People v. Wollrab, 062619 COPDJ, 18PDJ068
|Opinion Judge:||WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGE|
|Party Name:||THE PEOPLE OF THE STATE OF COLORADO Complainant v. JAMES C. WOLLRAB JR., #01906|
|Attorney:||Jacob M. Vos Office of Attorney Regulation Counsel Troy R. Rackham Counsel for Respondent David J. Driscoll William H. Levis Hearing Board Members David J. Driscoll William H. Levis Hearing Board Members|
|Judge Panel:||DAVID J. DRISCOLL, WILLIAM H. LEVIS HEARING BOARD MEMBERS|
|Case Date:||June 26, 2019|
|Court:||Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado|
Jacob M. Vos Office of Attorney Regulation Counsel
Troy R. Rackham Counsel for Respondent
David J. Driscoll William H. Levis Hearing Board Members
David J. Driscoll William H. Levis Hearing Board Members
OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(b)
WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGE
James C. Wollrab Jr. ("Respondent") was hired in 2017 to represent a client in a personal injury action. At the time, Respondent knew there was a risk that the stay might be lifted on his suspension in a separate disciplinary matter under appeal. He thus found another lawyer, Richard Banta, who was willing to assist him with the personal injury case. While his law license was still active, Respondent filed a complaint in the personal injury action using his own electronic filing account but under Banta's electronic signature alone. Clear and convincing evidence does not support the charge that Respondent violated Colo. RPC 8.4(c) by misrepresenting to the court that Banta had authorized him to file the complaint with Banta's signature. But clear and convincing evidence does establish that Respondent violated Colo. RPC 3.3(a)(1) by attaching Banta's signature to the complaint even though Banta had never seen the complaint, thereby falsely representing that Banta had satisfied his duties under C.R.C.P. 11. Respondent's misconduct warrants a suspension of seven months.
I. PROCEDURAL HISTORY
On October 29, 2018, Jacob M. Vos, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the PDJ"), alleging that Respondent violated Colo. RPC 3.3(a)(1) and 8.4(c). Respondent filed an answer through his counsel, Troy R. Rackham, on November 27, 2018.
On May 9, 2019, a Hearing Board comprising the PDJ and lawyers David J. Driscoll and William H. Levis held a hearing under C.R.C.P. 251.18. Vos represented the People, and Respondent appeared with his counsel. The Hearing Board considered the stipulated facts, stipulated exhibits S1-S23 and S25-S26, 1 the People's exhibits A, B, J, N, and O, Respondent's exhibits 4 and 11, 2 and the testimony of Respondent, Richard Banta, Katie Marsden-Hannah, and Christopher John Roney. The Hearing Board also considered a written trial stipulation and written closing arguments filed by the parties a week after the hearing.
II. FACTUAL FINDINGS AND LEGAL CLAIMS
Respondent was admitted to practice law in Colorado on April 26, 1972, under attorney registration number 01906. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.
Findings of Fact
The Hearing Board finds the following facts have been established by clear and convincing evidence.4
Christopher John Roney, a marriage counselor in the Boulder area, was injured when his head struck a bicycle repair stand on Boulder County property in November 2015. The first law firm he contacted about the accident adjudged the case not worth its time. In 2017 Roney met Respondent, a Boulder attorney, who expressed interest in taking the case. Roney and Respondent entered into a contingent fee agreement for representation in a personal injury action on September 28, 2017.6 Respondent spent time investigating the facts of the case and relevant law.
In May 2017, a hearing board had ordered Respondent's license to be suspended as a sanction for disciplinary violations, but the suspension was stayed pending his appeal to the Colorado Supreme Court.7 By August 2017, Respondent knew that the People had concerns about his compliance with the practice monitoring requirements of the stay. As such, Respondent believed he should plan for the possibility that the stay on his suspension could be lifted.
Respondent had been socially acquainted for decades with Richard Banta, a Denver litigator. In June 2016, the two men had jointly filed a complaint in Boulder County District Court.8 In summer or fall 2017, Respondent and Banta discussed working together on additional cases, including the Roney case, in part because of the possibility that the stay on Respondent's suspension could be lifted.9
Roney was aware at the time he hired Respondent that there was a chance his license would be suspended. Roney engaged Respondent nevertheless, on the understanding that Banta would take over the case if Respondent's suspension was activated.
Filing of Complaint
Respondent wanted to file the complaint in Roney's case no later than November 26, 2017, to avoid expiry of the statute of limitations.10 That afternoon, Respondent, Roney, and Respondent's assistant, Katie Marsden-Hannah, gathered in Respondent's office to finish drafting the complaint, which named as defendants Boulder County and the manufacturer of the bike repair stand. At 10:11 p.m., Respondent filed the complaint using his own electronic filing account.11 The caption lists Banta as the sole attorney, and Banta's purported electronic signature is the sole signature on the complaint.12 Banta, however, was not present during the preparation of the complaint on November 26 and did not personally affix his signature to the complaint.13 Witness testimony leaves no doubt that Banta did not read the complaint before Respondent filed it.14 Nor was there any evidence that Banta agreed to be listed as the sole attorney on the complaint. Respondent testified that he elected to file the complaint in Banta's name alone to protect Roney's rights, 15 and to avoid the need for a substitution of counsel if his suspension was later activated.
Whether Respondent communicated with Banta on November 26 about the filing of the Roney complaint and the contents of any such communication are at the heart of the People's claim that Respondent misrepresented that he had obtained authorization to file the complaint in Banta's name. The witnesses provided conflicting testimony about whether Banta authorized the use of his name and signature on the complaint. We consider in turn each witness's testimony on this critical point.
Respondent remembers talking to Banta about the complaint on November 26 via speakerphone while he, Roney, and Marsden-Hannah prepared the complaint together. Respondent said Banta was "on board" with the filing and that Banta authorized him to file it under Banta's signature. This testimony is arguably in conflict with a May 2018 response to the People's request for investigation, in which Respondent's counsel concedes that Respondent lacked express consent to list Banta in the complaint's caption.16 We are hesitant to rely on this document, which was written before Respondent's counsel had fully investigated the facts of the case. But nor do we rely on Respondent's own testimony, as we do not deem him a credible witness. In general, he demonstrated significant forgetfulness and confusion on the witness stand. Further, he repeatedly contradicted his own testimony. Thus, we give very little weight to Respondent's testimony.
Marsden-Hannah also testified that Respondent and Banta discussed the complaint in detail on November 26. She remembers that Banta called Respondent to confirm that the complaint would be filed on time. She said the men specifically talked about Banta's name appearing on the complaint. In fact, she averred, Banta sent over his signature to Respondent's office by email or by fax. The parties' trial stipulations, however, provide that the People requested all correspondence between Banta and Respondent during the relevant time period, but Respondent never produced any correspondence matching Marsden-Hannah's description or, indeed, any correspondence between the two men on that day.
The Hearing Board cannot credit much of Marsden-Hannah's testimony. She said she has known Respondent since she was a small child and she considers him a "good friend." Marsden-Hannah's manner and demeanor on the witness stand and in the courtroom strongly suggested that she is deeply loyal to Respondent and that she felt motivated to portray him favorably. Further, her assertion that Banta faxed or emailed his electronic signature to Respondent's office is unsupported by evidence and appeared to us to be an outright fabrication.
For his part, Roney recalls listening to a speakerphone discussion between Respondent and Banta on November 26. According to Roney, Respondent explained that they planned to electronically file the complaint, Respondent asked Banta if he had "any input," and Banta agreed to serve as lead counsel on the case. Roney's...
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