Beruflich Dokumente
Kultur Dokumente
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SUPREME COURT, STATE OF COLORADO
Respondent:
ALISON MAYNARD.
I. ISSUE
• Respondent violated Colo. RPC 1.3 by failing to file her appellate brief
with reasonable promptness.
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Court”) when she knowingly and falsely dated her brief and certificate of
mailing showing it was timely filed when she knew it was not. She also
violated Colo. RPC 3.3 (a)(1) when she filed a motion in opposition to a
motion to dismiss her brief as untimely. In her motion, Respondent
affirmatively stated to the Court that her brief was timely when she knew
it was not.
On January 25, 2008, the People filed “Complainant’s Motion for, and
Brief in Support of, Judgment on the Pleadings.” On February 11, 2008,
Respondent filed her “Response in Opposition to Complaint’s Motion for, and
Brief in Support of Judgment on the Pleadings.” On March 19, 2008, the PDJ
denied the People’s Motion for judgment on the pleadings and the case was set
for hearing on its merits on March 28, 2008.
The following material facts arise from the pleadings, exhibits, and
affidavits provided by the parties. 1 The Hearing Board finds that the following
facts have been established by clear and convincing evidence.
Background
1 These findings are also based upon the testimony presented in the hearing, the party’s
stipulated exhibits 1-16 and Respondent’s exhibits A, B, and C.
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Respondent has taken and subscribed the oath of admission, was
admitted to the bar of the Colorado Supreme Court (“Supreme Court”) on May
20, 1987, and is registered upon the official records, Attorney Registration No.
16561. She is therefore subject to the jurisdiction of this court in these
disciplinary proceedings.
2 The proponents of the amendment included the Southwestern Water Conservation District,
the State of Colorado, the United States of America, the Ute Indian Tribe and the Ute Mountain
Ute Tribe.
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Requests for Extensions of Time
With the final deadline looming, Respondent realized that she would be
unable to complete her brief on time. While she had worked approximately
forty hours on the brief and had completed a draft at that point, she was
dissatisfied with its quality. Aside from the task of completing the written brief,
Respondent testified that she had to contend with a disorganized and
voluminous record from the water court in the CPA appeal. Despite her
concerns about completing the brief by June 19, 2007, Respondent failed to
advise the Supreme Court of her inability to complete the brief in a timely
manner. Instead of filing the draft she completed at that point, she
contemplated a means by which she could submit it after the Court’s deadline.
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In addition, Respondent certified on the final page of her brief that she
had mailed it on June 19, 2007. In these proceedings, Respondent testified
that she rationalized her duplicity by “compartmentalizing” in her mind her
deceitfulness and focused solely on the goal of providing a quality brief on
behalf of CPA. Nevertheless, Respondent knew her conduct in deceiving the
Court was unethical.
Motion to Dismiss
On June 22, 2007, the United States of America and other parties to the
appeal (“appellees”) filed a motion to dismiss CPA’s appeal for failure to file an
opening brief and for failure to prosecute the appeal.5 In their motion, the
appellees stated that as of June 22, 2007, Respondent had not filed her brief.
They therefore requested that her appeal be dismissed for failure to prosecute.
On or about June 25, 2007, the Supreme Court clerk received and date-
stamped Respondent’s “Response to Motion to Dismiss Appeal.”6 In response
to her opponent’s motion to dismiss the appeal, Respondent made the following
written misrepresentations and false statements to the Supreme Court in an
effort to demonstrate that she had indeed filed her brief on June 19, 2000:
• “I admit I did not effect service on the parties until the evening of
June 20, so am herewith filing an amended certificate of service. I
consent in advance to the Appellee’s taking three extra days in its
response, due to the delay.”
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did not obtain service of the opening brief on the parties on June 19 or 20,
2007, and her statement to that effect was knowingly and intentionally false.
Respondent’s Admission
On June 28, 2007, immediately following her conversation with the clerk,
Respondent filed an “Admission; and Motion for Last Extension, or Withdrawal
of Brief” with the Supreme Court. In her motion, Respondent admitted that
she had made “misrepresentations” to the Supreme Court, because she had felt
“boxed in.”8 She also advised the Supreme Court that researching the record
in CPA’s appeal had been a “nightmare.” Respondent went on to state, “Should
the Court not forgive this offense, and grant the extension, I withdraw the
brief.”9 In addition to requesting an additional extension, Respondent also
advised the Supreme Court, “I also commit to obtain counseling so that I can
overcome this problem I have of not getting my work done on time.”10
Character Witnesses
Respondent called three witnesses who generally testified to her skill and
resolve as an attorney, loyalty to her clients, good character, and honesty. The
first witness, Chairman of CPA, Phillip Doe, thought Respondent filed a
“masterful” brief on behalf of CPA, albeit late. He holds Respondent in the
“highest regard.” Mr. Doe testified that Respondent worked closely with him
and the diverse CPA board on this litigation. Despite his knowledge that
Respondent misrepresented matters to the Court, Mr. Doe believes Respondent
is a “terrific citizen.”
counseling with a practice monitor who could help her meet deadlines.
11 Stipulated Exhibit 7, C-02
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Paul Upsons is an attorney who worked as Respondent’s associate
approximately six years ago. Mr. Upsons found Respondent to be a skilled
writer who was diligent and dedicated to her clients. He never experienced
problems with deadlines while working with Respondent and found his
experience with her to be positive. Recognizing the allegations against her in
this case, he still believes Respondent is “generally” of very good character.
Even though CPA lost their right to appeal due to the actions of
Respondent, she still represents CPA in other litigation. While working on the
diligence and beneficial use issues in the Animus-La Plata Project (“ALP”), she
also performed work on a time-consuming appeal pending on the “reserve”
issue in that case.12 Respondent testified that she took on more work than she
should have during this time.
After attempting to convince the Supreme Court that she had timely filed
her brief, Respondent spent a sleepless night and “didn’t like living with
[herself].” Respondent testified that she felt like a “hypocrite” because she had
previously alleged that the judge in the case below had been deceptive.
Respondent also testified that she recognizes she breached her duty of honesty
and candor to the Supreme Court.
12Respondent’s Exhibit C.
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IV. CONCLUSIONS OF LAW – SUBSTANTIVE ALLEGATIONS
The Hearing Board makes the following legal conclusions based upon the
clear and convincing evidence.
Lack of Diligence and Neglect of a Legal Matter under Colo. RPC 1.3.
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 the lawyer. The People allege that Respondent
neglected a client matter and violated Colo. RPC 1.3 when she failed to timely
file the opening brief with the Supreme Court. Respondent contends that she
was unable, through reasonable efforts, to complete the opening brief on time.
Failing to complete the brief during this timeframe, given the multiple
extensions Respondent requested and received, demonstrates not only a lack of
diligence as contemplated in Colo. RPC 1.3, but it also her neglect of CPA’s
appeal.
Colo. RPC 3.3(a)(1) provides that a lawyer shall not knowingly make a
false statement of material fact or law to a tribunal. Respondent argues that
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the misrepresentations and statements she made in her pleadings to the
Supreme Court were not material because she withdrew them before the
Supreme Court acted upon them. Therefore, her misstatements were not
material because the Court took no action as a result of them.13 First of all,
the Hearing Board specifically finds that the Supreme Court, acting through
the clerk, accepted her brief as timely filed, based upon a misleading postmark
and certification Respondent provided the Court.
Secondly, the Hearing Board further finds that even though Respondent
disclosed her scheme to the Supreme Court before it acted upon the merits of
her brief or the motion to dismiss, her misrepresentations nevertheless had the
potential to mislead the Supreme Court on the matter in controversy, the
timeliness of Respondent’s brief. See U.S. v. Gaudin, 515 U.S. 506, 509 (1995).
13Respondent cites several cases in her hearing brief dealing with materiality in the civil
context. We find that they are inapplicable to disciplinary matters where the focus is on lawyer
conduct not solely on the ultimate outcome.
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and consciously misrepresented the truth. Thus, the Hearing Board finds clear
and convincing evidence Respondent violated Colo. RPC 8.4(c).
V. SANCTIONS
ABA Standards 6.11 deals with duties a lawyer owes to the legal system.
It states in the absence of aggravating or mitigating circumstances and
application of Standard 3.0:
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withheld, and causes injury or potential injury to a
party to the proceeding.
Respondent also violated her duty to the legal profession. When the
public witnesses lawyers acting dishonestly, they hold the profession in
disrepute and consequently the esteem of the profession suffers.
The Hearing Board finds that Respondent acted with negligence and
without reasonable diligence when she failed to timely file her brief after
receiving five extensions on the same.14
14 “Negligence” is the failure of a lawyer to heed a substantial risk that circumstances exist or
that a result will follow, which failure is a deviation from the standard of care that a reasonable
lawyer would exercise in the situation. ABA Standards, Definitions.
15 “Knowledge” is the conscious awareness of the nature or attendant circumstances of the
conduct but without the conscious objective or purpose to accomplish a particular result.
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C. THE ACTUAL OR POTENTIAL INJURY
The Hearing Board finds Respondent caused serious potential and actual
injury to her client, CPA, as well as the Supreme Court when she deceived and
attempted to deceive the Supreme Court. Potentially, Respondent’s
misrepresentation could have resulted in extensive appellate litigation founded
on the false statement that her brief was timely filed. Equally, important is the
fact that Respondent’s client, CPA, lost their right to an appeal based upon her
neglect and misconduct in an effort to deceive the Supreme Court. Finally,
Respondent’s conduct caused serious injury to the integrity of our judicial
system.
Respondent has practiced law for over twenty years in Colorado. During
this time, she has worked as a deputy district attorney, an assistant attorney
general, and in private practice. She is experienced in trial and appellate
practice. While Respondent testified that she practices with integrity, her
conduct here belies this statement.
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The record shows Respondent has not been subject to the disciplinary
process in the past.
Remorse –9.32(l)
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his zeal to protect his client’s interests and in the heat of the moment, these
circumstances did not excuse Caldwell’s conduct. Noting that disbarment
would normally be appropriate under these circumstances, the Supreme Court
suspended Cardwell rather than disbarring him after considering the
mitigating and aggravating factors. The People argue that the Hearing Board
should follow the Court’s decision in Cardwell and suspend Respondent. We
agree.
VI. CONCLUSION
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admirable action in self-reporting her misconduct. This factor alone
distinguishes her actions from the decision in Cardwell.
VII. ORDER
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DATED THIS 13TH DAY OF JUNE, 2008.
____________________________________
WILLIAM R. LUCERO
PRESIDING DISCIPLINARY JUDGE
____________________________________
E. STEVEN EZELL
HEARING BOARD MEMBER
____________________________________
JOHN E. HAYES
HEARING BOARD MEMBER
Copies to:
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