suspending for six months, all stayed with probation where attorney knowingly made deceitful statements to an insurance company by referring to his deceased client in the present tense and misinforming the insurer of the timing of his client's death
How later courts described this case
- suspending for six months, all stayed with probation where attorney knowingly made deceitful statements to an insurance company by referring to his deceased client in the present tense and misinforming the insurer of the timing of his client's death
- disbarring an attorney who knowingly misappropriated $70,000.00 belonging to her client's estate
- disbarring an attorney who pled guilty to felony aiding and abetting charges
- “[W]e cannot say, as a matter of law, that no reasonable fact finder could be unconvinced by the circumstantial evidence of the respondent’s subjective intent.”
Written by the judges who cited it.
The opinion
Justice EID
dissenting.
The Hearing Board found that Rosen violated Colorado Rules of Professional Conduct *122 8A4(c) 4 and 4.1(a) 5 by taking actions that were "knowingly deceitful" during his negotiations with Safeco. Yet the Board imposed a penalty of just six months of probation. Because I believe that Rosen's conduct was egregious, I agree with attorney regulation counsel that Rosen's punishment should be increased to suspension of a year and a day, without probation. I therefore respectfully dissent.
Rosen was negotiating a settlement with Safeco when, on February 18, 2005, he learned of Bourelle's death. On April 12, 2005, Safeco made its first counteroffer of $23,000, which included $9,000 for pain and suffering. Although Rosen was unaware that death affected pain and suffering damages when he made a $50,000 counteroffer on April 25, 2005, he learned just three days later that pain and suffering damages abate upon the death of a client. In other words, by the end of April 2005, Rosen knew that he was negotiating with Safeco for a settlement that contained damages to which no one was entitled-neither he, in the form of a one-third contingency fee, nor his client's heirs. Yet Rosen chose not to disclose Bourelle's death to Safeco at this point or at any point in the negotiations.
When Rosen received Safeco's next offer of $31,750, he promptly accepted it and settled the case. The settlement exceeded the amount of economic damages involved in the case and included damages for pain and suffering, but again, Rosen chose not to disclose his client's death to Safeco.
Onee the case was settled, Safeco forwarded to Rosen a liability release and a check. In order to cash the check and collect his contingency fee, Rosen needed to obtain a signature on the liability release. Because he could not obtain Bourelle's signature, he turned to Bourelle's family, forwarding a copy of the release to Bourelle's brother. On or around July 25, 2005, the brother, seeking clarification about the settlement, contacted Safeco and informed the company of Bou-relle's death. Safeco asked him not to tell Rosen of the call and subsequently began an investigation. The brother did not tell Rosen about the call, nor did he sign the release.
Upon learning that Bourelle's family would not sign the release, Rosen took initial steps toward commencing a probate action, hoping to have the release signed by a fiduciary of the estate. This option required Safeco to know that Bourelle had died. Consequently, on August 11, 2005 Rosen sent Safeco a letter. He was careful, however, to preserve the pain and suffering damages contained in the settlement amount by stating that Bou-relle died "subsequent" to the settlement.
Only after Rosen learned that a Safeco investigator wanted to speak with him did he admit that his client had died, though again, he failed to disclose the whole truth. In his final letter to Safeco, Rosen stated that he "recently" learned that Bourelle had died prior to the settlement. His letter sought to negate any implication that he had entered into a settlement agreement, which included pain and suffering damages, while knowing his client was deceased. Upon Safeco's request, Rosen returned the check to Safeco in February of 2006-a full ten months after he learned that pain and suffering damages abate upon a person's death.
It is undisputed that Rosen knew pain and suffering damages abated on death, yet he negotiated a settlement that would include such damages and repeatedly misled Safeco into thinking that such damages were appropriate in this case. Moreover, he took the steps that would be necessary to cash the settlement check and eventually obtain his one-third contingency fee from a settlement amount that included pain and suffering damages. At first, Rosen hoped Bourelle's family would simply sign the release form on Bourelle's behalf. After that failed, he sought a probate action where a representative could sign for Bourelle. It appears that Rosen was saved from cashing the check only by chance-that is, by the actions of Bou- *123 relle's family, who refused to sign the release and then alerted Safeco.
The Hearing Board declined to find that Rosen committed attempted theft because it concluded that the People failed to prove that Rosen had the "conscious objective" of permanently depriving Safeco of the settlement funds attributable to pain and suffering to which no one was entitled. But the Board did find that Rosen "acted dishonestly and deceitfully in his negotiations with Safeco" and that he "engaged in multiple misrepresentations" constituting "a pattern of misconduct." Indeed, as the Board summed it up, "[It was more than mistake or misjudgment on [Rosen's] part to continue to deceive Safe-co after he learned of his client's death and its impact on settling the claim. Such actions were knowingly deceitful." In my view, given the egregious conduct that occurred in this case, the Board's probationary sentence is inadequate.
It is somewhat unclear why the Board concluded that probation was a sufficient penalty in this case. The Board may have been influenced by (although it does not expressly reference) Rosen's explanation that his conduct was motivated by embarrassment. See maj. op. at 118. Embarrassment, however, only goes so far. Embarrassment does not explain why Rosen vigorously pursued the steps necessary to cash the settlement cheeck-that is, the fact that he sought a signature on the release form from his client's family, and, when that failed, sought to establish a probate estate so that a representative could sign the document. Nor does it explain why he would specify in a letter to Safeco discussing probate proceedings that his client died "subsequent" to the settlement, rather than simply stating that his client had died. Finally, embarrassment does not explain why Rosen returned the check only after being confronted by Safeco. Rosen may have been embarrassed, but he was still "knowingly" and repeatedly deceitful, as the Hearing Board concluded.
Finally, the Board noted that a "significant mitigating factor" in the case was that Rosen has practiced law for over twenty years with no record of discipline. Yet the Board cited the same factor in aggravation. As the Board concluded, Rosen "has practiced law for over twenty years as a personal injury lawyer who specializes in settling cases before formal litigation." Although not charged with incompetence, Rosen should have known that pain and suffering damages abate upon death; certainly, upon learning that fact, a competent and ethical lawyer would have disclosed a client's death in a timely manner, rather than concealing that fact to enable a settlement that included pain and suffering damages-damages to which no one was entitled. See Colo. RPC 1.1 ("A lawyer shall provide competent representation to a client"); Colo. RPC 4.1. emt. 1 ("A lawyer is required to be truthful when dealing with others on a client's behalf"); see also Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F.Supp. 507, 508 (E.D.Mich.1983) (voiding settlement agreement because plaintiff's attorney had "an absolute ethical obligation" to inform both defendant's counsel and the court of plaintiff's death and failed to do so).
Attorney regulation counsel argues that, given the egregious nature of Rosen's conduct, the penalty should be inereased to suspension of a year and a day, without probation. I agree, and therefore respectfully dissent from the majority's opinion finding otherwise.
I am authorized to state that Chief Justice MULLARKEY and Justice BENDER join in this dissent.
. "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Colo. RPC 8.4(c)
. "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person." Colo. RPC 4.1(a)