People v. Meier, 97SA157
| Decision Date | 09 March 1998 |
| Docket Number | No. 97SA157,97SA157 |
| Citation | 954 P.2d 1068 |
| Parties | 98 CJ C.A.R. 1065 The PEOPLE of the State of Colorado, Complainant, v. Charles H. MEIER, Jr., Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Counsel, James S. Sudler, Assistant Disciplinary Counsel, Denver, for Complainant.
George S. Meyer, Denver, for Attorney-Respondent.
The respondent in this lawyer discipline case was admitted to practice law in Colorado in 1993. A hearing panel of the supreme court grievance committee accepted the findings of a hearing board that the respondent had made inappropriate comments and asked improper questions of a prospective dissolution of marriage client. The hearing panel modified the board's recommendation of a private censure to a public censure, given the vulnerability of the victim and unimpressive nature of the factors in mitigation. We accept the hearing panel's recommendation and publicly censure the respondent.
Following a hearing, the hearing board made the following findings by clear and convincing evidence. In the fall of 1995, the complaining witness in this case, a young woman with a three-year-old child, was experiencing marriage difficulties and considering divorce. She called the respondent for legal advice. She spoke with him on the telephone four or five times regarding the possibility of filing for dissolution of marriage, reconciliation with her husband, and the financial aspects of dissolution.
On October 25, 1995, during one of these telephone conversations, the respondent asked her what she looked like, how tall she was, what her breast size was, and whether she was "desirable." He also asked her when the last time she and her husband had had sex. During the phone call, her son disturbed their conversation, and this prompted the respondent to advise her to keep her legs crossed so she would not have any more pesky kids. 1 Two days later, he called the woman at her home and asked, "Is this the good-looking ... ?", using her first name. She immediately hung up.
The respondent testified that his comments and questions to the woman were bungled and misguided, but arose from a concern for her well-being and an attempt to assess the possibilities of a reconciliation. The woman and her husband did reconcile. The respondent and the woman had not met in person when he made the above comments and he was never formally retained by her.
The hearing board determined that the "language [the respondent] used was inappropriate, harmful, offensive, harassing and sexually abusive to the" complaining witness. Thus, the respondent's "use of lewd and sexually offensive language during discussions preliminary to the formal retainer, falls below appropriate standards for members of the legal profession and violates the fiduciary relationship the respondent owed to" his prospective client. The respondent was found to have violated Colo. RPC 8.4(h) ().
The hearing board recommended that the respondent receive a private censure. The hearing panel found it necessary to modify this to a public censure "given the similarity of the wrongfulness of the conduct in this proceeding to that in People v. Bergner, the client's vulnerability, and the insufficient weight that is to be derived from the mitigating factors found by the board."
The respondent excepted to the hearing panel's action and to some of the board's findings. In particular, the respondent claims that the board erred in finding that he violated Colo. RPC 8.4(h) by engaging in lewd conduct; that the recommended discipline is unduly harsh; and that the hearing board should not have admitted the respondent's response to the complaining witness's request for investigation (Exhibit 1) over the respondent's hearsay objection.
Looking at the evidentiary question first, the respondent claims that his response to the request for investigation was inadmissible because it was hearsay and did not fall within any of the exceptions to the rule against hearsay. In particular, the respondent complains that the hearing board "admitted the entire document as an admission of a party-opponent despite the fact that, on its face, the document contains denials of some of the misconduct alleged by" the complaining witness. The hearing board did not refer to Exhibit 1 in its findings and recommendation, although the assistant disciplinary counsel in his closing argument pointed out that at least one part of the respondent's response was to some extent inconsistent with his testimony at trial.
Hearsay is defined as "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). Exhibit 1 was admitted under CRE 801(d)(2), which provides:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if--
...
(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement in either his individual or a representative capacity....
The respondent's response to the request for investigation was "his own statement" and it was offered by the complainant against the respondent, a party-opponent. It was therefore, not hearsay under CRE 801(d)(2). The fact that part of his response was inconsistent with his testimony at trial is not a consideration under CRE 801(d)(2).
In United States v. Turner, 995 F.2d 1357 (6th Cir.), cert. denied, 510 U.S. 904, 114 S.Ct. 282, 126 L.Ed.2d 232 (1993), Turner was convicted of destroying a building by fire and causing personal injury. On appeal, Turner argued that the district court erred in admitting statements he made to two firemen about the fire. Id. at 1363. The statements were admitted as admissions of a party-opponent under Fed.R.Evid. 801(d)(2), which is the same as CRE 801(d)(2). Like the respondent in this case, Turner claimed that his statements were "exculpatory" rather than admissions. 995 F.2d at 1363. The Sixth Circuit rejected this contention. 995 F.2d at 1363; see United States v. DiDomenico, 78 F.3d 294, 303 (7th Cir.1996) (); State v. Bernier, 157 Vt. 265, 597 A.2d 789, 791 (1991) (); 2 Charles T. McCormick, McCormick on Evidence 254 (John William Strong ed., 4th ed.1992). The rationale for defining admissions by a party-opponent as non-hearsay is not that they are admissions against interest and therefore entitled to a presumption of reliability. Rather, such statements are not hearsay because under our adversary process a party has the opportunity to explain his own words which his adversary may use against him. See Burlington N. R.R. v. Hood, 802 P.2d 458, 466 (Colo.1990). Despite the fact that the respondent denied rather than admitted some of the charges against him in the response to request for investigation, that by itself does not take his responsive statement outside of CRE 801(d)(2). The hearing board did not err in overruling the respondent's hearsay objection.
The respondent claims that "[t]he conclusion of law reached by the board in this case, that respondent violated R.P.C. 8.4(h) by the use of 'lewd' comments is unsupported by record evidence as respondent's comments were crude and offensive but unaccompanied by an inappropriate intent." (Emphasis added.) The hearing board wrote:
12. The hearing board concludes that [the complaining witness] did not either invite or consent to the respondent's use of lewd language. The board further concludes that the language he used was inappropriate, harmful, offensive, harassing and sexually abusive to the complainant.
....
14. The hearing board concludes that the use of lewd and sexually offensive language by the respondent during discussions preliminary to the formal retainer, falls below appropriate standards for members of the legal profession and violates the fiduciary relationship the respondent owed to [the complaining witness]. Although he had no formal agreement with [her], the respondent had taken up a position of authority and trust in relation to her and he had begun rendering advice. The numerous phone conversations detailed in Exhibits 1 and 2 evidence that he engaged in an extended pattern of counseling [the complaining witness] before the violation. The board concludes the respondent's ultimate intention and the lack of existence of a formal attorney-client relationship are of no consequence. The use of this language violated his professional responsibility to [the...
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