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People v. Pooley5/15/1989
JUSTICE VOLLACK delivered the Opinion of the Court.
In this disciplinary proceeding, a hearing panel of the Supreme Court Grievance Committee (panel) has recommended that the respondent-attorney, Douglas Pooley, be publicly censured. The panel also recommended that the costs of these proceedings be assessed against him. We order the recommended imposition of costs. We reject the panel's recommendation of a public censure and order that the respondent be suspended from the practice of law for ninety days.
I.
The attorney-respondent, Douglas Pooley (Pooley or the respondent), was admitted to the bar of the Supreme Court of the State of Colorado in 1978 and is registered upon the official records of this Court, registration number 9141. He is therefore subject to the jurisdiction of this Court and its Grievance Committee in these disciplinary proceedings. This disciplinary action arises from the respondent's dealings with his clients Josephine and Steve Malinowski.
The following facts were established by stipulation and at the hearing before the Grievance Committee Hearing Board. In February 1983 Josephine Malinowski gave birth to a baby at University of Colorado Health Sciences Center (UCHSC or University Hospital). Mrs. Malinowski's roommate in the hospital had shingles, an illness related to chicken pox. One week later Mrs. Malinowski contracted chicken pox and sustained permanent scars. Because she had contracted chicken pox Mrs. Malinowski was advised not to care for her new baby for two weeks, so her sister came to Colorado from New York to live with the family and care for the baby. The Malinowskis' other two children also contracted chicken pox. The hospital gave the baby a shot because it had been exposed to chicken pox; the shot may have made the infant sterile but no information was available to the panel in this regard.
Three months later Mrs. Malinowski retained Douglas Pooley to pursue a medical malpractice claim. She and Mr. Malinowski entered into a contingent fee agreement with Pooley. On December 12, 1983, the respondent sent a letter to the Administrator of University Hospital outlining the facts and requesting a response. On January 24, 1984, senior claim representative James Veretta notified the respondent that he was investigating the claim on behalf of St. Paul Property and Liability Insurance Company, the liability carrier for UCHSC. On April 16, 1984, the respondent wrote to Veretta, provided additional documents he had requested, and asked for copies of the records, which he later received. On July 10, 1984, Veretta advised the respondent by letter that he had obtained an opinion from an infectious disease expert and that on the basis of that opinion, the insurance carrier was denying liability on the part of UCHSC.
No other correspondence was had. The respondent did not forward copies of these letters to his clients, and he did not conduct any further investigation.
After receiving Veretta's letter denying liability the respondent spoke with his clients and told them he "would do some further checking." He concedes that he had no further significant contact with his clients from 1984 through April 1986. In April 1986 the Malinowskis were preparing to move to New York so they made numerous attempts to contact the respondent; he failed to return their calls. In May 1986 Mrs. Malinowski filed a request for investigation with the Grievance Committee.
Pooley's response to the request for investigation was that "after conducting the investigation, my enthusiasm for pursuing this case diminished greatly." His clients testified that Pooley never communicated to them that he intended not to pur
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