SUPREME COURT, STATE OF COLORADO FILED

ORIGINAL PROCEEDING IN DISCIPLINE . OCT 202009

BEFORE THE PRESIDING DISCIPLINARY JUDGE
1560 Broadway, Suite 675 iPRESIDING DISClPLiNARY JUDGE
Denver, Colorado 80202 SUPRruJECOURTOFCOLORADO
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
... COURT USE ONLY ...
Respondent:

GEORGE CASE PRICE Case Number:
James S. Sudler, #08019 Q9PDJ 091
Assistant Regulation Counsel
John S. Gleason, #15011
Regulation Counsel
Attorneys for Complainant
1560 Broadway, Suite 1800
Denver, Colorado 80202
Telephone: (303) 866-6400, ext. 6466
Fax No.: (303) 893-5302
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

1. The respondent has taken and subscribed the oath of admission,

was admitted to the bar of this court on October 17, 1980, and is registered upon the official records of this court, registration no. 10652. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 925 South Niagara Street, Suite 200, Denver, Colorado 80224.

General Allegations

Estate of Herman Ortiz Matter

2. Respondent represented Herman Ortiz. Mr. Ortiz is now deceased.

Before Mr. Ortiz died, he engaged respondent to represent him on an EEOC complaint against Cherry Creek Dodge and Lithia Motors. Resporident also represented three other plaintiffs against those defendants.

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3. Initially, the EEOC indicated that it could not make a finding of

discrimination and then issued a right to sue letter. The agency rescinded that letter and reconsidered. Then the agency issued a finding of discrimination. From that finding until early 2006, the EEOC was going to sue on .behalf of all· individuals who had suffered discrimination at the hands of Lithia.

4. Mr. Ortiz passed away in November 2005 several months before

other cases involving Lithia were settled.

5. When Mr. Ortiz died, respondent's attorney client relationship was

effectively terminated. At that time, respondent arranged for the creation of an estate for Mr. Ortiz. He contacted attorney Jack Harding, who filed the paperwork for an estate and was appointed the administrator.

6. Although respondent had a written fee agreement with Herman

Ortiz, respondent never entered into a written fee agreement with the personal representative of Herman Ortiz.

7. Respondent stated that he attempted to contact the attorney for'

Lithia to begin the negotiation process.· When that was not successful, respondent stated that he asked the EEOC to issue a right to sue letter and that was provided on February 1, 2008. Respondent filed complaint in Federal District Court on May 1, 2008.

8. On June 11, 2008, the United States District Court sent a letter to

respondent stating that his check for $350.00 for the filing fee was returned unpaid. The court imposed a cost of $45.00 for the return of that check.

9. On June 30, 2008, Magistrate Judge Kristen Mix. entered an Order

that plaintiff was to make payment of $395.00 by cash or money order by close of business July 11, 2008. The Register of Action shows that respondent did pay $395.00 on July 11, 2008.

10. Also on June 30, 2008, respondent filed a motion to continue the scheduling and planning conference stating that service had not been completed. He stated in his motion that for some reason the summons and complaint were not provided to the process server to be served on the defendants. He stated that the problem had been remedied and the documents "are out for service".

11. On September 29, 2008, the Register of Actions shows that respondent filed another motion to continue the scheduling and planning conference. That particular motion is dated the 25th day of June 2008 which is believed to be an error. In that motion, respondent stated that the summons and complaint were provided to the process server in June 2008 and again the documents were not served. Respondent stated that he assumed service would

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be accomplished but he was not as attentive as he should have been because of some personal medical issues, extensive travel to the east coast related to his mother's death and the handling of her estate and the departure of his assistant in the June timeframe. Respondent stated that he had been assured by the process server that the summons and complaint had been finally served and that the returns of service would be provided the next day.

12. When asked what his personal medical problems were that led him to the problem he referred to, respondent stated that he had shoulder problems. Respondent offered no further explanation as to why it took from May 1, 2008, until September 29, 2008 to effect service of the summons and complaint on the defendants. The defendants' registered agent at all pertinent times in this matter was CT Corporation in downtown Denver.

13. On October 30, 2008, respondent filed a motion for default judgment. In that motion, he stated that defendants were served on September 29, 2008. He attached a summons and a return of service signed by Wayne Roberts. Apparently, Ms. Roberts signed that return of service on September 29,2008.

14. On November 4, 2008, the clerk entered formal note in the case regarding default stating that default would not be entered as to the defendants. The clerk's note about service states that it was unclear the date the parties were served and that according to Fed. R. Civ. P. 4 (h) and (1)(1) default will not be entered.

15. On that same day, Magistrate Mix entered an Order stating that the court urged respondent to withdraw his motion for default, and file amended affidavits of service.

16. The problem with service was that the return of service did not indicate that a copy of the complaint was left for each of the defendants, Lithia Motors and Lithia Cherry Creek Dodge, and it did not indicate that they were left with the Registered Agent at CT Corporation, 1675 Broadway, Denver, Colorado.

17. On February 4, 2009, respondent filed another motion for entry of default. In that motion, he stated that the defendants were served on September 29, 2008.

18. The Clerk of the Court did enter default against the defendants at that time based upon a different return of service filed by respondent. This return of service appears to be signed by Wayne (Waynealie) Roberts purportedly on 11/13/08. That language states: «Served on registered agent for all defendants on September 29, 2008 by leaving a copy for each defendant with CT Corporation, 1675 Broadway, Denver, Colorado, 80202, the designated agent for service of process."

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19. On March 12, 2009, Lithia Motors through attorney Michael Sullivan filed a motion to set aside the entry of default by the clerk. Among other things, the defendants alleged that they had never been served properly through their registered agent.

20. On March 15, 2009, respondent filed a motion for a default judgment. In that motion, he stated that the summons and complaint were served on September 29, 2008 and that 126 days had elapsed with no response or contact from the defendants.

21. After various pleadings were filed concerning the entry of default by the clerk and the motion for default judgment, Judge Brimmer entered an Order on May 5, 2009 setting aside the entry of default against the defendants. Among other things, Judge Brimmer stated that plaintiff, through respondent, had demonstrated a lack of attentiveness to the case. Judge Brimmer wrote that after the check for the filing fee was not paid, plaintiff did not correct the deficiency for three months. Further, Judge Brimmer stated that respondent himself admitted to a lack of diligence in affecting service on the defendants. Judge Brimmer referred to both of respondent's motions to continue the scheduling/ planning conference. Judge Brimmer finally concluded that respondent's first motion for default was denied because the reporting of the service of process was lacking.

22. Then respondent had the summons and complaint served again and filed returns ofservice on May 31, 2009.

23. On June 8, 2009, defendants filed an answer and the litigation is ongoing.

Claim One Estate of Herman Ortiz (Colo. RPC 1.3)

24. Paragraphs 1-23 above are incorporated herein.

25. Respondent violated Colo. R.P.C. 1.3 because he has failed to act with reasonable diligence and promptness in representing the estate of Herman Ortiz or the personal representative of Mr. Ortiz.

26. Respondent was not diligent in the following respects:

a. His failure to have the summons and complaint served on the defendants in a timely fashion;

b. His failure to make his check for the filing fee good In a prompt fashion;

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c. His failure to assure that the return of service was completed appropriately;

d. His failure to file a second motion for entry of default by the clerk in a prompt fashion.

WHERERFORE, complainant prays at the conclusion hereof.

Claim Two Estate of Herman Ortiz (Colo. RPC 1.5(c))

27. Paragraphs 1-23 above are incorporated herein.

28. Respondent violated Colo. RPC 1.5(c) because he had no written contingent fee agreement with his client, the estate of Herman Ortiz, or the personal representative of Herman Ortiz.

29. After Herman Ortiz died, respondent was required to enter into a new contingency fee agreement with the personal representative of Mr. Ortiz.

30. Specifically, Rule 4(b) of the Colorado Rules of Civil Procedure, Chapter 23.3, Rules Governing Contingent Fees requires that each contingent fee agreement be in writing, in duplicate signed both by the attorney and be the client. Further, said rule requires that a signed duplicate be mailed or delivered to the client within ten days after the making of the agreement.

31. Respondent failed to have a signed fee agreement with the personal representative of the estate of Herman Ortiz.

32. Respondent failed to deliver a signed contingent fee agreement to the personal representative within 10 days of making the agreement.

33. Respondent violated Colo. RPC 1.5{c) for the above stated reasons.

WHERERFORE, complainant prays at the conclusion hereof.

Stephen Rees Matter

34. Respondent began representing Stephen Rees in the fall of 2002 in a civil rights case. Mr. Rees was and still is an employee of Adams County Social Services.

35. In the first matter in which respondent represented Mr. Rees, it was alleged that Mr. Rees was accused of inappropriate conduct as a case

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worker in the Sex Abuse Unit. This matter concerned an administrative hearing.

36. The result of that hearing was unfavorable to Mr. Rees. He was demoted. . As a. result of his treatment, respondent filed a charge of discrimination with the EEOC alleging discrimination based upon sex. This case was settled for $7,000 payment to Mr. Rees.

37. Mr. Rees through respondent filed another discrimination case against Adams County later. Apparently, Mr. Rees was working on a temporary basis in the Department of Social Services Sex Abuse Unit. His supervisors wished to place him in the position permanently and made arrangements to do so. After his placement there, the director of his section allegedly stated that she would not allow him to be placed permanently in that position because of the lawsuit he had previously filed.

38. As a result of that comment, another EEOC complaint was filed through respondent by Mr. Rees. After receiving a notice for right to sue from the EEOC, respondent filed an action in the United States District Court alleging discrimination and retaliation. Respondent filed the suit on January 31, 2007.

39. Respondent did not communicate with Mr. Rees for lengthy periods of time. Mr. Rees has provided various emails and letters to respondent showing that respondent did not communicate with him adequately or when Mr. Rees asked him to do so.

40. Mr. Rees does not recall ever seeing a copy of the complaint respondent filed on his behalf.

41. Respondent never showed Mr. Rees his own deposition or the depositions of two Adams County employees that respondent took.

42. Respondent never provided a copy of the motion for summary judgment filed by the county or respondent's response.

43. As discussed below, at the time Mr. Rees filed his request for investigation with the Office of Attorney Regulation, his lawsuit had been dismissed on summary judgment. Mr. Rees did not learn about dismissal of his lawsuit from respondent. Mr. Rees did call the County Attorney, Hal 'Warren, to learn what was going on in his case. Mr. Warren told him that the case was dismissed, but Mr. Rees was not sure about the accuracy of this information.

44. As noted, the defendant in the lawsuit filed a motion for summary judgment. Respondent stated that he contacted Mr. Rees and had him sign an affidavit in response to the motion for summary judgment.

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45. On May 27, 2009, Judge Arguello of the United States District Court for the District of Colorado entered summary judgment against Mr. Rees.

46. Respondent stated that when he received the order he mailed a copy shortly after its receipt to Mr. Rees, but Mr. Rees denies that he ever received such a letter.

47. Respondent states that he did not hear from Mr. Rees after the letter was mailed.

48. Respondent did not try to follow up with Mr. Rees about dismissal of Mr. Rees's lawsuit until after Mr. Rees had filed a request for investigation with the Office of Attorney Regulation Counsel.

49. Respondent did not clarify the basis of his fee with Mr. Rees in writing. Mr. Rees understood it was going to be free. Respondent has stated that it was a contingency fee arrangement; however, respondent never prepared or gave a written contingent fee agreement to Mr. Rees. No signed contingent fee agreement between respondent and Mr. Rees in this matter exists.

Claim Three Stephen Rees Matter (Colo. RPC l.S(c))

50. Paragraphs 1 and 34-49 are incorporated herein.

51. Respondent violated Colo. R.P.C. 1.5(c) in the Stephen Rees matter because he did not comply with all of the requirements of Chapter 23.3 of the Civil Rules of Procedure.

52. Specifically, Rule 4(b) of the Colorado Rules of Civil Procedure, Chapter 23.3, Rules Governing Contingent Fees requires that each contingent fee agreement be in writing, in duplicate signed both by the attorney and be the client. Further, said rule requires that a signed duplicate be mailed or delivered to the client within ten days after the making of the agreement.

53. Respondent failed to have a signed fee agreement with Mr. Rees.

54. Respondent failed to deliver a signed contingent fee agreement to , Mr. Rees within 10 days of making the agreement.

55. Respondent violated Colo. RPC 1.5(c) for the above stated reasons.

WHERERFORE, complainant prays at the conclusion hereof.

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Claim Four Stephen Rees Matter (Colo. RPC 1.S(b))

56. Paragraphs 1 and 34-49 are incorporated herein.

57. Respondent violated Colo. RPC 1.5(b) because he did not regularly represent Mr. Rees and he did not communicate to Mr. Rees the basis or rate of the fee and expenses in writing within a reasonable time after commencing the representation.

WHERERFORE, complainant prays at the conclusion hereof.

Claim Five Stephen Rees Matter (Colo. RPC 1.4(a) and (b))

58. Paragraphs 1 and 34-49 are incorporated herein.

59. Respondent violated Colo. RPC 1.4(a) and (b). He did not

communicate adequately with his client about what was happening in the case, and he did not respond appropriately to requests from his client for information about the case.

WHERERFORE, complainant prays at the conclusion hereof.

Betty Johnson Matter

60. Betty Johnson was a Deputy Sheriff in the City and County of Denver.

61. She alleged that she had been discriminated against because of her gender. She hired respondent to represent her. He first represented her at career service hearings.

62. In 2004 when the representation began, complainant gave respondent a check for $2,000.00. She stated that respondent never sent her a bill or an invoice to inform her how he used her $2,000.00.

63. Respondent did not prepare a written fee agreement about his representation of Ms. Johnson in the career service matters.

64. Respondent never gave Ms. Johnson any writing which explained the basis of his fee in the career service matters.

65. Respondent has never provided documentation such as time or work performed for the $2,000.00.

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66. After the career service matters, the respondent filed a case in federal court for Ms. Johnson. Respondent stated that this federal case was done on a contingent fee basis. Respondent produced an unsigned contingent fee agreement. That agreement does not address the $2,000.00 payment already received for the career service matters.

67. Furthermore, the unsigned contingent fee agreement is not dated.

Ms. Johnson never received a final fee agreement ftom respondent although she remembers that one was proposed.

68. A jury trial was held in Ms. Johnson's case in February 2009. The jury found that there was no liability by the City and County of Denver to Ms. Johnson.

69. The respondent did not have a signed written fee agreement with Ms. Johnson concerning the federal district court case. He was required to have a written agreement because it was a contingent fee. Under Chapter 23.3 of the Colorado Rules of Civil Procedure a written contingent fee agreement signed by both the client and the attorney is required.

Claim Six

Betty Johnson Matter (Colo. RPC 1.5 (b))

70. Paragraphs 1 and 60-69 are incorporated herein.

71. Respondent violated Colo. R.P.C. 1.S(b) in the Betty Johnson matter because he did not communicate the basis or the rate of the fee and expenses in writing before or within a reasonable amount of time after commencing the representation of Ms. Johnson in her career services matter.

WHERERFORE, complainant prays at the conclusion hereof.

Claim Seven

Betty Johnson Matter (Colo. RPC 1.15 (b) and 1.4(a))

72. Paragraphs 1 and 60-71 are incorporated herein.

73. Respondent was required by both Colo. RPC 1.1S(b) and 1.4{a) to account to Betty Johnson and to inform her what he did with the money she . paid to him.

74. Respondent violated Colo. R.P.C. 1.1S(b) and Colo. RPC 1.4{a) in the Betty Johnson matter, because he has failed to account to his client fully regarding what he has done for the $2,000.00 she paid to him.

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WHERERFORE. complainant prays at the conclusion hereof.

Claim Eight Betty Johnson Matter (Colo.RPC l.S(c))

75. Paragraphs 1 and 60-74 are incorporated herein.

76. Respondent violated Colo. R.P.C.1.5(c) in the Betty Johnson matter because he did not comply with all of the requirements of Chapter 23.3 of the Civil Rules of Procedure.

77. Specifically. Rule 4(b) of the Colorado Rules of Civil Procedure.

Chapter 23.3, Rules Governing Contingent Fees requires that each contingent fee agreement be in writing. in duplicate signed both by the attorney and be the client. Further. said rule requires that a signed duplicate be mailed or delivered to the client within ten days after the making of the agreement.

78. Respondent failed to have a signed fee agreement with Ms.

Johnson.

79. Respondent failed to deliver a signed contingent fee agreement to Ms. Johnson within 10 days of making the agreement.

80. Respondent violated Rule 4 of the Rules Governing Contingent Fees and also violated Colo. RPC 1.5(c).

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 refund fees to the client; the respondent be required to take any other remedial action appropriate under the circumstances; and the respondent be assessed the costs of this proceeding.

DATED this20llkay of October. 2009.

Respectfully. submitted,

James S. Sudler, #08019 Assistant Regulation Counsel John S. Gleason, #15011 Regulation Counsel Attorneys for Complainant

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