People v. Jacobson, 87SA124

• Decision Date: 21 December 1987
• Docket Number: No. 87SA124,87SA124
• Citation: 747 P.2d 654
• Parties: The PEOPLE of the State of Colorado, Complainant, v. James S. JACOBSON, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 654

747 P.2d 654

The PEOPLE of the State of Colorado, Complainant, v. James S. JACOBSON, Attorney-Respondent.

No. 87SA124.

Supreme Court of Colorado,

En Banc.

Dec. 21, 1987.

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

Kim B. Childs, Denver, for attorney-respondent.

ERICKSON, Justice.

In this disciplinary proceeding, James S. Jacobson defaulted by failing to file an answer or a responsive pleading. Following an evidentiary hearing, the hearing panel recommended that the respondent be suspended for thirty months and that before reinstatement he be required to undergo a complete mental health examination by a licensed mental health professional, together with a review by the mental health professional of the respondent's ability and fitness to practice law. The disciplinary prosecutor filed objections and exceptions to the recommendation of the hearing panel and set forth a number of reasons why the proper sanction in this case should be disbarment. We agree with the disciplinary prosecutor and order that The respondent, James S. Jacobson, was admitted to the bar of this court and is subject to the disciplinary jurisdiction of this court. C.R.C.P. 241.1(b). A formal complaint was filed against Jacobson on May 9, 1985 containing two counts. Count one charged that he obtained a judgment by default in favor of his client, Beverly Stevenson-Hill, collected the proceeds and satisfied the judgment, and then failed to forward any part of the proceeds to his client until after a request for investigation was filed with the Grievance Committee.

the respondent be disbarred and that his name be stricken from the list of lawyers authorized to practice before this court.

The second count of the disciplinary complaint alleged that he did not file a timely response to the request for investigation. The disciplinary prosecutor charged that Jacobson's response dated September 15, 1984, was not filed until April 24, 1985, and falsely stated that his client had changed addresses frequently, and had thereby prevented him from forwarding or making payment of the funds he had collected.

The formal complaint in this case was filed on May 9, 1985. A default was entered on June 25, 1985, when the respondent failed to file an answer. A hearing on the default was scheduled for August 26, 1985. The respondent did not appear at the hearing, but made a request for a continuance by telephone. The hearing board entered an interim order after hearing the respondent's telephonic request and granted the respondent the right to participate in the hearing by telephone. The interim order set forth the hearing board's reasons for the procedure in this case and provides in pertinent part:

When contacted by telephone, respondent stated that he desired a continuance in order to have the opportunity to consult with counsel. Upon inquiry by the hearing board, respondent acknowledged that he had ignored the Complaint and to date had not contacted an attorney despite the fact that he had had notice of the Complaint since on or about May 14, 1985 and of the August 26 hearing since on or about August 5, 1985. Respondent also stated that he was not personally appearing at the August 26 hearing because he was then appearing in court in Eagle County in a case entitled Vail Russ v. Lockwood. Respondent further acknowledged that the hearing in Eagle County had not been set until August 14, 1985 which was at least a week after the hearing in the above-captioned disciplinary matter had been set.

In this regard the hearing board further notes that respondent has never filed an answer to the Complaint in this matter, that he did not present a written motion for a continuance at [or] prior to the August 26 hearing and that he had not personally appeared in making his request for a continuance. Based upon the foregoing telephonic statements of respondent, the hearing board concluded that good cause did not exist for granting respondent's request for a continuance and accordingly denied respondent's request for a continuance.

....

[C.R.C.P.] 241.13 of the rules regarding lawyer discipline provides that in the event of default, after notice to respondent of a hearing regarding the form of discipline to be imposed, the hearing board shall review all pleadings, arguments and the Investigator's report and shall prepare a report setting forth its findings of fact and recommendation as provided in ... Rule 241.15(a). Furthermore, Rule 241.14(d) provides that hearings on formal complaints 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. 55 and Rule 121 § 1-14(2) & (4), essentially provide that a court must be satisfied about the "necessary elements" before it enters a judgment by default. If the court is not satisfied, it must "notify" or "advise" the "moving party or attorney accordingly." In People v. Rice [708 P.2d 785, 786 n. 2 (Colo.1985) ] ... the Court stated ... "that if the allegations of the complaint are not accepted by the Hearing Board when an order of default has been entered the complainant Accordingly, the Hearing Board is not satisfied, ... that the necessary elements of the following allegations have been established:

should be given the opportunity to produce evidence in support thereof."

1. Respondent's conduct, in failing to promptly notify the Hills of the receipt of $2,100 owed on the note plus legal fees in the amount of $700 and costs of $67.50, and failing to promptly pay such amount to his clients, the Hills, violated DR 9-102(B)(1) [violate a disciplinary rule] and (4) [promptly pay funds to client] as well as DR 1-102(A)(1) [promptly notify client of receipt of funds], DR 1-102(A)(5) [conduct prejudicial to the administration of justice] and DR 1-102(A)(6) [conduct adversely reflecting on fitness to practice law].

2. Respondent's conduct, in failing to respond to the inquiries of the Hills regarding the status of their case and forward to them copies of the requested documents, violated DR 9-102(B)(1) and (4), DR 6-101(A)(3) [neglect of a legal matter entrusted to a lawyer] as well as DR 1-102(A)(1), (5) and (6).

3. Respondent's conduct, in neglecting prosecution of the Hill's case, violated DR 6-101(A)(3).

4. Respondent's conduct, in failing to timely respond to the informal complaint, despite the original notice of the informal complaint and the subsequent written warning, violated Rule 241.6(7) [failure to respond to a request by Grievance Committee] as well as DR 1-102(A)(1).

Regarding Items 1 to 4, above, the hearing board is not satisfied that the underlying events were not the unfortunate result of erroneous communication based on unilateral or mutual mistakes made by each party.

Further, the hearing board is not satisfied that the necessary elements were presented regarding the allegations that respondent converted the funds to his own use and otherwise engaged in misrepresentation to the Hills and the Committee in violation of DR 1-102(A)(3) [engage in illegal conduct involving moral turpitude] and DR 1-102(A)(4) [engage in conduct involving dishonesty, fraud, deceit, or misrepresentation].

Accordingly, the hearing board hereby gives notice to the complainant that the hearing board needs additional information or evidence regarding specific facts or events to support the allegations of the complaint. If the complainant wishes to present additional information or evidence in support of these allegations, a hearing date should be set forthwith and respondent given notice of said hearing. At that time the Hearing Board, in accordance with the provisions of Rule 241.13(b), will receive arguments from both parties regarding the form of discipline to be imposed.

Following the interim order, the disciplinary prosecutor endeavored to obtain further discovery but the respondent failed to comply with discovery orders, did not attend scheduled meetings, and failed to appear for a scheduled deposition. After a motion for sanctions was filed, Jacobson's counsel filed an answer to the complaint.

Thereafter, a stipulation regarding facts and violations was entered into to comply with the request of the hearing board and in lieu of an evidentiary hearing. The stipulation was later supplemented on the disciplinary prosecutor's motion and over the respondent's objection with the records of the real estate trust account of respondent's wife, which established that the balance in the trust account was in some instances below the amount the respondent allegedly held in trust for the complainants. In addressing Count I of the complaint, the stipulation, which was signed by the respondent and his counsel, admitted violations of C.R.C.P. 241.6(1) (violation of the Code of Professional Responsibility) and (3) (act violating the highest standards of honesty, justice, or morality); DR 1-102(A)(1) (violation of a disciplinary rule); DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 6-101(A)(3) (neglect of a legal matter entrusted to a lawyer); and DR 9-102(B)(1) (promptly notify a client of receipt of The disciplinary prosecutor objected to the Rice hearing and to the sanction recommended by the hearing panel because it was too lenient. We agree. Since the report and recommendation of the Grievance Committee is advisory and not binding on this court, we can make an independent decision regarding the appropriate form of sanction in a particular case. People v. Morley, 725 P.2d 510 (Colo.1986); People v. Susman, 196 Colo. 458, 587 P.2d 782 (1978); C.R.C.P. 241.15(b)(3) (hearing panel shall refer disciplinary matters to this court and recommend an appropriate form of sanction). In this case, the fraud and deceit and the pattern of professional misconduct exhibited by the respondent requires disbarment....