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People v. Robertson12/4/1995
Original Proceeding in Discipline
EN BANC
Per Curiam
Three separate lawyer disciplinary proceedings have been consolidated for one opinion and order. For the reasons below, we order that the respondent be disbarred and that any application for readmission be conditioned on the satisfaction of certain conditions, including restitution.
I
The respondent was admitted to the Colorado bar in 1981. He is now before us involving three separate matters, cases nos. 94SA197, 95SA128, and 95SA236, which were consolidated by order of this court. On April 26, 1994, we immediately suspended respondent from the practice of law.
A
In No. 94SA197, the hearing board entered a default against the respondent as a sanction for failing to appear at his deposition and failing to comply with the board's discovery orders. C.R.C.P. 37(b)(2), (d); 241.13(b); People v. Proffitt, 854 P.2d 787, 787 (Colo. 1993). The factual allegations in the complaint were therefore deemed admitted. Id. The respondent did not attend the hearing.
Based on the respondent's default, and evidence tendered by the disciplinary counsel, the hearing board found that the respondent was retained on January 24, 1992, by Carolyn Boynton, the client, to pursue a wrongful death action. Client's child was killed as the result of an automobile accident. The client had been informed that the driver's insurance company would not dispute liability or damages and would tender the policy limits of $15,000. The respondent told his client that she might be entitled to more, and she signed a one-third contingency fee contract for the respondent's services in connection with the "wrongful death of son and investigation into circumstances of death and medical treatment."
By check dated February 24, 1992, the insurance company paid the respondent and his client the policy limits of $15,000. The respondent kept $5,000 and disbursed $10,000 to his client.
The respondent therefore collected a $5,000 contingency fee when there was effectively no risk of nonrecovery and little work was performed on the client's behalf. The hearing board found, and we agree, that the respondent's conduct violated DR 2-106(A) (a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee). People v. Walker, 832 P.2d 935, 936 (Colo. 1992) (lawyer's fee was excessive in violation of DR 2-106(A) where compensation claimed bore no rational relationship to the work performed); People v. Nutt, 696 P.2d 242, 248 (Colo. 1985) (where attorney fee, whether characterized as fixed or contingent, was not indicative of time, labor and skill invested, it was prohibited as excessive under DR 2-106).
B
The respondent defaulted in No. 95SA128, and did not appear at the hearing. The hearing board found that the following had been proven by clear and convincing evidence.
1
The respondent visited a woman and her son, a juvenile, at the hospital where the juvenile was being treated for wounds inflicted by a store owner during a shoplifting incident on or about July 18, 1991. The respondent provided unsolicited legal advice contrary to DR 2-104(A) to the juvenile and his mother (neither of whom were close friends of respondent, relatives or former clients). Respondent advised them to take legal action against the store owner, and then suggested that he could represent them. They entered into a contingency fee agreement and the mother paid the respondent $500 for costs. The mother subsequently terminated the responde
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