SUPREME COURT, STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE FILED

BEFORE THE PRESIDING DISCIPLINARY JUDGE
1560 Broadway, Suite 675 DEC 09 2009
Denver, Colorado 80202 PRESIDING DISCIPLINARY JUDGE
SUPREME COURT OF COLORADO
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
... COURT USE ONLY ...
Respondent:
KATHLEEN MARY SCHADEN Case Number:
Nancy L. Cohen, #11846 09 PDJ 106
Chief Deputy Regulation Counsel
Attorney for Complainant
1560 Broadway, Suite 1800
Denver, Colorado 80202
Telephone: (303) 866-6400 ext. 6577
Fax No.: (303) 893-5302
David B. Harrison, #12309
Attorney for Respondent
2305 Broadway
Boulder, CO 80304
Telephone: (303) 449-2830
STIPULATION, AGREEMENT AND AFFIDAVIT CONTAINING THE
RESPONDENT'S CONDITIONAL ADMISSION OF MISCONDUCT On this ~ rJ day of )eC::EM(J,r?e.. ,2009, Nancy L. Cohen, Chief

Deputy Regulation Counsel and attorney for the complainant, and Kathleen Mary Schaden, the respondent, who is represented by attorney David B. Harrison in these proceedings, enter into the following stipulation, agreement, and affidavit containing the respondent's conditional admission of misconduct (" stipulation") and submit the same to the Presiding Disciplinary Judge for his consideration.

RECOMMENDATION: 60-Day Served Suspension with the Requirement of a C.R.C.P. 2S1.29(c)-(e) Reinstatement Hearing Prior to Reinstatement.

1. The respondent has taken and subscribed the oath of admission,

was admitted to the bar of this court on May 2, 1988, and is registered as an attorney upon the official records of this court, registration no. 17371. The

respondent is subject to the jurisdiction of this court and the Presiding Disciplinary Judge in these proceedings.

2. The respondent enters into this stipulation freely and voluntarily.

No promises have been made concerning future consideration, punishment, or lenience in the above-referenced matter. It is the respondent's personal decision, and the respondent affirms there has been no coercion or other intimidating acts by any person or agency concerning this matter.

3. This matter has not become public under the operation of C.R.C.P.

251.31(c} as amended. However, the respondent specifically acknowledges that, if the Presiding Disciplinary Judge should decide to accept this stipulation, and impose the agreed-to discipline contained herein, then this stipulation and the discipline imposed will be matters of public record.

4. The respondent is familiar with the rules of the Colorado Supreme

Court regarding the procedure for discipline of attorneys and with the rights provided by those rules. The respondent acknowledges the right to a full and complete evidentiary hearing on the above-referenced complaint. At any such hearing, the respondent would have the right to be represented by counsel, present evidence, call witnesses, and cross-examine the witnesses presented by the complainant. At any such formal hearing, the complainant would have the burden of proof and would be required to prove the charges contained in the complaint with clear and convincing evidence. Nonetheless, having full knowledge of the right to such a formal hearing, the respondent waives that right.

5. The respondent and the complainant specifically waive the right to

a hearing pursuant to C.R.C.P. 251.22(c)(1}.

6. The respondent and the complainant stipulate to the following

facts and conclusions:

a. On December 24, 2008, the respondent was cited by the

Boulder Police Department with Driving Under the Influence ("DUI"), DUI Per Se, Careless Driving, and DUI, Second Offense. Respondent was at a luncheon with her sister and states she drank approximately three margaritas. She then drove home and hit a sign post before arriving at her home. A witness to the accident followed respondent to her home. The respondent failed the roadside sobriety test. The respondent's BAC was .181.

b. On March 12, 2009, the respondent pled guilty to DWAI. On

March 17, 2009, respondent, through counsel, reported her conviction to the Office of Attorney Regulation Counsel.

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c. The respondent was sentenced to forty-five days of home

detention, forty-eight hours of useful public service, no alcohol use, monitored sobriety, an alcohol evaluation and treatment as recommended by the evaluator, payment of costs and no new crimes. Respondent was placed on twenty-four months probation.

d. Respondent had an alcohol conviction in 2001. Between

2001 and December 24, 2008, respondent had no alcohol related criminal offenses.

e. The respondent has been in treatment with Dr. Susan Oliver

since approximately 1999. Her diagnosis includes post-traumatic stress disorder, major depression, anxiety disorder with panic, and alcohol dependence, resulting from multiple sexual assaults as a child.

f. In 2001 when respondent had a DUI, she continued

treatment with Dr. Oliver and received treatment for her alcoholism with Dr. John Gilburt. The respondent quit drinking on her own and did not seek outside support of AA.

g. While on home detention, respondent began to re-experience

symptoms of PfSD, including deep depression, chronic insomnia and panic. It was difficult for the respondent to meet on a weekly basis with Dr. Oliver so it was difficult for Dr. Oliver to monitor exactly how the respondent was functioning. In mid-May, 2009, the respondent admitted to Dr. Oliver that she used cocaine to help alleviate symptoms of her PfSD. The respondent's medications were not helpful in alleviating her PTSD symptoms. The respondent used cocaine approximately ten times.

h. Based on Dr. Oliver's recommendation and with permission

of the court, the respondent admitted herself to an inpatient alcohol rehabilitation center in the Los Angeles area. According to Dr. Oliver, the respondent gained significant insight regarding the relationship between her trauma and alcohol dependence: Respondent also gained insight about the need to follow AA's principles.

i. Respondent told her probation officer about using cocaine

and her belief that she needed to attend an inpatient program. Respondent's probation officer reports that her breathalyzer tests have been negative for alcohol and that she is compliant with the terms of her probation.

J. Respondent has not been practicing law for over eight years.

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k. Respondent does not want to have any conditions imposed

on her. This is why the parties are entering into this stipulation.

1. Through the respondent's conduct described above, the

respondent has engaged in conduct constituting grounds for the imposition of discipline pursuant to C.R.C.P. 251.5. The respondent has also violated Colo. RPC 8.4(b) (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).

7. Pursuant to C.R.C.P. 251.32, the respondent agrees to pay

administrative costs in the amount of $91.00, and lab report copy fee in the sum of $2.00, incurred in conjunction with this matter within thirty (30) days after acceptance of the stipulation by the Presiding Disciplinary Judge, made payable to Colorado Supreme Court Attorney Regulation Offices. See Exhibit 1. The respondent agrees that statutory interest shall accrue from the date that the Presiding Disciplinary Judge accepts this stipulation. Should the respondent fail to make payment of the aforementioned costs and interest within (30) days, the respondent specifically agrees to be responsible for all additional costs and expenses, such as reasonable attorney fees and costs of collection incurred by the complainant in collecting the above stated amount. The complainant may amend the amount of the judgment for the additional costs and expenses by providing a motion and bill of costs to the Presiding Disciplinary Judge, which identifies this paragraph of the stipulation and the respondent's default on the payment.

8. This stipulation is premised and conditioned upon acceptance of

the same by the Presiding Disciplinary Judge. If for any reason the stipulation is not accepted without changes or modification, then the admissions, confessions, and stipulations made by the respondent will be of no effect. Either party will have the opportunity to accept or reject any modification. If either party rejects the modification, then the parties shall be entitled to a full evidentiary hearing; and no confession, stipulation, or other statement made by the respondent in conjunction with this offer to accept discipline of sixty days served suspension may be subsequently used. If the stipulation is rejected, then the matter will be heard and considered pursuant to C.R.C.P. 251.18.

9. There are no complaining witnesses.

10. Respondent's counsel, David B. Harrison, hereby authorizes the respondent, Kathleen Marie Schaden, and the non-lawyer individual in the Office of Attorney Regulation Counsel who is responsible for monitoring the conditions set forth herein to communicate directly concerning scheduling and administrative issues or questions. Respondent's counsel will be contacted

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concerning any substantive issue that may arise.

PRIOR DISCIPLINE

11. None.

ANALYSIS OF DISCIPLINE

12. Pursuant to American Bar Association Standards for Imposing Lawyer Sanctions 1991 and Supp. 1992 ("ABA Standards"), §3.0, the Court should consider the following factors generally:

a. The duty violated: The respondent violated her duty to

comply with the laws of the State of Colorado.

b. The lawyer's mental state: knowing

c. The actual or potential injury caused by the lawyer's

misconduct: By failing to comply with the criminal laws of the State of Colorado, the respondent caused actual harm to the reputation of the legal profession. By driving under the influence, the respondent could have harmed himself or members of the public

d. The existence of aggravating or mitigating factors: Factors in

aggravation which are present include: a pattern of misconduct and illegal conduct, ABA Standards §9.22(c) and (k). Factors in mitigation include: absence of prior disciplinary record; full and free disclosure to disciplinary board or cooperative attitude towards proceedings; imposition of other penalties or sanctions; and remorse, ABA Standards §9.32(a), (e), (k) and (1).

13. Pursuant to ABA Standard § §S.12, suspension is generally appropriate when a lawyer knowingly engages in criminal conduct that does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.I.

14. The Supreme Court has held "A conviction for driving under the influence of intoxicating liquor adversely reflects on the attorney respondent's fitness to practice law." See People v. Rotenberg, 911 P.2d 642, 643 (Colo.

1 Standard 5.11 states, "Disbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice."

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1996).

15. Other cases that involve drinking and driving have resulted in public censure to stayed suspension. See People v Coulter) 08PDJ078 (2008) and People v. McKinney) 09PDJ097 (2009). In these cases the respondents were willing to submit to conditions to maintain their sobriety and they did not use an illegal substance.

16. Considering all of the factors described above, as applied to this case, a 60 day served suspension with the requirement of a reinstatement hearing in accordance with C.R.C.P. 251.29(c)-(e) is an appropriate sanction.

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RECOMMENDATION FOR AND CONSENT TO DISCIPLINE

Based on the foregoing, the parties hereto recommend that a 60-day served suspension with the requirement of a reinstatement hearing, be imposed upon the respondent. The respondent consents to the imposition of said discipline. The parties request that the Presiding Disciplinary Judge order that the effective date of such discipline be immediate.

Kathleen Mary Schaden, the respondent; David B. Harrison, attorney for the respondent; and Nancy L. Cohen, attorney for the complainant, acknowledge by signing this document that they have read and reviewed the above and request the Presiding Disciplin Judge to a cept the stipulation as set forth above.

Kathleen Mary Sh 9400 Owl Lane Boulder, CO 80301 Telephone: (303) 885-4445

STATE OF COLORADO)

\ ) ss.

COUNTY OF ~v..\o..-e_o( )

~ ~ Subscribed and sworn to before me this 3ui- day

_ _,_ ~==£;"",:r<\<L_'__'__"bex:-....,,_,,,---- , 2009, by Kathleen Mary Schaden, respondent.

of

Witness my hand and official seal.

My commission expires: _!.p__j i5~~ ~~~~~==~~~~~~~~~ Notary Public

I/Lgte{L

Chief Deputy Regulation Counsel 1560 Broadway, Suite 1800 Denver, Colorado 80202 Telephone: (303) 866-6400, x6577 Attorney for Complainant

David B. Harrison

2305 Broadway

Boulder, CO 80304 Telephone: (303) 449-2830 Attorney for Respondent

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9/29/2009 10/30/2009

Statement of Costs

Kathleen M. Schaden

09-00951

Lab Report Copies Administrative Fee

2.00 91.00

Total Due

$ 93.00

• •

'-:t,.' . ;809/765.2655 www.questdiagnostics.com

.~Quest _ t .\f;tl DiagnoStiC~

September 29. 2009.l

Office of Attorney Regulation Counsel 1560 Broadway Ste. # 1800

Denver, CO 80202

RE: Kathleen Mary Sehadem ,

Dear Nancy L. Cohen:

Pursuant to your request received by Quest Diagnostics Rocky Mountain Business Unit, please find enclosed the lab records you requested for your client. The enclosed records do not include records that are privileged, confidential or proprietary.

Please send a check for $2." ($1.00 per lab report) for the photocopying charges to:

Quest Diagnostics, Incorporated 695 South Broadway

Denver. CO 80209

Attn: Compliance

Our Tax ill is 33-0363116 should you need this information for your records.

Please call me if you have any questions or concerns .

. V~NE~i'i~

Angel~.~~

Billing Administrative Assistant Quest Diagnostics Incorporated Rocky Mountain Business Unit 303-899-6257

303-899-6133 (fax)

SUPREME COURT, STATE OF COLORADO
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
1560 BROADWAY, SUITE 675
DENVER, CO 80202
Complainant: Case Number:
THE PEOPLE OF THE STATE OF COLORADO, 09PDJI06
Respondent:
KATHLEEN MARY SCHADEN.
ORDER APPROVING CONDITIONAL ADMISSION OF MISCONDUCT
AND IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.22 This matter is before the Presiding Disciplinary Judge ("the Court") on a "Stipulation, Agreement and Affidavit Containing the Respondent's Conditional Admission of Misconduct" filed by Nancy L. Cohen, Office of Attorney Regulation Counsel ("the People"), and David B. Harrison on behalf of Kathleen Mary Schaden ("Respondent") on December 9, 2009. In this stipulation, the parties waive their right to a hearing under C.R.C.P. 251.22(c).

The Court, having reviewed the case file and the stipulation, and being fully advised of the issues presented, ORDERS the following:

1. The stipulation is accepted and approved.

2. KATHLEEN MARY SCHADEN, Attorney Registration No. 17371, is SUSPENDED from the practice of law for a period of SIXTY (60) DAYS, with the requirement of reinstatement proceedings pursuant to C.R.C.P. 251.29(c)-(e).

3. Pursuant to C.R.C.P. 251.32, Respondent shall pay costs incurred in conjunction with this matter in the amount of $93.00 within thirty (30) days of the date of this order. Costs are payable to the Colorado Supreme Court Attorney Regulation Offices. Statutory interest shall accrue from the date of this order. Should Respondent fail to make payment of the aforementioned costs and interest within thirty (30) days, Respondent shall be responsible for all additional costs and expenses, including reasonable attorney fees, incurred by the People in collecting the above-stated amount. The People may amend the amount of the judgment for additional costs and expenses by providing a motion and bill of costs to the Court.

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THIS ORDER IS ENTERED THE 16TH DAY OF DECEMBER, 2009. THE EFFECTIVE DATE OF THE SUSPENSION IS THE 16TH DAY OF DECEMBER, 2009.

WI(f{~~

PRESIDING DISCIPLINARY JUDGE

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...

Counsel for Respondent David B. Harrison

2305 Broadway

Boulder, CO 80304

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Office of Attorney Regulation Counsel Nancy L. Cohen

1560 Broadway, Suite 1800 Denver, CO 80202

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American Bar Association c/o Nadine Cignoni

Office of Attorney Regulation Counsel 1560 Broadway, Suite 1800

Denver, CO 80202

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Assistant Executive Director 1560 Broadway, Suite 1820 Denver, CO 80202

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