Opinion
No. 03PDJ073.
September 25, 2003.
COMPLAINT
THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:
Jurisdiction
The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on May 21, 1986, and is registered upon the official records of this court, registration no. 15658. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 1628 Pine Street, Boulder, Colorado 80302. Another known address for the respondent is P.O. Box 1129, Boulder, Colorado 80302.
General Allegations
The respondent was retained by Hope Waggoner to handle the estate of her late husband, Jess W. Waggoner. An attorney-client relationship was thus formed.
Jess W. Waggoner died in June of 1999.
Jess W. Waggoner had previously retained respondent to assist in the administration of the estate of Pearl Morris. An attorney-client relationship thus already existed between respondent and Jess W. Waggoner.
Jess W. Waggoner was the brother of Pearl Morris, and had been the personal representative of the estate of Pearl Morris.
Respondent offered Mr. Jess W. Waggoner's will for probate in Jefferson County, Colorado, in case number 99-PR-0685.
Hope W. Waggoner was appointed as the personal representative of the estate of Jess W. Waggoner shortly after Mr. Waggoner's will was offered for probate.
The respondent hired an accountant to file an estate tax return for the estate of Jess W. Waggoner. The return was filed in 2000.
In June 2002, Hope Waggoner received notice from the Internal Revenue Service that a tax return for the Waggoners had not been filed for the tax period 12-31-00. She also received a tax notice of delinquency on the Estate of Pearl Morris. Upon receipt, Ms. Waggoner turned these notices over to respondent and requested he take care of the matters. The respondent agreed to handle these matters.
After turning the tax matters over to respondent, Ms. Waggoner did not hear from respondent as to the status of either estate and began making repeated telephone calls to the respondent seeking information.
The respondent was aware of Ms. Waggoner's attempts to contact him, but failed to respond to these calls.
On September 5, 2002, the Office of Attorney Regulation Counsel (OARC) contacted respondent and requested information as to the status of the two estates.
On September 5, 2002, Respondent told OARC that the Waggoner estate was still open and that he was negotiating with the Internal Revenue Service about the tax delinquency notice on the estate of Pearl Morris. Respondent promised a detailed report to Hope Waggoner and OARC on both estates by September 27, 2002.
On October 22, 2002 the OARC again contacted respondent by telephone in regard to obtaining the reports on the estates. Respondent did not reply.
On January 14, 2003, OARC contacted respondent in writing inquiring about the status of the estates. Respondent did not reply.
Thereafter, on January 29, 2003, OARC notified respondent in writing that it was starting a formal Request for Investigation pursuant to the Colorado Rules of Civil Procedure 251.9 and gave respondent twenty days to respond. The letter was sent by certified mail return receipt requested. Respondent received the letter on January 30, 2003. Attached hereto, marked as Exhibit "A," and specifically incorporated by reference is a copy of the letter and return receipt.
Respondent did not respond to the letter of January 29, 2003.
On February 26, 2003, OARC wrote respondent to inform him the answer to the Request for Investigation was overdue. Respondent did not respond to the letter.
On March 10, 2003, respondent called OARC and told them an answer would be filed on March 14, 2003.
Respondent did not file an answer on March 14, 2003.
On April 3, 2003, OARC wrote respondent to inform him he had not filed a response, and to inform him that failure to respond to the Request for Investigation was a separate ground for discipline.
Respondent did not respond to the letter of April 3, 2003.
On June 20, 2003, OARC was able to speak with respondent about filing the report to the Request for Investigation. Respondent promised an answer by June 27, 2003. Respondent stated that he had been ill and could not respond previously.
Respondent did not file any response on June 27, 2003.
Respondent did not transmit any information on the status of the estates of Jess W. Waggoner or Pearl Morris after months of repeated requests by OARC.
On June 9, 2003, Hope Waggoner wrote a letter to respondent informing him that he had been terminated as the attorney for the Estate of Jess W. Waggoner and the Estate of Pearl Morris.
Simultaneously on June 9, 2003, Hope Waggoner requested by separate letter to respondent that all files on both estates be turned over to her new attorney, Sterling Ambler.
On July 28, 2003, Mr. Ambler made a second written request to the respondent on behalf of Hope Waggoner asking for the files of the e state of Jess Waggoner and Pearl Morris.
Respondent did not respond to any requests for information requested by Hope Waggoner or her new attorney and did not turn over his files on the estates of Pearl Morris and Jess W. Waggoner to Hope Waggoner's new attorney.
CLAIM I
[A Lawyer Shall Act With Reasonable Diligence and Promptness in Representing a Client and Shall Not Neglect a Legal Matter Entrusted to that Lawyer — Colo. RPC 1.3]
Paragraphs 1 through 29 are incorporated herein as if fully set forth.
Colo. RPC 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client, and that a lawyer shall not neglect a legal matter entrusted to that lawyer.
The respondent failed to act with reasonable diligence and promptness and neglected the legal matters entrusted to him by Hope Waggoner in each of the following respects:
a. by failing to prosecute both cases entrusted to him to conclusion;
b. by failing to complete the probate of the estate of Jess W. Waggoner;
c. by failing to complete negotiations with the Internal Revenue Service in regard to an alleged delinquency of the estate of Pearl Morris;
d. by failing to communicate with the Internal Revenue Service concerning a tax return due by the estate of Jess W. Waggoner;
e. by failing to communicate with his client or the his client's new counsel.
Each of these failures by the respondent constitutes a separate incident of lack of diligence and promptness, and neglect, as do all of them together.
The respondent knew or should have known that his lack of diligence and promptness, and neglect continued to occur over a period of months and involved a pattern and practice of lack of diligence and promptness, and neglect.
The respondent's lack of diligence and promptness, and neglect caused injury or potential injury to the client.
The respondent's pattern and practice of failing to accomplish his professional tasks for the client constitutes abandonment of the professional responsibilities owed to that client.
The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 1.3.
WHEREFORE, the complainant prays at the conclusion hereof.
CLAIM II
[A Lawyer Shall Keep A Client Reasonably Informed About the Status of a Matter, Promptly Comply With Reasonable Requests for Information — Colo. RPC 1.4 (a) ]
Paragraphs 1 through 29 are incorporated herein as if fully set forth.
Colo. RPC 1.4 (a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
The respondent failed to keep the client reasonably informed about the status of the legal matter and failed to comply promptly with reasonable requests for information in the following respects:
a. by failing to respond to his client's repeated telephone calls and written requests for information;
b. by failing to respond to the verbal requests for information by the OARC about the status of Jess W. Waggoner and Pearl Morris estates;
c. by failing to respond to written requests by the OARC made on January 14 and 19, 2003, February 26, 2003, March 10, 2003, April 3, 2003, and June 20, 2003 and by failing to maintain minimum communications with the client from June 2002 to the date the client was forced to retain new counsel in June of 2003;
d. by failing to respond to the client's new counsel's reasonable requests for information and the files.
Each of these failures to communicate adequately with the client constitutes a separate violation of Colo. RPC 1.4 (a) as do all of them together.
The respondent knew or should have known that he had failed to communicate adequately with his client over an extended period of months.
The respondent's pattern and practice of failing to communicate with the client caused injury or potential injury to the client.
The respondent's failure to communicate on these matters constitutes abandonment of the professional responsibilities owed to the client.
By such conduct, the respondent violated Colo. RPC 1.4 (a).
WHEREFORE, the complainant prays at the conclusion hereof.
CLAIM III
[Upon Termination, a Lawyer Shall Take Steps to Protect a Client's Interest and Surrender Papers and Property to the Client — Colo. RPC 1.16 (d) ]
Paragraphs 1 through 29 are incorporated herein as if fully set forth.
Colo. RPC 1.16 (d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that had not been earned.
The respondent effectively terminated the attorney-client relationship by failing to communicate with the client after June 20, 2002, despite the client's numerous attempts to communicate with the respondent, and by failing to take any other action on behalf of the client.
The respondent failed to give the client notice that he had terminated the representation, failed to advise the client to obtain other counsel, and otherwise failed to take steps to protect the client's interest.
The attorney who replaced respondent and the client made requests June 9, and July 28, 2003, for the client's file from respondent.
Respondent failed to return the client's files and papers despite demands and requests to do so.
By such conduct, the respondent violated Colo. RPC 1.16 (d).
CLAIM VIV
[An Attorney Shall Respond To A Request By The Regulation Counsel For Information Necessary To Carry Out The Performance Of Regulation Counsel's Duty — C.R.C.P. 251.5 (d); A Lawyer Shall Not Knowingly Fail to Respond Reasonably To A Lawful Demand for Information From A Disciplinary Authority — Colo. RPC 8.1 (b) ]
Paragraphs 1 through 29 are incorporated herein as if fully set forth.
C.R.C.P. 251.5 (d) requires that an attorney respond to a request by the Attorney Regulation Counsel for information to carry out the performance of its duties.
After September 5, 2002, the respondent failed to respond to repeated attempts by the OARC for information from the respondent.
The respondent knew or should have known that he was failing to cooperate and respond to the request by Attorney Regulation Counsel.
The foregoing conduct of the respondent in failing to respond to requests of Attorney Regulation Counsel establishes grounds for discipline as provided in C.R.C.P. 251.5.
Colo. RPC 8.1 (b) provides that a lawyer in connection with a disciplinary matter shall not knowingly fail to respond reasonably to a lawful demand for information from a disciplinary authority, except if the information is protected by Colo. RPC 1.6 or there is a good faith challenge to the demand.
The respondent knowingly violated the rule by failing to respond to the demands for information made by Attorney Regulation Counsel during the investigation of the subject matter of this disciplinary proceeding.
The information sought did not require disclosure of information otherwise protected by Colo. RPC 1.6.
The respondent made no good faith challenge to the demand by Attorney Regulation Counsel for such information.
The foregoing conduct of the respondent in failing to respond to requests of regulation counsel establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 8.1 (b).
WHEREFORE, the people pray that the respondent be found to have engaged in misconduct under C.R.C.P. 251.5 and the Colorado Rules of Professional Conduct as specified above; the respondent be appropriately disciplined for such misconduct; the respondent be required to return client files or other client property; the respondent be required to take any other remedial action appropriate under the circumstances; and the respondent be assessed the costs of this proceeding.