People v. Klein, 81SA280

• Decision Date: 20 June 1988
• Docket Number: No. 81SA280,81SA280
• Citation: 756 P.2d 1013
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Ben KLEIN, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 1013

756 P.2d 1013

The PEOPLE of the State of Colorado, Complainant, v. Ben KLEIN, Attorney-Respondent.

No. 81SA280.

Supreme Court of Colorado,

En Banc.

June 20, 1988.

Linda Donnelly, Disciplinary Prosecutor, Denver, for complainant.

Leonard Chesler, Denver, for attorney-respondent.

KIRSHBAUM, Justice.

On September 15, 1972, this court suspended the respondent, Ben Klein, from the practice of law for an indefinite period of time, but in no event less than three years, for his conduct in a grievance proceeding conducted by the Supreme Court Grievance Committee. People v. Klein, 179 Colo. 408, 500 P.2d 1181 (1972). The respondent fabricated certain documents and presented them to the Committee in defense of the then pending allegations of professional misconduct. He also falsely testified to the Committee concerning the preparation of the documents. In December 1972, the respondent obtained the professional services of a psychiatrist and commenced treatment for mental illness.

In 1973, a complaint was filed with the Committee alleging one count of professional misconduct by the respondent in connection with the preparation of a document in a case in the United States District Court for the District of Colorado. The respondent filed an answer with the Committee asserting that he was mentally disabled and therefore unable to prepare any defense at that time. The respondent also filed a motion with this court regarding the reconsideration of the 1972 suspension order or, alternatively, a new trial on the ground that the respondent was mentally disabled at the time he participated in the initial grievance proceeding. The motion was referred to the Committee for its consideration.

In April of 1976 the disciplinary prosecutor filed an amended complaint in the pending grievance proceeding alleging as a second count that the respondent was convicted of five counts of violations of federal income tax laws for the years 1966-1970. The respondent filed an answer to the amended complaint alleging that he was mentally disabled at the time the tax offenses occurred and that he was still unable to participate meaningfully in the pending grievance matter. A defense based on the respondent's mental condition during the years 1966 to 1970 had been raised by the respondent during his federal tax evasion trial and had been rejected by the jury.

The grievance proceedings were held in abeyance until May of 1980, when the respondent was directed by the Committee to provide a status report concerning his mental condition. The respondent did so, and asserted that he had recovered from his mental disability. A pretrial conference was held in March of 1981, at which time the count alleging misconduct in the United States District Court case was dismissed and a hearing date of April 28, 1981, was confirmed respecting the remaining count.

The evidence adduced at the hearing established that the respondent suffered from a serious mental illness from his teenage years through at least 1973, was still suffering some effects from that illness and at the date of the hearing was only marginally competent to proceed. At the conclusion of the hearing, the hearing board found that the respondent had been convicted of felony income tax evasion and that the conviction constituted a violation of C.R.C.P. 258, but that this violation was mitigated by the fact that the respondent suffered serious mental illness at the time of the federal offenses. The hearing board recommended denial of the respondent's pending motion for reconsideration or new trial. The board determined that although the respondent's mental illness may have impaired his ability to participate in the grievance proceeding underlying his 1972 suspension, the only remedy would have been to suspend the respondent from the practice of law and place him on disability inactive status--in effect, the same discipline the respondent had received. The hearing board recommended that the respondent's suspension be continued with no further time restriction as to when he might apply for reinstatement and that the respondent demonstrate a return to mental health as a precondition to such reinstatement. On December 17, 1981, this court adopted those findings and recommendations.

The respondent filed a petition for reinstatement with the Committee in November of 1982. The parties agreed to defer a hearing on the application until the respondent passed the Bar examination, as he was required to do by C.R.C.P. 241.22(b). Although the respondent failed to pass the July 1985 Bar examination, the parties agreed to proceed with a hearing on his reinstatement petition.

Three mental health professionals testified at the hearing, which was conducted on October 29, 1985. Each of them expressed the opinion that the respondent is now of sufficient mental health to permit him to resume the practice of law. Two of the witnesses recommended that any reinstatement be conditioned on the respondent continuing therapy, undergoing independent psychiatric examinations periodically and agreeing to a monitoring program performed by an independent attorney.

The hearing board concluded that the respondent could safely resume the practice of law and recommended his reinstatement, subject to several conditions, including the requirements that he continue in treatment, obtain assistance in administering his legal practice, maintain detailed financial records of his practice and file numerous reports periodically with the Committee. Two inquiry panels reviewed the findings and recommendation of the hearing board. Both of the inquiry panels sent the matter back to the hearing board for further consideration with respect to the respondent's rehabilitation, his eligibility for reinstatement and whether the extensive conditions of reinstatement initially recommended were necessary or desirable....