Opinion
Case Number: 15PDJ060
12-01-2016
The PEOPLE of the State of Colorado, Complainant v. Christi Anne SANDERS, Respondent
OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(b)
WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE
Christi Anne Sanders ("Respondent") violated Colo. RPC 3.4(c) and 8.4(d) by failing to obey a court order to pay monthly child support and to satisfy child support arrearages. Respondent's failure to honor her court-mandated obligations tarnished the integrity of the legal system and harmed her child. Respondent's misconduct calls for a suspension of six months. If Respondent comes into compliance with her court-ordered support obligations during that period of suspension, however, she may seek reinstatement early. Whenever Respondent seeks reinstatement, however, she must successfully complete an independent medical examination ("IME").
I. PROCEDURAL HISTORY
On June 15, 2015, Respondent was immediately suspended under C.R.C.P. 251.8.5 for failing to pay child support. She remains immediately suspended from the practice of law.
Jennifer Marie Wascak, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the PDJ") on July 16, 2015, alleging that Respondent had failed to pay court-ordered child support and child support arrearages. On September 3, 2016, the People moved for entry of default against Respondent, who had not responded to their complaint. Seven weeks after her answer was due—on September 17, 2015—Respondent moved for an extension of time to answer. The next day, Alan C. Obye entered his appearance on behalf of the People. On September 23, 2016, Respondent filed a combined response to the People's motion for default, motion for extension of time to answer the complaint, and answer to the complaint.
On the People's motion, the PDJ found that Respondent's answer did not comply with C.R.C.P. 251.15(a), which requires an answering respondent to "admit or deny every material allegation contained in the complaint or request that the allegation be set forth with greater particularity." The PDJ ordered Respondent to file an amended answer by October 7, 2015. On that date, Respondent filed a first amended answer, in which she denied "every material allegation in the complaint." Also on that date, Respondent asked the PDJ to defer the proceedings for ninety days pending a ruling in her underlying child support case, which she argued would render the People's complaint moot. The PDJ deferred the proceedings and later ordered the parties to set the matter for a hearing, which they scheduled for May 27, 2016.
First Am. Answer at 1.
On February 4, 2016, the People filed a renewed motion for a more definite statement and moved to deem certain allegations in their complaint admitted. The PDJ granted the People's motion in part on February 22, 2016, deeming allegations 1-4 of the People's complaint admitted but denying the People's renewed motion for a more definite statement.
On April 1, 2016, the People filed a motion for summary judgment. Respondent did not respond to the motion, and the PDJ granted it on April 21, 2016, determining as a matter of law that both claims in the People's complaint, which alleged violations of Colo. RPC 3.4(c) and 8.4(d), had been proven. The PDJ converted the hearing set for May 27, 2016, to a hearing solely on the sanctions. Respondent then filed a "Motion to Reconsider or Vacate Judgment" in her underlying child support case, and on May 6, 2016, the PDJ continued the hearing on the sanctions until the district court ruled on Respondent's motion.
The People submitted a status report on June 27, 2016, informing the PDJ that the district court presiding over Respondent's child support case had issued a ruling four days earlier, disposing of her motion to reconsider. In that ruling, the district court upheld its previous child support order but stayed that judgment pending a hearing on whether and to what extent Respondent's child's income should be factored into the amount of child support Respondent owed. That hearing was set for November 1, 2016.
Ex. 7 at 4.
The PDJ then reset the hearing on the sanctions for October 18, 2016. On October 5, 2016, Respondent sent a six-page email to the PDJ in which she sought a continuance of the disciplinary hearing pending the result of the November hearing in her child support matter. On October 12, 2016, the PDJ denied Respondent's motion for a continuance, concluding that the hearing in November would have no effect on the determination of the appropriate sanction. Throughout the pretrial process, Respondent failed to provide initial disclosures to the People, and she later neglected to submit prehearing materials, including a hearing brief, an exhibit list, or a witness list.
On October 18, 2016, a Hearing Board comprising Sisto J. Mazza and Hal B. Warren, licensed Colorado lawyers, and the PDJ held a hearing under C.R.C.P. 251.18. Obye represented the People, and Respondent appeared pro se. The Hearing Board considered testimony from Respondent, and the PDJ admitted the People's exhibits 1 and 7. During the hearing Respondent orally moved to dismiss the People's charges; because the rule violations had already been determined on summary judgment, the PDJ denied her motion. The PDJ also ordered the People to file a status report concerning the outcome of the November 1, 2016, hearing in Respondent's child support case. The parties agreed that the Hearing Board should consider all rulings made by the district court in Respondent's underlying child support matter.
As ordered, on November 2, 2016, the People filed a status report with the PDJ. The People attached to their report a minute order issued by the district court on November 2, 2016. In that order, the district court stated that "all orders stand" in the child support case and noted that the sole issue before the district court was the effect of Respondent's child's income on overall child support arrearages. The district court deferred ruling on the issue and set a conference call with the parties for December 1, 2016. The People noted that they would continue to submit status reports to the PDJ until the arrearage issue is resolved.
II. FACTS AND RULE VIOLATIONS
Respondent took the oath of admission and was licensed as a Colorado attorney on October 30, 1998, under attorney registration number 30127. She is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.
See C.R.C.P. 251.1(b).
Facts Established on Summary Judgment
On July 28, 2013, the Arapahoe County District Court entered an order for child support and child support arrearages in case number 2000DR2328. Under this order, Respondent was to pay her ex-husband, Steven G. Sanders, $683.00 in child support each month. Payments were to be made the last day of each month, continuing until October 31, 2013—the date when Respondent's child turned nineteen years old. The order also required Respondent to pay child support arrearages totaling $15,235.00. She was ordered to pay twenty-four monthly installments, beginning on July 31, 2013, to satisfy the arrearages.
Order Granting Complainant's Mot. for Summ. J. at 3 (Apr. 2016).
Order Granting Complainant's Mot. for Summ. J. at 3.
Order Granting Complainant's Mot. for Summ. J. at 3.
Order Granting Complainant's Mot. for Summ. J. at 3.
Order Granting Complainant's Mot. for Summ. J. at 3.
Although Respondent knew about her child support obligation, she failed to make any of the required payments, and judgment was entered against her in the amount of $17,967.00 on July 29, 2014.
Order Granting Complainant's Mot. for Summ. J. at 3.
Additional Findings Based on Testimony and Evidence
Respondent was very emotional while testifying, and as a result, her testimony was scattered and disorganized. The Hearing Board had some difficulty ascertaining a clear timeframe of the events about which she testified. According to Respondent, she is emotionally stable but has always been a "crier." Respondent explained to the Hearing Board that in 2000 she was diagnosed with major depression, anxiety, mood-swing disorder, and attention deficit disorder ("ADD"). Since that time, she has been prescribed a variety of medications—all of which take time to properly regulate—in order to treat those disorders.
For somewhere between five to seven years, Respondent was a prosecutor in Jefferson County. After leaving this job, she took a position as in-house counsel for Liberty Mutual defending mass tort claims. She lost that job in 2012, however, and was thus unable to pay for health insurance or her monthly prescriptions, which cost around $600.00. Incapable of obtaining prescription medication for her mental health disorders, Respondent said, she became disabled and could not practice law. During this period of disability, Respondent received financial assistance from the Waterman Fund, a charitable trust run by the Denver Bar Association. Respondent also testified that around the same time, she was evicted from her home, as she could no longer manage to pay her monthly rent.
In summer 2013, Respondent's ex-husband moved to modify Respondent's child support for her teenage daughter. Respondent was supposed to give him financial disclosures but she did not do so. On July 8, 2013, the Arapahoe District Court held a hearing on the motion. During that hearing, Respondent testified that she did not have the ability to pay child support. The district court found her testimony credible, conditioned on her compliance with her "previously ignored duties of disclosure." The district court ordered her to submit sworn financial documentation supporting her testimony within fourteen days. She did not do so.
See Exs. 1 & 7.
See Ex. 7 at 2.
Ex. 7 at 3.
Ex. 7 at 3.
Ex. 1 at 1.
On July 28, 2013, the district court entered judgment awarding child support in Respondent's domestic relations case. In that order, the district court noted that it had given Respondent "every opportunity" to avoid the judgment by providing proof to corroborate her testimony about her income. The district court thus imputed $70,000.00 of annual income to her. Based on this figure, the district court set Respondent's child support at $683.00 per month and ordered her to pay arrearages of $15,235.00 plus interest. She made no payments.
Ex. 1.
Ex. 1 at 1.
Ex. 1 at 1.
Ex. 1 at 1.
On September 17, 2015—more than two years after the judgment was entered in July 2013—Respondent moved to reconsider or to vacate the judgment. She asked the district court to reconsider its earlier judgment, in part, due to her belief that it was "substantially inaccurate and deficient." Her motion contained no case law or other authority. Although the motion was untimely filed, the district court accepted it under C.R.C.P. 60(b), finding credible her claims of disability during the relevant time period. On June 23, 2016, the district court denied Respondent's motion to reconsider, however, and upheld its prior judgment.
Ex. 7.
Ex. 7 at 2.
Ex. 7 at 2.
Ex. 7 at 2.
Respondent explained to the Hearing Board that when the judgment entered on July 28, 2013, she was unmedicated and facing eviction. Additionally, her grandmother, who had raised her, was in hospice and her grandfather had recently passed away. Respondent was overwhelmed and could not cope, she testified, so she did not timely move to reconsider the district court's judgment.
Respondent did not dispute that the district court's judgment is a valid order but contended that it is factually inaccurate. She averred that her ex-husband's attorney moved for a modification of child support the day before Respondent's financial disclosures were due, and in the motion the attorney alleged that Respondent could pay child support even though she had not provided disclosures. Thus, Respondent believes that the district court entered its judgment based on misinformation. Respondent also took issue with the fact that when she moved to reconsider in 2015, the new judge was not familiar with her financial circumstances. According to Respondent, she tried to correct the factual inaccuracies in the record by attempting to set a hearing with the district court and by contacting opposing counsel, but she testified that no one helped her.
Respondent also maintained that the district court's child support order is unconscionable because she does not have the financial wherewithal to satisfy the judgment. Respondent testified that, as a lawyer in her forties, she had trouble finding employment after losing her position with Liberty Mutual and then becoming disabled. In addition, in 2014—after self-reporting her failure to pay child support—her law license was immediately suspended, and the Waterman Fund cut off her financial assistance because she was no longer an attorney in good standing. Thereafter, she worked some as a paralegal, but she found that most law firms did not want to employ a suspended lawyer. And, she said, other potential employers did not want to hire her because she has a J.D., and they believed she would soon leave for more gainful employment. In order to survive, she said, she sold the majority of her belongings and now works as a dog walker and house cleaner.
Respondent testified that her failure to pay child support did not injure her ex-husband or her daughter. According to Respondent, her ex-husband makes over $100,000.00 annually and her daughter—now in her twenties—has supported herself, including paying for her own college education and for a trip around the world. Respondent said that she has given several thousands of dollars from an inheritance to her daughter, although she did not make these payments through the child support registry, believing her ex-husband would have kept those funds from her daughter.
When asked why she provided no initial disclosures nor filed any prehearing materials in this disciplinary proceeding, Respondent stated that she thought she had given the People enough information to retrieve any relevant information from other sources if they needed to do so. She also testified that she lost her residence four times during this case, struggles daily to keep a roof over her head, and could not comply with the PDJ's pretrial requirements. Respondent explained that she has been very sleepy due to her recent anemia diagnosis and is forced to type and file motions in this case using her iPhone because she does not have access to a computer. The only thing on her mind is her survival, she stated, and she likened her situation to "treading water." Looking back through this process, Respondent stated that although she did not effectively represent herself in this disciplinary proceeding, she understands what is at stake.
Respondent is very proud of her law license and does not want to be barred from practicing law. She testified that despite being overcome with emotion during her testimony at the disciplinary hearing, she believes she is competent to practice law and is "able bodied and clear headed." Respondent stated that once she qualified for Medicaid under the Affordable Care Act, she could fill her prescriptions. She said that her new doctor is "fantastic" and has ordered testing and changed her medications, allowing her to quickly get "back on track." Respondent contended that she is very responsible in addressing her personal and emotional problems: she has received assistance through the Colorado Lawyer Assistance Program, and she presently attends an all-female support group every week. Even though she will always suffer from depression, Respondent believes that she is able to competently practice law so long as she is medicated.
If possible, Respondent would like to avoid being publicly sanctioned any further for her failure to pay child support and hopes her honesty sways the Hearing Board in that direction. According to Respondent, she has been punished enough with the immediate suspension of her law license, and she does not believe that an additional sanction would serve anyone's interest. She wants the Hearing Board to "leave her alone" and to "give her law license back." She asked the Hearing Board for credit for the two years her license has been suspended.
Rule Violations
In granting the People's motion for summary judgment, the PDJ determined that Respondent violated Colo. RPC 3.4(c), which provides that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists." The PDJ concluded that Respondent knew she was obligated to pay her ex-husband $683.00 a month in child support and an additional $635.00 per month to satisfy her arrearages. Additionally, the PDJ concluded that Respondent was aware the district court entered judgment against her in the amount of $17,697.00. Yet Respondent did not satisfy her court-mandated responsibilities, thereby knowingly violating Colo. RPC 3.4(c). The PDJ noted there was nothing in Colo. RPC 3.4(c) that required the People to prove Respondent had the ability to make the court-ordered payments.
The PDJ also concluded that Respondent breached Colo. RPC 8.4(d), which proscribes conduct prejudicial to the administration of justice. By knowingly failing to satisfy the arrearages and to pay the monthly child support amounts, the PDJ determined, Respondent prejudiced the administration of justice.
See In re Green , 982 P.2d 838, 838–39 (Colo. 1999) (approving the hearing board's finding that the respondent engaged in conduct prejudicial to the administration of justice by willfully failing to comply with a court-ordered child support obligation); People v. Hanks , 967 P.2d 144, 145 (Colo. 1998) (same).
III. SANCTIONS
The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ") and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct. When imposing a sanction after a finding of lawyer misconduct, a hearing board must consider the duty violated, the lawyer's mental state, and the actual or potential injury caused by the lawyer's misconduct. These three variables yield a presumptive sanction that may be adjusted based on aggravating and mitigating factors.
Found in ABA Annotated Standards for Imposing Lawyer Sanctions (2015).
See In re Roose, 69 P.3d 43, 46–47 (Colo. 2003).
ABA Standard 3.0—Duty, Mental State, and Injury
Duty : Lawyers are officers of the court and must obey all court orders. By failing to pay court-ordered child support and arrearages, Respondent disregarded her obligations under the rules of a tribunal and violated her duty to the legal system.
Mental State : The PDJ's order granting summary judgment found that Respondent knowingly failed to comply with those obligations. The facts show that Respondent filed a motion to reconsider her child support obligations, but after a hearing the district court upheld the child support judgment, staying only one issue for determination. The Hearing Board likewise concludes Respondent knew that she was under court order to pay child support yet knowingly failed to comply with that obligation.
Knowledge is defined as "the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." ABA Standards § IV, Definitions.
Injury : Respondent's failure to satisfy her child support obligations has harmed her daughter financially by depriving her of the use of more than $17,000.00 over the past three years. Her conduct also caused actual harm to the legal system. As a lawyer, Respondent is required to abide by court orders and to promote the administration of justice, yet she disregarded this obligation by failing to comply with her monthly child support and arrearage obligations. ABA Standards 4.0-7.0—Presumptive Sanction
Suspension is the presumptive sanction for Respondent's misconduct in this case, as set forth in ABA Standard 6.22, which governs a lawyer's knowing violation of a court order or rule that results in injury or potential injury to a party or interference or potential interference with a legal proceeding.
ABA Standard 9.0—Aggravating and Mitigating Factors
Aggravating factors are considerations that may justify an increase in the presumptive discipline to be imposed, while mitigating factors may warrant a reduction in the severity of the sanction. In deciding the appropriate sanction, the Hearing Board applies one aggravating factor, along with three mitigating factors, one of which merits substantial credit.
See ABA Standards 9.21 & 9.31.
Dishonest or Selfish Motive—9.22(b) : The People ask for the application of this factor, but we find credible Respondent's testimony that she has been unable to maintain employment during the period when she could not obtain medication for her mental health disorders. Further, there is no evidence before us that she is intentionally unemployed or underemployed, and we thus choose not to apply this factor in aggravation.
Substantial Experience in the Practice of Law—9.22(i) : Respondent was admitted to the Colorado bar eighteen years ago, in 1998. She has substantial experience as a lawyer and should know to comply with court-mandated obligations.
Absence of a Prior Disciplinary Record—9.32(a) : Respondent has not been sanctioned for misconduct during her eighteen years as a lawyer. We consider this a factor in mitigation.
Personal and Emotional Problems—9.32(c) : We heard credible testimony from Respondent that she suffers from major depression, anxiety, mood-swing disorder, and ADD. And from 2012 to the present, she has for lengthy periods gone without the proper medication for these disorders, rendering her unable to work. Respondent also testified about her dire financial circumstances, including her inability to keep a job, the loss of her home, daily worry about her survival, and the sale of the majority of her belongings to pay her bills. Further, the district court in her child support case found credible her claims of disability, which it concluded prevented her from filing a timely motion to reconsider the judgment. We therefore choose to weigh this factor substantially in mitigation.
Imposition of Other Penalties or Sanctions—9.32(k) : Since June 17, 2015, Respondent has been suspended from the practice of law under C.R.C.P. 251.8.5 for failing to pay child support. We consider her immediate suspension a circumstance in mitigation.
Analysis Under ABA Standards and Case Law
The Hearing Board is mindful of the Colorado Supreme Court's directive to exercise discretion in imposing a sanction and to carefully apply aggravating and mitigating factors. We recognize that "individual circumstances make extremely problematic any meaningful comparison of discipline ultimately imposed in different cases." Though prior cases are helpful by way of analogy, the Hearing Board is charged with determining the appropriate sanction for a lawyer's misconduct on a case-by-case basis.
See In re Attorney F. , 285 P.3d 322, 327 (Colo. 2012) ; In re Fischer , 89 P.3d 817, 822 (Colo. 2004) (finding that a hearing board had overemphasized the presumptive sanction and undervalued the importance of mitigating factors in determining the needs of the public).
In re Attorney F. , 285 P.3d at 327 (quoting People v. Rosen, 198 P.3d 116, 121 (Colo. 2008) ).
Under the ABA Standards , the presumptive sanction for Respondent's misconduct is suspension. Colorado Supreme Court case law also supports the imposition of suspension for failure to pay child support. We first examine three somewhat similar cases in which lengthy suspensions were imposed.
In In re Green, an attorney knowingly failed for five years to pay over $11,000.00 in court-ordered child support and failed to file his attorney registration statement. Green had earlier appealed the child support orders, but his appeal was rejected on the grounds that "much of [Green's] ability to meet his support obligations stems from his own decisions and unwillingness to obtain work that is commensurate with his true potential earning capacity." The Colorado Supreme Court suspended Green for one year and one day but held that, were Green to demonstrate within the period of suspension that he had paid his past-due child support or negotiated a payment plan approved by the appropriate court, he could be reinstated and placed on a three-year period of probation.
Green , 982 P.2d at 838.
Id. (quoting Green v. Marcucci , No. 26,004, 112 Nev. 1719, 999 P.2d 378 (Nev. Mar. 1, 1996) (order dismissing appeal)).
Id. at 839.
In People v. Hanks , an attorney who willfully failed to pay child support was suspended for one year and one day. There, Hanks had been ordered to pay $20,000.00 in past-due child support and $1,500.00 per month for his three children going forward. Although Hanks initially paid some money toward child support, he then made little or no financial contribution over a three-year period; at the time of the disciplinary hearing he was $55,282.62 in arrears, and a finding of contempt against him had not been dismissed. And in People v. Jaramillo , an attorney was suspended for one year and one day for violating state laws and for failing to pay court-ordered child support. Because Jaramillo amassed child support arrearages of $11,296.77 over several years, making only a few payments to reduce that amount, his driver's license was suspended; Jaramillo was then involved in a car accident, and he was charged with driving with a suspended license, driving without insurance, and leaving the scene of an accident.
Id.
Id. at 145–46.
35 P.3d 136, 138–39 (Colo. 1999).
Id. at 138.
We contrast these cases with two others imposing public censure. In the first, People v. Primavera , an attorney was held in contempt for failing to pay approximately $3,000.00 in child support over a three-month period. Primavera paid the arrearage in full and the opposing party's attorney's fees prior to the disciplinary hearing, and the contempt citation was dismissed. In the second, People v. Cantrell , the Colorado Supreme Court accepted a recommendation of public censure when an attorney negligently handled client funds and failed to pay his child support. Cantrell was held in contempt when a court concluded that he willfully failed to comply with child support orders, but the contempt citation was ultimately dismissed in a settlement with Cantrell's former spouse. At the time of the disciplinary hearing, Cantrell was in compliance with the terms of settlement, including his child support obligations.
904 P.2d 883, 884 (Colo. 1995).
Id.
900 P.2d 126, 127 (Colo. 1995).
Id. at 127–28.
Id. at 128.
Unlike the attorneys in Primavera and Cantrell , Respondent is not in compliance with the court's child support judgment. And like the attorneys in Green , Hanks , and Jaramillo , Respondent has knowingly failed to pay a significant amount of child support—over $17,000.00 in arrearages. Her overall conduct, however, is less egregious than the conduct exhibited in these three cases where a significant served suspension was imposed. For example, the respondent in Green was determined to be willfully underemployed, and the lawyer in Jaramillo violated three criminal laws in addition to failing to pay child support. Further, Respondent's conduct is heavily mitigated by her personal and emotional problems. We also find her testimony about her financial circumstances to be believable, and although her efforts to move the district court to reconsider or vacate its child support judgment were unsuccessful, we conclude her ability to comply with the deadlines in her underlying child support case was directly linked to her mental health problems occurring at the time. It thus appears that Respondent's misconduct warrants a sanction that falls between the significant served suspensions imposed in Green , Hanks , and Jaramillo and the public censures issued in Primavera and Cantrell .
Considering the presumptive sanction, the relevant case law, the substantial mitigation, and the totality of the circumstances here, we suspend Respondent for a period of six months. In addition, given the erratic and emotionally charged manner and demeanor Respondent exhibited on the witness stand, we have concerns about her ability to competently practice law, and we thus require her to undergo an IME prior to seeking reinstatement to the practice of law. We also find that the case law supports an early termination of Respondent's suspension under certain circumstances: if Respondent files a verified petition for reinstatement within six months of the effective date of her suspension, showing that she has successfully completed an IME and that she has paid all past-due child support or negotiated a payment plan approved by the appropriate court, then she may be reinstated under the procedures set forth in C.R.C.P. 251.8.5(d).
The People do not object to Respondent petitioning for early reinstatement if she has either paid all past-due child support obligations or negotiated a payment plan approved by the appropriate court.
If Respondent has not filed such a verified petition within six months of the effective date of her suspension, then her request for reinstatement must be filed under C.R.C.P. 251.29(c), subject to two conditions precedent: 1) the successful completion of an IME as set forth in greater detail below and 2) payment of all past-due child support or negotiation of a payment plan approved by the appropriate court.
IV. CONCLUSION
Respondent knew that she was obligated under a court order to pay over $17,000.00 in arrearages and yet did not comply with that obligation. It was established on summary judgment that through such conduct she violated Colo. RPC 3.4(c) and 8.4(d). We find that the substantial mitigating factors present in this case merit Respondent's suspension of six months, though she may seek reinstatement at an earlier time if she successfully completes an IME and either satisfies her court-ordered child support obligations or negotiates an approved payment plan.
V. ORDER
The Hearing Board therefore ORDERS:
1. CHRISTI ANNE SANDERS , attorney registration number 30127 , is SUSPENDED FOR SIX MONTHS . The SUSPENSION SHALL take effect only upon issuance of an "Order and Notice of Suspension."
2. If any time within six months from the effective date of her suspension, Respondent files a verified petition and demonstrates to the PDJ that she has successfully completed an IME as set forth in paragraph 5 and has either paid all past-due child support obligations or negotiated a payment plan approved by the appropriate court, then she may be reinstated under C.R.C.P. 251.8.5(d). The PDJ shall determine whether the IME demonstrates by clear and convincing evidence that Respondent is able to fulfill her professional responsibilities competently.
3. If Respondent is reinstated under C.R.C.P. 251.8.5, she will then be placed on probation for one year, with the condition that she shall not violate any Rules of Professional Conduct, and the remainder of her suspension will be stayed.
In general, an order and notice of sanction will issue thirty-five days after a decision is entered pursuant to C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later than thirty-five days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.
a. If, during the period of probation, the People receive information that any condition may have been violated, the People may file a motion with the PDJ specifying the alleged violation and seeking an order that requires Respondent to show cause why the stay on the remaining part of her suspension should not be lifted and the suspension activated. The filing of such a motion shall toll any period of probation until final action. Any hearing shall be held under C.R.C.P. 251.7(e).
b. If Respondent's probation is revoked, she will be required to serve the remaining portion of her six-month suspension. Should she then wish to resume practicing law, she must petition for reinstatement to the practice of law under C.R.C.P. 251.29(c).
4. If Respondent has not successfully filed a verified petition under C.R.C.P. 251.8.5 within six months from the effective date of her suspension, then she must petition for reinstatement, if at all, under C.R.C.P. 251.29(c). Her reinstatement is subject to two conditions precedent: 1) that she successfully completed an IME as set forth in paragraph 5 and 2) that she has either paid all past-due child support obligations or negotiated a payment plan approved by the appropriate court.
5. Any IME performed as part of a petition filed under C.R.C.P. 251.8.5 or C.R.C.P. 251.29(c) is subject to the following provisions:
a. The IME must address the following issues:
i. Whether Respondent suffers from a physical, mental, or emotional infirmity or illness (including addiction to drugs or intoxicants).
ii. The recommended treatment, if any, for the infirmity or illness, including the nature, length, and anticipated course of such treatment.
iii. Whether Respondent is able to competently fulfill her professional responsibilities in light of the infirmity or illness, if any.
b. Respondent must select a psychologist or psychiatrist who is qualified to perform the IME.
c. Respondent SHALL be responsible for paying the cost of any IME.
6. If applicable, Respondent SHALL promptly comply with C.R.C.P. 251.28(a)–(c), concerning winding up of affairs, notice to parties in pending matters, and notice to parties in litigation.
7. Within fourteen days of issuance of the "Order and Notice of Suspension," Respondent SHALL comply with C.R.C.P. 251.28(d), requiring an attorney to file an affidavit with the PDJ setting forth pending matters and attesting, inter alia , to notification of clients and other jurisdictions where the attorney is licensed.
8. The parties MUST file any post-hearing motion or application for stay pending appeal with the Hearing Board on or before Thursday, December 22, 2016 . No extensions of time will be granted. Any response thereto SHALL be filed within seven days, unless otherwise ordered by the PDJ.
9. The Hearing Board declines to order Respondent to pay the costs of these proceedings.
If she wishes to do so, Respondent may consult with the People to assist her in identifying a qualified medical expert.
See C.R.C.P. 251.32(d)(1).
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SISTO J. MAZZA
HEARING BOARD MEMBER
HAL B. WARREN
HEARING BOARD MEMBER