People v. Waters

438 P.3d 753

The PEOPLE of the State of Colorado, Complainant,

v.John Palmer WATERS, Respondent.

Case Number: 18PDJ014

Office of Presiding Disciplinary Judge of the Supreme Court of Colorado.

DATED JANUARY 22, 2019.

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

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

In 2017, John Palmer Waters ("Respondent") commingled a retainer with his own money and knowingly converted the retainer. He also failed to keep records of funds he held in trust for a representation. Further, he breached client confidences in a motion to withdraw because he was frustrated with his client. Respondent's violations of Colo. RPC 1.6(a), 8.4(c), 1.15A, and 1.15D warrant disbarment.

I. PROCEDURAL HISTORY

On April 6, 2018, Jacob M. Vos, Office of Attorney Regulation Counsel ("the People"), filed a complaint with William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), alleging that Respondent violated Colo. RPC 1.5(b), 1.6(a), 8.4(c), and 1.15A. Through his counsel, Michael W. Gross, Respondent answered on June 1, 2018, after receiving an extension of time.

The People moved to amend their complaint on August 14, 2018, adding a claim premised on Colo. RPC 1.15D(a). The PDJ allowed the amendment, and Respondent filed an amended answer on September 26, 2018. On October 24, 2018, Gross moved to withdraw from representing Respondent, and the PDJ granted that request two days later.

At the hearing on November 27, 2018, the PDJ, along with lawyers Charles F. Garcia and Marna M. Lake, served on the Hearing Board. Vos represented the People, and Respondent appeared pro se. The Hearing Board heard telephone testimony from Laraine Wright and Cheryl Power¹ as well as in-person testimony from Jason Raines, Janet Layne, and Respondent. The Hearing Board considered stipulated exhibits 1-22 and the parties' stipulated facts.²

II. FACT AND RULE VIOLATIONS ³

Respondent took the oath of admission and was admitted to the practice of law in the Colorado Supreme Court on October 22, 2007, under attorney registration number 39420. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.⁴

Respondent's Withdrawal from the Raines Case

Jason Raines testified that since 2010 he has litigated an ongoing battle with his ex-girlfriend concerning custody of their daughter. He has mostly represented himself pro se in those proceedings, he said, even though a traumatic brain injury suffered when he was sixteen years old affects his ability to handle high-stress situations.

Raines testified that in May 2017 he was incarcerated in Grand Junction on multiple pending criminal charges. Because he was being held on a $ 25,000.00 cash-only bond, which he could not pay, he remained in jail. Prior to his arrest, Raines said, he had filed a pro se motion to modify his child support. Then, while he was in jail, his ex-girlfriend moved to modify his parenting time, and the court set a hearing on that motion for July 5, 2017. According to Raines, he was not allowed to attend any civil hearings while incarcerated, so he was concerned he would default.⁵ He wanted to hire an attorney to attend the hearing and obtain a continuance until he was released from jail; he also wanted assistance with his earlier-filed motion to modify child support. He said that he was given Respondent's name by a friend and that he asked his grandmother, Laraine Wright, to hire Respondent on his behalf. Raines was represented by a public defender in his criminal matters.

Wright testified that she called Respondent in mid-May 2017.⁶ She said she relayed general information about Raines's case, but her primary task was to pay Respondent for the representation. On May 17, 2017, she paid Respondent a $ 2,500.00 retainer by credit card.⁷

Raines recalled speaking with Respondent by phone in mid-May 2017. During the call, Raines explained that his case was "easy" and that all Respondent had to do was "show up" at the hearing on July 5, 2017, to "get a continuance." Respondent remembered Raines informing him that the July hearing was merely a status conference. Respondent's billing entries reflect that within several days after speaking with Raines on May 19, 2017, he contacted Raines's public defender and the opposing counsel in the custody matter.⁸ Respondent then entered his appearance in Raines's custody case on May 22, 2017.⁹

Raines testified that during Respondent's representation he gave his friend Cheryl Power permission to act as a liaison between him and Respondent because it was difficult for him to communicate with Respondent from jail. Power testified that she primarily supplied Respondent with basic information about the history of Raines's custody case. Raines said that he did not have any conversations with Respondent about waiving attorney-client confidentiality.

By the end of May 2017, Respondent had determined that Raines's case was far more complicated than Raines had described and that Raines had given him inaccurate information.¹⁰ According to Respondent, he waited over a week to "pull" the court file but once he looked into the matter more carefully, he realized that Raines had been untruthful and that his case was not "easy." In fact, he said, Raines's ex-girlfriend had not moved to modify Raines's parenting time but instead had asked the court to restrict parenting time, which, according to Respondent, is the "highest conflicted level of parenting time" that can be requested, requiring a court to analyze twenty-five enumerated factors on the record. Respondent was exasperated with Raines.¹¹

Once he realized the purpose of the July hearing, Respondent said, he explained to Wright, Power, and Raines that the best approach would be to address Raines's pending criminal matters first, as they would directly affect the outcome of the motion to restrict. It was then, Respondent said, that Raines became "upset" about the case and insisted that Respondent was not "doing his job."

On June 13, 2017, Respondent told Wright, Power, and Raines that he planned to withdraw from Raines's case.¹² Three days later, Respondent filed a motion to withdraw.¹³ The motion included the following statements:¹⁴

1. Respondent, Jason Raines, hasn't been truthful with undersigned counsel since he hired him.

...

4. Respondent, Jason Raines, has a number of civil and criminal issues pending.

...

6. Because of all these legal issues, it was imperative that, given the extent of the retainer, priorities had to be laid out; rather than attack everyone with impunity. Thereby leaving no money left to actually do some good. Client agreed to this.

7. Mr. Raines said, essentially, this is an "easy" case; nothing could be further from the truth.

...

12. Undersigned counsel was very concerned, though, about the pending felony charge of stalking. That criminal case would vastly impact this case....

13. To undersigned counsel's complete surprise, there were over 303 pleadings filed and over 35 court-appearances. Numerous contempts. A judge recuses herself, etc.

14. Most disturbing was the full-day hearing set for this July 5th, 2017, which Mr. Raines never told undersigned counsel about. Needless to say, undersigned counsel felt lied to, or, at least, "tricked" into taking this case.

15. It got worse. 16. After a number of phone calls to Mr. Raines, his guardian angel, Cheryl Power[ ], and his grandmother, undersigned counsel decided to stick it out and try to keep costs to a minimum, telling him to focus on his felony stalking case and dealing with this case down the road. Client agreed to this.

...

18. After speaking with [Mr. Raines's public defender], though, undersigned counsel learned that Mr. Raines also has a pending DUI and an unwanted sexual contact. Two more misdemeanors that would impact this case. This was the last straw.

19. The attorney/client relationship has completely broken down. 20. It would be an undue burden on counsel to continue on this matter given the lack of trust between undersigned counsel and his client....¹⁵

Looking back, Respondent said that Raines's case "blew up from day one" because no one listened to him and understood the importance of the case's procedural history. But Respondent admitted that it was unprofessional of him to "vent" about Raines in the motion to withdraw. He acknowledged that many of the statements in his motion were based on information he had learned in conversations with Raines or contained his impressions of the case, although he also noted that some of the information was of public record, such as Raines's pending criminal charges. Respondent recognized that he "went overboard" and disserved the profession by filing the motion. He also admitted that he breached client confidences. He avowed that he now understands how such a motion should properly read.

Raines testified that Respondent never told him about his withdrawal as counsel or that Respondent suspected he was dishonest about his case. Raines said that Respondent's motion did not make sense to him because Respondent had agreed to take his case. Raines maintained that Respondent's motion painted him in a negative light by bringing before the court his criminal matters, which were merely pending, thereby tainting the court's impression of him. Further, Raines said that the unwanted sexual conduct charge had been dismissed three days before Respondent filed his motion. He felt that Respondent's statements were hurtful and surprising.

On June 25, 2017, the court granted Respondent's motion to withdraw.¹⁶ Neither Respondent nor Raines attended the hearing on July 5, 2017.¹⁷ In a minute order issued on July 5, the court granted the motion to restrict Raines's parenting time to supervised visits.¹⁸ Wright testified that because Respondent withdrew shortly before the hearing, she did not have the time or the money to hire another lawyer to represent Raines. Raines testified that he is still fighting for custody of his...