Wright v. District Court In and For Gunnison County, Seventh Judicial Dist., 86SA364

• Decision Date: 20 January 1987
• Docket Number: No. 86SA364,86SA364
• Citation: 731 P.2d 661
• Parties: Robert E. WRIGHT, Jr., Russell, Angelo and Wright, P.C., Petitioners, v. DISTRICT COURT In and For the COUNTY OF GUNNISON, SEVENTH JUDICIAL DISTRICT, State of Colorado, and the Honorable Thomas A. Goldsmith, District Judge, Respondents.
• Court: Colorado Supreme Court

Page 661

731 P.2d 661

Robert E. WRIGHT, Jr., Russell, Angelo and Wright, P.C., Petitioners, v. DISTRICT COURT In and For the COUNTY OF GUNNISON, SEVENTH

JUDICIAL DISTRICT, State of Colorado, and the

Honorable Thomas A. Goldsmith, District

Judge, Respondents.

No. 86SA364.

Supreme Court of Colorado,

En Banc.

Jan. 20, 1987.

Cooper & Kelley, P.C., Paul D. Cooper, Elizabeth A. Starrs, Charles R. Ledbetter, Denver, for petitioners.

Thomas A. Goldsmith, Judge, Gunnison, pro se.

ERICKSON, Justice.

Pursuant to C.A.R. 21, a petition was filed in this court for a writ of mandamus to require Judge Thomas A. Goldsmith, a district judge in the Seventh Judicial District, to disqualify himself in a malpractice case against the petitioners. We issued a rule to show cause and now make that rule absolute.

Petitioner Robert E. Wright, Jr. is a lawyer associated with the professional corporation Russell, Angelo and Wright, P.C. He is a stockholder and voting member of the professional corporation. Harrison Russell and Wyatt B. Angelo are also shareholders and voting members practicing with the law firm. Thomas A. Goldsmith is a district judge on the District Court in and for the County of Gunnison, Seventh Judicial District. Judge Goldsmith tried Garland v. Teocalli Associates, Inc., 84CV57 and 84CV82, District Court, Gunnison County, Colorado, which included a claim of malpractice against Russell and Russell, Angelo and Wright, P.C.

In Garland v. Teocalli Associates, Inc., at the close of the plaintiff's case, findings and conclusions in favor of the defendants pursuant to rules 41(b)(1) and 52(a) were entered by the court. In the findings the court stated that Wright and the plaintiff, Gary Garland, were close friends, and detailed the long history that Russell had in representing the Garland family. The plaintiff's claims primarily involved his transactions with a development firm that had undertaken to build a hotel and sell all of its rooms as condominiums. When the project failed, Gary Garland, who had the right to sell the condominium units, claimed that he had been denied benefits guaranteed to him as a real estate broker under a contract that he had with the developers. He also asserted that he entered into a contractual relationship with the developers because of Russell. He claimed that Russell represented the developers and did not protect his interests or advise him to retain independent counsel. Garland alleged that Russell undertook to represent him and the developers at the same time, and that there were serious conflicts of interest. He asserted that his financial losses resulted from Russell's decision to abandon Garland's interest in the condominium project and to support the developers.

After reviewing the contract, the court concluded that the developers had the right to terminate Garland and did terminate him in accordance with the provisions of the contract. Accordingly, the court concluded that Garland was not entitled to compensatory or punitive damages against Russell, but declared:

It has long been recognized in Colorado that attorneys must act with utmost good faith toward and solely for the benefit of those who entrust their interests to them. For breach of this duty attorneys may be held liable in damages in appropriate circumstances. Howard v. Hester, Colo. 255, 338 P.2d 106 (1959). For the reasons stated below this court finds that the lawyer defendants, and particularly Russell, breached their duty of utmost good faith to plaintiff but that such breach did not cause compensable damages to him.

The court concluded that the behavior of the lawyer defendants toward the plaintiff was substandard and violated the Code of Professional Responsibility and stated:

The court appreciates the distress and discomfort that plaintiff has experienced. He had a right to reach for the brass ring as he did and to expect that his lawyers would not interfere in his efforts to grasp it. Their misconduct interfered with his expectations and he has a right to complain about it even if it did not cause him compensable damages. This, however, is not the proper forum within which to do that. The Colorado Supreme Court has the sole and exclusive authority to regulate and discipline lawyers for their misconduct and it is that court that can and should provide the plaintiff with the relief he desires and deserves.

The trial judge subsequently filed a grievance with the Colorado Supreme Court Grievance Committee and recommended "harsh discipline" for Russell. Subsequently, a malpractice claim was filed by Michael V. Hotz in the district court of Gunnison County against Robert E. Wright, Jr. and the firm of Russell, Angelo and Wright, P.C., as well as other lawyers. Paul D. Cooper, who appeared on behalf of Russell and the law firm in the Garland case and represented Russell in the proceedings before the grievance committee, was also counsel for Wright and the law firm in the Hotz case. Cooper wrote Judge Goldsmith on June 4, 1986, and requested that Judge Goldsmith recuse himself in the Hotz case because of his opinion in the Garland case. Judge Goldsmith refused to recuse himself, and advised counsel that a judge should not disqualify himself unless his partiality may be reasonably questioned.

Thereafter a formal motion to disqualify Judge Goldsmith was filed pursuant to C.R.C.P. 97. The motion was supported by affidavits of Harrison F. Russell, Robert E. Wright, Jr., and Wyatt B. Angelo. In denying the motion for disqualification, Judge Goldsmith declared that the opinion in the Garland case involved Harrison Russell and did not provide Robert Wright with a basis for disqualification.

In People v. Garcia, 698 P.2d 801, 806 (Colo.1985), we affirmed an order by the trial judge disqualifying the entire district attorney's office because a deputy district attorney was an essential witness, and said:

The Code of Professional Responsibility would require a private law firm to withdraw if an attorney associated with the firm was required to withdraw because of an ethical rule. See Code of Professional Responsibility DR 5-105(D). See, e.g., Armstrong v. McAlpin, 606 F.2d 28 (2d Cir.1979); Comden v. Superior Court, 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971 (1978).

The rule of imputed disqualification recognizes the close personal and financial relationship that exists between an attorney and other members of the law firm. That relationship not only prevents members of the firm from representing conflicting interests, but also constitutes grounds for disqualifying another member of the law firm. Judge Goldsmith's view of the propriety of Russell's conduct may influence him in considering the malpractice claim against Wright and the firm of Russell, Angelo and Wright, P.C. The fact that Judge Goldsmith in his own mind does not believe that he is prejudiced against Wright and his firm does not prevent disqualification if the motions and affidavits reflect prejudice and an appearance of impropriety.

Judge Goldsmith relied on Smith v. District Court, 629 P.2d 1055 (Colo.1981), as authority for his position that rulings and observations of a trial judge generally are not grounds for disqualification during a trial. He concluded that even though disqualification might be desirable in this case, it was legally not necessary and could be a basis for future "judge shopping" by the firm. He examined the affidavits and determined that the affidavits did not contain facts...