“Troubling Quixotry” Gets Lawyer Suspended: Don Quixote In Colorado

A Colorado attorney was suspended for six months for his advice to a client

Beecher advised his client, a criminal defendant, not to attend a pretrial conference when he discovered that her ex-husband, whom he believed was dangerous and violent, would be attending the conference. Disregarding all available information to the contrary, Beecher assured his client that he would obtain a continuance and informed her that she need not appear. Although he failed to obtain a continuance, Beecher refused to attend the pretrial conference himself. As a result, a bench warrant issued for his client’s arrest. Beecher then delayed taking appropriate action to quash the warrant or resolve the situation, and he failed to secure his client’s appearance at a subsequent hearing.

The client had been charged with the theft of a laptop as an act of domestic violence. The attorney sought to persuade the prosecutor that the charges were groundless.

He sent an email making those arguments and

The day after this email correspondence, a gunman crept into a crowded movie theater in Aurora, Colorado, set off gas canisters, and then mowed the audience down in a mass shooting, killing many people and injuring countless others. Family friends of Respondent’s were killed. The lone suspect, James Holmes, was arrested at the scene. In the aftermath of the tragedy, Respondent spent time reading about James Holmes. He also reviewed Quispe’s divorce and medical records. Respondent testified that, like Holmes, there were “warning signs” relating to Julian; according to Respondent, Quispe’s records suggested that Julian was a dangerous man who had seriously injured Quispe in the past and who continued to pose a substantial threat to her safety.

The conduct occurred when the attorney and prosecutor clashed over the appearance of the “victim” of the alleged crime. Things got quite intense and involved court personnel.

The offending advice followed.

 More critically, Respondent failed to appreciate the distinction between stipulating to a continuance of the pretrial conference and waiving the appearance of a defendant on bond. Judge Bencze explained that even if the parties had agreed to a continuance, he would have required Quispe to appear so that he could order her to attend the next bond  returnable court date. And, as [prosecutor] Coyne testified, even though she promised not to oppose a continuance, she did not have the authority to grant the continuance or excuse Quispe’s appearance, which only the court could do. In fact, Coyne discussed this with Respondent in one of their email exchanges prior to the 1:30 p.m. docket—written before Quispe failed to appear—when Coyne made clear that although she would not oppose the motion to continue, Quispe still remained under court order to be present. To advise Quispe not to appear, and then to refuse to reevaluate this advice in the face of Coyne’s warning, was to provide Quispe deficient counsel concerning court procedures and rules.

We cannot endorse Respondent’s contention that his behavior was justified in order to keep Julian away from Quispe and thus to avoid violence. As the People observe, even a “noble motive does not warrant departure from the Rules of Professional Conduct.”But as a practical matter, Respondent need not have resorted to his chosen course of action: a panoply of options existed to ensure Quispe’s safety during the pretrial conference, yet Respondent neglected to pursue any of them. He neither accepted Coyne’s offer of courthouse security, nor specifically inquired of [judicial assistant] Wilson whether Judge Bencze could provide assistance, nor arranged for a private security detail, as he later did on August 2. Any of these remedies would have been very easy to execute, and the consequence for not doing so was extremely predictable. Although Respondent may have feared for Quispe’s safety, he appears to have been blinded by that concern, which interfered with his capacity to problem-solve and exercise good judgment.

The attorney was found to have engaged in incompetent representation and conduct prejudicial to the administration of justice but not to have counseled a client to engage in criminal conduct.

He had prior discipline for an “intimate, albeit non-sexual” relationship with a client that caused a conflict of interest.

Sanction

In this case, Respondent’s misconduct stemmed from his concern for Quispe’s safety, was of relatively short duration, caused Quispe no actual harm, and was remedied without difficulty when Respondent and Quispe finally appeared in court. But unlike the negligent conduct in Moskowitz, Respondent knowingly refused to appear at the pretrial conference, even though he easily could have done so. Further, like the lawyer in Davies, Respondent refused to acknowledge his misconduct and has a prior disciplinary history that includes a ninety-day suspension. As in Bauder, Huntzinger, and Roose, Respondent prejudiced the administration of justice by refusing to comply with explicit court orders—conduct that was compounded by the presence of several aggravating factors. Respondent’s behavior might be most akin to the misconduct described in Aron, where the lawyer failed to notify his client of the potential repercussions of his advice but acted without a dishonest or selfish motive. In contrast with that case, the harm here is minimal but, unlike that lawyer, Respondent knowingly prejudiced the administration of justice and has a serious prior disciplinary history.

Taking into consideration the nature of Respondent’s conduct, the one mitigating and three aggravating factors, and the relevant case law, we conclude Respondent should be suspended for six months, with the requirement that he petition for reinstatement. In so doing, we recognize that the lawyering tasks involved in Quispe’s case were neither complex nor unusual and that the rule violations at issue are relatively minor when measured by the injury they caused. Nevertheless, we impose this sanction to reflect Respondent’s ineptitude in Quispe’s misdemeanor matter, which he mishandled so as not only to expose Quispe to possible arrest, but also to offend Judge Bencze, his staff, and Coyne—all to no purpose.

In imposing this sanction, we are most swayed by Respondent’s prior disciplinary case, which, while it does not concern parallel rule violations to those at issue here, reflects a similar and troubling quixotry. In both this case and his earlier disciplinary matter, Respondent jettisoned his good judgment, fueled by what seem to be protective impulses toward his female clients. Rather than relying on his legal training to help resolve his clients’ issues, in both cases he abandoned his role as an officer of the court and legal counselor and instead reacted as a combatant, without due regard for the consequences. Further, although we do not rely on them to find rule violations, Respondent’s rash, emotional outbursts while communicating with Coyne and Wilson, as described in this opinion, illustrate our concern with what seems to be an emerging pattern: during the course of representing clients, Respondent has twice been blinded by his emotions in the heat of the moment. In this matter, Respondent’s hair-trigger reaction escalated what should have been a simple matter, culminating in a series of bizarre verbal exchanges with Wilson that left her visibly frightened. He also reflexively reported Coyne to the disciplinary authorities based on his self-described incorrect assumptions.

Such impetuous, irrational behavior, coupled with similar conduct in Respondent’s first disciplinary case, leads us to conclude that he should serve a meaningful suspension, followed by a process of petitioning for reinstatement. To impose a suspension shorter than his prior sanction—a served suspension of ninety days—would trivialize his misconduct and send the wrong message that similar future offenses, even those amplified by other significant aggravators, might not be met with mounting discipline. Requiring Respondent to petition for reinstatement recognizes the worrisome nature of his developing pattern and encourages him to explore, prior to resuming his law practice, how best to control his passions and make reasoned, logical decisions in the face of emotion, stress, and time pressure. For this reason, as a condition of his reinstatement we require Respondent to undergo an independent mental health evaluation and to initiate such treatment as recommended by the evaluator.

Reinstatement is not automatic after the six months. (Mike Frisch)