People v. English
| Decision Date | 04 April 2022 |
| Docket Number | Case Number: 21PDJ030 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Daniel Lee ENGLISH, #01731, Respondent. |
| Court | Colorado Supreme Court |
Daniel Lee English ("Respondent") knowingly mishandled client and third-party property by commingling personal funds in his trust account, which he treated as if it were his operating account. He did not keep required financial and trust account records and failed to safeguard money in which a third party had claimed an interest. In addition, Respondent provided impermissible loans to his client and did not administer the advisements required for lawyers involved in business transactions with clients. Respondent's misconduct warrants an eighteen-month suspension.
On May 21, 2021, Erin R. Kristofco of the Office of Attorney Regulation Counsel ("the People") filed a complaint against Respondent with Presiding Disciplinary Judge William R. Lucero ("the PDJ"), alleging violations of Colo. RPC 1.8(a) and (e) (Claim I); Colo. RPC 1.15A(a) and (c) (Claim II); Colo. RPC 1.15D (Claim III); and Colo. RPC 8.4(c) (Claim IV).1 Respondent answered on June 17, 2021. After continuing the hearing at Respondent's request, the PDJ reset the hearing for February 4, 2022.
On January 7, 2022, the PDJ issued an "Order Granting in Part and Denying in Part Complainant's Motion for Summary Judgment" and entered judgment on Claim I, Claim II as to the violation of Colo. RPC 1.15A(c), and Claim III. The PDJ denied summary judgment on Claim II as to the alleged violation of Colo. RPC 1.15A(a) and on Claim IV.
On February 4, 2022, a Hearing Board comprising the PDJ, lawyer Christine M. Hernandez, and citizen member Khánh Q. Vu held a remote disciplinary hearing under C.R.C.P. 251.18 via the Zoom videoconferencing platform. Kristofco represented the People, and Troy R. Rackham appeared as Respondent's counsel. The PDJ admitted the parties’ stipulated exhibits S2-S3, S5-S6, S12, and S14-S17; suppressed stipulated exhibits S1, S4, S7-S11, and S13;2 and Respondent's exhibits R3 and R5. The Hearing Board received testimony from Respondent, Melanie Scott, and the People's investigator, Donna Scherer.
The findings of fact are drawn from testimony offered at the hearing, evidence from the exhibits admitted at the hearing, and the undisputed material facts set forth in the PDJ's summary judgment order. Respondent was admitted to the practice of law in Colorado on April 26, 1972, under attorney registration number 01731.3 He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.4
Respondent represents parties with personal injury claims. In 2018, he entered into a lawyer-client relationship with David Carrales.5 Carrales had been in a motor vehicle accident in January of that year.6 Respondent represented Carrales in the resulting personal injury lawsuit, advising the at-fault driver's insurer, Farmers, that he represented Carrales.7 Respondent testified that he entered into a written contingency fee agreement ("CFA") with Carrales, following his "custom, habit, and routine" for personal injury cases. He placed the CFA in his file for Carrales, he said, along with other records from the case.
Carrales began treatment for his injuries from the accident at Denver Integrated Spine Center ("Denver Spine") in January 2018.8 That month, Carrales agreed with Denver Spine that he would be "directly and fully responsible to [Denver Spine] for all bills submitted for services rendered," regardless of whether he received any settlement, judgment, or verdict on his claim.9 The agreement provided a signature line for a patient's lawyer to promise "to withhold and pay such sums from the patient's portion of any settlement, judgment, or verdict," but Respondent did not sign the form.10
Melanie Scott is the practice administrator for Denver Spine. Scott explained that she works with patients, lawyers, and insurance adjusters to coordinate treatment and billing. She testified that she sent a copy of Carrales's signed agreement with Denver Spine to Respondent but did not receive a copy back from him. She indicated that failing to receive signed copies of the agreement from lawyers was not unusual, stating, "Rarely do lawyers sign these."
Scott recalled that Respondent left a message with Denver Spine on March 21, 2018, requesting an itemized billing statement for Carrales's treatment.11 She emailed Respondent the next day, attaching the invoice as of March 22, 2018.12 Records show that Denver Spine billed $5,455.00 for Carrales's treatment through that date.13 Respondent recalled that the amount was "close to $5,000.00."
On August 27, 2018, Denver Spine sent all of its final records and bills for Carrales's treatment to Respondent, who received the documents.14 Denver Spine's ledger for the treatment shows that it billed a total of $9,885.00 through June 27, 2018.15 By October 25, 2018, Respondent had reviewed Carrales's medical records and prepared a demand letter to Farmers that he sent to Carrales for review.16 The demand letter stated that the amount Denver Spine billed for Carrales's treatment was only $5,455.00.17 Respondent testified that he sent the demand letter to Farmers.
In November 2018, Respondent settled Carrales's case against Farmers for $40,000.00.18 When Farmers released the settlement check, Respondent agreed to "hold in trust funds to satisfy any and all liens."19 He testified that he understood his agreement to mean that he would hold funds from the settlement in trust for unpaid treatment providers in Carrales's matter. He deposited the $40,000.00 in his trust account on November 29, 2018.20
Respondent testified that Carrales's share from the settlement totaled $13,065.00.21 He said that he paid Carrales in two checks totaling $12,565.00: check number 3318 for $4,500.00, dated November 29, 2018; and check number 3315 for $8,065.00, dated November 30, 2019.22 He offset Carrales's share by $500.00, he said, because he had advanced that amount to Carrales at an earlier date. As for his own fee, he testified that he kept $13,332.00 from the settlement based on the CFA.23 On the draft settlement sheet for the case, Respondent wrote that the medical liens that Denver Spine and Carrales's other treatment providers held totaled $6,603.00.24
On December 31, 2018, the closing balance of Respondent's trust account was $14.90.25 But he should have been holding at least $9,885.00 in trust to pay Denver Spine's lien.26 At the hearing, he could not explain his failure to pay the lien, stating, He speculated that Carrales received the funds that should have been held for Denver Spine.
Scott testified that she requested from Respondent a status update on Carrales's case in February 2019.27 Respondent did not respond to her request, she said, nor did he return her telephone messages. Respondent disputed Scott's testimony, claiming not to recall seeing any communications from her about the lien before 2020. She "never" called him about the matter; if she had, he said, he would have returned her calls.
In February 2020, Scott contacted Carrales, who informed her of the settlement. She emailed Respondent on February 12, 2020—over a year after she had asked for a status update on the case—informing him that she knew the case had settled, requesting payment of the balance of $9,885.00 within ten days, and stating that she would "move forward via the attorney regulatory agency if this is not resolved immediately."28 Respondent, who testified that he was "in shock" when he learned the bill was unpaid, replied to Scott the next day, writing that "[his] records reflect that the bill was, in fact, paid."29 But he did not actually review his records before responding. He testified, rather, that he "felt strongly" that he had paid the invoice because "[his] practice is to pay ... for all client advances incurred during the litigation process," including payments to healthcare providers.
Respondent emailed Scott on February 18, 2020, requesting a copy of Denver Spine's invoice for Carrales and explaining that he had earlier shredded the case file.30 Scott recalled that Respondent also asked if Denver Spine had applied the payment to a different patient account.31 She responded the next day, reiterating that the amount due was $9,885.00 and informing him that Denver Spine had not misapplied any payments to other accounts.32
Scott testified that Respondent agreed to pay the $9,885.00 lien amount to Denver Spine and entered into a payment plan in February 2020.33 Under the payment plan, he was to make nine payments of $1,000.00 plus a final payment of $885.00, with a payment due on the first of each month, beginning on March 1, 2020.34 Respondent did not comply with the payment plan from the start, Scott said, requiring her to regularly follow up with him from March through October 2020 about the payments.35 She stated that he fully repaid the lien in July 2021 with a lump sum payment of approximately $5,000.00.
In April 2018, Respondent began loaning money to Carrales, providing him loans totaling $7,850.00 through July 2019, including seven checks totaling $7,000.00 that were written between April 2018 and November 29, 2018.36 The loans were not for court costs or litigation expenses.37 Respondent testified that Carrales had asked him for the loans and that he understood Carrales "needed money."38 He did not provide Carrales any written terms for the loans.39 Though he maintained he did not expect Carrales to repay the loans, the...
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