People v. Richards

• Decision Date: 21 December 1987
• Docket Number: No. 87SA152,87SA152
• Parties: The PEOPLE of the State of Colorado, Complainant, v. William G. RICHARDS, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 341

748 P.2d 341

The PEOPLE of the State of Colorado, Complainant, v. William G. RICHARDS, Attorney-Respondent.

No. 87SA152.

Supreme Court of Colorado,

En Banc.

Dec. 21, 1987.

Linda Donnelly, Disciplinary Prosecutor George S. Meyer, Deputy Disciplinary Prosecutor, Denver, for complainant.

ERICKSON, Justice.

In this disciplinary proceeding, the respondent, William G. Richards, did not appear in person or by counsel, and did not answer the complaint of the disciplinary prosecutor. The hearing panel approved the findings, conclusions, and recommendations of the hearing board and recommended that the respondent be suspended from the practice of law for one year and one day and assessed the costs of these proceedings. At the time sanctions were recommended by the hearing panel, the respondent was under suspension for failure to comply with the registration requirements of C.R.C.P. 227, and had not provided the Clerk of the Colorado Supreme Court with a notification of his change of address as required by C.R.C.P. 227(2)(b). The hearing panel approved the findings, conclusions, and recommendations of the hearing board. We agree and order that the respondent be suspended for one year and one day, and that he be assessed the costs of these disciplinary proceedings.

The disciplinary prosecutor filed a motion requesting that the supreme court clarify default proceedings under C.R.C.P. 241.13(b) in both this case and People v. Jacobson, 747 P.2d 654 (Colo.1987). In both proceedings, the respondents failed to answer or file a responsive pleading and a default was entered against them. See C.R.C.P. 241.13(b).

I.

The respondent, William G. Richards, was admitted to the bar of this court and is subject to the disciplinary jurisdiction of this court. C.R.C.P. 241.1(b). Even though the respondent was under suspension for failure to comply with the registration requirements of C.R.C.P. 227, he is subject to the jurisdiction of this court for additional violations of chapter 20 of the Colorado Rules of Civil Procedure and for his failure to comply with the Code of Professional Responsibility while he was practicing law as an officer of this court.

Two separate disciplinary complaints against the respondent create the procedural issues that are before us. For clarity, the two complaints will be addressed as they were by the Grievance Committee and will be referred to as Richards I and Richards II.

A.

Richards I

Pursuant to C.R.C.P. 241.12, a complaint was filed against the respondent and constructive service was effected in accordance with C.R.C.P. 241.25(b). The respondent was not served personally, but was served by mail after frequent attempts to effect personal service were unsuccessful. He filed a response to a request for investigation that was submitted to the Grievance Committee by Michael Townes, a client of the respondent, and was aware of the disciplinary prosecutor's investigation before Richards I was filed. However, the respondent failed to answer or to file a responsive pleading to the complaint and did not appear at any of the proceedings before the hearing board of the Grievance Committee.

The complaint in Richards I contained two counts. The first count centered on the respondent's virtual abandonment of his client several weeks before the scheduled trial of a personal injury action. As a result of his professional misconduct, his client was required to secure other counsel and to obtain a continuance of the trial. The disciplinary prosecutor asserted that the respondent's conduct in his representation of Michael Townes violated C.R.C.P. 241.6 and the following disciplinary rules: DR 1-102(A)(1) (violation of a disciplinary rule), DR 1-102(A)(5) (conduct prejudicial to the administration of justice); DR 1-102(A)(6) (conduct adversely reflecting on his fitness to practice law), and DR 7-101(A)(2) (failure to carry out a contract with a client for professional services).

The second count alleged that the respondent failed to file a notification of his change of address with the Clerk of the Supreme Court after he was suspended for failure to file the registration statement required by C.R.C.P. 227. His failure to provide an address and his active concealment of his whereabouts made it virtually impossible for investigators from the Grievance Committee to contact or locate the respondent, and required that the respondent be served in accordance with the provisions of C.R.C.P. 241.25(b). A default was entered by the hearing board against the respondent on April 24, 1986, and thereafter, on June 27, 1986, the hearing board conducted a default hearing pursuant to C.R.C.P. 241.13(b).

Following the default hearing, the disciplinary prosecutor was notified that the hearing board had concluded that the allegations in Count I of the complaint in Richards I, despite the standard of review applicable to default proceedings, were not proven by clear and convincing evidence. The hearing board requested the presentation of additional evidence and a supplemental hearing in accordance with the procedure outlined in footnote 2 in People v. Rice, 708 P.2d 785, 786 n. 2 (Colo.1985). ¹

II. Richards II

Like Richards I, the complaint in Richards II was constructively served under C.R.C.P. 241.25(b), after repeated attempts to effect personal service were unsuccessful. On December 1, 1986, a default was entered by the hearing board after the respondent failed to file an answer or other responsive pleading to the complaint and failed to appear at any of the proceedings before the hearing board.

The Richards II complaint contained two counts that alleged professional misconduct by the respondent. Count I of the complaint alleged that the respondent had precipitously withdrawn money for his fee in a malpractice case from the estate of his incapacitated client, causing the estate to suffer a loss of $2,099.58 in early withdrawal penalties. Judge Richard Hart, the judge responsible for supervising the estate and the complainant in this case, tried unsuccessfully to contact the respondent to seek an explanation of Richards' actions or to obtain reimbursement to the estate for the withdrawal penalty. The disciplinary prosecutor asserted that Richards' conduct violated C.R.C.P. 241.6 and the following disciplinary rules: DR 1-102(A)(1) (violation of a disciplinary rule), DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law), DR 7-101(A)(3) (damage to a client during the professional relationship by concealment or failure to disclose), and DR 9-102(B)(3) (duty to maintain complete records of all client funds and to properly account to the client). Count II maintains that the respondent failed to file a notification of his change of address with the Clerk of the Supreme Court in violation of C.R.C.P. 227.

After the default hearing, which followed the entry of default in Richards II, the hearing board dismissed the alleged violation of DR 7-101(A)(3) in Count I without prejudice and concluded that the allegations in Count I of the complaint were not proven by clear and convincing evidence. It offered the prosecutor an opportunity to present additional evidence in a supplemental evidentiary hearing under People v. Rice.

The board consolidated both Richards I and Richards II and held the supplemental hearing on December 17, 1986. At the hearing, the board granted the prosecutor's request to amend Count I of Richards I and added DR 6-101(A)(3) (neglect of a legal matter) as a charge. Based on the evidence and arguments of the disciplinary prosecutor, it concluded that the alleged violations of DR 6-101(A)(3) and DR 7-101(A)(2) in Count I of Richards I were proven by clear and convincing evidence. Count I of Richards II was dismissed without prejudice when the disciplinary prosecutor declined to present additional evidence to substantiate the charges under DR 9-102(B)(3). ²

In dismissing Count I of Richards II, the hearing board apparently concluded that the factual allegations admitted by the respondent's default did not prove a violation of DR 9-102(B)(3). In our view, the allegations in Count I of the complaint in Richards II were admitted by the default, and sufficient facts were provided to the hearing board in the pleadings and the investigator's report to support the charges of unprofessional conduct and the violations of DR 9-102(B)(3). ³

The procedural issue relating to the entry of default and the requirement for a Rice hearing to provide additional evidence after the hearing board concluded that the allegations in the disciplinary complaint were not proven by clear and convincing evidence was the same in both Richards I and Richards II. Viewing the record, the allegations, and the information before the hearing board, no further evidence was required to prove the allegations in the complaint and to establish the violations asserted by the disciplinary prosecutor in Richards I and Richards II.

In People v. Rice, 708 P.2d at 786 n. 2, we stated that the hearing board could not dismiss allegations of a disciplinary complaint without giving the complainant notice and the opportunity to introduce evidence in support of the allegations. In our view, when a default is entered against the respondent, the board can consider only the sufficiency of the charges in the complaint in deciding whether a Rice hearing is appropriate. If the charges are sufficient under C.R.C.P. 12 or 56(c), the board must deem all of the material allegations of the disciplinary complaint to be admitted by the respondent's default. If a charge is insufficient or if the respondent establishes manifest injustice of the type specified in C.R.C.P. 55(c), 60(b), or 241.13(b), the board may require that the complaint be amended or that supporting evidence be produced. ⁴ A charge may only be dismissed if, after the Rice hearing, there is no issue of fact and judgment should be entered for the respondent as a matter of law. See ...