People v. Morley
| Decision Date | 15 September 1986 |
| Docket Number | No. 85SA339,85SA339 |
| Citation | 725 P.2d 510 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Bernard D. MORLEY, Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Prosecutor, George S. Meyer, Deputy Disciplinary Prosecutor, Denver, for complainant.
Bernard D. Morley, P.C., Robert K. Reimann, Denver, for attorney-respondent.
A complaint was filed with the Grievance Committee charging the respondent, Bernard D. Morley, with professional misconduct. A hearing board of the Grievance Committee found that the respondent had violated the Code of Professional Responsibility and the Colorado Rules Regarding Lawyer Discipline and recommended that the respondent be disbarred. A hearing panel of the Grievance Committee approved the findings and recommendation of the hearing board. We conclude that the respondent's professional misconduct constituted such a flagrant violation of professional ethics as to warrant the severe sanction of disbarment.
The respondent was licensed to practice law in Colorado in 1958 and is subject to the jurisdiction of this court and its Grievance Committee. In 1980 the Cherry Hills Police Department received information from the respondent's former housekeeper that he was using cocaine. As part of their investigation of the respondent's drug use, undercover police officers attempted to purchase cocaine from him on two separate occasions but without success. The Cherry Hills Police Department thereafter sought investigative assistance from the Arapahoe County Special Crime Attack Team (SCAT) concerning the respondent's alleged violation of Colorado's drug laws. Due to jurisdictional and financial limitations, the director of SCAT requested further assistance from the Federal Bureau of Investigation (FBI).
The FBI was primarily interested in developing information concerning a male person we hereafter refer to as H.L., one of the respondent's clients, whom the FBI suspected of income tax evasion and the violation of other federal laws. H.L. had an ownership or other interest in several topless-bottomless bars in the Denver area and had employed a number of dancers to work in these bars. Hoping that the respondent would be a conduit to H.L., the FBI and SCAT set up a so-called "sting" operation.
On July 22, 1980, a female informant, whom we will call S.N., contacted the respondent in his office and spoke to him concerning the establishment of a female escort service in the Denver area. The respondent advised S.N. about the licensing requirements of the newly enacted Colorado Escort Service Code, §§ 12-25.5-101 to -115, 5 C.R.S. (1985), and specifically told her not to apply for a license under the statute if the service was to be used as a front for prostitution. S.N. paid the respondent $100 for the July 22 consultation.
On August 8, 1980, S.N. and FBI agent Charles Evans met with the respondent in his office. Evans told the respondent that he was from the east coast and was a member of an organization that was attempting to establish a prostitution service in Denver to serve wealthy travelers from the New York area. Evans further explained that the persons served by his organization had minimum annual incomes of two hundred thousand dollars, that the organization's clients were provided with computerized monthly billings for services rendered, and that the organization hoped to have a base of fifty women in Denver who would serve at least two hundred clients a month at $300 per hour. Evans told the respondent that his legal services were not needed, but that he had been contacted as someone who could put the organization in touch with other persons who could provide prostitutes for the scheme.
The respondent refused Evans' offer of a financial interest in the proposed venture and stated that all his work for the organization would be billed as legal work. He discussed with Evans the importance of setting up a code system for the women, commented on the dangers of using an out-of-house computer service, and stated that putting the initial money to fund the operation in the respondent's trust account rather than a bank account would assure Evans a degree of anonymity with respect to his role in the scheme. After commenting on the method used to screen the women employed in the scheme, the respondent cautioned Evans against advertising and the use of pimps. No definite agreement was reached on a fee, although the respondent did mention to Evans that at his first meeting with S.N. he had told her he would require a $1,000 retainer. After the scheme was outlined, the respondent told Evans he would consider different ways in which to put the service together and would make some contacts. At this meeting and in later conversations, the respondent also advised Evans about various ways to structure the proposed activity in order to avoid problems with local law enforcement agencies.
On September 3, 1980, the respondent arranged for agents Evans and Kazmier, who also was posing as a member of Evans' organization, to meet H.L. at dinner. The record does not indicate that anything of significance transpired at the dinner meeting with H.L. The following day, September 4, the respondent again met with the agents and proposed that he be paid a fee of $5,000 for providing the organization with contacts. The respondent again met with the agents in his office on September 30, when he received a $1,000 payment from Kazmier. It was agreed at this meeting that the respondent would provide additional contacts and that he would receive $1,500 payable in two to three weeks with the balance of $2,500 payable once the prostitution business was in operation. Until September 30 the respondent kept a record of his meetings with S.N. and the agents on a ledger sheet titled in S.N.'s name. The respondent entered these meetings on the ledger sheet as conferences with "clients."
On October 16, 1980, the respondent met again with agent Kazmier and provided him with the names and telephone numbers of two women to contact in connection with the prostitution operation. At a final meeting with agent Evans on December 1, 1980, the respondent indicated that he was displeased because the organization had failed to meet the schedule of payments agreed upon at the September 30 meeting.
Unknown to the respondent, the conversations he had with S.N. and the undercover agents had been recorded. On November 19, 1981, the respondent was charged in the Arapahoe County District Court with soliciting for prostitution, § 18-7-202, 8 C.R.S. (1978), pandering, § 18-7-203(1)(b), 8 C.R.S. (1978), and conspiracy to commit these offenses, § 18-2-201, 8 C.R.S. (1978). For reasons not set forth in the record before us, these charges were dismissed on January 7, 1983.
On October 24, 1983, a formal complaint was filed with the Grievance Committee, charging the respondent with professional misconduct in several particulars, including as pertinent here: violating the highest standards of morality in violation of C.R.C.P. 241.6(3); engaging in conduct adversely reflecting on his fitness to practice law in violation of DR 1-102(A)(6); assisting a client in conduct that the lawyer knows to be illegal in violation of DR 7-102(A)(7); and knowingly engaging in other illegal conduct or conduct contrary to a disciplinary rule in violation of DR 7-102(A)(8).
The respondent moved to dismiss the charges or in the alternative to suppress the tape recordings of his conversations with S.N. and the undercover agents, as well as any testimony concerning these conversations, on the basis that the entire investigation was instituted and conducted in an outrageous manner and in bad faith in violation of due process of law. The board expressed some reservations about the propriety of the agents' conduct, but concluded that the investigation was not conducted outrageously or in bad faith and therefore denied the motion.
The case against the respondent consisted primarily of the tape recorded conversations with S.N. and the FBI agents. The respondent testified that he knew from the first meeting with Agent Evans that an illegal prostitution scheme was being planned. He acknowledged that he made no attempts to dissuade Evans and Kazmier from engaging in the proposed illegal activity, but he asserted that he had not given them any legal advice. The respondent told the hearing board that he accepted the payment of $1,000 for the time he had already spent with the agents, but stated that he gave the agents the names of the two women and introduced them to H.L. only in order to "string them along" because he believed that they would require his legal services in the future.
The hearing board found by clear and convincing evidence that the respondent's counseling of activities which he acknowledged to be criminal was not consistent with the highest standards of morality and thus violated C.R.C.P. 241.6(3). The board also found by clear and convincing evidence that the respondent violated the Code of Professional Responsibility in the following particulars: engaging in conduct that adversely reflected on the respondent's fitness to practice law in violation of DR 1-102(A)(6); counseling or assisting a client in conduct that the respondent knew to be illegal in violation of DR 7-102(A)(7); knowingly engaging in illegal conduct or conduct contrary to a Disciplinary Rule in violation of DR 7-102(A)(8). 1 While the board acknowledged that the respondent had not been previously adjudged guilty of professional misconduct, it recommended the sanction of disbarment due to the serious and continuing nature of his professional misconduct in this case. The hearing panel of the Grievance Committee approved the findings and conclusions of the board and adopted the board's recommendation of disbarment.
The respondent has filed exceptions to the hearing panel's report. He contends that the undercover...
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