People v. Chappell

927 P.2d 829 (1996)

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Nature of the Case

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Facts

H and W were married on April 1991, and their son was born later that year. On December 13, 1993, H filed a petition for the dissolution of the marriage. W was then pregnant with their daughter who was born on June 13, 1994. D represented W in the dissolution proceeding. H vacated the family home in January 1994. A mutual restraining order prevented either party from removing the child from Colorado. The court granted temporary custody of the son and use of the family home to the W. H was ordered to pay child support and maintenance directly to W in the amount of $1,500 per month. Two days before the temporary orders hearing, D and W met with Dr. LaCrosse who advised them that she was recommending that the husband be granted sole custody of both the son and the unborn daughter. D told her client that the court would probably accept Dr. LaCrosse's recommendations. W states that D advised her as her attorney to stay, but as a mother to run. D informed W about a network of safe houses for people in her situation and helped her to liquidate her assets and empty her bank accounts. D contacted a friend of W and asked the friend to pack W's belongings from the marital home and to put them into storage. The friend states that D let her into the home with a key, and gave her money, provided to D by W, to pay for the moving and storage. D kept the storage locker key according to the friend. D appeared on March 11, 1994, without W. D's request for a one-week continuance was granted. The court allowed H to testify concerning the temporary orders. D argued against a change in the interim orders and stated that the child was doing well in his own home. The trial judge questioned D as to the whereabouts of her client. D replied that she was unable to answer because of the attorney-client privilege. The court ordered an immediate change of custody to H, as well as continued support payments. D asked the court to order the support payments to be made through the court's registry. D notified W of the change in the custody order. H discovered that W had moved. His lawyer then filed an emergency motion for custody and pick-up of the child, which was granted, and a petition for writ of habeas corpus, which was heard on March 16, 1994. D appeared in court on March 16, advised the court that she would assert the attorney-client privilege, and asked for time to hire a lawyer to represent D. The court also heard testimony from W's friend concerning the events just prior to the March 11 hearing. W was out of Colorado for two weeks, and when she returned she and her child lived at a battered women's shelter. H gained physical custody of the child after W went to the hospital for a prenatal visit. W then retained another lawyer to represent her. The court also found that D had perpetrated a fraud on the court when she accepted H's offer to continue paying support and maintenance despite the change in custody. D 'was aware that her client was on the run with the child and yet accepted the offer of child support and maintenance. W testified that D had explained 'the underground' to her, had assisted in emptying her bank accounts, and had advised her on how to avoid being caught. W was charged with violation of a child custody order, a class 5 felony. W pleaded guilty in exchange for a three-year deferred judgment. D's conduct violated R.P.C. 1.2(d) (a lawyer 'shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent'); R.P.C. 3.3(a)(2) (a lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client); R.P.C. 8.4(b) (it is professional misconduct for a lawyer to commit a criminal act by aiding the lawyer's client to commit a crime); and R.P.C. 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation). The hearing panel approved the board's recommendation that D be disbarred.