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:
THE PEOPLE OF THE STATE OF COLORADO Case Number:
IOPDJOO3
Respondent:
PATRICK D. BUTLER
DECISION AND ORDER DISMISSING COMPLAINT
PURSUANT TO C.R.C.P. 251.19(b)(l) On June 22, 2010, a Hearing Board composed of Maureen A. Cain and David M. Herrera, members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge ("PDJ"), held a one-day hearing pursuant to C.R.C.P. 251.18. Charles E. Mortimer, Jr., appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Craig L. Truman ("Truman") appeared on behalf of Patrick D. Butler ("Respondent"). The Hearing Board now issues the following "Decision and Order Dismissing Complaint Pursuant to C.R.C.P. 251. 19(b)(1)."

I. ISSUE AND SUMMARY

In 2004, Respondent received a private admonition from the Attorney Regulation Committee for unethical conduct. Yet in a 2009 application for a state court judgeship, Respondent represented that he had never been disciplined or sanctioned for a breach or possible breach of ethics or unprofessional conduct. Was Respondent's incorrect response made recklessly, thereby violating Colo. RPC 8.4(c), which prohibits conduct involving deceit or misrepresentation?

The Hearing Board concludes that Respondent's inaccurate response to the query, while unseemly and inept, was not the product of an intentional effort to mislead the Judicial Nominating Commission. Nor does the evidence clearly or convincingly evince a reckless disregard for the truth such that we can find it deceitful or dishonest. Accordingly, the Hearing Board dismisses the People's complaint.

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II. PROCEDURAL mSTORY

On January 4, 2010, the People filed a complaint, and Respondent filed an answer on January 15, 2010. The parties later filed a stipulation of facts on June 11, 2010. At the June 22, 2010, hearing, the Hearing Board heard testimony and the PDJ admitted the People's exhibits 1-91 and Respondent's exhibits A-C.

III. FINDINGS OF FACT AND RULE VIOLATIONS

The Hearing Board finds the following facts have been established by clear and convincing evidence.

Jurisdiction

Respondent took the oath of admission and was admitted to the Bar of the Colorado Supreme Court on May 26, 1988. He is registered upon the official records, Attorney Registration No. 17413, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings. Respondent's registered business address is 18th Judicial District, 7325 South Potomac Street, Centennial, Colorado 80112.

Respondent's Private Admonition

From 1988 to 2008, Respondent practiced law as a litigator in a private law firm, representing clients in both criminal and civil matters. On May 6, 2004, a formal complaint alleging misconduct by Respondent was filed with this Court in Case 04PDJ050.2 As in the pending matter, Truman represented Respondent in those proceedings. Mer negotiation, the parties agreed to dismiss the case and submit a settlement agreement to the Attorney Regulation Committee. 3 The parties also agreed Respondent would receive a private admonition for violating certain Rules of Professional Conduct. Under C.R.C.P. 251.6(d). a private admonition is a form of discipline.

On July 22, 2004, the formal proceeding against Respondent was dismissed,s and on September 11, 2004, the parties submitted to the Attorney Regulation Committee a "Stipulation, Agreement and Affidavit Containing Respondent's Conditional Admission of Misconduct." While Respondent has no independent recollection of doing so, he agrees he read and signed the stipulation document before a notary public on July 19, 2004.5

1 Respondent stipulated to admission of the People's exhibits 1-7. 2 See People's exhibit 3.

3 See Respondent's exhibit A & B. 4 See Respondent's exhibit C.

5 See People's exhibit 4.

2

Later, on September 14, 2004, Bethiah B. Crane, Vice Chair of the Attorney Regulation Committee, signed a letter imposing private discipline directed to Respondent.s The letter was mailed to Respondent's counsel, Truman. Respondent does not doubt Truman thoroughly explained to him the consequences of stipulating to a private admonttion.r Respondent also received and retained copies of the complaint, stipulation, and private admonition, all of which he stored in personal files at his law office.

As a condition of the private discipline, Respondent was expected to attend the ethics school sponsored by the Office of Attorney Regulation Counsel.s As required, Respondent satisfactortly completed ethics school.

Respondent's Application for District Court Judgeship

Respondent left private practice for the judiciary in April 2009, when he was appointed as magistrate for the 18th Judicial District. But Respondent aspired to judgeship at the district court level, and he set his sights on a position on the district court bench in Colorado's 20th Judicial District. On August 12, 2009, Respondent signed a certified application for the position. To answer the questions in the application, Respondent relied primarily on his recollection, although he also consulted Eclipse, the state court electronic register of actions, to respond to certain items.e Question 42 of the application

. inquired:

Have you ever been disciplined or sanctioned for a breach or possible breach of ethics or unprofessional conduct by the Supreme Court Grievance Committee, the Attorney Regulation Committee, the Presiding Disciplinary Judge, the Colorado Supreme Court, the Commission on Judicial Discipline (including a private letter of admonition, reprimand, or censure), or by any administrative agency or disciplinary committee? If so, please give detatls.w

In response to this query, Respondent answered, "NO."l1 When he formulated this answer, Respondent was unsure of the outcome of the 2004 disciplinary proceedings. Respondent recalled, however, receiving the dismissal of July 23,2004, from the PDJ, and he remembered his satisfactory attendance at the ethics school, which led him to assume that his case was considered dismissed so long as no other ethics matters arose.

6 See People's exhibit 5. 7 See People's exhibit 6. 8 See People's exhibit 5.

9 Respondent did not reference Eclipse to answer Question 42. 10 People's exhibit 1.

11 rd.

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Instead of consulting Eclipse, referencing his personal files, or discussing his proposed answer with Truman before answering Question 42, Respondent confirmed his understanding by accessing the Office of Attorney Regulation Counsel website to verify his status. The website indicated that Respondent had no public discipline; 12 failing to focus on the "public" nature of the discipline reported, Respondent interpreted these website results as comporting with his recollection that he had never been disciplined. Accordingly, Respondent "didn't guess about the answer," but rather was "certain the answer was correct," and thus he certified that the information he provided in his application was correct and cornplete.»

On August 31, 2009, Respondent appeared for an interview before the 20th Judicial Nominating Commission chaired by Colorado Supreme Court Justice Gregory J. Hobbs. As is customary, Justice Hobbs had prepared for the interviews by requesting from the Office of Attorney Regulation Counsel the disciplinary histories of every applicant interviewing with the Commission; the report that was generated revealed that Respondent's answer to Question 42 differed from the official disciplinary records. 14

Respondent's interview, which both Respondent and Justice Hobbs felt went well.is lasted approximately forty minutes. At the conclusion of the interview, however, Justice Hobbs asked Respondent whether he had ever been disciplined for an ethical breach or unprofessional conduct. Respondent answered in the negative. Justice Hobbs then presented Respondent with the disciplinary report generated by the Office of Attorney Regulation Counsel and requested an explanation for the disparity between Respondent's answer and the results of the disciplinary report. Justice Hobbs recalled Respondent was visibly startled by the question.is and Respondent remembered feeling stunned, embarrassed, and mortified that he could not recall the letter of discipltne. Respondent told Justice Hobbs he could not recall receiving the admonition, but he recounted the facts underlying the incident.

12 See People's exhibit 7. 13 See People's exhibit 1. 14 See People's exhibit 2.

15 See People's exhibits 8 & 9. In lieu of live testimony before the Hearing Board, the parties stipulated to a presentation of Justice Hobbs's videotaped deposition testimony.

16 rd.

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After a five-minute colloquy between Respondent and Justice Hobbs regarding the inconsistency, Respondent was dismissed from the interview. Respondent walked directly to the chambers of Judge Carol Glowinsky, a trusted friend, adviser, and his wife's ernployer.v Judge Glowinsky testified that Respondent entered her chambers looking shaken, pale, and upset, and he told her he had been "completely caught by surprise" by Justice Hobbs's line of questioning, since in his mind the 2004 disciplinary case had been dismissed. Judge Glowinsky observed Respondent was "crestfallen" because "this opportunity which meant an enormous amount to him had been undone through his own conduct. He couldn't get what he'd missed."

Meanwhile, Justice Hobbs brought the matter to the attention of the People, noting that "1 was concerned enough about a seemingly inconsistent response that 1 decided that 1 better write the letter that 1 did sit down and write the next day in which 1 indicated that there seemed to be alternative responses between not remembering and perhaps giving an explanation that he thought the matter was over with or had been expunged in some way. "18

Respondent testified at the hearing that he never intended to deceive or mislead the Judicial Nominating Commission, noting that he was aware the Commission had full access to the details of his disciplinary history. Respondent also agreed it was his duty as an attorney to be fully apprised of the meaning and consequences of his 2004 sanction, and he insisted that while he understood and took his sanction seriously, he simply did not remember it correctly. Respondent contends he made a good faith mistake in answering Question 42 incorrectly, which is neither violative of the Rules of Professional Conduct nor sanctionable.

The People, in contrast, infer from Respondent's conduct a casual attitude toward the truth that constitutes recklessness. They argue that Respondent was reckless not to have availed himself of resources-either Eclipse, his own personal files, or Truman-that were available to answer Question 42 thoroughly and completely, particularly given that he was applying to be a constitutionally appointed judge in the State of Colorado. And because Respondent completed his application recklessly. the People contend, Respondent violated Colo. RPC 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty.rs

17 Judge Glowinsky. a district court judge in Boulder County. hired Respondent's wife as a court reporter around 2007. Prior to that time. Respondent had appeared frequently in Judge Glowinsky's courtroom.

18 People's exhibits 8 & 9.

19 See People v. North, 964 P.2d 510, 512-13 (Colo. 1998] (concluding false statement must be made recklessly to violate Rules of Professional Conduct]; People v. Small, 962 P.2d 258, 260 (Colo. 1998) (noting a reckless state of mind is generally considered as equivalent to knowing for disciplinary purposes); People v. Rader, 822 P.2d 950, 953 [Colo. 1992) (finding an attorney's conduct may be so careless or reckless that it must be deemed to be knowing, and

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Ultimately, the Hearing Board is charged with making a finding regarding Respondent's state of mind when he answered Question 42, since this matter pivots on that determination. In so doing, we are cognizant of our responsibility to ensure the claim is established by clear and convincing evidence. 20 When examined through this prism, we find the People have not adduced clear and convincing evidence to show Respondent acted so recklessly in answering Question 42 that his conduct rose to the level of deceit or misrepresentation. Rather, because the evidence is in equipoise, the complaint has not been proved and must therefore be dtsmtssed.si

The Hearing Board reaches this conclusion after a searching examination of the facts presented. While it strains credulity that any attorney would simply forget a disciplinary sanction imposed on him, countervailing evidence suggests it may be otherwise in this case. For one, we are in part persuaded by Respondent's undisputed testimony that he was fully aware his disciplinary history would be available to the members of the Judicial Nominating Commission. Given this testimony, it is illogical to suppose Respondent would have either intentionally made a false statement or recklessly made such a representation with a conscious indifference to the truth: Respondent would certainly have been aware that such an approach would be tantamount to selfsabotage.

We are also swayed in part by Judge Glowinsky's contemporaneous observation of Respondent's demeanor immediately following his interview. Judge Glowinsky testified that Respondent appeared shaken and upset, and he explained to her with candor what had transpired in the interview, even though he had never before disclosed to her the 2004 disciplinary proceeding brought against him.22 Respondent's behavior, as described by Judge Glowinsky, strikes us as consistent with Respondent's testimony that he had failed to remember the sanction correctly. Most important, Respondent's behavior strikes us as discordant with the notion that he "deliberately closed his eyes to facts he had a duty to see ... or recklessly stated as facts things of which he was ignorant.">

concluding the element of scienter, which is necessary for a violation of the precursor to Colo. RPC 8.4(c), was established when attorney deliberately closed his eyes to facts he had a duty to see).

20 See C.R.C.P. 251. 18(d).

21 See C.R.C.P. 251. 19(b)(1).

22 Although we recognize that Judge Glowinsky is a good friend of Respondent. we consider her a very trustworthy and credible witness and endorse her testimony in its entirety.

23 Rader, 822 P.2d at 953 (citations omitted). We distingutsh North, 964 P.2d at 512, on these same grounds. The court in North concluded the attorney failed to adequately study the bar application at issue and signed the application without further review, evidencing recklessness insofar as the attorney made no effort to verify his answers or dispel any uncertainty he may have harbored about his responses. Here, in contrast, we credit Respondent's testimony that at the time he answered, he "was certain the answer was correct," and that he "didn't guess

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In the end, we agree with the People that Respondent neglected to utilize each and every resource available to him in order to respond to the questionnaire with accuracy and thoroughness. And we are surprised and exceedingly disappointed that Respondent failed to use the utmost diligence and care in applying for a state judgeship, which we would expect any reasonably conscientious lawyer to do. But our inquiry here turns exclusively on a culpable mental state, deeming sanctionable under Colo. RPC 8.4(c) and interpretive case law only those misrepresentations made recklessly-that is, with a conscious indifference to the truth.s- Here, although it is a close question, we cannot clearly or convincingly attribute to Respondent such a state of mind, and thus we dismiss the People's complaint.

IV. CONCLUSION

Respondent's incorrect response in his application for a position in the judiciary leaves this Hearing Board with considerable misgivings, for the foundation of our judicial system-and the public's continued confidence in our courts-rests on the honor and integrity of the judges charged with administering justice. Nevertheless, our task is not to decide whether Respondent employed the most thorough methods of researching his disciplinary history. Clearly Respondent could have and should have researched his answer to Question 42 more diligently. Rather, based upon the People's complaint charging a violation of Colo. RPC 8.4(c), we must determine whether the law and the facts demonstrate by clear and convincing evidence that Respondent intentionally or recklessly engaged in conduct involving dishonesty or misrepresentation. We conclude the evidence presented in this case does not clearly establish Respondent possessed the requisite intentional or reckless state of mind necessary to be found in violation of Colo. RPC 8.4(c).

V. ORDER

The Hearing Board therefore DISMISSES the People's complaint pursuant to C.R.C.P. 251.19(b)(1).

about the answer," especially given that he consulted the Colorado Attorney Regulation website to confirm his recollection.

24 See North, 964 P.2d at 512-13 (finding recklessness when attorney never bothered to review bar application); Rader. 822 P.2d at 953 (822 P.2d 950. 953 (Colo. 1992) (finding recklessness when attorney deliberately closed his eyes to facts he had a duty to see),

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DATED THIS ;;,fCDAY OF y

, zot».

WILLIAM R. LUCERO

PRESIDING DISCIPLINARY JUDGE

MAlfL~--

HEARING BOARD MEMBER

~

DAVID M. HERRERA

HEARING BOARD MEMBER

Copies to:

Charles E. Mortimer, Jr. Via Hand Delivery

Office of Attorney Regulation Counsel

Craig L. Truman Respondent's Counsel

Via First Class Mail

Maureen A. Cain

David M. Herrera Hearing Board Members

Via First Class Mail Via First Class Mail

Susan Festag

Colorado Supreme Court

Via Hand Delivery

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