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People v. Carter

Supreme Court of Colorado, Presiding Disciplinary Judge

December 16, 2015

THE PEOPLE OF THE STATE OF COLORADO, Complainant
v.
LYNDA ELIZABETH CARTER, Respondent

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[Copyrighted Material Omitted]

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Editorial Note:

This Opinion is subject to revision upon final publication.

SYLLABUS

Following a hearing, a hearing board suspended Lynda Elizabeth Carter (Attorney Registration Number 41106) for eighteen months. Carter's suspension took effect on January 20, 2016. To be reinstated, Carter will bear the burden of proving by clear and convincing evidence that she has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law.

Carter, a recent admittee to the bar who operated a solo practice in Pagosa Springs, represented a man charged with misdemeanor sexual assault. She inadequately communicated with him, failed to safeguard his funds, neglected to properly withdraw from his representation, and recklessly converted advance legal fees. She thereby violated Colo. RPC 1.4(a)(3) (a lawyer shall keep a client reasonably informed about the status of the matter); Colo. RPC 1.5(f) (a lawyer does not earn fees until a benefit is conferred on the client or the lawyer performs a legal service); Colo. RPC 1.15(a) (2008) (a lawyer shall hold client property separate from the lawyer's own property); Colo. RPC 1.16(d) (a lawyer shall protect a client's interests upon termination of the representation, including by giving reasonable notice to the client and refunding unearned fees); and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

In a second representation, Carter agreed to help a client recover funds from the sale of logging machinery. She did not communicate with the client sufficiently and did not safeguard his retainer, again violating Colo. RPC 1.4(a)(3), 1.5(f) and 1.15(a) (2008).

In addition to this client-focused misconduct, Carter failed to pay a court reporter's invoice for deposition transcripts. By doing so, she breached Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).

Please see the full opinion below.

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE, JAMES D. BROWN, HEARING BOARD MEMBER, JOHN E. HAYES, HEARING BOARD MEMBER.

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OPINION AND DECISION IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)

This disciplinary case concerns a recent admittee to the bar who engaged in professional misconduct after opening a solo practice in Pagosa Springs. Lynda Elizabeth Carter (" Respondent" ) represented a man charged with misdemeanor sexual assault. She failed to safeguard his funds, neglected to properly withdraw from representation, and recklessly converted advance legal fees. In a second representation, Respondent agreed to help a client recover funds from the sale of logging machinery. She did not adequately communicate with the client and did not safeguard his retainer. In addition to this client-focused misconduct, she failed to pay a court reporter's invoice for deposition transcripts. Respondent's misconduct warrants suspension for eighteen months.

I. PROCEDURAL HISTORY

Adam J. Espinosa, of the Office of Attorney Regulation Counsel (" the People" ), filed a complaint on July 24, 2014. Respondent failed to submit an answer, so the Presiding Disciplinary Judge (" the PDJ" ) granted the People's motion for entry of default in September 2014 and subsequently set a sanctions hearing.

In November 2014, the People filed a petition for immediate suspension, premised on some of the same allegations underlying their complaint: that Respondent knowingly converted client funds. She did not respond to the petition or the PDJ's show cause order. On December 17, 2014, the PDJ found reasonable cause to believe that Respondent had knowingly converted unearned retainers from two clients, and the PDJ therefore recommended that the Colorado Supreme Court immediately suspend her. The Colorado Supreme Court accepted that recommendation two days later.

In January 2015, Cameron C. Secrist entered his appearance for Respondent. After obtaining a continuance of the sanctions hearing, he moved to set aside entry of default. The PDJ granted the motion on May 15, 2015, following a motions hearing. As explained in that order, the PDJ determined that the People had not properly served Respondent with the complaint. Secrist filed an answer on May 29, 2015, and then withdrew as Respondent's counsel the next month.

On October 20, 2015, a Hearing Board comprising James D. Brown and John E. Hayes, members of the bar, and William R. Lucero, the PDJ, held a hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler appeared on behalf of the People, and Respondent appeared pro se. The Hearing Board considered testimony from Jonathan Alford, Zak Brown, Christopher Trimble, Judy Stevens, Jasjit Grewal, Laurie Ann Seab, and Respondent. The PDJ admitted the People's exhibits 1, 13, 23, 28, 30, 34, 36, and 37.

II. FACTUAL FINDINGS AND RULE VIOLATIONS

Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on September 28, 2009, under attorney registration number 41106.

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She is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.[1]

Personal and Professional Background

Respondent opened a solo law office in Pagosa Springs, called 4 Corners Legal Services, upon earning her law license in 2009. She had previously worked in law enforcement for ten years, and she testified that she decided to become a lawyer after seeing how underrepresented people did not get a " fair shake." Her firm offered general legal services, and many of her cases involved foreclosure prevention. She testified that she earned multiple awards for her commitment to pro bono work.

Respondent has three grown children, two of whom are disabled. Her husband divorced her around the time of the events underlying this case.

In late 2012, Respondent was offered a legal position in the district attorney's office in Cortez. She moved from Pagosa Springs to Cortez in November 2012, though her own firm remained open until December 1. After she closed her law practice, Respondent placed her client files in a storage shed. She testified that she could not afford to pay rent on the unit, so the contents of the shed were sold or destroyed. Although the People secured some of the client files relevant to this disciplinary case, those records are incomplete.

Respondent worked for the district attorney from January 2012 through June 2013. That July, she began a non-attorney job as an undersheriff in Montezuma County. This position automatically terminated in January 2015 because the sheriff was not re-elected.

Respondent began exploring jobs in the energy field after her law license was suspended in December 2014, drawing upon her relevant experience and certifications. Between April and September 2015, she worked as a pipeline inspector for the State of Wyoming. She left that position to seek more remunerative work, but-aside from a one-week stint as a contractor in Louisiana-she has since been unemployed. She testified that over the past several years she has struggled to pay her living expenses, in large measure due to her student loan bills. At the time of the disciplinary hearing, Respondent was living at her daughter's home in Cheyenne.

Alford Matter

Jonathan Alford is a Pagosa Springs resident who worked as a carpenter for many years and then as a licensed massage therapist between 2011 and 2015. In June 2012, Alford was charged with having committed misdemeanor sexual assault at a social gathering. He initially was represented by a public defender and then hired Respondent on July 27, 2012.

Alford and Respondent entered into a fee agreement, which provided:

The scope of representation includes seeking a reasonable plea agreement or take the case for trial.
RETAINER. Client will deposit with Attorneys the sum of $1500.00. This will be a final payment except expenses as outlined in paragraph 5. Another $1500.00 will be due if this case proceeds to a full trial and witnesses are placed under subpoena.[2]

Alford paid Respondent $1,300.00 on August 3, 2012, and an additional $200.00 about two weeks later.[3] Respondent deposited the $1,300.00 check into her firm's operating account, and she believes she did the same with the $200.00 check.[4] Her trust account had little activity in 2012, and she made no deposits or withdrawals relating to the Alford representation that year. Respondent did not have a COLTAF account.

Respondent officially entered her appearance in Alford's case on September 10, 2012.[5] Both she and Alford testified that it had been

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difficult to get his public defender to sign a substitution of counsel form. In the meantime, according to Respondent, the judge let her represent Alford in court because he knew the public defender was out of town.

Alford spoke with Respondent a few times about his case between July and September 2012. Respondent also attended three hearings and talked with the prosecutor. She testified that during her representation of Alford, she interviewed witnesses and worked to undermine the accuser's credibility by gathering evidence of her history of dishonesty. Alford corroborated Respondent's testimony that she persuaded a witness for the prosecution to testify instead for Alford.

At some point after retaining Respondent, Alford told her that the Colorado Department of Regulatory Agencies (" DORA" ) wanted to suspend his massage license while his criminal case was pending. She contacted DORA and persuaded the department not to suspend Alford's license. She did not charge him a specific fee for this assistance. Respondent testified that she and Alford verbally modified the fee agreement so that her DORA-related efforts would be compensated through Alford's second payment of $1,500.00. Alford, in contrast, remembers that Respondent agreed to handle the DORA issue as a favor, and the Hearing Board finds his testimony persuasive.

Trial was set for Alford's case on November 14, 2012. The day before trial, Respondent filed an unopposed motion to continue the trial because she was ill.[6] The court granted the motion and reset the trial for March 2013.[7]

On November 16, 2012, Respondent asked Alford to pay the second $1,500.00 referenced in the fee agreement. According to Alford, Respondent called him from a gas station, asking him to deposit the payment because her debit card had been denied. Respondent disagrees that a debit card denial precipitated her phone call.

Alford immediately hand-delivered a cashier's check to the bank.[8] The deposit was placed into Respondent's personal checking account.[9] Respondent testified that she directed Alford merely to deposit the check, and that the " small hometown bank" must have mistakenly placed the check in her personal account. Alford, on the other hand, testified that Respondent gave him the number for her personal account. The Hearing Board finds Alford's testimony more logical and credible on this point. Even though the bank may have been a " hometown bank," we doubt that a bank teller would have chosen to place a check made out to " 4 Corners Legal" into Respondent's personal account. In any event, Respondent concedes that she did not move the $1,500.00 to her trust account once she discovered that it had been placed in her personal account.

By November 30, 2012, Respondent's personal account contained only $133.19, with the remainder of Alford's money having been consumed in large measure by Respondent's debit card withdrawals.[10]

Respondent testified that when she took the position at the district attorney's office, she mailed Alford notice that she could no longer represent him. She recalled having sent " a whole bunch" of such letters to clients. Her motion for withdrawal filed in Alford's case in January 2013 lists Alford on the certificate of service.[11] Alford, meanwhile, testified that Respondent mentioned she was seeking employment with the district attorney's office, and that she might have told him when she actually got the job. But he insisted that she never told him she was withdrawing and that he never received her motion. According to Alford, he only learned of Respondent's withdrawal when he received a call from public defender Zak Brown on a Sunday morning in early February 2013. In that call, Brown said he would represent Alford if he reapplied for public defender assistance.[12]

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Alford then phoned Respondent, who confirmed that she needed to withdraw as his counsel. When Alford explained that he did not want a public defender, Respondent recommended another attorney, Christopher Trimble, whom Alford soon hired for $4,000.00, excluding investigatory expenses. Respondent gave at least some portions of Alford's case file to Trimble. Trimble commented that Respondent had already performed considerable and valuable work on the case, but he believed still more legal and investigative efforts were needed.

Around the time he hired Trimble, Alford requested that Respondent refund his second payment of $1,500.00. He repeated the request two or three times. Alford testified that he understood the payment was, at least in large measure, for trial representation.

Ultimately, in October 2013, the case against Alford was dismissed with prejudice after Trimble successfully moved to preclude ...


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