Court Opinions: Presiding Disciplinary Judge Opinions for July 2022

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

People v. George Robert Vahsholtz

In July 2019, George Vahsholtz was suspended in case number 19PDJ033 for one year and one day. Then, in April 2020, he was suspended for one year in case number 20PDJ017, to run concurrently with the suspension in case number 19PDJ033. Vahsholtz remains suspended and has yet to petition for reinstatement.

In July 2020, a former client of Vahsholtz contacted him about sealing a record in a criminal matter. Vahsholtz told the former client he was suspended from the practice of law, and the former client retained another lawyer. But Vahsholtz collected $3,000 from the former client and applied that money toward the fees of the former client’s new lawyer as the new lawyer billed them. Vahsholtz didn’t hold the former client’s money in trust. The former client’s new lawyer ultimately concluded there was no pathway forward, and Vahsholtz agreed. Vahsholtz eventually refunded $2,000 to the former client. The sum hadn’t been billed for work by lawyers on the former client’s case.

Later, Vahsholtz asked a prosecutor to look into his former client’s case. In September 2021, Vahsholtz left the former client a voicemail promising to contact a judge in the near future. A few weeks later, Vahsholtz left the former client another voicemail describing a conversation he had with a new district attorney and vowing to set the matter for a hearing if he didn’t get a satisfactory answer about the former client’s case from the new prosecutor. When the former client later asked for an update on setting a hearing, Vahsholtz responded, “October 29, get decision.” Vahsholtz admits he acted in a representative capacity when communicating with the district attorney and as reflected in Vahsholtz’s correspondence with his former client.

The Presiding Disciplinary Judge approved Vahsholtz’s stipulation to discipline and suspended him for three years, effective June 22. To be reinstated to the practice of law in Colorado, Vahsholtz must prove 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. Gabriel Nathan Schwartz

In August 2017, Gabriel Schwartz was assigned as a mentor to a law student. During lunch with a member of his law firm and the student, Schwartz made inappropriate statements of a sexual nature that upset the student, who reported that Schwartz commented on the physical attractiveness of his opposing counsel and joked about sex, rape and child pornography. Schwartz maintains that he was attempting to explain to the law student the type of clients she would represent as a criminal defense lawyer.

In 2017 and 2018, Schwartz supervised another law student through a law school mentorship program. During that time, Schwartz employed two paralegals with whom he engaged in ongoing sexual banter. The law student was uncomfortable with the banter and gave the paralegals copies of the rules of professional conduct discussing sexual harassment. 

One of the paralegals worked for Schwartz from 2016 to 2020. On one occasion during that time, Schwartz slapped the paralegal’s buttocks with his open hand. Schwartz did so after the paralegal had told him not to. The paralegal and another lawyer who had witnessed the conduct confronted Schwartz about the matter. Later, in another incident, Schwartz put his arm around the paralegal’s teenage child and told the child to come see him when she turned eighteen. The paralegal, extremely upset, sent an email to Schwartz, telling him to stop sexually harassing her. She also contacted the lawyer who had witnessed the earlier matter. The lawyer emailed Schwartz, describing Schwartz’s conduct during the previous six months that caused the lawyer concern, including unwanted physical contact.

The Presiding Disciplinary Judge approved Schwartz’s stipulation to discipline and suspended him for six months, effective Sept. 13. To be reinstated to the practice of law in Colorado, Schwartz must prove 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. Andrew Murphree Newcomb

In 2019, Andrew Newcomb joined a law firm and agreed to bring his clients from his solo practice to the law firm. Under Newcomb’s negotiated compensation plan, the law firm was to help manage all of Newcomb’s clients’ cases and receive a percentage of the net fees earned in the cases. 

In July 2019, Newcomb represented to the law firm’s malpractice insurance carrier that he was not providing professional services other than through the law firm. But until January 2020, Newcomb continued to represent clients through his solo practice, collecting fees that he didn’t split with the law firm as he was required to do under the compensation plan. During this time, Newcomb misrepresented to the law firm the status of the clients’ cases; for instance, he stated that he had fired clients whom he in fact continued to represent. A file audit revealed that Newcomb had systematically deleted client files from the law firm’s file share service. The law firm restored the deleted files and learned that Newcomb had settled two cases for clients whom Newcomb claimed he had fired and one case that Newcomb had falsely stated he had settled in 2019. All of the settlement checks had gone to Newcomb’s solo practice and were processed outside of the law firm’s trust accounts.

In January 2021, the law firm fired Newcomb in a recorded videoconference call. During the call, Newcomb falsely claimed that the law firm had all of his active cases from his solo practice and that there were no funds in his solo practice’s trust account. In fact, records from the trust account show that the account cleared thousands of dollars on a monthly basis, including more than $80,000 that cleared in the month after the law firm fired Newcomb.

The Presiding Disciplinary Judge approved Newcomb’s stipulation to discipline and suspended him for two years, effective Aug. 22, taking into account significant mitigating factors. To be reinstated to the practice of law in Colorado, Newcomb must prove 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. Nathan Bret Kennedy

Beginning in 2017, Nathan Kennedy litigated for two clients a case for unpaid wages against the clients’ former employer. The court closed the case in November 2018 after Kennedy failed to follow the court’s case management and delay reduction orders directing the parties to set a pretrial conference and jury trial. In February 2019, Kennedy moved to reopen the case. But Kennedy’s motion didn’t explain why he failed to comply with the two orders, and he never replied to the response opposing his motion. The court denied Kennedy’s motion the next month. In May 2019, one of Kennedy’s clients asked him for an update on the case, and Kennedy suggested they schedule a phone call. According to the client, it was Kennedy’s first communication with him since November 2018, before the case had been dismissed.

In another case, Kennedy represented a client at a criminal trial in May 2021. On the first day of the trial, Kennedy requested a mistrial, telling the judge that he could not effectively represent his client because he had not seen the prosecution’s exhibits before trial. But the prosecution had sent Kennedy its discovery in a compressed file in October 2020, and Kennedy had downloaded the file at least three times. The court declared a mistrial based on Kennedy’s ineffective assistance and reset the matter for a later date, stating in its minute order that the mistrial wasn’t the fault of the prosecution.

In a third matter, Kennedy agreed to represent two parents in a dependency and neglect case. Kennedy obtained informed, written consent from each parent, who waived the potential conflicts arising from the dual representation. Kennedy appeared on behalf of the parents at a temporary custody hearing. But the presiding magistrate ordered Kennedy couldn’t represent both parents, as representing both parents in a dependency and neglect case is prohibited dual representation.

The Presiding Disciplinary Judge approved Kennedy’s stipulation to discipline and suspended him for five months, effective June 22. As a condition of reinstatement to the practice of law in Colorado, Kennedy must pass ethics school and complete a self-assessment program during his period of suspension.

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