People v. Hohertz, 03PDJ093.

• Decision Date: 13 October 2004
• Docket Number: No. 03PDJ093.,03PDJ093.
• Citation: 102 P.3d 1019
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Robert Melvin HOHERTZ, Respondent.
• Court: Colorado Supreme Court

102 P.3d 1019

The PEOPLE of the State of Colorado, Complainant, v. Robert Melvin HOHERTZ, Respondent.

No. 03PDJ093.

Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.

October 13, 2004.

DECISION RE: SANCTIONS PURSUANT TO C.R.C.P. 251.15(b)

The Hearing Board, consisting of MELINDA M. HARPER, CPA, HENRY C. FREY, a member of the bar, and Presiding Disciplinary Judge, WILLIAM R. LUCERO, conducted a sanctions hearing in this matter on August 16, 2004. Fredrick J. Kraus appeared on behalf of the People of the State of Colorado ("Complainant") and tendered a proposed stipulation. Respondent, Robert Melvin Hohertz ("Respondent"), pro se, did not appear. After reviewing the stipulation and Respondent's disciplinary history, the Presiding Disciplinary Judge ("PDJ") rejected the stipulation. Because the Hearing Board was concerned that Respondent may have failed to appear at the August 16, 2004 hearing due to believing the stipulation would be accepted, it continued the matter until September 7, 2004 to give Respondent the opportunity to appear. After sending notice to Respondent of the continuance and giving him the opportunity to appear, the Hearing Board reconvened the sanctions hearing on September 7, 2004. Fredrick J. Kraus appeared on behalf of Complainant. Respondent did not appear.

The Hearing Board issues the following opinion.

SANCTION IMPOSED: ATTORNEY DISBARRED

I. PROCEDURAL HISTORY AND BACKGROUND

Complainant charged Robert M. Hohertz, Respondent, with neglecting several client matters entrusted to him, violating a client confidence, failing to return fees and other client property after termination, and deceiving a client by saying he had taken steps to correct an error when he had not done so. Respondent did not answer the Complaint, leading to entry of default. After considering Respondent's conduct, the serious injuries he caused clients, aggravating factors, including prior discipline, and the potential mitigating factor of depression on which no evidence was offered, the Hearing Board concluded Respondent should be disbarred.

On November 20, 2003, Complainant filed a complaint in this matter and sent the Citation and Complaint to Robert Melvin Hohertz, Respondent, via regular and certified mail. On November 21, 2003, Complainant filed Proof of Service. The Proof of Service shows that the Citation and Complaint were sent to Robert Melvin Hohertz, 301 South Weber Street, Colorado Springs, CO 80903. This was the address Respondent provided to the Colorado Supreme Court Office of Attorney Registration as required by C.R.C.P. 227. This certified letter and its contents were returned on November 24, 2003 with the notation "Moved Left No Address." The regular mail copy of the Complaint was not returned.¹

Respondent did not file an answer to the Complaint. On February 2, 2004, Complainant filed a motion for default pursuant to C.R.C.P. 251.15(b) and C.R.C.P. 121, Section 1-14. On June 7, 2004, the PDJ granted this motion. By the entry of default under C.R.C.P. 251.15(b), all factual allegations and rule violations set forth in the Complaint are deemed admitted and are therefore established by clear and convincing evidence. People v. Richards, 748 P.2d 341, 347 (Colo.1987). See also the Complaint, attached as Exhibit 1. The Complaint enumerates five separate client matters, which are fully detailed. In summary, the Complainant alleges Respondent failed to deliver contracted services, failed to return fees he did not earn, and, in all but one case, failed to surrender fees, papers, and property belonging to clients. Since Respondent failed to appear at the sanctions hearing or otherwise contest Complainant's recommendation, the Hearing Board heard no evidence from Respondent neither on these issues, nor on the issues of the proper sanction and potential mitigation.

The factual background in this case is fully detailed in the Complaint. The Hearing Board adopts and incorporates by reference the Complaint and the facts and rule violations alleged therein.

II. FINDINGS AND CONCLUSIONS

The Hearing Board considered the Complainant's argument, the facts established by the entry of default, and exhibits offered and admitted into evidence. These included the Disciplinary Report of Investigation, a true copy of Respondent's attorney registration, and two letters addressed to the Respondent in Colorado Springs, Colorado. Both letters notified Respondent of the date and place of the sanctions hearing. One of these letters was sent by certified mail to the address Respondent provided to the Attorney Registration Office of the Colorado Supreme Court as required by C.R.C.P. 227.

Based upon the forgoing, the Hearing Board makes the following findings and conclusions by clear and convincing evidence:

(1) Respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on July 13, 1984, and is registered upon the official records of this court, registration no. 13910. He is therefore subject to the jurisdiction of this Court in these disciplinary proceedings.

(2) As set forth in the Complaint in the Heitz, Cantrell, Morris, Becker, and Gancarski matters, the Hearing Board finds by clear and convincing evidence Respondent violated Colo. RPC 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client and shall not neglect an entrusted legal matter). Respondent failed in these matters to act with reasonable diligence and neglected these clients. See People v. Holmes, 951 P.2d 477 (Colo.1998).

(3) As set forth in the Complaint in the Heitz matter, Claim II, Respondent violated Colo. RPC 1.6(a) (lawyer shall not reveal client confidences) when he disclosed without Heitz's consent information to her friend about his representation. Client information is broadly interpreted. The comment to Colo. RPC 1.6(a) provides: "The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."

(4) As set forth in the Complaint in the Heitz, Cantrell, and Gancarski matters, Claims III, IV, VI, VII, IX, XII, and XIV, the Hearing Board finds Respondent violated Colo. RPC 1.15(b) (failing to promptly deliver client funds and render accounting after termination) and 1.16(d) (failing to take steps to protect and surrender client papers and property). Holmes, id.

(5) As set forth in the Complaint in the Morris matter, Claim X, the Hearing Board finds Respondent violated Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) when he told his client he had corrected an inaccurate child support order and was waiting to hear from the court, but this was not true.

III. SANCTIONS

When imposing sanctions for violations as found above, ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") 3.0 (1992) directs the Hearing Board to consider the following factors:

(1) Duty violated;

(2) Lawyer's mental state (3) Actual or potential injury caused by the lawyer's misconduct;

(4) Existence of aggravating or mitigating factors.

(1) Duty

Respondent violated the duty to professionally represent clients by failing to preserve client property and confidences and to act with diligence and competence.

(2) Mental State

While it is clear Respondent has been diagnosed with clinical depression in the past and the Hearing Board suspects Respondent was probably suffering from depression at the time he represented the clients in this case, there is no evidence to determine what role, if any, depression had on his state of mind. What is undisputed, however, is that Respondent consciously took on these clients and failed to act with diligence in their cases even when they prompted him to do so.

(3) Injury

Respondent's failure to professionally represent his clients caused them emotional and financial injury. In all but the Morris matter, Respondent took money from his clients, failed to do the work he promised, and caused damage to their business and personal interests. Mr. Gancarski testified defendant's failure to act on his bankruptcy caused harm in that he could no longer obtain supplies on credit. Further, when Respondent failed to answer their calls, the Gancarskis were forced to complete their bankruptcy without counsel because they did not have funds to hire another lawyer.

Michelle Becker wrote to the Hearing Board to complain of the great injury she suffered because of Respondent's neglect. While representing Mrs. Becker in a divorce action, Respondent failed to seek a restraining order against her physically abusive husband. Her husband threatened to kill the family dog and ultimately did so. Eventually, Mrs. Becker and her children were forced to leave the state to protect themselves.

(4) Aggravating and Mitigating Factors

The Hearing Board finds the following aggravating factors under ABA Standards 9.22:

1. Prior discipline:

A. Letters of admonition:

• 1990 (failure to render an accounting)

• 1992 (neglect of client matter)

• 1994 (case1 — improper contact with represented party, conflict of interest; case2 — neglect of client matter)

• 1996 (inappropriate conduct adversely reflecting on fitness to practice law)

B. Suspensions:

• 1995 (suspension for three months for neglect of client matter, failure to keep client informed, misrepresenting to client status of promised work)

• 1996 (suspension for three years for neglect of several client matters, failure to keep clients informed, unreasonable fee charges)

• 1999 (suspension for three months for an incident of domestic violence)

• 2003 (suspension of a year and a day for neglect of a client matter, failing to keep a client informed, failing to submit an accounting)

2. Pattern of misconduct: As outlined above, Respondent has a history of neglecting client matters, mishandling fees, and misrepresenting whether he completed certain tasks.

3. Multiple offenses: In

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