People v. Fitzke, 85SA308

• Decision Date: 13 January 1986
• Docket Number: No. 85SA308,85SA308
• Citation: 716 P.2d 1065
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Ronald S. FITZKE, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 1065

716 P.2d 1065

The PEOPLE of the State of Colorado, Complainant, v. Ronald S. FITZKE, Attorney-Respondent.

No. 85SA308.

Supreme Court of Colorado En Banc.

Jan. 13, 1986.

Linda Donnelly, Disciplinary Prosecutor Denver, George S. Meyer, Deputy Disciplinary Prosecutor Denver, for complainant.

Ronald S. Fitzke, Denver, pro se.

ROVIRA, Justice.

On August 30, 1984, the respondent, Ronald S. Fitzke, was suspended from the practice of law in Colorado during the pendency of disciplinary proceedings against him. We now order that the respondent be disbarred and order that he pay the costs of the disciplinary proceedings.

A formal complaint was filed with the Supreme Court Grievance Committee, charging the respondent, who was admitted to practice law in Colorado on October 16, 1981, with unprofessional conduct in violation of the Code of Professional Responsibility.

Prior to proceedings before the Hearing Board of the Grievance Committee, the respondent entered into a Stipulation of Facts with the Disciplinary Prosecutor. The stipulation states in pertinent part:

1. Respondent has taken and subscribed the Oath of Admission, was admitted to the Bar of this Court on October 16, 1981, and is registered as an attorney upon the official records of this Court, Registration No. 11256. He is accordingly subject to the jurisdiction of this Court and its Grievance Committee in these proceedings.

2. Respondent is twenty-eight years old. He graduated from law school at the University of Denver in 1981 and was admitted to practice in Colorado in October, 1981. He relocated to his home state of Nebraska and, in April, 1982, went into practice with his father in Hastings, Nebraska.

3. On January 5, 1983, Respondent was appointed temporary guardian and temporary conservator for Allie Marie Boontjer, who was elderly and incapacitated. On February 2, 1983, Respondent was appointed guardian; on March 7, 1983, he was appointed conservator. Ms. Boontjer's property was limited; but, while serving as conservator for Ms. Boontjer, Respondent took approximately $19,000 from the estate and converted it to his own use.

4. On October 23, 1983, Respondent returned to Colorado to enter a residential substance abuse program for cocaine addiction and alcohol abuse at St. Luke's Hospital in Denver. At about that time, he disclosed to his father, Ronald R. Fitzke, that he had taken the funds. With his father's help, complete restitution, including interest, was made to the estate. Upon discharge from the St. Luke's program, Respondent entered Alcoholics Anonymous and Narcotics Anonymous programs.

5. In June, 1984, a report or audit was due to be filed with the Veteran's Administration in Nebraska concerning the conservatorship for Ms. Boontjer. Respondent understood that a truthful accounting would need to be made concerning the embezzlement from the estate. On June 1, 1984, Respondent met with the Veteran's Administration and tendered to them a written confession of the embezzlement. A copy of it is attached hereto as Exhibit A. ¹ Immediately afterwards Respondent informed the law enforcement authorities and the court of the embezzlement. Respondent tendered a written confession to the Court at that time which is attached hereto as Exhibit B. On June 20, 1984, the County Attorney of Adams County, Nebraska, prepared and signed a complaint for theft against the Respondent. On September 26, 1984, Respondent entered a plea of nolo contendere to the Nebraska theft charges. On March 18, 1985, Respondent was sentenced in that case. He was placed on probation for four years under certain conditions including restitution (which had already been made) and compliance with all conditions of probation imposed by Colorado in People v. Fitzke, 84CR1892, Denver District Court. A copy of the Nebraska Order of Probation is attached hereto as Exhibit C.

6. On August 27, 1984, the Nebraska Supreme Court temporarily suspended Respondent from practicing law in Nebraska. Respondent voluntarily surrendered his license and consented to the entry of disbarment against him in Nebraska, and the Supreme Court of Nebraska vacated his admission to that state on January 23, 1985.

7. The foregoing conduct of the Respondent violates Rules 241.6 and 241.17 of the Colorado Supreme Court Rules concerning discipline of attorneys and also violates the Code of Professional Responsibility, DR1-102(A)(1), DR1-102(A)(3), DR1-102(A)(4), DR1-102(A)(6), and DR9-102(B)(4).

8. On June 30, 1984, ... the complaining witness herein, met with Respondent for an initial consultation concerning a dissolution of marriage. On that day, both [the complaining witness] and Respondent signed a written fee agreement providing for a total fee of $350.00, plus $82.00 in costs. The agreement provided, "[w]hen half the attorney's fees is paid, we will prepare the paperwork; when your account is paid in full, we will file the case." [The complaining witness] paid Respondent $216.00 on July 7, 1984. Respondent hand drafted a receipt to her and signed it "R. Scott Fitzke, Hyatt Legal Services."

9. [The complaining witness] did not hear from Respondent and, on August 6, 1984, she called Hyatt Legal Services and was told that Respondent no longer worked there and that her case was being handled by Philip James, Esq. At the time Mr. James spoke with [the complaining witness] he had not yet located her file and was unaware of any payments she had made to Hyatt Legal Services. Respondent, however, on July 18, 1985, had made a written confession to Roger Barrick, a member of the Hyatt Legal Services management, of various matters of wrongdoing which specifically referenced [the complaining witness]. A copy of that document is attached hereto as Exhibit D.

10. [The complaining witness] filed her Request for Investigation with the Grievance Committee on August 22, 1984. Hyatt Legal Services subsequently found her file, and Mr. James is proceeding with her divorce.

11. The foregoing conduct of the Respondent violates Rule 241.6 of the Colorado Supreme Court Rules concerning discipline of attorneys and also violates the Code of Professional Responsibility, DR1-102(A)(1), DR1-102(A)(3), DR1-102(A)(4), DR1-102(A)(6), and DR9-102(B)(4).

....

14. On July 13, 1984, Respondent was charged with possession of a controlled substance, a class three felony. People v. Ronald S. Fitzke, 84CR1892, Denver District Court. On or about the same day, Respondent was terminated by Hyatt Legal Services. On March 11, 1985, Respondent pled guilty to a Class 4 felony of unlawful possession of a controlled substance. A sentence of four years to the Department of Corrections was suspended under certain terms and conditions including payment of restitution to Hyatt Legal Services and therapy for drug and alcohol abuse. A copy of the Judgment and Order is attached hereto as Exhibit E.

15. After Respondent's termination, it was discovered that Respondent had converted in excess of $3,000.00 of client monies from Hyatt clients to his own use and had forged a client's signature on a client refund check for $420.00 and appropriated that amount for himself. As stated above Respondent is to make restitution to Hyatt Legal Services.

16. Hyatt Legal Services brought criminal charges against Respondent; and on December 3, 1984, People v. Ronald Scott Fitzke, 84CR1461, was filed in Arapahoe County District Court. Respondent was charged with theft, a class-four felony. On March 21, 1985, this case was dismissed based on the disposition reached in the criminal action in Denver District Court.

17. On August 30, 1984, the Colorado Supreme Court suspended Respondent from the practice of law following the filing of a Petition for Immediate Suspension.

18. The foregoing conduct of the Respondent violates Rule 241.6 of the Colorado Supreme Court Rules concerning discipline of attorneys and also violates the Code of Professional Responsibility, DR1-102(A)(1), DR1-102(A)(3), DR1-102(A)(4), DR1-102(A)(6), and DR9-102(B)(4).

Based on the stipulation and testimony of the respondent, the Hearing Board found that the respondent: (1) embezzled funds from the Estate of Allie Boontjer; (2) was convicted of theft in the District Court of Adams County, Nebraska, and was also convicted of unlawful distribution and possession of a controlled substance, a class 4 felony, in the District Court in and for the City and County of Denver; (3) consented to an...