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People v. Kolenc12/19/1994
Original Proceeding in Discipline
EN BANC
Per Curiam
A hearing board in this lawyer disciplinary proceeding concluded that the respondent had violated the Code of Professional Responsibility in eight separate instances and recommended that he be suspended for three years, comply with certain conditions for reinstatement, and pay costs. A hearing panel of the Supreme Court Grievance Committee generally approved the board's findings and recommendation. The respondent excepted to the board's findings, but his exceptions were stricken because he failed to designate or file any part of a transcript of the testimony and proceedings before the hearing board, as he was required to do. See C.R.C.P. 241.20(b)(4). Considering the gravity and the magnitude of the respondent's misconduct, we order that the respondent be disbarred and pay the costs of this proceeding.
I.
After hearing the testimony of the complainant's witnesses and the respondent, and considering the exhibits admitted into evidence, the board concluded that the following facts were established by clear and convincing evidence.
A.
In 1980, the respondent was ordered to pay his first ex-wife $125 per month for child support. He did not make all of the court-ordered payments, however, and in 1985 a judgment in the amount of $1,200, representing unreimbursed public assistance provided to his ex-wife, was entered against the respondent. In addition, after he was admitted to practice law in Colorado, the respondent willfully violated the 1980 court order by failing to make any payments in 1990 at all. On October 30, 1991, the respondent was found in contempt of court, beyond a reasonable doubt, for failure to make the 1990 child support payments, and he was sentenced to serve four days in the Mesa County jail.
From June 1985 through February 1992, the respondent only paid $244 toward current child support, leaving a balance of $9,881. Consequently, on April 30, 1992, a second judgment, in the amount of $9,881, reflecting unreimbursed public assistance provided to his ex-wife, was entered against the respondent.
The respondent thus failed to comply with the court's child support order, did not take any steps to modify the order, failed to satisfy either of the judgments against him for past-due child support, and acted in contempt of court. As the hearing board determined, the respondent's conduct violated DR 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration of Justice), DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law), and DR 7-106(A) (a lawyer shall not disregard a ruling of a tribunal made in the course of a proceeding). See People v. Tucker, 837 P.2d 1225, 1227 (Colo. 1992) (willful failure to pay court-ordered child support violates DR 1-102(A)(5), DR 1-102(A)(6), and DR 7-106(A)); accord People v. Barr, 818 P.2d 761, 761-62 (Colo. 1991).
B.
In 1981, the respondent was ordered to pay his second ex-wife $100 per month for child support, but since 1981, he has paid her only about $500 in child support. He therefore willfully failed to comply with a second child support order although he had the financial ability to do so in 1991 and 1992. As in the above matter, the respondent violated DR 1-102(A)(5), DR 1-102(A)(6), and DR 7-106(A).
The core of the misconduct is the respondent's willful failure to pay the court-ordered child support. The absence of a contempt finding by the trial court is a factor, but is not dispositive for purposes of
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