People v. Smith

• Citation: 74 P.3d 566
• Decision Date: 13 August 2003
• Docket Number: No. 02PDJ084.,02PDJ084.
• Parties: The PEOPLE of The State of Colorado, Complainant, v. Matthew S. SMITH, Respondent.
• Court: Supreme Court of Colorado

74 P.3d 566

The PEOPLE of The State of Colorado, Complainant, v. Matthew S. SMITH, Respondent.

No. 02PDJ084.

Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.

August 13, 2003.

Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board Members ROBERT A. MILLMAN and MARILYN L. ROBERTSON, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: NINE MONTH SUSPENSION

A trial in this matter was held on February 27 and 28, 2003, before a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley and two Hearing Board Members, Robert A. Millman and Marilyn L. Robertson, both members of the bar. Kim E. Ikeler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Gary D. Fielder represented respondent Matthew S. Smith ("Smith"), who was also present.

At the trial, the People's exhibits 1 through 4 and 6 through 37, and Smith's exhibit A were admitted into evidence. Jennifer Reynolds, Roy Reynolds, Jr., Jeanette Ross, and Matthew Smith testified on behalf of the People. Smith testified on his own behalf. The Hearing Board considered the testimony of the witnesses and the exhibits admitted into evidence, the Joint Stipulation of Facts submitted by the parties, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Matthew S. Smith has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court on May 13, 1993, and is registered upon the official records of the Court, attorney registration number 22681. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

During the relevant time period from 1999 to 2001, Smith was a sole practitioner. He handled a large-volume practice with approximately half of the practice devoted to domestic law. Jeanette Ross ("Ross") worked as Smith's legal assistant from 1996 to 2001. During the period of her employment, Smith put measures in place to assure that all communications, oral and written were brought to his attention. Ross was required to receive, open and sort mail and record telephone messages. Ross would review incoming mail and place matters requiring prompt attention on Smith's desk with the client file. Less critical communication was placed in sorted stacks for Smith's review. Smith would then review his mail or telephone messages and instruct Ross what action to take on a given case. It was Smith's practice to review all court orders. Smith did not utilize computer software to track deadlines in cases. Smith and Ross did, however, manually record dates on two calendars. In addition, Smith allowed Ross to prepare form pleadings, prepare and send correspondence, docket court appearances, communicate with clients by phone, and handle settings with the court. Smith periodically reviewed case files to determine if cases were properly advancing.

Smith did not give Ross permission to sign his name to pleadings. Ross was permitted to write checks on Smith's operating account and utilize his signature stamp on operating account checks without prior authorization from Smith. Ross testified that she signed Smith's name to routine pleadings. Ross's testimony that Smith permitted her to sign his name to pleadings was not credible.

Roy and Jennifer Reynolds were married in 1995. In late 1998, Roy Reynolds, Jr. ("Reynolds") retained Smith to represent him in an uncontested divorce and paid him $800. Reynolds' address and phone numbers were noted on the client intake sheet.¹

On January 27, 1999, Smith filed Reynolds' Petition for Dissolution of Marriage together with a Summons for Dissolution of Marriage or Legal Separation and Temporary Injunction in Arapahoe County District Court, Case No. 99DR0234. On the same day, the court issued a form order entitled "Domestic Case Management and Delay Reduction Order" requiring that Smith take specified actions by a date certain. The order required Smith to provide a copy to Mrs. Reynolds. Although Smith did not see the order, he was fully aware of the routine procedure in uncontested divorces and knew what deadlines were imposed by the court as a matter of course. Smith did not set a Temporary Orders Hearing or engage in the pre-hearing conference as required by the court's order. Smith knew that Mrs. Reynolds was pregnant and he felt it necessary to wait for the birth of the child before requesting that the court enter child support orders. Smith did not file a plan for alternative dispute resolution by the stated deadline due to his unconfirmed belief Reynolds' desired to forestall the divorce.

Thereafter, Mrs. Reynolds, who resided in Kansas, signed a Waiver and Acceptance of Service and Affidavit with Respect to Financial Affairs prepared by Smith, and returned both documents to Smith's office. Mrs. Reynolds did not obtain counsel at that time.

Between January and May, Smith and Reynolds were in communication. In May 1999, Smith drafted a Settlement Agreement and gave it to Reynolds to review. Reynolds took the Separation Agreement prepared by Smith to Kansas for Mrs. Reynolds to sign, and she signed it on June 16, 1999, had it notarized and gave it back to Reynolds. Reynolds gave it back to Ross shortly thereafter. Reynolds failed to sign it. Smith was unaware that Reynolds had returned the Separation Agreement to his office.

On May 20, 1999, Ross filed a Notice to Set regarding a hearing on Permanent Orders. Ross affixed Smith's signature to the Notice to Set. Thereafter, she neglected to call the court at the appointed time to set the hearing.

On June 7, 1999, the court issued a form Status Order notifying the parties that the Reynolds case would be dismissed unless Smith took certain specific actions. Smith did not see the Status Order, did not take any of the actions the court directed him to take, and did not provide a copy of the Order to the parties. Smith believed that the case was proceeding on course and that he was waiting for a return of the signed Separation Agreement by the parties.

Ross, in an effort to cover her failure to follow through on the Notice to Set, filed another Notice to Set on June 10, 1999. Smith signed the notice but did not confirm with Ross that she set the hearing. A hearing was not set.

Ross attempted to contact Reynolds but was unable to do so. Smith told Ross to send a letter to Reynolds and advise him that the case may be dismissed if the Separation Agreement was not filed. Smith believed Ross did so, but did not check the file to confirm that she had. Ross did not send a letter to Reynolds.

During July and August 1999, Reynolds attempted to contact Smith several times but was able to only speak to Ross. The calls were not routed to Smith, and Smith was not advised that Reynolds was attempting to reach him.

On August 11, 1999, the court dismissed the case on the grounds that the parties had not complied with the court's June 7, 1999 Status Order and required Smith to provide a copy of the order to the parties. Smith did not see the order and therefore did not comply with it. Smith continued to believe that Reynolds had lost interest in pursuing the divorce.

In October, Ross contacted the court to set the matter for a Permanent Orders hearing. It was at this point that she discovered the case had been dismissed. She determined to conceal this fact from Smith. On October 25, 1999, without Smith's knowledge or approval, Ross filed a Notice to Set Uncontested Permanent Orders, an Affidavit With Respect to Financial Affairs and the Separation Agreement both of which Mrs. Reynolds had signed on June 16, 1999. Ross hoped that the court would reopen the case. Nothing further occurred in Case No. 99DR0234.

In November 1999, Reynolds tried to reconcile with his wife, and she declined.

In early 2000, due to the lack of communication with Smith, Reynolds came to Smith's office to inquire about the status of his case. Reynolds never spoke directly with Smith; rather, he believed at the time that Ross was his lawyer. Reynolds confronted Ross with the court order dismissing the case in August 1999 which he first saw when he reviewed the court file at the courthouse. Ross told Reynolds the court had lost the paperwork and it would be necessary to file a new case. Ross did not tell Smith about Reynolds' visit to the office.

On March 6, 2000, without Smith's knowledge or approval, Ross commenced a new action on behalf of Reynolds by filing a Summons for Dissolution of Marriage and Temporary Injunction in Arapahoe County District Court under Case No. 00DR0782. Ross affixed Smith's signature to the documents. Ross falsely notarized a Waiver and Acceptance of Service and affixed Mrs. Reynolds' signature without her knowledge or authority.

The next day, without informing Smith, Ross sent a letter to Reynolds enclosing financial affidavits, a Separation Agreement and Child Support Worksheets. After receiving these documents, Reynolds came to the office and was angry with Ross. Ross did not inform Smith that Reynolds had visited the office. Smith believed the case was closed because Reynolds had not signed the Separation Agreement. Smith had no communication with Reynolds in 2000.

On March 20, 2000, Ross filed a Petition for Dissolution of Marriage and affixed Smith's name to the pleading.

In July 2000, Mrs. Reynolds believed the divorce had been finalized. She contacted Smith's office and spoke to Ross numerous times and to Smith once, asking for a copy of the decree. Ross informed her she would inquire into the status of the case and get back to her. Later Ross told Mrs. Reynolds she was not sure why there was no decree and that there was some confusion in Smith's office. After receiving a call from Mrs. Reynolds' father, Smith asked Ross about the status of the case. Ross said that Reynolds came in to sign the...