Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado
TIMOTHY J. ESSLING, Petitioner:
THE PEOPLE OF THE STATE OF COLORADO, Respondent:
OPINION AND DECISION DENYING REINSTATEMENT PURSUANT TO C.R.C.P. 251.29(e)
On January 21, 2014, a Hearing Board comprised of attorney John M. Lebsack, citizen member Barbara A. Miller, and the Presiding Disciplinary Judge, William R. Lucero (" the PDJ" ), held a reinstatement hearing pursuant to C.R.C.P. 251.29(d) and 251.18. Timothy J. Essling (" Petitioner" ) appeared pro se, and Gregory G. Sapakoff appeared as a special prosecutor on behalf of the Office of Attorney Regulation Counsel (" the People" ). The Hearing Board now issues the following " Opinion and Decision Denying Reinstatement Pursuant to C.R.C.P. 251.29(e)."
Petitioner knowingly neglected three client matters over a period of three years, causing the statute of limitations to run on one client's personal injury claim. Petitioner then failed to adequately communicate with another of those clients and knowingly disobeyed
a court order. Based on this misconduct, Petitioner was suspended from the practice of law for one year and one day, all but six months stayed upon the successful completion of a two-year period of probation. Almost five years later, he petitioned for reinstatement to the bar. The Hearing Board finds that Petitioner has not proved by clear and convincing evidence that he has substantially complied with all applicable disciplinary orders, that he is rehabilitated, or that he is fit to practice law. The Hearing Board thus concludes Petitioner should not be reinstated to the practice of law.
II. PROCEDURAL HISTORY
Petitioner took the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 25, 1983, under attorney registration number 12785. On September 4, 2008, the PDJ approved a conditional admission of misconduct and suspended Petitioner from the practice of law for one year and one day, with all but six months stayed upon the successful completion of a two-year period of probation with conditions. His suspension took effect September 9, 2008.
On September 5, 2013--almost five years after he had been suspended--Petitioner filed his petition for reinstatement pursuant to C.R.C.P. 251.29(b). The People filed an answer on September 25, 2013.
During the reinstatement hearing held on January 21, 2014, the Hearing Board heard testimony from Petitioner and considered stipulated exhibits 1-3.
III. FINDINGS OF FACT
Petitioner's Prior Discipline
Dustin Erickson was in a car accident in February 2003, which caused him to suffer from temporomandibular joint syndrome. Petitioner and Erickson were friends and roommates from August 2005 to January 2007. Petitioner filed a complaint on Erickson's behalf on February 6, 2006, the last day before the statute of limitations on his personal injury claim expired. Petitioner never provided the district court, however, with proof of service of the complaint. Pursuant to the court's delay reduction order, Petitioner was to file the proof of service within thirty days, and failure to do so would result in dismissal of the complaint.
Petitioner did not adequately communicate with Erickson about his case. He performed little to no work on the case, leading to its dismissal in January 2007 for failure to prosecute and to comply with the delay reduction order. By the time Erickson's case was dismissed, the statute of limitations had run on his personal injury claim, causing him harm. Petitioner did not notify Erickson of the dismissal; rather, Erickson eventually learned from the court's clerk that his case had been dismissed.
In the fall of 2005, Odie Webster retained Petitioner to represent him in a criminal matter pending in federal court. Before then, on February 25, 2005, the United States District Court for the District of Colorado
had entered a general order requiring all attorneys practicing in that court to register as participants in its Electronic Case Filing Procedures (" ECF" ) by December 5, 2005. Petitioner had no other cases in federal court but knew ECF registration was mandatory. Nevertheless, Petitioner failed to register for ECF. On January 4, 2006, Webster entered a guilty plea to mortgage fraud. His sentencing hearing was set for December 18, 2006. In July 2006, Webster filed a pro se motion asking the federal court to appoint a new attorney for him because Petitioner had failed to register for ECF. The court denied Webster's motion and ordered Petitioner to register for ECF within thirty days, which he failed to do. Petitioner did not attend Webster's sentencing hearing in December 2006, which caused the judge to continue the hearing and appoint new counsel to represent Webster.
In a third matter, Petitioner failed to attend a motions hearing he was scheduled to appear at on May 21, 2008, in a case styled Jodie Thein v. Shelby Thein, Douglas County District Court, case number 05DR291, leading the court to award attorney's fees against him. Petitioner did not file a motion to continue the motions hearing, nor did he inform the court that he would not attend.
In his disciplinary case, Petitioner stipulated that he knowingly neglected Erickson, Webster, and Thein in violation of Colo. RPC 1.3. He also stipulated that he violated Colo. RPC 1.4(a) by failing to adequately communicate with Webster and Colo. RPC 3.4(c) by failing to register for ECF. He was suspended for a period of one year and one day, all but six months stayed upon the successful completion of a two-year period of probation with conditions, effective September 9, 2008. The stipulation also set forth Petitioner's history of prior discipline involving three separate instances of neglecting client matters and one instance of failing to follow a court order.
The stipulation required Petitioner to pay costs of $948.48 within six months of the order approving the stipulation. He was also to register for and take the one-day ethics school sponsored by the People within one year. Petitioner did not satisfy either condition within the time period specified, nor did he file for an extension of time within which to complete these tasks. Petitioner eventually completed the one-day ethics course on June 10, 2011, and on September 4, 2013, he paid all of the outstanding costs, plus interest.
The order approving the stipulation also required him to comply with C.R.C.P. 251.28,
by filing an affidavit with the PDJ attesting that he had given notice of his suspension to parties in pending matters and to other jurisdictions where he was licensed. At the time, Petitioner was licensed to practice in Indiana and in the United States District Court, District of Colorado. Petitioner did not file the required C.R.C.P. 251.28 affidavit.
Petitioner's two-year probationary period was to begin after he served his six-month suspension and filed an affidavit for reinstatement under C.R.C.P. 251.29(b). Although Petitioner could have filed for reinstatement following the served portion of his suspension, he did not and thus has remained suspended for over five years.
Petitioner testified that he grew up in a small town in Indiana, where his parents ran a local funeral home. His father instilled in him the value of assisting people in need. His father strongly believed that all people are entitled to bury their loved ones no matter their financial position. As a result, ...