Court Opinions: Presiding Disciplinary Judge Opinions for August 2022

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People v. Benjamin J.H. Delanghe 

On Jan. 21, Benjamin Delanghe pleaded guilty in federal court to two counts of possession with the intent to distribute a controlled substance. The issue stemmed from two incidents in 2019 when a confidential source working with the Drug Enforcement Administration arranged to purchase cocaine from Delanghe. 

In March 2019, DEA agents provided the confidential source $3,000 and drove the confidential source to a location near Delanghe’s home. The agents watched the source enter Delanghe’s home during surveillance. The source used the funds to purchase from Delanghe two ounces of cocaine. DEA agents verified through laboratory testing and analysis that the net weight of the purchased cocaine was 55.4 grams. 

The next month, the confidential source purchased two ounces of cocaine from Delanghe with $2,700 provided by DEA agents while the agents conducted surveillance. Laboratory analysis confirmed the source had purchased cocaine, with a net weight of 55.5 grams. 

In Colorado, distribution or possession with intent to distribute 55.4 grams of cocaine is a level-two drug felony. 

The Presiding Disciplinary Judge approved Delanghe’s stipulation to discipline and suspended him for three years. The suspension, which takes into account significant mitigating factors, took effect on July 25. To be reinstated to the practice of law in Colorado, Delanghe must prove by clear and convincing evidence he has been rehabilitated, has complied with all disciplinary orders and rules and is fit to practice law. 

People v. Thai Soo Kim. 

Following the dissolution of Thai Soo Kim’s marriage, the domestic relations court entered final support orders requiring Kim to pay $1,086 per month in child support to his former spouse, beginning Feb. 1, 2020. On May 7, 2020, Kim’s former spouse moved to hold him in contempt, alleging that, at the time of filing, he had made only one $500 payment toward child support and that he was $3,844 behind. 

At the contempt hearing in October 2020, the district court found Kim willfully failed to comply with the support order. The court ordered Kim to continue to pay monthly child support as well as $892 per month for a period of twelve months and another $5,000 in attorney’s fees and costs. But between Feb. 1, 2020 and Nov. 12, 2021, Kim didn’t make any full payments toward child support and only made partial payments for nine months. 

The Presiding Disciplinary Judge approved Kim’s stipulation to discipline and suspended him for one year and one day, subject to the possibility of early reinstatement. The suspension took effect on July 21. 

People v. Michelle Ann Marker 

Michelle Marker agreed to represent an incarcerated client in defending against a motion to modify child support filed by the client’s former spouse. Marker says she spoke with the client about a $2,000 retainer, earned on an hourly basis, but the client believed Marker would charge her a $2,000 flat fee. Marker didn’t provide the client a fee agreement until six months later. The delay was due in part to the client’s concerns about receiving mail while incarcerated. In the fee agreement, Marker reserved the right to change her hourly rate without notice. 

The client’s parents mailed Marker a check. Marker negligently deposited the check in her operating account, which was overdrawn. By the time she deposited the check, she had earned only about a quarter of those funds. The following day, Marker deposited additional funds into her operating account; in a month’s time, however, her operating account was overdrawn once again. Marker earned the full retainer several months later. 

The client later asked Marker for accounting and invoices, which Marker had neglected to send monthly. Marker eventually sent the client an invoice with some charges the client disputed. Marker clarified with the client she didn’t intend to collect on all the charges listed. 

The Presiding Disciplinary Judge approved Marker’s stipulation to discipline and publicly censured her. The public censure, which took effect Aug. 2, carries conditions. 

People v. Michael Andrew Martin 

Michael Martin is the managing lawyer in the Denver office of a Utah-based law firm. A client who was charged with driving under the influence in Mesa County, Colorado, hired Martin for representation during only the pretrial phase of the client’s criminal case. On May 28, 2021, Martin and his client appeared remotely before the trial court, setting the matter for a pretrial conference on Sept. 10, 2021, and for trial on Sept. 14, 2021. 

In early August 2021, Martin booked a seven-day Caribbean cruise to begin on Sept. 5, 2021. Soon thereafter, Martin booked a second seven-day cruise to begin immediately after the first cruise on the same ship. His vacation was set to occur during the client’s trial. 

Twice in August 2021, the court issued separate orders indicating it was prepared to go forward with the trial. On Aug. 30, 2021, Martin moved to withdraw from the client’s matter, citing the client’s failure to meet his financial obligations. The court reserved ruling on Martin’s withdrawal motion, which was filed 15 days before trial. 

The court advised the parties it would address the withdrawal motion at the pretrial conference, granting the parties leave to appear virtually. On Sept. 2, 2021, the court again granted Martin leave to appear virtually. 

Neither Martin nor his client appeared at the pretrial conference Sept. 10, 2021. The court denied Martin’s motion to withdraw and maintained the scheduled trial date. On Sept. 12, 2021, Martin’s second cruise departed from Miami. On Sept. 14, 2021, the court called the client’s matter for trial. Martin’s ship was docked in Honduras on that date. Neither Martin nor his client appeared. The court issued a bench warrant for the client’s arrest due to his failure to appear. The court also issued an order directing Martin to show cause at an in-person hearing why he shouldn’t be held in contempt of court for failing to appear at the prehearing conference and at trial. 

Even though the court ordered Martin to appear at the show cause hearing in person, he appeared remotely. At the hearing, Martin apologized to the court and explained that he expected the motion to withdraw to be granted and the trial date to be vacated when his client didn’t appear at the pretrial conference. 

The Presiding Disciplinary Judge approved Martin’s stipulation to discipline and suspended him for 30 days, all to be stayed on Martin’s successful completion of a one-year period of conditional probation, effective Sept. 13. 

People v. Jerry Gene Percy

In April 2002, Jerry Percy was suspended in case number 02PDJ018 for advising clients while he was administratively suspended. Percy never sought reinstatement from his disciplinary suspension and has remained suspended since 2002. 

Even so, in 2014, two clients retained Percy to file a trademark application for the clients’ business. Percy never filed the trademark application, though he billed the clients and the clients paid him for that work. The clients also enlisted Percy to help them sell the business. 

In 2016, Percy negotiated a sale agreement between the clients and a buyer, the clients’ son. Percy encouraged the parties for the transaction to contact him separately if they had concerns about the transaction or his joint representation. The agreement was to go into effect in October 2016, and at that time, the parties to the transaction began to operate substantially in line with the agreement’s terms. But Percy didn’t finalize the sale documents, and he continued to discuss the transaction with the parties together and individually. Eventually, the parties’ relationships deteriorated, delaying the sale’s completion until March 2021. 

In 2020, a lawyer advised Percy that the lawyer represented the buyer in the transaction. The lawyer learned Percy was suspended. In December 2020, one of Percy’s clients confronted Percy about his disciplinary suspension. Percy told the client he would investigate the matter and let the client know. But Percy never informed the client he’d been suspended throughout the representation nor did he report back to the client after having been confronted. Percy continued to represent the clients and the business in connection with the transaction into 2021. 

The Presiding Disciplinary Judge approved Percy’s stipulation to discipline and suspended him for three years, effective July 29. To be reinstated to the practice of law in Colorado following his suspension period, Percy must petition the Presiding Disciplinary Judge and establish by clear and convincing evidence that he has been rehabilitated, has complied with all disciplinary orders and rules and is fit to practice law. 

People v. William Ellery Peters 

William Peters was retained by a client to litigate a business matter. In November 2020, Peters and the client entered into a contingency fee agreement providing Peters’ fee would be the greater of his hourly fee or 30% of the gross amount collected. The fee agreement didn’t include a disclosure of the nature of other types of fee agreements, the nature of specially awarded fees, or the potential for an award of costs and attorney’s fees to the opposing party, as then required under the rules of professional conduct. 

Peters filed a complaint on the client’s behalf in February 2021 and served disclosures in May 2021. Opposing counsel notified Peters of certain deficiencies in the disclosures and asked him to produce documents. When Peters didn’t, opposing counsel moved to compel mandatory disclosures and for sanctions and Peters didn’t timely file a response. 

In early June 2021, the court entered a delay prevention order referencing its pretrial order, which gave Peters 42 days to set the matter for trial. Because Peters hadn’t yet set the case for trial, the court warned Peters it would dismiss the case without prejudice unless Peters set the case. But Peters again failed to set the case for trial by the court’s deadline. In mid-June 2021, opposing counsel moved to dismiss the complaint for failure to prosecute. 

On June 30, 2021, the court granted opposing counsel’s motions to compel and for sanctions, directing Peters to correct deficiencies in the mandatory disclosures. Peters didn’t notify his client of that order. The client later emailed Peters and asked him to withdraw from the case. In response, Peters emailed the client a letter attaching a notification certificate advising the court of Peters’ withdrawal from the case. Peters claims he didn’t move to withdraw because he was unfamiliar with the local civil rules and didn’t know he needed leave of court to withdraw. 

In early July 2021, the court denied Peters’ notice of withdrawal. Peters then filed an untimely response to the motion to dismiss and an untimely certificate of compliance with mandatory disclosures. The same day, opposing counsel filed an attorney’s fees affidavit. Peters didn’t respond. Instead, he moved to withdraw. The court later awarded attorney’s fees against Peters’ client, dismissed the case without prejudice, and denied the motion to withdraw as moot. 

The Presiding Disciplinary Judge approved Peters’ stipulation to discipline and suspended him for one year, with 60 days to be served and the remainder to be stayed pending Peters’ successful completion of an 18-month period of conditional probation. The suspension takes effect on Aug. 24. 

People v. Mitchell Dean Smith 

In May 2020, a client hired Mitchell Smith to represent her in a domestic relations matter. The client paid Smith a retainer, but Smith didn’t endorse the check until November 2020. The check cleared into Smith’s operating account and he never put the retainer into his trust account. Per Smith’s billing statement, he failed to safeguard in his trust account some portion of the client’s funds. 

Throughout the representation, Smith had very little communication with the client. He regularly failed to respond to her requests for updates and for information about upcoming events, and his infrequent replies were largely unresponsive. Smith failed to inform the client about major developments in her case. 

Smith also failed to diligently work on his client’s matter. He failed to prepare for or participate in mediation. He never prepared, filed or provided opposing counsel with his client’s sworn financial statement. Nor did Smith provide his client with the opposing party’s mandatory financial disclosures. He failed to prepare for his client’s permanent orders hearing and never gave his client the final orders, though she asked for them on at least two occasions. 

In early 2021, a dispute about dependency tax exemptions arose. Smith failed to communicate with opposing counsel about the dispute, and opposing counsel filed an emergency motion to enforce the permanent orders. Smith never read the motion and didn’t send it to his client. The client later filed an amended tax return, but Smith failed to provide a copy to opposing counsel. Smith didn’t appear for the hearing on the motion and never read the order issued after the hearing, which directed the client to respond to opposing counsel’s request for sanctions. When the client failed to submit a response, the court entered a sanction of more than $2,000 against her. The client confronted Smith about the sanction, and Smith promised to investigate, but he never responded again. Smith later refused to participate in the disciplinary process. 

The Presiding Disciplinary Judge approved Smith’s stipulation to discipline and suspended him for one year and one day, effective July 28. To be reinstated to the practice of law in Colorado, Smith must prove by clear and convincing evidence he has been rehabilitated, has complied with all disciplinary orders and rules and is fit to practice law. 

People v. Mark Duncan Thompson 

Mark Thompson’s discipline arises from his guilty plea to an amended count of disorderly conduct. The plea was based on a heated verbal confrontation with his 22-year-old stepson in front of and inside Thompson’s home. At one point during the confrontation, Thompson recklessly displayed a firearm, alarming his stepson. His stepson left the house and called 911. At the time of the offense, Thompson was the sitting Chief Judge for Colorado’s 5th Judicial District. The district attorney’s office and the judges for the district recused themselves and arranged for the appointment of a special prosecutor and judge. 

Following his guilty plea, Thompson was sentenced to one year of unsupervised probation with standard probationary terms as well as the following special terms and conditions: he was required to remain in the anger management treatment he’d been undergoing since the incident and provide a release to his current therapist and any successor or other treatment provider authorizing full disclosure of information to the special prosecutor and the court; he was required to satisfactorily complete requirements of disciplinary authorities resulting from his conviction; and he was required to timely provide to the special prosecutor and the judge proof he had completed the probationary terms and conditions. 

The Presiding Disciplinary Judge approved Thompson’s stipulation to discipline and suspended him for six months, all stayed pending Thompson’s successful completion of a one-year period of probation. Thompson’s sanction, which takes into account significant mitigating factors, took effect on July 26. The order approving the stipulation sanctions Thompson in his capacity as a Colorado-licensed lawyer. The Colorado Commission on Judicial Discipline, which maintains concurrent jurisdiction, is charged with disciplining Thompson in his capacity as a judicial officer.

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