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In the Matter of Brenda Storey
The Colorado Supreme Court en banc unanimously affirmed in part and reversed in part a case involving an attorney and alleged violations concerning the Colorado Rules of Professional Conduct.
The attorney disciplinary proceeding comes from a domestic relations case. Although the CRPC at issue applies to all Colorado attorneys, the high court wrote the domestic relations context is important for understanding why the disciplinary hearing board reached its conclusion and why this court affirms those conclusions for the most part.
There are two provisions that are particular to domestic relations that are relevant according to the Supreme Court. First, parties to divorce proceedings cannot transfer, encumber, conceal or dispose of marital property unless it’s in the usual course of business or for necessities of life. The second provision at play recognizes parties to domestic relations cases owe to the court and each other an honest disclosure of all the facts that materially impact their rights and interests, while having a special obligation of candor.
Brenda Storey was accused of pressing her client to find cash to pay her legal bills by selling furniture and other marital property. Storey was also accused of accepting as payment appearing to be a refund check from the IRS which was made payable to both parties, while not advising her client the check should be disclosed. Storey was also accused of failing to comply with a court order for return of the funds distributed from the IRS check and not advising her client of the risks of selling marital property or using the undisclosed check to pay her fees.
The board found Storey violated multiple codes of conduct. The board suspended Storey’s license to practice law in Colorado for one year and one day.
Storey appealed and argued she didn’t violate any rules. The Supreme Court affirmed the board on everything but the claim Storey knowingly disobeyed an obligation set forth by the court — Rule 3.4(c).
The board concluded Storey violated 3.4(c) when she was accused of not returning the funds from the IRS check as directed by a court order. The Supreme Court disagreed stating the facts and legal arguments are confusing and there wasn’t clear and convincing evidence Storey knowingly disobeyed the court’s order.
The high court remanded the case concerning 3.4(c) back to the board and ruled it must reassess its sanction. It affirmed the other violations.
People in the Interest of A.C.
The Supreme Court en banc discharged a rule to show cause in a case involving reassessment evaluations.
The high court considered whether the Juvenile Justice Code authorizes a magistrate to order a juvenile, who was found incompetent to proceed, to undergo a reassessment evaluation as part of a restoration review or restoration hearing procedures under Colorado Revised Statute sections 19-2.5-704-706, with the goal of determining if the juvenile has been restored to competency.
Juvenile A.C. argues such an evaluation is prohibited citing case law in B.B.A.M. The high court held that case section 19-2.5-703(1) doesn’t authorize a juvenile court to order a second competency evaluation to help a court determine if a juvenile’s been restored to competency, adding the juvenile court should have had a restoration hearing or review instead.
In this case, the Supreme Court held the juvenile court does have the authority from 19-2.5-706(2) to order a reassessment evaluation after determining a juvenile remains incompetent and this type of evaluation is different from the second competency evaluation in B.B.A.M. From this, the high court discharged the rule to show cause and remanded the case for further proceedings.
Prosecutors had filed a petition in delinquency against A.C. which led to A.C.’s counsel moving for a competency evaluation, noting A.C. has ADHD. A magistrate granted the motion and John Edwards, Ph.D., who gave the competency evaluation, gave a diagnostic impression A.C. has ADHD.
Due to this evaluation Edwards concluded A.C. didn’t have the ability to understand the proceedings or assist in the defense, but the prognosis for restoring A.C. to competency was fair to good. The magistrate found A.C. was incompetent to proceed, stayed the proceedings and ordered the Colorado Department of Human Services to provide restorative services.
About six months later, the magistrate held a hearing to determine if A.C. had been restored to competency. The magistrate issued a written order stating it had limited information if A.C. was competent to proceed and ordered A.C. to take part in a reassessment evaluation. A.C. objected arguing the reassessment was equivalent to a second competency evaluation that is prohibited by B.B.A.M. The magistrate denied A.C.’s objection arguing the reassessment evaluation is distinct from a second competency evaluation and it’s permitted under B.B.A.M.
A.C. petitioned a district court to review the magistrate’s order and that court adopted it. A.C. filed a petition for a rule to show cause to the Supreme Court. The high court concluded the district court didn’t err in affirming the magistrate’s order and the rule to show cause is discharged.
Justices William Hood and Richard Gabriel dissented, arguing the majority usurped the legislative authority of the General Assembly, arguing the legislature has not authorized reassessment evaluations and B.B.A.M. prohibits them.