People v. Goodman
People v. Goodman
Opinion of the Court
I. SUMMARY
On summary judgment, the People proved Respondent had fabricated documents that
II. PROCEDURAL HISTORY
The People filed a complaint on September 283, 2018. Respondent answered the complaint on October 24, 2018. An at-issue conference was held on November 6, 20183, and a two-day hearing was set for April 8-9, 2014.
On February 11, 2014, the People filed a "Motion for Summary Judgment and Brief in Support Thereof," seeking entry of judgment on all three claims in their complaint, which allege violations of Colo. RPC 3.8(2)8), 8.1(a), and 8.4(c). Respondent did not file a response, although the People indicated in their motion that Respondent had expressed opposition to their requested relief, The PDJ granted the People's motion on March 24, 2014, and converted the two-day disciplinary hearing to a one-day sanctions hearing.
During the sanctions hearing on April 8, 2014, the Hearing Board heard testimony from John Lonngquist. The Hearing Board also considered the People's argument concerning sanctions.
IH. FACTS AND RULE VIOLATIONS
Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on October 25, 2004, under attorney registration number 35992.
Facts Established in the Complaint
Respondent represented Kim Gaetano and her medical marijuana business, 420 Wellness Dispensary, LLC ("420 Wellness"), in a purchase-sale transaction involving Thomas S. Waldron, Sr.
On October 1, 2010, Respondent sent an email along with a draft of the purchase-sale agreement to Waldron.
Attached is a droft purchase and sale agreement for your review. As we discussed, neither Kim nor Rich has signed off on this yet, so while I anticipate they would only have very minor changes to business points (if any), do keep that in mind. I'm also attaching the current form of 420's operating agreement. If these additional large investors came on board, this operating agreement is not going to be sufficient, I'm aware of that, we can address that as needed, but for the time being it's sufficient.6
Waldron emailed Respondent on December 10, 2010, asking whether he would be willing to continue representing 420 Wellness if its ownership changed hands.
On March 24, 2011, a lawsuit was filed against Respondent, Gaetano, and 420 Wellness by Green-VisionTek, LLC, which alleged that it owned the interests in 420 Wellness that previously had been purchased by
Lonnquist filed with the People a request for investigation ("RFI") against Respondent on April 19, 2011, alleging that Respondent had misused his trust account funds by paying himself attorney's fees in connection with the purchase-sale agreement between Agra-Tek and 420 Wellness.
Respondent responded to the People on May 14, 2011.
Attached is a draft purchase and sale agreement for your review. As we discussed, neither Kim nor Rich has signed off on this yet, so while I anticipate they would only have very minor changes to business points (if any), do keep that in mind. I'm also attaching the current form of 420's operating agreement. Again, I'm fine communicating with you like this and you don't have to have your own attorney, but my job is to represent Kim, and while I can discuss and negotiate the contract with you and give you answers on any deal points, I am not your attorney.15
Attached to the email was a draft purchase-sale agreement.
On February 16, 201%, the People dismissed the RFI against Respondent, with the requirement that he attend trust account school.
During the Green-VisionTek litigation, Respondent disclosed to Lonnquist the same versions of the emails that Respondent had produced to the People dated October 1, 2010, December 10, 2010, November 2, 2010, and January 12, 2011.
A bench trial was held in the Green-Vi-sionTek litigation on July 26-27, 2012, and August 16,2012.
Also during the trial, a forensic expert named Robert Kelso testified.
The court in the Green-VisionTek litigation found that Respondent had altered the content of the email dated October 1, 2010, and the attached draft of the purchase-sale agreement.
Additional Findings Based on Testimony
At the sanctions hearing, Lonnquist testified that he had been retained by Waldron shortly after the 420 Wellness purchase-sale transaction was completed and after approximately $1.25 million dollars had been transferred to Gaetano through Respondent's trust account. According to Lonnquist, Gae-tano then sought to rescind the contract, even though Respondent had transferred from his trust account almost $800,000.00 to fund a down payment on a warehouse and $15,000.00 to pay his own fees. On Wal-dron's behalf, Lonnquist filed a civil suit, Green-VisionTek v. 420 Wellness Dispensary, LLC, which also named Gaetano and Respondent as defendants. This suit alleged breach of contract, fraud, conversion, mishandling of a trust account, and conflict of interest.
Lonnquist testified that around the same time, in April 2011, he filed his RFI with the People in which he contended that Respondent had mishandled client funds and engaged in a conflict of interest. The People sought Respondent's answer to those allegations and Respondent, in turn, submitted a reply, along with voluminous documentation. When the People provided copies of these records to Lonnquist, he asked Waldron, his client, to review them. Lonnquist recalled Waldron contacting him a few days later to announce that he had "found a smoking gun." Waldron explained to Lonnquist that the documents Respondent had provided to the People differed materially from the documents Respondent had sent Waldron when the purchase-sale agreement was being negotiated.
Lonnquist knew that if he provided this analysis to the People, they would be required to give the information to Respondent. Lonnguist reasoned that he would need to depose Respondent in the civil suit and "tie him into" the documents before turning over Kelso's analysis to the People. Six months later, Lonnquist deposed Respondent, who stood by the accuracy of the documents he had given the People. Lonnguist then promptly sent Kelso's report to the People. But during the intervening time period, the People had already determined that Lonnquist's April 2011 grievance did not merit disciplinary action.
Meanwhile, Respondent's fabricated documents immeasurably complicated Lonnquist's efforts to prove Waldron's civil case. "As soon as we saw falsified documents in late May, we knew we weren't dealing with someone who is playing by the rules," Lonnquist related. He could not rely on the authenticity of any of the documents Respondent produced, nor could he trust any of Respondent's representations. As a result, he was forced to hire Kelso to closely examine each document that Respondent produced, creating additional expense for Waldron.
Further, said Lonnquist, the trial itself lasted twice as long as it should have: the issue of falsified documents required him to introduce and lay a foundation for two separate document sets, compare the two, and then engage in extended argument about the implications. He also had to call Kelso as an expert witness to describe his forensic analysis. All told, Lonnquist litigated the matter for one-and-a-half years and tried the case for two-and-a-half days-an effort that cost $300,000.00 in attorney's fees.
Rule Violations
In granting the People's motion for summary judgment, the PDJ determined that Respondent violated Colo. RPC 3.8(a)(8). That rule prohibits a lawyer from knowingly offering evidence that the lawyer knows is false. The PDJ concluded, based on the undisputed material facts, that Respondent violated Colo. RPC 3.8(a)(8) by providing false testimony before the trial court in the Green-VisionTek litigation.
Next, the PDJ granted summary judgment on the People's Colo. RPC 8.1(a) claim. Colo. RPC 8.1 prohibits a lawyer from knowingly making a false statement of fact in connection with a disciplinary matter. As the undisputed evidence demonstrated, Respondent violated this rule by knowingly giving the People fabricated copies of various documents and by knowingly making false statements regarding these documents in the disciplinary investigation.
Last, the PDJ determined that the undisputed material facts established that Respondent contravened Colo. RPC 8.4(c), which states "it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." The PDJ concluded these facts showed that Respondent acted dishonestly by falsifying the documents he provided to the People and to Lonnguist. Summary judgment was also entered on this claim because Respondent had testified in the Green-VisionTek litigation as to the validity of the documents he had fabricated.
The American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) ("ABA Standards") and Colorado Supreme Court case law guide the determination of sanctions for lawyer misconduct.
ABA Standard 3.0-Duty, Mental State, and Injury
Duty: Respondent violated his duty to the legal system and to the public. A lawyer who does not operate within the bounds of the law violates his duty to the legal system. Lawyers are officers of the court, and the public expects lawyers to abide by substantive and procedural rules governing the administration of justice; it is axiomatic that they must not create or use false evidence or make false statements of material fact.
Mental State The PDJ's order granting summary judgment concluded that the People had proved every element of their Colo. RPC 3.3(a) and 8.1(a) claims, both which expressly require proof of a knowing mental state. In that order, the PDJ con-eluded the undisputed facts showed that Respondent presented fabricated documents to the People and Lonnquist, and that he made false statements regarding those documents to the People and in the Green-VisionTek litigation. "[I]t would be illogical ... to infer that Respondent acted with anything less than a knowing state of mind," held the PDJ, since "[one does not negligently fabricate documents and make false statements regarding such documents under the type of cireumstances presented here."
The PDJ's order, however, does not preclude the Hearing Board from finding that Respondent acted not only knowingly but intentionally, and we do so here. Whereas knowledge is the conscious awareness of the nature of the conduct but without the conscious objective or purpose to accomplish a particular result, intent is defined as the conscious objective or purpose to accomplish a particular result.
Injury: Respondent's deception harmed Waldron, Lonnguist, Gaetano, the district court, the profession's system of self regulation, and the public. As Lonnquist testified, Respondent's introduction of falsified documents into the civil litigation foreed Waldron to expend substantial sums of money to verify the authenticity of each document that Respondent produced. For the same reasons, Lonngquist confronted more complex discovery issues and was required to invest significantly more time in preparing the case. By presenting fraudulent documents, Respondent wasted the time and resources of all involved, including Waldron, Lonnquist, Gaetano, and the district court judge, who presided over a lengthier trial and made specific findings concerning Respondent's dishonesty.
ABA Standards 4.0-7.0-Presumptive Sanction
Disbarment is the presumptive sanction for Respondent's misconduct in this case, as set forth in several ABA Standards. Respondent's violations of Colo. RPC 8.4(c) (dishonesty, fraud, deceit, or misrepresentation) and Colo. RPC 8.1(a) (knowingly making a false statement of fact in a disciplinary matter) implicate ABA Standard 5.11(b). That standard calls for disbarment when a lawyer engages in intentional conduct that involves dishonesty, fraud, deceit, or misrepresentation and that seriously adversely reflects on the lawyer's fitness to practice.
Likewise, ABA Standard 6.11 provides that disbarment is typically warranted when a lawyer, with the intent to deceive a court, makes a false statement, submits a false document, or improperly withholds material information, thereby causing serious or potentially serious injury to a party or causing a significant or potentially significant adverse effect on the legal proceeding. ABA Standard 6.11 governs Respondent's violation of Colo. RPC 3.38(a)(1) (false statements to a tribunal).
Disbarment is also the presumptive sanction under ABA Standard 7.1 when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer, resulting in serious or potentially serious injury to the client, the public, or the legal system. That standard applies to Respondent's violation of Colo. RPC 8.1(a).
We also take into account that in cases involving multiple types of attorney misconduct, the ABA Standards recommend the ultimate sanction should be at least consistent with, and generally greater than, the sanction for the most serious disciplinary violation.
ABA Standard 9.0-Aggravating and Mitigating Factors
Aggravating factors are considerations or cireumstances that may justify an increase in the presumptive discipline to be imposed, while mitigating factors may warrant a reduction in the severity of the sanction.
Dishonest or Selfish Motive-9.22(b): Respondent presented fabricated documents to the People in response to a disciplinary investigation. Those documents were modified to counter Lonnquist's allegations of misconduct and designed to avert imposition of any sanction for that misconduct. We apply this factor in aggravation.
Multiple Offenses-9.22(d): Respondent's failure to abide by the ethical standards governing attorneys was not the result of a single transaction, and his misconduct does not involve a single instance of dishonesty. Instead, he engaged in misconduct on multiple occasions, targeting different audiences. We therefore apply this factor in aggravation.
Refusal to Acknowledge Wrongful Nature of Conduct-9.22(g): Respondent has continually failed to acknowledge the wrongful nature of his conduct. Although he concedes in his answer that there are discrepancies between the documents on Waldron's computer and those he produced to the People, throughout the course of this proceeding he neither offered any possible explanation for those discrepancies nor took responsibility for falsifying documents. We give this aggravating factor significant weight.
Substantial Experience in the Practice of Law-9.22(i): The People urge us to apply this factor in aggravation. Respondent was admitted to the Colorado bar in October 2004, so at the time of his misconduct Respondent had been practicing law for seven to eight years. Case law suggests that ten years in the practice of law generally qualifies as substantial experience.
Bad Faith Obstruction of the Disciplinary Proceeding By Intentionally Failing to Comply With Rules of Orders of the Disciplinary Agency-9.22(e) At the sanctions hearing, the People advanced for the first time application of this factor based on Respondent's failure to participate after filing his answer. But the People could not point to a rule or order that would mandate Respondent's participation in the disciplinary proceeding, and they were not able to cite any authority that suggests failure to participate qualifies as bad faith obstruction. We decline to consider this factor in aggravation.
Illegal Conduct, Including That Involving the Use of Controlled Substances-9.22(k): The People advocated for application of this factor at the sanctions hearing and tendered in support thereof C.R.S. section 18-8-502(1), which defines perjury in the first degree. That statutory subsection provides, "A person commits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law."
Analysis Under ABA Standards and Case Law
The Hearing Board is mindful of the Colorado Supreme Court's directive to exercise discretion in imposing a sanction and to carefully apply aggravating and mitigating factors,
We begin our analysis with the presumptive sanction, which without question is disbarment. The Colorado Supreme Court has emphasized that lawyers represent the legal system, stating: "Lawyers serve our system of justice, and if lawyers are dishonest, then there is a perception that the system, too, must be dishonest. Certainly, the reality of such behavior must be abjured so that the perception of it may diminish."
The People direct the Hearing Board to People v. Kolbjornsen, a case involving a lawyer who had been charged with speeding and failing to provide proof of insurance.
The Hearing Board agrees that the dictum in Kolbjornsen is instructive but that the sanction imposed there is not appropriate for Respondent's misconduct here. We look instead to In re Whitt, a Washington State disciplinary case.
As Whitt made clear, Respondent's misrepresentations and fabrications reflect adversely on his fitness to practice law, the public perception of the legal system, and the judicial process as a whole.
V. CONCLUSION
Respondent presented fabricated documents and false statements to the People during a disciplinary investigation, which prevented the disciplinary system from functioning as the Colorado Supreme Court intended that it should. He produced those same documents in the Green-VisionTek litigation and testified to their authenticity at trial, Because his falsifications and misrepresentations reflect such a complete deviation from the appropriate ethical standards for members of the legal profession, the Hearing Board concludes that Respondent must be disbarred.
VI. ORDER
The Hearing Board therefore ORDERS:
1. GREGORY A. GOODMAN, attorney registration number 35992, is DISBARRED. The DISBARMENT SHALL take effect only upon issuance of an "Order and Notice of Disbarment."
2. Respondent SHALL promptly comply with C.R.C.P. 251.28(a)-(c), concerning winding up of affairs, notice to parties in pending matters, and notice to parties in litigation.
3. Respondent also SHALL file with the PDJ, within fourteen days of issuance of the "Order and Notice of Disbarment," an affidavit complying with C.R.C.P. 251.28(d).
4. The parties SHALL file any post-hearing motion or application for stay pending appeal with the Hearing Board on or before Monday, June 23, 2014. No extensions of time will be granted. Any response thereto
5. Respondent SHALL pay the costs of these proceedings. The People SHALL file a "Statement of Costs," within fourteen days of the date of this order. Any response thereto SHALL be filed within seven days, unless otherwise ordered by the PDJ.
. Compl. Answer "1.
. See C.R.C.P. 251.1(b). 2
. Compl. 12; Answer 12.
. Compl. 13; Answer 13. 4
. Compl. 5; Answer 15.
. Compl. 15; Answer 15.
. Compl. 124; Answer 124.
. Compl. 127; Answer 127.
. Case number 2011CV22231, Denver District Court. People's Mot. for Summ. J. Ex. 3, attach. 1. T1; see also Compl. 149; Answer 149 (neither admitting nor denying the People's allegation regarding the filing of this lawsuit).
. People's Mot. for Summ. J. Ex. 3 at 1.
. People's Mot. for Summ. J. Ex. 1.
. People's Mot. for Summ. J. Ex. 2.
. People's Mot. for Summ. J. Ex. 3; Compl. 451; Answer € 51.
. Compl. 1151-55; Answer TY 51-55.
. People's Mot. for Summ. J. Ex. 3, attach. 6 {emphasis added); Compl. (51; Answer 151. Compare with Compl. 5; Answer 15.
. People's Mot. for Summ. J. Ex. 3, attach. 6; Compl. 152; Answer 1 52.
. Compl. 153; Answer 153.
. Compl. 153; Answer 153.
. Compl. 154; Answer € 54.
. Compl. 1953-54; Answer 19% 53-54.
. Compl. 156; Answer 156.
. Compl. 157; Answer 157.
. Compl. 57-59; Answer 1153-55, 57-59; People's Mot. for Summ. J. Ex. 4 at 717: 21-718:15; 719:1-20.
. Compl. 159; Answer 159.
. Compl. 160; Answer € 60.
. People's Mot. for Summ. J. Ex. 5 at 386: 11-15; 387: 21-389: 6; 389: 24-390:7; People's Mot. for Summ. J. Ex. 5 at attach. 18.
. Compl. (61; Answer T 61.
. People's Mot. for Summ. J. Ex. 4 at 707: 4-10. '
. People's Mot. for Summ. J. Ex. 4 at 707: 11-21.
. People's Mot. for Summ. J. Ex. 4 at 708:1-20
. People's Mot. for Summ. J. Ex. 4 at 709:16-21; 710; 13-20; 712:10-18; 713:19-714; 8; 720; 23-721:3; 721:4-726: 5; People's Mot. for Summ. J. Ex. 4 attach. 94 at 5-14; People's Mot. for Summ. J. Ex. 4 attach. 95 at 5-14.
. See Compl. 162; Answer % 62 (admitting Kel-so testified at trial but denying his findings); People's Mot. for Summ. J. Ex. 4 attachs. 94 & 95. See People's Mot. for Summ. J. T9 36-55 for additional allegations regarding Kelso's expert trial testimony.
. Compl. 163; Answer 163.
. Compl. 165; Answer T 65.
. Lonnquist noted that he also hired attorney Craig Truman to provide a certificate of review declaring that the claim against Respondent did not lack substantial justification. Although Lonnquist testified that Truman was not initially hired to address the falsified documents, his role "morphed into that." Nevertheless, he could not recall whether Truman offered testimony in the civil trial about the falsified documents. According to Lonnquist, Waldron spent somewhere between $2,000 and $10,000.00 in total for Kelso's and Truman's expert services, although Lonn-quist could not remember what percentage of that total either expert was paid.
. See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).
. ABA Standard 6.0. See In re Cleaver-Bascombe, 986 A.2d 1191, 1200 (D.C. 2010) ("Lawyers have a greater duty than ordinary citizens to be scrupulously honest at all times, for honesty is "'basic" to the practice of law.... Every lawyer has a duty to foster respect for the law, and any act by a lawyer which shows disrespect for the law tarnishes the entire profession.") (citations omitted).
. Ord. Granting Summ. J. at 7.
. ABA Standards § TV, Definitions.
. Accord In re Reback, 513 A.2d 226, 231 (D.C. 1986) ("Honesty is basic to the practice of law.... A lawyer's word to a colleague at the bar must be the lawyer's bond. A lawyer's representation to the court must be as reliable as a statement under oath.").
. ABA Standards § II at 7.
. See ABA Standards 9.21 & 9.31.
. People v. Rolfe, 962 P.2d 981, 983 (Colo. 1998).
. People v. Hensley-Martin, 795 P.2d 262, 265 (Colo. 1990).
. See In re Cleland, 2 P.3d 700, 705 (Colo. 2000) ("inexperience does not go far in our view to excuse or to mitigate dishonesty, misrepresentation, or misappropriation. Little experience in the practice of law is necessary to appreciate such actual wrongdoing.").
. C.R.S.§ 18-8-502(1).
. Respondent need not have been convicted of a crime for this standard to apply. Rather, the Hearing Board looks only to whether the facts establish by clear and convincing evidence that
, See In re Attorney F., 285 P.3d 322, 327 (Colo. 2012); In re Fischer, 89 P.3d 817, 822 (Colo. 2004) (finding that a hearing board had overemphasized the presumptive sanction and undervalued the importance of mitigating factors in determining the needs of the public).
. In re Attorney F., 285 P.3d at 327 (quoting People v. Rosen, 198 P.3d 116, 121 (Colo. 2008)).
. In re Pautler, 47 P.3d 1175, 1179 (Colo. 2002).
. 917 P.2d 277, 278 (Colo. 1996).
. Id. at 279.
. Id.
. 149 Wash.2d 707, 72 P.3d 173, 175 (2003).
. Id. at 176.
. Id.
. Id. at 176-77.
. Id. at 175,180.
. Id. at 181.
. Id. at 180.
. In re Marshall, 762 A.2d 530, 536 (D.C. 2000); see also In re Cleaver-Bascombe, 986 A.2d at 1200 ("lying under oath on the part of an attorney for the purpose of attempting to cover-up previous misconduct is absolutely intolerable" and "warrants not only disbarment but also disgrace, shame, and obloguy") (citations and quotations omitted).
. In general, an order and notice of sanction will issue thirty-five days after a decision is entered pursuant to C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later than thirty-five days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.
Reference
- Full Case Name
- The PEOPLE of the State of Colorado v. Gregory A. GOODMAN
- Cited By
- 2 cases
- Status
- Published