People v. Tatum

Justice VOLLACK

dissenting:

I respectfully dissent from the majority’s decision to publicly censure the respondent. In my opinion, an attorney’s threat to invoke disciplinary proceedings against a judge to extort a favorable ruling for himself and his client warrants a more severe sanction.

I.

A disciplinary hearing was held at which the hearing board found the following facts to have been established by clear and convincing evidence.

The respondent was retained to represent the defendants in a water court lawsuit (hereinafter referred to as the Parsons case) in Water Division No. 2. Judge Tracey was the assigned judge for that division. The plaintiff had moved for a preliminary injunction against the defendants, and a hearing on the motion was set for August 22, 1989. The respondent entered his appearance and filed an answer and a motion for a continuance of the hearing for preliminary injunction. The motion for continuance was filed on August 18, 1989, and asserted that respondent, because of his busy practice, was scheduled for trial in Texas on August 21 and that he could not be present for the August 22 hearing. The court granted the respondent’s motion for a continuance, and vacated the hearing on August 22. An agreement was entered into between the respondent and plaintiff’s counsel to reset the preliminary injunction hearing for September 14, 1989.

The criminal trial in Texas, that was the basis for the original motion for continuance, did not go to trial on the August dates and was reset to commence on September 5, 1989. The trial did commence on September 5 and concluded on September 18. On September 7, the respondent again moved for a continuance of the scheduled September 14 hearing. On September 8, Judge Tracey entered an order denying this second motion for a continuance.

Respondent did not attempt to have other counsel represent his clients at the preliminary injunction hearing, but instead, on September 13, telephoned the Watér Division from Texas. He was not able to speak directly to Judge Tracey, but spoke to the Judge’s assistant division clerk. During the call, the respondent made a statement to the division clerk to the effect that if Judge Tracey did not grant a continuance of the Parsons hearing, the respondent would file a grievance or a complaint against Judge Tracey with the Commission on Judicial Discipline. The hearing board found the intent of this statement was to obtain a favorable ruling that would have been advantageous to the respondent and his clients. The assistant division clerk advised Judge Tracey of the conversation, and, because the judge was compelled under the rules of conduct to file a complaint against the respondent, he entered an order recusing himself from the case. He then *391assigned the matter to Judge Anderson, the assistant water judge for the district. Judge Tracey’s recusal resulted in a continuance of the September 14 hearing. The hearing board found that at no time did the respondent attempt to locate other counsel to handle the preliminary injunction hearing, the purpose of which was merely to prohibit the defendants from allegedly diverting water out of priority; all other matters could be litigated at a later time. The board further found that the plaintiff in the Parsons case later determined that the alleged improper diversions ceased subsequent to the service of the complaint in August.

The respondent, in his pro se appearance at the disciplinary hearing, freely admitted his conversation with the assistant division clerk. He predicated his defense on the fact that it was not possible for him to be present in Colorado for the Parsons hearing because he was in trial in Texas, having double-set his trial calendar. The hearing board found the respondent’s assumption that courts should always change their calendars to accommodate any calendar conflicts which respondent might have or which might arise subsequent to a setting was inappropriate.

The board established that when respondent accepted employment in the Parsons case he knew he was unable to attend the August 22 hearing but expected the water court to accommodate that conflict. The respondent agreed to the September 14 date apparently under the assumption that if it later proved inconvenient the water court would again change its calendar to accommodate respondent’s schedule. The board concluded that respondent’s statement to Judge Tracey’s assistant division clerk was a threat to file a grievance unless Judge Tracey granted a continuance. While the respondent was free to file a complaint with the Commission on Judicial Discipline, his coupling of the threat with a demand for a favorable ruling was a violation of DR 1-102(A)(5).1 The board further concluded that the respondent violated C.R. C.P. 241.6(1)2 and DR 1-102(A)(1).3 The board found aggravating factors present in that the respondent refused to acknowledge the wrongful nature of his conduct4 and. that he had substantial experience in the practice of law.5 The board did find one mitigating factor to be present — the absence of a prior disciplinary record.6

II.

In determining the appropriate sanctions for unethical conduct, we normally apply the American Bar Association’s Standards for Imposing Lawyer Sanctions (1986). Standard 6.3, Improper Communications with Individuals in the Legal System, is appropriate in this case where the respondent threatened to file a complaint with the Judicial Grievance Commission to extort a continuance from a judge. Standard 6.3 provides in relevant part:

6.31 Disbarment is generally appropriate when a lawyer:
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(b) makes an ex parte communication with a judge or juror with intent to affect the outcome of the proceeding, and causes serious or potentially serious injury to a party, or causes significant or potentially significant interference with the outcome of the legal proceeding; or
*392(c) improperly communicates with someone in the legal system other than a witness, judge, or juror with the intent to influence or affect the outcome of the proceeding, and causes significant or potentially significant interference with the outcome of the legal proceeding.
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6.32 Suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding.

The respondent’s admission of intentionally threatening the judge to gain an advantage for himself is conduct that warrants a more severe sanction than a public censure, in accordance with either ABA Standard 6.31 or 6.32. When the judicial process is affronted or disrupted, the dignity and authority of the courts must be vindicated to reestablish the respect which is owed to the court and which is necessary to the proper functioning of the court. See Losavio v. District Court, 182 Colo. 180, 512 P.2d 266 (1973).

A public censure of the admitted conduct of the respondent and his refusal to acknowledge the wrongful nature of his conduct in my opinion does not maintain the respect due to courts and judicial officers. The respondent’s conduct is a serious violation of his professional duty as an officer of the court sworn to respect the law and obey the order and judgment of the court. I cannot agree that a public censure is appropriate in this case. Such discipline would unduly depreciate the seriousness of the respondent’s misconduct and erode public confidence in the integrity of the legal profession and the justice system.

I am authorized to say that Justice ERICKSON and Justice QUINN join in this dissent.

. DR 1-102 Misconduct.

(A) A lawyer shall not:
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(5) Engage in conduct that is prejudicial to the administration of justice.

. Rule 241.6. Grounds for Discipline

Misconduct by a lawyer, individually or in concert with others, including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship:
(1) Any act or omission which violates the Code of Professional Responsibility^]

. DR 1-102 Misconduct.

(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.

. American Bar Association’s Standards for Imposing Lawyer Sanctions, Standard 9.22(g) (1986).

. ABA Standard 9.22(i).

. ABA Standard 9.32(a).