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People v. Phillip F. Malouff Jr.
Phillip Malouff is a solo practitioner in La Junta, Colorado. In July 2022, a client contacted Malouff to represent her in a quiet title action so she could sell a parcel of real estate. Malouff’s fee agreement called for a prepaid retainer of attorney’s fees but also provided that Malouff would collect the retainer from proceeds of the property’s sale. It also stated that any past-due fees, costs and charges would be secured by a lien against all assets of the client, including real property protected from adverse claims. The client never paid the retainer or any fees, and Malouff never attempted to enforce a lien. Malouff has since removed the “lien” language from his standard fee agreement.
Malouff prepared and mailed a draft complaint to the client, who was out of state. The client reviewed and signed the complaint but didn’t notarize it. She then mailed it back to Malouff. At the time, Malouff was also a notary public in Colorado. After reviewing the complaint with the client by telephone, he asked whether he could notarize it for her. But he wasn’t legally allowed to notarize documents remotely outside the signer’s presence, and he didn’t comply with the remote notary provisions applicable in Colorado. Even so, the client agreed, and Malouff notarized the document with the statement, “Subscribed and sworn to before me in the County of Otero, State of Colorado, this 27th day of July, 2022.” Malouff then filed the complaint.
In an answer, the opposing party called into question whether Malouff properly notarized the complaint. The opposing party also filed a complaint with the Notary Division of the Colorado Secretary of State, which opened an investigation. Soon thereafter, Malouff and the client fell out of contact. Malouff filed a reply on the client’s behalf but then withdrew from the matter. During the Secretary of State’s investigation, Malouff admitted that the client didn’t sign the complaint in his presence or in Otero County. He voluntarily resigned his notary license and admitted to violating Section 24-21-506 of the Colorado Revised Statutes, which provides that the signer must appear personally; Section 24-21-519, for failing to use his “official signature”; and Section 24-21-504(2), which prohibits a notary from performing a notarial act concerning a record in which the notary has a disqualifying interest. Malouff also agreed to be precluded from any future commission as a Colorado notary public. His agreements brought the Secretary of State’s action to a close.
The Presiding Disciplinary Judge approved Malouff’s amended stipulation to discipline and suspended him for six months, all to be stayed pending Malouff’s successful completion of a one-year conditional probation, effective March 8.
In late 2018, Jolein Harro successfully moved to appoint a special master in her client’s domestic relations case to obtain information regarding the client’s former spouse’s income, alleging in part that the opposing party hadn’t fully responded to discovery requests. Harro then failed to reply to opposing counsel’s draft nondisclosure agreement for almost two months. Later, she didn’t include any information in a status report detailing the specific documents that she believed were missing from the discovery requests.
In late October 2019, counsel filed opposing requests for attorney’s fees and costs from the discovery disputes, but Harro failed to provide any legal or factual basis for her request, and she responded to the opposing party’s motion 13 days after the deadline to do so.
The special master denied Harro’s motion, recommending Harro’s client pay $1,732.50 in attorney’s fees and costs to the opposing party and the client bear the cost for one of the special master’s reports. In 2020, the parties agreed to appoint the special master as arbitrator in the matter. Opposing counsel sent Harro a draft of the arbitration agreement in August 2020, but Harro didn’t communicate with him about the agreement until that November. Though Harro told opposing counsel at that time she would provide a revised agreement in a few days, she didn’t do so until July 2021.
In a separate matter, Harro failed to respond in writing to emails from a client requesting information and legal advice. Harro later withdrew from the client’s matter. Despite the client’s requests in May, July and August 2021 for an accounting, Harro didn’t send him a final bill until October 2021.
In a third matter, a client hired Harro’s law firm in February 2021 to appeal a permanent protection order. Harro and a legal associate filed a joint entry of appearance. The associate filed a notice of appeal and a notice to set an appeal bond. The presiding court set the appeal bond on March 17, 2021. Though a staff member at Harro’s firm sent the order via email to the client that day, neither Harro nor anyone else advised the client about the order, requested funds to pay the appeal bond or indicated the bond needed to be paid to proceed with the appeal.
Because the bond wasn’t paid, the appeal wasn’t perfected; the court dismissed the appeal for failure to prosecute on April 6, 2021. About three days later, Harro sent the client a copy of the order dismissing the appeal, but she didn’t provide any information about the dismissal until April 21, 2021, after the deadline to pay the appeal bond had lapsed. Meanwhile, on March 19, 2021, Harro told the client the associate working on his case had left the law firm. But the associate continued to perform work for the client for six days more.
In a fourth matter, Harro represented a client in a domestic relations case. Per the final orders in the case, the opposing party was to receive 30% of $33,566.11 that Harro had deposited in her trust account from the sale of the parties’ marital residence. In January 2022, the presiding court ordered that the funds be paid directly to the party. But Harro didn’t disburse any of the funds, and the party moved for contempt on March 8, 2022, seeking payment of his portion of the proceeds. Approximately three days later, Harro made a partial payment of $7,069.83 to the party.
Around that same time, she filed an affidavit of attorney’s fees and costs in the case even though the court hadn’t entered an order entitling her to those fees. Harro then moved to hold back $3,000 from the funds owed to the party to cover her fees and costs for a contempt motion she had filed against the party the previous December. But the court denied the motion after finding that Harro didn’t cite any legal authority to support her request.
The Presiding Disciplinary Judge approved Harro’s stipulation to discipline and suspended her for six months, with three months to be served and three months to be stayed upon Harro’s successful completion of a one-year conditional probation. The suspension takes effect April 12.