally, in...
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