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People v. Roybal12/15/1997
Original Proceedings in Discipline
EN BANC
ATTORNEY DISBARRED
We consolidate two lawyer disciplinary proceedings in one opinion and order. In No. 97SA240, a hearing panel of the supreme court grievance committee approved the findings and recommendation of a hearing board that the respondent be suspended for one year and one day and be required to pay restitution as a condition of reinstatement. The same hearing panel in No. 97SA358 approved the findings and recommendation of a second hearing board that the respondent be disbarred and be required to demonstrate prior to any readmission payment of certain additional restitution. We accept the hearing panel's findings and recommendations and order that the respondent be disbarred.
I.
The respondent was admitted to practice law in Colorado in 1973. He failed to answer either formal complaint filed in the cases before us and therefore the facts and allegations contained in the complaints were deemed admitted. See C.R.C.P. 241.13(b); People v. Pierson, 917 P.2d 275, 275 (Colo. 1996). Although he attended the hearing in No. 97SA240, he did not appear at the hearing in No. 97SA358. Based on the default and the evidence presented, the hearing boards found that the following had been established by clear and convincing evidence.
II. No. 97SA240 -- Powers
Vivian Powers hired the respondent on March 1, 1984 to represent her in a slip-and-fall personal injury case. She fell into an unmarked hole in August 1983 at Crossroads Mall in Boulder.
Powers and the respondent entered into a written contingent fee agreement. At the time of the accident, Powers was working for the United States Department of Agriculture, and as a result she received over $130,000 in federal workers' compensation benefits. She notified the respondent of the federal Office of Workers' Compensation (OWC) subrogation rights.
The respondent filed a complaint in Boulder County District Court on March 21, 1985, against Al Cohen Construction Company and Crossroads Mall Merchant's Association. He amended the complaint on June 11, 1985, adding Macerich Crossroads Associates as a defendant. Then on November 23, 1985, he amended the complaint again and added Flatiron Paving Company and Ridge Erection Company as defendants.
The respondent did not request either interest or costs in the complaints filed on behalf of Powers. In addition, he failed to respond to motions for summary judgment and motions for attorney fees filed by Ridge Erection Company and Flatiron Paving Company. The trial court therefore dismissed the claims against these two defendants and awarded attorney fees and costs against the respondent and his client. The respondent challenged the award of costs and fees on the ground that he changed the location of his office and had not received the motion; however, he had not notified the court of any change of address. Flatiron agreed to satisfaction without payment, but the respondent confessed judgment to Ridge Erection in the amount of $3,363.54. The respondent did not inform Powers of these events.
The case went to trial in January 1987, and the jury awarded Powers $100,000 plus interest and costs. The respondent did not answer the defendants' challenge to the award of any interest or costs because the complaint did not ask for them. The matter was settled in February 1987 for $107,500. When Powers signed the settlement agreement, she was unaware of her right to receive costs and interest had they been pleaded. The hearing board found that she would have been entitled to an additional $26,821.58 on the jury verdict had interest and costs not been waived.
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