Opinions

Carl Stuart West v. People. 15PDJ104. April 18, 2016. Following a reinstatement hearing, a hearing board denied Carl Stuart West (attorney registration number 23435) reinstatement to the practice of law under C.R.C.P. 251.29. West may not file another petition for reinstatement for two years.

In 2015, West violated terms of his disciplinary probation when he missed two hearings in a domestic relations representation. As a result, he was required to serve the stayed portion of a one-year-and-one-day suspension originally levied in 2009.

West’s reinstatement petition was not granted because he failed to present clear and convincing evidence that he has been rehabilitated from his prior misconduct. In reaching that determination, the hearing board focused on West’s long and varied history of misconduct, his failure to pinpoint the causes of that misconduct, and the limited evidence of meaningful changes in his life. Please see the full opinion below.

SUPREME COURT, STATE OF COLORADO ORIGINAL PROCEEDING IN DISCIPLINE BEFORE THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE 1300 BROADWAY, SUITE 250 DENVER, CO 80203 _________________________________________________________ Petitioner: CARL STUART WEST

________________ Case Number: 15PDJ104

Respondent: THE PEOPLE OF THE STATE OF COLORADO

OPINION AND DECISION DENYING REINSTATEMENT UNDER C.R.C.P. 251.29(e)

Carl Stuart West (“Petitioner”) has been sanctioned for professional misconduct on several occasions. In 2015, he violated terms of his disciplinary probation when he missed two hearings in a domestic relations representation. As a result, he was required to serve the stayed portion of a one-year-and-one-day suspension originally levied in 2009. He now seeks to demonstrate that he should be reinstated to the practice of law. His petition cannot be granted because he failed to present clear and convincing evidence that he has been rehabilitated from his prior misconduct.

I. PROCEDURAL HISTORY Petitioner took the oath of admission and was admitted to the bar of the Colorado Supreme Court on October 21, 1993, under attorney registration number 23435. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this reinstatement proceeding. 1

Petitioner filed his “Petition and Affidavit in Support of Reinstatement Pursuant to C.R.C.P. 251.29” on November 19, 2015. Charles E. Mortimer Jr., Office of Attorney Regulation Counsel (“the People”), responded in opposition on December 2, 2015.

On March 21, 2016, a Hearing Board comprising James L. Cox Jr. and Matthew K. Hobbs, members of the bar, and William R. Lucero, the Presiding Disciplinary Judge (“the PDJ”), held a reinstatement hearing under C.R.C.P. 251.29(d) and 251.18. Petitioner appeared pro se, and Mortimer attended on behalf of the People. The Hearing Board considered

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See C.R.C.P. 251.1(b).

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testimony from Petitioner, Collin J. Earl, Julie Bernard, and Laura Rosenthal. 2 were admitted.

No exhibits

II. FINDINGS OF FACT The findings of fact here—aside from the description of Petitioner’s disciplinary history—are drawn from testimony offered at the reinstatement hearing.

Petitioner’s Past Discipline and Revocation of His Probation In 2003, in case number 02PDJ092, Petitioner stipulated to suspension of his law license for one year and one day, all but thirty days stayed upon completion of a one-year period of probation. That discipline was predicated on Petitioner’s representation of a woman whose husband had been killed in a traffic accident. Petitioner met with the client shortly after the accident and agreed to pursue a wrongful death claim on a contingent fee basis. He provided incompetent and neglectful representation in the wrongful death matter. In addition, Petitioner informed his client that he was entitled to a one-third share of the decedent’s $250,000.00 accidental death insurance benefits, though he said he would discount his fee to $40,000.00. In fact, Petitioner lacked any legal basis for collecting a contingent fee from the insurance benefits, and his statement to his client was knowingly dishonest. He agreed that he had violated Colo. RPC 1.1 (a lawyer shall competently represent a client); Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client); Colo. RPC 1.5(a) (a lawyer shall not charge an unreasonable fee); Colo. RPC 1.5(c) (a lawyer shall enter into a contingent fee agreement only if it complies with Chapter 23.3 of the Colorado Rules of Civil Procedure); and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Petitioner was reinstated in 2003 and successfully completed his probation the next year.

In January 2009, in case number 09PDJ005, Petitioner again stipulated to a suspension for one year and one day, this time with six months served and the remainder stayed upon successful completion of a three-year period of probation, with conditions to include regular appointments with a doctor, adherence to the doctor’s treatment plan, and continued treatment with a licensed clinical social worker. 3 The stipulation noted that Petitioner had been diagnosed with bipolar disorder in 1994 and that he took his medications inconsistently. The stipulation arose out of two separate violations of Colo. RPC 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects). First, Petitioner was found to have consumed cocaine. According to Petitioner, he had become concerned that his wife was using illegal drugs. He said he confronted an acquaintance about this issue and took cocaine himself to prove to the acquaintance that he was not working for law

2 Rosenthal testified by telephone, as authorized by the PDJ’s order of March 15, 2016, granting Petitioner’s unopposed motion for absentee testimony. 3 At a probation revocation hearing held in February 2015, which is described below, the evidence demonstrated that Petitioner did not fully comply with probationary conditions requiring the filing of medical reports with the People.

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enforcement. 4 Second, in an altercation with his wife, Petitioner grabbed a cell phone from her hand, broke the phone, and threw it at her. When police arrived, Petitioner tried but failed to jump a fence and then attempted to take a swing at an officer. Petitioner pleaded guilty to third-degree assault on his wife, a misdemeanor, and resisting arrest, a class-three misdemeanor. He was sentenced to three years of supervised probation. Petitioner was reinstated from his six-month suspension in October 2009 and was placed on a three-year period of probation.

In July 2009, Petitioner stipulated to a thirty-day served suspension in case number 09PDJ070. There, a former client who was serving a sentence in the Department of Corrections had sent Petitioner a money order for $350.00, hoping Petitioner would order him a specialty food packet. When Petitioner said he could not do so, the client asked Petitioner to return the money order or send it to his wife. Petitioner negotiated the money order but did not place the funds into his trust account. He stated that he sent the money to the client’s wife, but the wife denied receiving the money and Petitioner produced no records to substantiate his account. In this matter, he violated Colo. RPC 1.15(a) (2008) (a lawyer shall hold client property separate from the lawyer’s own property) and Colo. RPC 1.15(b) (2008) (a lawyer shall promptly deliver to a client or third person any funds such person is entitled to receive). Petitioner was reinstated from this suspension in October 2009.

In July 2011, the PDJ approved a stipulation to extend by one year Petitioner’s probation in case number 09PDJ005 based on new misconduct. The new case, lodged under case number 11PDJ055, was based on Petitioner’s plea of guilty to driving while ability impaired (“DWAI”). His conduct violated Colo. RPC 8.4(b). Petitioner did not pay the $91.00 ordered as costs in that matter until after he petitioned for reinstatement in the present case.

Although he could have sought to terminate his probation in case numbers 09PDJ005 and 11PDJ055 in October 2013, Petitioner never filed an affidavit under C.R.C.P. 251.7(f), and he thus remained on probation. In early 2015, the People moved to revoke Petitioner’s probation.

A probation revocation hearing took place in February 2015. The People asserted that Petitioner violated the terms of his probation by contravening several Rules of Professional Conduct in a domestic relations representation. The PDJ found the following facts: Lance Salido hired Petitioner to represent him in a parenting time and child support matter in El Paso County District Court. After mediating with opposing counsel, Petitioner failed to appear for a permanent orders hearing on February 10, 2014. The court rescheduled the hearing for February 18, 2014, but neither Petitioner nor his client appeared. Although the

4 A dependency and neglect petition was filed against Petitioner’s wife after she tested positive for cocaine at an emergency room. Because Petitioner lived with his stepchildren, he was also asked to submit to a drug test, leading to the finding that he had consumed cocaine. An evaluator in the dependency and neglect case concluded that Petitioner did not meet the criteria for a diagnosis of substance abuse or dependence. It does not appear that any criminal charges were filed against him.

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court left Petitioner a voicemail message on the record and then issued an order modifying Salido’s parenting responsibilities, Petitioner took no action in response. Because Petitioner did not notify Salido of the rescheduled hearing, Salido did not attend the hearing and was not present when the court revised his parenting and child support responsibilities.

The PDJ concluded that Petitioner violated Colo. RPC 1.3 by missing the first permanent orders hearing, failing to communicate with opposing counsel about the status of the matter, neglecting to appear for the rescheduled hearing, and failing to notify his client that the hearing had been rescheduled. Petitioner’s conduct also violated Colo. RPC 1.4(a)(2) (a lawyer shall reasonably consult with a client about the means by which the client’s objectives are to be accomplished) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).

By order dated February 25, 2015, the PDJ revoked Petitioner’s one-year period of probation, lifted the stay on the remaining portion of his suspension in case number 09PDJ005, and suspended his law license for six months and one day, effective March 18, 2015.

Although Petitioner had notified clients by certified mail of his prior suspensions, as required by C.R.C.P. 251.28(b), he did do so after the Salido misconduct. He testified that he did give his clients notice, but not by certified mail. Because he had not strictly followed the rule, he said, he decided not to file an affidavit under C.R.C.P. 251.28(d), which directs suspended attorneys to file with the People, within fourteen days of the suspension’s effective date, an affidavit showing that the attorney has notified clients by certified mail. Only in March 2016, shortly before the reinstatement hearing, did Petitioner notify clients by certified mail of his March 2015 suspension.

Petitioner’s Testimony Regarding His Suspension During the reinstatement hearing, Petitioner struggled to explain his misconduct in the Salido matter. He first said that he had not calendared a date correctly and had mistakenly thought all pending issues were addressed in a stipulation he had reached with opposing counsel, though he acknowledged that the stipulation did not address the issue of child support. He also explained that he was “burned out” and needed time off to “refresh” himself and come back with a “new pair of eyes.” Petitioner speculated that his actions may have reflected his sense of feeling overwhelmed and may have been a “cry for help” to himself. Later in the reinstatement hearing, he admitted that he was frustrated with Salido’s case and with Salido himself, who was “very difficult.” He said his misconduct was an expression of “throwing my hands up and saying I, I don’t want to do this case anymore, I don’t want to appear for him, I don’t want to go into the court, I, I quit on it.” When asked why he didn’t move to withdraw, he said simply: “I took it to the eleventh hour and then I didn’t appear.”

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Petitioner’s Professional and Personal Background After a stint working as a manager at a magazine after college, Petitioner attended law school at the University of Denver. While there, he interned for disciplinary counsel and for a professor who specializes in ethics issues. In 1994, the year after earning his J.D., he was hired as a deputy district attorney in the Fourth Judicial District, where his caseload included child support, domestic violence, and drug cases. He opened a solo practice in 1999, focusing on family law, criminal law, and personal injury cases. For many years he shared an office in Colorado Springs with another family law practitioner.

Turning to Petitioner’s home life and personal relationships, he testified that his first marriage dissolved in 2004. He married his second wife in 2007, but the couple separated just two years later, after a “tumultuous” union. Petitioner has three children, aged five, twenty-two, and twenty-eight. Along with the child’s mother and grandmother, he helps to care for the five-year-old. He mentioned that he has a strong relationship with his own mother, who is a source of emotional support.

Petitioner testified at some length about his practice of the Japanese martial arts kendo and iaido. Petitioner, whose heritage is Japanese-American, has practiced these disciplines since the 1980s and has taught them since the 1990s. He has offered a number of classes free of charge. He is currently preparing for a test to gain international recognition as a teacher. In addition, he spent a decade on the board of a nonprofit devoted to these arts. He described kendo and iaido as highly disciplined art forms that require attention to detail and that teach practitioners to treat others with respect and dignity. Practitioners are supposed to carry these mental disciplines into their daily lives, he said. At the time Petitioner was suspended, he was practicing kendo and iaido once or twice a week, but he now is practicing even more frequently.

Petitioner was diagnosed with bipolar disorder in 1994 and began taking medication for his condition that year. He conceded in his 2009 conditional admission of misconduct, however, that he had not consistently taken his medication. At the reinstatement hearing, Petitioner testified that his bipolar disorder probably contributed to some degree to his convictions and other misconduct but it did not “cause” his misconduct in the Salido matter; he noted that he was diagnosed in 1994 yet maintained a clean disciplinary record for six years. He believes he has achieved stability with his condition, in part due to new, more effective medications, and he said he does not experience any episodes of severe depression. He now sees a psychiatrist just twice a year. He did not think expert testimony from a mental health professional would “add much” for the Hearing Board in this case and regardless, he said, he could not afford to pay for an expert. Petitioner testified that he does not have a problem with illegal drugs.

Petitioner’s Activities Since His Suspension Since his suspension, Petitioner has been employed on a somewhat irregular basis both within and outside the legal field. He has investigated personal injury cases for attorney Collin Earl on an as-needed basis. In addition to writing memos documenting the results of

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his investigations, he said, he has spoken with Earl about the practice of law more generally and about the systems Earl uses in his office. Earl testified at the reinstatement hearing that Petitioner has done exactly what was asked of him. Earl believes that Petitioner is competent to work as a lawyer and that his recent suspension was a real “wake-up call.” In Earl’s view, Petitioner has a clear understanding of what he needs to do to overcome his weaknesses, though Earl did not elaborate.

Petitioner also has performed unpaid work as a paralegal for his sister, Laura Rosenthal, and another attorney, Julie Bernard. Rosenthal and Bernard own a virtual law firm that handles intellectual property matters. As a paralegal, Petitioner has drafted documents, such as interrogatories and pleadings, and provided advice about trial strategy. Rosenthal offered that Petitioner’s work product was “very good,” his writing “superb,” and his delivery timely. Since Petitioner has worked so hard to reinstate his license, Rosenthal is confident that his license will mean more to him going forward and that he will do the “right thing.” Bernard also praised Petitioner’s work product, saying he gave her just what she needed. Bernard views Petitioner as responsive, professional, and fit to practice law.

In addition to Petitioner’s work for lawyers, he has been hired on a sporadic basis to install new cashier systems at Walmart and J.C. Penney stores throughout Colorado. These assignments have required him to remove old hardware systems, bring in new cash registers and satellite apparatuses, install programs, and ship back the old equipment. He described these multi-step projects as demanding meticulous attention to detail. Petitioner said he has had no success in finding other employment, despite applying for a range of other jobs, and as a result he earned less than $20,000.00 in 2015.

Petitioner testified that he has completed some continuing legal education (“CLE”) courses during his suspension. He chose courses that he thought would help him become more self-aware and better able to identify his triggers, such as when he is overtired. Petitioner did not offer into evidence any CLE affidavits, though he attached to his petition a list of programs that he has completed, totaling fifty-three credits.

Petitioner driver’s license is currently suspended. According to Petitioner, he received a ticket for driving without insurance. 5 When he failed to pay the fine, his license was suspended last year. He now must pay about $600.00 to reinstate his driver’s license. He also owes money in two matters involving failure to pay rent on an apartment and what he described as a constructive eviction issue. A judgment is pending against him for about $1,600.00 in the first matter, and he recently reached an agreement to pay a similar amount in the second matter. Petitioner has not filed income tax returns since 2012. He testified that his bookkeeper moved out of state and that he could not afford to hire a new bookkeeper. The original bookkeeper has now returned to Colorado, Petitioner said, and is helping him to file his tardy returns.

5 Petitioner said that he had listed an incorrect card number for automatic withdrawals, though he did not make clear what he meant.

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Petitioner’s Testimony Regarding His Qualifications for Reinstatement Petitioner hopes he can regain his law license, he testified, because he finds it rewarding to help people, find solutions for them, and guide them through the legal process. He identifies as a lawyer and wants to again join the ranks of attorneys to realize that self-conception.

Petitioner said that as soon as he was grieved in the Salido case, he undertook an examination of his moral character, committing himself to identify his strengths and weaknesses and to turn his weaknesses into strengths. When asked what he sees as his flaws, he responded that he has lacked diligence and been neglectful of the “finer points” and details that require close monitoring in legal practice. Petitioner explained that when he was a deputy district attorney he was “doing everything by the book,” but there came a time when he thought it was acceptable not to do so. He knows he can’t be that type of person any longer, he said. He recognizes that his neglect has severely affected the court, his client, and even himself.

Since his suspension, Petitioner attested, he has made significant changes in his behavior and in his daily life. He offered the example that he makes sure to arrive at his kendo and iaido classes on time so that his students can ask him questions if they wish.

Petitioner testified that if he returns to the practice of law, he will do so with a different mindset, one he cultivates in his kendo and iaido practice. He will recognize that he simply can’t “let up.” Rather than handling family law cases, which he says are particularly stressful, he will focus on criminal law. Petitioner is confident he can maintain a high level of competence in this area. He noted that calendaring for criminal cases is simpler, though he conceded that criminal defendants, like family law clients, can often be difficult to serve. He envisions continuing to work some with Bernard and Rosenthal. On a practical level, he would like to office-share again and to hire paralegals or interns for assistance. Petitioner plans to implement cloud-based technology to help him maintain his calendar and meet deadlines.

III. LEGAL ANALYSIS To be reinstated to the Colorado bar, an attorney who has been suspended for longer than one year must prove by clear and convincing evidence that the attorney has complied with applicable disciplinary orders and rules, is fit to practice law, and has been rehabilitated. 6 Failure to prove even one requirement is fatal to a petitioner’s case. 7

Compliance with Disciplinary Orders and Rules An attorney who is petitioning for reinstatement must show compliance with disciplinary orders and rules. The Colorado Supreme Court has commented, however, that “[t]echnical violations of the disciplinary orders and rules will not always preclude

6 C.R.C.P. 251.29(b). 7 See In re Price, 18 P.3d 185, 189 (Colo. 2001).

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reinstatement.” 8 To decide whether a technical violation should bar reinstatement, the Hearing Board must examine the nature of the violation, including whether it affected clients or opposing parties and whether it caused harm or potential harm. 9

Here, Petitioner violated C.R.C.P. 251.28(b) and (d) by failing to timely notify clients of his suspension via certified mail and then neglecting to file the required affidavit. He also did not pay the ordered costs in case number 11PDJ055 until after he petitioned for reinstatement in the present case.

In our view, these are technical violations that, standing alone, should not bar Petitioner’s reinstatement. His delayed payment of $91.00 in costs certainly caused little harm, and, given his unchallenged testimony that he notified clients of his suspension in some manner, we also cannot find that his failure to use certified mail caused meaningful harm. 10 We do note, however, that these violations appear to reflect a larger pattern of inattention to detail, as does the suspension of his driver’s license and his failure to file tax returns. We thus will revisit these issues in the context of Petitioner’s rehabilitation.

Fitness to Practice Law The People do not contest that Petitioner is competent to practice law. Although the evidence on this prong is somewhat thin, the Hearing Board finds that Petitioner is fit to practice. His misconduct in the Salido matter did not reflect any intellectual shortcomings, in our view. Petitioner has been employed in the legal field since his suspension, albeit in a somewhat limited capacity. His three witnesses attested to the high quality of his work product, and none of them doubted that he could practice competently if his license were reinstated. Finally, Petitioner’s suspension has been of relatively short duration, so we are not as concerned about a possible loss of relevant skills and knowledge as we would be if he had served a longer suspension.