People v. Musick, 97SA210

• Decision Date: 26 May 1998
• Docket Number: No. 97SA210,97SA210
• Citation: 960 P.2d 89
• Parties: 98 CJ C.A.R. 2655 The PEOPLE of the State of Colorado, Complainant, v. John D. MUSICK, Jr., Attorney-Respondent.
• Court: Colorado Supreme Court

Page 89

960 P.2d 89

98 CJ C.A.R. 2655

The PEOPLE of the State of Colorado, Complainant, v. John D. MUSICK, Jr., Attorney-Respondent.

No. 97SA210.

Supreme Court of Colorado En Banc.

May 26, 1998.

Rehearing Denied June 22, 1998.

Linda Donnelly, Disciplinary Counsel, James S. Sudler, Assistant Disciplinary Counsel, Denver, for Complainant.

Frascona, Joiner and Goodman, P.C., Joseph Adams Cope, Louise Culberson-Smith, Boulder, for Attorney-Respondent.

PER CURIAM.

In this lawyer discipline case, a hearing panel of the supreme court grievance committee sent the findings and recommendation of a hearing board back for further consideration in light of the objections filed by the respondent and the complainant. The hearing panel then approved the board's supplemental findings, but modified the board's recommendation of discipline from a three-month suspension to a suspension of one year and one day. The respondent has excepted to the findings and recommendation. We now accept the hearing panel's recommendation and suspend the respondent for one year and one day.

I.

The respondent was admitted to practice law in Colorado in 1970. He is also licensed to practice law in California and Hawaii. Following a three-day hearing, the board made the following findings by clear and convincing evidence. The respondent takes issue with most of these findings.

The respondent and Victoria Johnson lived together first in Aspen, Colorado and then in Los Angeles from October of 1988 to October of 1993. In February 1992, the respondent physically assaulted Johnson inside their Los Angeles apartment. The board found that the assault resulted in multiple soft tissue contusions, but no serious injury. The parties reconciled.

On a combination vacation and business trip to Hawaii in May 1993, the respondent again physically assaulted Johnson in their hotel room. Her injuries were minor. At one point during the assault, he threatened to throw Johnson out of the window of their room on the sixteenth floor. He also restrained her with a belt throughout the night so that she could not leave.

Finally, in October 1993, the respondent physically assaulted Johnson in Los Angeles. The assault resulted in no actual injuries, although it caused her pain.

The Code of Professional Responsibility governs the 1992 assault, but the Rules of Professional Conduct apply to the 1993 assaults. In its initial report, the hearing board stated:

The Board was not presented with any evidence that Respondent's temper which resulted in the physical attacks had affected his law practice or clients in any way. To the contrary, all evidence presented to the Board indicated that throughout the relevant time he had a very successful practice with well-satisfied clients. The Board concluded that the three physical assaults were isolated incidents not involving a fixed pattern of misbehavior. The behavior at issue can find redress in the criminal and civil laws. The Board found that the physical attacks were directly related to the tumultuous and dysfunctional relationship in which the Respondent and Ms. Johnson were involved and were entirely situational. The Board concluded that it was highly unlikely that the temper exhibited by the Respondent which gave rise to the physical attacks on Ms. Johnson would adversely affect his clients. Therefore, the Board concludes that the physical attacks on Ms. Johnson were not a violation of disciplinary Rule 1-102(a)(1) [violating a disciplinary rule] or DR 1-102(A)(6) [engaging in conduct adversely reflecting on the lawyer's fitness to practice] of the Code of Professional Responsibility or Rules 8.4(a) [violating the rules of professional conduct] and 8.4(h) [engaging in conduct adversely reflecting on the lawyer's fitness to practice] of the Rules of Professional Conduct.

The hearing board did find, however, that the respondent's physical assaults violated C.R.C.P. 241.6(3) (violating the highest standards of honesty, justice, and morality) and C.R.C.P. 241.6(5) (violating the criminal laws of a state). Following a remand by the hearing panel for further consideration in light of the objections filed by the parties, the hearing board filed supplemental findings of fact and recommendation.

As part of its findings and conclusions, the board affirmed evidentiary rulings involving the admission of medical records and tape recordings of telephone messages and conversations. The board found the medical record admissible under CRE 803(4). The respondent objected to the admissibility of tape recordings and transcriptions of telephone messages he left for Johnson and tapes of telephone conversations between the respondent and Johnson. These tape recordings were presumably made in California. In his objections to the report of the hearing board, the respondent raised, for the first time, that the tape recordings of his conversations with Johnson were not admissible because of a California statute that prohibited the introduction into evidence of a recording of a confidential communication made without the consent of all the parties to the conversation. See Cal.Penal Code § 632 (West 1988 & Supp.1998).

We need not address the question of whether this California statute should be applied in a lawyer discipline proceeding in Colorado. ¹ The hearing board properly found that by failing to contemporaneously object on this basis at the hearing, the respondent waived the objection. ²

The respondent also alleged that he could not be found to have violated either C.R.C.P. 241.6(3) or C.R.C.P. 241.6(5) since those rules were not specifically pleaded in the complaint. The hearing board agreed and withdrew those findings. However, the hearing board also reconsidered whether the respondent's conduct adversely reflected on his fitness to practice law, in violation of DR 1-102(A)(6) and Colo. RPC 8.4(h):

The Board concluded that the physical attacks by Respondent on Victoria Johnson were the result of a very critical failure of judgment and evidence a contempt for the law which is at odds with the Respondent's duty to uphold the law. The Board concludes that the conduct reflects adversely on the Respondent's judgment and duty to uphold the law.

In reaching this conclusion, the board quoted from People v. Senn, 824 P.2d 822 (Colo.1992):

It is preeminently the business of the criminal justice system to punish violations of the laws. While the respondent's misconduct [committing offense of prohibited use of weapon in a domestic altercation] did not directly arise from the practice of law, disciplinary proceedings supplement the work of the criminal courts to maintain respect for the rule of law and protect the public. The respondent's conduct on the morning of September 14 was the result of a very critical failure of judgment and we believe it evinced a contempt for the law which was at odds with the respondent's duty to uphold the law.

824 P.2d at 824-25 (citations omitted).

The complaint also charged the respondent with misconduct relating to his use of an American Express card issued on an account for which Johnson was ultimately liable. The board found that these charges had not been proved by clear and convincing evidence and dismissed that count.

II.

The hearing board recommended that the respondent be suspended for three months and that he be ordered to engage in mental health counseling for the personal and emotional problems that led to his physical attacks. The hearing panel approved the board's supplemental findings. However, the panel modified the board's recommendation of a three-month suspension to suspension for one year and one day, "because a shorter suspension would be unduly lenient under the facts of this case." In addition, the panel modified the recommendation of mental health counseling to a requirement that the respondent complete a certified domestic violence treatment program as a condition of reinstatement. See § 18-6-802, 6 C.R.S. (1997). The respondent filed exceptions to the panel's action.

The respondent's first contention is that "isolated instances of minor assault" outside of the context of a law practice can never be considered conduct that adversely reflects on the fitness to practice law, especially when the respondent was not charged with violating any criminal laws. In particular, the complaint filed against the respondent did not charge such a violation. The respondent is correct that in other lawyer discipline cases involving assault, violation of a criminal law was also charged. See, e.g., Senn, 824 P.2d at 823.

However, we have never held that a complaint must charge a violation of the criminal law before physically assaultive behavior can be found to reflect adversely on a lawyer's fitness to practice law. As we said in People v. Crossman, 850 P.2d 708 710-11 (Colo.1993), "[w]e agree with the Supreme Court of Florida that '[i]mproprieties that directly and intentionally harm others always are serious offenses in the eyes of this Court.' Florida Bar v. Samaha, 557 So.2d 1349, 1350 (Fla.1990) (emphasis in original)." In People v. Brailsford, 933 P.2d 592, 595 (Colo.1997), we observed that "the actual nature of [the attorney's] conduct [which resulted in a guilty plea to third-degree sexual assault] is more important for disciplinary purposes than the statutory label put on it." We suspended Brailsford for one year and one day following his conviction for the third-degree sexual assault of his wife. See id. at 596.

In a similar way, we deem the actual nature of the respondent's violent assaultive behavior in this case on multiple occasions more significant than the presence or absence of a criminal charge. Assault on another person is malum in se. See People v. Washburn, 197 Colo. 419, 424 n. 3, 593 P.2d 962, 965 n. 3 (1979) ("It is the nature of this offense which gives rise to this issue; the bulk of criminally proscribed behavior is not reasonably subject to the defense of: 'my conduct...