People v. Murray , 18 Brief Times Rptr. 2142 ( 1994 )

Justice SCOTT

dissenting:

The majority accepted the recommendation of a divided hearing board that the respondent, Mack Edward Murray, be disbarred and ordered to pay costs.⁴ Although I would agree with the majority that there were egregious violations requiring discipline and I agree “that in the absence of mitigating circumstances, disbarment is generally warranted,” maj. op. at 1021, I do not agree with the majority’s imposition of the sanction of disbarment on the ground that it is unwarranted and hence, too severe a sanction given the existence of several mitigating factors. Therefore, I respectfully dissent as to part II of the majority opinion.

The majority sufficiently sets forth the facts regarding the conduct of respondent, generally establishing, without doubt, the inability of Murray to both conduct the business of practicing law and to properly represent his clients. As a new, inexperienced attorney, Murray’s ability to attract clients, in numbers greater than he was capable of representing, surely contributed to his wrongful conduct. On numerous occasions, he failed to attend important meetings or, when present was not adequately prepared to represent his clients, and failed to submit pretrial orders or appear at scheduled proceedings, resulting in inexcusable harm to his clients. Due to the high number of clients he represented, his conduct caused harm to many and required an immediate suspension by this court when first brought to our attention. However, the issue now determined by the majority in the affirmative is whether a new, inexperienced attorney without a prior disciplinary history and absent a dishonest or selfish motive with personal or emotional problems must be disbarred for behavior not violative of our criminal laws but in violation of our rules of conduct.

I

We have previously held that suspension, and not disbarment, is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. People v. Schubert, 799 P.2d 388 (Colo.1990); American Bar Association Standards for Imposing Lawyer Sanctions (1986 & Supp.1992) (“ABA Standards ”) 4.42. However, in the absence of mitigating circumstances, disbarment is generally appropriate when: (a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or (b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or (c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client. ABA Standards 4.41; People v. Southern, 832 P.2d 946 (Colo.1992).

Although Murray did engage in a pattern of neglect and caused potentially serious injury to several clients, the presence of mitigating factors in this case calls for a sanction less than disbarment. In particular, the hearing board found the existence of the following mitigating factors: absence of a prior disciplinary history, ABA Standards 9.32(a); absence of dishonest or selfish motive, id. at 9.32(b); personal or emotional problems, id. at 9.32(e); character or reputation, id. at 9.32(d); and the imposition of an immediate suspension, id. at 9.32(k).⁵

The majority apparently considered these mitigating factors, yet still found that disbarment was appropriate. However, in my opinion, a survey of previous Colorado attorney discipline case law indicates that a three year suspension with future practice subject to appropriate conditions would be the proper sanction for Murray. In cases concerning a pattern of neglect involving similar mitigating factors, the attorney typically receives a three year suspension of his or her license. For example, in People v. Schubert, 799 P.2d 388 (Colo.1990), we held that a three year suspension was warranted although the attorney engaged in multiple instances of misconduct and needed to complete a drug rehabilitation program. The attorney in that case commingled funds, used client funds for personal and business expenses and borrowed money from a client without full disclosure. Despite those serious violations of the Code of Professional Responsibility, we held that disbarment was too severe a sanction, stating “[t]he respondent’s misuse of his client’s funds, while serious and deserving of sanction, did not exhibit the dishonesty and breach of trust inherent in the knowing conversion of client funds.” Id. at 393; see also People v. Dixon, 200 Colo. 520, 616 P.2d 103 (1980) (holding that the failure to forward answers to interrogatories to opposing counsel, failure to appear at hearing to compel discovery, failure to appear when ordered to show cause why attorney should not be held in contempt, failure to tell client his case had been dismissed and failure to return money given to him for costs warrants indefinite suspension of license to practice law).

Disbarment has generally been reserved for attorneys who engaged in intentional misconduct with a dishonest or selfish motive or who have been previously sanctioned. See, e.g., People v. Southern, 832 P.2d 946 (Colo. 1992) (attorney’s inaction in legal matters entrusted to him and abandonment of his clients warrants disbarment, particularly where the attorney was previously suspended for neglect and abandonment of client matters and failure to cooperate in disciplinary proceedings); People v. Mulligan, 817 P.2d 1028 (Colo.1991) (conduct involving dishonesty warrants disbarment); People v. Susman, 787 P.2d 1119 (Colo.1990) (neglect of legal matters and misrepresenting status of litigation to clients, when coupled with misrepresentation to grievance committee and two previous suspensions for neglect of client affairs warrants disbarment); People v. Dula-ney, 785 P.2d 1302 (Colo.1990) (attorney’s chronic neglect of client matters and use of deceit to cover neglect warrants disbarment).

Murray, like many of the numerous graduates of our law schools who are unable to find employment under an experienced attorney, opened his own law practice soon after being admitted to the Colorado bar. Murray had been practicing law for less than three years at the time of his suspension. It is clear from the facts of this case that he is unable to properly conduct or manage his own private practice at this early stage of his legal career. A lengthy suspension provides the appropriate sanction for the misconduct of this first-time offender. In addition, however, the respondent needs training and supervision in practice skills, the method and delivery of adequate legal services, as well as education in the business aspects of legal practice in order to solve the underlying causes of his violations of the Code of Professional Responsibility. A suspension would give the respondent an opportunity to obtain that training, supervision and education and would allow him a conditional return to the practice of law. Disbarment, however, would assure that he is not given that opportunity, and terminates Murray’s license to practice.

The primary purpose of lawyer discipline proceedings is “to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.” ABA Standards 1.1; People v. Abelman, 804 P.2d 859, 863 (Colo.1991). As many courts have noted, while sanctions imposed on a lawyer obviously have a punitive aspect, nonetheless, it should not be the purpose of the proceedings to impose such sanctions for punishment. Abelman, 804 P.2d at 863; see, e.g., ABA Standards 1.1, commentary. In this case, the public has already been protected by Murray’s immediate suspension by unanimous order of this court on September 30,1993. There is no need to punish Murray by banning him, at this early stage in his career, from continuing in his chosen profession, unless, of course, he is unable to meet reasonable conditions that might be imposed as conditions of readmission to assure he seeks and obtains supervision upon his return to practice.

Admittedly, Murray’s egregious conduct has been exacerbated by the fact that he has yet to accept that his actions were violative of the Code of Professional Responsibility, and he has yet to show any remorse. If Murray does not recognize that the way in which he conducted his practice in the past is unacceptable, his suspension if imposed, could continue. If, however, after an appropriate cessation of practice he agrees to take measures to assure that he will not make the same types of mistakes again, disbarment effects a punishment of a young, inexperienced attorney not contemplated by our rules.

II

For the foregoing reasons, I would recommend a three year suspension of Murray’s license, with the stipulation that resumption of the practice of law be appropriately conditioned, including the mandatory participation in a mentor program. Accordingly, I respectfully dissent as to part II of the majority opinion.

4 . Two members of the board recommended that the respondent be disbarred, and one member recommended that the respondent be suspended from the practice of law for three years.

5 . The hearing board specifically rejected the respondent's claim of inexperience as a mitigating factor, given that so much of his misconduct involved fundamental and basic issues. People v. Reeves, 766 P.2d 1192 (Colo. 1988). The basic and fundamental mistakes, however, were presumably a direct result of the size of the respondent’s caseload. Respondent's inexperience caused him to take on more business than he was able to handle, and resulted in mistakes of neglect rather than of ignorance. The majority is now punishing respondent for his inexperience.