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People v. Butler6/6/1994
A hearing panel of the Supreme Court Grievance Committee voted to approve the findings of a hearing board that the respondent had violated the Code of Professional Responsibility. The panel also approved the board's recommendation that the respondent be suspended from the practice of law for three years, pay restitution, and be assessed costs. The assistant disciplinary counsel did not except to the panel's action, and the respondent's exceptions were stricken for his failure to designate the record, and to order and file a transcript of the proceedings below. See People v. Phelps, 837 P.2d 755, 755 n.1 (Colo. 1992); C.R.C.P. 241.20(b)(4). We accept the panel's recommendation.
I
Based on the evidence presented at the hearing, the board found that the following facts had been established by clear and convincing evidence.
The complaining witness, Alex Cech, contracted with Cloverdale Homes, Inc. in 1979 to build a four-plex in Eagle County, Colorado. Cloverdale Homes subsequently entered into a contract with Federal Home Corporation to manufacture the Cech four-plex.
Cech hired the respondent in January 1980 to defend him when problems arose from construction of the four-plex. In February 1980 the respondent was retained by Cloverdale Homes when a dispute arose between it and Federal Home over the same four-plex. Pritchard Lumber Company supplied building materials to Federal Home. The respondent sent Pritchard Lumber Company a letter dated February 5, 1980, specifically advising Pritchard Lumber that he represented Cloverdale Homes. Although the respondent represented both Cech and Cloverdale Homes with respect to the development of the same four-plex, the respondent failed to advise Cech that a conflict existed and did not obtain a knowing waiver of that conflict.
In 1980, Pritchard Lumber filed an action in Eagle County District Court against Federal Home, Cloverdale Homes, and Cech and his wife to enforce a mechanics' lien. The respondent asserted set-offs on behalf of the Cechs and he filed a cross-claim against Cloverdale Homes. The respondent later obtained an assignment of Cloverdale Homes' claims against Federal Home for the benefit of the Cechs, but he failed to pursue the assigned claims. Moreover, when Cloverdale Homes did not answer the Cechs' cross-claim in 1980, the respondent did not obtain a default judgment until the matter was tried in 1986, by which time Cloverdale Homes was out of business.
The respondent's sole theory of the case at trial was that Federal Home had no right to a mechanics' lien because the Cech four-plex was a modular unit. The trial court, however, had already rejected that precise argument, ruling that Federal Home did have mechanics' lien rights. The respondent did not candidly discuss the strengths and weaknesses of the case against Federal Home with Cech prior to trial. Because Cech believed that his case was so strong that he would receive money damages, he did not accept a settlement offer which called for payment to Federal Home. Given the respondent's failure to prepare the Cech case, however, there was virtually no possibility that Cech would recover anything.
The respondent failed to provide Cech with copies of the pleadings as the case progressed, did not notify him of the actual trial date until a few days before it was set to begin, and met with Cech only briefly the night before trial. Cech was the respondent's only witness at trial. Several witnesses who might have substantiated Cech's testimony were not subpoenaed or called. Since the respondent failed to prepare pretrial objections to exhibits as ordered, the trial court admitted
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