People v. Olson
|25 July 2016
|Case Number: 15PDJ062 consolidated with 16PDJ007
|The PEOPLE of the State of Colorado, Complainant v. David L. OLSON II, Respondent
|Colorado Supreme Court
OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(b)
WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE
David L. Olson II ("Respondent") was convicted of disorderly conduct stemming from a domestic dispute with his then-wife. The Office of Attorney Regulation Counsel ("the People") filed a disciplinary complaint against Respondent based on the conviction, and a hearing was set. Respondent then attempted to persuade his wife to soften her testimony and to avoid the People's subpoena. Respondent's misconduct warrants suspension for thirty months.
I. PROCEDURAL HISTORY
Jacob M. Vos filed a complaint for the People in case number 15PDJ062 on July 24, 2015, alleging one claim premised upon Respondent's criminal conviction for disorderly conduct (unreasonable noise), a petty offense. Respondent filed his answer on August 14, 2015, denying that he engaged in any misconduct. Presiding Disciplinary Judge William R. Lucero ("the PDJ") set the case for a hearing on December 16, 2015.
On November 9, 2015, the People filed a motion for summary judgment, but the PDJ denied the motion a month later. The parties appeared before the PDJ for a prehearing conference on November 23, 2015. There, the PDJ continued the hearing because the People intended to file a second complaint against Respondent premised on upon new allegations. The PDJ ordered the parties to attend a scheduling conference on January 19, 2016. During that conference, the PDJ reset the hearing for May 2–3, 2016, and ordered the parties to engage in alternative dispute resolution.
On January 25, 2016, the People filed a complaint in case number 16PDJ007 asserting claims for relief based upon Respondent's alleged witness tampering and harassment. The next day, the PDJ consolidated the new complaint with case number 15PDJ062. Respondent responded to the second complaint on February 16, 2016. Soon thereafter the PDJ reset the hearing for May 17–18, 2016.
The parties filed numerous pretrial motions. On March 31, 2016, the PDJ denied Respondent's motion asserting marital privilege, finding that Respondent's marriage had terminated nunc pro tunc on August 31, 2015, and thus any conversations he had with his ex-wife, Jamie Olson, after that date were not protected by the marital privilege. The People filed a motion in limine, asking the PDJ to exclude the testimony of Respondent's nonretained expert witness, Dr. Randy Braley, claiming that his anticipated testimony concerning Ms. Olson would be privileged and that any testimony he might give regarding Respondent's good character or habit for truthfulness would be inadmissible. The PDJ agreed with the People, in part, and on April 19, 2016, he limited Dr. Braley's testimony to statements about Respondent's individual care and treatment and Respondent's character and reputation in mitigation. On May 5, 2016, the PDJ granted the People's motion to compel the production of certain correspondence between Respondent and Ms. Olson. On May 6, 2016, the PDJ denied the People's motion in limine to limit the number of Respondent's character witnesses. Also on that day, the PDJ granted Respondent's motion to strike portions of the People's hearing brief and ordered the People to file an amended hearing brief, which they did.
The PDJ held a prehearing conference on May 10, 2016. There, the PDJ granted the parties' request for a sequestration order and permitted an advisory witness to sit with Respondent during the hearing. The PDJ also placed time limits on the parties' opening and closing statements.
On May 17–18, 2016, a Hearing Board comprising Thomas J. Herd and Douglas D. Piersel, members of the bar, and the PDJ held a hearing per C.R.C.P. 251.18. Vos represented the People, and Respondent appeared pro se.1 The Hearing Board considered the stipulated facts and testimony from Officer Vincent Lopez, Jamie Olson, Patrick Sawhill, Mike Malone, Doreen Malone, Dr. Randy Braley, Officer John Frahm, Mary Lynne Elliott, Nathan Rand, Steve Fast, G.O.,2 Terri Sahli, Kathleen Sullivan, and Respondent. The PDJ admitted stipulated exhibits S1–S3, the People's exhibits 4–5, 7–8, 10, 12, and 14–18, and Respondent's exhibits D, F, I, K, U, and V.
At the close of his case, Respondent moved for a directed verdict on the People's witness tampering claims. Respondent argued that the People had not presented clear and convincing evidence that he dissuaded Ms. Olson from testifying at the disciplinary hearing originally set in December 2015. The People contended that factual disputes existed and that Respondent's motion should be denied. The PDJ, viewing the evidence in the light most favorable to the People, denied Respondent's motion. The People also made an offer of proof with respect to certain testimony from Patrick Sawhill and Mike and Doreen Malone, which the PDJ had excluded as hearsay.
II. FINDINGS OF FACTS 3 AND RULE VIOLATIONS
Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 15, 2006, under attorney registration number 37228.4 He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.5
Respondent graduated from the University of Nebraska in 1997 with a degree in marketing and finance. He attended the university on an athletic scholarship for long-distance running and track. While there, Respondent was the captain of the cross-country team and was nationally ranked as a long-distance runner. After he graduated, Respondent trained for the 2000 Olympic trials, until he had a career-ending injury.
Ms. Olson and Respondent were married in 1997. He described their roles within their marriage as very traditional—"1950s Americana"—as he worked full-time and she stayed home to raise their children. Respondent testified that he and Ms. Olson both came from difficult backgrounds and that they wanted to "form the roots of a new family tree." During their eighteen-year marriage, the Olsons had three children—two daughters and one son.
From 1997 to 2002, Respondent worked full-time as an adjuster for State Farm Insurance Company. During this period, he also attended the University of Nebraska College of Law, where he served as the executive editor of the Nebraska Law Review .
In 2006, Respondent and his family moved to Colorado, where he became licensed to practice law. He began his legal career in private practice, eventually working at a large firm. He was so fixated on becoming a partner that he missed two Christmases with his family and gained sixty pounds. He realizes now that his lifestyle then was fundamentally flawed, as he did not appreciate the notion of equity within the family. Around 2013, Respondent left private practice and became general counsel for Colorado School Districts Self Insurance Pool ("CSDSIP"),6 where he earns about $125,000.00 a year. Respondent describes himself as passionate about school law and public education. At present, Ms. Olson is a kindergarten teacher and earns approximately $30,000.00 a year.
In 2013, the Olsons separated. Respondent moved to an apartment in Denver while Ms. Olson remained in the family home in Broomfield. In June 2014, Respondent moved back into the family home to work on their marriage.
Respondent's Criminal Conviction
Respondent and Ms. Olson largely agree about the facts giving rise to the incident occurring on June 18, 2014; they disagree, however, as to the severity of harm Ms. Olson suffered. That day, Ms. Olson had discovered Respondent's relationship with another woman during their period of separation, and she was very upset. She called Respondent to discuss what she had found, but Respondent did not want to talk. He recalled that during this conversation, Ms. Olson told him that she could not "do it anymore" and, as he described, sounded as though she were in a frenzied emotional state.
When Respondent came home that evening, Ms. Olson stated that she "very much wanted" to have a conversation with Respondent, but he "flat out didn't want to talk about it, at all." Rather than speaking with Ms. Olson, Respondent decided to take his daughter G.O. on a drive until around 10:30 p.m. Later that night, while they were in bed, the Olsons argued about Respondent's infidelity. Ms. Olson had a picture of the other woman on her iPad, which she kept showing Respondent.
According to Ms. Olson, Respondent did not want to speak to her about the other woman and pushed her out of the bed with his hands, his body, and his feet. She did not shove him back, she said; instead, she fell out of bed, grabbed her cell phone from their nightstand, and curled up into a ball on the floor. She next remembered Respondent forcefully placing himself on top of her, causing the side of her face to hurt. She thought maybe Respondent had pushed, shoved, or held her in place on the floor, but she was not positive. While lying on the floor, she recalled Respondent pushing her toward the bedroom door...
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