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1550 Broadway, Suite 675 MV 25 2011
Denver, Colorado 80202
K C( URT IF COT.( lu
I Comp]ainant:
Respondent: -


Elizabeth Espinosa Krupa, #26028
Adam J. Espinosa, #33937
Assistant Regulation Counsel
Attorney for Complainant I
1560 Broadway, Suite 1800
Denver, CO 80202
Telephone: (303) 866-6400, ext. 6583
Fax No.: (303) 893-5302 I


This matter involves Respondent’s misconduct during two in camera

proceedings held in the course of the criminal trial of Respondent’s client,
Patricia Ragusa. In the first in camera proceeding, Respondent, under the
pretext of making a Schultheis record’, told the judge—outside Ms.
presence—that he disagreed with Ms. Ragusa’s decision not to accept
prosecution’s offer of a plea agreement. Respondent used the second
in camera
proceeding, held under the guise of a sequestration of witnesses issue,
to reveal
privileged client confidences to the court. By such conduct, Respondent
violated Cole. RPC 12(a), 1.4(a), 1.6(a), 1.7(b) (1993), 1.8(b), 3.3(a)(1),
and 8.4(d).

Feop(e u. Scftuitfteis, 635 P.2d 8 (Cok,. 1981), 5 a semnat case that deals with a counse
obligation to request to withdraw when a client demands to present perjured testimo
ny. A
Schultheis record is made outside of the presence of all parties, even the cuurt,
wfth the
assistance of the court reporter.

The People filed the complaint in this matter on September 15, 2010.
Respondent filed his answer on October 29, 2010. The parties held
an at-issue
conference on November 24: 2010. Trial is set for prH 5-8,
2011 at the
Denver District Court.


1. Respondent has taken and subscribed the oath of admission, was

admitted to the bar of this Court on October 30, 1984, and is registered
the official records of this Court, registration no- 13982. He is subjec
t to the
jurisdiction of this Court in these disciplinary proceedings. Respondent’s
registered business address is 1901 \Ves Littleton Bouevard. Suite
Littleton, Colorado 80120.

2. In 2004, the Jefferson County Distrkt Attorney charged Patricia

Ragusa (“Ragusa”) with 51 counts of theft and attempted theft and 51 counts
computer crime and attempted computer crime for allegedly stealin
g $1.2
million from her employer. State of Colorado v. Patricia Raguso,
case no.
04CR3101. Respondent represented Ragusa in her defense, along with
Grossman (“Grossman”). Respondent was lead counsel. Ragusa paid
Respondent and Grossman $11000000 for their representation.

3. The case was tried to a jury from November 7-16, 2005. Ragusa
was found guilty of all counts. In April 2006, she was sentenced to
years of incarceration, plus five years of mandatory paro!e and restitution.

4. In June 2006 the Co}orado State Public Defenders Office on behalf

of Ragusa filed a direct appeal requesting the reversal of her convic
tion and
sentence due to violation of her Sixth Amendment rights to (1) have conflic
free counsel, (2) be present at tria], and (3) have counsel of her choice.

5. On September 3, 2009, the Court of Appeals issued a mandate

reversing Ragusa’s judgment of conviction in State of Colorado
a Patricia
Ragusa, Court of Appeals No. 06CM 110. The Court vacated her senten
ce and
had the case remanded for a new trial. The decision was based upon review
two in camera proceedings at which Ragusa was not present.

First in camera proceeding

6. Before jury sejection and outside Ragusa’s presence, the trial court
held an in camera proceeding on the record. Respondent initiated the
proceeding by advising the court that he wanted to make a Schuitheis record
7. Respondent did not make a Schultheis record, nor did he have the
basis or ever intend to.

S. While in chambers, outside the presence of Ragusa and the

prospective jury panel, Respondent told the judge he and co-counsel Grossman
had advised Ragusa to accept the prosecution’s plea bargain offers: “the
district attorney’s office, throughout this proceeding - have made us a
number of plea bargain offers that we have advised our client to
unconditionally ... The district attorney’s office has made us an cifer, whicn
would have netted her a range of between four to twelve years]. And
Grossman and I have met with her repeatedly and were very adamanL that
felt she should take that deal.”

9. Respondent continued, “We think that it’s folly for her to not have
taker: the deal . .And we just feel it appropriate that we make a record.” He
also stated “we believe her decision is flat out wrong,” and “in good faith, we
believe that her choice is just a very, very poor one.”

10. Respondent concluded the in camera proceeding by stating, “And

we will not advise her of this should she ask us what this was about. We don’t
think it was appropriate. It would only throw a monkey wrench thinking that
we’re against her.”

Second in camera proceeding

ii. Following a recess during the prosecution’s case-in-chief, the court

held another in camera proceeding, again in Ragusa’s absence.

12. This in camera proceeding was called to discuss a potentia] witness

sequestration violation. However, Respondent started the discussion by stating
“Judge, a most fortuitous situation happened that under the guise of calling
back to talk to us about a question, a sequestration potential violation, that
gave us an opportunity to come into chambers so Mr. Grossman and I can
report what just happened during the break

13. Respondent then revealed that he and Grossman had been

subjected to “perhaps the most vicious attack they had] ever had to get from a
client’ According to Respondent, Rag’isa tod Respondent and Grossman that
they “dDn’t give a s---, don’t give a 1---, and larel putting on a patsy defense.”

14. Respondent stated And I just think we need to put in on the

record, because, as [ anticipated prior to this trial, Patricia rRagusa seems to
be trying to make us a target for what and I think the Court has a pretty good

idea of why Rob and I said she ought to consider taking this deal and what we
believe the evidence was going to be.”

15. Respondent continued, “were not trying to be babies Rob and 1
are certainiy not going to quit. \Ve’re not going to let her llre us, if that ever
were to come.”

16. Ragusa did not learn about the substance of the two in camera
proceedings until the attorney appointed to represent her on appeal discovered
the statements while reviewing trial transcripts.

17. After the Court of Appeals remard, a motions hearing on the new
trial was held in Jefferson County District Court before Judge Taniara Russell,
who presided over the original criminal trial. In response to a motion to
disqualify her, she said the following:

THE COURT: But I’ve taken a lot of time over the last two days to look at
this and I have to tell you that the most distressing part of it is, and I
hope that people who read the case will note the fact that both times
that counsel came back to see me, it was under pretext, they lied to
me, then I would have never allowed them to come back had they
told me the truth. And that I did in fact ask for the defendant to be
present, and they said no. (Emphasis added)

18. When asked by Ragusa what happened in the two in camera

proceedings conducted without her present, Respondent told her that things
were going well for her or that they were winning.

A. Respondent Failed to Abide by his Client’s Decision as to Plea
Entered in Violation of Cob. RPC 1.2(a)

Cob. RPC 1.2(a) provides that a lawyer shall abide by a client’s decision,
after consultation with the lawyer, as to a plea to be entered, whether to waive
ju’y trial and whether the client wifl testify.

Respondent violated Rule 1.2(a) when he stated to the judge and the
prosecutors that he disagreed with his client’s decision to decline the pLea
agreement. He failed to abide by his clients decision when he made
statements regarding what a poor choice it “as after his tireless efforts to
convince her to the contrary. Respondent did not abide by his ciient’s choice
but made statements without her present in order to preserve his own self
interests. Specifically, Respondent told the court and the prosecutor that his
client’s decision as to the plea agreement was “folly.” By such conduct, the
respondent violated Cob. RPC 12(a).
B. Respondent Failed to Communicate with his Client in Violation of
Cob. RPC 1.4(a)

Cob. RPC I .4(a)çin effect in 2005) states that a awyer shall keep a client
reasonably informed about the status of a matter and promptly comply with
reasonable requests for information.

Respondent failed to comply with this duty of communication when he

purposefully failed to inform his diem of the statements he made to the
prosecutor and the judge in her absence. Respondent made statements to
advance his own self-intercst and against his client’s best interest, Respondent
stated on the record that he was not going to tell his client about the
statements he made in camera without her present. Respondent fafled to
communicate to his client the true nature of the in camera proceedings both
before the proceedings and afterward, when he told her “things were going veil”
or that she was winning. By such conduct, the respondent violated Cob. RPC

C. Respondent Failed to Maintain Confidentiality of Information in

Violation of Cob. RPC 1.6(a)

Cob. R.P.C. l.6(a) stales that a lawyer sha]l not reveal information
relating to the representation of a client unless the client gives informed

Respondent violated Rule 1.6(a) by revealing confidential client

information in the two in camera proceedings, incluthng his disagreement with
his client’s decision to decline the plea offer and his strained relationship with
her. Respondent revealed not only his advice to his client but her responses,
reactions and his belief that she was manipulating the judicial system or would
attempt to manipulate the judicial system. Respondent revealed confidential
information that his client provided to him in the course of his representation
of her. Ragusa did not provide informed consent for Respondent to disclose
their attorney-client confidences. By such conduct, Respondent violated Cob.
RPC 1.5(a).

D. Respondent had a Prohibited Conflict of Interest in Violation of

Cob. RPC 1.7(b)

Cola. RPC 1.7(b) (in effect during the relevant time period in 2005) states
in part that a lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyers own interests. The !asyer’s
own interests should no: be perniftted to have adverse effect on representation
of a client.

Respondent’s own interest in preserving his reputation material]y limited
his responsibilities to Ragusa. 1-us self-interest caused him to disclose client
confidences regarding the plea agreement, comment on his cLient’s decision-
making ability and to accuse her of manipulation to the presiding udge and
opposing counsel.

Respondent admits that his intent during both in camera proceedings

was to make a record to protect himself in We event that Ragusa made an
ineffective assistance of counsel claim against him at a future date.
Respondent did not consider how that impacted his duties owed to his client.

As attorney for Ragusa, Respondent had a duty of lovatyto her,

individually. In making records regarding Ragusa outside her presence and
specifically excluding her to protect hims&i, Respondent represented Ragusa
under circumstances in which his representation was materially limited by his
own interests.

Respondent’s conflicted representation adversely affected Ra2usa by

actually or potentia]ly adversely affecting the court’s view of her case. By such
conduct, Respondent violated Cob. RPC 1.7(b).

E. Respondent had a Prohibited Conflict of Interest in Violation of

Cob. RPC 1.8(b)

Cob. RPC 1.8kb states that a lawyer shall not use information relating to
the representation of a client to the disadvantage of the client unless the client
gives informed consenL

RespondenL violated Rule 1.8(b) when he made a record using

information relating to his representation of Ragusa to protect his own self-
interest and to the disadvantage of his client without her consent. Respondent
was so concerned about a potential claim against him based on his
representation of Ragusa that he used information gained during the course of
representing her that cou!d be used in his lavor and against his client in any
proceeding regarding his effective assistance of counsel.

The conflict was so apparent that the respondent felt obliged to conceal
his reasons for meeting with the court in camera—and thus, the duty to advise
his ciient about the nature of Ihe confict arose. By using inforrna:Ion reating
to his representation of Ragusa to her dfsadvantage without her consent,
Respondent vo!ated Rue :.a().

F. Respondent Knowingly Made a False Statement of Material Fact or

Law to a Tribunal in Violation of Cola. RPC 3.3(a)(1J

Cob. RPC 3.3(afll) provides that a Iayer shall rot knowingly
make a false statement of material fact or law to a tribunal or fail to correct a
false statement of materiul fact or law previously made to the tribunal by the

Respondent staled on the record that he needed to make a Schu/theis

record in the first in carncra proceeding. However, Respondent’s statements in
the in camera proceeding had nothing to do vi1h his client offering perjured
testimony. The only reason Respofldent usec the Schuitheis case was to
exclude his client from the record he intended to create.

The above statements made by Respondent were not true. Respondent

made no attempt to clarify that he was not going to make a Schultheis record,
and never went back to clarify for the court what the record he intended to
make or did make. Respondent knew that the above statements were not true
at the time that he made the statements.

Respondents statements were an attempt to deceive the court about the

true purpose for a proceeding in camera and to deceive the court about his
clients lack of knowledge of the status of the roceedings.

Similarly, the second in camera proceeding was held to address a

potential sequestration violation. Respondent’s intent in the second in camera
proceeding was to tattle to the court about his client’s statements and

Respondent’s false statements were of a material fact because the court

permitted each in camera proceeding to occur without Ragusa present based on
Respondent’s representations as to the reason why the proceedings were being
conducted. By such conduct, the respondent violated Cob. RPC 3.3(a)(l).

G. Respondent Engaged In Conduct Involving Dishonesty, Fraud,

Deceit or Misrepresentation in Violation of Cob. RPC 8.4(c)

Cola. RPC 8.4(c) provides that it is professional misconduct for a lawyer

to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Respondent violated Ru!e 8.4(c) when he made the Schuliheis hearing

request by misrepresenting the need and use of the hearing to the court and
his client. Respondent’s statement tc the Court, to the prosecutors and for the
record was false because a Sdui!theis hearing is conducted when an attorney
believes a client intends to provide perjured testimony to the court and the
attorney has an obligation to make a record regarding this belief and not assist
the client in offering perjured testimony. Respondent never corrected this false

Respondent knew the statements about We need to make a Schuliheis
hearing ‘Mere not true when lie made them, or was reckless in failing to
determine whether or not the statements were true prior to making them.
Respondent’s recklessness is demonstrated by his stating to the court the
reason to make an in camera proceeding and then making a record regarding
the plea offer and his clients decision not to take the plea oiler, which has
nothing to do with his client intending to offer perjured testimony.

Respondent intentionally or knowingly or recklessly failed to tell his

client that he made statements, without her present, to the court and the
prosecution regarding her decision-making ability, his distaste for her and his
distrust in her. When Ragusa asked Respondent what had occurred in the
hearings, he simply told her things were going well for them or that they were
winning. These statements constitute conduct involving dishonesty, deceit
and/or misrepresentation. By such conduct, Respondent violated Cob. RPC

H. Respondent Engaged in Conduct Prejudicial to the Administration of

Justice in Violation of Cola. RPC 8.4(d)

Cob. RPC 8.4(d) provides that it is professional misconduct for a lawyer

to engage in conduct that is prejudicial to the administration of justice.

Respondent violated Rule 8.4(c) by repeatedly using faise pretenses to get

the court and the prosecutor to be present when he made statements that were
harmful to his client and disclosing her confidences on the record without her
present. Respondern directly delayed anti altered the course of the Lria);
Ragusa won on appeal, her conviction was vacated, and her case was
remanded to the trial court for a new trial due to Respondent’s actions.
Respondent thereby caused substantial prejudice to the administration of
justice. By such conduct, the respondent violated Colofl RPC 8.4d).


When imposing sanctions for violations of the Colorado Rules of

Professional Conduct, ABA Standard 3.0 directs the Presiding Disciplinary
Judge to consider the following four factors:

a. the duty violated;

b. the lawyer’s mental state:
c. the actuai or potential injury caused by the lawyer’s misconduct;
d. the existence of aggravating or mitigating factors.

Duties Violated

Respondent had a duty to dca professionally, honestly, and open’y with

the court and his client. “Attorney misconduct perpetuates the public’s
misperception of the legal profession and breaches the public and professional
trust.” In re DeRose, 55 P3d 126, 131 (Cob. 2002). By lying to his client
about the nature of the in camera proceedings, Respondent breached these
duties to his client. By lying to the court about the purpose of the in camera
proceedings, Respondent breached those duties to the court. By creating a
conflict of interest between himself and his client, Respondent viotated the duo’
to provide conflict-free representation to his client.

Respondent owed a duty of loyaky to his client. Respondent breached

that duty when he vio]ated the attorney-client privHege. The attorney-client
privilege ‘applies to confidential matters communicated by or to the client in
the course of obtaining counsel, advice, or direction with respect to the client’s
rights or obligations.” People v. Madero, 112 P,3d 688, 690 (Cob. 2005).
Only the client may waive the privilege. Id. The information Respondent
revealed in both in camera proceedings—including Ms. Ragusa’s conversations
with Respondent about potential plea agreements—was protected by the
attorney-client privilege. See Commonwealth t Downey, 842 N.E.2d 955, 962
(Mass. App. 2005) (‘The pubished conversation involved one trial attorneys
advice during the course of tria directed to the prospect of the defendant
entering a plea of guilty. Such privileged and confidential communication !ies
at the heart of confidential and strategic decisions between the accused client
and defense counsel—which is precisely why the law for centuries has
protected privileged attorney-client communication.”) (internal citations
omitted). Ms. Ragusa did not give Respondent the authority to disclose that
confidential information.

The Respondent’s Mental State

Respondent’s mental state for was knowing. In an attempt to gain access

to the court, the respondent knowingly deceived the court and misrepresented
his purpose for the in camera hearings in order to exclude his client and
protect himself.

Injury Caused by the Respondent’s Misconduct

Respondent’s misconduct caused actual and potential injury to his

client, the profession, and the People of the State of Colorado by causing justice
to be delayed and by requiring additional resources to he expended to resolve
the client’s case. Additionally. Respondent harmed the client and the
profession by voiating a fundamental tenet of the attorney-client relationship,
confidentiality, in an ef!ort to benefit him self.

Through his conflicts of interest and disclosure of client confidences,
Respondent caused injuy to Ragusa by denying her the ability to
represented by counsel in any meaningful way. “The right to counsel plays
crucial role in the adversara system embodied in the Sixth Amendment, since
access to counsel’s skill and knowledge is necessary to accord defendants
ample opportunity to meet the case of the prosecution’ to which they
entitled.” Stricicland u. Washington, 466 U.S. 668, 685 (1984) (quoting Adams
United States ex rd. McCann, 317 CS. 269. 275 {1942fl. “The right to be
heard would be, in many cases, of little avail if it did not comprehend the
to be heard by counsel jA defendant] lacks both the skill and knowledge
adequately to prepare his defense, even though he may have a perfect one. He
requires the guiding hand of counsel at every step in the proceedings against
him” Gideon a Wainright, 372 U.S. 335, 344-45 (W63) (internal citations

The Colorado Supreme Court has held that “rtlhe right to conflict-free
counsel is encompassed within the right to effective assistance of counsel
That counsel must be conflict-free ensures that a defendant will receive the
zeaious advocacy to which he is entit!ed,” People HarLan, 54 P.3d 871, 879
(Cob. 2002) (interna] citations omitted). By revea!ing confidenti& client
information to the court and prosecution in an attempt to proteci himself,
Respondent created an imperrnissible conflict of interest and deprived his
client of the right to effective counsel.

Perhaps most importanUy, Respondent harmed the client by creating

actua or potential prejudice in the mind of the trial judge. The Colorado
Supreme Court in Schultheis, 638 P.2d at 13, held that “the defendant is
always entitled to an impartial trial judge, untainted by accusations that the
defendant had insisted upon presenting fabricated testimony.” Also, CR5.
16-7-302(1) provides that a judge shall not participate in plea discussions. The
purpose of that rule is “to preserve judicial irnpartiality. People a Crumb, 203
P.3d 587 (Cob. App. 2008), cert. granted, Crumb v. People. No. 08SC884, 2009
WL 663958 (Cob. Mar. 16, 2009), reu’d on other grounds, Crumb v. People, 230
P.3d 726 (Cob. 2010). Respondent’s misconduct harmed Ragusa by
potentially destroying the trial judge’s impartiality.

Aggravating and Mitigating Factors

The following aggravating factors are established under ABA Standard


922(b) dishonest or selfish motive: Respondent’s words and conduct in

the two in camera hearings demonstrate an effort by Respondem to protect

himself from his client and demonstrtc a dishonest and selfish motive in this

9.22(d) multiple offenses: The respondent violated several rules of

professiona! conduct in these matters, including Cob. RPC 1.2 (authority
between client and lawyer), 1.4(a) (communication), 1.6(a) (conlidentialitv),
1.7(b) (conflict of interest), :8(b) (conflict ci interesq, 3.3(a)(1) false stawment
to a tribunal), 8.4(c) (dishonesty, deceit, misrepresentation), and 8.4(d)
(conduct prejudicial to the administration of justice).

9.22(g) Refusal to acknowledge wrongful nature of conduct: Respondent

has failed to acknowledge the wrongfui nature of his conduct with respect to
the allegations in the complaint.

9.22(h) Vulnerability of the victim: The victim was in a particularly

vulnerable situation in that she was charged with over one hundred felony
criminal counts and was facing thousands of years in prison and was relying
on Respondent to zealously defend her and protect her [egal interests.

9.22(11 Substantial experience in the practice of law: Respondent was

admitred to the practice of law on October 30, 1984, and he has over twenty
years experience in the practice of law.

The following mitigating factors are established under ABA Standard


9.32(& Absence of a prior discinlinarv record: Respondent has no prior

disciplinary history.

Appropriate Level of Discipline

Considering the nature and seriousness of Respondent’s misconduct, a

suspension of two years is appropriate. The ABA Standards and relevant case
law support a two-year suspension.

Relevant ABA Standards

ABA Standard 4.22 provides that suspension is generally appropriate

when a bawver knowkngly reveals information relating to the representation of a
client not otherwise lawfu:ly permitted to be disclosed, and this disclosure
causes injury or potentia: w a Chent.

ABA Standard 4.32 provides that suspension is generally appropriate

when a lawyer knows of a conflict of interest and does not fully disclose to a
client the possible effect of that conflict, and causes injury or potential injury to
a client.

ABA Siandard 7.2 provides that suspension is generally appropriate
when a lawyer knowingly engages in conduct that is a violation of a duty owed
to the profession and causes injury to a client, the public, or legal system.

Case Law [nvolvin Disclosure of Client Confidences

The court in People v. Smith, 778 P.2d 655 (Cob. 19S9 suspended the
respondent for two years for engaging in conduct prejudicial to the
administration of justice and breaching client confidences among other
misconduct including criminal activity. That respondent represented a client
charged with possession of cocaine. Id. at 686. As part of his service as an
undercover informant, the respondent purchased cocaine from his client,
resulting in the client’s arrest. Id. Like the respondent in Smith, Respondent
in this case placed his own personal interest above his client’s trust. The
Smith court noted that absent the respondent’s significant mitigating factors,
disbarment may have been appropriate. Id. at 688.

The court in In re Conduct of Lackey, 37 P.3d 172 (Dr. 2002), suspended

the respondent, an attorney for the Oregon National Guard, for one year for
disclosing client confidences by reeasing a memo to t:ie Oregon governor’s
legal couns& and the media. However, the respondent in Lackey disclosed
client confidences on only one occasion, while Respondent in this case did so
twice. Also, Respondent’s m:sconacct is more serious because it also
constitutes dishonesty to a client and to the court.

The court in In re Conduct of Huffman, 983 P.2d 534 (Or. 1999),

suspended the respondent for two years for revealing client confidences in a
letter to the client’s new counsel, among other misconduct. The letter was
meant to embarrass the client and induce the new counsel not to represent
the client. Respondent’s misconduct in the present case was more egregious
than Huffman’s because Respondent engaged in dishonesty and conduct
prejudicial to the administration of justice, claims which were not proven in

Case Law Involving Conflicts of [nterest

The court in Florida Bar v. Rotstein, 835 So.2d 241 (Fia. 2002),
suspended the respondent for one year for a confict of interes:, among other
rule violations, where the respondent filed motions to enforce settlement
against his clients’ interest. Again, Respondents misconduct in the present
matter Es more serious given the elements of dishonesty and discosure of cNent

The court in Florida Bar v. Lange, 711 So.2d 518 (Fla. 1998), suspended
the respondent for one year for a conflict between the respondent’s own
financial interest and his clients interest, among other misconduct. The
respondent Iai!ed to object to the jury’s requesL to view the crime scene
because his fee as a court-appointed public defender was limited, and
if the
case resulted in a hung juiy, he would have to retry the case for free” Id.

Case Law Involving Dishonesty to Courts and Clients

The court in Florida Bar u. Sega?, 663 So.2d 618, 622 (Fla.1995),
suspended the respondent for three years for knowingly making
misrepresentation to a tribuna stating it “is a serious ethical breach.”

As discussed above, Respondent’s conduct is particularly egregious given

the fact that he acted with a sellish motive. See People t’. Lopez, 845 P.2d
1253 (Cob. 1993) (Court weighed whether attorney had selfish motive as key
to whether attorney received censure or suspension.)


The ABA Standards and relevant case law support a suspension from the
practice of jaw for two years in this case. A two-year suspension is appropriate
based on the nature and LLe seriousness of the misconduct and based on the
injury or potential injury to the client.

Dated this b
25 day of March, 2011.

Respectfully submitted,

Elizabeth Espinosa Krupa, #26028

Assistant Regulation Counsel
Attorney for Complainant


I hereby certify that one copy of the

HEARING BRIEF was hand-delivered,
this 25th day of March 2011, and
addressed to:

Leonard Berenato, Esq.

David Worstell, Escj.
1626 Washington Street
Denver, Colorado 80203