SUPREME COURT, STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE FILED
THE PRESIDING DISCIPLINARY JUDGE DEC 02 2009
1560 Broadway, Suite 675
Denver, Colorado 80202 iPRFSIDING DISCIPLINARY JUDGE
§UPREMECOURTOFCOLORADO
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
.. COURT USE ONLY ..
Respondent:

ROBERT C. CAIN Case Number: 09SA0334
Margaret B. Funk, #24560 09PDJ087
Assistant Regulation Counsel
John S. Gleason, #15011
Regulation Counsel
Attorneys for Complainant
1560 Broadway, Suite 1800
Denver, Colorado 80202
Telephone: (303) 866-6400, ext. 6593
Fax No.: (303) 893-5302
Email: m.funk@csc.state.co.us

COMPLAINT THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

Jurisdiction

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on May 14, 2002, and is registered upon the official records of this court, registration no. 33758. He is accordingly subject to the jurisdiction of this court. The respondent's registered business address is 3755 S. Locust Street, Suite 118, Denver, Colorado 80222 and his registered home address is 8876 E. Nichols Court, Centennial, Colorado 80112.

General Allegations

2. On January 24, 2007, La Don Smith was in a motor vehicle accident in Denver, Colorado. As a result, Smith had pain in his neck and back. The other party to the accident, Steve Wyatt, received a ticket for running a stop sign.

3. Smith's physician referred him to respondent.

4. On February 15, 2007, Smith met with respondent. Smith executed a contingency fee agreement with respondent. Thus, an attorney client relationship was formed, thereby forming an obligation to perform the agreedupon services. By agreeing to perform the requested services, the respondent inherently represented that he would provide the services in accordance with the Colorado Rules of Professional Conduct.

5. On March 12, 2007, the insurance company sent Smith a vehicle claim in the amount of $1,923.56. Smith did receive these funds.

6. On April 26, 2007, the other driver, Wyatt, was found not guilty of running the stop sign.

7. On June 12, 2007, Smith sold an assignment of his anticipated settlement proceeds to a company entitled Plaintiff Support Services in the amount of $2,000.00. This assignment, also referred to as a "loan," was to be paid from the settlement proceeds. Respondent was aware of the loan and of his obligation to immediately pay Plaintiff Support Services from any settlement proceeds.

B. In the summer of 2007, Smith attempted contact with respondent on several occasions, but was unsuccessful.

9. Smith contacted respondent on October B, 200B. Smith inquired as to the status of his case. Respondent told Smith only that he should come in the following week to discuss the case. As of that date in October 2008, Smith was unaware that respondent had settled his case involving Wyatt.

10. Concerned, Smith contacted Farmers Insurance Company ("Farmers") directly and was informed that his case had settled for $11,000.00. In fact, the settlement check had been sent to respondent on June 24, 2008 and was deposited into an account controlled by respondent on July 17, 2008.

11. Once Smith learned from Farmers that his case had been settled, he made an appointment to meet with respondent. They met on November 21, 2008. Smith's mother was present for this meeting. Respondent refused to show Smith and his mother any paperwork relating to the settlement of Smith's

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case. Respondent told Smith that he was not getting any money and respondent acted very agitated.

12. Smith did not authorize a settlement, did not execute the settlement agreement and did not endorse the settlement check issued by Farmers payable to him and respondent. Smith asserts that his signatures on the settlement agreement and on the check are forgeries.

13. On November 24, 2008, Smith contacted another attorney, Don

Lozow. Lozow sent respondent two letters requesting explanations of what

happened in Smith's case and with his settlement proceeds.

14. As noted in paperwork produced by respondent to Lozow, Smith's case was settled for $11,000 on July 10, 2008, via a settlement agreement, entitled "General Release", allegedly executed by Smith on that. same date. Accordingly, Farmers sent respondent a check for that amount made payable to both respondent and Smith. Respondent deposited that check into his firm bank account.

15. Out of the $11,000, respondent paid Smith's physician, Dr.

Eldridge, $5,500.00 with check #5728, dated October 15, 2008. Respondent also paid Plaintiff Support Services $3,100.00 with check #5750, dated December 15, 2008, to satisfy Smith's loan. The December 2008 date on this check is approximately six months after the case was settled and almost a month after Smith hired new counsel (Lozow) and that new counsel sent his first letter of inquiry. Further, the settlement statement has "refused" written in on the line for Smith's signature.

16. Respondent kept all of the remammg funds from Smith's settlement for himself as payment for attorney's fees. Smith received nothing from the settlement proceeds.

17. Further, as noted above, the settlement agreement, entitled "General Release", is dated July 10, 2008. The settlement agreement has an alleged signature by Smith. The signature is notarized. Respondent was the notary, however, that purportedly "witnessed" Smith's signature.

18. Bmith states he did not execute the settlement agreement or the check that was forward by Farmers to respondent to satisfy the settlement. As a result, Smith filed a criminal complaint against respondent alleging forgery of the General Release and corresponding settlement check. After a review of both documents and samples of Smith's handwriting, Kent Prose, an investigator with the Denver District Attorney's Office, determined "it is highly probable that LaDon Smith did not sign the General Release" and "there were indications that LaDon Smith did not endorse the check".

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19. Based on Prose's conclusions and the facts alleged by Smith as outlined in Investigator Teresa Wertch's affidavit in support of arrest warrant, on August 21, 2009, respondent was charged with one count of forgery (FS) in Denver County, Case No. 09CR04086, in violation of C.R.S. §18-S-102(1)(c). That charge is still pending.

CLAIM I

(It Is Professional Misconduct for a Lawyer to Commit a Criminal Act that Reflects Adversely on the Lawyer's Honesty, Trustworthiness, or Fitness as a Lawyer in Other Respects - Colo. RPC 8.4(b) and C.R.C.P. 2S1.S(b))

20. Paragraphs 1 through 19 are incorporated herein.

21. Colo. RPC 8.4(b) provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.

22. C.R.C.P. 251.5(b) provides an attorney engages in misconduct by committing any act or omission which violates the criminal laws of the State of Colorado.

23. The respondent engaged in criminal conduct by committing felony forgery. These criminal acts in violation of C.R.S. §18-5-102(1)(c) reflect adversely on the respondent's fitness in all other respects.

24. By such conduct, the respondent violated Colo. RPC 8.4(b) and violates C.R.C.P. 251.5(b).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

[A Lawyer Shall Not Engage In Conduct Involving Dishonesty, Fraud, Deceit Or MisrepresentatioD.(Knowing Conversion)- Colo. RPC 8.4(c)]

25. Paragraphs 1 through 19 are incorporated herein.

26. Colo. RPC 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

27. The respondent violated Rule 8.4(c). by engaging in criminal conduct by committing felony forgery and by converting his client's legal claim against another to secure settlement funds for himself.

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28. Respondent knew Smith's claim had value as he had helped Smith sell part of that value to Plaintiff Support Services.

29. Respondent settled Smith's claim without Smith's knowledge and without Smith's consent.

30. Respondent then forged Smith's signature on the settlement documents to secure the settlement proceeds, again, without Smith's knowledge or consent.

31. Respondent then forged Smith's name to the settlement check to secure the settlement funds in part for himself.

32. Respondent then distributed a portion of the settlement funds to himself for "attorney's fees," again, without Smith's knowledge or consent. Smith received no funds from the settlement proceeds.

33. By such conduct, the respondent violated Colo. RPC 8.4(c).

Claim III [Communications ~ Colo. RPC 1.4(a) and (b)]

34. Paragraphs 1 through 19 are incorporated herein.

35. Colo.

RPC

l.4{a)

provides

that

a

lawyer

shall:

(a) promptly inform the client of any decision or circumstance

with respect to which the client's informed consent, as defined in Rule 1.0{e), is required by these Rules;

(b) reasonably consult with the client about the means by which

the client's objectives are to be accomplished;

(c) keep the client reasonably informed about the status of the

matter;

(d) promptly comply with reasonable requests for information;

and

(e) consult with the client about any relevant limitation on the

lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

36. This respondent failed to comply with this duty of communication in the following respects:

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(a) by failing to discuss the $11,000 offer of settlement to his client;

(b) by failing to advise his client of his acceptance of the $11,000 offer of settlement and the possible legal effects of doing so;

(c) by failing· to inform the client that his claims against Farmers' insured had been permanently released and his lawsuit was dismissed;

(d) by failing to maintain minimum communications with the client throughout the course of the representation;

(e) by failing to promptly inform the client of any decision or circumstances with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(f) by failing to reasonably consult with the client about. the means by which the client's objectives are to be accomplished; and

(g) by failing to consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

Each of these failures to communicate adequately with the client constitutes a separate violation of Colo. RPC 1.4(a) as do all of them together.

37. The respondent knew or should have known that he had failed to communicate adequately with his/her client over an extended period of months.

38. The respondent's pattern and practice of failing to communicate with the client caused serious or potentially serious injury to the client.

39. Colo. RPC 1.4(b} provides that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

40. The respondent failed to explain to the client the matter in which the client was involved to the extent reasonably necessary to permit the client to make informed decisions in the following respects:

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(h) by failing to explain sufficiently the client's legal rights and obligations in the settlement process, and explain the practical implications therein;

(i) and by failing to inform the client fully and promptly of material developments in the matter to permit the client to make informed decisions regarding the representation.

Each of these failures to explain constitutes a separate violation of Colo.

RPC 1.4(b) as do both of them together.

41. The respondent knew or should have known that he failed to adequately explain the legal matter to the client over an extended period of months.

42. The respondent's pattern and practice of failing to explain these legal matters to the client caused serious or potentially serious injury to the client.

43. By such conduct, the respondent violated Colo. RPC 1.4(a) and (b).

WHEREFORE, the people pray that the respondent be found to have engaged in misconduct under C.R.C.P. 251.5 and the Colorado Rules of Professional Conduct as specified above; the respondent be appropriately disciplined for such misconduct; the respondent be required to return client files and/ or other client property; the respondent be required to take any other remedial action appropriate under the circumstances; and the respondent be assessed the costs of this proceeding.

DATED this Z.tl

Attorneys for Complainant

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