text:
    The PEOPLE of the State of Colorado, Complainant, v. John Palmer WATERS, Respondent.
    Case Number: 18PDJ014
    Office of Presiding Disciplinary Judge of the Supreme Court of Colorado.
    DATED JANUARY 22, 2019.
    OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(b)
   WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

In 2017, John Palmer Waters ("Respondent") commingled a retainer with his own money and knowingly converted the retainer. He also failed to keep records of funds he held in trust for a representation. Further, he breached client confidences in a motion to withdraw because he was frustrated with his client. Respondent's violations of Colo. RPC 1.6(a), 8.4(c), 1.15A, and 1.15D warrant disbarment.

I. PROCEDURAL HISTORY

On April 6, 2018, Jacob M. Vos, Office of Attorney Regulation Counsel ("the People"), filed a complaint with William R. Lucero, the Presiding Disciplinary Judge ("the PDJ"), alleging that Respondent violated Colo. RPC 1.5(b), 1.6(a), 8.4(c), and 1.15A. Through his counsel, Michael W. Gross, Respondent answered on June 1, 2018, after receiving an extension of time.

The People moved to amend their complaint on August 14, 2018, adding a claim premised on Colo. RPC 1.15D(a). The PDJ allowed the amendment, and Respondent filed an amended answer on September 26, 2018. On October 24, 2018, Gross moved to withdraw from representing Respondent, and the PDJ granted that request two days later.

At the hearing on November 27, 2018, the PDJ, along with lawyers Charles F. Garcia and Marna M. Lake, served on the Hearing Board. Vos represented the People, and Respondent appeared pro se. The Hearing Board heard telephone testimony from Laraine Wright and Cheryl Power as well as in-person testimony from Jason Raines, Janet Layne, and Respondent. The Hearing Board considered stipulated exhibits 1-22 and the parties' stipulated facts.

II. FACT AND RULE VIOLATIONS

Respondent took the oath of admission and was admitted to the practice of law in the Colorado Supreme Court on October 22, 2007, under attorney registration number 39420. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.

Respondent's Withdrawal from the Raines Case

Jason Raines testified that since 2010 he has litigated an ongoing battle with his ex-girlfriend concerning custody of their daughter. He has mostly represented himself pro se in those proceedings, he said, even though a traumatic brain injury suffered when he was sixteen years old affects his ability to handle high-stress situations.

Raines testified that in May 2017 he was incarcerated in Grand Junction on multiple pending criminal charges. Because he was being held on a $ 25,000.00 cash-only bond, which he could not pay, he remained in jail. Prior to his arrest, Raines said, he had filed a pro se motion to modify his child support. Then, while he was in jail, his ex-girlfriend moved to modify his parenting time, and the court set a hearing on that motion for July 5, 2017. According to Raines, he was not allowed to attend any civil hearings while incarcerated, so he was concerned he would default. He wanted to hire an attorney to attend the hearing and obtain a continuance until he was released from jail; he also wanted assistance with his earlier-filed motion to modify child support. He said that he was given Respondent's name by a friend and that he asked his grandmother, Laraine Wright, to hire Respondent on his behalf. Raines was represented by a public defender in his criminal matters.

Wright testified that she called Respondent in mid-May 2017. She said she relayed general information about Raines's case, but her primary task was to pay Respondent for the representation. On May 17, 2017, she paid Respondent a $ 2,500.00 retainer by credit card.

Raines recalled speaking with Respondent by phone in mid-May 2017. During the call, Raines explained that his case was "easy" and that all Respondent had to do was "show up" at the hearing on July 5, 2017, to "get a continuance." Respondent remembered Raines informing him that the July hearing was merely a status conference. Respondent's billing entries reflect that within several days after speaking with Raines on May 19, 2017, he contacted Raines's public defender and the opposing counsel in the custody matter. Respondent then entered his appearance in Raines's custody case on May 22, 2017.

Raines testified that during Respondent's representation he gave his friend Cheryl Power permission to act as a liaison between him and Respondent because it was difficult for him to communicate with Respondent from jail. Power testified that she primarily supplied Respondent with basic information about the history of Raines's custody case. Raines said that he did not have any conversations with Respondent about waiving attorney-client confidentiality.

By the end of May 2017, Respondent had determined that Raines's case was far more complicated than Raines had described and that Raines had given him inaccurate information. According to Respondent, he waited over a week to "pull" the court file but once he looked into the matter more carefully, he realized that Raines had been untruthful and that his case was not "easy." In fact, he said, Raines's ex-girlfriend had not moved to modify Raines's parenting time but instead had asked the court to restrict parenting time, which, according to Respondent, is the "highest conflicted level of parenting time" that can be requested, requiring a court to analyze twenty-five enumerated factors on the record. Respondent was exasperated with Raines.

Once he realized the purpose of the July hearing, Respondent said, he explained to Wright, Power, and Raines that the best approach would be to address Raines's pending criminal matters first, as they would directly affect the outcome of the motion to restrict. It was then, Respondent said, that Raines became "upset" about the case and insisted that Respondent was not "doing his job."

On June 13, 2017, Respondent told Wright, Power, and Raines that he planned to withdraw from Raines's case. Three days later, Respondent filed a motion to withdraw. The motion included the following statements:

1. Respondent, Jason Raines, hasn't been truthful with undersigned counsel since he hired him.
...
4. Respondent, Jason Raines, has a number of civil and criminal issues pending.
...
6. Because of all these legal issues, it was imperative that, given the extent of the retainer, priorities had to be laid out; rather than attack everyone with impunity. Thereby leaving no money left to actually do some good. Client agreed to this.
7. Mr. Raines said, essentially, this is an "easy" case; nothing could be further from the truth.
...
12. Undersigned counsel was very concerned, though, about the pending felony charge of stalking. That criminal case would vastly impact this case....
13. To undersigned counsel's complete surprise, there were over 303 pleadings filed and over 35 court-appearances. Numerous contempts. A judge recuses herself, etc.
14. Most disturbing was the full-day hearing set for this July 5th, 2017, which Mr. Raines never told undersigned counsel about. Needless to say, undersigned counsel felt lied to, or, at least, "tricked" into taking this case.
15. It got worse. 16. After a number of phone calls to Mr. Raines, his guardian angel, Cheryl Power[ ], and his grandmother, undersigned counsel decided to stick it out and try to keep costs to a minimum, telling him to focus on his felony stalking case and dealing with this case down the road. Client agreed to this.
...
18. After speaking with [Mr. Raines's public defender], though, undersigned counsel learned that Mr. Raines also has a pending DUI and an unwanted sexual contact. Two more misdemeanors that would impact this case. This was the last straw.
19. The attorney/client relationship has completely broken down. 20. It would be an undue burden on counsel to continue on this matter given the lack of trust between undersigned counsel and his client....

Looking back, Respondent said that Raines's case "blew up from day one" because no one listened to him and understood the importance of the case's procedural history. But Respondent admitted that it was unprofessional of him to "vent" about Raines in the motion to withdraw. He acknowledged that many of the statements in his motion were based on information he had learned in conversations with Raines or contained his impressions of the case, although he also noted that some of the information was of public record, such as Raines's pending criminal charges. Respondent recognized that he "went overboard" and disserved the profession by filing the motion. He also admitted that he breached client confidences. He avowed that he now understands how such a motion should properly read.

Raines testified that Respondent never told him about his withdrawal as counsel or that Respondent suspected he was dishonest about his case. Raines said that Respondent's motion did not make sense to him because Respondent had agreed to take his case. Raines maintained that Respondent's motion painted him in a negative light by bringing before the court his criminal matters, which were merely pending, thereby tainting the court's impression of him. Further, Raines said that the unwanted sexual conduct charge had been dismissed three days before Respondent filed his motion. He felt that Respondent's statements were hurtful and surprising.

On June 25, 2017, the court granted Respondent's motion to withdraw. Neither Respondent nor Raines attended the hearing on July 5, 2017. In a minute order issued on July 5, the court granted the motion to restrict Raines's parenting time to supervised visits. Wright testified that because Respondent withdrew shortly before the hearing, she did not have the time or the money to hire another lawyer to represent Raines. Raines testified that he is still fighting for custody of his daughter.

Respondent's Fee Agreement and Trust Account

As noted above, Wright paid Respondent a $ 2,500.00 retainer on May 17, 2017. At that time, Respondent did not give Wright a written fee agreement, but he and Wright both testified that they understood Respondent would bill his time against the retainer at $ 175.00 per hour. That same day, Respondent deposited the $ 2,500.00 into his trust account electronically through his accounting software. Respondent testified that he knew the purpose and importance of keeping client funds in his trust account.

On June 17, 2017, the day after he moved to withdraw in Raines's case, Respondent sent Wright the written fee agreement. The fee agreement reflected Respondent's and Wright's understanding of Respondent's fee structure. The fee agreement also stated that Wright's retainer would be "held in trust ... until earned." Also on June 17, Respondent emailed Wright, stating, "please give me your full name and address again, so that I can send you a refund next month." Wright sent him her address and requested a full accounting.

On June 19, 2017, Respondent prepared an invoice for Wright. The invoice showed that Respondent had earned $ 920.60 in attorney's fees and owed Wright a refund of $ 1,579.40.

Respondent did not immediately send Wright a refund; instead, he consumed a portion of Wright's unearned funds for his personal use on June 26, 2017, as reflected in his bank statements. From June 5 to June 26, 2017, the daily ending balance of Respondent's trust account was $ 3,000.00. On June 26, 2017, Respondent withdrew $ 2,950.00. As a result, his trust account balance dipped to $ 50.00-a sum significantly less than the refund that he owed Wright. Respondent testified that he transferred the $ 2,950.00 on June 26 into his personal checking account to pay bills. The bank statements confirm that the majority of these funds were consumed for his personal expenses.

Respondent testified that on July 7, 2017, he made an electronic deposit of $ 1,200.00 into his trust account, bringing the account's balance to $ 2,159.15. According to Respondent, on that same day he issued Wright a full refund of $ 1,579.40 from his trust account. The People's investigator, Janet Layne, testified that during her investigation she was unable to determine the source of Respondent's deposits into his trust account because he never produced any accounting records. She recalled Respondent telling her that his accounting software "deletes" his client records immediately after he prints an invoice. Respondent said that the $ 1,200.00 he deposited on July 7 "likely" came from another client's funds and thus it was "not [Wright's] money" that he refunded to her.

Respondent admitted that he was "willful" in mishandling his trust account. He also admitted to mismanaging his trust account in the past, keeping it fully funded until an emergency arose, at which point he would transfer funds to his personal account and later move money back into trust. He testified that he has struggled with "entitlement issues" his whole life, but he never intended to steal Wright's money. He has never "stolen a dime" from any other client, he stated, and he was adamant that his trust account has been fully funded since this disciplinary case began.

Respondent's Additional Testimony

Respondent testified that he was raised in a small farming town in Michigan and was close to his father. He said that his family's farm was very profitable until his father "singlehandedly" destroyed that business. Respondent and his family moved in 1986 to Colorado where his father started an advertising firm. Respondent stated that his father recklessly mishandled the firm's client funds while working there. Once caught, Respondent said, his father turned to another business endeavor, offering drug and alcohol classes for wealthy professionals convicted of DUIs who did not want to attend court-ordered classes. According to Respondent, his father's business was designed to "skirt the system"; his father would charge clients for fabricated completion certificates. Respondent testified that he learned "this behavior" growing up and never had any "moral coaching" from his father.

According to Respondent, he recently became a Christian and has changed the way he practices law. He swore that he would never again "borrow" money from his trust account, and if an emergency arose in the future he would get a part-time job to make extra money. He appeared genuinely remorseful for his misconduct and even apologized to Raines while he was on the witness stand. He repeatedly asked the Hearing Board for a second chance.

Colo. RPC 1.5(b)

With their first claim, the People contend that Respondent violated Colo. RPC 1.5(b), which requires a lawyer who has not regularly represented a client to communicate in writing the basis or rate of the lawyer's fee and expenses before or within a reasonable time after commencing the representation. Respondent contravened this rule, say the People, by failing to provide Wright a written fee agreement until after he moved to withdraw from Raines's representation.

It is undisputed that Wright retained Respondent to represent Raines on May 17, 2017, and that on the same day, Respondent and Wright had a phone conversation in which he explained the fee arrangement, including that his hourly rate of $ 175.00 would be billed against the $ 2,500.00 retainer. Wright said she understood the basis of Respondent's fee. Respondent did not, however, give Wright a written fee statement until June 17, 2017-one month after the representation began and eight days before the court granted his motion to withdraw. Although it is not the best practice to wait thirty days to tender a written fee agreement, we do not find that the People have proved by clear and convincing evidence that Respondent violated Colo. RPC 1.5(b), as he tendered a written fee agreement to Wright within thirty days after he was retained, and that agreement accurately reflected the fees they had discussed over the phone one month prior.

Colo. RPC 1.6(a)

Next, the People charge Respondent with contravening Colo. RPC 1.6(a), which precludes, in part, a lawyer from revealing information relating to the representation of a client unless the client gives informed consent. Respondent transgressed this rule, the People argue, by disclosing confidential client information in his motion to withdraw. At the hearing, Respondent admitted that he had disclosed client confidences in the motion, and we agree.

At the time Respondent disclosed information he had learned during the representation and revealed his impressions of the case, Raines had not given Respondent permission to disclose any such information, nor was there any need to do so. While Respondent may have garnered some of this information from another source, the confidentiality rule applies to all matters communicated in confidence by the client and to all information relating to the representation, whatever its source. Accordingly, we conclude that Respondent violated Colo. RPC 1.6(a).

Colo. RPC 1.15A and Colo. RPC 8.4(c)

The People's third and fourth claims allege, respectively, that Respondent violated Colo. RPC 1.15A, which requires a lawyer to hold the property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property, and Colo. RPC 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent contravened these rules, the People say, by failing to maintain client funds in his trust account and by knowingly and dishonestly converting Wright's funds.

At the hearing, Respondent admitted that he willfully contravened Colo. RPC 1.15A by failing to maintain Wright's unearned funds in his trust account. He did not, however, admit that by transferring Wright's funds into his personal account and using them for personal expenses he knowingly violated Colo. RPC 8.4(c). This is so, he says, because he never intended to keep any of Wright's money, and he replaced those funds.

In order to establish a violation of Colo. RPC 8.4(c), a culpable mental state greater than simple negligence must be proved. A knowing conversion "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." 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." Neither the lawyer's motive in taking the money nor the lawyer's intent to return the funds are relevant for disciplinary purposes.

"Knowing and intentional conversion [of client funds] may be established by various types of evidence."

Respondent collected $ 2,500.00 from Wright. From those funds, he earned a legal fee of $ 920.60, so Wright was entitled to a refund of $ 1,579.40. Respondent knew that the $ 1,579.40 did not belong to him and that the money should have remained in trust until refunded to Wright. Instead, Respondent improperly transferred all but $ 50.00 of the funds from his trust account on June 26, 2017, constituting a conversion of the majority of Wright's funds. Respondent did not have Wright's authorization to spend her funds to pay his own bills, yet he used her funds on his personal expenses shortly after the transfer was complete. He then issued Wright a refund twelve days later, using another client's funds to repay her. Accordingly, Respondent exercised possession and control over a portion of Wright's funds from June 26 to July 7, 2017, resulting in her deprivation of those funds, even if only temporarily.

Respondent's defense that he always intended to pay Wright the balance he owed her and that he never intended to permanently deprive her of those funds fails as a matter of law. Respondent's intention to return the funds is irrelevant to the analysis we must perform. Intent to permanently deprive another person of his or her funds is not an element of knowing misappropriation. Respondent took Wright's funds knowing that they were not his, and his use of those funds was not authorized.

We thus conclude the People have proved by clear and convincing evidence that Respondent violated Colo. RPC 1.15A and that he knowingly converted all but $ 50.00 of Wright's funds for his own purposes in violation of Colo. RPC 8.4(c).

Colo. RPC 1.15D(a)

In their final claim, the People contend that Respondent violated Colo. RPC 1.15D(a), which requires a lawyer to maintain for seven years an appropriate recordkeeping system to keep track of funds and other property held for others. The People charge Respondent with violating this rule by failing to maintain financial records documenting his handling of client funds during the period of May to July 2017.

Respondent did not disclose to the People any financial records for the months of May to July 2017. As a result, Layne testified that she could not determine the source of the $ 1,200.00 deposit made on July 7, 2017, into Respondent's trust account. She also said that Respondent told her his accounting software "deletes" all client information after he generates an invoice. We draw from Respondent's inability to produce any accounting records during the relevant timeframe the adverse inference that Respondent did not maintain an appropriate recordkeeping system for each client for whom he was holding funds in his trust account. Accordingly, we find that Respondent failed to maintain appropriate records concerning his clients' funds held in trust, as required under Colo. RPC 1.15D(a).

III. SANCTIONS

The American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards ") and Colorado Supreme Court case law guide the imposition of sanctions for lawyer misconduct. When imposing a sanction after a finding of lawyer misconduct, a hearing board must consider the duty violated, the lawyer's mental state, and the actual or potential injury caused by the lawyer's misconduct. These three variables yield a presumptive sanction that may be adjusted based on aggravating and mitigating factors.

ABA Standard 3.0-Duty, Mental State, and Injury

Duty : Respondent violated his duties of candor and loyalty to Wright when he knowingly converted and neglected to safeguard the funds she entrusted to him for Raines's representation. He also disregarded his duty to Raines to preserve client confidences. As a professional, Respondent acted in dereliction of his responsibility to maintain an appropriate recordkeeping system.

Mental State : The Hearing Board concludes that Respondent acted knowingly when he failed to safeguard funds belonging to Wright, converting those funds, and failed to maintain an appropriate recordkeeping system. That Respondent used Wright's funds to pay his personal expenses and then used another client's funds to repay Wright strongly supports the conclusion that Respondent's conversion was knowing. So does the fact that Respondent admitted to engaging in a pattern of mishandling his trust account. We likewise find that Respondent acted knowingly when he revealed client confidences in his motion to withdraw.

Injury : We conclude that Respondent caused Wright minimal potential injury by temporarily depriving her of the use of her funds for twelve days. Although Wright stated that she did not have the funds to hire another attorney for Raines before the hearing, Respondent's testimony suggests that even if the funds had been available she might not have been able to hire an attorney on such short notice, given the complicated nature of Raines's parental rights hearing. Nevertheless, Respondent's mismanagement of funds and conversion compromised the integrity of the legal profession by tarnishing the public's perception of attorneys and eroding the public's confidence in the legal system.

Additionally, by revealing client confidences without consent, Respondent caused Raines potential injury, since Respondent's disclosures could have tainted the domestic court's impression of Raines's character. We conclude, however, that Respondent's disclosures likely did not cause Raines significant actual harm; the domestic case's procedural history was long, and presumably the presiding judge had already formed an independent judgment about Raines. Further, the court was already aware that Raines was held in custody on pending criminal charges: he asked for a continuance because he was incarcerated and could not post a bond.

ABA Standards 4.0-7.0-Presumptive Sanction

The presumptive sanction applicable to Respondent's most serious misconduct is disbarment, as set forth in ABA Standard 4.11. That standard provides that disbarment is typically warranted when a lawyer knowingly converts client property and thereby causes the client injury or potential injury. ABA Standard 4.22 provides that suspension is generally appropriate when a lawyer knowingly reveals information relating to the representation of a client, where the disclosures were not otherwise lawfully permitted, and causes injury or potential injury to a client.

Where a lawyer has committed multiple types of misconduct, the ABA Standards counsel that the ultimate sanction should at least be consistent with the sanction for the most serious disciplinary violation and generally should be greater than that sanction. Thus, we begin our analysis with disbarment as the presumptive sanction.

ABA Standard 9.0-Aggravating and Mitigating Factors

Aggravating circumstances include any considerations that may justify an increase in the degree of the sanction to be imposed, while mitigating circumstances include any factors that may warrant a reduction in the severity of the sanction. The parties have proposed that we apply a variety of aggravators and mitigators. As explained below, we apply four aggravating factors, one of which we weigh heavily, offset by three mitigating factors, two of which we weigh heavily.

Dishonest or Selfish Motive-9.22(b) : We find that Respondent acted with a dishonest and selfish motive when he knowingly converted and failed to safeguard Wright's funds. He acted selfishly when he consumed Wright's funds without her authorization. Indeed, he consumed these funds for personal expenses almost immediately after determining that he owed her a refund. He then used another client's funds to repay Wright, not knowing exactly to whom those funds belonged. Also during this time, Respondent selfishly disclosed client confidences in his motion to withdraw from Raines's domestic case because he was angry with Raines. Respondent's conversion of Wright's funds coupled with his disclosure of client confidences lead us to assign this aggravator significant weight.

Pattern of Misconduct-9.22(c) : The People asked us during their closing argument to apply this factor in aggravation based on Respondent's acknowledgement at the hearing that he has, in the past, engaged in a pattern of mishandling his trust account. This conduct is troubling, and we choose to weigh this factor in aggravation on these grounds. We also choose to apply this aggravating factor based on Respondent's 2017 private admonition. We consider that case as forming a pattern of misconduct because the misconduct here occurred before issuance of Respondent's private admonition on August 19, 2017. There, Respondent used client confidences to the disadvantage of his client. The Attorney Regulation Committee determined that even though Respondent likely would have learned some of the information from a source other than his client, Respondent's disclosure breached his client's trust and violated Colo. RPC 1.6(a). In both this matter and the 2017 case, Respondent disclosed client confidences. Because this aggravator is based on one instance of similar discipline, we choose to accord average weight to this factor.

Multiple Offenses-9.22(d) : We agree with the People that Respondent engaged in multiple types of misconduct, including conversion, commingling funds, incomplete recordkeeping, and disclosing client confidences. Because he committed four distinct types of misconduct, we choose to apply this factor in aggravation.

Vulnerability of Victim-9.22(g) : The People request application of this aggravating factor because, at the time of Respondent's representation, Raines was in custody with no means of being released on bond, and he needed an attorney to appear on his behalf at the restriction of parental rights hearing. That Raines was in jail during Respondent's representation did not make him particularly susceptible to Respondent's misconduct, including the manner in which Respondent withdrew. We also heard testimony that Raines suffered a traumatic brain injury as a teenager, but we received no evidence that his condition made him more vulnerable to Respondent's misconduct. Accordingly, we decline to apply this factor in aggravation.

Substantial Experience in the Practice of Law-9.22(i) : Respondent has been licensed in Colorado since 2007. At the time of his misconduct, Respondent had been practicing law for ten years. His misconduct reflects poorly on a practitioner with such appreciable experience, and we apply average weight to this factor in aggravation.

Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct-9.32(d) : Respondent asks the Hearing Board to give him significant credit in mitigation for returning Wright's unearned funds before any disciplinary action was lodged against him. At the hearing, however, Respondent indicated that he used another client's funds to pay Wright-a fact that does not militate in favor of applying this mitigator. Accordingly, we choose not to apply this factor in mitigation.

Full and Free Disclosure to Disciplinary Board or Cooperative Attitude Toward Proceedings-9.32(e) : We choose to apply significant mitigating weight to this factor. While testifying at this disciplinary hearing, Respondent was extremely candid with the Hearing Board. Against his own self-interest, he fully and freely disclosed that he had willfully commingled client funds, mismanaged his trust account, and breached client confidences in this case. He also admitted to using another client's funds to repay Wright and engaging in a pattern of mismanaging his trust account, knowing that these facts could affect the ultimate sanction we impose.

Remorse-9.32(l) : Respondent urges the application of this mitigating factor, asserting that he is indeed remorseful for his misconduct. We agree. During the hearing, Respondent addressed Raines on the witness stand, sincerely apologizing for the disclosures in the motion to withdraw. He also repeatedly apologized to the Hearing Board and to the legal profession for his misconduct in this case, vowing to never again mishandle his trust account. We appreciate Respondent's expressions of remorse and find that he truly realizes the seriousness of his actions. We weigh this factor significantly in mitigation.

Non-Enumerated Factor in Mitigation : The People mention in their hearing brief that Respondent should receive some mitigation in light of the short period of time during which he converted Wright's funds and the relatively small amount of money converted. We find that this factor merits our consideration. As discussed above, given the short duration of the conversion and the amount of funds converted, Wright suffered no actual injury and little potential injury. We thus choose to weigh this factor in mitigation.

Analysis Under ABA Standards and Case Law

The Colorado Supreme Court has directed the Hearing Board to exercise discretion in imposing a sanction and to carefully apply aggravating and mitigating factors. We are mindful that "individual circumstances make extremely problematic any meaningful comparison of discipline ultimately imposed in different cases." Though prior cases are helpful by way of analogy, hearing boards must determine the appropriate sanction for a lawyer's misconduct on a case-by-case basis.

As the Colorado Supreme Court has explained, lawyers are "almost invariably disbarred" for knowing misappropriation of client or third-party funds, even when full restitution is tendered. In People v. Finesilver , the Colorado Supreme Court disbarred a lawyer who knowingly converted money paid by clients for "services provided by [a title company] in the course of foreclosures handled by the law firm." There, the Colorado Supreme Court also determined that the lawyer converted funds in violation of the predecessor to Colo. RPC 8.4(c) when he received checks for the benefit of clients but never forwarded those funds to the clients. Despite evidence of several mitigating factors, including personal and emotional problems, payment of restitution, full and free disclosure, character and reputation, and remorse, the Colorado Supreme Court disbarred the lawyer, finding that the evidence of mitigation did not justify a sanction less than disbarment.

Likewise, in People v. Lavenhar , the Colorado Supreme Court determined that disbarment was warranted where the lawyer knowingly misappropriated third-party funds and where no extraordinary mitigation existed. There, the lawyer mistakenly received a check that was intended for a third party, then used the funds for personal and law firm expenses.

The Colorado Supreme Court has deemed disbarment appropriate even where the sum of money converted was not particularly large and the duration of the conversion was limited. For instance, the Colorado Supreme Court disbarred a lawyer in People v. Motsenbocker for knowingly converting $ 2,350.00 of bar association dues over a four-month period, even though the lawyer repaid the funds and established several other factors in mitigation, including remorse and cooperative attitude. Moreover, knowing conversion normally leads to disbarment even when mitigating factors predominate. In People v. Guyerson , the Colorado Supreme Court determined that disbarment was warranted where the lawyer converted a large sum of money from his law firm and clients, despite mitigating factors of absence of prior discipline, substantial personal and emotional problems, cooperation, remorse, and evidence of good character and reputation. Although the attorney was "under tremendous stress, including financial pressure as the sole breadwinner of a family which grew in a fashion he did not anticipate, and a host of serious and costly medical procedures," the Colorado Supreme Court affirmed the hearing panel's recommendation of disbarment, considering the extent of the lawyer's intentional conversion and, in particular, the lawyer's failure to remedy his misconduct until after it was discovered by the law firm.

In exceptional circumstances, however, even cases involving knowing conversion have resulted in a sanction less than disbarment. For example, in People v. Lujan , the Colorado Supreme Court approved a suspension rather than disbarment for conversion because the respondent presented substantial evidence of mental disability and proved that the mental disability actually caused the misconduct. Other mitigating factors were also present, including good character and reputation as well as interim rehabilitation. Likewise, in In re Fischer , a lawyer knowingly misappropriated third-party funds but he did not treat the funds as his own and presented significant mitigation, including character, remorse, and lack of an attempt to falsify, deceive, or conceal his misconduct, overcoming the presumption of disbarment.

Here, however, Respondent did not present evidence of mitigation substantial enough to warrant a departure from the presumptive sanction. Respondent's remorse and full and free disclosure are certainly significant: we applaud his decision to proceed with candor and transparency. We also carefully consider the fact that Respondent's conversion took place during a relatively short period of time, twelve days, involved a sum much smaller than that typically at issue in disbarment cases, and caused very little potential injury to Wright. Indeed, Respondent's mishandling of funds has a somewhat different character from many other instances of conversion addressed in Colorado case law, and we take this consideration to heart in our deliberations. Nevertheless, we conclude that the mitigating factors here are not so extraordinary as to warrant a lesser sanction than disbarment, particularly when weighed against the factors applied in aggravation-Respondent's dishonest and selfish motive, multiple offenses, pattern of misconduct, and substantial experience in the practice of law. As noted above, we also disagree with Respondent that his restitution of Wright's funds should be considered a significant mitigating factor. We treat Respondent's misconduct seriously not only because it undermines the trust between clients and their lawyers, but also because it severely damages the public's confidence in the legal profession and the perception of attorneys.

IV. CONCLUSION

By commingling a retainer with his own funds, converting the retainer, failing to follow recordkeeping requirements, and disclosing client confidences, Respondent ignored his duties under the Rules of Professional Conduct. We find that disbarment is the appropriate sanction for his serious misconduct.

V. ORDER

The Hearing Board therefore ORDERS :

1. JOHN PALMER WATERS , attorney registration number 39420, SHALL BE DISBARRED. The suspension will take effect upon issuance of an "Order and Notice of Disbarment."
2. To the extent applicable, Respondent SHALL promptly comply with C.R.C.P. 251.28(a)-(c), concerning winding up of affairs, notice to parties in pending matters, and notice to parties in litigation.
3. Within fourteen days of issuance of the "Order and Notice of Disbarment," Respondent SHALL comply with C.R.C.P. 251.28(d), requiring an attorney to file an affidavit with the PDJ setting forth pending matters and attesting, inter alia, to notification of clients and other jurisdictions where the attorney is licensed.
4. The parties MUST file any posthearing motion or application for stay pending appeal with the Hearing Board on or before Tuesday, February 12, 2019 . Any response thereto MUST be filed within seven days.
5. Respondent SHALL pay the costs of these proceedings. The People SHALL submit a statement of costs on or before Tuesday, February 5, 2019 . Any response thereto MUST be filed within seven days.

CHARLES F. GARCIA

HEARING BOARD MEMBER

MARNA M. LAKE

HEARING BOARD MEMBER

      On October 31, 2018, the PDJ granted the People's request to present these witnesses' testimony by telephone.

      On November 13, 2018, the People filed a proposed statement of stipulated facts. At the hearing, Respondent agreed to stipulate to those facts.

      Where not otherwise indicated, these facts are drawn from testimony provided at the hearing.

      See C.R.C.P. 251.1(b).

      Raines testified that he moved pro se to continue the hearing or to be transferred from jail to attend the hearing, but the court denied both requests.

      See also Stip. Facts ¶ 2.

      Stip. Facts ¶ 7.

      Stip. Facts ¶¶ 10-11; Ex. 10 at 00122.

      See Ex. 20 at 00034.

      Stip. Facts ¶¶ 12-13; see Ex. 10 at 00122-23.

      Stip. Facts ¶ 14; see Ex. 10 at 00122-23.

      Stip. Facts ¶ 15; Ex. 3.

      Stip. Facts ¶ 16; Ex. 4.

      We reproduce this filing here with all original grammatical and typographical errors.

      Ex. 4 at 00111-12.

      Stip. Facts ¶ 23; Ex. 20 at 00033.

      See Ex. 20 at 00032.

      See Ex. 20 at 00032.

      Stip. Facts ¶ 8.

      See Stip. Facts ¶ 9; Ex. 11 at 00158 (reflecting the $ 2,500.00 deposit from QuickBooks). The People's investigator, Janet Layne, confirmed that this $ 2,500.00 deposit was Wright's retainer.

      Stip. Facts ¶ 17; Exs. 8-9; see also Ex. 10 at 00123.

      Stip. Facts ¶ 20.

      Ex. 9 at 00118.

      Stip. Facts ¶ 18; Ex. 8.

      Stip. Facts ¶ 19; Ex. 8.

      Ex. 10.

      Stip. Facts ¶ 21; Ex. 10. The People do not dispute that Respondent earned this fee.

      Ex. 12 at 00161.

      Ex. 12 at 00160.

      Ex. 12 at 00161.

      See Ex. 15. Respondent testified that he did not have a business operating account.

      See Ex. 15 at 2 of 4.

      See Ex. 13 at 1 of 4. As reflected on Respondent's trust account statements, he made several other deposits and withdrawals from June 30 to July 7, 2017, all of which contributed to the daily ending balance on July 7 of $ 2,159.15. See Exs. 12-13.

      Ex. 13; Ex. 16; Stip. Facts ¶ 22.

      See also Ex. 18.

      The People's complaint alleged that Respondent did not give Wright or Raines a written statement of his fee until the representation was over. At the hearing, the People did not advance any argument concerning Respondent's failure to give Raines a written fee agreement within a reasonable time, perhaps because Wright was responsible for the fee. Accordingly, we base our findings solely on whether Respondent tendered to Wright a written fee agreement within a reasonable time.

      See Colo. RPC 1.6(b) (setting forth situations that may justify disclosures of information relating to a representation).

      See Colo. RPC 1.6 cmt. 3; see, e.g., Iowa Supreme Court Att'y Disciplinary Bd. v. Marzen , 779 N.W.2d 757, 766 (Iowa 2010) (finding that all lawyer-client communications, even those including publicly available information, are confidential).

      See Lawyer Disciplinary Bd. v. Farber , 200 W.Va. 185, 488 S.E.2d 460, 465 (1997) (finding that a lawyer's motion to withdraw and an attached affidavit went beyond the type of information appropriate to the termination of an attorney-client relationship); In re Gonzalez , 773 A.2d 1026, 1032 (D.C. 2001) (imposing sanctions on a lawyer who, when withdrawing from a representation, submitted confidential information related to the representation in a public filing, and did not appropriately redact the material most potentially damaging to his clients).

      In re Fisher , 202 P.3d 1186, 1203 (Colo. 2009) ; see People v. Varallo , 913 P.2d 1, 11 (Colo. 1996) ("[D]epositing client funds into a trust account with a negative balance, if done only negligently, would be a technical rather than knowing conversion of client funds. On the other hand, using client funds for personal use without the client's permission by writing a check on a trust account that the lawyer knows contains only client funds would be a knowing conversion of client funds, whether or not the lawyer intended to eventually replace the funds.").

      Varallo , 913 P.2d at 11 (quoting In re Noonan , 102 N.J. 157, 506 A.2d 722, 723 (1986) ).

      Id . (quoting In re Wilson , 81 N.J. 451, 409 A.2d 1153 n.1 (1979) ).

      Id . at 10-11.

      People v. Robnett , 859 P.2d 872, 877 (Colo. 1993).

      See People v. Dickinson , 903 P.2d 1132, 1136 (Colo. 1995) (concluding that an attorney who deposited client funds into an operating account, wrote checks from that account, and reimbursed the client with other funds violated the precursor to Colo. RPC 8.4(c) ).

      Varallo , 913 P.2d at 10-11.

      Id. at 11 (citing In re Barlow , 140 N.J. 191, 657 A.2d 1197, 1201 (1995) ).

      See In re Kleinsmith , 2017 CO 101, ¶ 13, 409 P.3d 305, reh'g denied (Nov. 20, 2017), reh'g denied (Dec. 18, 2017), cert. denied sub nom . Kleinsmith v. Colorado , --- U.S. ----, 138 S.Ct. 1559, 200 L.Ed.2d 744 (2018) ("An attorney's knowing conversion of funds belonging to a client or a third person violates Colo. RPC 8.4(c).").

      Found in ABA Annotated Standards for Imposing Lawyer Sanctions (2015).

      See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).

      People v. Radosevich , 783 P.2d 841, 842 (Colo. 1989) (noting that conversion "severely damages the public's perception of attorneys, and erodes public confidence in our legal system"); People v. McMahill , 782 P.2d 336, 338 (Colo. 1989) (noting that conversion "severely damages the public's perception of attorneys and its confidence in our legal system").

      See In re Cleland, 2 P.3d 700, 703 (Colo. 2000) ("Neither this standard nor [Colorado Supreme Court] cases require serious injury before disbarment is appropriate"). We adopt the People's request to apply ABA Standard 4.11, rather than ABA Standard 5.11(b), which states that disbarment is generally warranted when a lawyer engages in intentional but non-criminal conduct involving dishonesty that seriously adversely reflects on his or her fitness to practice law. Even though Standard 4.11 discusses conversion of funds belonging to clients, rather than third parties, we find this standard most apt under the facts of this case because the funds that Respondent converted from Wright were entrusted to him by Wright to pay for Raines's representation. See People v. Motsenbocker, 926 P.2d 576, 577 (Colo. 1996) (applying ABA Standard 4.11 to misappropriation of third-party funds). Under application of either standard, however, the result in this case would be the same.

      ABA Standards § 2 at 7.

      See ABA Standards 9.21 & 9.31.

      See People v. Williams , 845 P.2d 1150, 1153 n.3 (Colo. 1993) (finding that an earlier suspension should be considered as a pattern of misconduct rather than as prior discipline where most of the misconduct in the then-pending case took place before the imposition of the earlier suspension).

      See In re Olsen , 2014 CO 42, ¶ 32, 326 P.3d 1004 (applying only average weight to the aggravating factor of pattern of misconduct when it was based on only one instance of similar discipline).

      See id. at ¶ 31 (concluding that the hearing board applied too much weight to the aggravating factor of multiple offenses because the attorney's rule violations were "more appropriately characterized as a single violation arising from the ongoing pattern of untruths of his client, rather than three distinct violations").

      See Fla. Bar v. Ticktin , 14 So.3d 928, 938 (Fla. 2009) (stating that "[v]ulnerability of a victim is established when findings support that a respondent exercised undue advantage over a client who was not reasonably in a position to protect himself or herself" and noting that the fact that a client was incarcerated did not require a finding of vulnerability of the victim); In re Kagele, 149 Wash.2d 793, 72 P.3d 1067, 1079 (2003) ("People hire attorneys because they are in situations serious enough to require legal expertise and advice. A client's need for an attorney does not render him or her vulnerable....").

      "While the ABA Standards enumerate a number of ... aggravating and mitigating factors, they are expressly intended as exemplary and are not to be applied mechanically in every case." In re Rosen , 198 P.3d 116, 121 (Colo. 2008) ; see also In re Kamb , 177 Wash.2d 851, 305 P.3d 1091, 1099 (2013) (noting that the list of aggravators in the ABA Standards is nonexclusive).

      See In re Attorney F. , 2012 CO 57, ¶ 15, 285 P.3d 322 ; In re Fischer , 89 P.3d 817, 822 (Colo. 2004) (finding that a hearing board had overemphasized the presumptive sanction and undervalued the importance of mitigating factors in determining the needs of the public).

      In re Attorney F. , ¶ 20 (quoting In re Rosen , 198 P.3d 116, 121 (Colo. 2008) ).

      Varallo , 913 P.2d at 11 ; see also In re Thompson , 991 P.2d 820, 823 (Colo. 1999) (disbarring an attorney who knowingly converted client funds despite a clean disciplinary record, the presence of personal and emotional problems, and payment of restitution); People v. Lavenhar , 934 P.2d 1355, 1358-59 (Colo. 1997) (noting that a lawyer's misappropriation of funds belonging to a third party violated the predecessor to Colo. RPC 8.4(c) and stating that such conduct warrants disbarment, absent extraordinary mitigating factors); People v. Lefly , 902 P.2d 361, 364 (Colo. 1995) (disbarring an attorney for knowingly converting client funds despite mitigating factors, including payment of full restitution to his clients after the request for investigation was filed).

      826 P.2d 1256, 1256-57 (Colo. 1992).

      Id . at 1257.

      Id . at 1259.

      934 P.2d at 1359.

      Id . at 1358.

      926 P.2d at 577.

      898 P.2d 1062, 1063-64 (Colo. 1995).

      Id . at 1064.

      890 P.2d 109, 112-13 (Colo. 1995).

      Id .

      89 P.3d at 822.

      See Lavenhar , 934 P.2d at 1360-61 (disbarring a lawyer for knowing misappropriation of client funds, even though he had considerable personal and emotional problems and a debilitating head injury ); Young , 864 P.2d at 564 (disbarring a lawyer for knowing conversion of clients' funds, notwithstanding the presence of restitution, the lawyer's cooperation, and the absence of prior discipline); Lefly , 902 P.2d at 365 (disbarring a lawyer despite the presence of severe personal and emotional problems); Guyerson , 898 P.2d at 1063 (disbarring a lawyer who converted law firm and client funds notwithstanding the presence of substantial personal and emotional problems and the absence of prior discipline); People v. Ogborn , 887 P.2d 21, 23 (Colo. 1994) (disbarring a lawyer for conversion of client funds even considering the absence of prior discipline and the presence of personal and emotional problems).

      See In re Wilson , 409 A.2d at 1157-58 ("[M]aintenance of public confidence ... and in the bar as a whole requires the strictest discipline in misappropriation cases. That confidence is so important that mitigating factors will rarely override the requirement of disbarment. If public confidence is destroyed, the bench and bar will be crippled institutions.").

      In general, an order and notice of sanction will issue thirty-five days after a decision is entered under C.R.C.P. 251.19(b) or (c). In some instances, the order and notice may issue later than thirty-five days by operation of C.R.C.P. 251.27(h), C.R.C.P. 59, or other applicable rules.


source: Caselaw Access Project

author: BRODY, Justice.

license: Public Domain

text:
    In the INTEREST OF: Jane DOE (2017-35), A Juvenile Under Eighteen (18) Years of Age.
    State of Idaho, Petitioner-Respondent, v. Jane Doe (2017-35), Respondent-Appellant.
    Docket No. 45476
    Supreme Court of Idaho, Boise, February 2019 Term.
    Opinion Filed: April 2, 2019
    Anne Taylor, Kootenai County Public Defender, Coeur d'Alene, for appellant. Kristen A. Pearson argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Jeffery D. Nye argued.
   BRODY, Justice.

I. NATURE OF THE CASE

This case addresses whether a juvenile court has jurisdiction to reduce a juvenile's sentence once the juvenile is committed to state custody and the time for appeal has run. Relying on Idaho Criminal Rule 47, the rule which governs the filing of motions generally in criminal cases, Jane Doe filed a motion to modify disposition requesting that the juvenile court place her back on probation after sentence had been imposed and modify its previous computation of credit for time served. The juvenile court held that Doe's motion was actually a motion to reduce sentence under Idaho Criminal Rule 35 (a rule which has not been incorporated into the Idaho Juvenile Rules) and concluded that it did not have jurisdiction to consider Doe's motion.

Doe appealed the juvenile court's decision to the district court. The district court affirmed the decision, holding that Rule 47 did not grant jurisdiction to reduce the sentence, but that jurisdiction existed under Idaho Code sections 20-505 and 20-507. The district court held that whether the sentence should be modified is a discretionary call and that the juvenile court did not abuse its discretion in declining to place Doe back on probation or incorrectly calculate Doe's credit for time served. We agree with the district court's decision to affirm the magistrate court's denial of Doe's motion to modify disposition, but write today to explain that there is no jurisdiction for the juvenile court to modify the juvenile's sentence once it has been imposed and the time for appeal has run.

II. FACTUAL AND PROCEDURAL BACKGROUND

Jane Doe voluntarily admitted to two counts of grand theft in juvenile court and an order for informal adjustment through diversion was entered. A little over a year later, the juvenile court found that Doe violated the terms of her informal adjustment and sentenced her to three hundred sixty days of detention with three hundred twenty nine days suspended. Doe was given one day credit for time previously served and ordered to serve thirty days to be scheduled at a later date. The informal adjustment was not revoked, but Doe was ordered to two years of probation and required to complete family support court.

About ten months later, the State filed a motion to revoke Doe's probation because she had been running away, skipping school, and not taking her medications as prescribed. Doe was detained on a warrant for about twenty days, when she received a conditional release. Doe admitted to two probation violations and disposition was scheduled for a later date.

About six weeks later, the State filed a motion to revoke Doe's conditional release because she had been leaving school without permission and violating school attendance policies. Doe's conditional release was revoked and she was detained again. On the day she was released from detention, Doe appeared for disposition on the probation violations and was allowed to keep her informal adjustment. Shortly thereafter, Doe was ordered to serve two days in detention for violating the terms of her GPS monitoring device and having contact with people who were not on her approved contact list.

The State filed a second motion to revoke Doe's probation because Doe had been lying to her mother, having contact with a 25-year-old man who was not on her approved list of contacts, and continued absences from school. The court terminated Doe's probation. Three hundred sixty days of detention were imposed; Doe was given credit for one hundred twenty nine days served previously; and Doe was ordered to serve the remaining two hundred thirty one days immediately. Doe was granted a furlough to seek out-of-state medical treatment, but the juvenile court made it clear that no credit for time served would be granted while she was receiving treatment.

Approximately three years after the juvenile court entered the original informal adjustment through diversion, Doe filed a motion to modify disposition requesting leniency and to correct her sentence regarding credit for time served. Specifically, Doe requested that the juvenile court give her two days of credit for every day she spent in detention and place her back on probation. The juvenile court found that it did not have jurisdiction to consider Doe's motion. Despite Doe's claims that she had filed her motion with the court under Idaho Juvenile Rule 21 and Idaho Criminal Rule 47, the juvenile court found that Doe's motion was actually brought under Idaho Criminal Rule 35, which is not applicable to juveniles sentenced under the Juvenile Corrections Act. The court went on to state that even if jurisdiction existed it would have denied Doe's motion on the merits.

Doe appealed the juvenile court's decision to the district court. The district court agreed that jurisdiction did not exist under Idaho Juvenile Rule 21 and Idaho Criminal Rule 47, but found that jurisdiction existed under Idaho Code sections 20-505 and 20-507 ; as such, the juvenile court could have modified Doe's sentence. Nonetheless, the district court affirmed the juvenile court on the merits holding that the court did not abuse its discretion when it refused to place Doe back on probation and there was no basis in the Juvenile Corrections Act which supported Doe's argument that her credit for time served should have been doubled in this case, where she actually served one hundred twenty nine days in detention. Doe timely appealed to this Court. Doe finished serving her sentence while this appeal was pending.

III. ISSUES ON APPEAL

1. Whether Doe's appeal is moot because she finished serving her sentence and has been released from custody.

2. Whether the district court erred in holding that the juvenile court did not have jurisdiction to modify Doe's sentence under Idaho Juvenile Rule 21 and Idaho Criminal Rule 47.

3. Whether Doe was entitled to additional credit for time served.

IV. STANDARD OF REVIEW

When this Court reviews the decision of a district court sitting in its capacity as an appellate court, the standard of review is as follows:
The Supreme Court reviews the juvenile court (magistrate) record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure.
Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008) ). Thus, this Court does not review the decision of the magistrate court. Id. "Rather, we are 'procedurally bound to affirm or reverse the decisions of the district court.' " Id. (quoting State v. Korn , 148 Idaho 413, 415 n. 1, 224 P.3d 480, 482 n. 1 (2009) ).

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013).

V. ANALYSIS

A. Doe's appeal falls within an exception to the mootness doctrine because it concerns issues that are of substantial public interest.

As a threshold matter, the State argues that Doe's appeal should be dismissed as moot because Doe finished serving her sentence and was released from custody while this appeal was pending; as such, a favorable decision from this Court cannot provide her any relief. Doe concedes that her appeal is moot; however, she maintains that two exceptions apply to her appeal: (1) a juvenile serving more time than legally permitted is capable of repetition and likely to evade judicial review; and (2) the issue regarding whether a court can correct an illegal juvenile sentence, grant leniency, or grant credit for time served on each charge pre-judgment is of substantial public interest. We agree with the latter, and find there to be a substantial public interest in whether a juvenile court has the ability to modify a juvenile sentence after it has been imposed.

"An issue is moot if it 'does not present a real and substantial controversy that is capable of being concluded through judicial decree of specific relief' or if 'a favorable judicial decision would not result in any relief or the party lacks a legally cognizable interest in the outcome.' " State v. Abdullah, 158 Idaho 386, 462, 348 P.3d 1, 77 (2015) (quoting Arambarri v. Armstrong, 152 Idaho 734, 739, 274 P.3d 1249, 1254 (2012) ). Generally, "[a]fter the satisfaction of a judgment in a criminal case there is nothing on which a judgment of the appellate court can act effectively because there is nothing from which to appeal, and further proceedings are moot." State v. Rogers, 140 Idaho 223, 227, 91 P.3d 1127, 1131 (2004) (quoting State v. Snyder, 88 Idaho 479, 482, 401 P.2d 548, 550 (1965) ). This Court has recognized, however, three exceptions that can save an issue from the mootness doctrine: "(1) when there is the possibility of collateral legal consequences imposed on the person raising the issue; (2) when the challenged conduct is likely to evade judicial review and thus is capable of repetition; and (3) when an otherwise moot issue raises concerns of substantial public interest." State v. Barclay, 149 Idaho 6, 8, 232 P.3d 327, 329 (2010).

The State maintains that the issues Doe raised on appeal are of little interest to the general public as appellate courts have used that phrase in the past. However, we find that Doe's appeal presents an area of unsettled law that warrants consideration by this Court. See Ellibee v. Ellibee, 121 Idaho 501, 503, 826 P.2d 462, 464 (1992) (Court found that "the controversy at the heart of appellant's case remain[ed] alive" because the Domestic Violence Act had recently been enacted and not yet construed by an appellate court); see also Nelson v. Marshall, 94 Idaho 726, 729, 497 P.2d 47, 50 (1972) (Court found case was not moot because the dispute over the legality of the challenged practices remained to be settled). Because we find the issues on appeal to be of substantial public interest we will address the merits of Doe's appeal despite the fact that a favorable decision cannot provide her any relief.

B. The district court properly held that the juvenile court did not have jurisdiction to modify Doe's disposition under Idaho Criminal Rule 47, but erred when it held that jurisdiction was automatically extended under Idaho Code sections 20-505 and 20-507.

Doe argues that the district court erred in holding that the juvenile court did not have a basis to modify her disposition under Idaho Criminal Rule 47. The State responds that the only procedural rule that could permit a court to grant requests for leniency after a sentence has become final is Idaho Criminal Rule 35, but that Rule 35 does not apply to juvenile proceedings that arise under the Juvenile Corrections Act.

This Court exercises free review over jurisdictional issues. State v. Kavajecz, 139 Idaho 482, 483, 80 P.3d 1083, 1084 (2003) (citing Downey Chiropractic Clinic v. Nampa Restaurant Corp, 127 Idaho 283, 285, 900 P.2d 191, 193 (1995) ). Under the Juvenile Corrections Act, the juvenile courts have "exclusive, original jurisdiction" over a juvenile who engages in an act that is a violation of any federal, state, local or municipal law or ordinance which would be a crime if committed by an adult. I.C. § 20-505. The juvenile court retains that jurisdiction until the juvenile becomes twenty-one years of age, unless terminated prior thereto. I.C. § 20-507.

Idaho Code [section] 20-528 provides that juvenile judgments are appealable under this Court's appellate rules, which require all appeals to be made within forty-two days from the date of the entry of judgment. I.R.C.P. 83(e).... "Absent a statute or rule extending its jurisdiction, the juvenile court's jurisdiction to amend or set aside a judgment expires once the judgment becomes final, either by expiration of the time for appeal or affirmance of the judgment on appeal." State v. Jakoski , 139 Idaho [352, 355, 79 P.3d 711, 714 (2003) ].

State v. Doe , 153 Idaho 588, 592, 288 P.3d 805, 809 (2012).

In this case, the juvenile court entered an order revoking Doe's probation on December 20, 2016. The order required Doe to serve two hundred thirty one days immediately and gave her credit for one hundred twenty nine days for time previously served. Doe had forty-two days from December 20, 2016, to appeal the order before the juvenile court's jurisdiction terminated. Doe, 153 Idaho at 592, 288 P.3d at 809 (" Idaho Code [section] 20-528 provides that juvenile judgments are appealable under this Court's appellate rules, which require all appeals to be made within forty-two days from the date of the entry of judgment."). Doe did not appeal the juvenile court's order; instead, on April 12, 2017, Doe filed a motion to modify disposition. Once the time to appeal a final judgment expires, the court does not have jurisdiction unless there is a statute or rule to extend jurisdiction. See id.

Doe argues that the juvenile court's jurisdiction was extended under Idaho Juvenile Rule 21, looking to Idaho Criminal Rule 47. Rule 21 provides a list of Idaho Criminal Rules that apply to actions filed under the Juvenile Corrections Act, whereas Rule 47 sets the requirement that a party applying to the court for an order must do so by motion. Rule 47 provides in its entirety:

(a) In General. A party applying to the court for an order must do so by motion.
(b) Form and Content of a Motion. A motion, except when made during a trial or hearing, must be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by affidavit.
(c) Separate Document. Any written order entered must be on a document separate from the motion.

I.C.R. 47.

Doe maintains that Idaho Criminal Rule 47 is broad in its application to juveniles and permits the court to reconsider post-disposition matters such as leniency, correction of a judgment for credit for time served, and correction of an illegal sentence. Doe argues that under the plain application of the Idaho Criminal Rules to the Juvenile Rules, a juvenile can bring any motion before the court under Idaho Criminal Rule 47, whereas the State contends that the proper avenue that would allow a juvenile court to modify Doe's sentence is Idaho Criminal Rule 35, which is not listed in Idaho Juvenile Rule 21 and therefore does not apply under the Juvenile Corrections Act.

Rule 35 is the only rule that specifically allows for the trial court to correct an illegal sentence, reduce a sentence, or correct a court's computation of credit for time served. See I.C.R. 35 (stating that, "[w]ithin 120 days of the entry of the judgment imposing sentence or order releasing retained jurisdiction, ... the court may correct or reduce the sentence" and that "[a] motion to correct a court's computation of credit for time served ... may be made at any time"). Doe makes the argument that the absence of Idaho Criminal Rule 35 from the exhaustive list of Idaho Criminal Rules that apply under the Juvenile Corrections Act somehow grants a juvenile falling under the purview of the Act more leniency; however, we disagree. Because Idaho Criminal Rule 47 does not grant any jurisdiction, and Idaho Criminal Rule 35, which would extend jurisdiction, is not applicable in juvenile proceedings, neither the Idaho Criminal Rules nor the Idaho Juvenile Rules provided the juvenile court jurisdiction to modify Doe's sentence after she failed to timely appeal the order imposing the detention.

Notwithstanding the foregoing, the district court found that the juvenile court did have jurisdiction to modify Doe's sentence. Namely, that the juvenile court had jurisdiction to act under Idaho Code section 20-505 and that jurisdiction was retained pursuant to Idaho Code section 20-507. We hold that the district court erred in finding that jurisdiction was automatically extended after the juvenile court entered an order imposing Doe's detention. While the district court correctly determined that Idaho Code section 20-505 and 20-507 originally granted the juvenile court jurisdiction, it failed to consider that the juvenile court's jurisdiction terminated forty-two days after its December 20, 2016, order was imposed. Doe, 153 Idaho at 592, 288 P.3d at 809 (" Idaho Code [section] 20-528 provides that juvenile judgments are appealable under this Court's appellate rules, which require all appeals to be made within forty-two days from the date of the entry of judgment."). Once the time to appeal a final judgment or order expires, the court does not have jurisdiction unless there is a statute or rule to extend jurisdiction. Id. We hold that there was no statute or rule that extended jurisdiction after Doe failed to timely appeal the juvenile court's order.

Doe additionally claims the disparate treatment of juveniles and adults results in facial discrimination that violates the Equal Protection Clause of the Idaho and United States constitutions. However, the basic tenet underlying equal protection is that it is only "similarly situated people" that are entitled to "receive the same benefits and burdens under the law." State v. Hansen, 125 Idaho 927, 933, 877 P.2d 898, 904 (1994) (recognizing that "[t]he disparity in sentences between one defendant and another defendant convicted of the same crime does not, in itself, establish an equal protection violation"); see also State v. Rawlings, 159 Idaho 498, 501, 363 P.3d 339, 342 (2015) (finding no violation of the Equal Protection Clause because "[t]he persons in these two classifications are not in like circumstances"); State v. Rome, 160 Idaho 40, 43, 368 P.3d 660, 663 (Ct. App. 2016) ("The principle underlying the Equal Protection Clause of both constitutions is that all persons in like circumstances should receive the same benefits and burdens of the law.").

Doe's equal protection argument ignores the stark contrast between the juvenile system compared to its adult counterpart. Doe concedes as much with her contention that Idaho Criminal Rule 35 does not apply to juvenile cases. Indeed, Idaho Criminal Rule 35 does not treat juveniles differently as a whole. The rule does not reach juveniles who fall within the purview of the Juvenile Corrections Act while it does apply to juveniles sentenced in adult court. As a juvenile sentenced under the Juvenile Corrections Act, the maximum punishment Doe faced was one hundred eighty days in a juvenile detention facility for each count. I.C. § 20-520(d). On the other hand, an adult or juvenile who pleaded guilty to two counts of grand theft in adult court would face a minimum of one year in the state prison and a maximum of fourteen years for each count. I.C. § 18-2408(2)(a). Consequently, juveniles falling under the purview of the Juvenile Corrections Act are not in a similar position as juveniles sentenced in adult proceedings. "Equal protection embraces the principle that all persons in like circumstances should receive the same benefits and burdens of the law." Rawlings, 159 Idaho at 501, 363 P.3d at 342 (emphasis added).

We hold that the juvenile court properly concluded that there was no mechanism under the juvenile rules that would give it jurisdiction to consider Doe's motion to modify because it was actually a motion under Idaho Criminal Rule 35, which is not enumerated as an applicable rule under Idaho Juvenile Rule 21. In reaching this conclusion we recognize that the juvenile rules are silent as to whether a juvenile court can modify a juvenile's sentence once it is imposed; thus, we have referred this matter to the Idaho Juvenile Justice Advisory Committee to consider whether Rule 35 should be included in Idaho Juvenile Rule 21. However, in the present case, we hold that jurisdiction did not exist to consider Doe's motion.

C. The district court properly held that Doe was not entitled to additional credit for time served.

Although we have held that there is no jurisdiction to modify a juvenile's sentence after the forty-two day window to appeal a decision has passed, we will still address the issue Doe raised concerning the calculation of a juvenile's credit for time served. At the time the juvenile court entered its order terminating probation Doe had spent one hundred twenty nine days in detention, and Doe was given one hundred twenty nine days credit for time served. Doe now argues that she should have been given credit for time served for each grand theft charge.

"The question of whether a sentencing court has properly awarded credit for time served to the facts of a particular case is a question of law, which is subject to free review by the appellate courts." State v. Taylor, 160 Idaho 381, 384-85, 373 P.3d 699, 702-03 (2016) (quoting State v. Vasquez, 142 Idaho 67, 68, 122 P.3d 1167, 1168 (Ct. App. 2005) ).

Doe relies on Idaho Code section 18-309 for her proposition that she is entitled to double credit for time served. Section 18-309 addresses credit for time served in adult court proceedings and requires a defendant be given credit for time served on each "offense" he or she is held on. This Court has interpreted section 18-309 to mean that when an individual is held in prejudgment custody on multiple counts which he is ultimately sentenced on, the defendant receives credit for the prejudgment time spent in custody for each count's sentence. State v. Owens, 158 Idaho 1, 4, 343 P.3d 30, 33 (2015). Further, Doe argues that when section 18-309 is read in conjunction with Idaho Code section 19-2603, juveniles are entitled to credit for time served on the offense at issue when there was an arrest on a probation violation.

However, the statutes Doe relies on pertain to adults and juveniles sentenced in adult proceedings; thus, they are not applicable to someone sentenced under the Juvenile Corrections Act. The Idaho Juvenile Rules dictate that the scope and duration of jurisdiction over a juvenile under the Juvenile Corrections Act is set forth in Chapter 5 of Title 20, Idaho Code. I.J.R. 2. Once a court has determined that a juvenile falls within the purview of the Juvenile Corrections Act, and the juvenile admits to the allegations in the petition, the juvenile court is required to hold a sentencing hearing. I.J.R. 17(a). Thereafter, the court may impose one or more of the provisions authorized by Idaho Code section 20-520. I.J.R. 17(c). Section 20-520 permits juveniles to be formally sentenced in a variety of ways, including but not limited to, formal probation, detention, or suspension of driving privileges. The goal of sentencing under the Act is to "promote accountability, competency development and community protection." I.C. § 20-520(1). If the juvenile court wants a juvenile to be held in custody, the only option is to commit the juvenile to a period of detention:

(b) Sentence the juvenile offender to detention pursuant to this act for a period not to exceed thirty (30) days for each act, omission or status which is prohibited by the federal, state, local or municipal law or ordinance by reason of minority only ....
(c) Commit the juvenile offender to a period of detention, pursuant to this act, for a period of time not to exceed ninety (90) days for each unlawful or criminal act the juvenile offender is found to have committed, if the unlawful or criminal act would be a misdemeanor if committed by an adult, or where the juvenile offender has been adjudicated as an habitual status offender ....
(d) If the juvenile offender has committed an unlawful or criminal act which would be a felony if committed by an adult, the court may commit the juvenile offender to detention for a period not to exceed one hundred eighty (180) days for each unlawful or criminal act;

I.C. § 20-520(b)-(d).

Here, the juvenile court sentenced Doe to serve three hundred and sixty days in detention. At the time her probation was revoked the court recognized that Doe had already served one hundred twenty nine days in detention and gave her credit for each day spent in detention. There is no basis under the Juvenile Corrections Act which supports Doe's argument that her credit for time served should have been doubled. The statutes Doe relies on regarding credit for time served are applicable to adult criminal cases.

Doe claims that if the rules and statutes governing her juvenile proceeding under the Juvenile Corrections Act do not allow her to receive credit for time served in exactly the same way as juveniles and adults sentenced in adult court, they violate her right to equal protection under the United States and Idaho Constitutions. For the same reasons identified in Section B, juveniles under the Juvenile Corrections Act are not similarly situated to juveniles and adults sentenced in adult court. Rawlings, 159 Idaho at 501, 363 P.3d at 342. Thus, Doe's equal protection argument fails. We hold that the district court properly affirmed the juvenile court's denial of Doe's motion to alter her credit for time served.

VI. CONCLUSION

The district court's decision is affirmed.

Chief Justice BURDICK, and Justices BEVAN, STEGNER and MOELLER concur.


author: STEGNER, Justice.

text:
    Denise M. EHRLICH, Claimant-Appellant, v. DELRAY MAUGHAN, M.D., P.L.L.C., Employer; St. Luke's Regional Medical Center, Cost Reimbursement Employer, Idaho Department of Labor, Respondents.
    Docket No. 45845
    Supreme Court of Idaho, Boise, February 2019 Term.
    Filed: April 4, 2019
    James Mitchell Law, Meridian, for appellant.
    Idaho Attorney General's office, Boise, for respondent.
   STEGNER, Justice.

Denise M. Ehrlich (Ehrlich) appeals from an order of the Idaho Industrial Commission (the Commission) that determined she was ineligible for unemployment benefits. The Commission affirmed the determination of the Idaho Department of Labor (the Department) and the Appeals Examiner that Ehrlich willfully underreported her weekly earnings. On appeal, Ehrlich contends that the Commission's finding that she willfully misrepresented her wages was clearly erroneous. For the reasons set forth in this opinion, we affirm the Commission's decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

After losing her job of seventeen years with St. Luke's Regional Medical Center, Ehrlich applied for unemployment benefits with the Department on October 21, 2016. She began submitting weekly certifications of eligibility for benefits on April 15, 2017.

The Department performed a routine audit of Ehrlich's weekly certification reports. As part of that audit, the Department requested that Ehrlich's employer, DelRay Maughan, M.D. (Maughan), verify Ehrlich's weekly earnings. The Department noticed a discrepancy between the wages Maughan reported Ehrlich had earned and the wages Ehrlich submitted in her weekly earnings reports for six of the weeks in which she sought unemployment benefits. On September 28, 2017, the Department mailed Ehrlich a letter notifying her of the discrepancies. Specifically, the Department's letter noted discrepancies six of the eight weeks between July 15, 2017, July 22, 2017, August 5, 2017, August 19, 2017, August 26, 2017, and September 2, 2017. The letter requested Ehrlich's explanation for the discrepancies by October 10, 2017.

On October 10, 2017, Ehrlich called the Department and spoke with Melisa Huyck (Huyck), a Benefit Payment Control Supervisor for the Department. During the telephone call, Ehrlich admitted that she made a mistake and had entered her hourly wage rather than her total weekly earnings. However, she requested additional time in order to look into the discrepancies. Huyck extended the deadline to October 12, 2017.

Ehrlich failed to reply by the new deadline. Subsequently, on October 17, 2017, the Department issued an eligibility determination ruling, finding Ehrlich willfully made false statements in order to obtain unemployment benefits. As part of the ruling, the Department: (1) determined Ehrlich would not be eligible for benefits from October 15, 2017, through October 13, 2018; (2) sought repayment of the benefits Ehrlich received to which she was not entitled; and (3) imposed a civil penalty.

On October 26, 2017, Ehrlich sent the Department a letter (October 26 letter) explaining what the mistakes were and why she had made them. The letter included various documents including weekly certifications as well as timesheets submitted to her employer. The Department construed her letter to be an appeal of the Department's eligibility determination. As a result, the Department scheduled a telephonic hearing for November 13, 2017.

On November 13, 2017, the parties participated in the telephonic hearing with the Appeals Examiner to determine whether Ehrlich willfully made false statements to obtain unemployment benefits. During the hearing, Huyck, on behalf of the Department, testified that when Ehrlich first began filing her weekly claims, she correctly reported her total wages. However, after those initial weeks, Ehrlich switched back and forth between correctly reporting her total wages and incorrectly reporting them.

When questioned about the discrepancies, Ehrlich stated that she did not fully understand what the question was asking. On several weeks, she "caught herself" reporting her hourly wage rather than gross earnings and corrected the error before completing the report. Ehrlich explained that on the weeks that she reported her earnings correctly, she was merely guessing correctly. For the weeks she reported them incorrectly, those were due to misunderstanding, fatigue, and stress. Ehrlich stated that her October 26 letter explained how the questions confused her.

Ultimately, on November 14, 2017, the Appeals Examiner issued a decision affirming the eligibility determination. The Appeals Examiner concluded that Ehrlich had made a materially false statement in six weekly certification reports and was unable to provide a reasonable explanation as to why she switched from reporting her total weekly earnings to her hourly rate and back again. Ehrlich appealed the Appeals Examiner's decision to the Commission.

On January 30, 2018, the Commission affirmed the Appeals Examiner's findings that Ehrlich was ineligible for unemployment benefits because she had willfully underreported her wages. The Commission found that she was "consciously negligent" because she demonstrated on several occasions prior to submitting the incorrect claims that she was capable of submitting her wages correctly. Accordingly, the Commission affirmed the Appeals Examiner's decision that Ehrlich was ineligible for unemployment benefits for fifty-two weeks, that she had to repay any overpayments, and that she be subject to a civil penalty. Ehrlich timely appealed the Commission's decision.

II. ISSUES PRESENTED ON APPEAL

1. Whether substantial and competent evidence supports the Commission's finding that Ehrlich willfully misrepresented material facts when she underreported her earnings in weekly reports to the Department.

2. Whether the Department is entitled to attorney's fees on appeal pursuant to Idaho Code section 12-117(1).

III. STANDARD OF REVIEW

"When this Court reviews a decision from the Industrial Commission, [it] exercise[s] free review over questions of law, but review[s] questions of fact only to determine whether the Commission's findings are supported by substantial and competent evidence." Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003). "Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous. This Court does not weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented." Christy v. Grasmick Produce, 162 Idaho 199, 201, 395 P.3d 819, 821 (2017) (quoting Funes v. Aardema Dairy , 150 Idaho 7, 10, 244 P.3d 151, 154 (2010) ).

"Substantial evidence is more than a scintilla of proof, but less than a preponderance. It is relevant evidence that a reasonable mind might accept to support a conclusion." Christy, 162 Idaho at 201-02, 395 P.3d at 821-22 (quotation omitted). "[T]his Court views all the facts and inferences in the light most favorable to the party who prevailed before the Industrial Commission." Bell v. Dep't of Labor , 157 Idaho 744, 746-47, 339 P.3d 1148, 1150-51 (2014) (citations omitted).

IV. ANALYSIS

A. There is substantial and competent evidence to support the Commission's finding that Ehrlich willfully misrepresented material facts when she underreported her earnings.

The Commission determined that Ehrlich was not entitled to benefits because she willfully made false statements when she underreported her wages in her weekly certification reports to the Department. The Commission found that Ehrlich was "consciously negligent" because she had correctly reported her wages before and never attempted to contact the Department for clarification. Ehrlich argues that her misreporting of hourly wages rather than her total wages was an honest mistake and that the Commission and the Appeals Examiner failed to properly consider her October 26 letter.

A claimant "bears the burden of proving statutory eligibility for unemployment benefits." Current v. Wada Farms P'ship, 162 Idaho 894, 898, 407 P.3d 208, 212 (2017) (quoting McNulty v. Sinclair Oil Corp, 152 Idaho 582, 585, 272 P.3d 554, 557 (2012) ). A claimant must demonstrate that she has met all of the requirements set forth in Idaho Code section 72-1366. To enforce this requirement, Idaho Code section 72-1366(12) provides, "[a] claimant shall not be entitled to benefits for a period of fifty-two (52) weeks if it is determined that [s]he has willfully made a false statement or willfully failed to report a material fact in order to obtain benefits." Further, the claimant is required to repay any benefits she received to which she was not entitled. Id. The claimant may also be subject to a civil penalty. Id.

Here, Ehrlich does not contend that her reported earnings were not material facts or that the statements were not false. Rather, she only argues that she did not willfully misstate her weekly earnings.

"This Court has explained that the term willful as used in section 72-1366(12) does not mean that someone has acted maliciously or with what the law calls an 'evil mind.' " Christy , 162 Idaho at 202, 395 P.3d at 822 (quoting McNulty, 152 Idaho at 586-87, 272 P.3d at 558-59 ). This Court has defined willfulness as implying

simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, in the sense of having an evil or corrupt motive or intent. It does imply a conscious wrong, and may be distinguished from an act maliciously or corruptly done, in that it does not necessarily imply an evil mind, but is more nearly synonymous with "intentionally," "designedly," "without lawful excuse," and therefore not accidental.

Id. (quoting Meyer v. Skyline Mobile Homes , 99 Idaho 754, 761, 589 P.2d 89, 96 (1979) ). "The term 'willfully' refers to those claimants who 'purposely, intentionally, consciously, or knowingly fail to report a material fact [or make a false statement], not those whose omission [or false statement] is accidental because of negligence, misunderstanding or other cause.' "

Cox v. Hollow Leg Pub & Brewery, 144 Idaho 154, 157, 158 P.3d 930, 933 (2007) (alterations in original) (quoting Meyer, 99 Idaho at 761, 589 P.2d at 96 ).

1. "Consciously negligent" is not a standard recognized by this Court.

Here, the Commission determined Ehrlich's conduct to be "consciously negligent." Although neither party disputes the Commission's use of "consciously negligent," we take this opportunity to clarify that "consciously negligent" is not a standard employed by this Court. Nor is it a standard to be employed by the Commission. Rather, the Commission must find the conduct to be willful.

Despite this erroneous nomenclature, the Commission appeared to apply this Court's previous holdings in its analysis. This Court has found willfulness when "a benefit claimant knew or thought it highly probable that he or she did not know what information a question solicited but nevertheless deliberately chose to respond without pursuing clarification ...." Bringman v. New Albertsons, Inc., 157 Idaho 71, 76-77, 334 P.3d 262, 267-68 (2014) (quoting Meyer, 99 Idaho at 762, 589 P.2d at 97 ); see also Cox, 144 Idaho at 157, 158 P.3d at 933. It appears that the Commission used "consciously negligent" to refer to this articulation of this Court's willfulness standard. Accordingly, we reject the Commission's use of the phrase "consciously negligent," but continue to review whether the Commission's order is supported by substantial and competent evidence.

2. The Commission's findings that Ehrlich willfully underreported her earnings are supported by substantial and competent evidence.

There is substantial and competent evidence to support the Commission's findings. The Commission limited its analysis to assessing the probability that Ehrlich did not know what the Department was asking, and, then, deliberately elected not to seek clarification. Ehrlich received a pamphlet containing instructions on how to complete her weekly certification reports. For the weeks at issue, Ehrlich reported her hourly rate instead of her total wages. However, and tellingly, for other weeks Ehrlich reported her earnings correctly. She testified during the telephonic hearing that she would "catch" herself putting her hourly wages and that she was always confused as to what the question was asking. Despite testifying that she was confused, it is undisputed that Ehrlich never sought clarification from the Department.

The Commission stated, while there was no reason to doubt Ehrlich's explanation, it still resulted in willful and false statements being made by Ehrlich to obtain unemployment benefits. The Commission found that, on more than one occasion, Ehrlich was capable of submitting her wages correctly. Thus, there is substantial and competent evidence to find that her conduct was willful under this Court's definition.

Ehrlich's main argument as to why the Commission's finding is clearly erroneous is that the Commission failed to consider her October 26 letter as an effort to "follow up and ensure reporting was accurate." She states, "[b]y not recognizing it for what [the] letter actually was ... and giving little to no attention to it during the hearing" the Commission and Appeals Examiner failed to consider all of the evidence. However, this argument fails to appreciate the limited review of this Court on appeal from the Commission. This Court may only overturn the Commission's factual findings if they are clearly erroneous. Current, 162 Idaho at 898, 407 P.3d at 212. The Commission's determination that her October 26 letter was merely a protest to the determinations made by the Department and the Appeals Examiner was not clearly erroneous. The October 26 letter was not sent to the Department until after the Department had notified her of the discrepancies, she had spoken to Huyck, and received the eligibility determination ruling that stated she was ineligible for benefits. Therefore, the Commission's treatment of her October 26 letter as a protest to the eligibility determination is not clearly erroneous.

Further, the Commission apparently did not take issue with Ehrlich's explanation. However, the Commission still determined that Ehrlich had an obligation to accurately report her earnings and that she should have contacted the Department if she was confused. Therefore, the Commission's findings are supported by substantial and competent evidence.

B. The Department is not entitled to attorney's fees.

The Department requests attorney's fees on the basis that Ehrlich's appeal is without a reasonable basis in fact or law. Idaho Code section 12-117(1) provides: "in any proceeding involving as adverse parties a state agency ... and a person, ... the court hearing the proceeding, including on appeal, shall award the prevailing party reasonable attorney's fees, ... if it finds that the nonprevailing party acted without a reasonable basis in fact or law."

Here, the Commission seemingly accepted Ehrlich's testimony at face value, yet rejected her explanation nevertheless. This apparently contradictory finding renders Ehrlich's appeal understandable, even though not meritorious. As a result, her appeal is not frivolous. The Department's request for attorney's fees is therefore rejected.

V. CONCLUSION

We affirm the Commission's decision. We also award costs, but not attorney's fees, to the Department on appeal.

Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER concur.

      Ehrlich correctly reported her earnings for the weeks ending on June 24, 2017, July 1, 2017, July 8, 2017, August 12, 2017, and September 9, 2017. Ehrlich did not file for benefits for the week ending July 29, 2017.

      Ehrlich's counsel failed to file a brief with the Commission. Her counsel filed for an extension of the deadline, but the Commission denied her motion. A motion for reconsideration was also denied. This determination has not been challenged by Ehrlich on appeal.