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    The PEOPLE of the State of Colorado, Complainant, v. Jerry R. CLOUGH, Respondent.
    Nos. 02PDJ065, 02PDJ103.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Aug. 13, 2003.

      Attorney Registration. The Hearing Board disbarred Respondent Jerry R. Clough, attorney registration number 25994 from the practice of law following a sanctions hearing in this consolidated default proceeding. Respondent violated Colo. RPC 4.3 by providing legal advice to an unrepresented person and Colo. RPC 4.4 by engaging in abusive conduct toward the same person in a courthouse. In his representation of one client, respondent violated Colo, RPC 8.4(c) by failing to return the fees due the client. Additionally, respondent violated Colo. RPC 8A(d) and Colo. RPC 8.5(c) by failing to appear at trial, Colo. RPC 84(b) and C.R.C.P. 251.5(b) by engaging in disorderly conduct in a courthouse. Respondent violated Colo. RPC 1.8 by failing to appear at the client's trial, failing to investigate the client's legal matter and failing to file a civil suit on her behalf. Respondent violated Colo. RPC l4(a) by failing to communicate with the client; Colo. RPC 1.16(d) by failing to return the client's funds upon request; Colo. RPC 1.5(a) by charging an unreasonable fee and Colo. RPC 5.5(a) by rendering legal advice when under administrative suspension. Respondent was ordered to pay the costs of the disciplinary proceeding.
   Opinion by

Presiding Disciplinary Judge ("PDJ") ROGER L. KEITHLEY,

and Hearing Board Members MARK D. SULLIVAN and E. STEVEN EZELL, both members of the bar.

REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY DISBARRED

I. BACKGROUND

The People filed a Complaint in Case No. 02PDJO65 against Jerry R. Clough ("Clough") on August 22, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date to Clough's registered business address which is also Clough's registered home address. On September 3, 2002, the People filed a Proof of Service with the PDJ. Service was therefore proper pursuant to C.R.C.P. 251.32(b). Clough failed to file an Answer or otherwise respond to the Complaint.

Upon the People's Motion, on October 31, 2002, the PDJ granted default as to the facts set forth in the Complaint in claims one through four, which were deemed admitted. The PDJ granted in part and denied in part the entry of default as to claim five: the court denied default as to the alleged violation of § 18-9-111(1)(b), 6 C.R.S. (2001), and granted default as to the alleged violation of § 18-9-106(1)(c), 6 C.R.S. (2001), both statutes forming the basis for the alleged violation of Colo. RPC 84(b) and grounds for discipline pursuant to C.R.C.P. 251.5(b). The alleged violations of Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) based on the alleged violation of § 6 C.R.S. were dismissed. ~

The People filed a second Complaint against Clough in Case No. OZ2PDJ103 on December 4, 2002. The Citation and Complaint were sent via regular and certified mail to Clough on the same day. The People filed a Proof of Service on December 30, 2002, indicating that Clough did not claim the envelope containing the Complaint and Citation sent via certified mail. The Citation and Complaint sent via regular mail were not returned to the People. Service was therefore proper pursuant to C.R.C.P. 251.32(b). Clough failed to file an Answer or otherwise respond to the Complaint in Case No. O2PDJ108.

Upon the People's Motion for Default, on February 19, 2008, the PDJ granted in part and denied in part the Motion; the court granted the motion as to claims one, two, three, five, and six, and denied the motion as to claims four-alleging a violation of Colo. RPC 8.4(c)-and seven-alleging a violation of Colo. RPC 8.4(h). As a result, the People filed an Amended Complaint on March 3, 2003, as well as a Motion to Dismiss claim seven which the PDJ granted on March 11, 2008. Thereafter, the People filed an Amended Complaint and served it on Clough. Clough failed to file an Answer or otherwise respond to the Amended Complaint. Upon the People's Motion, on April 23, 2003, the PDJ entered default on claims one through six of the Amended Complaint.

Cases O2PDJO065 and O2PDJ108 were consolidated upon the People's Motion by order of the PDJ dated February 19, 2003.

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on July 23, 2008, before a Hearing Board consisting of the PDJ and two Hearing Board Members, Mark D. Sullivan and E. Steven Ezell, both members of the bar. Nancy L. Cohen, Deputy Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Jerry R. Clough did not appear in person or through counsel. At the sanctions hearing, exhibits 1 through 7 were offered by the People and admitted into evidence. The Hearing Board considered the People's argument, the facts established by the entry of default, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence.

II. FINDINGS OF FACT

Clough has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 23, 1993, and is registered upon the official records of the Supreme Court, registration number 25994. Clough is presently suspended for failure to pay his registration fees. He is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Complaint in Case No. O2Z2PDJO065 and in the Amended Complaint in Case No. OZPDJ103 were deemed admitted by the entry of default and are therefore established by clear and convincing evidence. The Complaint and Amended Complaint are attached hereto as Exhibits A and B.

This consolidated matter reveals the following facts concerning Clough's representation of Elizabeth Gabriella ("Gabriella"). Ga-briella contacted Clough to represent her with respect to a misdemeanor assault charge in Larimer County, Colorado. The parties entered into a written flat fee agreement .in August or September 2001 and formed an attorney-client relationship at that time. Pursuant to the fee agreement, Ga-briella agreed to pay a total of $1,000 in legal fees for Clough's representation. At the time Gabriella contacted Clough, he was suspended from the practice of law for failing to pay his registration fees. Gabriella agreed to pay his registration fee together with any late charges to the Office of Attorney Registration. She paid a total amount of $790.00 to the Supreme Court to bring Clough's registration fees current.

Gabriella's trial had originally been set to commence on October 15, 2001. On October 11, 2001, Clough filed two pretrial motions and a motion for continuance. The court granted the motion for continuance and the matter was reset for December 12, 2001. However, Clough failed to notify Gabriella of the new hearing date; consequently, Gabriel-la traveled to Colorado from Texas to attend the previously scheduled October hearing. On December 7, 2001, Clough again filed a motion for continuance with the court,. The court did not rule on the motion prior to the December 12, 2001, hearing. On that date, Clough met with Gabriella and her mother in the courthouse. Clough left them to file a motion with the clerk and when he returned, Gabriella was talking to Misty Narum ("Na-rum"), a witness listed by the District Attorney's Office in Gabriella's matter.

Clough approached Gabriella and Narum and asked about Narum's identity, When she was identified, Clough confronted her and accused her in a very loud voice of drinking and being drunk. Clough also gave Narum advice. Narum was not represented by counsel. When a Deputy Sheriff began walking toward Clough, he left the courthouse and did not reappear in the courtroom for his client's trial. As a result, the court was constrained to continue the trial. Thereafter, Gabriella attempted to reach a resolution of the matter directly with the District Attorney's Office but was unable to do so because Clough failed to formally withdraw from representation until February 2002. Gabriella eventually retained new counsel.

Gabriella requested that Clough return her file to her as well as the fees she had paid. Clough did not complete the services for which he had been hired and, accordingly, did not earn a portion of the fees he had been paid. Clough failed to return his client's papers and failed to return the unearned fee.

Clough also agreed to represent Gabriella in a civil suit for slander against Gabriella's sister. Although he did not know how realistic the slander suit would be, he agreed to represent her but failed to file any case on behalf of Gabriella.

III. CONCLUSIONS OF LAW

Case No. 02P.DJO65

In Case No. 02PDJ065, the entry of default established the following violations of the Colorado Rules of Professional Conduct: Colo. RPC 4.3 (in dealing on behalf of a client with a person who is not represented by counsel, an attorney shall not give advice to the unrepresented person other than to secure counsel) in claim one; Colo. RPC 4.4(in representing a client, an attorney shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person) in claim two; Colo. RPC 8.4(d) (it is professional misconduct for an attorney to engage in conduct prejudicial to the administration of justice) in claim three; Colo. RPC 3.5(c) (an attorney shall not engage in conduct intended to disrupt a tribunal) in claim four; Colo. RPC 8.4(b) (it is professional misconduct for an attorney to commit a criminal act that reflects adversely on the attorney's honesty, trustworthiness or fitness as an attorney in other respects) as to a violation of 18-9-106(1)(e), 6 C.R.S. (2001) constituting grounds for discipline pursuant to C.R.CP. 251.5(b) in claim five.

Clough violated Colo. RPC 4.3 by providing legal advice to Narum, an unrepresented person, and by failing to advise the person to seek independent counsel. See In re Pautler, 47 P.3d 1175, 1182 (Colo.2002) (lawyer violated Colo. RPC 4.3 by misleading a criminal defendant in not informing the criminal defendant that he was from the district attorney's office and by failing to advise the criminal defendant to obtain independent counsel). Clough engaged in abusive conduct toward Narum in the courthouse by using profanity, standing within a foot of her while yelling at her in a loud voice, and accusing her of drinking in violation of Colo. RPC 4.4. Clough's failing to appear at trial resulting in a delay in the proceeding constituted a violation of Colo. RPC 8.4(d) and Colo. RPC 8.5(c). See In re Roose, 69 P.3d 43, 46 (Colo.2003) (lawyer violated Colo. RPC 8.4(d) by engaging in conduct prejudicial to the administration of justice by leaving the courtroom during trial in violation of an express order not to do so). Clough's disorderly conduct in the courthouse with regard to Narum violated Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b).

Case No. O2PDJ103

In Case No. OZ2PDJ108, the entry of default established the following violations of the Colorado Rules of Professional Conduct: Colo. RPC 1.3 (an attorney shall not neglect a legal matter entrusted to that attorney); Colo. RPC 1.4(a) (an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); Colo. RPC 1.16(d)(an attorney shall, upon termination of representation, surrender papers and property to which the client is entitled, and refunding any advance payment of any fee not earned); Colo. RPC 8.4(c) (it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation)}; Colo. RPC 1.5(a) an attorney's fee shall be reasonable; and Colo. RPC 5.5(a) (an attorney shall not practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction).

Clough agreed to provide legal services, did not earn all of the fees which he had been paid, and did not complete the services for which he had been hired. Clough failed to return the remaining fees to the client. Clough exercised dominion or ownership over the funds held for the client's benefit. Through the unauthorized exercise of dominion or ownership over these funds, Clough knowingly converted or misappropriated the funds in violation of Colo. RPC 8.A(c). See People v. Varallo, 913 P.2d 1, 11 (Colo.1996) (sanction for knowing conversion is almost invariably disbarment). See also People v. Wiedman, 36 P.3d 785, 788 (Colo.PDJ 1999) (holding that a lawyer's knowing misappropriation of funds, whether belonging to a client or a third party, warrants disbarment except in the presence of extraordinary factors in mitigation).

Clough's failing to appear at the client's trial on December 12, 2001, failing to investigate her slander case and failing to file a civil suit arising in slander constituted neglect in violation of Colo. RPC 1.8. Clough's failing to explain to his client that the first hearing had been continued and failing to communicate with the client regarding his failure to appear at the trial constituted a violation of Colo. RPC 1.4(a). Clough failed to return Ms. Gabriella's file and unearned fees in violation of Colo. RPC 1.16(d). Clough's fee agreement with Gabriella provided that he would represent her for the criminal case for a flat fee of $1,000 and-notwithstanding that agreement-Clough demanded an additional $4,465 to proceed to trial. Based upon his prior agreement and the lack of any evidence justifying such a demand, Clough's demanded fee was unreasonable in violation of Colo. RPC 1.5(a). See People v. Jamrozek, 921 P.2d 725, 727 (Colo.1996)(attorney - previously - disbarred was found to have charged an excessive fee under a contingent fee contract by arbitrarily demanding an additional $6,500.00 of a frightened and intimidated client at the time of receipt of the settlement check).

Prior to the reinstatement from his administrative suspension from the practice of law, Clough discussed Gabriella's case with her and rendered legal advice, constituting the practice of law in violation of Colo. RPC 5.5(a). See People v. Mannix, 936 P.2d 1285, 1288 (Colo.1997) (continuing to practice law after being notified of suspension for failure to pay registration fee and engaging in other conduct including conduct involving dishonesty, fraud, deceit or misrepresentation, warrants disbarment).

IV. IMPOSITION OF SANCTION

Clough's knowing conversion of client funds is the most serious conduct giving rise to this consolidated proceeding. Varallo, 913 P.2d at 11 provides:

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." citing In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986). 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." citing In re Wilson, 81 N.J. 451, 455 n. 1, 409 A.2d 1153 (1979). The motive of the lawyer is irrelevant in determining the appropriate discipline for knowing misappropriation. Moreover, "intent to deprive permanently a client of misappropriated funds, however, is not an element of knowing misappropriation." In re Barlow, 140 N.J. 191, 657 A.2d 1197, 1201 (1995).

Disbarment is generally appropriate when a lawyer knowingly converts the property of clients or a third party and causes injury or potential injury to those persons. ABA Standards for Imposing Lawyer Sanctions (1991 and Supp.1992) ("ABA Standards") § 4.11. The remaining cumulative misconduct, although serious and involving injury to his client and the judicial system, would suggest a lengthy period of suspension. See ABA Standards 4.11, 4.42, and 6.22. In this case, the additional findings of misconduct serve to reinforce the conclusion that disbarment is required. People v. Holmes, 921 P.2d 44 (Colo.1996)(noting that the pattern, breadth, and nature of the respondent's misconduct, together with his total disregard of the proceedings, warranted a one year and one day suspension).

The Hearing Board is required to consider mitigating and aggravating factors pursuant to ABA Standards 9.22 and 9.32. Since Clough did not appear, no mitigating factors were presented. However, the People acknowledged that Clough had no prior misconduct. See ABA Standard 9.82(a). In aggravation, Clough had a dishonest or selfish motive, ABA Standard 9.22(b), he committed multiple offenses, see id. at 9.22(d); Clough's client was vulnerable, see id. at 9.22(h), and Clough demonstrated indifference to making restitution, see id. at 9.22(J). The lack of prior discipline, in light of the aggravating factors present, does not rise to the level necessary to reduce the presumed sanction of disbarment. People v. Lujan, 890 P.2d 109, 110 (Colo.1995)(stating that the mitigation necessary to reduce the presumptive sanction of disbarment for knowing conversion to some lesser sanction has to be "extraordinary and tragic").

Based upon Clough's knowing conversion of client funds, taken together with the numerous other rule violations, and absent significant mitigating factors, disbarment is the warranted sanction.

V. ORDER

It is therefore ORDERED:

1. JERRY R. CLOUGH, attorney registration 25994, is DISBARRED from the practice of law effective thirty one days from the date of this order.

2. Clough 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. Jerry R. Clough shall have five (5) days thereafter to submit a response thereto.

3. Clough is Ordered to pay restitution to the Client Protection Fund in the amount of $790.00. That amount is to be paid within thirty (80) days of the effective date of this order.

EXHIBIT A

Naney L. Cohen, #11846, Chief Deputy Regulation Counsel, John S. Gleason, # 15011, Regulation Counsel, Attorneys for Complainant, 600 17th Street, Suite 200-South Denver, Colorado 80202

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. Jerry R. Clough (the respondent) has taken and subscribed the oath of admission, was admitted to the bar of this court on October 28, 1998, and is registered upon the official records of this court, registration no. 25994. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 915% South 13th Street, Laramie, Wyoming 82070.

General Allegations

2, In February 2001, Elizabeth Gabriella (Ms. Gabriella) was arrested and charged with misdemeanor assault in Larimer County, Colorado, arising from an incident involving Ms. Gabriella's sister, Harmony Korkow.

3. A criminal action was initiated, People v. Elizabeth Gabriella, case no. 02M200397 in Larimer County, Colorado. The Honorable John E. Kochenburger (Judge Kochen-burger) is the presiding county court judge.

4. In addition, in May 2001, a permanent restraining order was issued by the Larimer County Court against Ms. Gabriella in case no. 020200376. Thereafter, Ms. Gabriella moved to Texas.

5. Ms. Gabriella contacted the respondent to represent her in the criminal matter. The parties entered into a written fee agreement in or about August or September, 2001. An attorney-client relationship was formed.

6. Ms. Gabriella agreed to pay, pursuant to the fee agreement, a total of $1,000, as legal fees for the respondent's representation. At the time Ms. Gabriella contacted the respondent, he was suspended for failing to pay his registration fees. Ms. Gabriella agreed to pay the fee together with any late charges to the Office of Attorney Registration. The total amount paid was $790 and was part of the legal fee.

7. Prior to the December 12, 2001 hearing described below, Ms. Gabriella's communications with the respondent were by telephone. Ms. Gabriella personally met with the respondent for the first time on December 12, 2001.

8. Ms. Gabriella's criminal matter had been originally scheduled for trial commene-ing October 15, 2001. On October 9, 2001, the respondent filed a handwritten witness list of the witnesses he intended to call at the October 15 trial. However, the witness list submitted by the respondent did not identify specific addresses for the witnesses and did not provide the full names of all of the witnesses, as required by the Colorado Rules of Criminal Procedure.

9. On October 11, 2001, the respondent filed two pre-trial motions, and a motion for continuance. In his motion for continuance, he explained that he had not practiced law for over one year and had recently been retained by Ms. Gabriella.

10. The court granted the motion for continuance and the matter was reset for December 12, 2001. However, the respondent failed to notify Ms. Gabriella of the new hearing date. Ms. Gabriella traveled to Colorado from Texas to attend the October 11, 2001 hearing. Ms. Gabriella incurred travel expenses to attend the hearing, including the expenses of a witness who also traveled to Loveland, Colorado to testify on her behalf.

11. On December 7, 2001, the respondent filed a letter with the Larimer County District Attorney's Office requesting a continuance due to lack of discovery. In addition, the respondent filed a motion for continuance with the Larimer County Court. The court did not rule on the motion prior to the December 12, 2001 hearing.

12. On December 12, 2001, the day the trial was scheduled, the respondent filed a motion to suppress Ms. Gabriella's statement as obtained in violation of Miranda and in violation of the prior common law voluntariness doctrine.

13. Prior to trial on December 12, 2001, the respondent was in the lobby of the courthouse where he was meeting with Ms. Ga-briella and her mother. The respondent then went to file the suppression motion described above and when he returned, Ms. Gabriella was talking to Misty Narum (Ms. Narum), a witness listed by the district attorney's office. Everyone was still standing in the lobby of the courthouse.

14. - The respondent walked up to the people in the lobby and asked who Ms. Narum was. Once Ms. Narum was identified, the respondent then confronted Ms. Narum and accused her, in a very loud voice, of drinking and being drunk. According to the respondent, he was loud because he wanted witnesses.

15. Ms. Narum became very concerned that law enforeement personnel would arrest her for a DUI. Ms. Narum was not represented by counsel. She asked the respondent what she should do. The respondent gave Ms. Narum legal advice about what she should say if asked by law enforcement personnel about drinking.

16. After the confrontation with Ms. Na-rum, the respondent went to the district attorney's office which is also located in the courthouse building, to find Kim Robbins (Ms. Robbins), the Deputy District Attorney assigned to prosecute the criminal matters against Ms. Gabriella.

17. The respondent went to the reception area of the district attorney's office, demanding and yelling that Ms. Robbins speak with him. The respondent was agitated and yelled something like "tell the DA your star witness reeks of alcohol and she is drunk."

18. The respondent then went back to the courthouse lobby where his client and Ms. Narum were standing. Even though the trial in Ms. Gabriella'®s case had not yet begun, the respondent quickly left the building from the lobby when one of the security guards started walking toward him.

19. Judge Kochenburger then called Ms. Gabriella's criminal matter. The respondent was not present in the courtroom or the courthouse.

20. While Judge Kochenburger was still addressing Ms. Gabriella's criminal matter, one of the administrative clerks brought him a fax which had been sent by the respondent from a Kinko's store approximately 11 miles north of Fort Collins. The fax stated:

Please deactivate and make my status inactive immediately upon receipt of this fax. This is handwritten for purposes of verifying my wish.

21. Judge Kochenburger continued Ms. Gabriella's criminal matter since her attorney was not present. Ms. Gabriella expended additional monies for her to attend the trial on December 12, 2001.

22, On December 18, 2001, the respondent faxed a letter to the Larimer County Court, entitled "Explanation of Counsel's Bizarre Behavior on December 12, 2001." A copy of that letter is attached and incorporated as Exhibit A.

23. In February 2002, the respondent filed a motion to withdraw from his representation of Ms. Gabriella, which was granted. Respondent's failure to withdraw for approximately two months after December 12, 2001, caused Ms. Gabriella problems. During that two-month period Ms. Robbins refused to talk to Ms. Gabriella because she was represented by counsel. Thereafter, Ms. Gabriella retained Rusty Nichols to represent her in the criminal matter.

24. As a result of the respondent's conduct toward Ms. Narum on December 12, 2001, a warrant was issued for the respondent's arrest. The charges are harassment of a witness (misdemeanor) and disorderly conduct (petty offense). On or about May 15, 2002, the respondent filed a motion with the Larimer County Court asking that the bench warrant be vacated. That motion was denied. The warrant remains outstanding. To date, the respondent has not turned himself in to law enforcement authorities although he is and was aware of the warrant.

CLAIM I

(Dealing with Unrepresented Person-Colo. RPC 4.3)

25. Paragraphs 2 through 24 are incorporated herein as if fully set forth.

26. - Colo. RPC 4.3 provides in part that in dealing on behalf of a client with a person who is not represented by counsel ... the lawyer shall not give advice to the unrepresented person other than to secure counsel.

27. The respondent was representing Ms. Gabriella when he confronted Ms. Narum. The respondent knew that Ms. Narum was a witness subpoenaed by the prosecution to appear in Ms. Gabriella's case.

28. Ms. Narum was not represented by counsel. The respondent knew she was an unrepresented person.

29. After the respondent was introduced to Ms. Narum, he stated to her, "What the hell, have you been drinking." Ms. Narum was frightened and wanted to know whether "they" were going to arrest her for a DUI. The respondent advised Ms. Narum to either take the "Fifth" or to say that she arrived by bus. The respondent did not tell Ms. Narum to secure counsel.

80. Through his communications with Ms. Narum on December 12, 2001, the respondent gave advice to an unrepresented person, namely Ms. Narum.

31. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.GC.P. 251.5, and also violates Colo. RPC 4.3.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

(In Representing a Client, a Lawyer Shall Not Use Means that have no Substantial Purpose Other than to Embarrass, Delay or Burden a Third Person-Colo. RPC 4.4)

82. Paragraphs 2 through 24 are incorporated herein as if fully set forth.

88. Colo. RPC 4.4 provides that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person.

34. - The respondent was representing Ms. Gabriella in her criminal matter on December 12, 2001. On that date the respondent engaged in abusive conduct toward Ms. Na-rum by using profanity, standing within a foot of her while yelling at her in a loud voice and accusing Ms. Narum of drinking.

35. As a result of the respondent's conduct, Ms. Narum was visably distraught and shaken by this episode. A victim advocate and law officer were summoned and Ms. Narum was taken to a secluded room.

86. The respondent's conduct as described above had no substantial purpose in respondent's representation of Ms. Gabriella. Instead, the respondent sought to embarrass and burden Ms. Narum.

37. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 4.4.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM III

(A Lawyer Shall Not Engage In Conduct That Is Prejudicial To The Administration Of Justice-Colo. RPC 84(d))

38. Paragraphs 2 through 24, are incorporated herein as if fully set forth.

39. Colo. RPC 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

40. The respondent failed to appear at the trial scheduled in Ms. Gabriella's criminal matter. The respondent had the ability to appear, knew that he was required to appear, but nevertheless failed to appear.

41. By failing to appear at Ms. Gabriella's criminal matter, the respondent acted in contravention of the court's authority.

42. Such failure to attend Ms. Gabriella's trial in the criminal matter, interfered with the procedures and the function of the court in Ms. Gabriella's case.

48. As a result of the respondent's conduct, the court was required to continue Ms. Gabriella's case because her attorney, the respondent, failed to appear at the trial.

44. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 8.4(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM IV

(A Lawyer Shall Not Engage in Conduct Intended to Disrupt a Tribunal-Colo. RPC 3.5(c))

45. - Paragraphs 2 through 24 are incorporated herein as if fully set forth.

46. Colo. RPC 8.5(c) provides that a lawyer shall not engage in conduct intended to disrupt a tribunal.

47. The respondent engaged in conduct intended to disrupt a tribunal by the following: he had a verbal altercation with the district attorney's witness, Ms. Narum, in the courthouse lobby; after the confrontation the respondent bolted from the courthouse, even though he knew Ms. Gabriella's eriminal matter had not yet been heard that day.

48. The respondent failed to appear at the trial scheduled in Ms. Gabriella's criminal matter. The respondent had the ability to appear, knew that he was required to appear, but nevertheless failed to appear.

49. The respondent's failure to appear as counsel for Ms. Gabriella in her criminal matter was intentional and foreed Judge Ko-chenburger to continue the criminal case against Ms. Gabriella.

50. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 8.5(c).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM V

(It 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-Colo. RPC 8.4(b) and C.R.C.P. 251.5(b))

51. Paragraphs 2 through 24 and paragraphs 34 through 36 are incorporated herein as if fully set forth.

52. Colo. RPC 84(b) provides that it is professional misconduct for a lawyer to commit a eriminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.

58. C.R.C.P. 251.5(b) provides an attorney engages in misconduct by committing any act or omission which violates the erimi-nal laws of the State of Colorado.

54. The respondent engaged in criminal conduct by harassing a witness, Ms. Narum, and engaging in disorderly conduct with Ms. Narum in the courthouse lobby. These criminal acts in violation of CRS. § 18-9-111(1)(h) and 18-9-106(1)(c) reflect adversely on the respondent's fitness in all other respects.

55. The foregoing conduct of the respondent establishes grounds for discipline as provided for in C.R.C.P. 251.5 and violates Colo. RPC 84(b) and violates C.R.C.P. 251.5(b).

WHEREFORE, the people pray 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 specified above; that the respondent be appropriately disciplined for such misconduct; that the respondent be required to pay Ms. Gabriella for expenses she incurred as a result of the trial being continued and that the respondent be assessed the costs of this proceeding.

EXHIBIT B

AMENDED COMPLAINT

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

Jurisdiction

25. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on October 23, 1995, and is registered upon the official records of this court, registration no. 25994. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 915% South 13th Street, Laramie, Wyoming 82070.

General Allegations

26. In February 2001, Elizabeth Gabriella (Ms. Gabriella) was arrested and charged with misdemeanor assault in Larimer County, Colorado, arising from an incident involving Ms. Gabriella's sister, Harmony Korkow.

27. A criminal action was initiated, People v. Elizabeth Gabriella, case no. 02M200397 in Larimer County, Colorado. The Honorable John E. Kochenburger (Judge Kochen-burger) is the presiding county court judge.

28. -In addition, in May 2001, a permanent restraining order was issued by the Larimer County Court against Ms. Gabriella in case no. 020200876. Thereafter, Ms. Gabriella moved to Texas.

29. Ms. Gabriella contacted the respondent to represent her in the criminal matter. The parties entered into a written fee agreement, a copy of which is attached hereto and incorporated herein as Exhibit A. An attorney-client relationship was formed.

30. - Ms. Gabriella agreed to pay, pursuant to the fee agreement, a total of $1,000 as legal fees for the respondent's representation. At the time Ms. Gabriella contacted the respondent, he was suspended from the practice of law for failing to pay his registration fees. Ms. Gabriella agreed to pay the registration fee together with any late charges to the Office of Attorney Registration as part of her legal fees.

31. On September 4, 2001, Ms. Gabriella sent a check in the amount of $463.00 to the Colorado Supreme Court Attorney Registration Clerk's Office on behalf of the respondent.

32. On September 21, 2001, Ms. Gabriella sent an additional $827.00 to the Colorado Supreme - Court Attorney - Registration Clerk's Office. On that same date, the respondent's registration status to practice law became active.

33. Prior to the December 12, 2001 hearing described below, Ms. Gabriella's communications with the respondent were by telephone. Ms. Gabriella personally met with the respondent for the first time on December 12, 2001.

34. Ms. Gabriella's criminal matter had been originally scheduled for trial commene-ing October 15, 2001. On October 9, 2001, the respondent filed a handwritten witness list of the witnesses he intended to call at the October 15 trial. However, the witness list submitted by the respondent did not identify specific addresses for the witnesses and did not provide the full names of all of the witnesses, as required by the Colorado Rules of Criminal Procedure.

35. On October 11, 2001, the respondent filed a typewritten discovery demand, motion in limine and notice of Ms. Gabriella's intent to use arresting officer's statement pursuant to C.R.E. $ 808(24). On that same date, the respondent filed a motion for continuance, stating that the respondent had not practiced law for over one year and had been recently retained by Ms. Gabriella. The court granted the motion and the matter was set for December 12, 2001.

36. The respondent failed to notify Ms. Gabriella of the new hearing date and that the October trial was vacated. She traveled to Colorado to attend the October 15, 2001 hearing, only to discover that the matter had been continued. Ms. Gabriella incurred travel expenses to attend the hearing.

37. On November 26, 2001, Ms. Gabriella sent an electronic transmission to the respondent that asked if the respondent had subpoenaed a certain witness and obtained the police call tape; and that asked if the respondent planned on attending a pre-trial conference with the district attorney's office.

88. In response to Ms. Gabriella's e-mail, on December 8, 2001 the respondent sent an electronic transmission to Ms. Gabriella, that is attached hereto and incorporated herein as Exhibit B, requesting additional money and outlining the various defenses and the fees for such defenses. The e-mail used vulgar language.

39. On December 12, 2001, the day the trial was scheduled, the respondent filed a motion to suppress Ms. Gabriella's statement as obtained in violation of Miranda and in violation of the prior common law voluntariness doctrine.

40. Prior to the trial scheduled on December 12, 2001, the respondent was in the lobby of the courthouse where he was meeting with Ms. Gabriella and her mother. The respondent then went to file the suppression motion described above and when he returned, Ms. Gabriella was talking to Misty Narum (Ms. Narum), a witness listed by the district attorney's office. Everyone was still standing in the lobby of the courthouse.

41. The respondent walked up to the people in the lobby and asked who Ms. Narum was. Once Ms. Narum was identified, the respondent then confronted Ms. Narum and accused her, in a very loud voice, of drinking and being drunk. According to the respondent, he was loud because he wanted witnesses.

42, Thereafter, a deputy sheriff began walking toward the respondent who then left the courthouse.

43, Subsequently, Judge Kochenburger called Ms. Gabriella's criminal matter. The respondent was not present in the courtroom or the courthouse when the case was called. Judge Kochenburger continued the trial.

44. - After the trial was continued, Ms. Ga-briella attempted to reach a resolution of her legal matter directly with the district attorney's office but was unable to do so because the respondent failed to formally withdraw from the matter and remained the attorney of record for approximately two months. Subsequently, the complainant retained new counsel, Rusty Nichols.

45. The respondent did not file a motion to withdraw from his representation of Ms. Gabriella until February 2002. The motion was granted.

46. Ms. Gabriella asked the respondent for her file and the fees she paid. The respondent failed to return his client's papers and failed to return any portion of his unearned fee.

- 47. When the respondent was retained, he also agreed to represent Ms. Gabriella in a slander lawsuit against her sister. According to Ms. Gabriella, she had a dispute with her sister concerning the sister's rental of Ms. Gabriella's house after she moved to Texas. Ms. Gabriella claims that her sister stole furniture from her and engaged in "slander" by telling family members that Ms. Gabriella was incarcerated.

48. The respondent advised Ms. Gabriella he did not know how realistic a "slander" lawsuit would be. Nevertheless, he agreed to file a civil suit, and his fee agreement states that he agrees to represent Ms. Ga-briella in a "defamation" case.

49. No "defamation" case was filed on behalf of Ms. Gabriella.

CLAIM I

(A Lawyer Shall Act With Reasonable Diligence And Promptness In Represent ing A Client And Shall Not Neglect A Legal Matter Entrusted To That Lawyer-Colo. RPC 1.3)

50. . Paragraphs 1 through 25 are incorporated herein as if fully set forth.

51. Colo. RPC 1.8 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.

52. The respondent failed to act with reasonable diligence and promptness and neglected both of Ms. Gabriella's legal matters in each of the following respects:

a. by failing to attend her trial in the criminal matter on December 12, 2001;
b. by failing to investigate her "slander" case;
c. by failing to file a civil lawsuit against Ms. Gabriella's sister for slander;

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.

58. The respondent's lack of diligence and promptness, and/or neglect caused injury or potential injury to the client.

54. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 1.8.

WHEREFORE, the complainant prays at the conclusion hereof.

I. CLAIM II

(A Lawyer Shall Keep A Client Reasonably Informed About The Status Of A Matter, Promptly Comply With Reasonable Requests For Information, And Explain A Matter To The Extent Reasonably Necessary To Permit The Client To Make Informed Decisions Regarding The Representation-Colo. RPC 1.4(a))

55. Paragraphs 1 through 25 are incorporated herein as if fully set forth.

56. Colo. RPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

57. The respondent failed to keep Ms. Gabriella reasonably informed about the status of her criminal legal matter by failing to advise her of the vacated October 2001 hearing date and by failing to reasonably communicate with her prior to and after the respondent failed to appear at the December 12, 2001 trial date.

Each of these failures to communicate adequately with the client constitutes a separate violation of Colo. RPC 1.4(a) as do all of them together.

58. The respondent knew or should have known that he failed to communicate adequately with his client.

59. The respondent's failure to communicate with his client caused injury or potential injury to the client.

60. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 1.4(a).

WHEREFORE, the complainant prays at the conclusion hereof.

IL - CLAIM III

[Upon Termination, A Lawyer Shall Take Steps To Protect A Client's Interest And Surrender Papers And Property To The Client-Colo. RPC 1.16(d)]

61. Paragraphs 1 through 25 are incorporated herein as if fully set forth.

62. Colo. RPC 1.16(d) requires that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest in surrendering papers and property to which the client is entitled.

63. The respondent effectively terminated the attorney-client relationship when he failed to appear at the December 12, 2001 trial on Ms. Gabriella's eriminal matter. The respondent did not formally terminate the relationship until February 2002, despite the fact that Ms. Gabriella discharged the respondent's services before that date.

64. The respondent knew or should have known that he was failing to protect the client's interest by not communicating with her after he failed to appear at the December 12, 2001 trial and by waiting two months to file a motion to withdraw after the December 12, 2001 trial date.

65. According to Rusty Nichols, Ms. Ga-briella's current lawyer, the hours the respondent claims he spent on Ms. Gabriella's "docile character" defense was a waste of time, and the respondent's estimate of time involving discovery issues was "excessive."

66. Furthermore, by failing to appear at the December 12, 2001 trial in Ms. Gabriel-la's eriminal matter, he did not earn the fees he had been paid. The respondent knew or should have known that he was failing to protect his client's interests by not returning the unearned fees.

67. The respondent failed to return client papers and failed to return any portion of the unearned fee.

68. The foregoing conduct of respondent in failing to take steps reasonably necessary to protect the client's interest and returning papers and property of the client establishes grounds for discipline as provided for in C.R.C.P. 251.5 and also violates Colo. RPC 1.16(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM IV

[A Lawyer Shall Not Engage In Conduct Involving Dishonesty, Fraud, Deceit Or Misrepresentation (Knowing Conversion)-Colo. RPC 8.4(c) 1

69. - Paragraphs 1 through 25 are incorporated herein.

70. Colo. RPC 84(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

71. The respondent agreed to provide services, including services relating to her eriminal case, to Ms. Gabriella for a flat fee of $1,000. See Exhibit A.

72. Nothing the respondent did while he represented Ms. Gabriella assisted Rusty Nichols, Ms. Gabriella's current lawyer, in preparing Ms. Gabriella's defense in the criminal case.

73. By failing to appear at the December 12, 2001 trial in Ms. Gabriella's criminal matter, the respondent did not earn the fees ($790) he had been paid and did not complete the services for which he had been hired.

74. By failing to return the $790 Ms. Gabriella had paid to the respondent when he had not earned such fees because he did not complete the services, the respondent exercised dominion or ownership over such funds held for Ms. Gabriella's benefit.

75. The respondent knew that he was keeping the $790 of funds he had not earned, knowing that such funds should be returned to his client because he had not earned them and knowing that keeping such funds was not authorized.

76. The respondent did not have permission from the client to use her funds for his personal purposes.

77. Through the unauthorized exercise of dominion or ownership these funds, the respondent knowingly converted or misappropriated such client funds.

78. Through his conversion or misappropriation of client funds, the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

79. The foregoing conduct of the respondent establishes grounds for discipline as provided for in C.R.C.P. 251.5 and violates Colo. RPC 8.4(c).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM V

[A lawyer's fee shall be reasonable-Colo. RPC 1.5(a) 1

80. - Paragraphs 1 through 25 are incorporated herein.

81. Colo. RPC 1.5(a) provides a lawyer's fee shall be reasonable. The rule lists the factors in determining the reasonableness of the fee.

82. In his December 8, 2001 electronic transmission four days before the scheduled December 12, 2001 trial, the respondent demanded $4,465.00 to prepare for Ms. Gabriel-la's case, even though he agreed in his fee agreement (Exhibit A) that he would charge no more than $1,000.00.

83. The foregoing conduct of the respondent establishes grounds for discipline as provided for in C.R.C.P. 251.5 and violates Colo. RPC 1.5(a).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VI

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

84. Paragraphs 1 through 25 are incorporated herein.

85. 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.

86. At the time Ms. Gabriella discussed her criminal matter with the respondent and engaged him to represent her, the respondent was under suspension from the practice of law for failing to pay his Attorney Registration fees. The respondent knew that he was under administrative suspension when he entered into this new attorney-client relationship because he told Ms. Gabriella and they agreed that she would pay his registration fees as part of her legal fees.

87. The respondent provided legal advice and discussed Ms. CGabriella's legal matter by telephone prior to the respondent's reinstatement to the practice of law on September 21, 2001.

88. The foregoing conduct of the respondent establishes grounds for discipline as provide for in C.RP.C. 251.5 and violates Colo. RPC 5.5(a).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VII

[Engaging In Any Other Conduct That Adversely Reflects On The Fitness To Practice Law-Colo. RPC 8.4(h) ]

89. Paragraphs 1 through 25 are incorporated herein.

90. 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.

91. By making inappropriate, offensive and harassing statements to Ms. Gabriella in his December 8, 2001 electronic transmission to her, the respondent engaged in behavior that adversely reflected on his fitness to practice law. See, People v. Brenner, 852 P.2d 456 (Colo.1993).

92. The foregoing conduct of the respondent establishes grounds for discipline as provide for in C.RP.C. 251.5 and violates Colo. RPC 8.4(h).

WHEREFORE, the people pray 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 specified above; that the respondent be appropriately disciplined for such misconduct; that the respondent be required to refund fees to the client, and/or the client protection fund pursuant to C.R.C.P. 252.14(b), that the respondent be required to take any other remedial action appropriate under the cireumstances; and that the respondent be assessed the costs of this proceeding.

      . The Hearing Board viewed the payment of the $790 as additional injury to the client. In addition, the Attorney's Fund for Client Protection reimbursed $790 to Gabriella pursuant to C.R.C.P. 251.14.

      . The default was denied as to Colo. RPC 8.4(b) and C.R.C.P. 251.5(b) with respect to violations of § 18-9-111(1)(h), 6 C.R.S. (2001).

      . § 18-9-106(1)(c) 6 CRS. (2001) provides:
      [al person commits disorderly conduct if he or she intentionally, knowingly, or recklessly: [mJakes unreasonable noise in a public place or near a private residence that he has no right to occupy."


text:
    The PEOPLE of The State of Colorado, Complainant, v. Matthew S. SMITH, Respondent.
    No. 02PDJ084.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Aug. 13, 2003.

      Attorney Regulation. - The Hearing Board suspended Respondent Matthew S. Smith, attorney registration number 22681 from the practice of law for a nine-month period. In his handling of one dissolution of marriage matter, respondent failed to adequately supervise his legal assistant which resulted in the assistant's engaging in the unauthorized practice of law. Respondent's acting as her direct supervisor but failing to fulfill his professional obligations with regard to that supervision violated Colo. RPC 5.8(b). Respondent lost contact with his client and subsequently failed to make every effort to locate him and failed to take adequate measures to confirm the status of the case in violation of Colo. RPC 1.4(a) and Colo. RPC 14(b). Instead, respondent relied on his assistant to oversee the file constituting neglect in violation of Colo. RPC 1.8. Respondent was ordered to pay the costs of the disciplinary proceeding.
   Opinion by a Hearing Board consisting of the

Presiding Disciplinary Judge ROGER L. KEITHLEY

and Hearing Board Members ROBERT A. MILLMAN and MARILYN L. ROBERTSON, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: NINE MONTH SUSPENSION

A trial in this matter was held on February 27 and 28, 2008, before a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley and two Hearing Board Members, Robert A. Millman and Marilyn L. Robertson, both members of the bar. Kim E. Ikeler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Gary D. Fielder represented respondent Matthew S. Smith ("Smith"), who was also present.

At the trial, the People's exhibits 1 through 4 and 6 through 37, and Smith's exhibit A were admitted into evidence. Jennifer Reynolds, Roy Reynolds, Jr., Jeanette Ross, and Matthew Smith testified on behalf of the People. Smith testified on his own behalf. The Hearing Board considered the testimony of the witnesses and the exhibits admitted into evidence, the Joint Stipulation of Facts submitted by the parties, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Matthew S. Smith has taken and sub-seribed the oath of admission, was admitted to the bar of the Supreme Court on May 138, 1998, and is registered upon the official records of the Court, attorney registration number 22681. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

During the relevant time period from 1999 to 2001, Smith was a sole practitioner. He handled a large-volume practice with approximately half of the practice devoted to domestic law. Jeanette Ross ("Ross") worked as Smith's legal assistant from 1996 to 2001. During the period of her employment, Smith put measures in place to assure that all communications, oral and written were brought to his attention. Ross was required to receive, open and sort mail and record telephone messages. Ross would review incoming mail and place matters requiring prompt attention on Smith's desk with the client file. Less critical communication was placed in sorted stacks for Smith's review. Smith would then review his mail or telephone messages and instruct Ross what action to take on a given case. It was Smith's practice to review all court orders. Smith did not utilize computer software to track deadlines in cases. Smith and Ross did, however, manually record dates on two calendars. In addition, Smith allowed Ross to prepare form pleadings, prepare and send correspondence, docket court appearances, communicate with clients by phone, and handle settings with the court. Smith periodically reviewed case files to determine if cases were properly advancing.

Smith did not give Ross permission to sign his name to pleadings. Ross was permitted to write checks on Smith's operating account and utilize his signature stamp on operating account checks without prior authorization from Smith. Ross testified that she signed Smith's name to routine pleadings. Ross's testimony that Smith permitted her to sign his name to pleadings was not credible.

Roy and Jennifer Reynolds were married in 1995. In late 1998, Roy Reynolds, Jr. ("Reynolds") retained Smith to represent him in an uncontested divorce and paid him $800. Reynolds' address and phone numbers were noted on the client intake sheet.

On January 27, 1999, Smith filed Reynolds' Petition for Dissolution of Marriage together with a Summons for Dissolution of Marriage or Legal Separation and Temporary Injunction in Arapahoe County District Court, Case No. 99DR0234. On the same day, the court issued a form order entitled "Domestic Case Management and Delay Reduction Order" requiring that Smith take specified actions by a date certain. The order required Smith to provide a copy to Mrs. Reynolds. Although Smith did not see the order, he was fully aware of the routine procedure in uncontested divorces and knew what deadlines were imposed by the court as a matter of course. Smith did not set a Temporary Orders Hearing or engage in the pre-hearing conference as required by the court's order. Smith knew that Mrs. Reynolds was pregnant and he felt it necessary to wait for the birth of the child before requesting that the court enter child support orders. Smith did not file a plan for alternative dispute resolution by the stated deadline due to his unconfirmed belief Reynolds' desired to forestall the divorce.

Thereafter, Mrs. Reynolds, who resided in Kansas, signed a Waiver and Acceptance of Service and Affidavit with Respect to Financial Affairs prepared by Smith, and returned both documents to Smith's office. Mrs. Reynolds did not obtain counsel at that time.

Between January and May, Smith and Reynolds were in communication. In May 1999, Smith drafted a Settlement Agreement and gave it to Reynolds to review. Reynolds took the Separation Agreement prepared by Smith to Kansas for Mrs. Reynolds to sign, and she signed it on June 16, 1999, had it notarized and gave it back to Reynolds. Reynolds gave it back to Ross shortly thereafter. Reynolds failed to sign it. Smith was unaware that Reynolds had returned the Separation Agreement to his office.

On May 20, 1999, Ross filed a Notice to Set regarding a hearing on Permanent Orders. Ross affized Smith's signature to the Notice to Set. Thereafter, she neglected to call the court at the appointed time to set the hearing.

On June 7, 1999, the court issued a form Status Order notifying the parties that the Reynolds case would be dismissed unless Smith took certain specific actions. Smith did not see the Status Order, did not take any of the actions the court directed him to take, and did not provide a copy of the Order to the parties. Smith believed that the case was proceeding on course and that he was waiting for a return of the signed Separation Agreement by the parties.

Ross, in an effort to cover her failure to follow through on the Notice to Set, filed another Notice to Set on June 10, 1999. Smith signed the notice but did not confirm with Ross that she set the hearing. A hearing was not set.

Ross attempted to contact Reynolds but was unable to do so. Smith told Ross to send a letter to Reynolds and advise him that the case may be dismissed if the Separation Agreement was not filed. Smith believed Ross did so, but did not check the file to confirm that she had. Ross did not send a letter to Reynolds.

During July and August 1999, Reynolds attempted to contact Smith several times but was able to only speak to Ross. The calls were not routed to Smith, and Smith was not advised that Reynolds was attempting to reach him.

On August 11, 1999, the court dismissed the case on the grounds that the parties had not complied with the court's June 7, 1999 Status Order and required Smith to provide a copy of the order to the parties. Smith did not see the order and therefore did not comply with it. Smith continued to believe that Reynolds had lost interest in pursuing the divorcee.

In October, Ross contacted the court to set the matter for a Permanent Orders hearing. It was at this point that she discovered the case had been dismissed. She determined to conceal this fact from Smith. On October 25, 1999, without Smith's knowledge or approval, Ross filed a Notice to Set Uncontested Permanent Orders, an Affidavit With Respect to Financial Affairs and the Separation Agreement both of which Mrs. Reynolds had signed on June 16, 1999. Ross hoped that the court would reopen the case. Nothing further occurred in Case No. 99DR0234.

In November 1999, Reynolds tried to reconcile with his wife, and she declined.

In early 2000, due to the lack of communication with Smith, Reynolds came to Smith's office to inquire about the status of his case. Reynolds never spoke directly with Smith; rather, he believed at the time that Ross was his lawyer. Reynolds confronted Ross with the court order dismissing the case in August 1999 which he first saw when he reviewed the court file at the courthouse. Ross told Reynolds the court had lost the paperwork and it would be necessary to file a new case. Ross did not tell Smith about Reynolds' visit to the office.

On March 6, 2000, without Smith's knowledge or approval, Ross commenced a new action on behalf of Reynolds by filing a Summons for Dissolution of Marriage and Temporary Injunction in Arapahoe County District Court under Case No. OODROT782. Ross affixed Smith's signature to the documents. Ross falsely notarized a Waiver and Acceptance of Service and affixed Mrs. Reynolds signature without her knowledge or authority.

The next day, without informing Smith, Ross sent a letter to Reynolds enclosing financial affidavits, a Separation Agreement and Child Support Worksheets. After receiving these documents, Reynolds came to the office and was angry with Ross. Ross did not inform Smith that Reynolds had visited the office. Smith believed the case was closed because Reynolds had not signed the Separation Agreement. Smith had no communication with Reynolds in 2000.

On March 20, 2000, Ross filed a Petition for Dissolution of Marriage and affixed Smith's name to the pleading.

In July 2000, Mrs. Reynolds believed the divorcee had been finalized. She contacted Smith's office and spoke to Ross numerous times and to Smith onee, asking for a copy of the decree. Ross informed her she would inquire into the status of the case and get back to her. Later Ross told Mrs. Reynolds she was not sure why there was no decree and that there was some confusion in Smith's office. After receiving a call from Mrs. Reynolds' father, Smith asked Ross about the status of the case. Ross said that Reynolds came in to sign the Separation Agreement and that they were waiting to receive a decree from the court. Smith then told Mrs. Reynolds that he was waiting for a decree from the court and that he would get back to her. Smith did not get back to Mrs. Reynolds.

On July 15, 2000, Ross drafted a second Separation Agreement. She affixed the signatures of Smith as counsel for Reynolds, Mrs. Reynolds, and the attorney's name who shared Smith's office as counsel for Mrs. Reynolds. Ross notarized the signatures stating that she witnessed the signatures in Adams County, even though Mrs. Reynolds continued to reside in Kansas. Ross filed it with the court. Neither Smith, Mrs. Reynolds nor the attorney who was purportedly signing as counsel for Mrs. Reynolds knew that Ross had affixed their signatures to the doe-ument. Ross knew at the time that Smith would not condone her drafting the Separation Agreement and affixing signatures to it.

In August 2000, Ross filed an Affidavit for Decree Without Appearance of Parties with the court. She affixed the signatures of Smith and the attorney who shared Smith's office as counsel for Mrs. Reynolds without their knowledge or approval. Ross knew the court would rely on the document as containing valid signatures and knew at the time she filed the document that she was making a false statement to the court.

Finally, in the spring on 2001, Mrs. Reynolds hired an attorney in Kansas to com-mencee a new divorce proceeding at a cost of $1,500. On April 3, 2001, Ross sent a letter to Mrs. Reynolds' attorney in Kansas stating that the dissolution of marriage action in Arapahoe County had not been dismissed. She wrote the letter on behalf of Smith and affixed his signature to the letter without his knowledge. On the same date, she notified the clerk of the district court in Shawnee County, Topeka, Kansas, that the matter had not been dismissed, and again affixed Smith's name to the letter without his knowledge.

On April 12, 2001, a Decree of Dissolution of Marriage issued from Arapahoe District Court in Case No. OODROT82. The Magistrate entered the Decree unaware that it had been presented by Ross with falsified signatures of the attorneys and parties.

Shortly thereafter, the divorce proceeding in Kansas was completed and Mrs. Reynolds obtained a decree.

Smith acknowledged that he was responsible for Ross's actions, but also believed that his actions were based on his belief that Reynolds had decided not to go forward with the divorce. Smith also believed that were it not for Ross's actions as an "intervening cause," he would have been aware of the court's orders and of Reynolds' communication with Ross.

Both parties suffered harm as a result of the delay in obtaining the divorcee: Mrs. Reynolds applied for but could not obtain financial aid because she was required to include Mr. Reynolds' income on her application, and she paid additional attorneys' fees to resolve the divorcee. Mr. Reynolds was required to resolve child support issues in another jurisdiction. Both parties suffered personal inconvenience and stress for over one and one half years.

Smith refunded the $800 Reynolds paid to him.

II, CONCLUSIONS OF LAW

The Complaint filed in this matter alleges that Smith's conduct violated Colo. RPC 1.8 (an attorney shall act with reasonable dili-genee and promptness in representing a client) in claim one; Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) and Colo. RPC 1.4(b)(an attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation) in claim two; Colo. RPC 5.8(a)(a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer) and Colo. RPC 5.8(b)(a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer) in claim three, and Colo. RPC 1.16(d)(upon termination an attorney take steps to the extent reasonably practicable to protect a client's interests) in claim four.

Colo. RPC 5.8 provides:

With respect to a non-lawyer employed or retained by or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of a lawyer;
(b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer...."

Smith entered into an attorney/client relationship with Reynolds, thereby forming an obligation to perform the agreed-upon professional services, including obtaining a divorce for Reynolds through the entry of permanent orders. By agreeing to perform the requested services, Smith inherently agreed that he would perform the services in accordance with the Colorado Rules of Professional Conduct. The Complaint alleges that Smith did not have measures in place which would give reasonable assurance that Ross's conduct was compatible with the obligations of a lawyer. The evidence presented, however, revealed that Smith did have measures in place to reasonably assure that all communications with his office were promptly brought to his attention and that Ross would conduct herself in such a manner as was compatible with his professional responsibilities. Ross didn't follow those measures. Since such measures were in place, the charged violation of Colo. RPC 5.3(@) is dismissed.

The charged violation of Colo. RPC 5.3(b) requires a different consideration. Colo. RPC 5.3(b) focuses upon whether the attorney having direct supervisory authority over a non-lawyer adequately supervises that individual. Smith had direct supervisory authority over Ross in this case. He delegated substantial responsibility to her and failed to review her work. Indeed, although the client file was in his office for the entire period of time the events were unfolding, he did not review that file to determine if Ross was, in fact, attending to the case as she described to him. Smith's failure to adequately supervise Ross allowed her to conceal the court's orders requiring that Smith take specific action on Reynolds' behalf, including setting a temporary orders hearing, engaging in alternative dispute resolution or informing the court that none was necessary, calendaring all deadlines set by the court, confirming that Smith's office was in contact with the client, and confirming the correct status of the case. A simple examination of the Reynolds file would have disclosed Ross's activities and alerted Smith of the problems developing in the case.

Smith's failure to adequately supervise Ross resulted in her engaging in the unauthorized practice of law. Smith's acting as Ross's direct supervisor but failing to fulfill his professional obligations with regard to that supervision violated Colo. RPC 5.8(b). Allowing a non-lawyer assistant to engage in the unauthorized practice of law by failing to supervise the non-lawyer is grounds for discipline. People v. Reynolds, 933 P.2d 1295, 1298-99 (Colo.1997); People v. Stewart, 892 P.2d 875, 877-78 (Colo.1995).

Smith argues that but for Ross's failing to advise him of Reynolds' attempts to contact him, her failing to provide him with the court's orders, and her failing to advise him that the case had been dismissed, he would not have neglected the client's case. Smith's argument is without merit.

Other jurisdictions have examined this issue. The Restatement (Third) of Law Governing Law. § 11 (20083) concerning a lawyer's duty of supervision, provides:

Supervision is a general responsibility of a principal (see Restatement Second, Agency § 503, Comment f & id. §§ 507 & 510). A . lawyer with authority to direct the activities of another lawyer or nonlawyer employee of the firm is such a principal. Appropriate exercise of responsibility over those carrying out the tasks of law practice is particularly important given the duties of lawyers to protect the interests of clients and in view of the privileged powers conferred on lawyers by law. The supervisory duty, in effect, requires that such additional experience and skill be deployed in reasonably diligent fashion.
Lack of awareness of misconduct by another person, either lawyer or nonlawyer, under a lawyer's supervision does not excuse a violation of this Section. To ensure that supervised persons comply with professional standards, a supervisory lawyer is required to take reasonable measures, given the level and extent of responsibility that the lawyer possesses. Those measures, such as an informal program of instructing or monitoring another person, must often assume the likelihood that a particular lawyer or nonlawyer employee may not yet have received adequate preparation for carrying out that person's own responsibilities.

In State ex rel. Oklahoma Bar Ass'n v. Braswell, 663 P.2d 1228, 1231-32 (Okla.1983) the attorney raised the same argument as Smith, intimating that losing track of the client's case may have been occasioned by the inaction or neglect of his law clerk. The Oklahoma Supreme Court stated "[wihile delegation of a task entrusted to a lawyer is not improper, it is the lawyer who must maintain a direct relationship with his client, supervise the work that is delegated and exercise complete, though indirect, professional control over the work product .... [tlhe work of lay personnel is done by them as agents of the lawyer employing them. The lawyer must supervise that work and stand responsible for its product." See, e.g., In re Morin, 319 Or. 547, 878 P.2d 393, 401 (1994) (lawyer responsible for unauthorized practice of law by paralegal where, following lawyer's initial warning to paralegal, lawyer took no further steps to enforce instruction or to test employee's ability to identify inappropriate activities); In re Bonanno, 208 A.D.2d - 1117, 617 N.Y.S.2d - 584 (N.Y.App.Div.1994)(attorney reprimanded respondent for his conduct in the supervision of a non-attorney employee and in the management of his law office in violation of the rules of professional conduct of New Jersey prohibiting gross neglect, aiding the unauthorized practice of law, and failure to supervise adequately a non-attorney employee); Florida Bar v. Rogowski, 399 So.2d 1390, 1391 (Fla.1981)(noting that an attorney's nonlaw-yer personnel are agents of the attorney and attorney is responsible for seeing that the agents' actions do not violate the Code of Professional Responsibility); State v. Barrett, 207 Kan. 178, 483 P.2d 1106, 1110 (1971)(noting that the work done by secretaries and other lay persons is done as agents of the lawyer employing them and the lawyer must supervise their work and be responsible for their work product or the lack thereof).

After initially pursuing the Reynolds matter and drafting a separation agreement, Smith lost contact with Reynolds and failed to inform himself of the status of the case. He failed to comply with the court's January 27, 1999 and June 7, 1999 orders. Even if as Smith asserts he did not see the court orders and therefore could not comply with them, he was fully aware of the procedures and deadlines set forth by the court in a divorcee proceeding. Smith failed to make every effort to locate the client and acquire his signature on the Separation Agreement, and failed to take adequate measures to confirm the status of the case. Instead, he relied on Ross to oversee the file. Smith's failing to take the required steps to resolve the Reynolds matter constitutes neglect in violation of Colo. RPC 1.3.

Although Smith's conduct clearly constitutes neglect, it does not, however, rise to the level of abandonment. To find abandonment rather than mere neglect, the evidence must objectively indicate that counsel deserted, rejected, and/or relinquished his professional responsibilities. In the present case, although Smith should have taken measures to locate Reynolds, Ross did not inform Smith that Reynolds had come to the office inquiring about the status of the case. Smith continued to believe that Reynolds had lost interest in pursuing the divorce. Ross fostered Smith's lack of awareness of Reynolds' numerous attempts to contact him. He did not, therefore, desert, reject or relinquish his professional responsibilities. Smith's actions did not terminate the attorney client relationship with Reynolds and the provisions set forth in Colo. RPC 1.16(d) were not triggered. Accordingly, claim four alleging a violation of Colo. RPC 1.16(d) is dismissed.

Initially, for approximately the first four months of representation, Smith stayed in adequate contact with Reynolds and kept him informed of the case status. Thereafter, however, for a period of a year and a half, Smith violated Colo. RPC 1.4(a) by failing to keep Reynolds reasonably informed about the status of the divorce proceeding. Smith violated Colo. RPC 1.4(b) by failing to explain the procedural status of the case to Reynolds to the extent reasonably necessary to permit the client to make informed decisions. His failure to inform himself of the status of the case does not abrogate his responsibility to keep the client reasonably informed.

Smith's conduct regarding the Reynolds matter resulted in injury to Reynolds: his divorcee matter was dismissed, both parties suffered considerable distress not knowing whether they were divorced over a considerable period of time, and Reynolds must suffer the inconvenience of pursuing his legal rights in another jurisdiction.

III. IMPOSITION OF SANCTION

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) ("ABA Standards") are the guiding authority for electing the appropriate sanction to impose for lawyer misconduct. ABA Standard 4.42(b) provides that suspension is generally appropriate when "a lawyer engages in a pattern of neglect and causes injury or potential injury to a client." Because Smith's continuing failure to properly supervise Ross in the Reynolds case covered a period of nearly twenty-seven months, his conduct established a pattern of neglect. A six-month suspension is consistent with other disciplinary measures ordered by the Supreme Court. See People v. Williams, 824 P.2d 813, 815 (Colo.1992) (attorney suspended for six months for continued and chronic neglect of three separate legal matters with requirement of reinstatement); People v. Barber, 799 P.2d 936, 941 (Colo.1990)(attorney suspended for six months for handling legal matter without adequate preparation, neglect of legal matter, failure to seek lawful objectives of client and gross negligence); People v. Larson, 716 P.2d 1093 (Colo.1986) (neglect of entrusted legal matter and failure to carry out contract of employment warrants six-month suspension); People v. Bugg, 200 Colo. 512, 616 P.2d 133 (1980) (failure to process estate, to file action, and to communicate with clients, when considered with the mitigating factor of personal problems, warrants six-month suspension).

Factors in aggravation and mitigation were considered pursuant to ABA Standards 9.22 and 9.382 respectively. In mitigation, Smith does not have a prior disciplinary record, see id at 9.82(a); he did not have a dishonest or selfish motive, see id. at 9.82(b); Smith made a timely, good faith effort to make restitution by returning to Reynolds his retainer, and endeavored to assist in rectifying the filing of multiple divorcee cases, see id at 9.32(d), and Smith has made a full and free disclosure and has demonstrated a cooperative attitude toward the disciplinary proceedings, see id. at 9.82(F). In aggravation, Smith declined to acknowledge the wrongful nature of his conduct. He testified that he did not believe he did anything wrong in the matter. See id. 9.22(g). Moreover, the length of time involved in his neglect of the Reynold's case and the supervision of Ross established a pattern of misconduct. See id. 9.22(c).

In this case, Smith's lack of recognition of his wrongdoing in combination with the substantial damage imposed upon the administration of justice by the filing and processing of an unauthorized dissolution of marriage proceeding as well as the injury suffered by his client arising from his neglect and failure to supervise a non-lawyer employee, suggests that a period of suspension greater than six months is required. The Hearing Board finds that a nine-month suspension is appropriate under both Colorado law and the ABA Standards.

IV. ORDER

It is therefore ORDERED:

1. MATTHEW S. SMITH, attorney regulation number 22681 is suspended from the practice of law for a period of nine months, effective thirty-one days from the date of this Order.
2. Pursuant to C.R.C.P. 251.32, Smith shall pay the costs in conjunction with this matter. Complainant shall file a Statement of Costs within fifteen (15) days of the date of this Order; Smith shall have ten (10) days thereafter to file a Response.

      . The Reynolds file disappeared when a new management company took over Smith's office.

      . The second divorce action filed by Ross was eventually dismissed upon Smith's motion.

      . It is not clear that the provisions of Colo. RPC 5.3(a), referring only to partners in law firms, is applicable to a lawyer practicing as a solo practitioner. That issue, however, was not argued before the Hearing Board and is not decided here. For purposes of this decision we assume, without deciding, that Colo. RPC 5.3(a) applies to a solo practitioner. .


text:
    2003 OK CR 16
    Darrin Lynn PICKENS, Petitioner, v. STATE of Oklahoma, Respondent.
    No. PCD 2002-983.
    Court of Criminal Appeals of Oklahoma.
    July 23, 2003.
   ORDER DENYING POST-CONVICTION RELIEF ON PROPOSITION TWO; ORDER GRANTING POST-CONVICTION RELIEF ON PROPOSITION ONE AND REMANDING TO THE DISTRICT COURT OF - CREEK COUNTY FOR A JURY DETERMINATION ON THE ISSUE OF MENTAL RETARDATION

{1 Petitioner, Darrin Lynn Pickens, was convicted by a jury in Creek County District Court, Case No. CF 1990-66, of First Degree Murder, while in the commission of Robbery with a Dangerous Weapon, in violation of 21 O.8.Supp.1989, § 701.7 (Count 1) and Felo-niously Carrying a Firearm, in violation of 21 O.8.Supp.1989, § 1288 (Count 2). The jury set punishment at death on the murder conviction and at ten (10) years imprisonment on Count 2. We affirmed Petitioner's conviction and death sentence for Murder in the First Degree, but we reversed Petitioner's convietion for Robbery with a Dangerous Weapon and remanded for a new trial. Pickens v. State, 2001 OK CR 3, 19 P.3d 866. Petitioner's first Application for Post-Conviction Relief was denied. Pickens v. State, PCD 2000-285 (Okl.Cr. August 30, 2001)(not for publication). His Petition for Writ of Certiorari was denied by the United States Supreme Court on June 28, 2002. Pickens v. Oklahoma, 536 U.S. 961, 122 S.Ct. 2668, 153 L.Ed.2d 842 (2002).

T2 On October 14, 2002, Petitioner filed a Second Application for Post-Conviection Relief, pursuant to 22 0.S8.2001, § 1089. Accompanying Petitioner's Application was a Motion for Evidentiary Hearing, filed pursuant to Rule 9.7(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002).

T8 In this second Application for Post-Conviction Relief, Petitioner raises two claims:

1. In light of the Supreme Court's recent ruling that executions of the mentally retarded are cruel and unusual punishment, Petitioner's death sentence should be vacated and modified to a non-capital sentence. In the alternative, this case should be remanded for an evidentiary hearing to determine whether Petitioner's mental disabilities bar his execution, and
2. The trial court's failure to instruct the jury that a critical factor in the sentencing stage had to be found beyond a reasonable doubt deprived Mr. Pickens of a fair sentencing determination in violation of the Oklahoma Constitution and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

T4 Petitioner seeks review of Proposition Two on the merits as Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) set forth a new rule of constitutional law that was unavailable at the time of Petitioner's original Application for Post-Convietion Relief. See Rule 9.7(D) & (G), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002). Petitioner claims the jury instructions in his case were unconstitutional under the standard set forth in Ring, because the jurors were not instructed it must find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Petitioner argues the weighing determination is the essence of the decision the jury must make to impose the death penalty and thus must be proved beyond a reasonable doubt. Petitioner claims the failure to instruct the jury it must find the aggravating circumstances outweigh the mitigating evidence beyond a reasonable doubt "infects the very structure" of the capital sentencing proceeding and can never be harmless.

15 We considered and rejected this claim in Torres v. State, 2002 OK CR 35, 58 P.3d 214. There, we recognized the substantive element of capital murder in Oklahoma is the jury's finding of at least one aggravating cireumstance necessary to support a capital death sentence. Torres, 2002 OK CR 35, 1T 6-7, 58 P.3d at 215. - "It is that finding, not the weighing of aggravating and mitigating cireumstances, that authorizes jurors to consider imposing a sentence of death." Id. The increase in punishment from life imprisonment without the possibility of parole to death is contingent on the factual finding of an aggravating cireumstance beyond a reasonable doubt. Id.

T6 The requirement set forth in Ring is satisfied by Oklahoma law which requires the jury to unanimously find any aggravating cireumstance beyond a reasonable doubt. Id. The instructions given in the second stage of Pickens' trial satisfied this requirement and did not violate either the federal or Oklahoma constitutions. See Exhibit G, filed in support of Application. Therefore, post-conviction relief on Proposition Two is not warranted.

T7 Petitioner argues review of Proposition One is authorized by Section 1089(D)(9), because the legal basis for the claim "was not recognized by" a final decision of the United States Supreme Court, until that Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Prior to that decision, the execution of the mentally retarded was not considered cruel and unusual punishment under the Eighth and Fourteenth Amendments. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 LEd.2d 256 (1989). We rejected this claim in Petitioner's direct appeal based upon the Penry decision. Pickens, 2001 OK CR 3, ¶ 51, 19 P.3d at 883. We agree with Petitioner that review of this claim on the merits in this subsequent post-conviction application is authorized by the plain language of Section 1089(D)(9).

T8 We also review this claim as a "new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state and had not been announced before that date" - 22 O.8.Supp.1998, § 1089(D)(9). In Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 1075-1076, 103 L.Ed.2d 334 (1989), the Supreme Court held that new constitutional rules of eriminal procedure would not be retroactively applied unless they (a) place "certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe," or (b) are watershed rules of criminal procedure that implicate the fundamental fairness of the trial. In Penry, the Supreme Court specifically acknowledged that if it held that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry, we would be announcing a "new rule." Penry, 492 U.S. at 329, 109 S.Ct. at 2952. Such a new rule would "impose a new obligation on the States and Federal Government." Id.

19 It is clear the United States Supreme Court recognized a new constitutional rule barring the execution of the mentally retarded would fall outside Teague's ban on retroactive application of new constitutional rules because it placed the State's ability to execute that class of persons beyond the State's power. Penry, 492 U.S. at 330, 109 S.Ct. 2934; Hill v. Anderson, 300 F.3d 679, 681 (6th Cir.2002). In Murphy v. State, 2002 OK CR 32, ¶ 28, 54 P.3d 556, we recognized that, in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), mentally retarded persons are no longer eligible for the death penalty. Murphy clearly shows this Court's intention to apply Atkins retroactively to those persons already on death row. Murphy at ¶ 36, 54 P.3d at 569.

' 10 We initially remanded this case for an evidentiary hearing on the issue of mental retardation. See Order Granting Motion for Evidentiary Hearing on Proposition One of Second Application for Post-Conviction Relief, Pickens v. State, PCD 2002-983 (Okl.Cr. November 19, 2002)(not for publication). We thereafter ordered the evidentiary hearing held in abeyance and directed the State to respond to Pickens' Second Application for Post-Conviction Relief. See Order Granting Motion to Hold Order Granting Evidentiary Hearing in Abeyance; Order Directing Response, Pickens v. State, PCD 2002-983 (Okl.Cr. December 13, 2002)(not for publication). The State of Oklahoma filed its Response on February 14, 2008.

{11 Petitioner's Atkins claim of mental retardation must be resolved pursuant to the definition of mental retardation set forth in Murphy, 2002 OK CR 32, ¶ 31, 54 P.3d at 556-557. For capital purposes, a mentally retarded person is one with significantly limited ability to intellectually and adaptively function in certain enumerated areas, who has at least one IQ test score of seventy (70) or below, and in whom the retardation manifested itself before the age of eighteen (18). Id. We find Petitioner has raised sufficient evidence to create a question of fact on the issue of mental retardation and hereby GRANT post-conviction relief on Proposition One. In accordance with Murphy, we remand this case for a jury determination on the question of mental retardation. 22 0.8.2001, § 1089(D)(5).

1 12 We recently set forth the procedure to be followed on remand in Lambert v. State, 2003 OK CR 11, ¶¶ 3-5, 71 P.3d 30, 31-32, and that same procedure should be followed in this case.

13 Accordingly, as set forth in this Order, post-conviction relief is DENIED on Proposition Two and GRANTED on Proposition One. It is the order of this Court that this case be REMANDED to the District Court of Creek County for a jury hearing on the issue of mental retardation, in accordance with the procedures set forth in Lambert. The hearing shall be held within one hundred and twenty (120) days from the date of this Order. The trial court shall file findings of fact and conclusions of law, including the jury's determination and any sentencing disposition, in this Court within forty-five (45) days from the conclusion of the jury proceeding. 22 0.8.2001, § 1089(D)(6).

T 14 IT IS SO ORDERED.

15 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 23rd day of July, 2008.

/s/ Charles A. Johnson. CHARLES A. JOHNSON, Presiding Judge.

/s/ Steve Lile. STEVE LILE, Vice Presiding Judge.

/s) Gary L. Lumpkin. GARY L. LUMPKIN, Judge.

/s/ Charles S. Chapel. CHARLES 8. CHAPEL, Judge.

/s/ Reta M. Strubhar. RETA M. STRUBHAR, Judge.

L UMPKIN, Judge,

Dissents.

1 Remanding this case for a jury determination on the issue of mental retardation is premature at this time and essentially "skips a step" in the Murphy analysis. In support of his claim, Petitioner has presented the following: 1) a copy of his first application for post-conviction relief showing the issue of his mental retardation has been raised previously; 2) a copy of the trial testimony of Dr. Hesson concerning his expert opinion on Petitioner's mental age and the contributing factors to that conclusion; 3) an affidavit from Dr. Mark Cunningham, Ph.D., concerning his June 2001 evaluation of Petitioner and his findings that before Petitioner was 18 years old he had IQ test scores ranging from 70 to 77, he had significant deficits in communication capabilities and social/interpersonal skills, and he was placed in Educable Mentally Handicapped classes in school. Also included is an affidavit from Leatha Brannon, a correctional teacher at the Jackie Brannon Correctional Center, wherein she states that while Petitioner was incarcerated at the center he struggled to learn and that she did not have any problems with Petitioner.

1 2 The evidence set forth above is not the quantum of evidence presented in Lambert which warranted a remand for a jury determination on the question of mental retardation. The information provided to this Court at this point is not sufficient to create a question of fact on Petitioner's mental retardation. It is sufficient only to warrant remanding this case to the trial judge for an evidentiary hearing on the issue of mental retardation. While we remanded the case for that purpose, such an evidentiary hearing has not been held in this case due to the stay subsequently entered by this Court. To hold such a hearing at this juncture provides both parties the opportunity to fully present evidence in an adversarial proceeding as to whether Petitioner has raised sufficient evi-denee (at trial, on appeal, or at the evidentia-ry hearing) of his mental retardation, in accordance with the definition set forth in

Murphy. If sufficient evidence is presented, then the issue of mental retardation can be decided as a question of fact by a jury at a trial, While the evidence presented may ultimately warrant a jury determination of the issue of Petitioner's mental retardation and the appropriateness of his sentence, this Court needs to review written findings of fact and conclusions of law prepared by the trial judge to make that decision and not merely the scant information provided by Petitioner in this second application for post-conviction relief. Accordingly, I dissent.

      . The jury found the following aggravating circumstances: (1) that Pickens had previously been convicted of a felony involving the use or threat of violence against the person; (2) that the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution; and (3) that there existed the probability that Pickens would commit criminal acts of violence that would constitute a continuing threat to society.

      . In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 2439-40, 153 LEd.2d 556 (2002), the United States Supreme Court held that a capital jury must make any factual findings bearing on capital punishment beyond a reasonable doubt.

      . Lambert v. State, 2003 OK CR 11, 71 P.3d 30.