author: STEWART, Judge. MANNHEIMER, Judge,

text:
    Norman R. WATT, Appellant, v. STATE of Alaska, Appellee.
    No. A-8417.
    Court of Appeals of Alaska.
    Jan. 3, 2003.
    Laurel Bennett, Assistant Public Defender, Palmer, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Richard K. Payne, Assistant District Attorney, Roman Kalytiak, District Attorney, Palmer, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

This is a peremptory challenge appeal brought by Norman R. Watt under Alaska Appellate Rule 216(a)(2). Superior Court Judge pro tem Joel H. Bolger ruled that Watt’s Notice of Change of Judge under Alaska Criminal Rule 25(d) was untimely. For the reasons expressed here, we reverse the superior court.

On Saturday, July 6, 2002, the Valdez police received a report that Watt had engaged in sexual penetration with 12-year-old C.L. After investigating this report, the police arrested Watt and charged him by complaint with one count of first-degree sexual abuse of a minor. The next day, July 7, 2002, Watt appeared before Judge Bolger in district court on the complaint. Judge Bolger appointed the Public Defender Agency to represent Watt, scheduled a preliminary hearing, and assigned himself to the case for trial. Watt received copies of the documents incorporating these orders and those same documents were faxed to the public defender. Within five days, an assistant public defender appeared for Watt and the case was continued by stipulation of the parties.

Within a few weeks, the parties reached a plea agreement. Under the plea agreement, Watt agreed to waive indictment and plead in superior court to an information that charged two counts of first-degree sexual abuse of a minor involving two victims, C.L. and another minor, K.M.L. The plea agreement specified that the superior court could impose no less than 10 years and no more than 15 years to serve on the two counts.

On August 30, 2002, Watt filed a request to transfer the case to the superior court for a change of plea on the information as contemplated by the plea agreement. He also filed a Notice of Change of Judge under Criminal Rule 25(d) to preempt Judge Bolger. Judge Bolger denied the challenge as untimely because he was first assigned to the case on July 7.

Alaska Statute 22.20.022 grants a party the substantive right to disqualify a judge peremptorily. According to AS 22.20.022(c), a party must exercise that right “within five days after the case is at issue upon a question of fact, or within five days after the issue is assigned to a judge, whichever event occurs later[J”

In criminal eases, the procedure for implementing this right is specified in Criminal Rule 25. Alaska Criminal Rule 25(d)(2) now provides as follows:

(2) Procedure. A party may exercise the party’s right to a change of judge by filing a “Notice of Change of Judge” signed by counsel, if any, stating the name of the judge to be changed. The notice shall neither specify grounds nor be accompanied by an affidavit. The notice of change of judge is timely if filed within five days after notice that the case has been assigned to a specific judge.

Judge Bolger’s ruling that Watt’s challenge was untimely is understandable in light of this subsection of the rule because Watt’s notice was filed weeks after Judge Bolger assigned himself to the case. And the parties’ pleadings in the trial court did not alert Judge Bolger to any other authority.

But in Morgan v. State, the Alaska Supreme Court reviewed the denial of a peremptory challenge under circumstances similar to those in Watt’s case. Morgan first appeared on a felony complaint before Superior Court Judge Christopher R. Cooke sitting in the district court. At that time, Bethel was a single-judge location (as is Valdez where Judge Bolger sits). After the grand jury returned an indictment, the case was calendared for an arraignment in superi- or court with Judge Cooke assigned to the case. At the superior court arraignment, Morgan moved to disqualify Judge Cooke peremptorily but Judge Cooke denied the challenge as untimely.

At that time, former Criminal Rule 25(d)(2) provided as follows:

At the time required for filing the omnibus hearing form, or within five days after a judge is assigned the ease for the first time, a party may exercise his right to change of judge by noting the request on the omnibus hearing form or by filing a ‘Notice of Change of Judge’ signed by counsel, if any, stating the name of the judge to be changed. A judge may honor a timely informal request for change of judge, entering upon the record the date of the request and the name of the party requesting it.

Reading the language of the statute together with the rule, the supreme court held that Morgan’s challenge at arraignment upon the entry of his plea was a timely exercise of his substantive statutory right. The supreme court ruled that a felony case is “at issue under a question of fact” under AS 22.20.022(e) when jurisdiction of the case is transferred to the superior court for a defendant’s plea upon the return of an indictment.

Since Morgan was decided, the supreme court has amended Criminal Rule 25(d)(2) several times. But nothing in the amendments to the rule or the legislative history of those amendments suggests that the supreme court intended to modify their interpretation of the substantive statutory right discussed in Morgan.

Pursuant to the plea agreement, Watt’s case was transferred to superior court for a plea on the information. Watt attempted to challenge Judge Bolger when he requested this transfer for his plea. Even though Watt had an outstanding agreement to change his plea to the information, Watt’s case was not at issue on a question of fact under that information until the case was in the superior court for an entry of plea on that information.

We conclude that Morgan controls this case. Watt’s challenge was timely under Morgan. Thus, Judge Bolger’s assignment of the case to himself for trial in the superior court on July 7th while the case was still in district court could not extinguish Watt’s right to a peremptory challenge upon the entry of a plea in superior court.

The order denying Watt’s Notice of Change of Judge is REVERSED.

MANNHEIMER, Judge,

concurring.

I agree with my colleagues’ resolution of this case, but I write separately to explain more explicitly why we reject the argument presented by the State.

After the State filed its felony complaint against Watt, but while Watt’s case was still in the district court (i.e., before Watt was indicted or agreed to waive indictment and be prosecuted by information), Judge Bolger notified the parties that he would be the trial judge. Both parties in this appeal agree that the underlying issue in this case is whether Judge Bolger could validly do this. More specifically, the issue is whether any judge can be assigned to the trial of a felony case during the pre-indictment stage of the case, while the proceedings are still being handled in the district court.

If Judge Bolger’s assignment as the trial judge was lawful, then Watt’s challenge to Judge Bolger was untimely. But Watt argues that, for purposes of the peremptory challenge rule, no judge can validly be assigned to a felony trial until the defendant is arraigned in the superior court.

At oral argument, both parties agreed that our resolution of this appeal is governed by the supreme court’s decision in Morgan v. State, 635 P.2d 472 (Alaska 1981). But the parties presented competing interpretations of the rule announced in Morgan.

Morgan presented circumstances that are similar to the present case. In April 1978, in Bethel, Morgan was charged by complaint with several felony offenses. Superior Court Judge Christopher Cooke, sitting as a district court judge, handled various proceedings in the district court pending Morgan’s indictment. The grand jury indicted Morgan on May 8th and, on that same date, the clerk of court sent out a notice calendaring Morgan’s superior court arraignment for May 10th. In that same calendaring notice, the parties were formally notified that Judge Cooke was to be the trial judge.

At his arraignment on May 10th, Morgan tried to peremptorily challenge Judge Cooke, but the judge directed Morgan to file a written pleading. That pleading was not filed until May 18th — at which time, Judge Cooke denied Morgan’s challenge as untimely. Morgan ultimately appealed the denial of his peremptory challenge.

On appeal, the State argued that Morgan knew from the very beginning that Judge Cooke would be his trial judge — because Judge Cooke was Bethel’s sole resident judge, and all matters (both in the district court and the superior court) were routinely assigned to him. The supreme court rejected this argument and ruled that Judge Cooke was not formally assigned to Morgan’s case until the clerk issued the calendaring notice on May 8th.

At oral argument in Watt’s case, the State suggested that the supreme court’s decision in Morgan turned on the fact that, even though everyone in Bethel might have known that Judge Cooke would be the trial judge, the parties received no formal notice of Judge Cooke’s assignment until the clerk issued the calendaring notice. The State suggested that if Judge Cooke had done what Judge Bolger did in Watt’s case — te., if Judge Cooke had given the parties early written notice that he would be the trial judge, while Morgan’s case was still pending in the district court — then Morgan’s peremptory challenge would have been late, and Morgan’s case would have been decided differently.

But the wording of the Morgan opinion shows that the supreme court did not base its decision on the fact that there was no earlier formal notice of Judge Cooke’s assignment. Rather, the supreme court stated that no judge could have been assigned to be Morgan’s trial judge until Morgan was indicted:

No judge could have been assigned to the May 10 indictment [sic: the indictment was issued on May 8th] on April 22. Further, the charges of the May 10 [sic] indictment cannot be said to have been at issue upon a question of fact as of April 22, since May 10 [ie., Morgan’s superior court arraignment] was the point at which [Morgan entered] the not guilty plea to the charges in the indictment....

Morgan, 635 P.2d at 477-78. In an accompanying footnote, the court cited an Oregon case for the proposition that “[a] plea of not guilty to an indictment places the cause at issue for the purpose of statutory right of disqualification for bias or prejudice”.

The supreme court then, somewhat surprisingly, declared “that the May 8 date triggered [Morgan’s] five-day period” for peremptorily challenging Judge Cooke under Alaska Criminal Rule 25(d). May 8th was the date that the clerk of court sent out the calendaring notice — the post-indictment notice that scheduled Morgan’s superior court arraignment for May 10th and that formally notified the parties of Judge Cooke’s assignment as trial judge. The supreme court’s choice of May 8th as the starting date for calculating the peremptory challenge deadline is somewhat surprising because, just two paragraphs earlier, the supreme court had suggested that Morgan’s felony charges “[could not] be said to have been at issue upon a question of fact” until Morgan’s superior court arraignment, when he was called upon to enter a plea to the charges. This did not happen until May 10th. The supreme court appears to have disregarded this reasoning when it declared that May 8th was the starting date for calculating Morgan’s peremptory challenge deadline.

I am not sure that I can reconcile these differing strands of legal reasoning in Morgan. But, at a minimum, Morgan stands for the proposition that no judge can be formally assigned to be the trial judge in a felony case until the superior court acquires felony jurisdiction over the defendant (either because the defendant is indicted or because the defendant waives indictment and consents to be prosecuted by information). Thus, the problem in Morgan was not that Judge Cooke failed to send an earlier formal notice of his assignment. The problem was that Judge Cooke could not have sent an earlier formal notice — because the case was not ripe for assignment of a trial judge until Morgan was indicted (or waived indictment).

For these reasons, I concur with my colleagues that Watt’s peremptory challenge of Judge Bolger was timely and should have been granted.

      . AS 11.41.434(a).

      . Gieffels v. State, 552 P.2d 661, 667-68 (Alaska 1976).

      . Id.

      . 635 P.2d 472 (Alaska 1981).

      . Id. at 477.

      . Id. at 474 n. 1.

      . Id. at 474.

      . Id. at 478.

      . Id. at 477-78.

      . Id. at 474 and n. 1.

      . Id.

      . Id. at 477.

      . Id. at 478 n. 8, citing State v. Ring, 122 Or. 644, 259 P. 780 (1927), affirmed 276 U.S. 607, 48 S.Ct 338, 72 L.Ed. 728 (1928).


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. Victor John BARBIERI, Respondent.
    No. 99PDJ008.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    July 6, 2000.
   Opinion issued by

Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members GUDRUN J. RICE, a member of the bar, and FRANCES L. WINSTON, a representative of the public.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: ATTORNEY DISBARRED

This matter was heard on January 7, 2000, before the Presiding Disciplinary Judge (“PDJ”) and two hearing Board members, Gudrun J. Rice, and Frances L. Winston. Luain T. Hensel, assistant attorney regulation counsel, represented the People of the state of Colorado (the “People”). Respondent did not appear either in person or by counsel. The People’s exhibits 1 through 4 were admitted into evidence. The PDJ and Hearing Board heard testimony from the People’s witnesses Nancy Shapiro Adam. The PDJ and Hearing Board considered the exhibits admitted into evidence, the facts set forth in the Complaint and deemed admitted by the entry of default, assessed the credibility of the witness and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Victor John Barbieri has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court of the State of Colorado on October 17,1977, and is registered upon the official records of the Supreme Court, registration No. 08193. Barbi-eri is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

The People filed the Complaint in Case No. 99PDJ008 on January 7, 1999. Barbieri filed an Answer on March 11, 1999. The People filed the Complaint in Case No. 99PDJ061 on April 20, 1999. Although Bar-bieri requested and received an extension of time to Answer, no Answer to the Complaint was filed. The People sought consolidation of the two cases on April 23, 1999. Barbieri did not oppose the request for consolidation and the two matters were consolidated on May 18,1999.

On June 28, 1999, the People filed a Motion for Default in Case No. 99PDJ061 pursuant to C.R.C.P. 251.15(b). Barbieri did not respond to the Motion for Default and on September 3, 1999 default was entered against him in Case No. 99PDJ061. On November 26,1999, the People filed a Motion to Compel and a Motion for Sanctions in the consolidated cases alleging that Barbieri had failed to respond to written discovery and had failed to appear at his properly noticed deposition. Barbieri did not respond to the motions. The PDJ entered an order compelling Barbieri to submit written responses to the discovery and to appear for a deposition and denied the Motion for Sanctions at that time. Barbieri, notwithstanding the orders entered, neither submitted written responses to the discovery nor appeared for his deposition.

A. Case No. 99PDJ008 The Adams Case

In or about December 1991, Nancy Shapiro Adam retained Barbieri to assist her in a dissolution of marriage proceeding. At the same time Ms. Adam was also represented in the dissolution proceeding by Langdon Jor-gensen, a lawyer licensed to practice law in the state of Colorado, and was also receiving legal advice from Byron Delman, a Chicago attorney and longtime family friend and adviser. On April 27, 1993, a decree of dissolution was entered terminating the marriage, resulting in the receipt of substantial assets by Ms. Adam. Barbieri remained as counsel of record in the dissolution action and continued to represent Ms. Adam until she discharged him on February 25, 1994. During the time that Barbieri represented Ms. Adam, she was emotionally vulnerable and relied heavily upon Barbieri for both professional and personal support.

During the period of time Barbieri represented Ms. Adam, he was the majority shareholder and chief executive officer of Moroso, Inc. (“Moroso”), a company engaged in the business of excavation and construction. On or about May 14, 1993, Barbieri, knowing of her receipt of substantial assets, asked Ms. Adam to loan Moroso the sum of $150,000 for construction of a commercial building to be known as the “Titan Road Project.” Barbi-eri prepared a note and deed of trust.

On May 24, 1993, ten days later, Barbieri went to Ms. Adam’s home to discuss the requested loan. Barbieri told Ms. Adam that he estimated that the Titan Road Project would be completed in ninety days within which time permanent financing would be in place and the $150,000 loan would be repaid. Initially, Ms. Adam rejected Barbieri’s proposal. Barbieri was insistent: he refused to leave Ms. Adam’s home until she agreed to the loan. Once Ms. Adam reluctantly agreed to the loan, Barbieri instructed her on how to make a wire transfer of funds.' Ms. Adam wired $150,000 from her brokerage account to the Moroso operating account. Barbieri personally guaranteed the loan.

Prior to the time that the loan funds were advanced, Barbieri did not provide Ms. Adam with any financial information about either himself or Moroso, did not advise Ms. Adam in writing of any conflict of interest, nor did he advise Ms. Adam to seek independent legal advice concerning the business transaction. Neither Moroso nor Barbieri had any substantial experience in the construction industry. Neither Moroso nor Barbieri had obtained bids from subcontractors regarding the project, nor had they obtained any necessary building permits.

By October 1993, the $150,000 loan was in default. In need of additional funds, Barbi-eri solicited another loan from Ms. Adam in the amount of $15,000. Barbieri told Ms. Adam that Moroso had secured contracts to remove snow and needed to purchase snow removal equipment. Ms. Adam agreed to loan the $15,000 to Moroso. Barbieri obtained the loan funds by means of a charge to one of Ms. Adam’s credit cards which was in the possession of Barbieri’s law office. Bar-bieri prepared a handwritten promissory note evidencing the $15,000 loan to Moroso. Barbieri did not sign the note as an officer of Moroso until February 1994, nearly four months after funds were received. The promissory note which Barbieri prepared provided no security for the $15,000 loan. As with the first loan, Barbieri failed to provide Ms. Adam with any financial information about himself or Moroso and did not advise Ms. Adam to seek independent legal advice concerning the business transaction. Barbi-eri did not provide copies of the snow removal contracts for Ms. Adam’s review.

By December 1993, Ms. Adam had received no cash payments on either the $150,000 loan or the $15,000 loan. She had become concerned about the repayment of the two loans. When she expressed her concerns to Barbieri, he offered to have Mo-roso construct a building in Avon, Colorado at cost, and convert the $165,000 debt into an equity position in Moroso. The Avon building was to be constructed of colored cinder block. Barbieri informed Ms. Adam that to insure the concrete block’s timely availability, it would be necessary to place a $45,000 deposit with the concrete block company. In an effort to salvage her earlier advances of funds, Ms. Adam agreed to provide the $45,000 deposit. Barbieri prepared no documentation pertaining to the third advance of funds; there was no correspondence from Barbieri to Ms. Adam discussing the terms of the agreement or any conflict of interest, and Barbieri did not advise Ms. Adam to seek independent legal advice before entering into the business transaction. Contrary to his representations to Ms. Adam, Barbieri did not deposit the $45,000 with the concrete block company. Ms. Adam later discovered that Barbieri had used those funds to buy trucks and land in Nebraska and a vehicle for himself.

Barbieri defaulted on both of the first two loans and failed to repay any portion of the third $45,000 deposit for cinder block, and did not transfer any equity interest in Moro-so to Ms. Adam. In an effort to contain her losses, Ms, Adam redeemed the Titan Road Project out of foreclosure, completed construction of the project after foreclosure, and satisfied all mechanic’s liens against the property. In April 1994, Ms. Adam commenced a lawsuit against Barbieri in Arapahoe County District Court, Case No. 94 CV 753. Immediately prior to trial, Ms. Adam and Barbieri reached a settlement and the case was dismissed. Barbieri made no payments under the settlement agreement. Rather, he challenged the amount due and avoided judgment upon his breach of the settlement agreement for over nine months. Eventually, after significant litigation, judgment was obtained by Ms. Adam against Barbieri in the amount of $168,553.10 plus interest.

On August 12, 1996, Barbieri filed for relief under chapter 7 of the Bankruptcy Code. Ms. Adam retained counsel and challenged Barbieri’s discharge in United States Bankruptcy Court. Ms. Adam incurred $71,000 in legal fees and $5000 in expenses seeking to block Barbieri’s bankruptcy discharge. Eventually, the United States District Court for the District of Colorado approved a discharge of Barbieri’s indebtedness to Ms. Adam.

B. Case No. 99PDJ061 The Burnett Case

In February 1997, Robert Burnett hired Barbieri to represent him in connection with Mr. Burnett’s ex-wife’s attempts to enforce a foreign decree of dissolution and maintenance order. Approximately one month later, Barbieri filed a Verified Motion to Modify Maintenance and a Response to the Petitioner’s Request for Relief. Counsel for the ex-wife filed a response and a Motion to Dismiss challenging the jurisdiction of the court to modify the foreign decree. Barbieri did not respond to the Motion to Dismiss or otherwise address the jurisdictional challenge advanced in the ex-wife’s pleadings. In addition, Barbieri did not inform his client that the ex-wife had challenged the jurisdiction of the court to consider the maintenance modification request submitted earlier by Barbieri.

Not long after the ex-wife filed the pleadings challenging jurisdiction, she filed three additional motions. Barbieri failed to present any responsive pleadings to those three motions. Moreover, he failed to even inform his client that the motions had been filed. On May 28,1997, the court granted all of the motions presented by the ex-wife. The court dismissed Mr. Burnett’s Motion to Modify Maintenance, granted the ex-wife’s Motion for Protective Order and authorized the ex-wife to testify at a September 25, 1997 hearing by telephone. The court limited the scheduled hearing to a determination of the amount of arrearages in support owed by Mr. Burnett. In early May 1997, Mr. Burnett tried to speak with Barbieri concerning the status of his case. Mr. Burnett’s phone calls were not returned.

In late June 1997, Barbieri sent correspondence to Mr. Burnett informing him of the court’s orders. Barbieri did not, however, explain to Mr. Burnett his right to appeal the court’s determination, nor did he provide any advice regarding how the court order could be challenged. Upon receiving Barbieri’s correspondence, Mr. Burnett tried without success to contact Barbieri. Mr. Burnett retained successor counsel. Upon entering the case, successor counsel discovered that there were outstanding discovery requests which Barbieri had never provided to Mr. Burnett. Ultimately, successor counsel was successful in convincing the court to reconsider its ruling under C.R.C.P. 60(b).

II. CONCLUSIONS OF LAW

A. Case No. 99PDJ008— The Adam’s Case

The Complaint in Case No. 99PDJ008 alleges that Barbieri’s conduct violates Colorado Rules of Professional Conduct (“Colo. RPC”) 1.8(a) and Colo. RPC 8.4(a). Colo. RPC 1.8(a) provides:

Conflict of Interest: Prohibited Transactions
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1)the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) the client is informed that use of independent counsel may be advisable and is given a reasonable opportunity to seek the advice of such independent counsel in the transaction; and
(3) the client consents in writing thereto.

During the period Barbieri had an attorney-client relationship with Ms. Adam, he induced his client to make substantial loans and advances to a corporation in which he held a majority ownership interest. He failed to fully disclose the terms of the financial arrangements in writing to his client, he failed to advise his client that the use of independent counsel might be advisable, he failed to allow sufficient time for his client to seek out and confer with independent counsel, and he failed to acquire his client’s consent to the transaction in writing.

As the majority shareholder of Moroso and personal guarantor of the loan, Barbieri’s financial interests were adverse to those of corporate lenders, including Ms. Adam. The existence of that adverse interest was known to Barbieri. In People v. Bennett, 810 P.2d 661, 664 (Colo.1991) the Supreme Court defined full disclosure in conflict of interest situations: [f]ull disclosure ... requires a clear explanation of the differing interests of the lawyer and client, the advantages of seeking independent advice, and a detailed explanation of the risks and disadvantages to the client entailed in the business agreement.” Id., citing In re James, 452 A.2d 163, 167 (D.C.1982). Absent such disclosure, the trust inherent in the attorney-client relationship is subject to misuse by the attorney and may result in the client exercising less than normal business diligence solely because of the high level of trust placed in one’s attorney.

The evidence presented to the PDJ and Hearing Board established by clear and convincing proof that Barbieri not only did not provide full disclosure in any of the three financial transactions with Ms. Adam; on the contrary, he took advantage of the trust relationship inherent in the attorney-client relationship with Ms. Adam to extract business loans and monetary advances from her. Moreover, he knew she was vulnerable and dependent upon his advice and friendship. Barbieri made no effort to comply with the mandatory provisions of Colo. RPC 1.8(a), and by failing to do so caused his client to suffer serious financial harm. His misconduct constituted an egregious violation of Colo. RPC 1.8(a) and therefore a violation of Colo. RPC 8.4(a).

B. Case No. 99PDJ061 The Burnett Case

The Complaint in this portion of the consolidated case alleges that Barbieri’s conduct in connection with his representation of Mr. Burnett violated Colo. RPC 1.1, Colo. RPC 1.3, Colo. RPC 1.4(a), Colo. RPC 1.4(b), Colo. RPC 8.4(g) and Colo. RPC 8.4(h). The PDJ entered default against Barbieri on each of those charges prior to trial except the alleged violation of Colo. RPC 8.4(h). That charge was premised upon the same misconduct relied upon to support the Colo. RPC 8.4(g) charge. Colo. RPC 8.4(h) requires proof of other conduct independent of that prohibited by the other subsections of Colo. RPC 8.4. See In re Thompson, 991 P.2d 820, 824 n. 1 (Colo.1999). Neither the Complaint nor the evidence admitted at trial established any conduct supportive of the Colo. RPC 8.4(h) charge independent of the evidence relied upon to establish the Colo. RPC 8.4(g) charge. Consequently, the Colo. RPC 8.4(h) charge is dismissed with prejudice.

Although the facts established by the default indicate that Barbieri initially filed pleadings on behalf of Burnett in the dissolution and maintenance matter, he thereafter failed to respond to three separate motions filed by the opposing party, at least one of which, if granted, could foreclose his client’s wishes to seek modification of prior court orders. Indeed, Barbieri didn’t even inform his client of the existence of the motion. Burnett attempted to contact Barbieri to determine the status of his case and Barbieri failed to return his client’s telephone calls. Ultimately, the court ruled against Burnett, at least in part due to Barbieri’s neglect. Nearly a month after the adverse rulings, Barbieri wrote to his client and informed him of the court’s decision, but neither explained nor counseled Burnett concerning his right to post-trial relief or his right to appeal the court’s determination. Burnett’s efforts to discuss the court’s decision with Barbieri, like his earlier efforts to obtain information from Barbieri, were met with silence. Eventually, Burnett obtained successor counsel who was successful in convincing the court to reconsider its rulings. Successor counsel, after entering the case, discovered there were outstanding discovery requests in the Burnett file which Barbieri had not forwarded or discussed with his client.

Barbieri’s failure to respond to the motions and failure to forward the outstanding discovery to his client constitute separate violations of Colo. RPC 1.3(a lawyer shall not neglect a legal matter). His failure to forward the discovery requests to his client, his failure to promptly inform his client of the court’s rulings, and his failure to respond to his client’s efforts to contact him constitute violations of Colo. RPC 1.4(a)(a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information). By failing to provide advice regarding his client’s options regarding further proceedings following the court’s rulings, Barbieri violated Colo. RPC 1.4(b)(a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation).

The PDJ and Hearing Board are not prepared to find that the failure to respond to pleadings filed against one’s client constitutes a per se violation of Colo. RPC 1.1. Here, however, Barbieri neither informed his client of the pleadings nor the legal principles applicable to the arguments advanced in them, and he failed to respond to the dispositive pleadings without consultation and agreement of the client. Taken together, Barbi-eri’s actions are a clear violation of Colo. RPC 1.1. His actions do not meet the minimum level of competence required by the bar. Barbieri’s failure to forward discovery requests to his client, in combination with his other professional oversights in the Burnett case, reflect a lack of skill, thoroughness and preparation minimally necessary for the legal representation of clients, and is a violation of Colo. RPC 1.1.

III. SANCTION/IMPOSITION OF DISCIPLINE

The PDJ and Hearing Board find that Barbieri’s misconduct constitutes a violation of duties owed to the client, the profession and the public. The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (“ABA Standards”) are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 4.31(a) provides:

Disbarment is generally appropriate when a lawyer, without the informed consent of client(s):
(a) engages in representation of a client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client.

A lawyer who intentionally exploits the attorney-client relationship by acquiring an ownership, possessory, security or other pecuniary interest adverse to his or her client without adequate disclosure and meaningful consent invites disbarment. Undivided loyalty to one’s client is an indispensable element of the attorney-client relationship. The relationship cannot properly exist absent the lawyer’s uncompromised loyalty to the client’s cause. By acquiring a financial interest adverse to one’s client, a lawyer places himself or herself in the position of choosing between the best course of action for the client and benefiting the lawyer’s personal financial position. It is not the lawyer’s choice to make; rather, it is the client’s choice. The Rules of Professional Conduct mandate that when faced with such a choice, the client must be fully informed, must have sufficient opportunity to reflect upon the proposed transaction with the assistance of independent counsel, if desired, and must evidence his or her consent in writing. Even when all of these requirements are satisfied, the lawyer must remain diligent to insure that his or her loyalty remains undivided and the client’s cause is the one to which the lawyer remains committed.

Barbieri engaged in business transactions with his client, which were intended to benefit himself and his company, knowing that his personal financial interests would become adverse to those of his client upon the consummation of the transactions. By failing to comply with the mandatory requirements of notice, disclosure and writing contained in Colo. RPC 1.8(a), Barbieri deprived his client of the opportunity to effectively evaluate all of the risks and benefits of the proposed business transactions or the potential effect of the adverse interests on Barbieri’s representation of Ms. Adam. His misconduct resulted in a loss to her of not less than $168,000. Additionally, she was required to expend over $76,000 in legal fees and costs, attempting to recover the funds loaned to Barbieri. Under these facts, Ms. Adam suffered serious harm. The ABA Standards provide that disbarment is the presumptive sanction to be imposed in order to protect the public. See Commentary to ABA Standard 4.31.

Under the ABA Standards disbarment is appropriate when, without the informed consent of the clients, the lawyer “engages in representation of a client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client.” ABA Standards 4.31(a); In re Tolley, 975 P.2d 1115, 1121 (Colo.1999)(citing People v. Schindelar, 845 P.2d 1146, 1149 (Colo.1993)(entering into prohibited loan transaction with client, failing to disclose the inherent conflicts of interest involved, and not disclosing the inadequacy of the security for the loan warranted disbarment)); People v. Williams 892 P.2d 885, 888 (Colo.1995)(reciprocal disciplinary proceeding disbarring attorney for, among other rule violations, failing to avoid conflicts of interest); People v. Bennett, 843 P.2d 1385 (Colo.1993)(attorney disbarred for, among other rule violations, borrowing money when there is conflict of interest); People v. Turner, 758 P.2d 1335, 1337 (Colo,1988)(attorney disbarred for fraudulently affixing another attorney’s signature to a motion in order to conceal possible conflict of interest).

The misconduct found in case no. 99PDJ061, the Burnett matter, although not as severe as the misconduct in the Adam case, also suggests that disbarment or a lengthy period of suspension would be required to protect the public. See People v. Farrant, 883 P.2d 1 (Colo.1994)(attorney suspended for three years for neglect of clients’ bankruptcy matter resulting in dismissal of Chapter 13 bankruptcy proceedings coupled with failure to respond to complaint); People v. Odom, 914 P.2d 342 (Colo.1996)(attorney suspended for three years for failing to keep one client informed about status of social security case and former husband’s offer to increase child support, for failing to fulfill contract with client, and failing to refund $2,500 retainer); ABA Standards 4.41(b)(providing that disbarment is generally appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client).

The misconduct from the two consolidated cases, when considered together, reflect a near complete absence of the necessary trustworthiness, honesty, integrity and competence which the bar demands of its members. Barbieri’s conscious election not to participate in these disciplinary proceedings in any meaningful fashion, notwithstanding the mandatory provision contained in C.R.C.P. 251.5(d) that he do so, reinforces that conclusion.

Determination of the ultimate sanction to be imposed requires consideration of both mitigating and aggravating factors established by the evidence presented at the sanctions hearing. Barbieri’s failure to participate in the hearing denies the PDJ and Hearing Board of any opportunity to consider factors in mitigation which might reduce the presumptive sanction of disbarment.

The PDJ and Hearing Board considered aggravating factors pursuant to ABA Standards 9.22. The evidence established numerous aggravating factors. Between 1992 and 1995, Barbieri received four letters of admonition, and in 1997 he received a public censure, all of which arose out of his neglect of client matters and his failure to keep clients adequately informed. See ABA Standard 9.22(a). Repeated prior discipline, particularly when the nature of the misconduct remains unchanged, substantially increases the weight which should be given to that aggravating factor. Repeated similar misconduct, as is present here, indicates a pattern which, in this case, is knowing and intentional. See ABA Standards 9.22(c). Barbieri’s misuse of the attorney-client relationship to secure funds for a business venture to benefit himself reflects a selfish motive. ABA Standards 9.22(b). The extraction of those funds from a client who was vulnerable increases the seriousness of the misconduct. See ABA Standards 9.22(h). The misconduct in the Adam and Burnett cases involved multiple offenses. See ABA Standards 9.22(d). Bar-bieri not only has refused to acknowledge the wrongful nature of his misconduct in both the Adam and Burnett cases, he has actively attempted to shield that misconduct from resolution in the Adam matter. See ABA Standards 9.22(g). Barbieri had substantial experience in the practice of law. See ABA Standards 9.22(i),

Lastly, Barbieri failed to comply with the orders entered in this ease, refused to provide information properly requested pursuant to the Colorado Rules of Civil Procedure during the preparation of this ease and, by so doing, sought in bad faith to obstruct this disciplinary proceeding. The privilege of holding a license to practice law in this state carries with it an obligation to comply with the Rules of Civil Procedure. In disciplinary matters involving an attorney’s conduct, compliance with unchallenged orders issued by the disciplinary body is not elective; it is mandatory. Failure to do so, almost invariably, will insure substantially enhanced discipline. Barbieri’s refusal to comply with the Rules of Civil Procedure and orders issued in this disciplinary proceeding cannot be excused.

IV. ORDER

It is therefore ORDERED:

1. That VICTOR JOHN BARBIERI, attorney registration number 08193, is DISBARRED from the practice of law effective thirty-one days from the date of this Order, and his name shall be stricken from the roll of attorneys licensed to practice law in this state.

2. Prior to the submission of any Petition for Readmission to the practice of law, Barbieri shall pay the sum of $168,553.10, plus interest at the statutory rate from the date of entry of the judgment in case no. 94CV753, Arapahoe County District Court, and the additional sum of $76,000, plus interest at the statutory rate from the date of bankruptcy discharge to Ms Adam or her designee. See People v. Huntzinger, 967 P.2d 160, 163 (Colo.1998).

3. Barbieri is ordered to pay the costs of these proceedings within sixty (60) days of the date of this Order.

4. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days thereafter to submit a response thereto.

      . Barbieri made one payment against the $150,000 loan by way of an offset against Ms. Adam’s legal account with his law office. That offset, in the amount of $1478.33, was never credited to Ms. Adam’s account.

        . Colo. RPC 8.4(a) provides that "[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the act of another.”

      . Colo. RPC 1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

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

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

      . Colo. RPC 8.4(g) provides: "It is professional misconduct for a lawyer to knowingly engage in conduct which violates accepted standards of legal ethics.”

      . Colo. RPC 8.4(h) provides: "It is professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”


text:
    The PEOPLE of the State of Colorado, Complainant, Montie L. BARRINGER, Respondent.
    No. 99PDJ052.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    July 19, 2001.
   Opinion issued by

Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members EDWIN S. KAHN and ROBERT M. MAES, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: ATTORNEY DISBARRED

The Complaint in this matter was filed on June 2, 1999. Montie L. Barringer (“Bar-ringer”) moved for an Order staying the proceedings pending resolution of a civil proceeding in Pueblo County District Court, Case No. 98CV1053, involving the allegations set forth in the Complaint. The Presiding Disciplinary Judge (“PDJ”) granted Barring-er's motion by Order dated August 18, 1999. The stay was then lifted on December 21, 1999, due to Barringer’s failure to comply with the terms of the stay. Upon the People’s motion, by Order dated March 3, 2000, default entered as to the facts set forth in the Complaint, which were deemed established. See People v. Richards, 748 P.2d 341, 347 (Colo.1987).

This matter was heard on March 27, 2000, before the PDJ and two hearing board members, Edwin S. Kahn and Robert M. Maes, both members of the Bar. James S. Sudler, Assistant Regulation Counsel, represented the People of the State of Colorado (the “People”). Barringer failed to appear in person or through counsel.

The People’s exhibits 1 through 8 were admitted into evidence. The PDJ and Hearing Board heard testimony from the People’s witness Deborah Ortiz, Chief Investigator for the Office of Attorney Regulation Counsel. The PDJ and Hearing Board considered argument of counsel, the exhibits admitted, assessed the credibility of the witness, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Montie L. Barringer has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 22, 1978, and is registered upon the official records of the Court, attorney registration number 08658.

In December 1996 Gary Ciancio (“Cian-cio”) retained Barringer to represent him in a workers’ compensation claim, a wrongful termination action, and an unlawful detainer action. Barringer had prior experience as an administrative law judge and previously presided over worker’s compensation matters. On December 19, 1996, Ciancio, who has limited reading abilities, signed a fee agreement with Barringer providing for a thirty-three and one third percent contingent fee for Barringer’s services regarding these three matters. At the time the fee agreement was executed, § 8 — 43—403, 3 C.R.S. (1993) provided that, with regard to worker’s compensation matters, a contingent fee exceeding twenty percent of the amount of contested benefits was presumed unreasonable.

Barringer filed formal claims for workers’ compensation on Ciancio’s behalf and proceeded with the prosecution of those claims under the rules and procedures applicable to worker’s compensation claims. In June 1997, while Barringer was attempting to settle the worker’s compensation claims, Ciancio requested that Barringer represent him in three additional criminal and traffic matters and’ Barringer agreed to do so. Barringer entered his appearance on Ciancio’s behalf in the three matters pending in Fremont County Court: Case No. 96T1531, a probation revocation matter, Case No. 97T606, a matter involving a charge of driving under the influence, and Case No. 97T965, a matter involving a charge of driving while under restraint.

On July 27, 1997, Barringer and Ciancio agreed that Barringer would be paid for these three additional matters out of any settlement reached on Ciancio’s worker’s compensation claim. Barringer quoted Cian-cio an aggregate fee of $7,500 as compensation for the three new matters. As part of the fee agreement on the three new matters, Barringer required that Ciancio sign an Assignment of Proceeds and Power of Attorney (the “Assignment”) which, on its face, authorized Barringer to deduct the $7,500 from any settlement Barringer obtained for Cian-cio in the worker’s compensation case. The Assignment also authorized Barringer to retain any sums received in settlement of the workers’ compensation matters until all fees and costs were paid in the three new criminal and traffic matters.

In early August 1997, a settlement document was prepared and signed to resolve Ciancio’s worker’s compensation matter. Barringer did not communicate with Ciancio regarding the settlement; rather, without Ciancio’s knowledge, authority or consent, Barringer signed Ciancio’s name to the settlement document, and caused it to be filed with the Colorado Compensation Insurance Authority. Barringer also notarized the settlement document attesting to the veracity of Cianeio’s signature. Shortly thereafter, in August 1997, Barringer received the settlement proceeds on Ciancio’s worker’s compensation claim in the amount of $15,000. He endorsed the settlement cheek with Ciancio’s signature although he did not have the authority to do so, and deposited the funds into his trust account. Between September 1997 and October 1998, Ciancio called Barringer numerous times inquiring about the worker’s compensation case and Barringer informed him that the case had not settled. Barringer intended to deceive Ciancio into believing that the case had not settled. Between August 1997 and October 1998, Barringer made no distribution of the worker’s compensation settlement funds to Ciancio. By September 25, 1997, Barringer had, in fact, spent all but $233.74 of Ciancio’s $15,000 settlement funds on personal and business expenses.

During the investigation of this matter, a representative of the Office of Attorney Regulation Counsel asked Barringer whether he had notarized the settlement document as a notary. Barringer admitted that he had notarized the settlement document and stated that his notary commission would not expire until June 1, 2001. In fact, Barringer’s notary powers expired in 1982.

On September 22, 1997, Barringer obtained a resolution of the three newer matters pending against Ciancio: Case No. 96T1531, Case No. 97T606 and Case No. 97T965. In early 1998, Ciancio asked Bar-ringer to represent him in two new criminal matters. Barringer entered his appearance on Ciancio’s behalf in Case No. 97T1727 and Case No. 96M1015 in Fremont County Court. In October, 1998, Barringer withdrew from representing Ciancio in these two matters.

In October 1998, Ciancio contacted the Colorado Compensation Insurance Authority and learned that his worker’s compensation case had settled in August 1997. He was provided with a copy of the settlement check. Ciancio confronted Barringer. Barringer told Ciancio that the funds were in his trust account when in fact they were not, tendered a check in the amount of $1,200 to Ciancio as his portion of the $15,000 worker’s compensation settlement proceeds and told Ciancio that a child support lien had attached to the remaining settlement funds in his trust account. Barringer provided a “trust account summary” to Ciancio, reflecting that from the $15,000 worker’s compensation settlement funds, Barringer deducted $7,500 for fees for his representation of Ciancio in Case No. 97T606, 97T965, and 97T1531, $5,000 as a contingency fee in the worker’s compensation matter, $1,300 for additional unspecified attorney’s fees, and a $1,200 distribution to Ciancio as his portion of the worker’s compensation settlement.

Pursuant to the Agreement between Bar-ringer and Ciancio, Barringer was required to retain any sums received in settlement of the workers’ compensation matters until all fees and costs were paid” relating to the three criminal and traffic matters. Notwithstanding this requirement, Barringer spent virtually all of Ciancio’s settlement funds. Even if Barringer had fully earned the $7,500 fees associated with the criminal and traffic matters and the $5,000 contingency fee in the worker’s compensation matter prior to September 26, 1997, Barringer’s trust account should have still retained no less than $2,500 of Ciancio’s funds on that date. It did not. Barringer therefore converted at least $2,266.26 of his client’s funds between August 26, .1997 and September 26,1997.

II. CONCLUSIONS OF LAW

Default entered as to the facts alleged in the Complaint, which were deemed admitted. Claim One alleges that Barringer violated C.R.C.P. ch. 23.3, The Rules of Professional Conduct (“Colo.RPC”) 8.4(d)(engaging in conduct prejudicial to the administration of justice) and Colo. RPC 1.5(a)(charging an unreasonable fee). Colorado Revised Statutes § 8-43-403, 3 (2000) provides in part that “[o]n unappealed contested cases, a contingent fee exceeding twenty percent of the amount of contested benefits shall be presumed to be unreasonable.” Barringer failed to appear at the sanctions healing in this matter; therefore no evidence was presented to rebut the presumption that the amount Barringer charged was unreasonable. Accordingly, the PDJ and Hearing Board find that Barringer’s contingency fee agreement failed to comply with the requirements of C.R.C.P. ch. 23.3 Rule 3 (contingent fee agreements may not be unreasonable), and Barringer violated Colo. RPC 1.5(a) by charging Ciancio an unreasonable fee. See In re Wimmershoff, 3 P.3d 417, 419 (Colo.2000)(finding that attorney charged an unreasonable fee where he charged and collected an amount in excess of twenty percent in a workers’ compensation matter in violation of Colo. RPC 1.5(a)).

Claim one also alleges that Barringer violated Colo. RPC 8.4(d) “by entering into a contingent fee agreement of the type prohibited by statute.” However, no evidence was presented which would establish that Bar-ringer’s misconduct, although related to a pending court proceeding, prejudicially affected, delayed, interfered with or altered the course of that proceeding or, directly or indirectly, affected the administration of justice. A violation of Colo. RPC 8.4(d), although covering a broad range of attorney misconduct, requires proof of some nexus between the conduct charged and an adverse effect upon the administration of justice. Cf People v. Wright, 35 P.3d 153, (Colo.1999), 21 COLO. LAW. 154,155 (September 1999)(finding a violation of Colo. RPC 8.4(d) for attorney’s conduct which resulted in a direct disruption of pending proceedings); People v. Mannix, 936 P.2d 1285, 1287(Colo.1997)(finding a violation of Colo. RPC 8.4(d) where attorney failed to appear at criminal proceeding). Accordingly, the alleged violations of Colo. RPC 8.4(d) in claim one is dismissed.

Similarly, claim two alleges an additional violation of Colo. RPC 8.4(d) based on Bar-ringer’s obtaining an assignment contrary to the requirements of § 8^12-124, C.R.S. Even if the manner in which Barringer obtained the assignment violated § 8-42-124, C.R.S., no evidence was presented that Bar-ringer’s conduct prejudicially affected, delayed, interfered with or altered the course of a proceeding or, directly or indirectly, affected the administration of justice. Accordingly the alleged violation of Colo. RPC 8.4(d) in claim two is dismissed.

Claim three charges Barringer with a violation of Colo. RPC 1.2(a)(a lawyer shall abide by a client’s decision concerning the scope and objectives of representation), which was dismissed upon the People’s motion at the sanctions hearing. Claim three also alleges a violation of Colo. RPC 1.4(b)(a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision), a violation of Colo. RPC 8.4(b)(committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b), and Colo. RPC 8.4(c)(engaging in conduct involving dishonesty, deceit, or misrepresentation).

Barringer’s failing to consult with Ciancio about the workers’ compensation settlement to an extent reasonably necessary for Ciancio to make an informed decision violated Colo. RPC 1.4(b).

The alleged violation of Colo. RPC 8.4(b) in claim three is based upon the following allegations:

15. The respondent, without Mr. Cian-cio’s knowledge or consent, forged Mr. Ciancio’s signature to the settlement document.
16. The respondent also notarized the settlement document; however, he was not an active notary public as his commission as a notary public expired in 1982. By signing as a notary, the respondent engaged in official misconduct and willful misrepresentation.
17. On August 12,1997, the respondent filed the settlement documents with the Division of Colorado Compensation Insurance Authority.
20. The respondent, by signing Mr. Ciancio’s signatures to the settlement agreement and settlement check without Mr. Cianeio’s knowledge or authorization, engaged in the criminal act of forgery. See C.R.S. § 18-5-102. Additionally, by notarizing the settlement documents when he was not an active notary, the respondent engaged in the criminal acts of official misconduct and willful impersonation. See C.R.S. § 12-55-116 and C.R.S; § 12-5-117, respectively. This conduct constitutes a violation of C.R.C.P. 251.5(b)(commit an act or omission which violates the criminal laws) and Colo. RPC 8.4(b)(commit a criminal act which reflects adversely on the lawyer’s honesty).
21. The respondent, by forging Mr. Ciancio’s signature to the settlement document and by notarizing the settlement documents when he was not an active notary, also violated Colo. RPC 8.4(c)(engage in conduct involving dishonesty, fraud, deceit and misrepresentation).

Colo. RPC 8.4(b) provides that “[i]t is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” The People allege first that Barringer violated Colo. RPC 8.4(b) when he “forged Mr. Cianeio’s signature to the settlement document” and by “signing Mr. Ciancio’s signatures to the settlement agreement and settlement check without Mr. Ciancio’s knowledge or authorization,” in violation of “ § 18-5-102.”

Colorado Revised Statutes § 18-5-102, 6 (1997) provides in relevant part:

(1) A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
(a) Part of an issue of money, stamps, securities, or other valuable instruments issued by a government or governmental agency; or ‘
(c) A deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status.

Both the settlement check and the settlement agreement fall within the purview of § 18-5-102(l)(a) and § 18-5-102(l)(c) respectively; therefore, the statute applies to both instruments. A presumption of intent to defraud is created when the evidence shows that the person charged had knowledge that the instruments were false. Colorado Motor Vehicle Dealer Licensing Bd. v. Northglenn Dodge, Inc., 972 P.2d 707, 715 (Colo.App.1998), citing Cameron v. People, 170 Colo. 504, 462 P.2d 606 (1969). Barring-er knew at the time he executed the settlement agreement and endorsed the settlement check, which he made to appear to be Cian-cio’s signature, that the signatures placed on the instruments were false. Barringer did not appear at the sanctions hearing. Therefore, no evidence was presented to rebut the presumption that Barringer had the intent to defraud. The following additional facts support a finding of intent to defraud: Barring-er’s failing to disclose to the client for thirteen months that the case had been settled and his misrepresentation that the settlement funds were in his trust account when in fact they had almost entirely been spent on personal and business expenses. Barringer had the intent to defraud.

Barringer falsely completed both the settlement check and the settlement agreement. To “falsely complete” a document is “to transform an incomplete' written instrument into a complete one by adding, inserting, or changing matter without the authority of anyone entitled to grant that authority, so that the complete written instrument falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker.” § 18 — 5—101(3)(a) C.R.S. 6 (2000). Barringer transformed both the settlement agreement and settlement check into complete instruments by adding Ciancio’s signature to them without Ciancio’s knowledge. Barringer did so in a manner that made the written instrument appear or purport to be in all respects an authentic creation of or fully authorized by the client.

Additionally, Barringer uttered both the settlement agreement and the falsely endorsed check to third parties. To utter an instrument is to assert, either directly or indirectly, that it is valid. People v. Miralda, 981 P.2d 676, 678 (Colo.App.1999). Hence, the presentation or delivery of a forged instrument to another is generally looked upon as the uttering of such an instrument. Id. See § 18-5-101(8), 6 C.R.S. (2000)(defining “utter” as “to transfer, pass, or deliver, or attempt or cause to be transferred, passed, or delivered, to another person any written instrument, article, or thing”). Where [an individual] has passed an instrument he knows to be false, the factfinder may infer an intent to defraud, particularly if the [individual] enjoyed the proceeds of the passing. People v. Brown, 193 Colo. 120, 562 P.2d 754, 755 (1977). In this ease the intent to defraud can be inferred. Barringer committed forgery by signing Ciancio’s name to the settlement document and endorsing Ciancio’s name on the settlement check, constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) and a violation of Colo. RPC 8.4(b). Barringer’s signing the settlement document and endorsing the settlement check with Ciancio’s signature and notarizing the settlement document as a notary public also violates Colo. RPC 8.4(c)(engaging in conduct involving dishonesty, deceit, fraud, or misrepresentation).

Claim three further alleges that “by notarizing settlement documents when he was not an active notary, the respondent engaged in the criminal acts of official misconduct and willful impersonation. See C.R.S. § 12-55-116 and C.R.S. § 12-5-117(sic), respectively.” Colorado Revised Statutes § 12-55-116, 5 (Supp.1982) provides:

Official misconduct by a notary public liability of notary or surety. (1) A notary public who knowingly and willfully violates the duties imposed by this part 1 commits official misconduct and is guilty of a class 2 misdemeanor.

A violation of this statute requires that the individual be a “notary public” at the time the alleged misconduct occurs. The undisputed facts in this case established that Bar-ringer was not a notary public at the time he notarized the settlement agreement. Consequently, he could not have violated § 12-55-116, 5 C.R.S. (Supp.1982) and the alleged violation of Colo. RPC 8.4(b) premised upon a violation of that statute is dismissed.

Claim three also alleges that Barringer engaged in conduct which violated § 12-55-117, 5 C.R.S. (Supp.1982) as grounds for discipline pursuant to C.R.C.P. 251.5(b) and a violation of Colo. RPC 8.4(b). § 12-55-117, 5 C.R.S. (Supp.1982) provides:

Willful impersonation. Any person who acts as, or otherwise willfully impersonates, a notary public while not lawfully appointed and commissioned to perform notarial acts is guilty of a class 2 misdemeanor.

In August 1997, Barringer falsely assumed the identity of a notary, verified the settlement agreement as having been signed by Ciancio when he himself signed it, and delivered the settlement agreement to the Colorado Compensation Insurance Authority as a true document.

No Colorado authority has been provided to the PDJ and Hearing Board on willful impersonation in the context of disciplinary proceedings, and the PDJ’s own research comes from sister jurisdictions. In the case In the Disciplinary Matter Involving Ronald T. West, 805 P.2d 351 (Alaska 1991), respondent attorney represented a client in a matter concerning recovery of damages against the state for uninsured items lost or damaged in an auto accident. The respondent was in the course of resolving the matter through settlement when the client died. Rather than inform the state that the client had died, the respondent requested that the client’s wife execute a release signing her deceased husband’s name. Respondent then notarized the release stating that he had witnessed the signatures of the deceased client and his wife. The respondent then exchanged the release for the settlement check made out to the deceased client and respondent. In the disciplinary proceeding against the respondent, he asserted that his conduct did not violate DR1-102(A)(4) (the predecessor to Rule 8.4(c)) among other rule violations, because his actions, while possibly negligent, were not intentional. He further argued that his actions in regard to the release were neither fraudulent nor material since the release was not relied upon by the state in making the settlement. The Alaska Supreme Court rejected respondent’s contentions, made a finding that respondent’s conduct was both knowing and intentional', and thus found a violation of DR1-102(A)(4), stating that respondent intended the consequences of his actions; he intended that the state go through with the settlement believing that the deceased client signed the release. The court noted that the requisite intent does not have to include malfeasance, only “the conscious objective or purpose to accomplish a particular result.” West, 805 P.2d at 356, citing the ABA Standards ’ definition of intent as “the conscious objective or purpose to accomplish a particular result.”

A case from the Utah Supreme Court concerns similar misconduct to the within matter. The attorney respondent in the case In the Matter of the Discipline of Mark H. Tanner, 960 P.2d 399 (Utah 1998) accepted a settlement offer without the client’s permission or knowledge, forged and back-dated a special power of attorney, and had his wife, a notary, notarize the document with an expired seal to lend to the document’s authenticity. The respondent attorney then presented the document to an Assistant United States Attorney and settled the case. The attorney, relying on the forged document, turned the funds over to the respondent attorney, who, still without contacting his client, took a portion of the returned amount for himself as attorney fees and expenses. A short time later, the respondent attorney told the client about the settlement, and a month later, over the client’s objection, told the client he intended to keep the entire settlement amount as his fee. The respondent attorney was disbarred. Based on the authority set forth above, the PDJ and Hearing Board find that Barringer’s conduct constitutes grounds for discipline under C.R.C.P. 251.5(b) and a violation of Colo. RPC 8.4(b).

Under Colorado law, a notary appointment and commission is valid for a period of four years unless the commission is revoked. § 12-55-103, 4 C.R.S. (2000). Barringer failed to renew his commission since its expiration in 1982. His affixing his notary seal to the settlement document to attest to the veracity of Ciancio’s signature, noting an invalid future date of expiration of his notary commission, and delivering the settlement agreement to the Colorado Compensation Insurance Authority as a true document establishes that his conduct was knowing. Therefore, Barringer knowingly and willfully impersonated a notary by affixing his signature and notary seal to the settlement documents and thereby violated Colo. RPC 8.4(b).

Claim four alleges a violation of Colo. RPC 1.4(a)(a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information), Colo. RPC 1.15(b)(a lawyer shall, promptly deliver to the client any funds that the client is entitled to receive), Colo. RPC 8.4(e)(engaging in dishonesty, deceit, fraud or misrepresentation), Colo. RPC 8.4(b)(committing a criminal act that reflects adversely on the lawyer’s honesty) and grounds for discipline pursuant to C.R.C.P. 251.5(b). Barringer violated Colo. RPC 1.4(a) by failing to adequately communicate with Ciancio and failing to advise him of the status of the worker’s compensation matter for over a thirteen-month period. Barring-er’s failure to timely provide the settlement funds to Ciancio constitutes a violation of Colo. RPC 1.15(b).

The factual basis in claim four for the alleged violation of Colo. RPC 8.4(b) is the same as the facts set forth in claim three. Accordingly, having found a violation of Colo. RPC 8.4(b) in claim three based on the same factual allegations, the PDJ and Hearing Board dismiss the alleged violation of Colo. RPC 8.4(b) in claim four.

The alleged violation of Colo. RPC 8.4(c) in claim four is premised upon Barringer’s knowingly false statements to his client that the worker’s compensation matter had not settled, when in fact, it had, and his knowingly false statement that the settlement funds were in his trust account when, in fact, these funds had been spent by Barringer. Such misconduct violated Colo. RPC 8.4(c).

Claim five alleges a violation of Colo. RPC 1.15(a)(an attorney shall hold property of clients that is in an attorney’s possession separate from the attorney’s own property) and Colo. RPC 8.4(c)(engaging in dishonesty, deceit, fraud and misrepresentation amounting to knowing conversion). The alleged violation of Colo. RPC 1.16(a) in claim five was dismissed upon the People’s motion at the sanctions hearing. The alleged violation of Colo. RPC 8.4(c) is based on Barringer’s knowing misappropriation of the proceeds from the workers’ compensation settlement. Pursuant to the agreement between Barring-er and Ciancio, Barringer was required to “retain any sums received in such a settlement until all fees and costs are paid” relating to the three criminal and traffic matters. Barringer endorsed the settlement check with Ciancio’s name although he did not have permission to do so, and deposited the check into his trust account on August 26, 1997.

Notwithstanding the requirements set forth in the agreement, Barringer spent virtually all of Ciancio’s settlement funds prior to September 26, 1997. Even if Barringer had fully earned the $7,500 fees associated with the other criminal and traffic matters in which he represented Ciancio prior to September 26, 1997, and the full one third contingency of $6,000 for Barringer’s fees in the worker’s compensation matter, Barringer’s trust account should have still retained no less than $2,600 of Ciancio’s funds. However, on September 25, 1997, Barringer’s trust account had a balance of only $233.74. Bar-ringer therefore converted at least $2,266.26 of his client’s funds between August 26, 1997 and September 25,1997.

Ciancio engaged in extensive efforts to obtain information about the status of his worker’s compensation claim. Although Barring-er was fully aware that the case had settled, funds had been dispersed, and indeed, Bar-ringer had misappropriated some portion of those funds, Barringer repeatedly told Cian-cio the matter had not yet settled. The level, degree, extent and duration of the deceit practiced upon Ciancio by Barringer with regard to the worker’s compensation settlement establishes that his conduct was willful and knowing. In People v. Varallo, 913 P.2d 1, 11 (Colo.1996) the Supreme Court stated:

Knowing misappropriation [for which the lawyer is almost invariably disbarred] “consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking.” (citations omitted). Misappropriation includes “not only stealing, but also unauthorized temporary use for the lawyer’s own purpose, whether or not he derives any personal gain or benefit therefrom.” (citations omitted). The motive of the lawyer is irrelevant in determining the appropriate discipline for knowing misappropriation.

Barringer’s use of the funds belonging to Ciancio constitutes knowing conversion, in violation of Colo. RPC 8.4(c). In re Cleland, 2 P.3d 700, 703 (Colo.2000)(attorney knowingly misappropriating funds belonging to a client or a third person); People v.Coyne, 913 P.2d 12, 14, (Colo.l996)(attorney knowingly misappropriating client funds and engaging in neglect).

Claim six of the Complaint alleges that Barringer’s conduct violated Colo. RPC 8.4(c), based on Barringer’s misrepresentation in the course of an investigative interview with the Office of Attorney Regulation Counsel that his notary commission would not expire until June 1, 2001, when in fact it had expired in 1982. Because we have concluded in an earlier portion of this decision that Barringer knew his notary commission had expired, his statement to the Office of Attorney Regulation Counsel that his notary commission was still valid is a knowing false statement during the course of an investigation and a violation of Colo. RPC 8.4(c). This misrepresentation obstructed the Office of Attorney Regulation Counsel in the performance of its duties.

IV. IMPOSITION OF SANCTIONS

Barringer’s knowing conversion of funds belonging to Ciancio warrants disbarment in the absence of significant factors in mitigation. See In re Thompson, 991 P.2d 820, 823 (Colo.1999); People v. Varallo, 913 P.2d 1,12 (Colo.1996); People v. Young, 864 P.2d 563, 564 (Colo.1993). See also ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) (“ABA Standards ”) 4.11 (providing that disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client). •

Barringer’s knowing misrepresentations to Ciancio with regard to the proceeds of the settlement when Barringer benefited from the use of the settlement proceeds also warrants disbarment. See ABA Standard 4.61 (providing that disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client).

Barringer’s actions caused serious harm to Ciancio. Ciancio was misled for a period of thirteen months that his worker’s compensation matter had not settled and was deprived of the use of the settlement proceeds. In addition to the private harm suffered by the client, the public suffered harm as a result of Barringer’s conduct in affixing his client’s name to the settlement agreement, endorsing the settlement check with the client’s name, and notarizing the settlement agreement when he did not have a current notary commission. As the Alaska Supreme Court stated in West, 805 P.2d at 356, “at a minimum misuse of a notary seal impairs confidence in an attorneys’ honesty.” The West court referred to the conclusion of the Panel which stated:

[Ajctual injury to both the public and the legal profession occurs whenever an attorney falsifies documents, intentionally.misuses his notary seal, or similarly deceives the public or an opposing party. Such actions fall well below the standard of conduct expected of attorneys and, if nothing else, destroys both the public’s and the legal system’s confidence in the honesty of the attorneys with whom they have dealings. West, 805 P.2d at 357.[t]he bar and the public have a right to expect that lawyers will not counsel their clients to affix false signatures to legal documents, misuse their notary power to verify what the attorney knows is a false signature or use documents falsely signed and notarized in settlement of legal disputes: We cannot ignore the fact that our paramount duty, “lies in the assurance that the public will be protected in the performance of the high duties of ... attorneys ... [o]ur primary concern must be the fulfillment of proper professional standards, whatever the unfortunate cause, emotional or otherwise for the attorney’s failure to .do so.”

Id., citing Disciplinary Matter Involving Buckalew, 731 P.2d 48, 54 (Alaska 1986)(quoting In re Possino, 37 Cal.3d 163, 689 P.2d 115, 120, 207 Cal.Rptr. 543 (Cal. 1984)).

The PDJ and Hearing Board conclude that Barringer’s affixing Ciancio’s signature to the settlement agreement without authorization, and his willful impersonation of a notary also warrants disbarment. See ABA Standard 5.11(a) (providing that disbarment is generally appropriate when a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft). The misuse of a notary undermines the integrity of the legal system. In the Matter of Robert F. Hahn, 195 A.D.2d 105, 606 N.Y.S.2d 933, 935 (N.Y.App.Div.1993)(disbarring attorney for, among other violations, a finding that he engaged in dishonesty, deceit, fraud and misrepresentation by notarizing the signature of a fictitious person he knowingly created for the purpose of concealing his involvement with a real estate project and presented the document to a third person); In re Petition for Disciplinary Action Against Jerome J. Holmay, 464 N.W.2d 723, 726 (Minn.1991)(suspending attorney for eighteen months, for, among other violations, directing his secretary to have a notary notarize the signatures on a will although the notary had not witnessed them); In the Matter of Michael A. Alvaro, 56 A.D.2d 693, 391 N.Y.S.2d 722 (N.Y.App.Div.1977)(suspending attorney for a period of six months for, among other rule violations, endorsing a check without his client’s permission and misusing his office notary public by knowingly executing a false affidavit and service of a summons and deceiving the court and the parties as to service of the summons).

The Commentary to ABA Standards 5.11 further provides:

A lawyer who engages in any of the illegal acts listed above has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity. This duty to the public is breached regardless of whether a criminal charge has been brought against the lawyer ... [i]n imposing final discipline in such cases, most courts impose disbarment on lawyers who are convicted of serious felonies.

Barringer’s numerous misrepresentations and dishonest actions amounting to a pattern of deceit add weight to the PD J and Hearing Board’s determination that disbarment is the appropriate sanction in this matter.

The PDJ and hearing board considered matters in mitigation and aggravation pursuant to ABA Standards 9.22 and 9.32 respectively. In aggravation, Barringer had one prior disciplinary offense consisting of a letter of admonition in June 1997, see id. at 9.22(a), he had a dishonest or selfish motive, see id. at 9.22(b), he engaged in multiple offenses, see id. at 9.22(d), he engaged in bad faith obstruction of the disciplinary proceeding by affirmatively misrepresenting the expiration of his notary seal to the Office of Attorney Regulation Counsel, and failing to meaningfully participate in the proceedings, see id. at 9.22(e), Barringer had substantial experience in the practice of law, having practiced since 1979 and having served as an administrative law judge, see id. at 9.22(i), and Barringer failed to demonstrate he had any intention of making restitution, see id. at 9.22(j). Barringer failed to appear at the sanctions hearing; therefore no factors in mitigation were presented.

V. ORDER

It is ORDERED as follows:

1. MONTIE L. BARRINGER, registration number 08658 is DISBARRED effective thirty-one days from the date of issuance of this Order. His name shall be stricken from the roll of attorneys licensed to practice law in this state.

2. Respondent is Ordered to pay the costs of these proceedings.

3. 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.

      . Barringer was immediately suspended from the practice of law by the Colorado Supreme Court on May 13, 1999, for the conduct giving rise to this disciplinary matter.

      . This language was identical to the statute in effect in 1996 and 1997 when the allegations giving rise to this disciplinary action occurred.

      . § 8-42-124(2), 3 C.R.S. (2000) states in relevant part: "[t]he power given in any power of attorney or other authority from any injured employee or the dependents of any killed employee purporting to authorize any other person to receive, be paid, or receipt for any compensation benefits awarded any such claimant shall be wholly void and illegal and of no force and effect....”

      . § 12-55-102(3), 5 C.R.S. (Supp.1982) defines "notary” or "notary public” as "any individual appointed and commissioned to perform notarial acts" (emphasis added).

      . On March 3, 2000, default entered as a sanction against Barringer for failing to appear at the pre-trial conference, failing to respond to motions, failing to file a responsive answer, failing to respond to discovery requests, and failing to respond to his scheduled deposition.