Summary
finding a violation of prior rule DR 1-102 for sexual misconduct
Summary of this case from People v. RosenOpinion
No. 97SA27
March 31, 1997
Original Proceeding in Discipline
ATTORNEY SUSPENDED
Linda Donnelly, Disciplinary Counsel, John S. Gleason, Deputy Disciplinary Counsel, Denver, Colorado, Attorneys for Complainant
John M. Richilano, Denver, Colorado, Attorney for Attorney-Respondent
This lawyer discipline proceeding comes to us on a stipulation, agreement and conditional admission of misconduct between the respondent and the deputy disciplinary counsel. C.R.C.P. 241.18. The conditional admission recommends discipline in the range of a public censure to a suspension for 180 days, under certain conditions. An inquiry panel of the supreme court grievance committee approved the conditional admission with the recommendation of the suspension and conditions. We accept the conditional admission and the inquiry panel's recommendation.
I.
The respondent was admitted to practice law in Colorado in 1985. The parties stipulated to the following facts and disciplinary violations.
A.
A woman retained the respondent in July 1990 to represent her in legal separation proceedings. The respondent filed a petition for a decree of legal separation on his client's behalf on July 13, 1990. The client's husband filed a counterclaim for a dissolution of marriage.
Soon after becoming the client's lawyer, the respondent and his client began a social and personal relationship that developed into a sexual relationship in October of 1990 and continued during the respondent's legal representation.
The respondent has admitted that his conduct violated DR 1-102(A)(6) (engaging in conduct that adversely reflects on the lawyer's fitness to practice law), and DR 5-101(A) (representing a client when the lawyer's judgment on behalf of the client would be affected by the lawyer's own personal interests). See People v. Zeilinger, 814 P.2d 808, 809 (Colo. 1991) (engaging in sexual relationship with marital dissolution client violated DR 1-102(A)(6) and DR 5-101(A)).
B.
On or about October 28, 1990, the respondent met another woman at a restaurant who had just been served with a dissolution of marriage action. The woman talked about her legal problems with the respondent. She believed that the respondent would represent her in the dissolution. The respondent and the woman then engaged in sexual intercourse.
The woman initially represented herself in the dissolution proceeding through November and December 1990. On January 8, 1991, however, she was arrested following an altercation with her husband. Shortly thereafter, the respondent entered his appearance in both the criminal case and the dissolution proceeding on the woman's behalf.
Although he did not believe that he had undertaken representation of the woman when they engaged in intercourse, the respondent has admitted that the woman believed he had agreed to represent her. The respondent's conduct therefore again violated DR 1-102(A)(6) and DR 5-101(A).
C.
The respondent has stipulated that he used cocaine occasionally during the years 1990 and 1991. At the same time, he developed a substantial alcohol dependency. The foregoing conduct violated DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), and C.R.C.P. 241.6(5) (violating the criminal laws of a state or of the United States constitutes grounds for lawyer discipline).
D.
On May 9, 1992, the respondent had been drinking and boating at a lake. At about 5:00 p.m., the respondent and his wife, along with two friends, began driving home in the respondent's vehicle. The vehicle, which the respondent was driving, went into a ditch near Loveland. A witness to the accident helped the respondent out of the driver's seat. The respondent had a severe laceration on his lip and a concussion. The respondent then told his wife, who had exited from behind the driver's seat, "Remember, you were driving."
The respondent also initially told a police officer investigating the accident that his wife had been driving. The witness who helped the respondent from the vehicle after the accident told the officer that the respondent had been behind the wheel. The respondent then admitted to a police sergeant at the scene that he had been driving. The respondent submitted to a blood test which revealed his blood alcohol level to have been 0.146%. No one other than the respondent was injured in the accident, and the police sergeant described the respondent's behavior as "extremely cooperative."
Consequently, on August 18, 1992, the respondent pleaded guilty to driving under the influence of alcohol and received a deferred judgment and sentence. The respondent admitted that the above conduct violated DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice), and C.R.C.P. 241.6(5) (violation of the criminal laws of a state or of the United States). See People v. Fahselt, 807 P.2d 586, 587 (Colo. 1991) (convictions for vehicular assault, driving under the influence of intoxicating liquor, failing to maintain liability insurance, and reckless driving, violate DR 1-102(A)(6) and C.R.C.P. 241.6(5)).
The assistant disciplinary counsel indicates that because of the serious injury to the respondent's head resulting from the accident, and his level of intoxication, it cannot be established that the respondent intentionally violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).
II.
The inquiry panel approved the conditional admission, and recommended that the respondent be suspended for 180 days together with additional conditions to monitor the respondent's abstinence from alcohol and drug use. We agree with the inquiry panel.
The inquiry panel initially recommended a 60 day suspension, which the court rejected.
This is a difficult case in which to uphold our role of enforcing standards of attorney conduct while still giving due regard to individual mitigating circumstances. Our acceptance of the conditional admission and adoption of a suspension for 180 days hinges upon the evidence in the record of respondent's mental disability and chemical dependency as causative factors in his misconduct, which factors have been addressed through recovery such that recurrence of the misconduct is unlikely. Absent such mitigation, the conduct would certainly warrant more severe discipline.
Although the deputy disciplinary counsel states that "there is no evidence of harm to either" of the two women clients who consented to intercourse, we have clearly held in the past and here reaffirm that a sexual relationship between lawyer and client during the course of the professional relationship is inherently and insidiously harmful. The relationship can undermine the lawyer's professional integrity and judgment and dishonor the client's trust. See People v. Good, 893 P.2d 101, 103 (Colo. 1995).
Additionally, the respondent's admitted use of cocaine warrants a suspension for some period of time:
The commission of serious offenses involving the use or possession of illegal drugs by an attorney warrants a substantial disciplinary sanction. People v. Davis, 768 P.2d 1227, 1229-30 (Colo. 1989). In such cases we have generally applied Standard 5.12 of the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 1992 Supp.) (ABA Standards). People v. Moore, 849 P.2d 40, 43 (Colo. 1993). Thus, in the absence of aggravating or mitigating factors, suspension is appropriate when "a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice." Id. at 5.12.
People v. Stevens, 866 P.2d 1378, 1379 (Colo. 1994) (lawyer suspended for one year and one day for purchasing $25 worth of crack cocaine while serving as a judicial officer).
Further, the respondent was convicted of driving under the influence of alcohol and he initially lied about the circumstances of the accident that gave rise to the conviction and directed his wife and the other passengers in his automobile to do the same. The lie was quickly retracted, and respondent's ability to form an intent to misrepresent the truth may have been impacted by a concussion and alcohol; nonetheless, we view his conduct as falling far below that which this court and the public necessarily demand of individuals who hold themselves out as lawyers.
The respondent's illegal drug use combined with his DUI conviction and sexual relationships with two clients would usually call for a longer period of suspension than 180 days; however, a number of the mitigating factors raised by the complainant have persuaded us to accept the conditional admission.
The respondent has no history of previous discipline, which is a mitigating factor under ABA Standards for Imposing Lawyer Sanctions (ABA Standards) 9.32(a) (1991 1992 Supp.). In addition, the respondent has made full and free disclosure to the disciplinary counsel, id. at 9.32(e); and the respondent has demonstrated remorse, id. at 9.32(l). Further, at the time of the misconduct, the record clearly reflects that the respondent was suffering from a serious bi-polar personality disorder occasioned by childhood trauma and for which he had never been treated. The disorder was complicated by alcohol and chemical dependency. We conclude from the record that the disability and dependency were substantial contributing causes of the offenses, and are thereby entitled to great weight in mitigation. ABA Standards 9.32(i) (1992 Supp.) provides that:
(i) mental disability and chemical dependency [may be considered as a mitigating factor] when:
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
Following the recited instances of misconduct, the respondent began intensive psychotherapy and a medication program, both of which continue to date. Respondent's treating professionals report a positive prognosis and opine that the treatment arrested the misconduct and that recurrence of misconduct is unlikely. In order to ensure that the misconduct does not recur, the respondent has agreed to continue his current psychotherapy for two years or until he is released by his treating psychotherapist, and to undergo random alcohol and cocaine testing for two years following the decision in this case. The deputy disciplinary counsel represents that the respondent has undergone routine drug screening as part of the conditional admission and that the "drug screens have been negative to date." We do not excuse respondent's conduct. His violations were serious and require suspension. We accept the conditional admission and the inquiry panel's recommended period of suspension because we are persuaded that respondent was indeed suffering from mental disability and chemical dependency which were substantial contributing factors in the offenses, and because respondent has demonstrated a meaningful period of successful rehabilitation that has likely arrested the misconduct.
III.
Accordingly, it is hereby ordered that Fred Yancy Boyer be suspended from the practice of law for 180 days, effective thirty days after the issuance of this opinion. See C.R.C.P. 241.21(a). It is further ordered that the respondent comply with the conditions contained in the addendum to stipulation, agreement, and conditional admission of misconduct, which conditions are attached as an appendix to this opinion. It is also ordered that the respondent pay the costs of this proceeding in the amount of $106.94 within thirty days after the announcement of this opinion to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 920-S, Denver, Colorado 80202.
1. Respondent will continue with psychotherapy for a period of two years from the date of the Supreme Court's decision in this matter, or until such time that respondent is released from psychotherapy treatment by his treating psychotherapist. Respondent and/or his counsel will notify the Office of Disciplinary Counsel prior to termination of psychotherapy if such termination occurs prior to the two year term.
2. Respondent will continue random alcohol and cocaine testing for a period of two years from the date of the Supreme Court's decision in this matter. Such random testing will occur at least once every three months throughout the two year period. All test results from the random alcohol and cocaine tests will be forwarded to the Office of Disciplinary Counsel.
JUSTICE SCOTT dissents.
CHIEF JUSTICE VOLLACK and JUSTICE BENDER do not participate.