A Discomfiting Decision

A Colorado Hearing Board has denied reinstatement to a suspended attorney

In 2023, O’Brien was suspended for one year and one day for her misconduct while representing an incarcerated client in 2021. O’Brien conferred with her client only once during the representation, and she did not provide him with a writing that described the basis or rate of her fee. During the representation, O’Brien stipulated to a six-month suspension of her law license. But she did not promptly notify her client or the court presiding over his case that her law license had been suspended until two days before the suspension took effect. In her motion to withdraw from the case, O’Brien did not disclose her upcoming suspension; instead, she made an inaccurate statement about why she sought to withdraw. Also during the representation, O’Brien resolved a traffic case that she believed involved her client but that actually concerned an individual with the client’s first and last name. O’Brien never independently verified that the case involved her client and never communicated with him about resolving the matter.

Following a hearing, the hearing board concluded that O’Brien failed to show by clear and convincing evidence that she is rehabilitated from her misconduct and that she is fit to practice law.

Her post-suspension activities including establishing a consulting business

Encouraged by these results, Petitioner developed a consulting business and incorporated it in summer 2024. Through that business, Petitioner offers to advise lawyers how to establish ethically compliant legal practices. Petitioner testified that her work as a consultant draws on her knowledge of the Colorado Rules of Professional Conduct and her business acumen—she is two quarters shy of earning a Master of Business Administration (“MBA”) degree. She testified that “[the] MBA program has been invaluable to . . . understanding what I did wrong as a business owner that I now know how to avoid in the future.” Petitioner reported that she has already consulted with some lawyers, though to a lesser extent than she has with Berish.

Leading to this concern

Petitioner’s conduct since her suspension includes laudable work but insufficient efforts to address the issues that underlay her misconduct. We thus find that her conduct does not clearly and convincingly demonstrate her rehabilitation. Moreover, her evidence of rehabilitation on this factor is undercut by her discomfiting decision to give, rather than seek, guidance about proper law firm management practices during her suspension…

Petitioner’s self-reliance in diagnosing and remedying her practice management deficiencies is a particularly salient example of her failure to address a personal shortcoming that could result in a violation of professional standards, rules, and laws. Petitioner has shown no awareness of the possibility that her self-reliance is born of the same hubris that drove her to take on more cases than she could handle. While her mentorship with Frigo is admirable, that mentorship focused on the technical and strategic aspects of family law; Petitioner presented no testimony that she received mentorship or coaching from anyone to address the burnout issues which led to her misconduct. In our view, her overconfidence makes her especially vulnerable to future breaches of professional rules because it can blind her to problems she ought to see, such as her “sloppy and reckless” case management practices. Although we acknowledge Petitioner’s care not to engage in the unauthorized practice of law while working as Berish’s paralegal, we are not convinced that, on balance, she has resolved her personal shortcomings such that she can comply with her professional obligations and with all relevant rules and laws when not supervised by another lawyer.

In sum, we are unconvinced that Petitioner can comply with the applicable rules and law if she returns to practice now.

The conclusion of the appended opinion denying reinstatement

During her suspension, Petitioner charted her own course. Rather than seek counsel regarding her professional burnout or guidance from others in remedying her problematic case management practices, she launched a business advising lawyers about how to operate their legal practices in conformity with the Colorado Rules of Professional Conduct. In so doing, she failed to address the underlying causes of her misconduct while evincing the overconfidence that contributed to some of her misconduct. In addition, Petitioner did not demonstrate that she unreservedly accepts responsibility for her ethical missteps, and she incredibly denied that her six-figure tax debt factored into her misconduct. She thus has failed to meet her burden to demonstrate rehabilitation from her misconduct and her current fitness to practice law in Colorado. We therefore deny Petitioner’s petition for reinstatement.

Our coverage of the suspension matter is linked here. (Mike Frisch)