Beruflich Dokumente
Kultur Dokumente
INTRODUCTION
Feop(e u. Scftuitfteis, 635 P.2d 8 (Cok,. 1981), 5 a semnat case that deals with a counse
l’s
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.
PROCEDURAL BACKGROUND
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.
FACTUAL BACKGROUND
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
fifteen
years of incarceration, plus five years of mandatory paro!e and restitution.
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.
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.”
idea of why Rob and I said she ought to consider taking this deal and what we
believe the evidence was going to be.”
J
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)
RULE VIOLATIONS
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.
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
consent.
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.
C)
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.
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
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().
b
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
lawyer.
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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.
SANCTIONS
8
Duties Violated
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Through his conflicts of interest and disclosure of client confidences,
Respondent caused injuy to Ragusa by denying her the ability to
be
represented by counsel in any meaningful way. “The right to counsel plays
a
crucial role in the adversara system embodied in the Sixth Amendment, since
access to counsel’s skill and knowledge is necessary to accord defendants
the
ample opportunity to meet the case of the prosecution’ to which they
are
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
right
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
omitted).
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.
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himself from his client and demonstrtc a dishonest and selfish motive in this
case.
Ill
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.
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 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
confidences.
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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.
at
521.
The court in Florida Bar u. Sega?, 663 So.2d 618, 622 (Fla.1995),
suspended the respondent for three years for knowingly making
a
misrepresentation to a tribuna stating it “is a serious ethical breach.”
CONCLUSION
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,
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CERTIFICATE OF’ MAILING
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