People v. Emmert
1983 Colo. LEXIS 591, 676 P.2d 672 (1983)
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Rule of Law:
An attorney who neglects a client's case, fails to inform the client of inaction, prejudicing their claim, and subsequently fails to cooperate with a grievance committee investigation, violates professional conduct rules and is subject to disciplinary suspension.
Facts:
- In November 1976, John D. Hiett conferred with David B. Emmert, an attorney, about obtaining title to property he believed was his but had been awarded to his wife in a divorce decree, paying Emmert a $50 retainer.
- Emmert contacted the wife’s attorney, who informed him that the wife would not relinquish her interest in the property unless she received $650.
- Hiett subsequently telephoned Emmert, instructing him that he would not pay his former wife for the quitclaim deed and asking Emmert to proceed with court action.
- In December 1976, Emmert sent Hiett a Motion to Set Aside Default, requested him to sign it, and asked for an additional retainer fee of $250.
- In March 1977, Hiett sent Emmert $100 of the requested additional retainer and agreed to pay the remaining balance at the end of the case.
- Between September 1978 and February 1981, Hiett telephoned Emmert on at least seventeen occasions to inquire about the progress of the case, and Emmert consistently promised to proceed.
- On February 11, 1981, Emmert advised Hiett to abandon his attempt to recover the property, stating he had no chance of success, and offered to refund fees, but Hiett refused this advice and insisted he still wanted the property.
- Emmert never filed the Motion to Set Aside Default that Hiett had signed and returned, nor did he advise Hiett that he had failed to do so.
Procedural Posture:
- John D. Hiett filed an informal complaint with the Grievance Committee in April 1981.
- The Grievance Committee's investigative counsel sent a letter to David B. Emmert in June 1981, advising him of an investigation and that failure to cooperate could result in discipline.
- A formal complaint was subsequently filed with the Supreme Court Grievance Committee, charging Emmert with violations of C.R.C.P. 241.6; DR 1-102(A)(1), (4) and (6); DR 6-101(A)(3); DR 7-101(A)(2) and (3); and DR 9-102.
- Emmert filed an Answer denying fault and claimed Hiett had abandoned his case by failing to pay reasonable attorney fees.
- A Hearing Board considered the evidence and made findings and conclusions, determining that the allegations of the formal complaint had been proved by clear and convincing evidence.
- The Hearing Board concluded that Emmert's conduct violated DR 7-101(A)(3) and C.R.C.P. 241.6(7).
- The Hearing Board recommended that Emmert be suspended from the practice of law for one year and one day and be reinstated only after demonstrating his fitness to practice law, considering his prior disciplinary history.
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Issue:
Does an attorney's failure to diligently pursue a client's case, to keep the client informed, to avoid prejudicing the client's rights, and to cooperate with disciplinary investigations constitute professional misconduct warranting suspension from the practice of law?
Opinions:
Majority - ROVIRA, Justice
Yes, an attorney's failure to diligently pursue a client's case, to keep the client informed, to avoid prejudicing the client's rights, and to cooperate with disciplinary investigations constitutes professional misconduct warranting suspension from the practice of law. The Court found by clear and convincing evidence that Emmert neglected to perform the legal services for which he contracted, causing harm to his client, Hiett. Emmert continued to assure Hiett that he would pursue the claim in court, but he did nothing, never filing the motion Hiett had signed. This inaction denied Hiett’s right to assert his claim and prejudiced his client’s chances of regaining his property, thereby violating DR 7-101(A)(3) which prohibits a lawyer from prejudicing or damaging a client during the professional relationship. Furthermore, Emmert failed to respond to the informal complaint and cooperate with the Grievance Committee’s investigation, a violation of C.R.C.P. 241.6(7). The Court emphasized that the public has a right to expect discipline for lawyers demonstrating professional misconduct and a lack of concern for their client’s interests, especially in light of Emmert's prior disciplinary history.
Analysis:
This case underscores the critical importance of attorney diligence, communication with clients, and cooperation with disciplinary bodies, reinforcing that neglecting a client's case, particularly when coupled with misrepresentations about progress and a failure to file essential documents, constitutes serious professional misconduct. The emphasis on an attorney's obligation to avoid prejudicing a client's rights and to transparently communicate inaction establishes a strong precedent for holding lawyers accountable for both active and passive failures in representation. The consideration of prior disciplinary actions also highlights the escalating consequences for repeat offenders, thereby ensuring the integrity of the legal profession.
