People v. Head
| Decision Date | 31 July 2013 |
| Docket Number | No. 13PDJ016.,13PDJ016. |
| Parties | The PEOPLE of the State of Colorado, Complainant v. John Frederic HEAD, Respondent. |
| Court | Colorado Supreme Court |
Following a disciplinary hearing, a Hearing Board suspended John Frederic Head (Attorney Registration Number 03077) for one year and one day. The suspension takes effect on August 14, 2014.
In 2008, Head was ordered to pay approximately $36,000.00 in attorney's fees after a court dismissed civil claims he brought on behalf of two clients. The defendants in that proceeding initiated collection efforts pursuant to C.R.C.P. 69 and 103 against Head and his law firm. Head made several knowing misrepresentations over a two-year period to the trial court and to opposing counsel about the existence of his 2006 and 2007 tax returns. He failed to comply with a writ of garnishment as well as two court orders requiring that he pay the attorney's fee judgment. Head's conduct delayed the collection proceedings and prejudiced the administration of justice.
Through his misconduct, Head violated Colo. RPC 3.4(a) ();Colo. RPC 3.4(c) (); Colo. RPC 8.4(c) (); and Colo. RPC 8.4(d) ().
From June 4 to 5, 2013, a Hearing Board comprised of Steven Meyrich, Esq., STEVEN L. TERRY, and WILLIAM R. LUCERO, the Presiding Disciplinary Judge (“the PDJ”), held a hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel (“the People”), and John Frederic Head (“Respondent”) appeared pro se. The Hearing Board now issues the following “Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19(b).” Mr. TERRY dissents in part.
OPINION AND DECISION IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)In 2008, Respondent was ordered to pay approximately $36,000.00 in attorney's fees after a court dismissed claims he brought on behalf of clients under the Colorado Consumer Protection Act. The same year, the defendants in that action initiated auxiliary proceedings under C.R.C.P. 69 and 103 asking the court to enforce its order. Respondent hampered and delayed the collection proceedings, made false statements to the trial court and opposing counsel about the existence of his 2006 and 2007 tax returns, and failed to comply with court orders. Through this conduct, Respondent violated Colo. RPC 3.4(a), 3.4(c), 8.4(c), and 8.4(d); however, the Hearing Board cannot find that the People have proved all the elements of Colo. RPC 3.3(a)(1), 3.3(a)(3), or 4.1(a). The Hearing Board concludes that the appropriate sanction is suspension for one year and one day.
The People filed a complaint in this case on January 30, 2013. Respondent answered on February 25, 2013. During an at-issue conference on March 15, 2013, the PDJ set the disciplinary hearing for June 4 and 5, 2013. On May 23, 2013, Respondent moved to continue the hearing, citing as grounds the press of business, conflicts in scheduling, and inconvenience. The PDJ denied that request the next day, finding Respondent failed to establish good cause for continuing the hearing.
During the disciplinary hearing, the Hearing Board heard testimony from Respondent, Norman B. Beecher, and Judge John L. Wheeler and considered stipulated exhibits 1–20 1 and Respondent's exhibits A–K. After the close of the People's evidence, Respondent moved for a directed verdict, and the PDJ deferred ruling on the motion. In viewing the evidence in the light most favorable to the People,2 the PDJ DENIES Respondent's motion for a directed verdict.
Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on September 27, 1972, under attorney registration number 03077.3 He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings.4
Respondent is a solo practitioner and the sole shareholder of Head and Associates, P.C. (“H & A”), a firm that specializes in complex civil litigation. Respondent frequently advances H & A money for expenses and subsequently receives reimbursements from the firm. In the late 1990s, H & A settled a Ponzi-scheme class action lawsuit and received around $2.5 million, before taxes, in attorney's fees. Acting on the advice of Respondent's accountant, H & A kept these attorney's fees as retained earnings, which were payable to Respondent.5 As H & A's sole shareholder, Respondent alone had the authority to direct H & A to make distributions of the retained earnings. Beginning in 2005, Respondent decided not to draw a salary from H & A and instead chose to receive distributions of retained earnings, which were not subject to additional income taxes.
In 2005, Arden and Andrea Dennis retained Respondent to bring a civil action on their behalf in Arapahoe County District Court.6 In the lawsuit, Respondent alleged that an agreement involving a sale and leaseback option of the Dennises' residence violated the Colorado Consumer Protection Act. The defendants were represented by Norman B. Beecher.
By November 10, 2007, the court had dismissed all of the Dennises' claims, 7 and on April 14, 2008, it ruled that Respondent and his clients were jointly and severally liable for the defendants' $36,830.00 in attorney's fees. 8 This order was reduced to a judgment on June 11, 2008, for the original amount plus statutory interest dating from April 14, 2008.9
Respondent testified that around this time, his firm was working on a few cases that did not “go well,” and he was facing multiple financial obligations, including a debt of more than $200,000.00 to a friend. He characterized H & A as “starved for money,” making it difficult to establish a payment plan for the attorney's fee judgment. He testified that despite these debts he was committed to paying the judgment. From June through October 2008, H & A owed Respondent about $200,000.00 in retained earnings.10 From June to July 2008, H & A paid Respondent approximately $4,000.00,11 and Respondent testified that he used these disbursements to pay his living expenses. In July 2008, H & A's operating account ran a balance of around $4,000.00,12 although Respondent did not direct H & A to pay any part of the judgment with the balance because that money “kept the firm running.”
Shortly after entry of the judgment, the defendants initiated collection proceedings against Respondent and H & A under C.R.C.P. 69.13 Judge John L. Wheeler presided over these proceedings. On June 19, 2008, Respondent was served with C.R.C.P. 69 interrogatories.14 Respondent was asked to list how much he was paid, when he was paid, and by whom he was paid. 15 He was also asked to identify any persons, firms, or corporations that owed him money.16 His responses were due within twenty days. 17
Having received no response by July 14, 2008, the defendants moved for a finding of contempt and to compel Respondent to answer,18 indicating that they had contacted Respondent several times but never received his responses.19 On July 22, 2008, the court granted the motion to compel, ordering Respondent to answer within twenty days.20
By July 24, 2008, Respondent had not made any payments toward the judgment, leading the defendants to serve two writs under C.R.C.P. 103: a writ of continuing garnishment on Respondent (“personal writ”) and a writ of garnishment with notice of exemption and pending levy upon H & A (“H & A writ”).21 These writs would permit the defendants to garnish up to twenty-five percent of Respondent's income and to attach H & A's assets. The H & A writ directed Respondent, on behalf of H & A, to describe the nature and amount of the firm's debts and obligations.22 It also ordered H & A to “hold pending court order any personal property (other than earnings) owed to or owned by the Judgment Debtor and in your possession or control on the date and time this Writ was served upon you.” 23 When the writs were served, H & A's operating account contained approximately $800.00.24 Respondent's responses to the two writs were due ten days after service. 25
As of August 29, 2008, Respondent still had made no payments to the defendants to satisfy the debt. On that same day, Respondent answered both writs. 26 He answered the personal writ by stating that H & A would not pay him any wages during the period of garnishment.27 He answered the H & A writ by stating that the firm owed him “retained earnings.” 28 He did not, however, describe the amount of the debt, as required by the writ, nor did he claim any exemptions.29 He testified that he must have “overlooked” this. Despite these answers, H & A's business records indicated that by August 29, 2008, the firm had approximately $204,000.00 in retained earnings payable to Respondent, and it had recently paid him $3,150.00. 30
Meanwhile, the defendants filed a second motion to compel and for a finding of contempt on August 22, 2008, asserting Respondent had yet to respond to the interrogatories.31 The court granted this motion and set a show cause hearing for October 2, 2008.32 Respondent did not appear for this hearing, and it was reset for November 25, 2008.33 Beecher testified at the disciplinary hearing that he first learned at the October show cause hearing that Respondent had filed his interrogatory responses in person on July 15, 2008.34 Respondent never filed these responses electronically with the court, although they were eventually entered into the court's electronic filing...
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Cohen v. Statewide Grievance Comm.
...758, 760–61 (Alaska 2015) (false report to police alleging attorney was being stalked and assaulted by her brother); People v. Head , 332 P.3d 117, 129 (Colo. 2013) ) (attorney representing his own interests); In re Disciplinary Action Against Albrecht , 845 N.W.2d 184, 190–91 (Minn. 2014) ......
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Cohen v. Statewide Grievance Comm.
... ... alleging attorney was being stalked and assaulted by her ... brother); People v. Head , 332 P.3d 117, 129 (Colo ... O.P.D.J. 2013) (attorney representing his own interests); ... In re Disciplinary Action Against ... ...
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