People v. Fitzgibbons, 95SA152
| Decision Date | 22 January 1996 |
| Docket Number | No. 95SA152,95SA152 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. John E. FITZGIBBONS, Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Counsel, James S. Sudler, Assistant Disciplinary Counsel, Denver, for Complainant.
James F. Donaldson, Denver, for Attorney-Respondent.
A hearing panel of the supreme court grievance committee approved a hearing board's recommendation that the respondent be publicly censured. The respondent excepted to the findings and recommendation. We accept the hearing panel's recommendation and publicly censure the respondent.
The respondent was admitted to practice law in Colorado in 1981. Under respondent's exceptions, we first address the procedural matters before discussing the substantive issues raised.
At the beginning of the hearing, the respondent objected to the composition of the hearing board and made an oral motion for two members of the board to recuse themselves. The basis for the objection and motion for recusal was that the respondent's attorney had recently received a letter of admonition in an unrelated matter, signed by the vice-chair of Hearing Panel B, and a member of the respondent's hearing board. A second member of Hearing Panel B, which was the panel that had issued the letter of admonition to the respondent's lawyer, was the presiding officer of the respondent's hearing board. The hearing board overruled the objection and denied the motion for recusal, as well as the respondent's request that the hearing be stayed pending "appeal" of the rulings. In his exceptions, the respondent raises three objections to the composition of the hearing board, in particular, the participation of the vice-chair of the hearing panel on the hearing board.
First, the respondent asserts that the vice-chair had no power to appoint herself as a hearing board member the day before the hearing due to the absence of one of the previously appointed members because of medical reasons.
The supreme court grievance committee consists of nineteen members. C.R.C.P. 241.2(a)(1). The committee members elect a chair from among themselves, C.R.C.P. 241.2(a)(3), who in turn appoints two vice-chairs, id. The chair divides the committee into two panels of nine members each, and the chair is an ex-officio member of each panel. C.R.C.P. 241.2(c). Each panel has a vice-chair. C.R.C.P. 241.2(c)(2) provides:
(2) Hearing Panels. When a panel is acting as a hearing panel, its Vice-Chairman shall designate a hearing board which shall conduct hearings on complaints as provided in these Rules. At the conclusion of the proceedings before the hearing board, the hearing panel shall review the report of the hearing board as provided in C.R.C.P. 241.15(b).
The hearing board is designated as follows:
(b) Designation of a Hearing Board. All hearings on complaints seeking disciplinary action against a respondent shall be conducted by a hearing board designated by the Chairman or a Vice-Chairman. A hearing board shall consist of at least three persons. At least one member of every hearing board shall be a member of the hearing panel or a former member of the Committee, and at least two members of every hearing board shall be members of the Bar of Colorado.
C.R.C.P. 241.14(b) (emphasis added). The rules do not prohibit a vice-chair from appointing him or herself to a particular hearing board. Given the circumstance where an appointed member of the board has a medical emergency and is unable to serve, the vice-chair of the hearing panel properly sat on the hearing board.
The respondent's second objection is to the vice-chair sitting on both the board and on the hearing panel, which reviewed the board's work. C.R.C.P. 241.2(d) states in part:
(d) Abstention of Committee Members. Committee members shall refrain from taking part in any proceedings in which a judge, similarly situated, would be required to abstain.
Hearings before the board "shall be conducted in conformity with the Colorado Rules of Civil Procedure, the Colorado Rules of Evidence, and the practice in this state in the trial of civil cases...." C.R.C.P. 241.14(d). In relevant part, C.R.C.P. 97 provides:
A judge shall be disqualified in an action in which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related or connected with any party or his attorney as to render it improper for him to sit on the trial, appeal, or other proceeding therein. A judge may disqualify himself on his own motion for any of said reasons, or any party may move for such disqualification and a motion by a party for disqualification shall be supported by affidavit. Upon the filing by a party of such a motion all other proceedings in the case shall be suspended until a ruling is made thereon.
(Emphasis added.) The respondent did not file the affidavit required by C.R.C.P. 97. Nevertheless, the hearing board reached the merits of the respondent's objection and recusal motion, and so do we.
The vice-chair was a member of the respondent's hearing board, which concluded that the respondent violated the Code of Professional Responsibility and that he should be publicly censured. The vice-chair also sat on the hearing panel which reviewed and approved the board's findings and recommendation. The respondent maintains, however, that the vice-chair "was required to recuse herself from participating on the full [hearing] panel and again voting on the hearing board's findings and recommendation since at that stage her impartiality might reasonably be questioned because she had 'personal knowledge of disputed evidentiary facts concerning the proceeding....' " Code of Judicial Conduct, Canon 3(C)(1)(a).
First, because the vice-chair sat on the hearing board that heard testimony concerning disputed facts, and made findings with respect to those disputed facts, does not mean that she had "personal knowledge of disputed evidentiary facts concerning the proceeding...." Id. (emphasis added).
Moreover, it was not improper for the vice-chair to participate on the hearing panel that reviewed her own findings. The rules contemplate that at least one member of the hearing panel will serve on the hearing board. C.R.C.P. 241.14(b). No rule prohibits a hearing board member from sitting on the hearing panel that reviews the board's findings.
Finally, the respondent claims the vice-chair should have recused herself because she had recently signed a letter of admonition addressed to the respondent's lawyer. At the hearing, the respondent's lawyer stated:
I've never met any of you. I've had no contact. I'm not starting to allege that you personally have done things which show bias to me, other than I've been served with a letter of admonition, I guess, out of--signed by [the vice-chair] in less than a month, which certainly calls in the question of the credibility of me and my clients. And I think that's a very serious matter.
With respect to a judicial proceeding, "a ruling by a judge on a legal issue or a demonstration of prejudice against the lawyer for the defendant does not require recusal." Brewster v. District Court, 811 P.2d 812, 814 (Colo.1991). However, "[b]ecause a judge's bias or prejudice against an attorney can adversely affect the party represented by the attorney, disqualification should also be required when a judge so manifests an attitude of hostility or ill will toward an attorney that the judge's impartiality in the case can reasonably be questioned." S.S. v. Wakefield, 764 P.2d 70, 73 (Colo.1988).
In Wakefield, the petitioner, S.S., who was party to a dependency proceeding in Denver Juvenile Court, asserted in an original proceeding that the juvenile court judge should have recused himself because he had initiated an ex parte communication with her for the purpose of expressing the judge's concerns with the effectiveness of S.S.'s lawyer. 764 P.2d at 71-72. Even though the ex parte communication was improper, we found that the juvenile court judge did not err in refusing to disqualify himself because neither the motion nor affidavit "alleged sufficient facts from which it could reasonably be inferred that the judge had a personal bias or prejudice against S.S. or her court-appointed attorney." Id. at 72.
For a similar reason, the fact that the vice-chair had recently signed a letter of admonition addressed to the respondent's lawyer in an unrelated matter does not reasonably lead to the conclusion that she was personally biased against the respondent or his lawyer. The hearing board therefore correctly overruled the respondent's objections to its composition and denied his motion to recuse.
The respondent has also excepted to the hearing board's denial of his motion for continuance because of the inability of the respondent's expert witness to attend the hearing because he was on vacation. The respondent asserts that the denial of a continuance was fundamentally unfair because the formal complaint had been amended forty-eight days before the hearing to allege for the first time that he had committed misconduct in prosecuting an appeal to the court of appeals. In denying the motion, filed nine days before the hearing was scheduled, the board stated:
No objection to [the assistant disciplinary counsel's] request to file an amended complaint was entered. No objection or motion to vacate the Order granting leave to file amended complaint was filed, nor was any mention of any problem with the hearing date brought up by counsel for the Respondent at the telephone status conference held between [the assistant disciplinary counsel] and attorney for Respondent.... Additionally, there was no indication of any need to reschedule the hearing in Respondent's disclosure certificate which was mailed on December 21, 1994.
THEREFORE, we find no good cause exists and Respondent's Motion to Continue the Hearing now set...
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