Summary
holding that recommendations of Grievance Committee are only advisory
Summary of this case from Supreme Court Grievance v. District CourtOpinion
No. 90SA95
Decided June 18, 1990.
Original Proceeding in Discipline
Linda Donnelly, Disciplinary Counsel, John S. Gleason, Assistant Disciplinary Counsel, for Complainant.
David A. Ogilvie, for Respondent.
In this attorney discipline case, a hearing board of the Supreme Court Grievance Committee (Committee) recommended that the respondent, D. Shackelford Shipp, be disciplined by public censure. After reviewing the findings of fact and recommendation of the board, a hearing panel of the Committee accepted the findings and the recommendation. By order dated April 6, 1990, we directed the respondent to show cause why more severe discipline than that recommended by the Committee should not be imposed. Both the respondent and the disciplinary counsel filed responses to the show cause order. Upon review, we are of the opinion that a sixty-day suspension is the appropriate discipline.
One member of the panel voted to approve the findings of fact, but favored a thirty-day suspension.
I
The respondent was admitted to practice law in Mississippi in 1971 and in Colorado in 1986, and is subject to the disciplinary jurisdiction of this court and its Grievance Committee.
The respondent and the assistant disciplinary counsel entered into a stipulation of facts which became the basis for the findings of the board. The facts as found by the board are as follows. During the period January through March 1987, Tina Johnson and Thomas Heasty were inmates in the Pitkin County Jail in Aspen, Colorado. Respondent represented Johnson on various matters. Johnson requested respondent to pay her a referral fee of 10% of any retainers he received from inmates she referred to him for legal services. Respondent agreed and subsequently Johnson referred inmates to respondent on two occasions. Respondent paid Johnson $275 for her services. At about the same time and at the request of Johnson, respondent paid Heasty $125 for referring another inmate to him. Both payments were made in cash at the jail.
Respondent stipulated, and we agree, that his conduct violates C.R.C.P. 241.6 and the Code of Professional Responsibility DR 2-103(B) (a lawyer shall not compensate a person to recommend or secure his employment by a client); and DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule).
II
In arriving at its recommendation of a public censure, the board considered the American Bar Association, Standards for Imposing Lawyer Sanctions (1986). The board noted that although respondent's conduct was knowing and intentional, other factors were present which warranted a public censure rather than suspension. In particular, the board relied on the fact that respondent had no record of prior discipline, Standard 9.32(a); personal financial problems, Standard 9.32(c); full and free disclosure and a cooperative attitude toward the proceedings, Standard 9.32(e); and remorse, Standard 9.32(l).
After submission of the case to this court, we directed the respondent to show cause why more severe discipline should not be imposed. He submitted a response in which he described his initial difficulties in establishing a sound financial basis for his law practice, expressed his remorse for his conduct, and urged us to impose a sanction no more severe than public censure because his conduct "was not a knowing and intentional scheme to solicit clients, but rather was an isolated incident of negligent breach of his duty to the profession, by improperly acceding to Johnson's request for payment." Respondent also argues that because he lives in a small community a public censure will inform the public and the legal profession of the facts of this case. Further, that because he is a sole practitioner, a suspension could result in the termination of his ability to practice within his community.
In reply, the assistant disciplinary counsel contends that a period of suspension is appropriate because the respondent knowingly engaged in conduct that is a violation of a duty owed to the profession. He argues that the payment of referral fees to indirectly solicit clients is an "intrusive imposition on other ethical lawyers and the profession in general. Solicitation, direct or indirect, also corrodes the trust and loyalty inherent in the attorney-client relationship."
The recommendations of the Grievance Committee are advisory only. It is our duty to review those recommendations and to increase or decrease the recommended sanction in a proper case. People v. Berge, 620 P.2d 23 (1980). In performing that duty we must consider not only the facts and background of the individual lawyer, but also the effect of the lawyer's conduct on the administration of justice, the profession, and the clients whom the lawyer serves. See Standard 1.1, ABA, Standards for Imposing Lawyer Sanctions (1986).
After considering all of the pertinent factors, we believe that a sixty-day suspension from the practice of law is warranted and now order such suspension, effective thirty days after the date of issuance of this opinion. C.R.C.P. 241.21(a). The respondent is further ordered to pay the costs of these proceedings in the amount of $307.78 by tendering this sum to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 500-S, Dominion Plaza, Denver, Colorado 80203, within thirty days of this date.
JUSTICE VOLLACK dissents, and JUSTICE ERICKSON joins in the dissent.