PEOPLE v. STEVENS, 10PDJ002 (Colo.O.P.D.J. 10-7-2010)

e, skill, thoroughness and preparation reasonably necessary for the representation.").

Colo. RPC 1.2(c) provides: "A lawyer may limit the scope or objectives, or both, of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." The language of this rule permits, under some circumstances, the provision of unbundled legal services, whereby an attorney provides some services for a client or a non-client but not the full range of possible legal services. However, before limiting the scope of representation, a lawyer must obtain "informed consent," which is defined as "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." A lawyer providing unbundled services "must clearly explain the limitations of the representation, including the types of services which are not being provided and the probable effect of limited representation on the client's rights and interests."

Comments 6 and 7 to Colo. RPC 1.2 and Colo. Bar Assoc. Ethics Opinion 101: Unbundled Legal Services, Jan. 17, 1998, contemplate limited representation under circumstances different from those presented here, such as an insurer's retention of a lawyer to represent an insured person or a lawyer helping a pro se litigant prepare for a hearing. Colo. RPC 1.2(c) and case law suggest that there are some situations in which an attorney and a criminal defendant may permissibly decide to limit the scope of a representation. See People v. Harlan, 54 P.3d 871, 876, 880-81 (Colo. 2002); United States v. Roth, 860 F.2d 1382, 1385, 1389 (7th Cir. 1988). A tension exists between attorneys' ethical obligations to zealously defend their clients and the limited financial resources of some defendants and some attorneys. See generally Fern Fisher-Brandveen and Rochelle Klempner, Unbundled Legal Services: Untying the Bundle in New York State, 29 FORDHAM URB. L.J. 1107 (Feb. 2002); Fred C. Zacharias, Limited Performance Agreements: Should Clients Get What They Pay For?, 11 GEO. J. LEGAL ETHICS 915 (Summer 1998). Although in some instances a criminal defendant may benefit from a limited defense, we note that limited representation in the criminal context is unusual and poses special risks because of the liberty interests at stake, among other reasons. Furthermore, limited representation in the criminal context may not carry the same benefits as in the civil context. For example, one of the primary advantages of unbundled legal services in the civil context is that such services may increase access to justice for low-to middle-income persons. See, e.g., Brenda Star Adams, " Unbundled Legal Services": A Solution to the Problems Caused by Pro Se Litigation in Massachusetts's Civil Courts, 40 NEW ENG. L. REV. 303, 348-49 (Fall 2005). Another advantage is that such services may alleviate some of the judicial delays and difficulties caused by pro se litigants. Where, as here, a criminal defendant qualifies for public assistance, limited representation by a private attorney does not serve those goals.

Colo. RPC 1.0.

Colo. Bar Assoc. Ethics Opinion 101: Unbundled Legal Services, Jan. 17, 1998; see Johnson v. Bd. of County Cmm'rs, 85 F.3d 489, 494 (10th Cir. 1996) (holding that an attorney who had defended claims brought against a sheriff in his official capacity but not in his individual capacity violated Colo. RPC 1.1 by not consulting with the sheriff under Colo. RPC 1.2 about the legal exposure he faced in his individual capacity); Keef v. Widuch, 747 N.E.2d 992, 995, 998 (Ill. App. 2001) ("the client must be made to understand that the course of action is not the sole potential remedy and that there exist other courses of action that are not being pursued"); In re Maternowski, 674 N.E.2d 1287, 1291 (Ind. 1996) ("meaningful consent to a limitation on the lawyer's scope of representation must be based on full, objective disclosure and unbiased advice"); Healy v. Axelrod Const. Co. Defined Ben. Pension Plan Trust, 155 F.R.D. 615, 620 (N.D. Ill. 1994).

Here, Respondent characterized his limited representation as follows in a letter to the People:

I was retained by Marcus Robinson's parents with the understanding that defense cost of the habitual criminal chare [sic] was prohibitive and best undertaken by the public defender. I informed them that no [sic] advantage of hiring private counsel was solely the logistic of preliminary investigation of the sexual assault charge. That was accomplished.

If Respondent solely represented Robinson on the rape charge between September 2008 and March 2009, that means Robinson lacked any legal representation on the other charges for approximately six months. During that lengthy period, nothing was done to investigate, negotiate with the district attorney, or prepare for trial on the other charges. Respondent certainly knew, or should have known, that no other attorney was assisting Robinson on those charges. This situation is particularly troubling because neither the judge nor the prosecutor in Robinson's case was informed of the limited scope of Respondent's representation, and because Respondent set the matter for trial on all counts. The Hearing Board finds that Respondent's attempt to limit his representation of Robinson was not reasonable under the circumstances presented here.

Our determination is limited to these facts. We do not find that limited representation on a single charge or the use of "shadow counsel" necessarily would be improper in every circumstance.

Moreover, Respondent has provided us with no basis to believe that Robinson provided informed consent to the limited scope of representation as Respondent describes it. Even if Robinson had provided some form of consent, however, the evidence indicates that Robinson may have lacked capacity to provide informed consent to such a significant deviation from the expected attorney-client relationship. The private defense attorney who represented Robinson for a time after Respondent's withdrawal, Jason Cuerdon, testified that Robinson did not understand indeterminate sentences or the ramifications of the charges. Jason Cuerdon further testified that he believed it took some thirty meetings with Robinson for Robinson to fully understand that he faced a very long prison sentence. Under these circumstances, the Hearing Board concludes that Robinson could not and did not sufficiently understand the nature of the limited representation that Respondent meant to offer, the risks of that representation, and the alternative courses of action.

We are not aware of case law providing competency standards for informed consent to a limited representation, but we draw guidance from the rule that a waiver of the right to conflict-free representation must be voluntary, knowing, and intelligent. People v. Shari, 204 P.3d 453, 460 (Colo. 2009).

Patella Robinson's testimony also indicates that Robinson's parents, who had never before hired a lawyer, did not fully understand that Respondent intended to offer a limited scope of representation. Patella Robinson testified that she did not understand the procedures by which defendants are tried and charged, and she suggested she thought it might be possible to clear up the rape charge before the other charges were addressed. She stated that she understood that Respondent would help with the rape charges, but she also testified that she understood Respondent was "going to be [Robinson's] lawyer," he was "going to take care of the case," and he would "take care of whatever needed to be done." Patella Robinson also offered credible testimony that she did not recall Respondent having discussed any alternative defense strategies with her or explained the risks of focusing solely on the rape charge.

We discuss Respondent's communication with Robinson's parents because this information provides a fuller picture regarding Respondent's efforts to limit the scope of his representation. We do not determine here that Respondent's parents had the authority to provide informed consent to a limited scope of representation on behalf of their son, although we note that it may be possible in some cases for parents or other persons to provide such consent on behalf of a client who lacks capacity to do so. Cf. McDonald v. Hammons, 936 F. Supp. 86, 88 (E.D.N.Y. 1996) (noting that in some instances a parent can waive a child's right to conflict-free representation). Here, even if the Robinsons had the legal capacity to provide informed consent on behalf of their son, the evidence shows that they were not fully informed by Respondent, and therefore they could not have provided informed consent.

Respondent argues that the amount he charged the Robinsons demonstrates his intent to limit his representation. But in these circumstances, where Patella Robinson did not "know the amount of work to expect for the amount of money [she] paid," payment of the requested fee cannot be understood as signaling agreement to a limited scope of representation.

See Estate of Spencer v. Gavin, 946 A.2d 1051, 1067 (N.J. Super. 2008) ("the quantum of a lawyer's fees is not dispositive of the presence or absence of an attorney-client relationship and the professional duties attendant to such a relationship").

In summary, the Hearing Board determines that Respondent's attempt to restrict the scope of his representation of Robinson was neither reasonable nor the product of informed consent, and that Respondent did not represent Robinson with the requisite thoroughness and preparation. Accordingly, we find that Respondent violated Colo. RPC 1.1.

Colo. RPC 1.15(a), 1.15(c), and 1.5(b)

In an order imposing partial judgment on the pleadings, the PDJ previously determined that Respondent violated Colo. RPC 1.15(a). Respondent violated this rule by failing to deposit Robinson's advance fee in a trust account.

See In re Sather, 3 P.3d 403, 405 (Colo. 2000) ("under Colo. RPC 1.15 an attorney cannot treat advance fees as property of the attorney and must segregate all advance fees by placing them into a trust account until such time as the fees are earned").

We likewise find that Respondent violated Colo. RPC 1.15(c), which requires an attorney to account to the client for the use of client funds. Respondent admitted at the hearing that he did not provide accountings to Robinson or Robinson's parents when he cashed the checks from Patella Robinson.

See People v. Fritsche, 849 P.2d 31, 32 (Colo. 1993) (lawyer failed to provide an accounting to client); Colo. RPC 1.15 [cmt] 8 (explaining that an accounting as to the use of client funds is required even if there is no dispute as to ownership of those funds).

In fact, Respondent provided incorrect information to Patella Robinson regarding the use of his fee. He explained that he needed this fee in part to pay for an independent analysis of the rape kit, but he never obtained such an analysis.

Finally, we conclude Respondent violated Colo. RPC 1.5(b). This rule provides that, when a lawyer has not regularly represented a client, the lawyer must communicate the basis or rate of the fee to the client in writing, before or within a reasonable time after commencing the representation. At the hearing, Respondent admitted that he had not previously represented Robinson and that he never provided a written explanation of his fee.

See In re Wimmershoff, 3 P.3d 417, 419 (Colo. 2000) (lawyer violated Colo. RPC 1.5 by failing to clearly convey the basis and rate of his fee).

IV. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions (1991 Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law govern the selection and imposition of sanctions for lawyer misconduct. ABA Standard 3.0 mandates that, in selecting the appropriate sanction, the Hearing Board consider the duty breached, the injury or potential injury caused, Respondent's mental state, and the aggravating and mitigating evidence.

ABA Standard 3.0 — Duty, Injury, and Mental State

Duty : The Hearing Board finds Respondent violated his duty to competently represent his client with the thoroughness that was reasonably necessary, to preserve client property with the care required of a professional fiduciary, and to account for the use of client funds. The Hearing Board also finds Respondent breached the duties he owes as a professional when he failed to provide a written explanation of his fee to a new client. Injury : Respondent's misconduct caused injury and potential injury to his client. Most significantly, Respondent was forced to waive his constitutional right to a speedy trial as a result of Respondent's inaction. Robinson's statement to the court at the trial status hearing in March 2009 demonstrated another intangible injury: significant confusion on Robinson's part due to the lack of communication regarding Respondent's representation. Further, Respondent's lack of thoroughness and preparation created the possibility for a host of potential injuries. In addition, Respondent's failure to deposit the advance fee in a trust account, to provide an accounting, or to explain his fee caused injury or potential injury by depriving his client and his client's parents of valuable information and by heightening the risk of misuse of the funds.

See ABA Standard 4.0.

See ABA Standard 7.0.

Respondent argues that delay in Robinson's case redounded to Robinson's benefit, because as long as Robinson had not been sentenced, he had some hope of avoiding a long prison sentence. We cannot credit this viewpoint, given that there is no evidence that Robinson himself wished to delay his trial. Respondent appears to be speculating regarding Robinson's frame of mind, and Respondent's argument presupposes that Robinson will be found guilty.

Mental State : Respondent knew that he failed to place his client's funds in a trust account, failed to provide an accounting regarding his use of those funds, and failed to explain his fee in writing. He also had actual knowledge of his decisions with respect to limiting his representation of Robinson, although he had no conscious intent to deprive Robinson of competent legal representation.

Respondent did not challenge the People's characterization of his mental state as knowing for these rule violations.

See ABA Standards § III, Definitions.

ABA Standard 3.0 — Aggravating Factors

Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. The Hearing Board considers evidence of the following aggravating circumstances in deciding the appropriate sanction.

Prior Disciplinary Offenses — 9.22(a) : Respondent was suspended for a year and a day in 1994 for disciplinary offenses that are unrelated to the gravamen of this matter. In 2003, Respondent was privately admonished for two rule violations. First, Respondent failed to communicate the basis or rate of his fee to clients in writing, in violation of Colo. RPC 1.5(b). Second, Respondent used his trust account as a personal account, in violation of Colo. RPC 1.15(f).

Multiple Offenses — 9.22(d) : The Hearing Board finds four separate violations of the Rules of Professional Conduct, as outlined above.

Vulnerability of the Victim — 9.22(h) : Respondent's client was vulnerable because he was in custody and facing a sentence of forty-eight years to life in prison, and because he appears to have had limited capacity for understanding the nature of the criminal proceeding. Robinson's parents also were vulnerable because, as noted above, they had no prior experience in hiring a lawyer. Substantial Experience in the Practice of Law — 9.22(i) : Respondent has been a member of the Colorado bar for thirty-seven years. Such a longstanding practitioner should have known that his conduct violated the Rules of Professional Conduct, as outlined above.

ABA Standard 3.0 — Mitigating Factors

Mitigating factors are any considerations or factors that may justify a reduction in the degree of discipline imposed. The Hearing Board considers evidence of the following mitigating circumstances in deciding the appropriate sanction.

Absence of a Dishonest or Selfish Motive — 9.32(b) : Respondent testified that he was not motivated by a dishonest or selfish motive, and the People have conceded that Respondent lacked such a motive. The Hearing Board also notes that the testimony is undisputed that in the past Respondent has demonstrated unselfish behavior by providing legal services at minimal cost to clients in need and by volunteering his time to the community. We hasten to add, however, that providing low-or no-fee representation does not absolve a lawyer of his or her duties to provide thorough and competent representation as provided in Colo. RPC 1.1.

Remoteness of Prior Offenses — 9.32(m) : Respondent's suspension for unrelated offenses in 1994 is sufficiently remote that the Hearing Board does not consider this suspension to be an aggravating factor in this case. However, the Hearing Board does give weight to Respondent's 2003 private admonition, because the conduct at issue there was not particularly remote and that conduct was closely related to the misconduct we have found here.

See People v. Good, 790 P.2d 331, 332 (Colo. 1990) (in case concerning attorney neglect, prior neglect occurring fifteen to twenty years earlier was relevant to the discipline to be imposed).

Sanctions Analysis under ABA Standards and Case Law

ABA Standard 4.42 provides that suspension is generally appropriate when a lawyer causes a client injury or potential injury by knowingly failing to perform services for a client or engaging in a pattern of neglect. ABA Standard 4.12 states that suspension is generally appropriate when a lawyer knows or should know that he or she is dealing improperly with client property, such as by failing to place client funds in a trust account or failing to account for the use of those funds, and causes injury or potential injury to a client. Finally, where a lawyer fails to explain his or her fee in writing and thereby causes injury or potential injury to a client, the public, or the legal system, ABA Standard 7.2 provides that suspension is generally appropriate for the violation of a duty owed as a professional.

Although Appendix 1 of the ABA Standards indicates that ABA Standard 4.5 applies to incompetent representation, ABA Standard 4.5 is oriented towards lack of legal knowledge or skill rather than lack of thoroughness or preparation. Accordingly, we determine that ABA Standard 4.4 (lack of diligence) is more relevant to the conduct at issue here.

The ABA Standards further provide that, in cases involving multiple charges of misconduct, "[t]he ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct among a number of violations; it might well be and generally should be greater than the sanction for the most serious misconduct."

See ABA Standards § II at 7.

Respondent's misconduct in this case warrants a suspension for several reasons. First, Respondent's actions and statements at the hearing before us demonstrate a misguided belief that his method of representing clients complies with the Rules of Professional Conduct. For example, Respondent stated that he believes there has been an "elevation of form over substance" in his case. Second, while Respondent appears to be well intentioned, we find Respondent fails to appreciate that the Rules at issue here regarding client communication serve the important goal of empowering clients in their relationships with their attorneys.

The Hearing Board is also concerned about the developing pattern of Respondent's ethical violations. As noted above, Respondent was previously privately admonished for failing to communicate the basis or rate of his fee to clients in writing and for using a trust account as a personal account. While Respondent testified that going forward he would scrupulously endeavor to adhere to these rules, we are concerned that he will not do so because Respondent's prior discipline did not lead him to change his behavior. Respondent also admitted during his testimony that he has defended others in the same manner as he did Robinson. In one instance, Respondent described "shadowing" the public defender, who was the counsel of record, while Respondent provided limited representation much as he did in Robinson's case. It is not clear from this record that the public defender knew about Respondent's shadow representation.

A final basis for concern is Respondent's apparent view that he satisfies the responsibility of providing zealous representation because he can "outthink" his opposing counsel. As discussed above, although Respondent attended several hearings and conducted interviews on behalf of Robinson, there is little other evidence of legal work that Respondent performed on Robinson's behalf, despite being paid $3,300.00. While Respondent may have a superior intellect, that alone does not assure compliance with Colo. RPC 1.1.

Colorado case law suggests that a lengthy suspension is appropriate where an attorney with prior discipline has failed to diligently work on a client matter and has violated other rules regarding client communication and proper management of client funds. For example, in People v. Convery, an attorney with a prior disciplinary history was suspended for a year and a day for neglecting a legal matter. The neglect in Convery was somewhat more serious than the neglect here; the lawyer filed a frivolous motion, failed to respond to interrogatories, failed to take action on the case, leading to the garnishment of the client's bank account, and failed to inform a client of a deposition, causing the court to order the sale of the client's property. Convery, however, provides a comparable basis for selecting a sanction in Respondent's case because the lawyer's misconduct in Convery was limited to neglect, while Respondent's misconduct encompassed not only neglect but also three separate violations relating to client funds and client communication.

758 P.2d 1338 (Colo. 1988).

Id. at 1340.

See also People v. Davies, 926 P.2d 572, 573 (Colo. 1996) (suspending a lawyer with prior discipline for a year and a day for having incorrectly calculated a client's child support); People v. Madrid, 700 P.2d 558, 559-60 (Colo. 1985) (suspending a lawyer for a year and day for having neglected to contact witnesses, file motions, subpoena witnesses, or respond to his client); People v. Silvola, 933 P.2d 1308, 1309-10 (Colo. 1997) (suspending a lawyer with several instances of prior discipline for a year and a day for having failed to prepare for a client's trial).

In imposing a sanction, the Hearing Board emphasizes the varied nature of Respondent's violations in this matter, the vulnerability of the victim, and the incipient pattern that this misconduct and Respondent's prior misconduct are forming. Given these factors, we believe a suspension of a year and day is appropriate.

V. CONCLUSION

For the reasons explained above, the Hearing Board determines that Respondent should be suspended for a year and a day. We also note our concern about Respondent's physical and mental health. At the hearing, Respondent's demeanor was erratic, while his testimony and arguments often were difficult to follow and at times were incoherent. The Hearing Board recognizes that the stress of defending oneself in a disciplinary proceeding could contribute to such difficulties. Nevertheless, we are concerned that if Respondent continues to practice law, an underlying physical or mental condition could affect the quality of Respondent's representation of future clients. Accordingly, we will require that Respondent submit to an Independent Medical Examination ("IME") as a condition of reinstatement.

Similar red flags are raised by Respondent's letter to the People of June 9, 2009, regarding the investigation against him, which contained numerous spelling and grammatical errors. See People's exhibit 4.

VII. ORDER

The Hearing Board therefore ORDERS:

1. JERRY LEE STEVENS, Attorney Registration No. 04033, is hereby SUSPENDED from the practice of law for one year and one day. The suspension SHALL become public and effective thirty-one days from the date of this order upon the issuance of an "Order and Notice of Suspension" by the PDJ and in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h).

2. As a condition precedent to any petition for reinstatement pursuant to C.R.C.P. 251.29(c), Respondent SHALL attend and successfully complete the one-day ethics school and the one-half-day trust account school sponsored by the People.

3. As a condition precedent to any petition for reinstatement pursuant to C.R.C.P. 251.29(c), Respondent SHALL submit to an IME by a qualified doctor agreeable to the People. Respondent, not the People, shall be responsible for the cost of the IME. Once a qualified expert is chosen, it is Respondent's duty to advise the Court so that an appropriate order may be drafted and presented to the doctor as to what issues to address in a report to the Court. The doctor shall have access to all records in the People's possession, as well as this opinion, before meeting with Respondent for the scheduled IME.

4. Respondent SHALL file any post-hearing motion or application for stay pending appeal with the PDJ on or before October 27, 2010. No extensions of time will be granted.

5. Respondent SHALL pay the costs of these proceedings. The People shall submit a "Statement of Costs" within fifteen (15) days from the date of this order. Respondent shall have ten (10) days thereafter to submit a response.

DATED THIS 7th DAY OF OCTOBER, 2010.

___________________ WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGE

( Original Signature on File ) WILLIAM R. GRAY HEARING BOARD MEMBER

( Original Signature on File ) HENRY R. REEVE HEARING BOARD MEMBER

Copies to:

Charles E. Mortimer, Jr. Via Hand Delivery Office of Attorney Regulation Counsel

Jerry Lee Stevens Via First Class Mail Respondent 7201 East 36^th Avenue, No. 161 Denver, CO 80207

William R. Gray Via First Class Mail Henry R. Reeve Via First Class Mail Hearing Board Members

Susan Festag Via Hand Delivery Colorado Supreme Court