People v. Weisbard, 99PDJ072.

• Decision Date: 22 August 2000
• Docket Number: No. 99PDJ072.,99PDJ072.
• Parties: The PEOPLE of the State Of Colorado, Complainant, v. Robert J. WEISBARD, Respondent.
• Court: Colorado Supreme Court

35 P.3d 498

The PEOPLE of the State Of Colorado, Complainant, v. Robert J. WEISBARD, Respondent.

No. 99PDJ072.

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

August 22, 2000.

Opinion by Presiding Disciplinary Judge ROGER L. KEITHLEY and

Hearing Board members, B. LaRAE ORULLIAN, a representative of the public, and HELEN R. STONE, a member of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: EIGHTEEN MONTH SUSPENSION

A sanctions hearing was held on January 18, 2000, before the Presiding Disciplinary Judge ("PDJ") and two hearing board members, B. LaRae Orullian and Helen R. Stone. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). The respondent Robert J. Weisbard ("Weisbard") appeared pro se, extensively cross-examined the People's witnesses and testified on his own behalf.

I. MOTION TO SET ASIDE DEFAULT

Upon the People's motion, on September 22, 1999, the PDJ granted default on all of the charges set forth above with the exception of the following: the alleged violation of Colo. RPC 1.3 in claims two and seven, the alleged violation of Colo. RPC 1.4(a) in claim two, and the alleged violation of Colo. RPC 8.4(c) in claim eight. On March 3, 2000, more than a month after the sanctions hearing, Weisbard retained counsel, moved to set aside the default on the basis of excusable neglect and sought leave to file an Answer. Presentation of testimony and oral argument on the motion was held on May 22, 2000. Weisbard argued that his temporary inability to cope with the disciplinary process constituted excusable neglect. He alleged that in August or September 1998, he began suffering personal and emotional problems, including significant marital problems. Weisbard's marital therapist identified symptoms of depression which, in Weisbard's view, contributed to his progression into disregard of his responsibilities in the disciplinary process. Weisbard found that he was unable to cope with his disciplinary difficulties, and hoped that the problems would disappear. The People argued that Weisbard has failed to establish the level of excusable neglect required to set aside the default, and that doing so would be inequitable since a full hearing has already transpired and that the witnesses who dedicated their time to testify would be prejudiced.

C.R.C.P. 251.15(b) provides:

[A] respondent who fails to file a timely answer may, upon a showing that the failure to answer was the result of mistake, inadvertence, surprise, or excusable neglect, obtain leave of the Presiding Disciplinary Judge to file an answer.

The motion [to set aside default judgment] is . . . addressed to the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion. See C.R.C.P. 55(c); Sumler v. District Court, 889 P.2d 50, 56 (Colo.1995). The trial court may set aside an entry of default for "good cause shown," and if judgment has entered on the default, the court may set it aside in accordance with C.R.C.P. 60(b). Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348, 1351 (Colo.App. 1997). In the context of disciplinary proceedings, C.R.C.P. 251.15(b) should be read together with C.R.C.P. 55(c). See C.R.C.P. 251.18(d). A motion to set aside a default under C.R.C.P 55(c) and a motion to vacate a judgment under C.R.C.P. 60(b) on the basis of excusable neglect are sufficiently analogous to justify application of the same standards to either motion. Dunton, 942 P.2d at 1351. In considering either type of motion, the trial court should base its decision on the following three criteria: (1) whether the neglect that resulted in the entry of judgment by default was excusable; (2) whether the moving party has alleged a meritorious defense, and (3) whether relief from the challenged order would be consistent with considerations of equity. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo.1986). The failure of the movant to satisfy any one of them justifies the denial of the motion. Id. The party seeking relief has the burden of establishing grounds for relief by clear, strong, and satisfactory proof. Dunton, 942 P.2d at 1351.

In general, excusable neglect involves unforeseen circumstances which would cause a reasonably prudent person to overlook a required act in the performance of some responsibility. Colorado Dept. of Public Health and Environment v. Caulk, 969 P.2d 804, 809 (Colo.App.1998). Failure to act because of carelessness and negligence is not excusable neglect. Id., citing Messler v. Phillips, 867 P.2d 128, 136 (Colo.App.1993)

.

Weisbard's allegation that beginning in August or September 1998 he began to have personal problems and suffer from depression is not sufficient to constitute "excusable neglect" under the precedent set forth above. The court file indicates that Weisbard acknowledged receipt of service of the Complaint and Citation in this matter on May 28, 1999, and that the Motion for Default was filed and mailed to Weisbard on July 13, 1999. Weisbard does not dispute that he had notice of the Motion for Default. The Order entering default issued on September 22, 1999. Weisbard thus had several months in which to respond to complainant's Motion. Similarly, Weisbard had several months between the time the Motion for Default was granted and the sanctions hearing on January 18, 2000 to file a motion to reconsider. Further, when he appeared pro se at the hearing, he did not request that the PDJ set aside the default. Therefore, Weisbard had ample opportunity before and after the entry of default to address the issue, and made no attempt to do so at the hearing. Rather, he waited more than a month following the sanctions hearing.

Further, Weisbard's personal and emotional problems did not rise to such a level as to prevent Weisbard from practicing law during the relevant time period. He was able to function concerning other matters and was therefore not so incapacitated as to make him unable, if he had so chosen, to overcome his difficulties responding to the disciplinary matters. There is surely no respondent attorney who finds the disciplinary process enjoyable; it is undoubtedly emotionally challenging to each attorney involved. Were the PDJ to grant the within motion based on the evidence and pleadings presented, any attorney who could not bring himself or herself to face the proceedings would not be required to fulfill the affirmative obligation to do so.

Weisbard's argument to set aside the default entered is inadequate to establish excusable neglect. In the Matter of Alfred J. Turk, III, 267 Ga. 30, 471 S.E.2d 842, 844 (1996)(holding that the respondent attorney's failure to file an answer to a disciplinary complaint was a result of personal problems, numerous office moves, improper calendaring, misunderstanding of the bar rules, and preoccupation with a prior disciplinary proceeding did not constitute "excusable neglect" which would warrant the setting aside of a default judgment against him). The Turk court noted that the respondent attorney's moving to set aside the default in the disciplinary proceeding evidenced conduct "similar to and consistent with his previous violations involving his clients." Id. at 844. The same is true here. Weisbard delayed in addressing his responsibilities towards the disciplinary process the same way he delayed in responding to clients' demands for the return of their funds and their files. An attorney has an affirmative duty to cooperate in the disciplinary process and if they fail to comply with this imperative, they must justify their failure. In the Disciplinary Matter Involving Robert M. Beconovich, 884 P.2d 1080, 1083 (Alaska 1994)(refusing to set aside order deeming complaint admitted where attorney failed to file an answer). Having found that Weisbard has failed to establish excusable neglect, the PDJ need not complete the analysis set forth in Buckmiller, supra, as to whether Weisbard has raised a meritorious defense and whether relief from the entry of default would be consistent with considerations of equity. Accordingly, Weisbard's Motion to Set Aside Entry of Default and his request for leave to file an Answer is denied.

At the sanctions hearing, the People's Exhibits 1 through 3 and Respondent's Exhibit A were offered and admitted into evidence. The PDJ and Hearing Board heard testimony from Fara S. Mawhinney and Beverly Kay Hammons. The PDJ and Hearing Board considered argument of the parties, the facts established by the entry of default, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence:

II. FINDINGS OF FACT

Robert J. Weisbard has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 27, 1988, and is registered upon the official records, attorney registration number 18038. Weisbard is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Background

Weisbard and Fara Schneider Mawhinney ("Mawhinney") formed a limited liability company (the "LLC") in 1995. The original intent of the parties in creating the LLC was to share advertising and office expenses, but not clients or client-generated income. In January 1997, Mawhinney and Weisbard entered into a verbal agreement that the proceeds from all matters accepted on an hourly basis by the LLC subsequent to that date would be shared between the two attorneys. In June 1998, a dispute arose over the proceeds of a settlement resulting from a matter involving two clients which Mawhinney handled on a contingent fee basis. After paying the LLC's paralegal a bonus of $3,500, Mawhinney deposited the remainder of the $20,000 contingent fee into a separate account rather than the LLC's account. Mawhinney believed the settlement proceeds should not be shared with Weisbard because the matter did not fall within...