People v. Fry

501 P.3d 846 (2021)

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Nature of the Case

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Facts

D was admitted to practice law in Colorado on November 3, 2014. On March 10, 2020, Christopher Simpson retained D and d's former law firm, Modern Family Law, to represent him in a post-decree modification of child support action. Simpson's ex-wife (Wife) had filed a motion to modify child support. D entered his appearance in the case on March 13, 2020. Simpson was to be charged twice monthly for the services rendered during the representation. Any remaining retainer balance, after payment of final fees and costs, would be refunded. Simpson gave Modern Family Law $2,850.00 as a retainer, which he understood would cover ten hours of legal services at D's rate under the terms of the fee agreement. Modern Family Law charged Simpson's credit card $344.50. Simpson contacted Modern Family Law to question why he was being charged again so soon after paying a retainer to the firm. Someone at the firm explained to Simpson that the advance retainer was held in trust as a security deposit and that the retainer would be refunded to Simpson at the conclusion of the representation. Modern Family Law then charged Simpson's credit card $878.50 on April 6, 2020. The twenty-one-day deadline to respond to Wife's motion elapsed. D submitted Simpson's response to the motion to modify child support more than three weeks late. D failed to file Simpson's sworn financial statement or his certificate of compliance with mandatory financial disclosures with the court at any point during the representation. Modern Family Law did charge Simpson's credit card $1,309.00 on April 21, 2020. The court's case management order reinforced the deadline for the exchange of financial disclosures; it also instructed the parties to provide C.R.C.P. 16.2(e) disclosures to the other party at least 7 days before mediation and to bring the disclosures to the mediation session. D kept making excuses why it wasn't done. D's paralegal sent Simpson a link to complete his sworn financial statement form in a specific software program. She informed Simpson that his sworn financial statement was already past due and there could be legal consequences for his lack of compliance. The parties attended mediation and D failed to prepare for mediation. D did not have a copy of the sworn financial statement that Simpson completed, and Simpson had to email it. The only financial document provided to Wife was Simpson's September 2019 paystub, which Simpson himself provided in February 2020. The parties failed to resolve the disputed issues during mediation. W moved for sanctions under C.R.C.P. 16.2(j). The motion for sanctions sought $1,375.00 in attorney's fees. D failed to provide the sworn financial statement or disclosure documents on that day. W's counsel followed up two more times before the scheduled mediation, with no response from D at all. Simpson sought new counsel and terminated D's representation on May 21, 2020. Simpson intended to dispute D's billing. The day that D was substituted off of the case-Modern Family Law billed his credit card two more times, once for $381.50 and once for $2,850.00. The charge for $2,850.00 was an unauthorized replenishment of Simpson's initial retainer. Modern Family Law then charged Simpson's credit card again on June 4, 2020, for $288.50. D did not cooperate with the new attorney, Mark Capleau. On June 22, 2020, D filed a notice of attorney's lien, a motion to reduce the lien to judgment, and an affidavit of attorney's fees and costs, which attached Simpson's last two unredacted billing statements. Those filings represented that Simpson 'incurred and failed to pay a total of $3,138.50 from April 16, 2020, through May 31, 2020.' Simpson did not owe the firm any money. As of June 22, 2020, Simpson had paid a total of $8,902.00 to Modern Family Law, including replenishment of his initial $2,850.00 retainer deposit. Modern Family Law owed Simpson a retainer balance refund on June 22, 2020. There was no basis in fact to file the notice of attorney's lien or his motion to reduce the lien to judgment. D falsely alleged Simpson had failed to comply with his obligations under the fee agreement. D did not attempt to withdraw the notice or the motion and did not make any effort to correct the misrepresentations contained in those filings. D filed a notice of satisfaction of judgment, release, and waiver. Chapleau filed a request for attorney's fees on July 2, 2020, seeking sanctions against Modern Family Law under C.R.S. § 13-17-102(4) in the form of 'all attorney's fees associated with [the firm's] false assertion of a lien with the Court.' Nicholas Tootalian of Modern Family Law defended D's actions by asserting that Simpson had initiated a dispute through his credit card company over $3,231.50 (of the total $8,902.00 Modern Family Law charged) and explaining that the lien sought to protect Modern Family Law pending the dispute. At the child support modification hearing the Court awarded attorney's fees to Wife and against Simpson as a sanction under C.R.C.P. 16.2(j) due to D's failure to produce Simpson's sworn financial statement and mandatory financial disclosures. As of the filing of the People's complaint, Simpson's request for attorney's fees as a sanction against Modern Family Law remained pending. P filed a bar complaint against D who did not respond nor did he appear.