author: HILL, Chief Justice.

text:
    2003 WY 164
    Darell Ten BROEK and Bonnie Ten Broek, and Barbara G. Chaney and Jay S. Chaney, Trustees of the Barbara G. Chaney Living Trust, Dated October 3, 1997, Appellants (Defendants), v. COUNTY OF WASHAKIE, Appellee (Plaintiff).
    No. 03-45.
    Supreme Court of Wyoming.
    Dec. 22, 2003.
    Representing Appellants: Kent A. Richins, Worland, Wyoming.
    Representing Appellee: G. Albert Sinn, Washakie County Attorney, Worland, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] Darell and Bonnie Ten Broek, along with Barbara G. and Jay S. Chaney as trustees of the Barbara G. Chaney Living Trust (collectively the Defendants), appeal an order of the district court on a complaint for declaratory judgment filed by the County of Washakie (the County) to establish a stock trail over a portion of their land pursuant to a prescriptive easement. We conclude that a declaratory judgment is not the appropriate means to establish a prescriptive public easement because the legislature has established a specific statutory procedure that requires such claims to be brought initially before the respective board of county commissioners. Accordingly, we vacate the district court's order and reverse and remand with directions to dismiss the County's complaint without prejudice.

ISSUES

[12] The Defendants set forth two issues:

1. Did the district court commit reversible error when, as a matter of law, it concluded that Washakie County does have legal authority to establish a public stock trail by prescriptive easement on private property?
Are the findings and conclusions of the district court that a public stock trail has been established by Washakie County on private property by prescriptive easement clearly erroneous, not supported by substantial evidence and contrary to law?

The County's statement of the issues parallels that of the Defendants.

FACTS

[48] The Defendants own land in Was-hakie County. In October 1999, the Defendants, acting individually, purchased small strips of property adjacent to their own land. The purchased property lay between the Defendants' land and U.S. Highway 16. The property was in a state of neglect with sinkholes, dilapidated fences, overgrowing vegetation and abandoned vehicles on it. The Defendants cleaned up the property and moved their fence lines to encompass their purchases.

[14] In June 2000, the County filed a Declaratory Judgment action against the Defendants. The County alleged that the property purchased by the Defendants had been designated in historical documents as a stock trail. The County also asserted that the public had used the property as a stock trail continuously since at least 1904 and that the fencing of it interfered with that use. The County requested a declaration from the district court that the property was subject to an easement for a stock drive as part of the adjacent road and that the Defendants be ordered to relocate their fences. An unrecorded hearing was held before the district court. On May 4, 2001, the district court issued a decision letter concluding that the County had established a prescriptive casement over the Defendants' property. The district court held two more hearings where additional evidence was taken in response to motions for reconsideration and for rehearing filed by the Defendants. The district court issued an order on December 18, 2002 confirming its original conclusion that the County had established a prescriptive casement. The Defendants have appealed that order.

STANDARD OF REVIEW

[15] When a matter is tried before the district court without a jury, we review the court's findings of fact pursuant to a clearly erroneous standard. Any conclusions of law are reviewed de novo. Davis v. Chadwick, 2002 WY 157, 18, 55 P.3d 1267, 18 (Wyo.2002).

DISCUSSION

[16] The Defendants' main argument is that the County does not have any legal authority to establish a stock trail by pre-seription across private property. The underlying premise to the argument is that there is no specific statutory provision authorizing a county to bring an action to establish a public stock trail by prescription. Under the facts of this case, the Defendants' argument is one of semantics. The phrase "stock trail" is just descriptive of a public use on the adjacent road. In other words, the County is claiming that the public has used U.S. Highway 16, also called Big Horn County Road No. 91, and the portion of the Defendants' land adjacent to that road to drive livestock. The allegations in the County's complaint clearly demonstrate the relationship between the Defendants' property and the road:

1. The Defendant's [sic] in this matter are owners and/or trustees in fee simple of the areas on the South portion of Section 17, Township 4TN, Range 88W.
2. During the late fall of 1999, the Defendants' [sic] Chaney, removed a pole and post fence and re-erected it some feet south, where it is presently located.
3. Defendants' [sic] Ten Broek, built a post and wire fence some feet south from an old highway right-of-way fence, where it is presently located.
4. The Washakie County Commissioners commissioned RL. Hudson, Land Surveyor, to survey this area which he did and a Letter of Transmittal and Report of Surveyor dated March 22, 2000, was given to the Washakie County Commissioners.
5. The Big Horn County Commissioners on or about July 6, 1904, declared the area on the boundary line between Seetion 17 and Section 20, in Tracts 65 and 55, and 56 of the re-survey Township 47N, Range SSW, to be a county road.
6. A notation appears on the 1910 Plat of Ten Sleep, Big Horn County, Wyoming, on file in the Washakie County Clerk's Office, which labels this road as main street with a 66 foot right-of way centered on the section line center of county road with a bearing of 889, 42 minutes west. The road was reconstructed in 1922 and designated as a state highway on November 25, 1929, under project number 1086. The location was easterly along the tract line, then north easterly through a curve to the left and then a curve to the right in the vicinity of the Ten Broek and Chaney property lines.
7. That highway was in use until approximately 1986, when highway 16 was constructed in its present location and designated as such on November 28, 1989, still under project number 1086.
8. U.S. Highway 16 was re-constructed in the 1960's [sic] under project F-036-1(17) on which plan the road in question was noted as a stock drive.
9. The minutes of the Washakie County Board of Commissioners meeting on September 1, 1986, record a motion by Commissioner Horel, and its adoption whereby;
"Whereas a new highway is being constructed from Big Cottonwood Creek to Ten Sleep, Wyoming, re replace from said Cottonwood Creek to Ten Sleep, the present highway No.1 16;" and "Whereas, the State Highway Department of the State of Wyoming is agreeable to leaving in place the old treated timber bridges and all of the culverts on the present Worland-Ten Sleep road from Big Cottonwood Creek into Ten Sleep provided that said present road is designated as a stock driveway and cattle run instead of the new road which is in the process of construction; now therefore, Be it Resolved by the Board of County Commissioners of the County of Was-hakie, State of Wyoming, that the present Worland-Ten Sleep road, being highway No. 16, from Big Cottonwood Creek into Ten Sleep, be and the same is hereby designated as a stock driveway and cattle run."
10. A Warranty Deed from Nichols to a prior predecessor of the Defendants, the Wyoming Game and Fish Commission, recorded in 1944, contains a metes and bounds description concerning the Ten Brock lands that mentions a fence line. The existence of the old fence line varies between 38 and 28 feet north of the tract line prior to March 4, 1944.
11. A certified land corner recordation report prepared by Mr. Stanton Able, Licensed Professional Surveyor for the State of Wyoming, recorded on February 4, 1985, for corner 4 of tract 54, also being corner 1 of tract 56, states that corner as being 831 feet from the north fence. The map on the reverse side dated December 19, 1984, indicates a fence to exist along the north side of the old highway route.
12. RL. Hudson's State of Wyoming Corner Report also shows a tie to one remaining old fence post north of the road to be 31 feet north of the tract line having been measured by Hudson on March 16, 2000.
13. The stock drive has been used as a public road and stock drive continuously since 1904 for parking cars, rodeo events, football games, driving livestock, ete. Livestock has been [sic] driven through the north 88 feet of the stock drive continuously since before 1987.
14. Sometime in the fall of 1999, the Defendants removed the old fence with the exception of one fence post on the North side and re-erected new fences further south into the 66 foot stock drive.
15. The Chaney fence encloses approximately .15 acres of the stock drive, thereby eliminating any use by the public.
16. The Ten Brock fence encloses approximately .75 acres of the stock drive, thereby eliminating any use by the public.

Whatever label is attached, the County is claiming that a portion of the Defendants' property is part of the adjacent road designated as U.S. Highway 16/Big Horn County Road No. 91. The parties agree that the resolution of that claim is dependent on whether the County established a prescriptive use across the Defendants' property. The legislature has specifically granted counties the right to establish public highways, including by prescription. Wyo. Stat. Ann. § 24-1-101 (Lexis/Nexis 2008). Accordingly, we reject the Defendants' contention that the County lacked the authority to establish the "stock trail" in question across their lands through the common law doctrine of pre-seription.

[17] We must, however, reverse and vacate the district court's decision granting the prescriptive easement to the County. As noted in the facts above, the County prosecuted this action through a declaratory judgment claim brought in the district court. The legislature has established a specific procedure for the establishment of a public road by prescription in the above-mentioned Wyo. Stat. Ann. § 24-1-101, which provides:

(a) On and after January 1, 1924, all roads within this state shall be highways, which have been or may be declared by law to be state or county highways. It shall be the duty of the several boards of county commissioners, within their respective counties, prior to said date, to determine what, if any, such roads now or heretofore traveled but not heretofore officially established and recorded, are necessary or important for the public use as permanent roads, and to cause such roads to be recorded, or if need be laid out, established and recorded, and all roads recorded as aforesaid, shall be highways. No other roads shall be highways unless and until lawfully established as such by official authority. Except, nothing contained herein shall be construed as preventing the creation or establishment of a public highway right-of-way with reference to state and county highways under the common-law doctrines of adverse possession or prescription either prior to or subsequent to the enactment hereof. If any such board shall resolve the creation or establishment of a public highway right-of-way based upon the common-law doctrines of adverse possession or prescription, it shall, following the filing of a plat and accurate survey required in accordance with the terms and provisions of W.S. 24-3-109, proceed with the publication of the proposed road for three (8) sue-cessive weeks in three (8) successive issues of some official newspaper published in the county, if any such there be, and if no newspaper be published therein, such notice shall be posted in at least three (8) public places along the line of the proposed road, which notice shall be exclusive of all other notices and may be in the following form:
[Form omitted]
(b) The county commissioners shall cause a copy of the above notice to be mailed by registered or certified mail to all persons owning lands or claiming any interest in any lands over or across which the road is proposed to be created or established. The publication, posting and mailings of such notice shall be a legal and sufficient notice to all persons owning lands or claiming any interest in lands over which the proposed road is to be created or established. No viewers or appraisers shall be appointed, nor shall any damage claims be considered or heard, and the sole objections to be heard by the board shall be directed against the cere-ation or establishment of such right-of-way under the common-law doctrines of adverse possession or prescription. Any objector may appeal from the final decision of the board of the county commissioners to the district court of the county in which the land is situated. Notice of such appeal must be made to the county clerk within thirty (80) days after such decision has been made by the board, or such claim shall be deemed to have been abandoned. Within ten (10) days after the notice of an appeal is filed in his office, the county clerk shall make out and file in the office of the clerk of the district court, in his county, a transcript of the papers on file in his office, and the proceedings of the board in relation to such creation and establishment. The proceedings on appeal shall be governed by the Wyoming Administrative Procedure Act. If the appeal is upheld the appellant shall be reimbursed by the county for all reasonable costs of asserting his claim.
(c) Only that portion of the state highways actually used, travelled or fenced, which has been used by the general public for a period of ten (10) years or longer, either prior to or subsequent to the engetment hereof, shall be presumed to be public highways lawfully established as such by official authority and unavailability of records to show such to have been lawfully established shall not rebut this presumption.
Only that portion of county highways, not to exceed sixty-six (66) feet in width, which was actually constructed or substantially maintained by the county and traveled and used by the general public for a period of ten (10) years or longer, either prior to or subsequent to the enactment hereof, shall be presumed to be public highways lawfully established as such by official authority. (d, <

The County asserts that a declaratory judg~ ment action is an appropriate means of determining this matter. The County notes that a declaratory judgment action is a remedial action that is to be liberally construed and applied. It also argues that the Defendants were provided with procedural and substantive due process in the proceedings before the district court.

[T8] The problem with the County's approach is that it takes the authority to make the initial decision away from the legislatively designated body and places that authority with the entity that was legislatively designated as the appellate court in the matter. We have addressed this very issue before and clearly stated that it is not a proper utilization of a declaratory judgment action:

However, the added element which may be considered in cases such as this is the status of a declaratory judgment action filed in a court which is an appellate court for the same issue presented, or able to be presented, below. Here the declaratory judgment action was filed in the district court. The district court is designated the appellate court for judicial review of administrative actions.
Ordinarily, a declaratory judgment action is not a substitute for an appeal. School Districts Nos. 2, 3, 6, 9, and 10, Campbell County v. Cook, Wyo., 424 P.2d 751 (1967); Stahl v. Wilson, Fla App., 121 So.2d 662 (1960); Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844 (1962); and Bryarly v. State, 282 Ind. 47, 111 N.E.2d 277 (1958). But such direct action is often available "even though there was a statutory method of appeal," School Districts Nos. 2, 8, 6, 9, and 10, Campbell County v. Cook, supra, 424 P.2d at 755. Here, there is no appeal actually pending and the issues are not moot.
However, there is a restriction on the availability -of a declaratory judgment action with reference to its applicability to administrative matters. «Where the action would result in a prejudging of issues that should be decided in the first instance by an administrative body, it should not lie. This is because, if it be otherwise, all decisions by the several agencies could be bypassed, and the district court would be administering the activities of the exeeu-tive branch of -the government. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 287, 78 S.Ct. 286, 97 L.Ed. 291 (1952); and City of Cheyenne v. Sims, Wyo., 521 P.2d 1347 (1974). This restriction on the seope of declaratory judgments is akin to the requirement that administrative remedies must be exhausted before judicial relief is available.
Accordingly, where the relief desired is in the nature of a substitution of judicial decision for that of the agency on issues pertaining to the administration of the subject matter for which the agency was created, the action should not be entertained. If, however, such desired relief concerns the validity and construction of agency regulations, or if it concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be, based, the action should be entertained. This is no more than that obviously and plainly provided for in the language of the Uniform Declaratory Judgments Act.

Rocky Mountain Oil and Gas Association v. State, 645 P.2d 1168, 1168-69 (Wyo.1982). See also, City of Cheyenne v. Sims, 521 P.2d 1347, 1849-50 (Wyo.1974) ("Declaratory judgment should not be used to usurp or replace specific administrative relief, particularly when the initial decision is committed to an administrative body.") A board of county commissioners is considered an agency under the Wyoming Administrative Procedure Act. Wyo. Stat. Ann. § 16-3-101(b)(G) (Lexis/Nexis 2008); Holding's Little America v. Board of County Commissioners of Laramie County, 670 P.2d 699, 701-02 (Wyo.1983). The subject of the County's action does not concern the validity or construction of an agency regulation or the constitutionality or interpretation of a statute. Rather, the relief requested by the County in this matter pertains to a matter that has been legislatively consigned to determination by an administrative ageney. The use of a declaratory judgment action in these cireumstances was improper.

CONCLUSION

[19] Since the proper procedures were not followed, we vacate the district court's order and reverse and remand the matter to the district court with instructions to dismiss the County's complaint. The County may pursue its claim, if it desires, as directed by Wyo. Stat. Aun. § 24-1-101.

      . The highway was designated a county road by the Big Horn County Commissioners in 1906. Washakie County was created out of part of Big Horn County in 1911. The highway is still referred to as Big Horn County Road No. 91.

      . The Defendants' second issue challenges the sufficiency of the evidence supporting the district court's ruling. Given our conclusion that a county may not use a declaratory judgment action to establish a prescriptive easement, the issue is moot, and we will not address it in this appeal.

      . We note that in Wyoming stock may be driven on any county road unless the respective board of county commissioners has specifically declared that a certain road is not to be used for thai purpose. See Wyo. Stat. Ann. §§ 24-1-121 & 122 (Lexis/Nexis 2003).


source: Caselaw Access Project

author: GOLDEN, Justice. LEHMAN, Justice,

license: Public Domain

text:
    2004 WY 1
    E. Michael LIEBERMAN, Appellant (Defendant), v. WYOMING.COM LLC, a Wyoming Limited Liability Company, Appellee (Plaintiff).
    No. 01-193.
    Supreme Court of Wyoming.
    Jan. 13, 2004.

      Representing Appellant: William D. Bag-ley of Bagley, Karpan, Rose & White, LLC, Cheyenne, Wyoming.
    Representing Appellee: Alexander K. Da-vison, Wendy J. Curtis, and Terry W. Connolly of Patton & Davison, Cheyenne, Wyoming. Argument by Mr. Connolly.
    - Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[T1] Wyoming.com LLC (hereinafter "Wyoming.com") is a Wyoming limited liability company of which E. Michael Lieberman was a member. In 1998, Lieberman filed a notice of withdrawal of member with Wyoming.com, and the remaining members of Wyoming.com accepted Lieberman's withdrawal as tendered. The parties subsequently could not agree on the financial consequences of Lieberman's withdrawal and filed a petition for declaratory judgment on the issue. Ultimately, the district court, by way of summary judgment, ordered liquidation of Lieberman's equity interest at its capital account value as of the date of his withdrawal as a member. Lieberman appeals.

[12] The Wyoming LLC Act contains no provision relating to the fate of a member's equity interest upon the member's dissocia~ tion. Thus, it was entirely up to the members of Wyoming.com to contractually provide for terms of dissociation. Upon careful review of all the agreements entered into by the parties regarding Wyoming.com, we determine that the agreements contain no provision regarding the equity interest of a dissociating member. Since we can find no provision mandating a different result, Lieberman retains his equity interest. Licber-man is under no obligation to sell his equity interest, and Wyoming.com is under no obligation to buy Lieberman's equity interest. The question of valuation is moot. The decision of the district court liquidating Lieber man's equity interest is reversed, and we remand to the district court for a declaration of the parties' rights consistent with this opinion.

ISSUES

[18] Lieberman presents the following issues for our review:

1. What became of Lieberman's ownership interest?
2. Is there anything in the Wyoming statute or the operating agreement of the parties that requires Lisherman to sell, or the company to purchase, his equity?
3. Absent agreement can the majority members of a limited liability company can not [sic]) acquire the profits and growth interest ("equity") of the minority member.

Wyoming.com presents these issues:

1. The district court did not err in finding that the value of Licherman's equity interest should be determined by the process found in the operating agreement.
2. The district court did not err in finding that Lieberman's interest in Wyoming.com should be valued at the date of his withdrawal.

FACTS

[14] This is the second time this case has been before this Court on appeal. The facts as stated in Lieberman v. Wyoming.com LLC, 11 P.3d 353 (Wyo.2000) (Lieberman I), are as follows:

On September 30, 1994, Steven Moss-brook, Sandra Mossbrook, and Lieberman created Wyoming.com LLC by filing Articles of Organization with the Wyoming Secretary of State. The initial capital contributions to Wyoming.com were valued at $50,000. Licbherman was vested with an initial capital contribution of $20,000, to consist of services rendered and to be rendered. According to the Articles of Organization, Lieberman's contribution represented a 40% ownership interest in the LLC. The Mossbrooks were vested with the remaining $30,000 capital contribution and 60% ownership interest. In August of 1995, the Articles of Organization of Wyoming.com were amended to reflect an increase in capitalization to $100,000. The increase in capitalization was the result of the addition of two members, each of whom was vested with a capital contribution of $25,000, representing a 2.5% ownership interest for each new member. Despite the increase in capitalization, Licberman's ownership interest, as well as his stated capital contribution, remained the same.
On February 27, 1998, Lieberman was terminated as vice president of Wyoming.com and required to leave the business premises. The other members of Wyoming.com met the same day and approved and ratified the termination. On March 18, 1998, Licherman served Wyoming.com and its members with a document titled "Notice of Withdrawal of Member Upon Expulsion: Demand for Return of Contributions to Capit[all." In addition to giving notice of his withdrawal from the company, Lieberman's notice demanded the immediate return of "his share of the current value of the company," estimating the value of his share at $400,000, "based on a recent offer from the Majority Shareholder."
In response to Lieberman's notice of withdrawal, the members of Wyoming.com held a special meeting on March 17, 1998, and accepted Lieberman's withdrawal. The members also elected to continue, rather than dissolve, Wyoming.com. Additionally, they approved the return of Lieberman's $20,000 capital contribution. However, Lieberman refused to accept the $20,000 when it was offered.
Wyoming.com filed suit in June of 1998 asking for a declaration of its rights against Lieberman. Licberman filed suit the same month requesting dissolution of Wyoming.com, and the actions were consolidated. After a hearing on cross motions for summary judgment, the district court granted Wyoming.com's motion for summary judgment and denied Licberman's motion for partial summary judgment. The district court ruled that, because the remaining members of Wyoming.com LLC agreed to continue the business under a right to do so in the Articles of Organization, the company was not in a state of dissolution. The district court further ruled that Lieberman had the right to demand return of only his stated capital contribution, $20,000, which the district court ordered to be paid in cash. Lieberman appealed.

Id. at 855-56 (footnotes omitted).

[15] In Lieberman I, this Court agreed that Wyoming.com was not in a state of dissolution. With regard to Lieberman's demand for the return of his capital contribution we stated:

Lieberman claims the term "contribution to capital" found in Wyo. Stat. Ann. § 17-15-120 should be interpreted to encompass the fair market value of his interest in the LLC and that his return should not be limited to the amount of his initial capital contribution. At this juncture, a distinction must be drawn between withdrawal of a member's capital contribution and the withdrawal from membership in an LLC, often termed dissociation. After a thorough review of $ 17-15-120, we conclude nothing in that provision contemplates a member's rights upon dissociation. Besides the fact that § 17-15-120 speaks only to withdrawal of capital contributions, other provisions in the LLC act support our conclusion that § 17-15-120 does not govern dissociation. The following passage from § 17-15-119, which controls division of profits, envisions withdrawal of capital contribution without dissociation: "If the operating agreement does not so provide, distributions shall be made on the basis of the value of the contributions made by each member to the extent they have been received by the limited liability company and have not been returned." This quoted material clearly contemplates a situation where a member has withdrawn some (or even all) of his eapital contribution but has not dissociated as a member. We conclude a withdrawal of capital contributions pursuant to § 17-15-120 does not also govern a member's rights upon dissociation.

Id. at 859. This Court thus held that, pursuant to statute, Licberman was entitled to the return of his capital contribution, regardless of his status as a member of Wyoming.com. Id. Since Lieberman expected more, however, we remanded the case "because it is unclear what became of Lieberman's ownership or equity interest (as represented by a membership certificate)" requiring further proceedings "for a full declaration of the parties' rights." Id. at 861.

[16] Upon remand, no new evidence was introduced. Wyoming.com filed a motion for partial summary judgment requesting the district court to make two determinations: at what time should Lieberman's equity interest be valued and how should it be valued. Obviously, the parties proceeded under the assumptions that: Lieberman had withdrawn as a member and an equity owner; that he was entitled to his equity interest; and a valuation and buyout was necessary.

[17] Wyoming.com relied upon language in the Operating Agreement to argue that Lieberman's equity interest should be limited to the value of his capital account. The district court agreed with Wyoming.com that the Operating Agreement provided the appropriate method to fully value Lisberman's equity interest. The district court also determined that Lieberman's equity interest should be valued as of the date of his withdrawal as a member. The district court therefore granted Wyoming.com's motion for partial summary judgment on these two issues, holding that "[tlhe defendant is entitled to the balance of his capitol [sic] account as of the date of defendant's withdrawal from the LLC." Since it appears that the value of Lieberman's capital account at the date of his withdrawal was negative, Lieberman appeals.

STANDARD OF REVIEW

This appeal comes to this Court from the grant of a summary judgment. Summary judgments are appropriate when there are no genuine issues as to any material fact and the moving party is entitled to a judgment as a matter of law. W.R.C.P. 56. As there are no issues of material fact in dispute, in this appeal we are called upon to review issues of law. We review issues of law de novo. Goglio v. Star Valley Ranch Ass'n, 2002 WY 94, ¶ 12, 48 P.3d 1072, ¶ 12 (Wyo.2002) ("We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling.")

DISCUSSION

[T9] The district court determined that, as a matter of law, Lieberman "is entitled to the balance of his capitol [sic] account as of the date of [his] withdrawal from the LLC." In reaching this conclusion, the district court misinterpreted the operative documents. The provision defining a member's capital account is found in the Operating Agreement:

ARTICLE VI
CAPITAL ACCOUNTS
DISTRIBUTION OF PROFITS AND LOSSES
6.1 The Company shall maintain accurate records of the Capital Accounts of the Members. Each Member's capital account shall be credited with:
a. The amount of money the Member has contributed to the Company.
b. The fair market value of property the partner has contributed to the Company.
c. The Member's distributive share of Company income and gain.
Each Member's capital account shall be debited with:
a. The amount of money distributed to the Member by the Company.
b. The fair market value of property distributed to the Member by the Company.
c. The Member's distributive share of Company loss and deduction.

6.2 Upon liquidation of the Company (or any Member's interest in the Company), liquidating distributions shall in all cases be made in accordance with the positive capital account balances of the Members. If any Member has a deficit balance in his capital account following the liquidation of his interest in the Company, as determined after taking into account all capital account adjustments for the Company taxable year during which such liquidation cceurs, he is unconditionally obligated to restore the amount of such deficit balance to the Company by the end of such taxable year (or, if later, within 90 days after the date of such liquidation).

6.3 The Members may from time to time declare, and the Company may distribute, accumulated profits determined not necessary for the cash needs of the Company's business. Unless otherwise provided, retained profits shall be deemed an increase in capital contributions of the Company. 6.4 Any distribution of profits declared by the Members and distributed by the Company shall be distributed to the Members according to the percentage of ownership interest of each Member as reflected in the Company records.

6.5 All losses reflected in the books of the Company shall be distributed to the Members according to the percentage of adjusted basis of each Member to the whole of the adjusted bases of all Members. The adjusted basis of each Member shall be defined as equaling the amount of money and the adjusted basis of property contributed or loaned to the Company by the Member, plus the Member's share of the Company's liabilities, less the accumulated losses allocated to the Member. When the adjusted bases of all Members is zero, losses shall be distributed to the Members according to the percentage of ownership interest of each Member as reflected in the Company records.

[T 10] In granting summary judgment, the district court relied upon paragraph 6.2. However, paragraph 6.2 contains no provision addressing the rights and obligations of the members with regard to a member who has withdrawn. Paragraph 6.2 provides a method for distributing capital upon liquidation. It contains no indication of when liquidation can or must occur. It does not mandate a buyout or a liquidation of a member's equity interest. As such, it has no application to the immediate issue and the district court's reliance upon it was misplaced.

[111] Although we could end our discussion here, this appeal involves solely issues of law. In the interest of judicial economy, we deem it prudent to resolve the present issues. Returning then to our question upon remand, what has become of Lieberman's equity interest? This Court began the process of attempting to determine the fate of Lieberman's equity interest in Lieberman I:

Having determined that § 17-15-120 does not control a member's rights upon dissociation, we must determine what became of Lieberman's interest, other than his capital contribution, in Wyoming.com. Unfortunately, it is unclear from the district court's decision letter precisely what became of Lieberman's ownership interest. The Articles of Organization of Wyoming.com credited Licberman with a 40% ownership interest in Wyoming.com, and he now argues he is entitled to payment for this interest at fair market value. In the alternative, he contends he retains that 40% interest because the district court has not resolved that portion of the parties' dispute. Wyoming.com disagrees.
We begin by examining Lieberman's notice of withdrawal. Lieberman strongly disputes any contention that he has simply forfeited his interest, other than his capital contribution, in the LLC. After examining the notice of withdrawal, we cannot say, as a matter of law, that Lieberman forfeited his interest upon his withdrawal because nothing in his withdrawal indicates his intent to do so. Indeed, Lisberman's demand for "his share of the current value of the company," whose value he estimated at $400,000, "based on a recent offer from the Majority Shareholder," indicates he would not easily part with, much less forfeit, his interest. Because we cannot say that, as a matter of law, Lieberman's withdrawal amounted to forfeiture of his interest, and because there is no statutory provision governing dissociation, we look to Wyoming.com's Operating Agreement to determine Licberman's remedy.
Under the Wyoming.com's Operating Agreement, a member's equity interest was to be represented by a membership certificate. The Operating Agreement provides:

ARTICLE IV

Membership Certificates and their Transfer

4.1 Certificates. Membership Certificates representing equity interest in the Company will be in the form determined by the Members. Membership Certificates must be signed by the President and by all other Members. The name and address of the person to whom the Membership Certificate is issued, with the percentage of ownership represented by the certificate, must be entered in the Certificate Register of the Company. In case of a lost, destroyed or mutilated Membership Certificate, a new one may be issued on the terms and indemnity to the Company as the Members may pre-seribe.
4.2 Certificate Register. A Certificate Register will be maintained showing the names and addresses of all members, their total percentage of ownership represented by Membership Certificates, and their respective amount of capital contribution. Any and all changes in Members or their amount of capital contribution may be formalized by filing notice of the same with the Secretary of State by amendment of the Articles of Organization.
4.3 Transfers of Shares. Any Member proposing a transfer or assignment of his Certificate must first notify the Company, in writing, of all the details and consideration for the proposed transfer or assignment. The Company, for the benefit of the remaining Members, will have the first right to acquire the equity by cancellation of the Certificate under the same terms and conditions as provided in the formal Articles of Organization as filed with the Wyoming Secretary of State for Members who are deceased, retired, resigned, expelled, or dissolved.
If the Company declines to elect this option, the remaining Members who desire to participate may proportionately (or in the proportions as the remaining Members may agree) purchase the interest under the same terms and conditions first proposed by the withdrawing Member.
If the transfer or assignment is made as originally proposed and the other Members fail to approve the transfer or assignment by unanimous written consent, the transferee or assignee will have no right to participate in the management of the business and affairs of the Company or to become a Member. The transferee or assignee will only be entitled to receive the share of the profit or other compensation by way of income and the return of contributions to which that Member would otherwise be entitled.

Provision 2.5 provides:

25 Quorum. At any meeting of the Members, a majority of the equity interests, as determined from the capital contribution of each Member as reflected by the books of the Company, represented in person or by proxy, will constitute a quorum at a meeting of Members.

Provision 2.7 provides:

2.7 Voting by Certain Members. Membership Certificates standing in the name of a corporation, partnership or Company may be voted by the officer, partner, agent or proxy as the Bylaws of the entity may prescribe or, in the absence of such provision, as the Board of Directors of the entity may determine. Certificates held by a trustee, personal representative, administrator, executor, guardian or conservator may be voted by him, either in person or by proxy, without a transfer of the certificates into his name.
Under these provisions, it is clear that a member's interest in Wyoming.com was to be represented by membership certificates. There is nothing in the record indicating what became of Lieberman's membership certificate; there is no indication it has been canceled or forfeited.
Wyoming.com's action against Lieberman was commenced as a declaratory judgment action. The stated purpose of the Uniform Declaratory Judgments Act is "to settle and to afford relief from uncertainty and insecurity with respect to legal relations * * *." Wyo. Stat. Ann. § 1-37-114 (Lexis 1999). The act is to be liberally construed to this end. Id.; Reiman Corp. v. City of Cheyenne, 838 P.2d 1182, 1185 (Wyo.1992); In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76, 114 (Wyo.1988); Brimmer v. Thomson, 521 P.2d 574, 577 (Wyo.1974).
As a measure of preventive justice, the declaratory judgment probably has its greatest efficacy. It is designed to enable parties to ascertain and establish their legal relations, so as to conduct themselves accordingly, and thus avoid the necessity of future litigation.
Reiman Corp. v. City of Cheyenne, 838 P.2d at 1185 (quoting Edwin M. Borchard, The Declaratory Judgment-A Needed Procedural Reform (Part II), 28 Yale L.J. 105, 110 (1918)). Here, the parties remain uncertain as to their legal relationship because it is unclear what became of Lieberman's ownership or equity interest (as represented by a membership certificate). Therefore, we conclude it appropriate to remand to the district court for a full declaration of the parties' rights.

Lieberman I, 11 P.3d at 360-61 (footnote omitted).

[112] Essentially, in Ligberman I this Court determined that further information might be available to help identify the contractual rights and obligations of the members upon the withdrawal of a member. Despite this Court's suggestion that the membership certificates might contain applicable contractual language, upon remand, the parties elected to introduce no additional evidence. Thus, this case returns to us with the same record as was available in Ligber-man I.

[113] Since Licberman has not voluntarily forfeited his equity interest, this Court must look to the agreements entered into by the members of Wyoming.com to determine the rights and obligations of the members with regards to a member who has dissociated. The rights and obligations of the members of Wyoming.com are determined pursuant to the operating agreements of Wyoming.com. The record reveals that the parties entered into "Articles of Organization of Wyoming.com LLC" (the "Articles") and an "Operating Agreement of Wyoming.com LLC" (the "Operating Agreement"). These agreements establish Wyoming.com, provide for Wyoming.com's operation, and set forth the mutual obligations between each of Wyoming.com's members. At all times the members have been free to contract any provision they desired, so long as the provision did not conflict with the limited requirements of the Wyoming LLC Act. Determining the fate of Lieberman's equity interest requires this Court to construe these agreements.

[T14] A contract may consist of several documents, Union Pacific Resources Co. v. Texaco, Inc., 882 P.2d 212, 219 (Wyo.1994), which this Court reviews as a whole with the goal of determining the intention of the contracting parties as expressed by their own words. .

The primary purpose in interpreting or construing a contract is to determine the intent and understanding of the parties, and our initial inquiry centers on whether the language of the contract is clear and unambiguous. Reed v. Miles Land and Livestock Co., 2001 WY 16, ¶ 10, 18 P.3d 1161, ¶ 10 (Wyo.2001). The interpretation and construction of a contract are done by the court as a matter of law. Id. Where an agreement is in writing and the language is clear and unambiguous, the parties' intent is to be secured from the four corners of the contract. Cliff & Co., Ltd. v. Anderson, 777 P.2d 595, 598 (Wyo.1989). We consider the contract as a whole, taking into consideration the relationship between the various parts. Id. |

Collins v. Finnell, 2001 WY 74, ¶ 15, 29 P.3d 93, ¶ 15 (Wyo.2001).

[115] The operating agreements of Wyoming.com vest Lieberman with an ownership interest. Lieberman can only be divested of this ownership interest if the members of Wyoming.com contracted for such divestment. Wyoming.com argues that Lieberman's withdrawal as a member mandates his withdrawal as an equity owner, thus triggering a liquidation of his equity interest. In Lieberman I, this Court clarified that "[uJn-der the Wyoming LLC act, a member's interest in an LLC consists of economic and non-economic interests." Id. at 357. These interests are distinct. It is clear from Lisber-man's notice of withdrawal that he had no intention of forfeiting his economic, or equity, interest in the company. Lieberman's withdrawal regarded his non-economic membership interest only.

[116] The operating agreements clearly anticipate a situation where a person could be an equity owner in Wyoming.com but not a member. Provision 4.3 of the Operating Agreement, quoted above, provides that, if a transferee of an ownership interest is not unanimously approved by the remaining members, the transferee maintains the rights of equity ownership but will not be a members. Logically, given the absence of any contractual provision to the contrary, there is no reason to treat a withdrawing member any differently from someone who buys into Wyoming.com without becoming a member. Thus, Lieberman is not a member of Wyoming.com, but he maintains his equity interest and all rights and obligations attendant thereto.

[117] The parties essentially admit this in their respective briefs. Lieberman argues that there is nothing in the agreements allowing Wyoming.com to acquire his ownership interest at less than fair market value, while Wyoming.com argues that there is nothing in the agreements requiring Wyoming.com to pay fair market value for Lieberman's ownership interest. Both arguments are correct. There simply is no contractual agreement that any party must buy or sell an ownership interest for any amount.

[118] Having failed to contractually provide for mandatory liquidation or a buyout, the parties are left in status quo. We have long held that it is the duty of this Court to construe contracts made between parties, not to make a contract for them. Collins, ¶ 21; Flora Const. Co. v. Bridger Valley Elec. Ass'n, Inc., 355 P.2d 884, 886 (Wyo.1960) ("it is not the duty of the court to make a contract for the parties"). We must abide by the terms of their contract. This is especially so since the parties are asking us to create terms and conditions which do not exist in their contract. We decline to alter the contract as written and accepted by these parties in the name of contract interpretation. We will enforce the contract as written and accepted by the parties Lieberman maintains his interest in Wyoming.com. equity

CONCLUSION

[119] Lieberman has withdrawn as a member of Wyoming.com and all remaining members unanimously accepted his withdrawal as a member. Lieberman thus is no longer a member of Wyoming.com. Lieberman does, however, maintain his equity interest in Wyoming.com. There is no contractual provision for a buy-out of his equity interest. Therefore Lieberman cannot force Wyoming.com to buy his interest, and Wyoming.com cannot foree Lieberman to sell his interest. Because the members of Wyoming.com failed to contractually provide for a buy-out, Lieberman remains an equity holder in Wyoming.com. There are no further rights or obligations of the parties for this court to construe with regards to this situation. The grant of summary judgment is reversed and the matter remanded to the district court for a declaration of the parties' rights consistent with this opinion.

LEHMAN, Justice,

dissenting, with whom KITE, Justice, joins.

[420] I respectfully dissent. I agree that paragraph 6.2 of the Operating Agreement only provides a method for distributing capital upon liquidation and that the district court erred in relying on that subsection to find that Lieberman was entitled to only his capital contribution upon withdrawal. € 10. I also agree with the majority that a thorough review of the Operating Agreement discloses no express provision for dealing with a dissociated member's equity interest. 113 and n. 2.

[121] However, I must disagree with the majority's determination of the consequence for the failure to provide such a provision. As the majority noted in 114, we must review the contract of the parties as a whole with the goal of determining the intent of the contracting parties. The right of a member to withdraw from membership in the LLC is evidenced in the provisions of the operating agreement. Also clearly expressed is the right of the remaining members to continue the business after such a withdrawal. The provision addressing this right states:

9. Continuity. The remaining members of the LLC, providing they are two or more in number, will have the right to continue the business on the death, retirement, resignation, expulsion, bankruptey or dissolution of a member or occurrence of any other event which terminates the continued membership of a member in this LLC, in accordance with the voting provisions of the Operating Agreement of the Company.

This provision allows any member to terminate his membership in Wyoming.com by taking any of the listed actions and provides the remaining members the right to continue the business. This provision evidences the parties' intent to allow a member to completely terminate his membership in the LLC without also terminating the LLC. Hand in hand with these rights is the implication that should the remaining members elect to continue, they will have to compensate the withdrawing member for his interest in some manner. It seems intuitive that if the parties allowed for withdrawal and continuation, they must have had some intent to deal with those events. Because the provision mentions nothing of forfeiting the interest or simply becoming a non-member equity owner, the agreement to continue thus implies that there must be some sort of buyout.

[122] Furthermore, the LLC statutory scheme implies that, absent other agreement, a member has a right to terminate his continued membership in the LLC and be compensated for this interest. As we stated in Lieberman I, at 357, an LLC is a hybrid organization including characteristics of both a partnership and a corporation. At the time the legislature enacted the original LLC statutes, an important consideration was the tax ramifications of the newly created entity. At that time, in order -to obtain taxation as a partnership, an LLC could have no more than two of four corporate characteristics: limited liability, central management, free transferability of interests, and continuity of life. Franklin E. Gevurtz, Squesezs-outs and Freeze-outs in Limited Liability Companies, 73 Wash.U.L.Q. 497, 515 n. 96 (1995) (citing Rev. Rul. 93-6, 1993-1 C.B. 229). The LLC entity provided for limited Hability and central management. Therefore, to avoid corporate taxation, the typical LLC statutes choose to utilize partnership principles, rather than corporate principles, for exiting members in order to avoid the LLC having continuity of life. Id.

[123] Partnership exit rules ordinarily allow for any partner to dissolve the firm at any time and demand liquidation and accordingly be paid for his equity interest. Id. at 502. See also Wyo. Stat. Ann § 17-21-601. The legislature clearly recognized this as the normal partnership rule and impliedly endorsed such a rule by providing for an exeeption to this rule if the members agreed otherwise in their operating agreement. Wyo. Stat. Ann. § 17-15-1283. In a sense, carrying on the business following a terminating event became the exception to the general rule that the business would cease when a member left for any reason. Thus, the resulting implication is a member may terminate his membership in an LLC and must be paid for this interest unless otherwise provided.

[124] Therefore, I reach the conclusion that under the terms of the LLC as provided by the Articles of Organization and Operating Agreement, and under the statute, Lieberman could withdraw as a member of Wyoming.com resulting in a foreed buyout of his entire interest. The majority concludes, "Lieberman's withdrawal regarded his non-economic membership interest only." 115. I cannot agree with this conclusion. While a member's interest does in fact consist of an economic and non-economic interest, a withdrawing member does not envision that his withdrawal will result in this split in his interest. As we noted in Lieberman I, at 355-56, Lieberman demanded "his share of the current value of the company," which value he estimated at $400,000, "based on a recent offer from the Majority Shareholder." Clearly Lieberman intended to withdraw his entire interest from the LLC. As such, Lieberman essentially declared his intention to no longer be associated with the LLC. Having accepted this withdrawal, the remaining members were now required and expected to compensate Lieberman for his interest.

[125] The majority has recognized this and stated, "the parties proceeded under the assumptions that: Lisberman had withdrawn as a member and an equity owner; that he was entitled to his equity interest; and a valuation and buyout was necessary." 16. However, they now refuse to provide relief for this situation. In fact, the majority's resolution has created a situation where the remaining members are in a position of power to dictate the terms of any negotiations for a buyout. The remaining members are now conceivably in a position to retain earnings and avoid distributions, but as an equity owner Lisberman would still be required to pay taxes on those earnings. Additionally, Lieberman is no longer a member. He will not be drawing the salary of the member or controlling his equity interest in any manner. While it could be said that this situation arose because of Lieberman's withdrawal, it should be noted that under the majority's analysis the result would apply equally to an expelled member. In such an instance, some of the members could expel a member and then refuse to negotiate for a buyout. Such a result begs for the oppression of one party. While I agree with the majority that it is not our duty to write contract provisions for parties that have failed to do so, I believe it would be much worse to fail to provide a remedy.

[126] Therefore, I would provide such a remedy. Because the Operating Agreement does not provide for a valuation method, I look to the statutes to see if the legislature

provided a default valuation method. As we said in Lieberman I, express provisions for valuing a member's share when that member terminates his membership in the LLC do not exist. However, I do not believe this requires us to unilaterally create a valuation method. The statute expressly provides for the distribution of assets on dissolution. Wyo. Stat. Ann. § 17-15-126. Granted, as we stated in Lieberman I, Lieberman is not entitled to a distribution of assets upon dissolution under this section because there was no dissolution. Lieberman I, at 8358. However, this statute would be a proper valuation tool. This conclusion logically flows from the fact that the general rule is that an LLC must be dissolved upon the termination of a member's membership in the LLC, and the exception to this rule is when the operating agreement contains a provision for carrying on the business. If such a carrying on provision is not placed in the operating agreement, the members receive a distribution in conformance with the provisions of Wyo. Stat. Ann § 17-15-126. The legislature has established this as the proper method of discharging members' equity interests. I see no reason to value the departing member's share differently when the business carries on and only one member departs.

[127] Therefore, absent a provision in the operating agreement, a member's equity interest should be valued at what he would have received had the business been dissolved on the day he terminated his membership in the LLC. I recognize that, because the business is not actually dissolving, this valuation may be difficult and will have to be based to some extent on estimates and appraisals. However, a similar valuation method is used upon the dissociation of a partner from a partnership when the partnership agreement has failed to provide for a valuation method. See Wyo. Stat. Ann. §§ 17-21-603(a), 17-21-701(a), (b). Presumably, then, such estimates and appraisals are attainable.

[T28] Additionally, Wyo. Stat. Ann. § 17-15-126 provides that upon dissolution the proceeds are to be applied first to pay the creditors and then the remainder is to go to the members "in respect of their share of the profits and other compensation by way of income on their contributions" and then lastly to the members "in respect of their contributions to capital." As can be seen by that statute's wording, the proceeds upon dissolution are used to extinguish debt and then are used not only to return a member's capital contribution but also to provide for the member's share of profits and other compensation by way of income on that contribution. Such a provision can encompass many things including the increase in value of any assets, any retained profits, and the goodwill of the company. Therefore, fair market value, which generally accounts for these relevant factors, would be a reasonable alternative estimate of the departing member's share.

[129] Lastly, in instances where a departing member's share is to be valued as detailed above, the remaining members have elected to continue the company. Therefore, some consideration must be given to the duties and hardship the company may encounter as a result of paying the departing member's equity interest. The whole of the LLC statutes evidences the legislature's overall concern for the protection of the LLC's creditors. See Wyo. Stat. Ann. §§ 17-15-105, -119, -120, -126 (LexisNexis 2008). It is evident that the legislature wanted to assure that the LLC's creditors were provided for before the LLC members. Wyo. Stat. Ann. §§ 17-15-120, -126. These observations lead me to conclude that the payment of the departing member's equity interest may take place over a reasonable period of time to avoid the liquidation of essential assets and the possible undercapi-talization of the LLC. To be entitled to prolong the payment over a reasonable time, the LLC must show that immediate payment in full would jeopardize the company's ability to carry on its ordinary business and provide for its creditors. Should payment over time be required, such payment should be secured by a promissory note that provides for reasonable interest. Furthermore, until the member is paid in full, that member should still receive any distributions to which his interest is entitled much like a transferee without the right to participate in the management of the business would under Wyo. Stat. Ann. § 17-15-122 (LexisNexis 2003).

      . Wyoming.com filed a motion to dismiss the appeal on the grounds that the subject order was not a final order for purposes of W.R.A.P. 1.05 and thus not appealable. This court determined that, as a practical matter, the subject order resolved all issues before the district court and thus was a final appealable order and denied the motion to dismiss.

      . Our review is limited to the agreements between the parties because, as stated previously, there is no statutory provision regarding the rights and obligations of members upon the dissociation of a member.

      . Wyo. Stat. Ann. § 17-15-122 contains a similar provision regarding the transferability of interest. The transferee does not become a member without unanimous approval of all members.

      . This Court would be required to supply a liquidation or buy-out provision, including a valuation method, with no evidence as to what these parties intended when they formed Wyoming.com.

      . In Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 245 (Wyo.2000), rejecting one contracting party's claim of unconscionability, this Court said:
      Our reluctance to redraw or nullify the provisions of a contract made by competent parties draws strength from the eloquent statement from the United States Supreme Court which we favorably quoted in Sinclair Oil Corp. [v. Columbia Cas Co., 682 P.2d 975 (Wyo.1984) ]:
      ''The right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appears that they contravene public right or the public welfare. It was well said by Sir George Jessel, M.R., in Printing & Co. v. Sampson, LR. 19 Eq. 465: 'It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider-that you are not lightly to interfere with this freedom of contract.' "
      Id. at 978-79 (quoting Baltimore & Ohio Southwestern Railway Co. v. Voigt, 176 U.S. 498, 505, 20 S.Ct. 385, 387, 44 L.Ed. 560, 565 (1900).

      . Fair market value is generally defined as the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts. Black's Law Dictionary, 597 (6th ed.1990). See also Wyo. Stat. Ann § 39-11-101(a)(vi) (LexisNexis 2001) (defining fair market value as used for taxation purposes).


text:
    The PEOPLE of the State of Colorado, Complainant, v. Charles C. CORBIN, Respondent.
    No. 02PDJ039.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Nov. 20, 2003.

      Opinion by Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board Members HELEN R. STONE and PAUL WILLUMSTAD, both members of the bar.
   REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY DISBARRED

I. BACKGROUND

The People filed a Complaint in this matter on May 17, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The People filed a Proof of Service of Citation and Complaint on June 6, 2002. The Proof of Service showed that the Office of Attorney Regulation Counsel sent Respondent Charles C. Corbin ("Corbin") a certified mailing of the Citation and the Complaint at his registered address in Denver, Colorado. Respondent failed to file an Answer or otherwise respond to the Complaint.

On July 10, 2002, upon the People's motion, the PDJ entered default as to the facts set forth in the Complaint, which were deemed admitted, and as to the claims set forth in the Complaint, which were deemed established. On October 22, 2002, the PDJ vacated the entry of default and the hearing, based on a question of law which remained unresolved by the Complaint: whether an attorney could continue to practice before the United States Patent and Trademark Office although suspended from the practice of law in Colorado.

The People filed an Amended Complaint on January 13, 2008. The Amended Complaint was sent via regular mail to Corbin on the same date. Corbin failed to file an Answer or otherwise respond to the Amended Complaint. On March 5, 2008, upon the People's Motion, the PDJ entered default as to the facts set forth in the Complaint, which were deemed admitted, and as to three claims set forth in the Amended Complaint-Colo. RPC 5.5(a) in Claim I; Colo. RPC 8.4(c) in Claim II; Colo. RPC 8.4(c) in Claim III, which were deemed established. Corbin had adequate notice of the hearing and did not appear in person or through counsel.

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on October 22, 2002, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Helen R. Stone and Paul Willumstad, both members of the bar. A continued hearing was held on June 16, 2008. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado at both hearings. Corbin did not appear either in person or by counsel at the hearing. At the Sanctions Hearing on October 22, 2002, the People's exhibits 1 through 9 were admitted into evidence. Subsequently, on June 16, 2008, the People's exhibits 10 and 12 were admitted into evidence. The Hearing Board considered the People's argument, the facts established by the entry of default, and the exhibits, and made the following findings of fact, which were established by clear and convine-ing evidence.

II. FINDINGS OF FACT

Corbin has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on January 14, 1987, and is registered upon the official ree-ords of the Colorado Supreme Court, registration number 16882. Corbin is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Amended Complaint were deemed admitted by the entry of default, and are therefore established by clear and convincing evidence. See the Amended Complaint attached hereto as exhibit 1. The entry of default as to violations of Colo. RPC 5.5(a), 8.4(c) and 8.4(c) determined that the alleged violations of the Rules of Professional Conduct set forth in the order were established.

III. CONCLUSIONS OF LAW

Corbin was immediately suspended from the practice of law in Colorado on September 18, 1997, and has not applied for reinstatement. Corbin's practice included appearances in twelve trademark matters before the United States Patent and Trademark Office ("Office") despite his suspension in Colorado. Under the relevant federal regulations, and the case law interpreting them, such practice was in violation of the rules governing the practice of law. The relevant federal regulations provide that a trademark owner may only be represented by an attorney or other individual authorized to practice in trademark cases; the provision does not include agents (non-lawyers). 37 CFR. § 2.11 (2003). Definitions pertaining to practice before the Office specify what is meant by the term "attorney" or "lawyer":

Attorney or lawyer means an individual who is a member in good standing of the bar of any United States court or the highest court of any State. A "non-lawyer" is a person who is not an attorney or lawyer.

37 C.F.R. § 10.1(c). There is no category of non-lawyer agents in trademark matters.

Practitioners before the Office include (1) an attorney or agent in patent cases or (2) an individual authorized under 5 U.S.C. § 500(b) or otherwise to practice before the Office in trademark or other non-patent cases. 37 CFR. $ 10.1(r). (emphasis supplied). Thus, attorneys in good standing in a state or other court may represent others before the Office in trademark cases, while non-lawyers (with an exception inapplicable here) may not. Id. § 10.14(b).

The framework for practice before the Office in patent cases is differentiated from that in trademark cases. Non-lawyers are specifically permitted to practice in patent cases, but are not permitted to practice in trademark cases. Failure to specifically include non-attorneys in trademark matters while including them in the patent area supports the conclusion that the omission was intentional. Beeghly v. Mack, 20 P.3d 610, 613 (Colo.2001) (under rule of interpretation expressio unius exclusio alterius, the inclusion of certain items implies the exclusion of others).

According to these regulatory provisions, the respondent could only practice before the Office in trademark cases if he was in good standing of the bar of any United States court or the highest court of any state. Evidence was presented that showed the respondent was not in good standing in any court at the time of the incidents in question. Having been suspended by the Colorado Supreme Court, the respondent's continued practice in trademark cases constituted the unauthorized practice of law.

In Marinangeli v. Lehman, 32 F.Supp.2d 1 (D.D.C.1998), the subject attorney had been suspended in New York and New Jersey for disciplinary reasons related to felony theft. When an investigator for the Office received this information, the investigator informed Marinangeli that he could no longer practice before the Office in trademark cases because of his suspension in New York and New Jersey. Marinangeli was, however, able to continue practicing before the Office as a patent agent, because he did not need bar membership to do so. The Office filed a disciplinary complaint against Marinangeli in 1995 in relation to the felony theft conviction. Thereafter, Marinangeli was suspended for two years for practicing before the Office in patent and trademark cases, even though he had been reinstated from his suspensions in New York and New Jersey. The District Court determined that the subsequent suspension was appropriate. The court noted that it was undisputed that Marinangeli continued to practice trademark law despite being suspended from the New York and New Jersey bars. The court pointed out that attorneys are expected to know and abide by the disciplinary rules, which Marinangeli had not done.

The respondent initiated at least 12 separate applications for trademarks on behalf of others after February 10, 1998, the date of his suspension in Ohio. Each of the 12 trademark applications lists Charles C. Cor-bin as the attorney of record and lists the respondent's address as 1806 South Parker Road, # 375, Denver, Colorado 80281. Thus, the respondent continued to hold himself out as an attorney properly licensed in Colorado even after his suspension in Colorado and Ohio.

By the foregoing acts, respondent violated Colo. RPC 5.5, which provides that a lawyer shall not practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction. The respondent's filing of trademark applications and representation of trademark owners before the Office constituted the practice of law. Under the Office's regulations, the respondent was only authorized to practice in that jurisdiction if he was in good standing in a United States court or in the highest court of some state. The respondent was not in good standing in a United States Court or a state court from February 10, 1998, through 2002. Therefore, he was not authorized to practice trademark law during that time frame. The respondent's practice of law violated the Office's regulations and thus violated Colo. RPC 5.5(a).

Colo. RPC 8.4(c)

The respondent represented Space Research Corporation ("Space Research") in a trademark matter before the Office. Space Research sought registration of the trademark "STARDUST" in connection with jewelry, application number 75/867846. On or about November 9, 1999, Space Research, through its president Jeff Murphy, appointed the respondent to prosecute Space Research's trademark application. At that time, the respondent had been suspended from the practice of law in both Colorado and Ohio. He was not in good standing with the bar of any United States or state court. He was, therefore, not authorized to practice trademark law before the Office.

The respondent did not notify Space Research that he was suspended from the practice of law in Colorado and Ohio. The respondent did not notify Space Research that he could not practice before the Office in the area of trademark law. By his omission, the respondent acted dishonestly and deceitfully. His omission constituted misrepresentation. Through his conduct, the respondent violated Colo. RPC 8.4(c).

Colo. RPC 3.4(c)

The respondent's entry of appearance in the Space Research trademark application for Stardust occurred on or about November 9, 1999. This date is after the respondent's suspension in Ohio, a time when the respondent could no longer practice in trademark matters. The respondent knowingly disobeyed C.R.C.P. 251.28(a) by accepting the Stardust trademark application for Space Research at a time that he was prohibited from accepting any new employment as an attorney in any new case or legal matter. By such conduct, the respondent violated Colo. RPC 8. 4(c)

III. IMPOSITION OF SANCTION

Disbarment is generally appropriate when a lawyer knowingly practices law in violation of an order of suspension, and causes injury or potential injury to a client. ABA Standards for Imposing Lawyer Sane-tions ("ABA Standards") § 8.1. See, also, People v. Zimmermann, 960 P.2d 85 (1998) (attorney was disbarred for, inter alia, practicing law while suspended); People v. Wilson, 882 P.2d 948 (Colo.1992)(attorney disbarred for practicing law while suspended). Here, respondent's practice of law while under suspension warrants disbarment.

The presumed sanction is disbarment where an attorney knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client. ABA Standards § 4.61.

Pursuant to ABA Standards 9.22 to 9.82 respectively, the Hearing Board considered aggravating and mitigating factors in arriving at the appropriate sanction. Since Cor-bin did not participate in these proceedings, no mitigating factors were established. The facts deemed admitted in the Complaint established several aggravating factors pursuant to ABA Standards § 9.22. Corbin had a dishonest or selfish motive. ABA Standards § 9.22(b). Corbin engaged in a pattern of misconduct. ABA Standards § 9.22(c). Corbin failed to respond reasonably to a lawful demand for information from the disciplinary agency, thereby obstructing the disciplinary proceeding. ABA Standards § 9.22(e). An additional aggravator is Cor-bin's substantial experience in the practice of law. ABA Standards § 9.220).

Moreover, Corbin has had prior discipline, an aggravating factor under ABA Standards 9.22(a). On February 16, 1999, Corbin was suspended for three years for neglect, failure

to communicate with clients, misrepresentation, and excessive fees. Corbin practiced law while suspended by filing trademark applications and a motion for reconsideration with the Office. In addition, he ignored the suspension order and misrepresented to clients that he was still authorized to practice law. Corbin's failure to participate in these proceedings confirms that disbarment is warranted.

IV. ORDER

It is therefore ORDERED:

1. CHARLES C. CORBIN, attorney registration 168382, is DISBARRED from the practice of law effective thirty-one days from the date of this Order.
2. Corbin is ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT 1

Debora D. Jones, # 16917, Assistant Regulation Counsel, John S. CHeason, #15011, Regulation Counsel, Denver, for Complainant

AMENDED COMPLAINT

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

Jurisdiction

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on January 14, 1987, and is registered upon the official records of this court, registration no. 16882. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 777 Grant Street, Suite 300, Denver, CO 80208. Another known address is 1806 S. Parker Road, # 375, Denver, CO 80281-2146.

General Information

2. The respondent was immediately suspended from the practice of law in Colorado on September 18, 1997. People v. Corbin, slip op., case no. 97SA338 (Colo.1997). A copy of the Colorado Supreme Court's order was mailed to the respondent at his home and registered addresses. The records indicate that the envelope to his registered address (777 Grant Street, # 800, Denver, CO 80203) was not returned as undeliverable. The respondent has not applied for reinstatement from this or any other suspension in Colorado.

3. On February 10, 1998, pursuant to reciprocal discipline provisions, the respondent was immediately suspended in Ohio, where he was also registered. Disc. Counsel v. Corbin, 81 Ohio St.3d 1231, 690 N.E.2d 9 (1998). The respondent has not applied for reinstatement from this or any other suspension in Ohio.

4. Thereafter, a stipulation was reached between the respondent and the People for the respondent's misconduct in Colorado. As a result, the respondent was suspended from the practice of law in Colorado for three years on February 16, 1999, effective that date. People v. Corbin, 973 P.2d 1273 (Colo.1999). The respondent participated in the stipulation which resulted in this three-year suspension. The respondent's address provided on the stipulation was 1306 So. Parker Rd., Apt. 375, Denver, CO 80231-2146 ("the Parker Road address").

5. The order of suspension was mailed via certified mail to the respondent on or about February 16, 1999, to the Parker Road address, but was returned unclaimed. The letter sent by regular mail to the Parker Road address which provided a copy of the Colorado Supreme Court order of a three-year suspension was not returned as undeliverable.

6. The respondent's suspension in Ohio has remained in effect, and shall remain in effect, until he is reinstated in the State of Colorado. See Letter of Jonathan W. Marshall, Secretary to the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, Exhibit A, attached hereto and incorporated by reference. As the respondent has not been reinstated in Colorado, he is not eligible for and has not been reinstated in Ohio.

7. Upon information and belief, from February 1998 to the present time, the respondent has not been in good standing in any federal court or in the highest court of any state.

Claim I

[Practice of Law in a Jurisdiction in Violation of the Legal Profession Regulations in that Jurisdiction-Colo. RPC 5.5(a) 1

8. Paragraphs 1 through 7 are incorporated herein by reference.

9. Public information documents accessed through the U.S. Patent and Trademark Office ("the Office") website on the Internet indicate that at least 12 separate applications for trademarks were initiated by respondent Charles C. Corbin after February 10, 1998, the date of his suspension in Ohio. Each of the 12 trademark applications lists Charles C. Corbin (the respondent) as the attorney of record and lists the respondent's address as 1306 South Parker Road, #875, Denver, Colorado 80281. Thus, the respondent continued to hold himself out as an attorney properly licensed in Colorado even after his suspension in Colorado and Ohio.

10. 837 CFR. § 2.11 provides that a trademark applicant may only be represented by an attorney or other individual authorized to practice in trademark cases; the provision does not include agents (non-lawyers).

11. An attorney or lawyer means an individual who is a member in good standing of the bar of any United States court or the highest court of any State. A "non-lawyer" is a person who is not an attorney or lawyer. 37 C.F.R. § 10.1(c).

12. Individuals who are not attorneys but were recognized to practice before the Office in trademark cases prior to January 1, 1957, are yecognized as agents who may continue to practice before the Office in trademark cases. The respondent's date of birth is January 8, 1946. The respondent was less than 11 years old on January 1, 1957, and was not recognized by the Office as an authorized practitioner. ° |

13. At the time the respondent filed the trademark applications referenced in paragraph 9 above, he was not in good standing with either the Colorado or Ohio Supreme Court. ' ‘

14. The respondeht was not admitted and in good standing with the bar of any United States court during 1998 through 2002.

15. The respondent was not admitted and in good standing with the bar of any state court during 1998 through 2002.

16. Colo. RPC 5.5(a) provides that a lawyer shall not practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction.

17. The respondent's filing of trademark applications and representation of trademark owners before the Office constituted the practice of law. Under the Office's regulations, the respondent was only authorized to practice in that jurisdiction if he was in good standing in a United States court or in the highest court of some state.

18. The respondent was not in good standing in a United States Court or a state court from February 10, 1998, through 2002. Therefore, he was not authorized to practice trademark law during that time frame. The respondent's practice of law violated the Office's regulations.

19. The respondent's practice of trademark law while he was suspended was in violation of a jurisdiction's regulations of the legal profession, in violation of Colo. RPC 5.5(a).

20. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5; and violates Colo. RPC 5.5(a) (practice of law in violation

of a jurisdiction's legal profession regulations).

WHEREFORE, the complainant prays at the conclusion hereof.

I. Claim II

[A Lawyer Shall Act With Reasonable Diligence and Promptness in Representing a Client and Shall Not Neglect a Legal Matter Entrusted to That Lawyer-Colo. RPC 1.3; A Lawyer Shall Keep a Client Reasonably Informed About the Status of a Matter, and Promptly Comply With Reasonable Requests for Information-Colo. RPC 1.4(a); A Lawyer Shall Explain a Matter to the Extent Reasonably Necessary to Permit the Client to Make Informed Decisions Regarding the Representation Colo. RPC 14(b); A Lawyer Shall Not Engage in Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation-Colo. RPC 8.4(c) 1 ~

21. Paragraphs 1 through 15 are incorporated herein by reference.

22. Space Research Corporation ("Space Research") is a small business that markets products that include jewelry and novelty items relating to space themes, and to mete- or particles in particular.

23. On or about September 29, 1997, Space Research filed an application seeking registration of the trademark "STARDUST" in connection with jewelry, application number 75/8367346.

24: On or about November 9, 1999, Space Research, through its president Jeff Murphy, appointed Charles C. Corbin, the respondent in this disciplinary proceeding, to prosecute Space Research's trademark application referenced above.

25. Thus, an attorney-client relationship was formed, thereby creating an obligation to perform the agreed-upon services By agreeing to perform the agreed-upon services, the respondent inherently represented that he would provide such services in accordance with the Colorado Rules of Professional Conduct.

26. At that time, the respondent had been suspended from the practice of law in both Colorado and Ohio. He was not in good standing with the bar of any United States or state court. He was, therefore, not authorized to practice trademark law before the Office.

27. The respondent did not notify Space Research that he was suspended from the practice of law in Colorado and Ohio. The respondent did not notify Space Research that he could not practice before the Office in the area of trademark law.

28. In letters dated November 28, 19983, and December 9, 1999, the respondent indicated that he had conducted various activities with the Office on behalf of Space Research, directed to obtaining registration of the trademark Stardust.

29. A notice of publication under 12(2) was issued January 7, 2000, in regard to Space Research's application. The respondent forwarded the notice of publication to Space Research on or about January 17, 2000.

30. On or about March 7, 2000, Stardust Diamond Corporation ("Stardust Diamond") filed a request for extension of time to file its notice of opposition to registration of Space Research's trademark Stardust. The respondent received a copy of this notice. The respondent did not forward these documents to Space Research until approximately April 25, 2000.

31. Stardust Diamond filed a request for further extension of time, which was granted by the Trademark Trial and Appeal Board. The respondent forwarded to Space Research a copy of the Board's grant of the extension.

32. On or about June 6, 2000, Stardust Diamond filed a notice of opposition to the application of Space Research. On June 21, 2000, the Board mailed notification to the respondent indicating that Space Research's answer was due 40 days after the mailing date of that notice (or approximately July 31, 2000). The respondent received this notification. The respondent did not forward these documents to Space Research, and he did not

inform Space Research that Stardust Diamond had filed a notice of opposition and that an answer was due to the notice of opposition.

33. On or about July 81, 2000, Stardust Diamond served its first set of requests for production of documents and interrogatories by sending them to the respondent. On or about August 11, 2000, the respondent forwarded copies of these documents to Space Research. In the cover letter, the respondent did not mention that an answer in response to the notice of opposition was overdue, or whether an answer had been filed.

34. On or about September 12, 2000, the respondent provided Space Research with a letter detailing the status of Space Research's various trademark applications being prosecuted by the respondent. The respondent did not indicate that an answer should have been filed in response to Stardust Diamond's notice of opposition. The respondent did not indicate whether any discovery had been conducted or whether any discovery responses had been filed.

35. On or about October 18, 2000, the Board mailed to the respondent an order to show cause why judgment by default should not be entered against Space Research in accordance with F.R.C.P. 55(b) for failing to answer or file a motion for extension of time. The order indicated that a notice of default had previously entered against Space Research, and provided 30 days as the deadline for responding to the show cause order. The respondent received a copy of this order. The respondent did not forward this order to Space Research.

36. In late October, 2000, Space Research requested that a different law firm review its various trademark cases being prosecuted by the respondent. Attorneys from the firm Timothy J. Martin, P.C. attempted to contact the respondent numerous times over several weeks to obtain copies of Space Research's trademark files.

37. On at least one occasion, an attorney from the firm T.J. Martin, P.C., was able to reach the respondent by telephone. At that time the respondent indicated that he would forward Space Research's trademark files promptly. However, the respondent failed to do so.

88. On or about November 18, 2000, one month after the order to show cause was issued, the respondent forwarded Space Research's files regarding several trademark matters, including the one involving Stardust, to the Law Offices of Timothy J. Martin, P.C. The file was not received by the Law Office of Timothy J. Martin, P.C., until several days thereafter.

39. The file provided by the respondent appeared to be missing various documents relating to the trademark case of Stardust. Upon organizing and reviewing the file from the respondent, Space Research became aware for the first time that (1) an answer had not been filed to the opposition notice, (2) the order to show cause had already issued by the Board, and (8) no response to the order to show cause had been filed by the respondent on behalf of Space Research.

40. Colo. RPC 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client, and that a lawyer shall not neglect a legal matter entrusted to that lawyer.

41. The respondent failed to file any response to the Notice of Opposition, and the respondent did not file a response to the Show Cause Order. The respondent did not withdraw from the representation based on his inability to provide legal representation to Space Research.

42. The respondent was required to complete each of the specific tasks described above. Each of these failures by the respondent constitutes a separate incident of lack of diligence and promptness, and/or neglect, as do all of them together.

48. The respondent knew or should have known that his lack of diligence and promptness, and/or neglect continued to occur over a period of months and involved a pattern and practice of lack of diligence and promptness, and/or neglect.

44. The respondent's lack of diligence and promptness, and/or neglect caused potentially serious injury to the client.

45. By such conduct, the respondent violated Colo. RPC 1.3.

46. Colo. RPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter.

47. The respondent failed to keep his client reasonably informed about the status of a legal matter by failing to inform his client that it needed to (1) file an answer in response to the notice of opposition or (2) request an extension of time within which to file such an answer.

48. The respondent knew or should have known that his failure to keep his client reasonably informed about the status of the matter and advise the client of the steps which needed to be taken continued over a period of months. During that time the respondent received information from the Board, but the respondent did not inform his client that it needed to obtain authorized counsel to prepare and file an answer.

49. The respondent's lack of communication caused potentially serious injury to the client.

50. The respondent's failure to communicate with his client violated Colo. RPC 1.4(a).

51. Colo. RPC 1.4(b) provides that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

52. The respondent failed to provide adequate explanation to the client so that the client knew that it needed to obtain authorized counsel to (1) file an answer and response to the notice of opposition or (2) request an extension of time within which to file such an answer.

53. The respondent knew that his failure to explain the matter to the extent reasonably necessary continued over a period of months.

54. The respondent's failure to provide a reasonable explanation of the client's matter caused potentially serious injury to the client.

55. The respondent's failure to provide reasonable explanation to his client violated Colo. RPC 1.4(b).

56. Colo. RPC 8.4(c) provides that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

57. The respondent failed to inform the representative of Space Research that the respondent was no longer authorized to practice trademark law before the Office.

58. The respondent knew or should have known that he was no longer authorized to practice trademark law before the Office, and he had an obligation to inform the client of this.

59. The respondent intentionally or knowingly or recklessly failed to tell his client that the respondent was no longer authorized to practice trademark law before the Office. The respondent engaged in such knowing failure for a dishonest or selfish reason.

60. By his omission, the respondent acted dishonestly and deceitfully. His omission constituted misrepresentation.

61. Through his conduct, the respondent violated Colo. RPC 8.4(c).

WHEREFORE, the complainant prays at the conclusion hereof.

II. Claim III

[Upon Termination of Representation, a Lawyer Shall Take Steps to the Extent Reasonably Practicable to Protect a Client's Interest-Colo. RPC 1.16(d); A Lawyer Shall Not Knowingly Disobey an Obligation Under the Rules of a Tribunal-Colo. RPC 8.4(c)]

62. Paragraphs 1 through 15 and paragraphs 22 through 839 are incorporated herein by reference.

63. Colo. RPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as surrendering papers and property to which the client is entitled.

64. When the respondent was no longer «in good standing with any federal or state court's bar, he was no longer authorized to practice law before the Office. Such lack of

authorization constituted a termination of the respondent's representation of Space Research.

65. Upon such termination, the respondent should have taken steps to the extent reasonably practicable to protect the client's interests.

66. When Space Research retained other counsel and requested its files, the respondent failed to provide the files timely. Time was of the essence, as an answer to the notice of opposition had not been filed on behalf of Space Research, and an order to show cause had issued which required answer by a date certain.

67. The respondent did not take steps to the extent practicable to protect the interests of Space Research.

68. Through his conduct, the respondent violated Colo. RPC 1.16(d).

69. Colo. RPC 8.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal.

70. C.R.C.P. 251.28(a) provides that, after the entry of an order of suspension, an attorney may not accept any new retainer or employment as an attorney in any new case or legal matter.

71. The respondent knew, or is presumed to have known, of his obligations under said rule of a tribunal.

72. The respondent's entry of appearance in the Space Research trademark application for Stardust occurred on or about November 9, 1999. This date is after the respondent's suspension in Ohio, a time when the respondent could no longer practice in trademark matters. The respondent knowingly disobeyed C.R.C.P. 251.28(a) by accepting the Stardust trademark application for Space Research at a time that he was prohibited from accepting any new employment as an attorney in any new case or legal matter.

73. By such conduct, the respondent violated Colo. RPC 8.4(c).

WHEREFORE, it is prayed that the respondent be found to have engaged in misconduct under C.R.C.P. 251.5 and the Colorado Rules of Professional Conduct as described above; the respondent be appropriately disciplined for such misconduct; the respondent be required to take any other remedial action appropriate under the cireumstances; and the respondent be assessed the costs of this proceeding.

      . The owner of a trademark may file or prosecute his or her own application for registration of a trademark.

      . 5 U.S.C. § 500(b) provides that any individual who is a member in good standing of the bar of the highest court of a State may represent a person before an administrative agency on filing with the agency a written declaration that he is currently qualified and is authorized to represent a particular person in whose behalf he acts (emphasis supplied).

      . Individuals who are not attorneys but were recognized to practice before the Office in trademark cases prior to January 1, 1957, are recognized as agents who may continue to practice before the Office in trademark cases. There is no evidence that the respondent qualifies for this exception.

      . An attorney is not required to apply for registration or recognition to practice before the Office in trademark and other non-patent cases. 37 CFR. § 10.14(a).

      . On February 10, 1998, pursuant to reciprocal discipline provisions, the respondent was immediately suspended in Ohio, where he was also registered. Disc. Counsel v. Corbin, 81 Ohio St.3d 1231, 690 N.E.2d 9 (1998). The respondent has not applied for reinstatement from this or any other suspension in Ohio.

      . Colo. RPC 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

      . CRCP. 251.28(a) provides that, after entry of an order of suspension, an attorney may not accept any new retainer or employment as an attorney in any new case or legal matter.

      . Colo. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

      . The owner of a trademark may file or prosecute his or her own application for registration of a trademark.