People v. Lynch, No. 99PDJ034.

• Decision Date: 30 August 2000
• Docket Number: No. 99PDJ034.
• Parties: The PEOPLE of the State Of Colorado, Complainant, v. Robert Karl LYNCH, Respondent.
• Court: Colorado Supreme Court

35 P.3d 509

The PEOPLE of the State Of Colorado, Complainant, v. Robert Karl LYNCH, Respondent.

No. 99PDJ034.

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

August 30, 2000.

Opinion by Presiding Disciplinary Judge ROGER L. KEITHLEY and

Hearing Board members THOMAS R. FRENCH and DANIEL A. VIGIL, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: NINETY-DAY SUSPENSION

A sanctions hearing was held on November 17, 1999, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Thomas R. French and Daniel A. Vigil, both members of the Bar. Christyne A. Czarnowsky, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Robert Karl Lynch ("Lynch") did not appear either in person or by counsel.

The People filed the Complaint and Citation in this matter on March 3, 1999. The Complaint and Citation were served upon respondent by certified mail on March 4, 1999, mailed to the respondent's registered business, home and last known addresses in compliance with C.R.C.P. 251.32(b), C.R.C.P. 251.14(b) and C.R.C.P. 227(A)(2)(a) and (b). On April 29, 1999, Lynch was personally served with the Citation and Complaint in San Diego, California. Lynch failed to answer the allegations advanced in the Complaint, and default was entered against him on August 18, 1999, as to both the factual allegations and each of the charges set forth in counts one through six of the People's Complaint. Notice of the sanctions hearing was mailed to Lynch on August 26, 1999. At the commencement of the hearing, the PDJ set aside the default as to count 5 (violation of C.R.C.P. 227(A)(1)(a) for failure to pay registration fees and violation of C.R.C.P. 227(A)(2)(b) for failure to file a change of address with the Office of Attorney Registration).

The People's Complaint charged Lynch with a violation of The Colorado Rules of Professional Conduct ("Colo.RPC") 1.3 (neglect of a legal matter) in count one; a violation of Colo. RPC 8.4(d) (conduct that is prejudicial to the administration of justice) in count two; a violation of Colo. RPC 1.4(a) (failure to communicate with a client) in count three; a violation of Colo. RPC 1.16(d) (failure to take steps reasonably practicable to protect a client's interests) in count four; a violation of C.R.C.P. 251.5(c) (alleging failure to comply with the applicable rules of civil procedure [C.R.C.P. 227(A)(1)(a) and C.R.C.P. 227(A)(2)(b)]) in count five, and a violation of C.R.C.P. 251.5(d)(failure to respond without good cause shown to a request by the Regulation Counsel) in count six. Michael H. Williams, an investigator with the Office of Attorney Regulation Counsel, and Randy Kent Harvey testified for the People.

The People's exhibits 1 through 4 were offered and admitted into evidence. The PDJ and Hearing Board considered argument of counsel, the facts and charges established by the entry of default, assessed the testimony of the witnesses, reviewed the exhibits admitted, and made the following findings of fact, which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Robert Karl Lynch has taken and subscribed the oath of admission, was admitted to the bar of this court on October 21, 1993 and is registered upon the official records of the Supreme Court, attorney registration number 23294. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b). On November 1, 1998, Lynch was suspended by the Supreme Court for failure to pay his attorney registration fees and file a change of address. Lynch is subject to the jurisdiction of the Supreme Court during the pendency of his administrative suspension. People v. Richards, 748 P.2d 341, 343 (Colo. 1987).

Randy Kent Harvey ("Harvey") retained Lynch and paid him $950 for legal representation in a post-dissolution hearing on Harvey's motion to increase his parenting time with his daughter. At the conclusion of the post-dissolution hearing on March 23, 1998, the court ordered Lynch to prepare an order for the court's signature. Lynch failed to do so. Following the hearing, Lynch failed to respond to numerous phone calls and other messages from Harvey concerning the status of the order until September 1998, when, during a conversation with Harvey, Lynch promised to complete the order. He again failed to do so. As a result of Lynch's failure to draft a written order, his client was unable to enforce the court's verbal order allowing him increased parenting time. Thereafter, Lynch disconnected his phone and did not respond further to Harvey. Lynch's failure to draft the written order caused Harvey to locate and employ another attorney at additional expense and required an additional court hearing. During the course of Lynch's representation, Harvey provided to Lynch original financial and other documents. Despite Harvey's requests, Lynch failed to return the documents to his client. Harvey suffered injury as a result of Lynch's conduct.

Lynch failed to cooperate with the Office of Attorney Regulation Counsel during the investigation of this matter. Additionally, Lynch failed to pay his attorney registration fees for 1997 and 1998, and failed to notify the Office of Attorney Registration of his change of address.

II. CONCLUSIONS OF LAW

A. The Harvey Matter

Lynch accepted funds from Harvey in the amount of $950 in exchange for his legal representation in a contested post-dissolution hearing concerning Harvey's desire to increase his parenting time with his daughter. Although Lynch partially obtained the result desired by his client, he failed to obey the court's directive to submit a written order for the court's signature, constituting neglect of his client's interests in violation of Colo. RPC 1.3 (neglect of a legal matter). Subsequent to the hearing, Lynch failed to respond to Harvey's phone calls regarding the status of the order. At one point Harvey spoke to Lynch and Lynch promised to complete the order. Thereafter, Lynch failed to provide the order to the court or to his client and made no attempts to communicate with Harvey, in violation of Colo. RPC 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information).

After employing successor counsel, an additional court hearing was required because of Lynch's neglect. Such misconduct was prejudicial to the administration of justice in violation of Colo. RPC 8.4(d).¹

The employment of successor counsel terminated Harvey's attorney-client relationship with Lynch. As a result of that termination, Lynch was required to comply with the mandatory provisions of Colo. RPC 1.16(d)(upon termination, an attorney shall take steps to the extent reasonably necessary to protect his client's interests). See People v. Hotle, 35 P.3d 185, 188, n. 1 (Colo. PDJ 1999),

29 COLO. LAW. 107, 108 (January 2000)(holding that even where the effective termination of the attorney-client relationship was not in conformity with the provisions of Colo. RPC 1.16(a) or (b), the provisions of Colo. RPC 1.16(d) still apply to the termination of that relationship). Lynch's failure to return the requested documents or turn them over to successor counsel constituted a violation of Colo. RPC 1.16(d) and caused further injury.

At the sanctions hearing, the People argued that Lynch abandoned his client. C.R.C.P. 251.14(a), the rule that governs the contents of disciplinary complaints, provides in part:

(a) Contents of Complaint. The complaint shall set forth clearly and with particularity the grounds for discipline with which the respondent is charged and the conduct of the respondent which gave rise to those charges.

The rule requires that the charging document in a disciplinary case set forth both a factual basis for the charges and the legal basis upon which the People seek discipline. Procedural due process requires fair notice of the charge. People v. Chastain, No. GC98A53 (consolidated with No. GC98A59), slip op. at 5 (Colo. PDJ August 11, 1999), 28 COLO. LAW. 137, 138 (October 1999), citing In the Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968)

. Fair notice of the charge envisions not only a recitation of the facts revealing the offensive conduct but also the identification of the legal prohibition which proclaims such conduct violative of the rules applicable to a lawyer's conduct. Ruffalo at 551, 88 S.Ct. 1222; see e.g. In the Matter of Andrew L. Quiat, 979 P.2d 1029, 1038 (Colo.1999). The Complaint does not meet this test. There are no substantive factual allegations or charges in the Complaint that would put Lynch on notice that he is being charged with abandonment of his client.

B. Failure to Cooperate

Lynch was properly served with the Citation and Complaint in this matter, both by certified mail and by personal service. Lynch had sufficient notice but failed to cooperate with the People in the investigation or in the subsequent proceeding. The investigator from the Office of Attorney Regulation Counsel expended considerable efforts in attempting to locate Lynch. Although he was personally served in San Diego, California, Lynch made no efforts to participate in these proceedings. Such misconduct provides grounds for discipline under C.R.C.P. 251.5(d).

C. Failure to Pay Registration Fees

Lynch failed to pay attorney registration fees for 1997 and 1998 pursuant to C.R.C.P. 227(A)(1)(a) which requires that every attorney admitted to practice in Colorado annually file a registration statement and pay registration fees. Additionally, Lynch failed to notify the Office of Attorney Registration of his change of address in violation of C.R.C.P. 227(A)(2)(b). C.R.C.P. 227(A)(4)(a) provides that any attorney who fails to timely pay attorney registration fees or file a change of address shall be summarily suspended. By Order dated November 1, 1998, the Supreme Court...