People v. Vigil, No. 89SA6
| Decision Date | 18 September 1989 |
| Docket Number | No. 89SA6 |
| Citation | 779 P.2d 372 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Russell Edward VIGIL, Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Counsel, and Susan L. Fralick, Asst. Disciplinary Counsel, Denver, for complainant.
James M. DeRose, Denver, for attorney-respondent.
The disciplinary counsel filed two complaints with the Colorado Supreme Court Grievance Committee alleging professional misconduct by the respondent, Russell Edward Vigil. After a hearing in which the two proceedings were consolidated, a hearing board (board) of the Supreme Court Grievance Committee found that respondent failed to answer post-judgment interrogatories, neglected a client's affairs, intentionally violated the Rules of Civil Procedure, and engaged in an improper ex parte communication with a judge.
The board concluded that respondent's conduct violated DR1-102(A)(6) (conduct that adversely reflects on the fitness to practice law); DR6-101(A)(3) (neglect of a legal matter); DR7-106(C)(7) (intentional or habitual violation of rules of procedure or evidence); and DR7-110(B) (ex parte communication with a judge).
The board recommended a private censure as the appropriate discipline. The hearing panel rejected that recommendation on the grounds that respondent's misconduct was serious and his disciplinary history extensive. 1 We conclude that a public censure is the appropriate discipline and so reject the recommendation of the board and adopt that of the hearing panel.
We summarize the facts from the findings of fact and conclusions of the board. The facts were established by clear and convincing evidence presented in proceedings before the board.
Respondent was admitted to the bar of this court on May 17, 1976. As part of an informal separation agreement between him and his wife, he agreed to pay the rent due on a house she rented from Elmer J. Knapp. Respondent assured Knapp that he would be responsible for the rental payments in the amount of $750 per month.
In May 1984, Knapp filed suit against respondent and his wife. Both were personally served; neither filed an answer, and default judgment was entered against respondent in the amount of $1,875 on May 31, 1984.
Post-judgment interrogatories were served on respondent by leaving them with his legal assistant at his office on February 21, 1985. Respondent knowingly failed to answer the interrogatories. Subsequently, he paid the judgment in full.
In the second grievance case, National Account Systems (NAS), as the assignee of Mercy Medical Center, filed a lawsuit in July 1983, against Lillian and George Sandoval who retained respondent to represent them. In August 1983, NAS, through its attorney, Linda Petrino, filed a motion for default judgment and a proposed form of order which was signed by Judge Brooks on August 25, 1983. NAS failed to give respondent, on behalf of the Sandovals, a three-day notice of a hearing on the motion as required by C.R.C.P. 55(b)(2).
Several weeks later, a writ of garnishment, initiated by NAS, was served on the Sandovals' bank which froze the account. Upon receiving this information on October 26, 1983, respondent contacted Judge Brooks who advised him to call Petrino, counsel for NAS. The following day, without having contacted Petrino and without filing a written motion, respondent presented Judge Brooks with an order setting aside the default judgment. 2 The court signed the order which provided that the default judgment would be vacated, required NAS to return $1,100 it had obtained from the Sandovals, and ordered NAS to cease and desist from any further efforts to collect the judgment. The order also required NAS to compensate the Sandovals for any damages suffered as a result of the garnishment, and scheduled a hearing on the amount of those damages for November 2, 1983.
On October 28, 1983, Judge Brooks held a hearing at which respondent and Petrino were present. While there was extensive argument as to whether the original default judgment was properly entered and whether it should have been vacated without notice to Petrino, there was no dispute that an ex parte communication between respondent and the judge had taken place. 3
On November 1, 1983, the trial court ruled that the default judgment was void, ordered the Sandovals' bank to restore the funds to their account, prohibited NAS from any further collection efforts, and required respondent to file an answer within twenty days.
Respondent filed an answer, a counterclaim in the amount of $500,000 for wrongful garnishment, and a third-party complaint against Capital Life Insurance Company (Capital). The third-party complaint alleged that Capital was responsible for paying the medical bill which was the subject of NAS's complaint.
NAS then retained Randall Herrick-Stare to represent it in connection with the counterclaim. On March 3, 1984, he filed a motion for a more definite statement. Respondent failed to respond to this motion. On June 14, 1984, the court granted the motion and ordered respondent to file a more definite statement within ten days. Upon his failure to do so, Herrick-Stare moved to strike the counterclaim for failure to comply with the court's order. Respondent did not file a response to the motion to strike, and accordingly, the court ordered the counterclaim stricken on August 17, 1984.
Six days later, respondent moved to reinstate the counterclaim. After a hearing on September 21, 1984, the court granted the motion and gave respondent ten days to file the more definite statement. Because of his failure to do so, another motion to dismiss the counterclaim was filed. Respondent ignored the motion and it was granted on December 12, 1984.
In January 1985, NAS filed a motion for summary judgment on the complaint. Respondent failed to respond to the motion and it was granted on February 5, 1985. Respondent's brief in opposition to the motion was filed on February 6, and on February 7, the order granting summary judgment was set aside.
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Colorado Supreme Court Grievance Committee v. District Court, City and County of Denver, Colo.
...Court is not bound by the recommendation, however, and it ultimately decides what discipline, if any, is appropriate. People v. Vigil, 779 P.2d 372, 375 (Colo.1989); People v. Davis, 620 P.2d 725, 726 (Colo.1980); see also People v. Shipp, 793 P.2d 574, 575 (Colo.1990) (holding that recomme......
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People v. Vigil, 96SA361
...received a public censure in 1989 for failing to answer postjudgment interrogatories and neglecting a legal matter. People v. Vigil, 779 P.2d 372, 374-75 (Colo.1989). In addition, the respondent had a dishonest or selfish motive, ABA Standards 9.22(b); engaged in a pattern of misconduct, id......
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Ex Parte Communications With a Tribunal: from Both Sides
...affect outcome of proceedings and causes serious injury to party or significant interference with outcome of proceeding); People v. Vigil, 779 P.2d 372, (Colo. 1989) (private censure for conduct, including obtaining ex parte order vacating default, mitigated by fact that communication "conc......