Thе PEOPLE of the State of Colorado, Complainant, v. Robert E. ABRAMS, #37950, Respondent.
Case Number: 19PDJ036
Office of Presiding Disciplinary Judge of the Supreme Court of Colorado.
February 12, 2020
459 P.3d 1228
C.R.C.P. 251.19(b)
WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE
Robert E. Abrams (“Respondent“) was hired by a married couple to file a construction contract lawsuit against their former builder. During the course of the litigation, Respondent developed a negative opinion of the judge presiding over the case. In an email to his clients, Respondent referred to the judge using a derogatory slur that exhibited bias or prejudice on the basis of sexual orientation, thereby violating
I. PROCEDURAL HISTORY
On May 16, 2019, Justin P. Moore, Office of Attorney Regulation Counsel (“the People“), filed a four-claim complaint against Respondent with Presiding Disciplinary Judge William R. Lucero (“the PDJ“), alleging that Respondent had violated
Also on June 6, 2019, Respondent filed a motion to dismiss the People‘s complaint, raising in part the
In autumn 2019, the parties filed competing partial motions for summary judgment. The People sought judgment on their third and fourth claims alleging violations of A hearing in this matter was held on December 17 and 18, 2019. The PDJ presided over the hearing; he was joined on the Hearing Board by lawyers Sara Bellamy and Maureen A. Cain. Moore and David Shaw represented the People, and Respondent appeared with Sullenberger. A sequestration order was entered, though the PDJ allowed the People‘s advisory witness, Janet Layne, to remain in the courtroom throughout the hearing. The Hearing Board considered stipulated exhibits S1-S12, the People‘s exhibits 1-5 and 7, and Respondent‘s exhibits A, B, J, and O.1 The Hearing Board heard testimony from Michelle Bales, Nicoli (“Nico“) Pento, Steven Givot, Kevin Preblud, and Respondent. At the close of the People‘s case in chief Respondent moved to dismiss under Respondent was admitted to practice law in Colorado on October 23, 2006, under attorney registration number 37950. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.2 These findings, which we conclude have been established by clear and convincing evidence, are drawn from testimony at the disciplinary hearing where not otherwise indicated. Respondent, sixty-one, testified that he grew up in Highland Park, Illinois, the son of a “working man” who owned pawn shops in the Chicago “ghettos.” Respondent recounted that he enjoyed an upper-middle class suburban upbringing. He also recalled, however, frequently being picked on—and fighting back—because he was small. His ethos was “you come on me and I‘m coming right back.” As a result, he developed what he characterized as a “certain Chicago street sense,” whereby “you‘re going to fight to succeed or you are going to die.” These formative experiences helped shape Respondent‘s self-conception as a “Chicago street fighter.” Early on in his life, Respondent said, he decided he wanted to be a civil trial lawyer. Instead, he graduated with a marketing degree from Arizona State University and then attended Columbia University, where he earned a master‘s degree in media management. Later, he moved to Denver, where he built a successful stone and tile enterprise and a home building company. But his desire to become a lawyer “ate away” at him. So, he sold his tile business and enrolled in the night program at the University of Denver Sturm College of Law, graduating in two-and-a-half years. He was licensed in 2006 and opened a solo practice, which, until quite recently, was called Abrams & Associates. He said his legal career quickly took off. “The referrals were just incredible,” he remembered. Respondent highlighted in his own and other witnesses’ testimony his ties to the LGBTQ community. He noted that he represents Tracks, the largest LGBTQ nightclub in Denver. He elicited testimony from Kevin Preblud, chief operating officer of Exdo, a real estate and hospitality company that owns Tracks. According to Preblud, Respondent is always treated as a VIP when he In March 2015, Michelle and Gary Bales hired Joseph Hewitt, owner of New World Building Systems, to design and construct a steel-frame garage on their property in Centennial, Colorado. The Baleses were dissatisfied with Hewitt‘s work, as they thought that he had not fulfilled the terms of their contract. They sought legal assistance to recover the money that they had paid Hewitt. The couple hired Respondent after interviewing several lawyers; they retained Respondent because of his aggressive, direct style, which they felt would serve them well when litigating against Hewitt. On October 11, 2015, the Baleses entered into a contrаct with Respondent‘s firm for legal services on an hourly basis in their construction contract dispute. The fee agreement called for an unusual tiered billing structure whereby Respondent would apply a billing rate to a given task, rather than to a certain person.3 An employee might therefore have several different billing rates; the rate selected would depend on the complexity of the task. Michelle Bales (“Bales“) testified that she and her husband were cost-conscious clients, and the fee agreement also reflected that orientation, specifying that the Baleses authorized fees “not to exceed $15,000.”4 The fee agreement did not specify which employees would work on the case. But Respondent testified that it was his habit, practice, and routine to inform his clients verbally that he regularly staffed licensed out-of-state lawyers on his cases. He prides himself on this model, he testified, because it allows his firm to perform complex work at a fraction of the market rates. Though Respondent could not specifically recall advising the Baleses about this practice, he was confident that he had done so sometime early in the representation. Balеs was equally confident that he never advised her about the possibility that a non-Colorado lawyer would work on her matter. No contemporaneous notes reflect such an advisement, nor did any witness testify that they ever heard one. Bales recounted that she was first introduced to Nicoli Pento in October 2015 when a staff member from Respondent‘s firm instructed her to email certain information to Pento.5 Pento, a licensed Florida lawyer who had not been admitted in Colorado at that time, quickly became the Baleses’ main point of contact at the firm. Bales and Pento both testified that he did most of the work on the case, ranging from law clerk and paralegal tasks to work categorized as legal in nature. He provided the Baleses with case updates, gave them his own and Respondent‘s legal advice and interpretation of the case, prepared for hearings, drafted pleadings, reviewed documents, calculated damages, and attended court proceedings. Pento, in fact, testified that in retrospect he believes he may have on occasion practiced law without a Colorado license. Respondent primarily supervised Pento and rеviewed his work. Sometimes Respondent also fielded the Baleses’ emailed questions. According to Bales, Respondent referred to Pento as “my attorney” or “my associate.” And though Respondent usually billed Pento out at a law clerk rate, he applied an “associate counsel” rate to seven of Pento‘s billing entries in the case.6 Those entries totaled $1,451.21.7 Bales testified that she and her husband trusted Pento and believed until December 2016 that he was a lawyer licensed to practice law in Colorado. On December 22, 2015, Respondent filed on behalf of the Baleses a complaint and jury demand in Arapahoe District Court, case Respondent and Pento attended the case management conference together. Hewitt appeared pro se. The Baleses were not present. According to Respondent, Judge Douglass‘s attitude during that conference was rude and “brash and arrogant and condescending.” Respondent complained that Judge Douglass attacked him within minutes of the start of the conference, and he accused the judge of repeatedly screaming and yelling at him. “All thе way through ... his tone was you will shut up and sit down and do as I tell you,” Respondent recalled. Respondent took exception to Judge Douglass‘s “tone and curt demeanor” and decided to “stand up” to him. According to Respondent, that got the judge “elevated” and was “lighting him up.”9 Given what Respondent described as Judge Douglass‘s “animosity” toward him, he said, he felt he had no choice but to waive his demand for a jury trial; he reasoned that there was no way to win in front a jury if the judge constantly yelled at him for two days. “It can‘t happen,” he brooded, “it was like I‘d just lost [Bales‘s] case.” He also recalled thinking that he would have to explain this development to the Baleses. About a week later, Respondent was called upon to respond to an email from Bales containing several detailed questions. Bales posed the questions in bulleted form; Respondent replied below each question in different colored font.10 In one line of inquiry, Bales asked about the outcome of the case management conference. Respondent responded, “The judge is an ass and b/c of this we waived the jury trial (which is expensive anyway) b/c we don‘t want to be yelled at by this judge for two days in front of the jury.”11 Bales replied, “It seems as if things have become fearful with this new judge. What has been transpiring that seems to be creating this?”12 Respondent answered, “The judge hates me. It happens, it‘s not the first time. I probably remind him of someone who beat him up [when he] was a fat kid and now that he‘s a big fat judge he gets even w/ the bullies. Maybe he just hates Jews, who knows?”13 Bales‘s next questions involved Hewitt. She first asked whether the judge had ordered Hewitt to remove certain pictures from Facebook. More discussion on the topic ensued. Then, in a new bulleted line of questioning, she asked, “What explanations does [Hewitt] continue to provide allowing the judge to continue to put up with his behavior?”14 Respondent explained that Hewitt played the martyr and accused the Baleses of verbally threatening him. Bales said, “We have absolutely no idea of what he is attempting to accuse us of. We have never threatened him in any way. Has he provided proof or documentation of this accusation?”15 Respondent answered, He tried too [sic], but his evidence was irrelevant, therefore disregarded by the court, which caused your case to be dismissed. While I was getting your case dismissed (Hewitt‘s defamation case against you) I was getting yelled at by Fatso. The judge is a gay, fat, f[*]g, now Balеs testified that Respondent‘s email concerned her. She wanted facts about her case, not commentary. Though Bales chose not to speak with Respondent about the language he used in the email, she wondered why he was “spewing such invective” and worried that his choice of words presaged further inappropriate behavior or bad judgment. Still, she said, Respondent‘s email had no actual or potential effect on her case. At the disciplinary hearing, Respondent offered three distinct but somewhat interrelated reasons for calling the judge a “f[*]g.” First, he testified, he did so to explain to Bales why Judge Douglass was hostile at the case management conference. Respondent recounted that he “had to think it through [and] come up with an opinion,” so as he typed the email he was “starting to just piece it together.” Respondent went on: “I can read people. I read people very well. My street read on [the judge] is that he was a chubby little fat guy that was beaten up in high school, picked on constantly.” Reflecting back to his own high school experiences, Respondent concluded that because he had stood up to the judge, he likely reminded the judge of bullies who probably picked on the judge when he was growing up. Respondent speculated that may have been why the judge treated him with such asperity: “[the judge] now has the role that he‘s gonna get even with the bullies,” Respondent narrated. Second, Respondent said, he used the term “f[*]g” to “advance [Bales‘s] case,” intimating that he selected this language to explain the jury demand waiver. The email, he said, “sets up the whole foundation.... She just lost her jury.” He went on, “This all stemmed from what happened in advancing her case. I just lost her jury from the judge‘s belligerence. He was just so patently rude, abrasive, and obnoxious ... that there was no way I could ever get in front of [a jury] ... so now I‘m stuck with him.” Third, he acknowledged that as he wrote the email he “got a little heated about this judge yelling at me and I was fighting back.” Respondent testified that he was “blowing off some steam” when he chose his wording. As for what he meant by the term “f[*]g,” Respondent testified at length. Although he conceded that he was aware that a contemporary definition of “f[*]g” is an insulting and contemptuous reference to a gay male,17 he maintained that he intended to insinuate only that the judge was a weakling who was picked on by bullies. In the parlance of his childhoоd, he said, weakling, gay, and f*g were all synonymous, derogatory terms: “that‘s how the bullies talked to the weaklings when I grew up.” Respondent recounted that he once was called a f[*]gg[*]t in high school; “I actually broke that kid‘s nose for doing that,” he said. He also added that he used the terms weakling, gay, and f[*]g interchangeably with the word “homo,” which he has said was a term he used forty years ago, before he knew what the word meant. All of these insults describe a sissy, not a “sex preference,” Respondent claimed. He also insisted that he never used the term at any other time during the representation. Pento remembered differently. He offered credible testimony that Respondent regularly used similar “slurs” to refer to Judge Douglass. Every time the judge was mentioned in the office, Pento said, Respondent would make a “regressive” comment, calling the judge “fat f[*]gg[*]t,” “homo,” “Judge Fatso,” and derivatives of those terms. However, Pento could not remember a time when Respondent called Judge Douglass either a sissy or a weakling. Respondent uttered these epithets while in the company of other employees of his firm, and possibly within earshot of two other lawyers who shared the same office suite, Pento explained, but never around visiting clients. Pento understood that the comments were intended to be derogatory, as Respondent often demeaned people who disagreed with him. Indeed, Respondent testified that he felt justified in insulting the judge, given the way that the judge had treated him. Respondent nevertheless conceded that he used unprofessional, inappropriate language in the email, which he said he regrets: “I Early in the litigation, Respondent grew frustrated with the Baleses. Because they feared they would never be able to recover any damages awarded to them, they sought to minimize costs, sometimes by prospectively limiting expenditures and sometimes by retrospectively questioning Respondent‘s billing statements. Respondent bristled at these efforts. “Oh my god,” he seethed, “[Bales] would constantly attack me, micromanage me, and fight with me over money.” Throughout 2016, Respondent and Pento pushed Hewitt for discovery. When Hewitt failed to comply, the firm filed a motion to compel, which was granted. Attorney‘s fees were also awarded. To collect on that award, Respondent and Pento submitted an affidavit for $1,546.50 in attorney‘s fees.18 On December 8, 2016, Judge Douglass granted the Baleses $460.50 for work that Respondent had logged on the motion to compel. The judge refused to expand the award to include fees earned by Pento, however, reasoning that “this largely appears to be work of the nature an attorney would perform that appears to have been performed by an attorney not licensed in the State of Colorado.”19 Judge Douglass also noted that some of that work could have been performed by a law clerk but “decline[d] to undertake the task of differentiating.”20 Judge Douglass thus refused to award any fees for Pento‘s work. The next week, Bales contacted Respondent‘s staff for an update on the case; she received Judge Douglass‘s order in response. Her first step was to contact Pento to clarify whether he was licensed in Colorado. He responded, “No I‘m licensed in Florida. Didn‘t [Respondent] disclose that to you in the beginning? If he didn‘t I am sorry.”21 Bales replied, “nope.....lots of surprises with this horrible experience.”22 Bales then emailed Respondent, seeking an explanation of Pento‘s status. Bales testified that she inquired because Judge Douglass‘s order was the first time that she had learned Pento was not licensed in Colorado. Respondent simply emailed in return, “The judge is wrong, do you want to pay for a motion to reconsider and fight w/ this judge?”23 The Baleses declined to finance a motion to reconsider. And although the attorney-client relationship grew ever more strained, the Baleses also declined to change counsel, relying on Respondent‘s representation that he was close to securing a default judgment. But the question of attorney‘s fees remained a sticking point between Respondent and his clients. “Everything was an argument,” Respondent puled, “a redundant, cyclical, endless argument.” In July 2017, Judge Elizabeth Weishaupl, who had taken over the case from Judge Douglass, entered default judgment against Hewitt. She awarded the Baleses $200,654.73, which included $52,780.00 in actual damages, trebled to $158,340.00 pursuant to statute, as well as attorney‘s fees of $31,762.25.24 According to Respondent, the Baleses could not have hoped for a better outcome. Bales did not disagree, but she also viewed the judgment as uncollectable. Toward the end of September 2017, Bales and Respondent exchanged several emails about certain unpaid attorney‘s fees. Bales protested paying the fees that Judge Douglass had declined to award, reasoning that When Respondent did not address her concern, Bales advised him that she planned to contact the People. Respondent retorted that if she wanted to attack his law license, he would reconsider all of the courtesy discounts he had extended. Bales made one more attempt, asking Respondent to justify charging her for Pento‘s time, given that Pento was the “primary support on [their] case for well over a year and [they] were never advised that he was not licensed in the state of Colorado.”26 Respondent replied, “I‘m sure you knew he was a FL attorney as I never would have stated otherwise. I billed him as a clerk or paralegal to you even when he did lawyer‘s analysis.”27 At the disciplinary hearing Respondent described Bales as “muscl[ing]” and “bully[ing]” him into crediting her $1,500.00 by threatening to seek recourse through the disciplinary system. Respondent withdrew from the representation in mid-September 2017. He explained, “I would‘ve had to withdraw first before I sued her.” According to Respondent, as soon as he fired the Baleses he immediately stopped reading their emails. “I had no interest in anything [Bales] had to say after she ripped me off.”28 As a result, he said, he either deleted or disregarded all of her correspondence after September 2017. In late December 2017, Respondent received a letter from the People informing him that the Baleses had filed a request for investigation.29 Respondent responded to that request.30 Then, on January 27, 2018, Respondent sent an invoice to the Baleses with a description on the first page entitled “Collections.”31 The invoice contained the following four entries for work performed by Respondent or his staff in January 2018 related to responding to the People’s request for investigation: “Reviewed and edited select responses to A-Reg Complaint and supplemented w/ case law re billing practices and free speech to counter client’s arguments of unreasonable atty fees sought to hinder and delay collections matter. Review of out of state atty rule and rules cited in complaint.” “Draft response to A. Reg complaint pertaining to billing, prepare and send in mailing to A. Reg and Bales; Review all evidence in furtherance of clients to defeat collections.” “Final edits in support of A-Reg answer and exhibits thereto, to fully assess our claims to collect on client’s debt.” “Review and respond to A-Reg claim that client asserts against Firm in dispute of owing her attorney fees.”32 These four entries totaled $897.00.33 According to Respondent, this invoice, which was to account for time spent on an internal matter, was mistakenly sent to the Baleses. He said he simply was not as careful as he should have been when reviewing and approving the entries. But he also testified that he had no expectation that the Baleses would pay the invoice. Indeed they did not. Bales emailed Respondent on February 4, 2018, to advise him that she would share the invoice with the People and to register her objection that “the work associated with responding to [the People’s] request should be the responsibility of you and your firm.”34 Respondent did not respond; he explained that he never rеad the email. In June and September 2018, the People sent Respondent packets of documents for his review and response. Those packets contained copies of Respondent’s January 2018 invoice. But only after Respondent received a letter from the People dated February 22, 2019, specifically inquiring about the four billing entries, did he remove the charges. He issued an invoice to the Baleses on February 25, 2019, crediting them $897.00 without explanation.35 He never verbally informed the Baleses that he withdrew the charges. Respondent could not justify why he did not remove the charges earlier. But he acknowledged that he was in “no hurry” to withdraw the charges, “knowing full well [Bales] was never going to pay it.” So, he said, “I removed all the charges when I got around to removing all the charges.” He conceded that this reversal was not timely according to professional standards, but he maintained that the Baleses were not injured by the delay. After Respondent withdrew from the case, he sued the Baleses in Denver County Court for failing to pay him $4,959.26 in attorney’s fees. He also sought an additional attorney’s fees award of approximately $14,000.00, which he claimed to have incurred in bringing his collections lawsuit, along with рost-judgment interest on both amounts and court costs.36 Respondent prevailed in the collections suit and was awarded the $4,959.26 he sought, as well as another $6,100.00 in attorney’s fees for the time he spent litigating his collections claim.37 Rule Violations The People claim that Respondent violated both of these rules by failing to inform the Baleses that Pento was not licensed to practice law in Colorado. The People contend that it was not until December 2016, when Judge Douglass issued the order awarding attorney’s fees, that the Baleses learned Pento was unlicensed in Colorado. Respondent insists that he did advise the couple about Pento’s unlicensed status several times during the course of the representatiоn. And regardless, he argues, Pento’s status was neither germane to the means by which the Baleses’ objectives were to be accomplished nor pertinent to any of the decisions that the Baleses needed to make. We find that Respondent failed to inform the Baleses that Pento was not a licensed Colorado lawyer. Respondent’s fee agreement was silent on the matter, and no other documents memorialize an advisement. Further, we did not hear any testimony describing a discussion between Respondent and the Baleses about Pento’s status. Bales categorically denied ever being apprised; Pento said he never heard Respondent mention his out-of-state law license; and Respondent himself could not specifically recall an advisement. Instead, Respondent maintained that because his habit, practice, and routine was to verbally inform all of his clients that he regularly staffed out-of-state lawyers on his cases, he must have likewise informed the Baleses. We do not credit Respondent’s assumptive testimony, particularly because it conflicts not only with Bales’s very definitive assertion that she never was informed but also with her contemporaneous expressions of surprise Notwithstanding these factual findings, we conclude the People did not show that Respondent’s failure to inform the Baleses of Pento’s status violated [W]here the temporary lawyer is performing independent work for a client without the close supervision of a lawyer associated with the law firm, the client must be advised of the fact that the temporary lawyer will work on the client’s matter and the consent of the client must be obtained. This is so because the client, by retaining the firm, cannot reasonably be deemed to have consented to the involvement of an independent lawyer. On the other hand, where the temporary lawyer is working under the direct supervision of a lawyer associated with the firm, the fact that a temporary lawyer will work on the client’s matter will not ordinarily have to be disclosed to the client. A client who retains a firm expects that the legal services will be rendered by lawyers and other personnel closely supervised by the firm.38 As to the latter, the ABA concluded that client consent to outsourcing was required,39 contrasting the outsourcing model to that of the use of temporary lawyers, which is “predicated on the assumption that the relationship between the firm and the temporary lawyer involved a high degree of supervision and control, so that the temporary lawyer would be tantamount to an employee, subject to discipline or even firing for misconduct.”40 Though these opinions do not address this particular situation—whether a supervising lawyer must disclose to clients his subordinate lawyer’s unlicensed status—we do glean a few principles from them. In general, we read the opinions as presumptively exempting lawyers from the requirement of disclosing to clients internal staffing decisions, on the assumption that there is a high degree of supervision and control within the firm structure. Only where a lawyer performs independent work for a client without close supervision does that presumption appear to be called into question. This may be because when a client retains a lawyer, the client is usually doing so with the understanding that a lawyer’s entire firm and support staff are likewise being retained. On this basis, we construe these opinions to suggest that internal staffing choices—which are close to the heart of a law firm’s business decisions—should be left to the discretion of the retained lawyer, who need not formally consult the client. Here, while working on the Baleses’ case, Pento was neither a temporary lawyer nor an outsourced legal services professional; he was a lawyer employed by Respondent’s firm. Pento performed most of the work on the Baleses’ case. But we also heard uncontested testimony that Respondent supervised Pento in every phase of the litigation, thereby ensuring that Pento’s—and the firm’s—output was compliant with Colorado law. Because the evidence does not clearly and convincingly tilt toward finding that Respondent failed to exercise supervisory control over Pento, we cannot find that the reasonable Nor have the People clearly shown that the fit here with Relying on Brown, the PDJ granted the People’s motion for summary judgment on this claim. The PDJ concluded that Respondent violated engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender bias against a person on account of that person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel, parties, judges, judicial officers, or any persons involved in the legal process. Comment 3 to the rule states that a “lawyer who, in the course of representing a client, knowingly manifests by word or conduct, bias or prejudice based upon ... sexual orientation ... violates The People argue that in the course of representing the Baleses, Respondent knowingly used a word—“f[*]g“—that was directed at Judge Douglass and that manifested or exhibited bias based on sexual orientation.46 Respondent disagrees. He interprets the rule, as mediated by comment 3, to require proof that he acted on or in conformity with some personal feeling or held belief: “Here, the People must prove Respondent has a bias towards gays, because one cannot knowingly manifest that which [one does] not actually feel.”47 Because the People cannot show that he has “bias against homosexuals,” he argues, neither can they “establish that he ‘knowingly manifested’ a bias he does not have.”48 We begin our dissection of this claim by setting forth our understanding of what Without hesitation we endorse the People’s interpretation. The legal regulation system cannot—and should not attempt to—police lawyers’ private beliefs and innermost thoughts. That inner sanctum is beyond the reach of our ethical rules. But the legal regulation system does—and should—set minimum standards for proper conduct when lawyers represent clients and in that role serve as intermediaries between clients and the legal system. This rule does not regulate bigotry; it regulates behavior.49 Using that armature, we conclude that Respondent knowingly used the word “f[*]g” in an email to the Baleses when referencing Judge Douglass. Respondent undoubtedly used that term during his representation of the Baleses. He used that term about Judge Douglass, a participant in the legal рrocess. He knowingly typed that term. He knew the common meaning of the term, he knew the term is derogatory, and he knowingly used the term in a derogatory manner. What remains is to determine whether the term exhibited bias or prejudice on the basis of sexual orientation. The People and Respondent part ways on this question as well. Respondent rails against what he views as the People’s attempts to corral his use of language according to their own standards. Their definition of the term “f[*]g” should not rule the day, he implies, as the word has many meanings and interpretations, including his own putative understanding of the term, which was influenced by the idiosyncrasies of his upbringing in Highland Park five decades ago. We find the People have proved by clear and convincing еvidence that Respondent violated Respondent urges us to consider the context of the writing: that he was attempting to explain to Bales why he felt compelled to waive the jury demand. But his putative definition does not make sense given that context. Bales’s first query concerned the outcome of the case management conference and the genesis of Respondent’s fraught relationship with Judge Douglass. In response, Respondent said, “I probably remind him of someone who beat him up [when he] was a fat kid and now that he’s a big fat judge he gets even w/ the bullies.”52 In that sentence, he invoked the concept of a weakling or sissy who gets picked on by bullies, yet he did not use the word “f[*]g” to describe that concept. In our view, this undercuts his argument that the concept and the term, in his own vocabulary and usage, go hand-in-hand. Respondent instead used the term much later in the email, when Bales asked about why Judge Douglass tolerated Hewitt’s behavior, and then about whether Hewitt had provided proof of certain accusations he had made. Respondent replied, “While I was getting your case dismissed (Hewitt’s defamation case against you) I was getting yelled at by Fatso. The judge is a gay, fat, f[*]g, now it’s out there.”53 Respondent’s use of the slur immediately followed his recollection of being yelled at. These circumstances suggest that Respondent chose the word not to analyze Judge Douglass’s psyche but rather to demean someone who he believed had belittled him.54 We also credit Pento’s testimony that Respondent regularly referred to Judge Douglass using several variants of these epithets—including “fat f[*]gg[*]t,” “homo,” and Finally, we turn to the question of Respondent’s life experiences. Respondent contends that the Hearing Board must consider his March 2016 email in light of his life experiences, his ostensible rough and tumble background, and the cognitive biases shaped by his upbringing. He also frames this claim as an “affront” to his “view of the world“: “Respondent is simply not a politically correct individual, and will never be politically correct because of his background, where and when he was raised, and life experiences ... of which Respondent is proud.”55 We are uncertain how Respondent means to posture this argument. Does he intend this line of argumentation as further support for his claim that he used the term “f[*]g” to mean a weakling or sissy? Or, premised on the To the extent that Respondent points to his background as yet another piece of evidence to show that he wished to call Judge Douglass a weakling or bully, we are not persuaded. Givot, with whom Respondent shared a similar upbringing, did testify that during his childhood one definition of “f[*]g” was a person who was picked on and beaten up. But Givot also said that another commonly understood meaning at the time was a gay man. Further, Givot acknowledged that not only his understanding of the term but also the societal use of the word has changed since he was a child. Given Respondent’s other life experiences—corporate counsel to a major LGBTQ venue and close cousin to a gay man—we believe that Respondent was well aware of that linguistic shift at the time he used the term in his email to the Baleses. To the extent Respondent argues that his childhood experiences or background excuse him from conforming his conduct to the III. SANCTIONS The ABA Standards for Imposing Lawyer Sanctions (“ABA Standards“)56 and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct.57 When imposing a sanction after a finding of lawyer misconduct, a hearing board must consider the duty violated, the lawyer’s mental state, and the actual or potential injury caused by the misconduct. These three variables yield a presumptive sanction that may be adjusted based on aggravating and mitigating factors. ABA Standard 3.0 – Duty, Mental State, and Injury Duty: By charging his clients for time his firm spent responding to their grievance, Respondent violated his duty as a professional to refrain from charging improper fees. And Mental State: We do not credit Respondent’s assertion that he simply missed, through mere carelessness, the January 2018 invoice charging the Baleses for time his firm spent responding to the People’s investigation. Instead, we find that he knowingly charged the Baleses these fees to retaliate against them for grieving him. We also find, as discussed above, that Respondent knowingly engaged in conduct that exhibited bias on the basis of sexual orientation when he called Judge Douglass a “f[*]g.” Injury: The Baleses suffered no actual injury when Respondent charged them an excessive fee for defending his own disciplinary matter. Because there was some small chance that they might pay Respondent those fees, however, he did cause them potential harm. Respondent’s use of a slur exhibiting bias on the basis of sexual orientation neither injured nor potentially injured the Baleses. But his use of discreditable language cast the profession in a negative light—Bales testified that the email offended her and made her uncomfortable—and it threatened not only to undermine the Baleses’ view of Judge Douglass but also to lead them to question the integrity of our system of justice. ABA Standards 4.0-7.0 – Presumptive Sanction The prеsumptive sanction for Respondent’s two rule violations is set by ABA Standard 7.2, which calls for suspension when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, thereby causing injury or potential injury to a client, the public, or the legal system. We thus proceed in our analysis with the presumptive sanction of suspension. ABA Standard 9.0 – Aggravating and Mitigating Factors Aggravating circumstances include any considerations that justify an increase in the degree of the sanction to be imposed, while mitigating factors warrant a reduction in the severity of the sanction.58 As explained below, the Hearing Board applies four factors in aggravation, one of which is accorded substantial weight, and one factor in mitigation, which carries average weight. We evaluate the following factors proposed by the parties. Aggravating Factors Dishonest or Selfish Motive – Multiple Offenses – Refusal to Acknowledge Wrongful Nature of Misconduct – Substantial Experience in the Practice of Law Absence of Prior Discipline – 9.32(a) : Respondent has no history of discipline, which we consider in mitigation. Cooperative Attitude Toward Proceedings – 9.32(e) : During his testimony, Respondent declared that he was entitled to mitigation for his cooperation in this proceeding, but he provided no factual support for that assertion. As a result, we cannot find that this factor applies. Character or Reputation – 9.32(g) : Respondent offered the testimony of Givot and Preblud to support application of this factor. Givot testified that Respondent welcomes him at family gatherings, has offered him emotional support, and has cordially received his partners throughout the years. Preblud praised Respondent‘s business and legal acumen, and he mentioned that Respondent is an “entertaining” dinner companion. While these witnesses’ accounts suggest that they are quite fond of Respondent, we do not find that their testimony supports a finding of his good character or reputation. Other Mitigating Considerations: Respondent maintained that he should be given mitigating credit because he secured a favorable outcome in the underlying matter and because, in his opinion, he had a difficult client with unreasonable expectations about the representation. We do not believe mitigating crеdit should be given for either factor. Absent ethical lapses, lawyers should not be punished or rewarded in the disciplinary system for the results they obtain for their clients.60 Nor should lawyers’ adherence to their ethical obligations have any relation to their clients’ personalities or approaches to the representation.61 The Colorado Supreme Court has directed the Hearing Board to exercise discretion in imposing a sanction and to carefully apply aggravating and mitigating factors.62 We are mindful that “individual circumstances make extremely problematic any meaningful comparison of discipline ultimately imposed in different cases.”63 Though prior cases are helpful by way of analogy, hearing boards must determine the appropriate sanction for a lawyer‘s misconduct on a case-by-case basis.64 In Colorado, lawyers have been publicly censured for charging clients unreasonable fees. For instance in Brown, a lawyer was publicly censured for charging his client for time that he spent responding to an attorney grievance, and for prejudicing the administration of justice by refusing to return the client‘s documents.65 Likewise, Colorado lawyers Somewhat similar constellations of multiple rule violations have yielded both public censures and short suspensions in this jurisdiction. In In re Wimmershoff, 3 P.3d 417, 418 (Colo. 2000), a lawyer was publicly censured for failing to explain the basis of his fee, charging an unreasonable fee, and disregarding contingency fee arrangement rules.68 But another lawyer was suspended for thirty days in In re Sather for twice charging an unreasonable fee and failing to communicate with his clients.69 Here, two rule violations presumptively call for suspension; that result is supported by the asymmetry between the four aggravators and the lone applicable mitigator. Similar misconduct, however, has generally been met with public censure. Though the case law, taken as a whole, militates in favor of imposing public censure in this instance, we are not compelled to mirror the results of other similar cases; instead, we are to exercise our discretion in determining the appropriate sanction, following the guidance of the ABA Standards.70 After hearing the testimony, taking the evidence, and assessing Respondent‘s credibility, we conclude that a fully stayed suspension in this instance is more protective of the public and the profession. Underlying both of Respondent‘s rule violations is what we perceive as his tendency to lash out inappropriately when he is challenged, attacked, or contradicted. When challenged by Judge Douglass, Respondent responded in anger by disparaging the judge in an email to his clients. When his clients attacked him by filing a grievance, he retaliated by invoicing them for unreasonable charges. We worry about this inclination because disputes are inherent in the practice of law; our justice system is premised on the presentation of competing viewpoints and, often, the triumph of one position over the other. Considering this fixed dynamic, coupled with Respondent‘s worrying pattern of striking back in unethical ways, we conclude that a stayed suspension, subject to certain probationary conditions, will be most effective in encouraging Respondent to learn and prаctice restraint and thus in reducing the likelihood that he again engages in such behavior. We therefore conclude that Respondent should be suspended for three months, all stayed on the successful completion of a eighteen-month period of probation with conditions. The lawyer discipline system does not regulate bigotry. It regulates action. Here, we do not find that Respondent is a bigot or is biased. We find only that he engaged in conduct that exhibited bias, thereby violating his duties to the legal profession and the legal system to treat participants in the legal process with respect and dignity. We also find that he improperly charged his clients fees for responding to their grievance. These violations lead us to conclude that Respondent should be suspended for three months, The Hearing Board therefore ORDERS: 1. ROBERT E. ABRAMS, attorney registration number 37950, will be SUSPENDED from the practice of law for THREE MONTHS, ALL STAYED upon the successful completion of a EIGHTEEN-MONTH period of PROBATION, with the conditions identified in paragraph 2 below. The probation will take effect upon issuance of an “Order and Notice of Probation.”71 2. Respondent SHALL successfully complete an EIGHTEEN-MONTH PERIOD OF PROBATION subject to the following conditions: a. He will commit no further violations of the Colorado Rules of Professional Conduct; b. He will attend at his own expense the ethics school offered by the People, not later than six months after his probation begins; c. He will attend at his own expense eight hours of cultural awareness and sensitivity training, not later than twelve months after his probation begins. Respondent and the People shall work in conjunction to select the training course(s); any dispute about course selection should be raised with the PDJ, who will resolve the dispute. Respondent and the People shall select the training course(s) no later than the effective date of the probation. When Respondent completes the training, he shall submit an affidavit to the People attesting to his completion of the training. 3. If, during the period of probation, the People receive information that any condition may have been violated, the People may file a motion with the PDJ specifying the alleged violation and seeking an order that requires Respondent to show cause why the stay should not be lifted and the sanction activated for violation of the condition. The filing of such a motion will toll any period of suspension and probation until final action. Any hearing will be held under 4. No more than twenty-eight days and no less than fourteen days before the expiration of the period of probation, Respondent SHALL file an affidavit with the People stating whether he has compliеd with all terms of probation and shall file with the PDJ notice and a copy of such affidavit and application for an order showing successful completion of the period of probation. On receipt of this notice and absent objection from the People, the PDJ will issue an order showing that the probation was successfully completed. The order will become effective upon the expiration of the period of probation. 5. The parties MUST file any posthearing motion on or before Wednesday, February 26, 2020. Any response thereto MUST be filed within seven days. 6. The parties MUST file any application for stay pending appeal on or before Wednesday, March 4, 2020. Any response thereto MUST be filed within seven days. 7. Respondent SHALL pay the costs of this proceeding. The People SHALL submit a statement of costs on or before Wednesday, February 26, 2020. Any response thereto MUST be filed within seven days. /s/ Sara Bellamy SARA BELLAMY HEARING BOARD MEMBER /s/ Maureen A. Cain MAUREEN A. CAIN HEARING BOARD MEMBERII. FACTUAL FINDINGS AND LEGAL CLAIMS
Findings of Fact
The Baleses Retain Respondent
The March 2016 Email About Judge Douglass
The Sanctions Order
The January 2018 Invoice
Rule Violations
III. SANCTIONS
ABA Standard 3.0 – Duty, Mental State, and Injury
ABA Standards 4.0-7.0 – Presumptive Sanction
ABA Standard 9.0 – Aggravating and Mitigating Factors
Aggravating Factors
Mitigating Factors
Analysis Under ABA Standards and Case Law
IV. CONCLUSION
V. ORDER