*1 FISHER. of Robert Scott Matter In the 078A383.
No. of Colorado. Court
Supreme
Feb. 2009. 2, 2009. Denied March
Rehearing
1189 *4 competent representation, provide
failure to (2007), neglect of a RPC 1.8 and Colo. matter, at to take action aimed for his failure rights pension. in the securing Ms. Varner's violating Rules charged with Fisher was also 1.7(b)(2007), by a representation Hmited law- 1.8(a) (2007), interests, obtaining yer's own a client's without con- an interest adverse to counsel, 1.8(J) independent sent (2007), obtaining proprietary taking the subject litigation, for matter of the Counsel, Gleason, Regulation S. John Final- in the Varner residence. deed of trust Mortimer, Jr., Regula- Assistant E. Charles charged Fisher with ly, Regulation Counsel Denver, Colorado, Counsel, Attorney tion 8.3(a) (2007), making a false violating Rules People. 8.4(c) tribunal, material fact to a statement Fisher, Springs, Colorado (2007), disobeying obligation knowingly Scott Robert 8.4(c) tribunal, Colorado, Pro se. the rules of a under *5 fraud, (2007), dishonesty, involving conduct Opinion delivered the MARTINEZ Justice deceit, for his failure to misrepresentation, or the Court. of affidavit to disclose his the financial amend in residence. interest the Varner
I. Introduction case, Attor attorney discipline both Fisher vio- In this Board determined Professional Conduct lawyer Robert the Rules of lated ney Regulation Counsel competent representation, failing provide the Hear to appeal the decision of Seott matter, obtaining pro- 2005, charged neglecting was ing Board. subject of the prietary in the matter Rules of Profession interest violating numerous with 1 obtaining an interest ad- relating representation representation, of to his al Conduct securing consent marriage his client's without Shirley in a dissolution of verse to Varner advising independent the client to seek or obtaining to a dissolution In addition case. court, trial one of from the marriage Hearing Board did of order counsel. objectives convincing evidence in the case not find clear and primary Ms. Varner's portion representation of Ms. Varner was benefits and a Fisher's securing survivor pen in a interests, federal her husband's benefits that Fisher his own limited fact to the securing statement of material little aimed at Ms. made false sion. Fisher did - court, disobeyed During knowingly that Fisher rights pension. trial Varner trial obligation under the rules of the representation, Fisher became an course of the court, involving dis- pay engaged the fees in conduct would not or concerned Ms. Varner fraud, deceit, misrepresentation. honesty, in order to secure him. she owed findings fees, disputes the promissory appeal, note On Fisher obtained his of trust Mr. and Ms. by a deed argues secured he did not obtaining residence. After marital any Rules of Professional Conduct. Varner's violate trust, amend a Fisher did not Counsel the deed of when it did not find clear and filed to Board erred financial affidavit all Rules convincing Pursuant evidence Fisher violated the residence. show his sold, order, сharged violating. the residence was he was with a trial court paid promissory note was and Fisher's Proceedings Facts and Below II. proceeds. portion of the sale practitioner a sole from Colorado Fisher is charged Attorney Regulation Counsel family (2007), specializes in law. Springs violating 1.1 who Fisher with Colo. RPC they as Conduct refer to the Rules Conduct Professional Rules of Professional 1. The Colorado revision in 2008. All ref- underwent substantial existed in 2007. opinion Rules of in this to the Colorado erences point dence was sold or refinanced. At no 2003, Shirley retained Fisher Varner June of marriage did Fisher advise Ms. Varner to seek inde- represent her in a dissolution counsel, pendent give nor did he Fish- her At the time Ms. Varner retained case. opportunity to do so. He also failed to se- er, already permanent for a the case was set cure her written consent to the conflict of Fisher en- hearing. Ms. Varner and orders interest. agreement Ms. into a fee where tered written a retainer of initially paid Fisher
Varner signed Ms. Varner testified she $2,000. The contract authorized Fisher reservation, documents with and was con- charge a collection fee. Ms. Varner $350 might cerned the encumbrance on the deed primary objectives informed Fisher that her make it more difficult to sell the home marriage case were ob- the dissolution of futurе. She also stated she understood that taining portion and a survivor benefits $3,102 represented all funds needed to cover being paid to her from her benefits husband work, including Fisher's additional work plan through federal retirement husband's complete Fisher needed to in order to secure Management Office Personnel her benefits with the OPM. ("OPM"), dividing equity in the mari- permanent At the November or- tal Ms. suffered from de- residence. Varner hearing, ders the court ordered that Ms. diabetes, pression, surgery, a recent back half of her Varner receive husband's OPM and emotional distress as a result of her during benefits his lifetime and survivor ben- recent suicide. son's predecease efits should he her. The court also ordered the Fisher, sale of the marital residence retaining Prior Ms. Varner processed proceeds equally asked him if he had ever an OPM with the to be divided be- Mr. claim and he assured her he knew tween and Ms. Varner. The court re- how *6 jurisdiction case, tained over the and Obtaining secure OPM benefits. OPM bene- ordered party pay attorney's each to their own fees. complex process governed by fits is a a num- regulations beneficiary ber of rules and provided Fisher the court of with draft must the office will the follow before alter the final orders which the court issued in beneficiary plan. pension named of a State January 2004. Fisher did not consult OPM orders, in сourt such as those issued dissolu- regulations drafting rules and when the or- cases, marriage recognized tion of be Additionally, der. he did not the advise depending upon language the OPM opposing court or counsel of his interest in compliance regula- with the order and OPM's supplement the marital residence or Ms. Var- processing in tions order. Fisher had ner's financial to his affidavit reflect processed never an OPM claim and was un- However, property. pro- did Fisher procedures govern- aware the federal showing vide the court with a document required change ment to beneficiaries. equity Mr. and Ms. had in the marital Varner residence, an estimate of costs associated Shortly hearing, final before the orders sale, property. and on the encumbrances Ms. met and Varner with Fisher discussed The document did not disclose inter- Fisher's the status of her bill. She owed Fisher property. est in the $3,102 pre- for services rendered. Fisher orders, promissory in Following permanent sented Ms. Varner with a note Mr. Varner voluntarily paid Ms. Varner one half of his $3,102 the amount of secured a deed of by writing in marital a check trust residence. Fisher asked OPM benefits her from documents, sign explaining paid to him Ms. Varner his bank account after the OPM full amount. Ms. Varner testified she did not they necessary payment were to ensure However, providing his fees. he informed Ms. Varner feel with Mr. Vаrner comfortable pay directly that courts often order husbands to the funds to her and reiterated her attorney's securing wives' fees in dissolution of mar- concern to Fisher about her interest riage provided in cases. The terms the deed of trust Mr. Varner's OPM benefits. She promissory telephone and note did not allow Fisher to Fisher with the number and OPM property, only requested call to do foreclose on the and he could he them. Fisher failed so. outstanding collect the amount if the resi- Fisher released agent proceeds of the sale and estate appointed a real
The court of the sale trust. The remainder to market and sell the deed of by Fisher suggested 5, 2004, in By paid a con- to Fisher trust based proceeds March were residence. Varner at following the sale of the home lien. The place upon his in tract was around month, on or price. asking 2004, full Fisher a motion to June filed 2004, 29, Ms. Varner contacted Fisher amount of attorney's lien enforce his March stop $3,581.63. he all work on her behalf. judge signed the order requested distrust- she had become paid stated to from Varner authorized this amount be Ms. only purpose and feared his ful of Fisher $4,095 account remaining in Fisher's trust charge her to call her was continuing the sale of the Varner residence. from proposed the calls and fees for 2004, additional he July Ms. Varner Fisher informеd already had also he She felt office visits. which he keeping an additional $350 from her to secure enough information collecting his fees. This amount incurred benefits. OPM $8,581.63 court included was not from the trust Fisher to receive authorized 2004, attorney and Mr. May Varner's On account. agreed that Mr. Var- Fisher consulted requesting file a motion ner's made nu- During period, time this sign documents appoint Fisher the court efforts, writ- telephone via merous both closing of the sale of at the for Ms. Varner mail, Varner to contact Ms. Varner. Ms. ten alleged The motion residence. the marital respond Fisher's letters and mes- did not cooperate in the sale failed Ms. Varner charges. After col- sages fearing additional Fisher did not inform residence. the marital $3,581.63 and the lecting the court ordered 4,May pleading. this On about fee, filed a notice in collection $350 Fisher a certified letter sent Varner Ms. July as Ms. Varner's attor- 2004 to withdraw closing. would attend the him she informing time, had made no ney. By this thereafter, Ms. went to the Shortly Varner por- benefits or a efforts to secure survivor had determine whether Fisher courthouse pension Varner's from the OPM. tion of Mr. action on the case and any further taken half pay continued to of his OPM Mr. Varner sign authorizing him to the order discovered Ms. after OPM distributed benefits to Varner closing documents. *7 him. full amount to the attorney also co- Mr. Fisher and Varner's 22, 2005, April Mr. Varner died sud- On to on Fisher's letterhead a letter authored denly a result of a heart attack. Because as closing in- handling the company the title payments di- Ms. received the OPM Varner of the proceeds from the sale forming it all Varner, after Mr. rectly from Mr. Varner's be directed to Fish- Varner residence death, pay- stopped receiving the Ms. Varner represented he was In the letter Fisher er. death, person- ments. After his Ms. Varner attorney, though even acting Ms. Varner's as ally a claim based on the filed OPM professional had terminated receive survivor permanent order decree to compa- The title relationship a week earlier. denied, her This claim was as was Fisher, benefits. pay proceeds all ny to to declined received appeal of that decision. Ms. Varner agree payment to the insisting Ms. Varner May and December no benefits between 2005 sign all documents. arrangement and officially recognized her 2005 when the OPM 6, 2004, a of May Fisher filed notice On benefits. The claim to Mr. Varner's survivor County attorney's El Paso District lien there was insufficient Hearing Board found $6,640.97, represent- of Court in the amount why changed the OPM evidence to determine by him Ms. Varner. The ing fees owed to recognized claim. course and Ms. Varner's claim to Ms. notice of lien also asserted the sale proceeds of the from Varner's share 6, 2006, Attorney Regulation On June marital residence. of the against al- complaint filed a Counsel 1.8(a) (aequir- Ms. Varner attended Both Fisher and leging violation of Colo. RPC without paid ing an interest adverse to client's closing. company title real estate The consent) note, interest, to advise Ms. Varner from for his failure promissory plus Fisher's pletion two-year period of a probation of and pre- when he independent seek counsel promissory Attorney Regulation's note her with the and Office of Ethics sented trust; 1.8(J)(proprietary deed of Colo. RPC Sehool. subject repre- of in the matter appeals Board's deter- sentation), in the taking for the deed trust mination that requiring he violated Rules 1.7(b) residence; (representation Colo. RPC competent representation, prohibiting ne- interests), attorney's limited own for matter, glect legal of a prohibiting an attor- residence; during his actions the sale of the ney taking an from interest adverse to the 3.4(c) disobeying (knowingly RPC an Colo. consent, prohibiting client's without and tribunal) obligation under the rules of a for attorney acquiring proprietary from inter- paying an amount more than the himself subject litigation. est matter (failure ordered; 1.1 court and Colo. RPC additionally argues competent representation) provide and Colo. jurisdiction Board lost over the matter be- matter) (neglеct alleg- RPC 1.3 for it ruling days cause issued its more than 60 edly failing diligently competently and hearing, Regulation after the Counsel violat- regard securing represent his client with process rights failing ed his due to dis- pension interests benefits. evidence, possibly exculpatory Reg- close December, following Regulation ulation cross-appeal Coun- Counsel's violates the prohibition against constitutional double complaint, which the court sel filed second complaint. jeopardy. with the consolidated June complaint alleged
The new violation of Colo. appeals Counsel 3.3(a) (false RPC statement of material fact Board's determination there was clear 8.4(c) tribunal), (disobeying to a RPC Colo. convincing evidence Fisher violated the tribunal), obligation an under the of a rules prohibiting Rules false statements of materi- 8.4(c) (conduct involving and Colo. RPC dis- tribunal, attorney al fact to a prohibiting an fraud, deceit, honesty, misrepresentation) or knowingly disobeying obligation from an un- for Fisher's failure amend Ms. Varner's tribunal, prohibiting der the rules of an financial affidavit to include his interest attorney engaging involving from in conduct providing the marital residence and docu- fraud, deceit, dishonesty, misrepresenta- regarding equity mentation the Varner's tion, requiring representation not be the residence which did not include Fisher's Reg- an limited own interests. deed trust. disсipline ulation im- Counsel also April Presiding Disciplinary posed by the Board was unreasonable Judge granted Regulation motion insufficient in relation to the Counsel's needs summary judgment, public. violations of prohibiting the Rules from tak-
ing an Appeal interest adverse to client's without III. Fisher's taking proprietary consent and from inter- A. Standard of Review subject representa- est in the matter of the disciplinary proceedings, tion. The Board denied numerous motions summary by judgment Hearing for filed Fisher. On Board is the of fact and has finder 24-27, 2007, July authority regard the Board conducted a to make determinations ing credibility of witnesses and conflicts and, hearing pursuant to C.R.C.P. 251.18 on 30, 2007, Haines, opinion October issued an and order In re evidence. 177 P.3d (Colo.2008). imposing plena sanctions. addition to those vio- 1244 this court has While summary judgment, ry authority lations found on over matters of disci Hearing pline, Board found Fisher violated the we have established standards of re requiring competent representation Hearing Rules view and will disturb the Board's prohibiting neglect legal findings only they clearly and of a matter. factual if are erro Hearing remaining The Board dismissed the supported neous or not substantial evi 251.27(b). Id.; discipline, suspended claims. As Fisher was dence in the record. C.R.C.P. We conduct a de novo review of the months, stayed upon com- six successful finding of the Haines, supports P.3d The record of law. conclusions Board's handled a had never Hearing Board. Fisher at 1245. pension before. involving a federal case the time he During the nine months between RPC 1.1 B. Colo. and his termi- retained and Hearing Board found clear The OPM, nation, did contacted the Fisher never violated that Fisher convincing evidence published attorney's handbook not review the 1.1, competent provide failure to RPC Colo. OPM, did not consult the OPM web- by the he did not research when representation, site, experts in the not consult with and did Ms. Varner's necessary to secure process the trial court benefits. After field of federal or take benefits OPM in Mr. Varner's rights providing Ms. Varner the decree issued securing rights. those toward any steps from Mr. Varner's should receive benefits must be this determination argues Fisher account, mail the de- failed to OPM supported not it was because reversed party to or instruct another cree to the OPM disagree. convincing evidence. We clear do so. lawyer pro- "a shall 1.1 states RPC Colo. Hefly, expert witness Thomas to a client. competent representation vide of retirement of division and transfer area requires legal Competent representation marriage, testi- upon dissolution benefits skill, thoroughness prepara- knowledge, spe- of retirement benefits is fied division necessary representa- reasonably for the tion relations at- practice cialized that domestic that, provide when comments tion." The specialists. He stated torneys often refer to knowledge and skill determining the level of publishes a handbook and website the OPM the Board requires, matter particular attorneys on the provide information to including complexi- factors look to should handling pensions. federal Mr. proper matter, of the specialized nature ty and enough for an Hefly it is not testified lawyer's experience, and the lawyer's general awarding attorney simply to obtain a decree ques- experience the field training and attorney must spouse, benefits to han- "Competent 1.1 emt. RPC tion. Colo. with the order. provide the OPM inquiry particular matter includes dling of a supports in the record evidence factual and analysis of the into and finding that did Hearing Board's and use of methods problem elements competent representation to Ms. provide not meeting the standards procedures action which because he failed to take Varner an at- practitioners." Id. While competent securing aided him in the surviv- would have accept employ- torney generally not Accordingly, benefits. law in which she is ment in an area of erroneous, clearly Board's was not employment if may accept such qualified, she ground. affirm the Board on this and wе expects qualified to become good faith she study investigation. Id. through RPC 1.3 C. - Colo. acknowledged Hearing Board Ms. Board's professional relation-
Varner terminated shortly permanent legal mat after ship with Fisher neglected that he determination RPC 1.3 must be ter in violation Colo. respond to tele- hearing and did not orders *9 supported it is not clear reversed because phone or written communications. calls However, convincing if had taken and evidence. it Fisher found rule violated this be acquainted with the Board found Fisher any steps to become any steps to secure the he did not take securing retirement benefits cause procedures for primary of Ms. the relation- OPM benefits-one Varner's through the the time OPM have, ar terminated, objectives representation. for the Fisher could at a ship was he minimum, poten- neglected the matter informed Ms. Varner gues he could not have ultimately received the if injury might suffer she did because tial she conclu- disagree with Fisher's working benefits. We him to secure allow to continue sory reasoning. benefits. "lawyer act requires 1.3
Colo. RPC arrangements with OPM for the benefit diligence promptness with reasonable division. lawyer A shall not
representing a client. Therefore, clearly it was not erroneous for neglect legal matter entrusted to law- Board to find that Fisher failed Lawyers particular on mat- yer." retained prompt take measures to secure Ms. Var- pursue matters "on behalf ters should those rights According- ner's in Mr. Varner's OPM. obstruction[,] despite opposition, of a client ly, affirm the Board's Fisher ne- personal lawyer." to the inconvenience glected legal matter. professional 1.3 emt. Unless the Colo. RPC client, relationship by the "a is terminated 1.8(a) D. Colo. RPC lawyer carry through to conclusion all summary judgment, Presiding On - for a client." Id. matters undertaken ("PDJ") Disciplinary Judge found Fisher ob argument Fisher's that he could not have tained an interest adverse to his client's with neglected the matter because Ms. Varner complying requirements out with the of Rule ultimately unpersua- received the benefits is 1.8(a) when he took the deed of trust that, sive. The Board found while argues Varner residence. Fisher this deter judgment Fisher won a from the trial court mination was error which we should marriage in the dissolution of action award- However, review de novo. we view this as benefits, ing Ms. these Fisher "did Varner challenge finding, to the PDJ's factual necessary steps not take the next to secure only if clearly will reverse the decision was them." The Board considered Ms. Varner's erroneous. unwillingness telephone to return calls or 1.8(a) provides Colo. RPC that an following permanent meet with Fisher shall not enter into a business transaction hearing. orders the Board deter- knоwingly acquire with a client or an own- that, mined while Ms. Varner's actions made ership, possessory, security pecu- or other it difficult for Fisher to communicate with niary interest adverse to a client unless: her, they duty did not ameliorate his not to (1) the transaction and terms on which the neglect legal matters entrusted to him. lawyer acquires the interest are fair and ultimately The fact that Ms. Varner re- fully reasonable to the client and are dis- ceived the benefits to which she was entitled writing closed and to the client in a man- promptly does not mean that Fisher reasonably client; ner understood fact, diligently performed his duties. (2) the client is informed that use of coun- that, supports record the Board's conclusion given oppor- sel be advisable and is during represented the time Fisher Ms. Var- tunity to seek the advice of such counsel ner, promptness he not act did or dili- transaction; gence securing OPM benefits. (8) writing the client consents in thereto. three trial months between the court's order attorney may obtain an inter that Ms. Varner receive one half of Mr. client's, est adverse to a but the transaction Varner's OPM benefits and Fisher's termi- client, must be fair to the the client must be nation, steps took no to secure the desirability obtaining advised of the inde benefits in Ms. name. Varner's After obtain- pendent given opportunity counsel and court, ing the decreе from the trial so, do and must to the consent transaction in did not mail the order to the OPM or consult writing.2 regarding with Ms. Varner need sub- processing. improper mit an order to the OPM it was not to take opposing Nor did he consult with it counsel the deed of trust because was not "ad- regarding the division of the survivor verse" to Ms. Varner's bene- interests. He states request opposing adversity fits or counsel make there was no because he and Ms. *10 writing 1.8(a) the must contain the essential terms of 2. The 2008 revision of Rule adds the addi- requirements tional that the client be advised of lawyer's and the role in the trans- transaction desirability obtaining independent of counsel action. writing gives and, consent, in if the client wriiten 1196 1.8(a) any must be followed by Rule outlined regarding the objectives residence
Varner's nega- op did not his interest interest are lawyer's pecuniary aligned time a were to the client's.3 posed as- He therefore Varner. impact Ms. tively inde- consent and requiring Rule serts 1.8(a), context of Rule Accordingly, attorney a an when counsel pendent there was no adversi- argument that Fisher's inapplicable. adverse is are interests client's is flawed. himself and Ms. Varner ty between disagree. We Here, promissory note and by acquiring the Opinion, the American Ethics Formal In a ability trust, streamlined his of deed ("ABA") position it takes the Bar Association the amount of and reduced to сollect his fees attorney to for an improper per se is not property. in the Varner had equity Ms. security inter through taking a a fee secure in the pecuniary interest Fisher's so, however, doing est; when Varner's, and opposed to Ms. residence was 1.8(a). of Rule by the mandates must abide It of no adverse. is interests were their 02-427. A similar Col Opinion Formal ABA was not ulti- consequence that Ms. Varner Opinion Ethics states Association orado Bar of this mately negatively impacted because ‘ security in a interest lawyer takes a if a adversity. fees, of he payment for property client's into a business Fisher entered Because 1.8(a). RPC CBA Colo. comply with must in which their transaction with Attorney's of Assertion Opinion 110: Ethics adverse, he should interests were Property, pecuniary Lien/Security Interest Charging 1.8(a)'s independent complied with Rule a 19, of trust is have A deed May 2001. Mod. requirements. There- and consent counsel Bd. Dir. v. security interest. Herstam fore, Hearing Board's determination Dist., Sanitation Water Silvercreek 1.8(a) § clearly er- 1131, (Colo.App.1995); 38-85 is not Fisher violated Rule P.2d roneous, and we affirm the Board. (2008) ("Mortgages, deeds of 117, CRS. trust, intended se instruments or other 18G) E. Colo.RPC obligation shall be of an payment cure lien."). deemed summary judgment, the PDJ also On Dictionary defines "adverse" Black's Law 1.8(j),4 Fisher violated Colo. RPC determined to," having opposed "against or as obtaining attоrneys from prohibits which concern, interest, position." or "contrary . subject matter of proprietary interests 2004). (8th Dictionary 252 ed. Law Black's he took the deed representation, when trans- Here, prohibited into a entered residence. Fisher trust the Varner acquired an he when action with Ms. Varner error; we view this was this In the in the residence. ownership interest sufficiency challenge claim a to the as 1.8(a), attorney and a an of Rule context conclusion, the PDJ's support evidence to pecuni- if their interests are adverse client's only if the deci reverse we find and we will to one another. ary opposed are interests clearly erroneous. sion and an attor- that a client simple fact lawyer 1.8(J) from RPC disallows Colo. ad- opposed establishes ney's interests are 1.8(@q). proprietary "a interest the cause acquiring Rule It is versity purposes of for subject litigation action or matter necessary inquire into not therefore lawyer conducting for a client." adversity negatively impacts whether granted lawyer may acquire a "lien protective measures client because Thus, 1.7(b) 1.8(a), adversity even exists. prohibits on the fact Rule 3. contrast to Rule In- repre- lawyer representing though a client if the own in matter from materially client's, may limited the law- be sentation he does not violate be adverse to a parties yer's responsibilities to third 1.7(b) reasonably believes the unless he Rule unless, among lawyer's other own interests negatively representation adversity affect his will lawyer representation will things, believes the of the client. adversely contrast to Rule affected. not be 1.7(b) 1.8(a), focus- Rule adversity inquiry ap- (j) and now Rule was amended 4. adversity will have the effect the on es on 1.8). pears as client, merely aitorney's representation of the *11 1197 lawyer's contract, law" secure fees and contract acquired by and those his deed of contingent client for reasonable fee However, proper. trust was the comments 1.8(J), in a In civil case. Id. amended Rule jurisdiction state the law of each determines 1.8), appearing language now as Rule excepted what liens are from the rule. changed lawyer acquire to allow a a Colorado, attorney's charging liens are the by lien "authorized law." We view this only law," by such, "liens authorized and as change language affecting in as not the sub- they only are excepted liens from the stance of the rule. prohibition against attorneys obtaining pro- prictary in subject interests matter of the argues Fisher did not he violate the rule litigation. prohibiting attorneys acquiring proprie- from
tary subject interests in the matter of the attorney's liens, contrast charging representation because a deed of trust is a promissory note and deed of trust were granted by "lien lawyer's law to secure a by authorized attorney's law. While fees." He states the 2008 revision to Rule charging by law, liens arise operation of 1.8(J) clear makes that deeds of trust are not promissory notes and deeds of trust do not- prohibited under this rule. Fisher they granted by arise when an individual. again mistaken. The deed of trust allowed Fisher to collect on exception granted by for "liens law" promissory his note immediately without re- attorney's refers to an retaining charging or ducing his claim to a judgment. While attor- lien, by 12-5-119, -120, authorized sections ney's charging roughly accomplish liens (2008). Smith, C.R.S. People See v. 830 P.2d purpose pursued same when he had (Colo.1992). 1005 argues sign trust-security deed of qualifies deed of granted by trust as a "lien payment for of fees-Fisher cannot operated law" because it in the same manner merely substitute one for the other. lien, attorney's as an charging and the re- Attorney's charging liens specifically are vised rule includes deeds of trust in the provided excepted statute and are exception. from prohibition attorneys on obtaining Attorney's charging liens are stat proprietary subject in interests matter of utory attorneys creations under which have representation. Deeds of trust are not. claims, money, property, liens on judg Therefore, when promis- Fisher secured the they ments have obtained or assisted ob sory note with the deed of trust in the Var- taining. § 12-5-119. begins The lien to ac ner acquired residence he a proprietary in- crue from the moment of commencement of subject terest litigation matter of the Berkland, Marriage services. In re in violation of the Rules of Professional Con- P.2d (Colo.App.1988). An duct. Accordingly, affirm the PDJ be- charging places parties lien third on notice cause the determination Fisher violated Rule attorney that the has interest in the funds 1.8(J) clearly was not erroneous. subject to the lien. Id. In order to collect lien, under the must reduce it to 1.8(a) Requirements F. judgment. (j) unknown to Fisher The comments to the revised version of the that even if his actions vio- jurisdiction" rule state "the law each de- 1.8(a) (J), lated Rules he cannot now be termines which "liens authorized law" are punished he because did not know the con- excepted prohibition from the rule's on attor- wrong duct was at the time it was committed. neys acquiring proprietary interests in the argument presents legal question, This subject representation. matter of the Colo. apply we therefore a de novo standard of RPC 1.8 emt. suggests The comment "these review. statute, granted by include liens liens law, originating above, in common ac- discussed ample legal liens As there is quired by authority contract with the client." Id. Fish- establishing Colorado that attor- argues that, 1.8(a) er specif- neys because the comments (J) must abide Rules and when ically originating allow liens taking security subject common law mat-
1198 nev should suggest there do not Colorado, We only the In representation. ter of 5 Hearing Board's the consequences for er be excepted from by law" granted "liens decision, however we timely to issue failure proprietary acquiring lawyers on prohibition largely period to be day time the 60 find repre of the subject matter in interests conse determining whether In aspirational. Accordingly, attorney's Hens. are sentation fails to the Board result if quences trust, and of to deeds 1.8(j) applies Rule decision, consider we will timely render of took the deed he it when violated Fisher delay, delay, for the reasons of the extent Similarly, residence. in the Varner trust of as a result occurred any prejudice that and in security interest attorney takes an when delay. trans business this is a property, client's his consent with the comply must and he action 96 was issued Here, the decision while of requirements counsel independent and no point can hearing, Fisher days after 1.8(a). Rule of the as a result occurred prejudice that did not state Board delay. The attorneys presumed are All Colorado this was a delay, we note but for the reasons of Professional the Rules of aware to be sig- charges and involving numerous case re Attor In impact. See their Conduct Fisher Because of evidence. amount nificant (Colo.2002). An 1167, C., 1173 P.3d 47 ney Fisher's any way, and prejudiced not was will his conduct "awareness remanding the case remedy of proposed not itself proscription ethical an violate merely pro- anew would the matter trying D., 395, P.3d Attorney 57 In re material." - par- all cost for significant at long the case conduct (Colo.2002). Fisher's 400 any consequences ties, impose we decline not he or whether punishment warrants opinion failure to issue the Board's for According improper. conduct knew the find no Accordingly, we days. 60 within PDJ's determi to set aside ly, we decline violation of this minor required for action is 1.8(a) Colo. RPC violated Fisher nation however, the Hear- requirement; day the 60 (J). every attempt to com- make ing Board shall in the future. this timeframe ply with Opinion of for Issuance Timeframe G. H. Due Process ju- Hearing Board lost argues the Fisher for the it was error argues it issued because Fisher matter over the
risdiction for a new deny his motion Imposing Sanctions Order Opinion and failure to Regulation Counsel's a matter hearing. This is trial based on days after the 96 expert's assessment their de novo. disclose review which we of law Counsel consulted Regulation case. when that "with of OPM benefits provides in the field expert 251.19 C.R.C.P. hearing. preparing hearing" the sixty days after resulted consultation setting forth this prepare an order Board "shall Fisher did not opining that expert Counsel's How its decision." findings facts and its competent repre requiring rule, rules rule, any violate other ever, in this nothing neglect of a prohibiting jurisdiction to sentation loses Hearing Board states exculpatory this is asserts matter. issued opinion is not if the a matter rule on him be disclosed which must light evidence hearing. sixty days after the within proceedings are attorney discipline l(a), the Rules of because states which of C.R.C.P. Ruffalo, In re nature." See quasi-criminal liberally "of construed be "shall Procedure Civil 1222, 544, 551, 20 88 S.Ct. 90 U.S. inexpensive speedy and just, 3 to secure (1968). argues because 117 action," L.Ed.2d hold the every determination discipline nature" "quasi-criminal days does 60 a decision within to issue failure afford process protections due juris proceedings, losing Hearing Board result provided be must criminal defendants matter. ed to over the diction by law." "liens authorized revision, under the 2008 Or, 5. appeals. Rosen, such See the Matter of attorneys discipline proceedings. We (Colo.2008). 198P.3d *13 review this claim de novo. attorney simple discipline The fact Appeal IV. Counsel's
proceedings
quasi-criminal
are
in nature does
A. Standard of Review
panoply
protec
not mean the full
of criminal
apply,
tions
or that
the Rules of Criminal
rеcognize
we
plenary
While
we have
govern disciplinary pro
Procedure
power
attorney
matters,
disciplinary
over
we
ceedings.
contrary, disciplinary pro
On the
have nonetheless established standards of re
ceedings
pursuant
are conducted
to the Colo
which
apply
view
when reviewing deci
rado Rules of Civil Procedure. C.R.C.P.
Hearing
sions of the
Board. The standard of
251.18(d).
matters,
criminal
contrast
to
review for decisions of
Hearing
litigants
of
Rules Civil Procedure allow
finding no violation of a rule
subtly
differs
consulting experts
work with
without disclos
from the standard of
findings
review for
of a
ing
identity
opinions
or
expert
of that
if
violation because of the nature of the Board's
Phillips
she is not called as a witness.
v.
decision.
Hearing
When the
Board deter
Court,
455,
Dist.
194 Colo.
conduct do not contravene constitutional panel Board's three members rights, they light are not advisable of the have been unconvinced for different reasons. very apply difficult standard of Recognition people may review we that reasonable view any find only if we cannot not occur did of the reasons differently is one evidence deter- for the Board's explanation reasonable panel. three-person
justifying reasonable mination, that no and conclude did not Here, Hearing Board of a viola- unconvinced could be fаct finder explain what extraordinary effort make convincing of clear tion a standard violated that Fisher them convince failed to evidence. clear 8.8, 34, 1.7, and 84. While Rules short-comings of the evi explanation 1.7(b) B. review, we will our facilitate would dence *14 why determined findings Hearing to Board as The to make require the Board requiring rep do so the violation. To not violate rule of a Fisher did unconvineed it is by lawyer's to own of the Board limited a member not be require each resentation might complaint. first alleged in the as separate interests dissatis possibly explain attempt legal which the evidence it was error degree argues Regulation the Counsel faction with because, by of a detailed In the absence to find no violation persuasive. for the Board is shortcomings of the evi- of the of the in the sale explanation representing Ms. Varner possible reasons denee, may residence, to the his look also advanced we marital can If we unconvinced. might be Board of the sale. against proceeds the claims own have error, Board could legal a reason articulate not a claim of this is violation, whether or only Hearing unconvinced Board been will reverse and we could actual reason fact finder the Board's represents if find that no reasonable we not it because, this 1.7(b) based on ing, will affirm we of Rule of a violation be unconvinced fact reason, say that no reasonable cannot we convincing Id. by evidence. clear by of a violation unconvinced finder could be 1.7(b) Rule states: convincing evidence. of clear and a standard if the represent a client lawyer A shall not if Hearing Board affirm the Accordingly, we may be mate- of that client representation that a of our record review we find from ... in- by lawyer's own rially limited any one of person could find reasonable terests, unless: not does evidence many possible views (1) reasonably rep- lawyer believes convincing standard. meet the clear affected; adversely not be will resentation error, Therefore, we absence of Hearing Board's fail only overturn will (2) if fact after consulta- no reasonable client consents a violation ure to find a violation unconvinced of could be tion.... finder convincing evi clear and the standard Therefore, requires lawyer the rule Rosen, at 119. 198 P.8d dence. may representation if that represent a client Board's own materially from the limited Appeals be sparingly, reasonably taken as attorney be be- of no violation should unless the interests Rath- unusually to show error. adverse- representation it is difficult will not be lieves the after con- ly many possible and the сonsents creatively explore the affected than er client decision, it suffi- panel's for the reasons Board determined sultation. panel could simply conclude cient therefore did and Fisher no conflict existed If we a conclusion. reasonably reach such Ms. Varner or obtain not have to consult with may have panel to discuss how argues choose Regulation Counsel her consent. convincing, we less than the evidence found gave him a direct of trust Fisher's deed if we conclude Board residence, will affirm in the sale financial justifying the explanation exists a reasonable and, such, position in a he was not as Further, we finding of no violation. Board's the resi- to the sale of explore alternatives may not even recognize that our discussion return on maximize Ms. Varner's dence or panel's actual dissatisfaction reflect the sale. the evidence. lawyer's to the rule state The comments permitted "to not be interests own we will overturn a violation have of a representation determination Hearing Board's adverse affect on client." Colo. RPC 1.7 emt. In its com der to ensure that his fees were 1.7, largely paid, outcome, Rule the same as while sought ments Model this 1.7(b), order, the ABA states "the mere required by Colo. RPC as court discharge possibility require of ... harm does not Accordingly, itself debts she owed. because the and consent." Model Rule of Pro disclosure have concluded Fisher and Ms. 1.7, Rather, fessional emt. 8. Conduct the Varner's interests were not adverse to one another, urges determining ABA the focus for wheth it cannot be said that no reasonable a conflict is "the er exists likelihood fact finder could be unconvinced of a Rule 1.7(b) and, difference in interests will if it eventuate convincing violation clear and evi- does, materially whether it will interfere with dence. lawyer's independent professional judg Counsel further Fish- considering ment in alternatives or foreclose er's ensuring continued work aimed at reasonably courses of action that should be completion of the sale of the Varner resi- pursued on behalf of the client." Id. There denee after he received Ms. Varner's order 1.7(b) fore, inquiry the focus of a Rule is on *15 1.7(b). stop to work also Reg- violated Rule attorney's may the effect the interest have on that, ulation Counsel asserts because of his the client.6 completed, desire to see the sale Fisher con- sale, tinued work on the disregarding Ms. Here, judge in the Varner's dissolution request. Varner's Hearing The Board did marriage previously of case ordered the mar- not make findings regarding factual this sold, ital residence and ordered Ms. Varner However, given claim. ambigui- the relative pay attorney judge her own fees. The knew order, ty stop work Ms. Varner's asset, only Ms. Varner's aside from the OPM Fisher, to refusal return to communications benefits, equity was her in the marital resi- subjective understanding and Fisher's judge dence. Two months after the ordered stop only applied work order to new sold, the home there was a contract for sale matters, we not will overturn the Board's asking price. on the house for the full From determination that Fisher did not violate record, appears it Fisher had no role in 1.7(b). Rule Because we can articulate sev- determining asking price. There is no explanations why eral reasonable as to indication Fisher's interest in the marital may Board have been unconvinced price, speed residence affected the sale of of a violation the standard of clear and sale, or the decision of the trial court to evidence, convincing we conclude reason- order the sale of the home. able fact finder could be unconvinced Fisher The have found that 1.7(b) by convincing violated Rule clear and negatively Fisher's not interest would affect evidence. fact,
Ms. Varner. Ms. Varner and Fish- Accordingly, affirm the aligned er's interests regard were to the Board's determination that Fisher did not sale of the residence. The court ordered the 1.7(b). violate Colo. RPC sale, and, attorney, as Ms. Varner's obliged complete the sale. Both Fish- 3.3(a)(1) (a)(4) Colo. C. RPC hoped accomplish er and Ms. Varner and, property swift sale of the once an offer Counsel asking was tendered at price, complete prohibiting violated the rules false state " sought the sale. Fisher this outcome in or- ments of material fact to tribunals7 when he 1.7(b), 1.8(a) 6. versity negatively representation In contrast to Rule Rule is violat- will affect his 1.7(b) attorney ed if an and a client's the client. We interests are also discuss Rule adverse, adversity negatively 1.8(a) whether or not that page Rule in footnote 3 on 1196. 1.7(b)'s the client. Colo. RPC impacts adversity 7. The Colorado Rules of Professional Conduct inquiry adversity focuses on the affect the has on were revised in 2008. The 2007 version of Colo. attorney-client relationship, merely on 3.3(a) RPC stated: Therefore, adversity the fact that exists. if adver- sity attorney lawyer knowingly: exists an between and a client's A shall not interests, 1.8(a) violated, (1) regardless Rule is make false statement of material fact or attorney reasonably whether the ad- believes the tribunal; law to a 8.8(a)(1) even RPC attorney violated Colo. affida financial Varner's update Ms. failed a trial court misrepresentation though resi his in the marital interest showing his vit Ac- 3.8(a)(1) of the case. lawyer the outcome "a did not affect states RPC dence. Colo. materiality encom- concept of cordingly, statement make a false knowingly shall not 3.8(a)(1) is not directed passed Under in Colo. RPC law to tribunal." fact or of material matter, but particular informa of a material the outcome 3.3(a)(1), to disclose failure making potential is equivalent of there is the rather whether tion to a tribunal Model a determination material fact. influence information could a false statement 3; 8.8, emt. Conduct that matter. Professional as to Rule of (Colo.2002)(holding Cardwell, P.3d 897 re attorney's stat lien the Colorado Under driving under guilty to pled client when money, prop ute, attorney a lien on an has alcohol, attor criminal defense influence claims, she aids judgment which erty, client the court to inform ney obligation had lien arises obtaining. § 125-119. previous he when denied perjury committed attorney as the law as soon operation of convictions). RPC Colo. alcohol-related - Id. representation. commences offering 8.3(a)(d) from an disallows interest, represented already had "If false." lawyer knows to be evidence "the lien, equity Ms. Varner's by an evidence material lawyer has offered judge time the trial home at false, the evidence later learns The fact of orders8 permanent issued meas remedial take reasonable lawyer shall equity was in Ms. Varner's Fisher's 8.8(a)(4). RPC ures." Colo. when divid surely to the trial court material *16 8.8(a)(1) of a Rule the focus equity and deter Ms. ing Mr. and Varner's statement, falsity of the not on the inquiry is However, the trial mining maintenance. - materiality of the statement. but on in an interest aware Fisher had court was previ- lawyer learns Similarly, when a residence, equity in the marital Ms. Varner's false, Rule under is ously evidence submitted an of trust or by the deed secured whether it if the evi- 3.3(a)(4), only correct he must court attorney's the trial was lien. Because Here, pro- affidavit material. dence was interest, possible the it is of this aware security in- showing court to the trial vided Fish Hearing could have determined false in residence terests Varner in marital residence of trust er's deed include Fisher's not amended that it was Accordingly, material information. was not it from Ms. trust onee he obtained deed of at least one rea can articulate because we the Board's focus of Varner. why the Board explanation as sonable materiality the failure was on the inquiry violations of unconvinced of have been the affidavit. to amend 3.3(a)(1) (a)(4), cannot find Rule uncon finder could be fact no reasonable to Model Rule ABA comments by and con a clear of such violations vinced 4.1, requiring law Conduct of Professional therefore af vincing standard. We evidence of material make false statements yers not determination firm the trial court's others, provides fact transаctions (a)(4). 8.8(a)(1) Rule did not violate have influ if it could is material statement Rule of Profession hearer. Model enced the 34(c) RPC D. Colo. 4.1, squares 1. This definition emt. al Conduct Small, argues Fisher's Regulation Counsel holding People v. with this court's after affidavit (Colo.1998), update Ms. Varner's found an failure where we 258 962 P.2d previously fact or law (2) statement of material to a tribunal a material fact fail to disclose lawyer.... by assisting necessary made to the tribunal to avoid when disclosure (3) lawyer to be false. knows a client.... offer evidence act or fraudulent criminal (4) lawyer is false. knows offer evidence 3.3(a) perfected until attorney's not lien was 8. Fisher's of Colo. RPC 2008 version The revised notice of attor- when he filed the states: 6, 2004, May Howev- ney's Court. knowingly: the El Paso District lien in lawyer not A shall er, representa- began arose when Fisher (1) lien of material fact make a false statement Varner. tion of Ms. to correct a false a tribunal or fail law to 1203 8.4(c) trust also violated the deed of he obtained E. Colo. RPC attorneys disobey prohibiting from the rule Counsel provides ing of a tribunal. The rule the rules Board erred not knowingly disobey an lawyer "a shall prohibiting lawyers Fisher violated the rule obligation under the rules of a tribunal...." engaging from involving "conduct dishon argues Fisher violated Regulation Counsel fraud, esty, misrepresentation." deceit or because, rule under C.R.C.P. 26.2 as it this This court has stated that in order for a 2008,9 attorney duty existed in is "under lawyer to engaged be found "to have in con supplement ... [the its disclosures when involving fraud, dishonesty, duct deceit or attorney] learns that in some material re misrepresentation, it must be shown that the incomplete spect the information disclosed is lawyer possessed culpable mental state above, possi or incorrect." As it is discussed greater simple than negligence.... [Wle ble the Board found that Fisher's conclude that the element of scienter must be did not failure to correct affidavit materi Rader, 950, People shown." v. 822 P.2d 953 ally change the evidence before the trial (Colo.1992) 1-102(A)(4), (referring to DR Accordingly, court. we will not overturn the 8.4(c)). precursor to Colo. RPC The element decision of the Board on these of scienter is shown when "it is established grounds because we cannot find that no rea attorney deliberately that the eyes closed his sonable fact finder could be unconvinced of a 84(c) duty to facts he had a to see ... or reckless Rule violation standard clear ly things stated as facts of which he was convincing evidence. Benjamin, ignorant." (citing Id. United States v. Regulation Counsel also asserts Fisher vio- (2nd 854, Cir.1964)). F.2d 862 32 3.4(c) by collecting lated Rule more than $350 Accordingly, a mental state of at least reck enforcing the trial authorized court order 8.4(c) required lessness is for an violation. his lien. North, (Colo. People See v. 964 P.2d Fisher and Ms. Varner entered into a fee 1998). agreement repre- at the commencement *17 charge sentation which allowed to Here, possible Hearing it is the Board collection fee from Ms. Varner. When $350 found requisite Fisher did not have the men- lien, attorney's Fisher enforced his the trial tal state when he failed to amend Ms. Var- court order him authorized to retain ner's financial example, affidavit. For the $38,581.63 amount of from his client trust testimony Board could have believed Fisher's $3,581.63 account. In addition to the obligated that he did not think he author- to court, by ized the trial Fisher retained $350 affidavit, include his deed of trust in the aas collection fee. misunderstanding this of the disclosure rules only negligence. established a mental state of The evidence trial establishes the Accordingly, there is sufficient evidence in prohibit court order did not the retention of a fee, agreed the record for us to articulate a pay collection and Ms. to reasonable Varner sum, representing charges accruing explanation this as to how the Board from have lien, purpose attorney's distinct from the been unconvinced of a violation. not and thus included within the lien amount. a reasonable fact finder could be unconvinced 8.4(c) possible Hearing It is by therefore the Board of an viоlation a clear and convinc- standard, ing found the retention of the collection fee was evidence affirm and we contrary Hearing ground. to the trial court's order. Be- on Board this expla- cause we can articulate one reasonable Hearing
nation as to how the Board could Sufficiency Discipline V. have concluded there clear con- was not 83.4(c) 251.27(b), vincing establishing evidence a Rule affirm the Under C.R.C.P. we violation, we will discipline imposed Hearing not reverse the decision of Board un- 1) 2) conduct; Board. it no relation to the less bears governs question 9. CRCP. 26.2 as it existed in 2003 the conduct occurred in 2003. repealed Fisher's conduct before the trial court because C.R.C.P. 26.2 was in 2005. EID, concurring part and Justice in rela- insufficient or manifestly excessive is 8) dissenting part. or is public; needs of tion to unreasonable. otherwise majority's opinion join III of the I Section argues the disci Counsel Regulation decision that affirming Board's is un Board by the imposed pline Rules Professional Fisher violated several in relation to and insufficient reasonable however, dissent, from Section I Conduct. disagree. we public. needs opinion, which denies IV of the findings made detailed Hearing Board The cross-appeal and affirms Counsel's Imposing Standards for the ABA pursuant to that Fisher did not determination Board's in The ABA Standards Lawyer Sanctions. Prоfessional other Rules of violate certain authority to consider disciplining struct acknowledges that majority The Conduct. attorney, by the duty violated why guidance as to provided Board little injury state, potential the actual mental regard to these violation with it found no misconduct, the existence by the caused Yet it affirms allegations. Maj. op. at 1199. mitigating factors. aggravating fact that it based on the the Board's decision important violated found The Board Board "articulate a reason the is able to Board The to Ms. Varner. he owed duties a violation." been unconvinced of could have his conduct was aware of also found added). view, my (emphasis at 1200 Id. inter- Ms. Varner's pursue he failed when deter- not affirm a "no violation" we should benefits, knowingly and acted in the OPM est simply because we mination the Board The of trust. the deed obtained when he justification possible for can articulate injury potential Board considered Instead, the Board's rationale when result. however, serious; it stated to be our sufficiently unclear so as to hinder physical and that Ms. Varner's it was mindful determination, we review of its "no violation" for Fisher it difficult made mental condition Board. remand the case following objectives complete Ms. Varner's Board found three The orders. permanent 251.27(b), review the CRCP. Under prior disci- factors: the absenсe mitigating findings under a standard of Board's factual proceedings, cooperative attitude pline, error, de novo. and its conclusions clear dealing patience and Fisher's regard that with problem in this case is Regulation Counsel's deci- delay caused that Fisher did not vio- to its determination The Board complaint. file a second sion to 8.4(c), 1.7(b), 8.3(a), 3.4(c), and late Rules mo- factors: selfish aggravating found four rationale to a did not set forth its acknowledge wrongful tive, refusal apply the degree to enable us to *18 sufficient conduct, vulnerability of the the nature of the articulated Rule standard review victim, experience substantial and Fisher's 251.27(b). words, impossible it is In other practice of law. the of "no vio- the Board's determinations review Hearing properly considered The there are no lation" in this case because applied appropriately ABA standards the findings rationale to review. The factual or in this case. The sanctions to the facts them problem, noting that majority recognizes this Hearing Board-suspension by the imposed finding of no the Board returns "Iwlhen law the State practice of from the violation, finding a factual it does not make stayed upon comple- months for six Colorado Maj. op. at 1199. that we can review." period-ade- two-year probationary tion of a problem is majority's The solution to this not un- protect public and were quately finding of "no violation" Accordingly, we to treat the Board's or insufficient. reasonable disciplinary or- of a factfinder's verdiet of Hearing equivalent Board's as the affirm the id. at 1200 liability no in a civil case. See der. Rosen, 198 P.3d (relying In the Matter on Conclusion VI. 116, (Colo.2008), which considered 119 challenge to a no viola reasons, regulation counsel's affirm the foregoing For according re- finding to "the standard grounds. all tion Board on decisionof why or quired a motion directed verdict for the Board to articulate a violation for for notnotwithstanding judgment motion for proven, panel was not or that members under the Rules of Civil Procedure verdict" may be that a unconvinced violation occurred added)). grant Maj. op. (emphasis The standard for for different reasons. at 1199. Yet view, my ing apply either a motion for a directed verdiet or a these concerns would equally judgment notwithstanding motion for to the Board's determination that a essentially verdict the same: the verdict violation occurred. preserved must be unless "no reasonable majority The describes difference be- person could reach the same conclusion as tween the review it standards articulates as Frankel, jury." Hall v. 190 P.3d sure, Id. at 1199. To "subtlle]." be review- standard, (Colo.App.2008). Drawing on this ing findings factual for clear errоr where we majority holds that the Board's determi rationale, have the Board's determining long nation of no violation will be affirmed as possible explanation whether a can be found as "we can articulate a reason the Board not, where we do are both deferential stan- violation, could have been unconvinced of a dards. quality What differs is the of our represents or not it the Board's
whether
instance,
review.
In the former
we have the
Maj.
reasoning."
op.
actual
at 1200.
In
explanation
benefit of the Board's
of how it
words,
majority
up
other
if the
can come
evidence,
viewed the
it applied
how
the law
"possible
with a
for the Board's
reason{ ]"
evidence,
to that
and how it arrived at the
Board,
determination it will affirm the
be
latter,
result
it did.
simply
we are
person"
cause a "reasonable
could have come
searching
explanation
rational
for its
to that conclusion.
Id.
may may
result-which
not have
been
grounds for its determination. Even the ma-
majority's assumption
The
the Hear-
jority acknowledges that
explanation
"a clear
ing Board's determination
of no violation
short-comings
of the
[leading
evidence
analogized
a civil
be
verdiet of no
the Board to find no violation] would facili-
liability
largely
has remained
unexamined
tate our review."
Id. at 1200.
I see no
Rosen,
this court.
See
The that it be difficult that Counsel Fisher violated Rule limita material have found no rep- Board could attorney from an 1.7(b), prevents which 1201,1 tion, majority affirms a maj. op. ... at representation if "the
resenting a client lawyer's by ... that the Board materially no violation limited may determination be 1.7(b) (2007), un- interests," har RPC had it not been might Colo. have reached own "(1) reasonably believes view, my less In law. a mistake of boring under affected; adversely will not be representation determina not affirm the Board's we should consulta- (2) after client consents cireumstances, but rather tion under these 1.7(b)(1)-(2)(2007). Regu- RPC Colo. tion." the case. remand that, in- taking an argued lation Counsel majority that we should agree I with the fees, his to secure in the house terest As the determinations. defer to the Board's would material- that had a conflict notes, advantage having a majority "The of Ms. Varner. representation ly limit his testimony that is able that "evidence is she Board concluded trier of fact heаr The witnesses, credibility of the convincing." to evaluate not clear is of a conflict Leading up testimony, and determine at 10. nuances in decision detect Hearing Bd. conclusion, that Fisher Board stated of the evidence." persuasiveness this the overall fees why to collect his right precisely But that is "had Id. at 1199. the lien and to "assert analysis court" the domestic set forth its Board should performed his ser- [he] action in which it it to the conclusion evidence that led Id.; (noting again that see also id. vices." coming up reached, this court opposed as fees"). The collect his right Fisher "had explanation for its conclusion. possible with a no evidence that "there is stated Board also no majority affirms the Board's Because the the fees he not earn did suggest [Fisher] remand- rather than violation determinations added). The (emphasis Id. collected." case, from its respectfully I dissent ing the of a that the evidence concluded Board then opinion. convincing. Id. not clear and conflict whole, opinion the Board's read as a When that Chief Justice I authorized to state am determination that its no violation suggests join in RICE this MULLARKEY and Justice law-namely, on a mistake was based dissent. long as as conflict of interest can be no there right and had attorney had earned posed Rule question collect the fees. however,
1.7(b), the fees were is not whether collected, rather but and could be
earned residence of trust on the the deed
whether posed a risk that Fisher's
securing those fees "may be mate- of Ms. Varner
representation (2007). 1.7(b) RPC rially limited." See Colo. under which
By positing a scenario reasonably lawyer possible believe[d] "the majority tion whether disagree its with the 1. I adversely representation not be af- support w[ould] of no the Board's rationale could view, 1.7(b)(1). my it | posits fected." Colo. RPC It violation. that one could reason- would be difficult to show have found that Fish- [the categorically prohibited ably believe that conduct negatively Ms. would not affect er's interest 1.8(a) af- adverse under would not as adversely Varner and Fisher's inter- fact, Varner. Ms. 1.7(b)(1). attorney's representation under fect an regard aligned to the sale of the were ests majority's disagree focus on with the I also residence. representation was in fact af- whether Fisher's Varner Maj. op. Yet the interests of Ms. at 1201. maj. See fected his interest residence. residence were not sale of the and Fisher in the *20 (concluding op. interest did not at 1201 that his obtain the aligned. interest was to Ms. Varner's Varner). question negatively affect Ms. price. was highest possible Fisher's interest sale did Fisher's interest in the residence not whether enough high price so to obtain a sale adversely impact representation, Indeed, but paid be off. his deed of trust would fact believed, reasonably at the whether he rather majority Colo. RPC that, under concludes appeared, it would not. 1.8(a), Maj. op. time the conflict at "adverse." the interests were 1.7(b)(1) (2007). 1.7(b)(1), Thus, only ques- RPC See Colo. Rule 1196. under