407 P.3d 1235
Colo.2017Background
- Respondent William D. Bontrager, admitted in Colorado in 2004, represented five clients in oil-and-gas disputes and also filed one pro se suit; the Office of Attorney Regulation Counsel charged him with incompetence and advancing frivolous claims.
- The complaints and appeals arose from distinct factual contexts: (1) Adams — unrecorded deed vs. a recorded 1950 oil-and-gas lease; (2) Martinez — suit against the Southern Ute Tribe alleging royalty underpayment despite tribal sovereign immunity; (3–5) Keith, Watson, Cugnini — claims against BP for failure to reasonably develop leaseholds and related disputes implicating the earlier Parry class-action settlement.
- Recurrent procedural and substantive flaws: failure to read or apply controlling statutes/settlement terms (Colorado race-notice recording statute; Parry settlement), failure to investigate or produce evidence (profitability for development), procedural errors (C.R.C.P. 56(f) ignorance, appellate-rule violations), and poor client communication about litigation risks.
- Multiple courts (district and Colorado Court of Appeals) rejected Bontrager’s theories, imposed sanctions and attorney’s-fee awards in several of the underlying matters, and found many of his pleadings and appeals frivolous or unsubstantively supported.
- The disciplinary hearing found clear-and-convincing evidence that Bontrager repeatedly violated Colo. RPC 1.1 (competence), 3.1 (meritorious claims), 1.4 (communication), and 8.4(d) (prejudicing administration of justice in several matters), concluding his conduct was reckless/knowing and caused substantial client and judicial harm.
- Sanction imposed: nine-month suspension from practice, requirement to pay restitution to clients before applying for reinstatement, payment of costs of the disciplinary proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Competence in Adams appeal — applicability of Colorado race-notice statute | People: Bontrager ignored established race-notice law and appealed frivolous theories; failed to present evidence of lessee’s actual or constructive notice | Bontrager relied on industry-standard arguments (Ledbetter): producers should reexamine title when seeking new permits; novel application of takings/forced-pooling concepts | Held: Violated Colo. RPC 1.1 and 3.1 — appeal was incompetent and frivolous given clear race-notice statute and lack of evidence of notice (no RPC 8.4(d) violation found for Adams) |
| Suit vs. Southern Ute Tribe (Martinez) — sovereign immunity and waiver | People: Tribe immune absent express waiver; Bontrager failed to research or present evidence of express waiver and persisted after opposing counsel warned him | Bontrager argued express or implied waiver (CBM settlement/assignment) and relied on cases he believed eroded waiver doctrines | Held: Violated Colo. RPC 1.1, 3.1, and 1.4 — complaint frivolous; failed to advise clients of fee exposure; no Colo. RPC 8.4(d) finding because insufficient evidence of systemic prejudice |
| Keith/Watson/Cugnini — breach of implied covenant to reasonably develop; effect of Parry class settlement releases | People: Claims were barred by Parry settlement (broad release of settled claims) and lacked evidentiary support of commercial viability; Bontrager failed to read Parry before suing and persisted after notice | Bontrager argued Parry’s release was narrower, preserved novel contract/class-settlement interpretations, and preserved appeals to establish new law | Held: Violated Colo. RPC 1.1 and 3.1 — incompetently prosecuted claims without required factual proof of profitability and frivolously litigated despite Parry and repeated adverse rulings; conduct found prejudicial to administration of justice (8.4(d)) |
| Sanction severity and restitution | People: Seek lengthy suspension (one year plus) and restitution due to pattern, multiple offenses, and client harm | Respondent emphasized lack of dishonest motive, prior good faith, and some mitigation (no prior discipline) | Held: Suspension appropriate; after weighing ABA Standards and aggravating/mitigating factors, Hearing Board imposed nine-month suspension and ordered restitution to clients as condition of reinstatement |
Key Cases Cited
- Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., 677 P.2d 1361 (Colo. 1984) (standard for prima facie showing when First Amendment petitioning immunity is implicated)
- Cash Advance & Preferred Cash Loans v. Colorado, 242 P.3d 1099 (Colo. 2010) (tribal sovereign immunity cannot be impliedly waived; waiver must be unequivocal)
- Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) (reaffirms broad protection of tribal sovereign immunity absent clear waiver or congressional abrogation)
- Whitham Farms, LLC v. City of Longmont, 97 P.3d 135 (Colo. App. 2003) (framework for implied-covenant-to-develop claims and allocation of burden of proof)
- W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984) (test for when claims are substantially groundless)
- National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9 (2d Cir. 1981) (addresses limits on class-settlement effect on unasserted claims and due process concerns)