People v. Marmon, 94SA442
| Decision Date | 11 September 1995 |
| Docket Number | No. 94SA442,94SA442 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Thomas Free MARMON, Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Counsel, John S. Gleason, Assistant Disciplinary Counsel, Denver, for Complainant.
George McLachlan, Lamar, for Attorney-Respondent.
The respondent in this lawyer discipline case forged three court documents to conceal his neglect of an adoption case. A hearing panel of the supreme court grievance committee approved the recommendation of a hearing board that the respondent be disbarred. The respondent excepted to the panel's action on the ground that disbarment is too severe a sanction, and that he should instead be suspended for three years. He has also moved that the disciplinary proceedings be dismissed because they supposedly violate the multiple punishment component of the Double Jeopardy Clause. We conclude that the disciplinary proceedings did not violate double jeopardy, and that the hearing panel's recommendation of disbarment is appropriate.
A lawyer discipline proceeding is not a criminal proceeding, People v. Harfmann, 638 P.2d 745, 747-48 (Colo.1981), and it therefore is not a successive criminal prosecution in violation of constitutional protections against double jeopardy. 1 The proper question is whether, following a finding that a disciplinary violation or violations occurred, the imposition of a disciplinary sanction constitutes punishment for purposes of the multiple punishment component of double jeopardy. We shall address this issue following discussion of the respondent's substantive ethical violations and in the consideration of what sanction, if any, is appropriate.
The respondent was admitted to the Colorado bar in 1973. The parties entered into an unconditional stipulation of facts. After considering the stipulation and the testimony of the complainant's two witnesses and of the respondent, the hearing board found the following established by clear and convincing evidence.
A baby was born in February 1987 to a woman who had previously decided to relinquish custody of the child upon birth. Immediately after the birth, a couple traveled to Texas to take custody of the child, but did not meet the birth mother. The couple were given a document signed by the mother, however, granting them power of attorney. The birth mother signed a petition for relinquishment in Texas in May 1987. The couple retained the respondent in July 1987 to help them adopt the child. When he was hired, the respondent was serving as a part-time municipal court judge in La Junta, and as a part-time county court judge in Bent County, Colorado.
The respondent filed a petition for adoption in the Bent County District Court. At a hearing held July 18, 1989, the district judge indicated that the adoption decree would be entered once the respondent submitted the appropriate decree and relinquishment documents.
In October 1991, the respondent's secretary discovered two district court files pertaining to the adoption in the respondent's office. The respondent had checked out the files almost two years earlier. The secretary returned the files to the Clerk of the Combined Courts of Bent County. Seeing that no action with respect to the adoption had taken place since the July 1989 hearing, the clerk mailed the respondent a dismissal notice. When he did not respond, the district judge dismissed the adoption proceedings in November 1991.
The respondent's clients tried to communicate with him in early 1992 about the adoption because they needed a birth certificate for the child to be admitted to school. The respondent prepared a letter for his clients to use which represented that the clients were the adoptive parents and that the respondent was in the process of securing the birth certificate.
In October 1992, the respondent prepared two separate reports of adoption and forged the signature of the clerk of the combined courts to each. The reports falsely stated that the child had been adopted by the respondent's clients. He forwarded one of the fictitious reports of adoption to Texas, and, based on the report, the Texas authorities sent the birth certificate to the respondent at his home address as he requested. The respondent then delivered the birth certificate to his clients.
The respondent stipulated, and the board found, that the foregoing conduct violated DR 1-102(A)(3) (); DR 1-102(A)(4) (); DR 1-102(A)(5) (); DR 6-101(A)(3) (); and DR 7-102(A)(5) ().
The respondent prepared a final decree of adoption, which he dated July 22, 1990. Since no such valid decree existed, the respondent falsified the district judge's signature on the decree by photocopying the judge's signature from another document and transferring it to the fictitious decree. The respondent's original intent in making the document was to use it to conceal his neglect of the adoption case. He did not, however, actually use the forged decree. The court clerk discovered it in the court file, but according to the stipulation between the parties, there is no evidence that the respondent himself placed it there.
The respondent was charged with two counts of second degree forgery, § 18-5-103(1)(c), 8B C.R.S. (1986), a class 4 felony. On August 11, 1994, the district court entered an order for a deferred prosecution pursuant to a stipulation between the respondent and the district attorney. See § 16-7-401, 8A C.R.S. (1994 Supp.). Prosecution of the second degree forgery count relating to the falsification of the court clerk's signatures was deferred for two years provided that the respondent complied with certain conditions, including that he not practice law for compensation for two years, and that he provide a signed confession of his forgery of the combined court clerk's signature on the reports of adoption. The count of second degree forgery pertaining to his forgery of the adoption decree was dismissed.
Although he admitted falsifying the adoption decree with the district judge's signature with the intent to conceal his negligence, the respondent asserted that he did not commit any disciplinary violation because it cannot be proved by clear and convincing evidence that he actually used or attempted to use the decree.
The hearing board correctly rejected this argument, concluding that the important point was that the respondent falsified the adoption decree with the original intent to use it for a fraudulent purpose, and not how the document came to be in the court file. The criminal statute that applied during the relevant time period provided that the offense of second degree forgery was complete upon the making of the forged document with intent to defraud, or the uttering of the instrument:
18-5-103. Second degree forgery. (1) A person commits second degree forgery, if, with intent to defraud, he falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
....
(c) A written instrument officially issued or created by a public office, public servant, or government agency....
(2) Second degree forgery is a class 4 felony.
§ 18-5-103, 8B C.R.S. (1986 & 1992 Supp.). See Wright v. People, 116 Colo. 306, 310, 181 P.2d 447, 449 (1947) (). 2 The hearing board properly determined that the respondent's forgery of the adoption decree, a class 4 felony, violated DR 1-102(A)(3) (); DR 1-102(A)(4) (); DR 1-102(A)(5) (); and DR 7-102(A)(5) ().
The hearing panel approved the board's findings and recommendation that the respondent be disbarred. The respondent has excepted to the panel's recommendation as too severe. In the alternative, he has moved that the proceedings be dismissed because they violate double jeopardy. In his closing argument before the hearing board, the respondent's counsel stated:
He has been disciplined in the judiciary Committee proceedings. Now, whether, quote, he was entitled to retire sometime is no different, in my book, than permitting an attorney to resign from the bar; the effect is there. He has been disciplined to a greater extent in that act or proceeding, and it's basically for the same acts, basically, for the very same acts.
I'm not saying that it's double jeopardy. I'm not making any excuses for the man. I'm simply saying don't compound the punishment.
(Emphasis added.) In his opening brief, however, the respondent advanced the argument that he has been subjected to triple jeopardy for the same acts of misconduct:
[The respondent] was "permitted" to resign after the investigative proceedings were conducted against him in his capacity as a county judge. He was criminally proceeded against and, although not incarcerated, has agreed not to practice law as a compensated attorney for a period of two years and is subject to have charges reinstated against him with a confession of wrongdoing already in the hands of the prosecutor in the [e]vent he fails to comply with the terms...
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