SUPREME COURT, STATE OF COLORADO ORIGINAL PROCEEDING IN DISCIPLINE FILED | BEFORE Tiss PRESIDING DISCIPLINARY JUDGE 1560 Broadway, Suite 675 Denver, Colorado 80202 MAR 1.5 2010 BERNA Complainant: ‘THE PEOPLE OF THE STATE OF COLORADO A COURTUSB ONLY & Respondent: ————— ROBERT STUART MCCORMICK Case Number: O9PDJO6S April M. MeMurrey, #34194 ‘Assistant Regulation Counsel Attorney for Complainant 1560 Broadway, Suite 1800 Denver, Colorado 80202 Telephone: (303) 866-6400 ext. 6432 Fax No.: (303) 893-5302 Joseph Fonfara, #18538 Fonfara Law Offices Attorney for Respondent 311 E. Mulberry Street Fe. Collins, CO 80524 ‘Telephone: (970) 484-9233 -—~SHPULATION, AGREEMENT AND AFFIDAVIT CONTAINING THE RESPONDENT'S CONDITIONAL ADMISSION OF MISCONDUCT on this _1® day of March, 2010, April M. McMurrey, Assistant Regulation Counsel and attorney for the complainant, and Robert Stuart ‘McCormick, the respondent who is represented by attorney Joseph P. Fonfara, in these proceedings, enter into the following stipulation, agreement, and affidavit containing the respondent's conditional admission of misconduct (‘stipulation’) and submit the same to the Presiding Disciplinary Judge for his consideration. RECOMMENDATION: Public Censure 1. The respondent has taken and subscribed the oath of admission, ‘was admitted to the bar of this Court on May 25, 1983, and is registered as anattomey upon the official records of this Court, registration ne. 12870, The respondent is subject to the jurisdiction of this Court and the Presiding Disciplinary Judge in these proceedings. 2. The respondent enters into this stipulation freely and voluntarily, No promises have been made concerning future consideration, punishment, or lenience in the above-referenced matter. It is the respondent's personal decision, and the respondent affirms there has been no coercion or other intimidating acts by any person or agency concerning this matter. 3, This matter has become public under the operation of C.R.C.P, 251.31(¢) as amended. 4. The respondent is familiar with the mules of the Colorado Supreme Court regarding the procedure for discipline of attorneys and with the rights provided by those rules. The respondent acknowledges the right to a full and ‘complete evidentiary hearing on the above-referenced complaint. At any such hearing, the respondent would have the right to be represented by coun: present evidence, call witnesses, and cross-examine the witnesses presented by ‘the complainant. At any such formal hearing, the complainant would have the Durden of proof and would be required to prove the charges contained in the complaint with clear and convincing evidence. Nonetheless, having full knowledge of the right to such a formal hearing, the respondent waives chat right. S. The respondent and the complainant specifically waive the right to a hearing pursuant to C.R.C.P. 251.22(¢)(1) 6. The respondent and the complainant stipulate to the following facts and conclusions: a. Cheryl Simon and her husband ("the Simons"), and her adult son, David Lively (‘Lively’), hired the respondent’ to represent them regarding issues pertaining to Lively’s daughter. Lively wanted representation regarding child visitation issues, the reduction of child support payments, and assistance in preventing Lively’s ex-wife from ‘moving their young daughter out of state. The Simons were seeking grandparent visitation rights. The case was captioned Lively v. Lively, case no. O4DR864 (Weld County District Court), hereinafter referred te as the Simon/Lively matter. , In May 2006, Simon paid the respondent a $2,500 retainer for Lively’s ‘case. Simon paid the respondent a $500 retainer for her case. Simon‘was provided a receipt by the respondent's law office showing she had paid the respondent's law firm $3,000, ‘An associate with the respondent's Jaw firm, William McAdams, ‘worked on the Simon and Lively cases from June 2006 to December 2006. McAdams left the respondent's firm in December 2006, |. During that time, McAdams filed a motion on behalf of the Simons for intervenor status. The motion was granted. Brin Lively, through counsel, filed numerous motions. She sought permission to relocate to Arizona with her daughter. She also filed a motion for contempt against David Lively for failing to comply with prior court orders. A hearing regarding the contempt was set for December 2006. After McAdams Ieft, the respondent represented Lively at the contempt hearing in December 2006. Because the respondent's legal experience was primarily in criminal law and immigration, in March 2007, the respondent contracted with, attomey John F. Davis (‘Davis”) to perform work for the respondent's law firm, Davis had experience with family law. Davis entered his ‘appearance as co-counsel in the Simon/Lively matter. The respondent's firm remained of record in the case. ‘On April 26, 2007, Davis became extremely ill at his home, He went to urgent care. While there, he underwent emergeney surgery on April 27, 2007. Davis contacted the respondent from the hospital and ‘advised him of the diagnosis. Davis was in the hospital for one week. Shortly after Davis was admitted to the hospital and while he was out of the office, on May 2, 2007, Brin Lively, through counsel, filed the following motions: i, On May 2, 2007, Erin Lively filed a motion to dismiss the ‘Simons’ petition to intervene and for attorney fees. On May 23, 2007, the court entered an order granting the motion to dismiss and for attorney fees. The court noted no response to ‘the motion had been filed. il. Also on May 2, 2007, Brin Lively filed a motion to compel parenting time to require David Lively to exercise parentingtime. On May 23, 2007, the court granted the motion to compel parenting time. The court noted no response to the motion had been filed. fil, Also on May 2, 2007, Brin Lively filed a motion to vacate judgment. In this motion, she requested the court vacate a Judgment that bad been entered against David Lively. The motion stated that because David Lively was judgment proof, the only recourse available was contempt. On May 23, 2007, ‘the court granted the motion to vacate judgment. The court noted no response to the motion had been filed. iv. Also on May 2, 2007, Brin Lively filed a motion for remedial and punitive contempt against David Lively. On May 24, 2007, the court issued a citation for contempt. ¥. If called to testify, the respondent would state he delegated authority to a senior paralegal in his office to download pleadings, and that the pleadings were not provided to him or to Davis. Davis attended @ hearing regarding Lively's case on May 23, 2007. Although some of the May motions were referenced, the Spé orders were not discussed. Davis began treatment for his illness on June 4, 2007. On July 12, 2007, Davis was admitted to the hospital due to a pulmonary embolism, He was in the hoepital for four days, On July 25, 2007, Davis represented Lively at a hearing. Lively entered into a stipulation regarding back child support, maintenance, medical bills, and attorney fees for the contempt matters. On August 16, 2007, Erin Lively, through counsel, filed a motion in support of affidavit of attorney fees and costs as to the Simons. The respondent's firm did not file a response. The respondent did not provide or discuss the motion with the Simons. If called to testify, the respondent would state that while his office may have received the motion, he did not personally receive this motion which is why he did not provide it or discuss it with the Simons. On August 21, 2007, the court ruled on Erin Lively’s motion for attomey fees against the Simons. The court awarded attorney fees toErin Lively against the Simons in the amount of $1,960.64. The respondent did not provide a copy of this order to the Simons and did not discuss this order with the Simons. If called to testify, the respondent would state that while his office may have received this order, he did not personally receive this order which is why he did not provide it or discuss it with the Simons. ©. Davis Icft the respondent's employment in September 2007, The respondent did not review the Simon/Lively matters when Davis left. p. In February 2008, Lively hired new counsel, 4g. Simon learned of the May 2007 order dismissing her as an intervenor and the August order awarding attorney fees to Brin Lively from David Lively's new counsel. Simon entered into an agreement with Erin Lively to pay $1,500 for the attorney fees, rather than the $1,960 ordered by the court. f. In spring 2008, Simon requested an accounting from the respondent’s Taw office multiple times; the respondent did not provide an accounting, If called to testify, the respondent would state he did not personally receive a request for an accounting from Simon. The Tespondent nevertheless recognizes he is ultimately responsible for responding to all communications received by his office. s. After Simon filed the request for investigation, and after the Office of ‘Attorney Regulation Counsel ('OARC’) requested an accounting, the respondent provided an accounting in March 2009. t. The accounting indicated a retainer payment of $2,500 was made, that the respondent's firm had earned $2,595, and that Simon still owed $95, This was incorrect. Simon paid a $3,000 retainer; accordingly, based on the respondent’s accounting, she was entitled to at least a $400 refund, 1a. The respondent made a payment in the amount of $2,000 to Simon in March 2010. This amount represented the $500 retainer payment Simon paid and the $1,500 in attorney fees Simon paid Erin Lively. vy. Through the respondent's conduct described above, the respondent has engaged in conduct constituting grounds for the imposition of discipline pursuant t C.R.CP. 251.5. The respondent has also violated Colo, RPC 1.3{diligence), Colo. RPC 1.4(communication), Colo.RPC 1.15(b)(upon request by a client, a lawyer shall promptly render a fall accounting) and Colo. RPC 1.16(d)(upon termination of representation, a lawyer shall.refund any advance payment of fee or expense that has not been earned or incurred), 7. Counts V-VI of the complaint also charged the respondent with violations of Colo, RPC 1.3(diligence) and Colo, RPC 1.16(dj{failure to return client property) in a second client matter. Based upon the discovery performed to date, and as part of the stipulation and agreement containing respondent's conditional admission of misconduct, the complainant moves that these alleged violations of the Colorado Rules of Professional Conduct be dismissed. 8. Pursuant to C.R.C.P. 251,92, the respondent agrees to pay costs in the amount of $1,216.88 (a copy of the statement of costs is attached hereto as Exhibit 1) incurred in conjunction with this matter within thirty (80) days after acceptance of the stipulation by the Presiding Disciplinary Judge, made payable to Colorado Supreme Court Attorney Regulation Offices. The respondent agrees that statutory interest shall accrue from the date that the Presiding Disciplinary Judge accepts this stipulation. Should the respondent fail to make payment of the aforementioned costs and interest within (80) days, the respondent specifically agrees to be responsible for all additional costs and expenses, such as reasonable attorney fees and costs of collection incurred by ‘¢ complainant in collecting the above stated aznount. The complainant may amend the amount of the judgment for the additional costs and expenses by providing a motion and bili of costs to the Presiding Disciplinary Judge, which identifies this paragraph of the stipulation and the respondent's default on the payment, 9. This stipulation ie premised and conditioned upon acceptance of the same by the Presiding Diseiplinary Judge. If for any reason the stipulation ig not accepted without changes or modification, then the admissions, confessions, and stipulations made by the respondent will be of no effect. Either party will have the opportunity to accept or reject any modification. If either party rejects the modification, then the parties shail be entitled to a full cvidentiary hearing; and no confession, stipulation, or other statement made by the respondent in conjunction with this offer to accept discipline of public censure may be subsequently used. If the stipulation is rejected, then the matter will be heard and considered pursuant to C.R.C.P, 251,18. 10. ‘The Office of Attorney Regulation Counsel has notified or will notify shortly after the parties sign this agreement, the complaining witnesses in the ‘matters of the proposed disposition.PRIOR DISCIPLINE LL. The respondent has a record of additional discipline which is attached, but filed under seal. If this stipulation is approved by the Presiding Disciplinary Judge, the fact that the respondent has prior discipline and a general fact description of the prior discipline and the rule violations shall become a matter of public zecord. The prior discipline that was issued will not, ‘become a matter of public record, ANALYSIS OF DISCIPLINE 12, Pursuant to American Bar Association Standards for Imposing Lawyer Sanctions 1991 and Supp. 1992 (ABA Standards"), §9.0, the Court should consider the following factors generally a. The duty violated: The respondent violated his duty to provide diligent representation and to communicate with the Simons. The respondent violated his duty to promptly provide an accounting and to promptly return client property. b. The lawyer’s mental state: The respondent’s mental state was negligent, ‘The actual or potential injury caused by the lawyer’s misconduct: ‘The Simons were harmed by Raving their petition for grandparent rights dismissed, In addition, they were financially harmed by having attomey fees awarded against them. d. The existence of aggravating or mitigating factors: Factors in aggravation which are present include: prior disciplinary offenses and substantial experience in the practice of law, ABA Standards §9.22(a) and (i Pactore in mitigation include: absence of a selfish or dishonest motive; full and free disclosure to the disciplinary board or cooperative attitude toward proceedings; remorse; and remoteness of prior offenses, ABA Standards §9.22(a),(0), , (). 13. Pursuant to ABA Standard §4.48 provides: Reprimand is generally appropriate when a lawyer is negligent and docs not act with reasonable digence in representing a client, and causes injury or potential injury to a client. In this matter, the respondent’s mental state was negligent. The client, Simon, suffered actual injury because she was dismissed as an intervenor, 14, In matters where a lawyer neglects a single client matter and thereis actual or potential injury, the Supreme Court has imposed a public censi See People v. Barr, 957 P.2d 1379 (Colo. 1998)(lawyer publicly censured neglecting one client where client's case was dismissed due to neglect, and where lawyer violated Colo. RPC 1.3, 1.4(a), 1.15(@) and 1.16(d)); People v. Hockley, 968 P.2d 109 (Colo. 1998)(lawyer publicly censured where lawyer missed statute of limitations on client’s personal injury matter, in violation of Colo, RPC 1.3} During the representation of the Simons and Lively, the respondent operated two law offices; one was located in Greeley and the other was in Fort Collins. The respondent primarily practiced criminal defense law and immigration law. The respondent's law practice became busier after he represented numerous individuals in the Swift raids in 2006. In an effort to keep up with his growing practice, the respondent hired or contracted with other attorneys to work with his law firm, and he expanded the number of support staff at his law offices. The respondent encountered problems with the support staff. In some instances, he was concerned members of his staff were not following his instructions or law office policies. In some instances, conilicts arose among staff members. In this matter, the respondent does not recall receiving or reviewing the motions and orders against the Simons. The respondent believes this may have been the result of a support staff issue, Nevertieless, die vespondent acknowledges he had professional obligations to the Simons and that it was his responsibility to ensure those obligations were met. Further, the respondent acknowledges that he should have taken a more active role in overseeing Davis' cases due to the seriousness of Davis’ iliness. In this case, the Simons were harmed by having their intervenor status dismissed and by having attorney fees entered against them. In aggravation, the respondent has prior discipline. In mitigation, the respondent's prior discipline is remote; he did not have a selfish motive; he has been cooperative throughout these proceedings; and he has expressed remorse and accountability for the harm to the Simons. Shortly before entering into this stipulation, the respondent made a payment of $2,000 to Cheryl Simon, which represents the retainer fee she paid his law firm, and the attorney fees she paid Brin Lively, Moreover, and importantly, since the conduct in this case, respondent has made significant changes to his practice to ensure conduct is not repeated. He has closed the Fort Collins office. He has confined hhis practice to immigration and criminal defense—areas in which he is experienced, and he has made changes to the staff at his law office. Therespondent has also sought the expertise of another professional to assist evaluating his staffing decisions. 15. Considering all of the factors described above, as applied to this, ‘case, public censure is an appropriate sanction,RECOMMENDATION FOR AND CONSENT TO DISCIPLINE Based on the foregoing, the parties hereto recommend that a public censure, as described above, be imposed upon the respondent. The respondent consents to the imposition of discipline of a public censure. The parties request that the Presiding Disciplinary Judge order that the effective date of ‘such discipline be immediate. Robert S. McCormick, the respondent; Joseph P. Fonfara, attorney for the respondent; and April M. MeMurrey, attorney for the ‘complains acknowledge by signing this document that they have read and reviewed the above and request the Presiding Disciplinary Judge to accept the stipulation as set forth above. STATE OF COLORADO ) } ss. COUNTY oF ‘fariunure } Subsoribed and sworn to before me thie |S aay of March, 2010, by Robert Stuart McCormick, respondent Witness my hand and official eesl, My commission expires: le / lle /_l| BMC Mu a Zech 8 rontara, #16538 April M. MeMurrey, ‘Assistant Regulation Counsel Fonfara Law Offices 1560 Broadway, Suite 1800 311 E. Mulberry Street Denver, Colorado 80202 Fort Collins, Colorado 80524 (803) 866-6400 x 6432 (970) 484-9233 ey for Complainant Attorney for Respondent 102/26/2010 3/4/2010 2/15-22/10 2/22/2010 3/11/2010 Statement of Costs Robert S. McCormick 08-00652/08-01683 09PDJ063 Deposition Copy/Gonzales Deposition Copy/Simon Deposition Mileage/AMM. Deposition/MeCormick Administrative Fee Total Due o 165.04 125.14 243.00 592.70 91.00 1,216.88RECEIVED Meadors Court Reporting, LLC/ Court Reporting & Legal Video Services MAR 0 2010 417 West Mountain Avenue Fort Colins, CO 80521 ABNEY, (970) 482-1508 Phone (970) 482-1230 Fax ‘Tax ID: 84-1446820, ‘meadors@reporterworks.com February 28, 2010 | Ms, April M. MeMurrey Office ofthe Attorey Regulation Counsel 41560 Broadway, Ste. 1800 Denver, CO 80202 Inyoice Number | 12897 | Re: 08-P0J.063, ‘The People ofthe State of CO ve, MeCormick Description of Services — ‘Copy-Compression Deposition of Carol Gonzalez 157.70 Word indexing 200 Postage Pricey ai 234 Invole totak sso Reporter: Cheryl Palmer -2/18;2010 PLEASE NOTE OUR CHANGE OF ADDRESS, Payment due upon receipt ‘Accounts over 30 days are subject to a 1%imonth service charge. a estas ovtes/ | \ People v Mc corms ea *t lose ho K al / OVBTOC3 = AMM Fh],y ) Meadors Court Reporting, LLC Court Reporting & Legal Video Services 417 West Mountain Avenue Fort Colins, CO 80521 (970) 482-1506 Phone (970) 482-1230 Fax RECEIVED “Tax ID: 84-1446820 meadors@reporterworks.com Mar 05 2010 Arora, aaron 4, 2oro | eau Ms, AprilM, MeMurey Office ofthe Attomey Regulation Counsel 1860 Broadway, Ste, 1800, Denver, CO aczca Invoice Number 13011) Re: 09-PDJ 083 ‘The People ofthe Sate of Colorado vs. McCormick _Descipion of Senvicos Copy.Compession Depostion of Chan Simon 41780 Word naexing 200 Postage Prony Mall 5.34 Tnvoice total: sap Reporter: Cheryl Palmer 271072010, PLEASE NOTE OUR CHANGE OF ADDF Payment due upon receipt ‘Accounts over 20 days ave subject to 19month service charge. “Thank you \ pte 6198) -900/\ of fo pry Amn ODI003Tk a OOS TyaeRe = ao ea [BO Wop TBE if 0 Yo ancora is Srveuts efeg GES] wowwsinquiny woo F = — Ray aT TRG - TeRuL io osoaina 4 wee 8 a ay a a pommes] —pae ]steion ¥ ¥ 3a = = - ahr we + : Wie Sao [oar FOOTED | 2exuuogey odop ove] wt = COTES | SFO | TRaRRARD TENET _ ~ ous 0 ode puss] wae = GOTT S | SFT | a aaraaD OTaTET 72782000 1 oe eer | Tar |g —| sa — sa} a aL | 9 | ee er oe NS | ARROW pao Tesi ‘eines [pune Ser ‘eoding ‘a0 ooo [Sree I 8,010 sumpuei 3001 0RY Sc Walod 1sanday INaWaSUNeNERY TEAVEL Luowwiniiay Kewony unoo awaidng opeso|o0,TA VERNICK ie £ «i i | Office of Attomey Regulation Counse! 1560 Broadway [Suite 1800 Denver, Colorado $0202 ‘£ STENSIROM, LLC INVOICE ostfid shcthand veporters RECEIVED: DATE [INVOICE # 3131 South Vaughn Way, Suite 224 L ‘aurora, Coleco 80014 MAR 0.9 2010 a er (20) 449.0329 PEIN 84-1566167 neo a EGON BILL TO: RE: Case No, 09PDIO63 People v. Robert Stuan MeCormicke Supreme Court, State of Colorado Original Proceeding in Discipline Before he Presiding Disciplinary Judge DUE DATE [REPORTER] ship OATE | SHIP VIA aero [| es | sen00 | Urs QUANTITY ITEM DESCRIPTION | Rave ‘AMOUNT Tas [Depo ARC |Dapostion of ROBERT STUART 373] 480.00 IMecoRMICK. crignal Transcript Preparation February 22,2010 43 [exits exhibit Copying oso] 1290 52 index Taos index Tavs 015 480 1 |AB-HalfDay | Appearance Pee - Half Day 7500] 7500 1 |0+1 Delivery [Delivery (Original and copy) 20.00] 20.00 da therate of 15% por month onan] Total a | amount not paid within 30 days. Froplev MeCornue oaPby0w3 - ok te Pay Amn‘SUPREME COURT, STATE OF COLORADO ORIGINAL PROCEEDING IN DISCIPLINE BEFORE, ‘THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE 1560 BROADWAY, SUITE 675 DENVER, CO 80202 Complainant: _ | Case Number: ‘THE PEOPLE OF THE STATE OF COLORADO, 09PDJ063 Respondent: ROBERT STUART MCCORMICK. ORDER APPROVING CONDITIONAL ADMISSION OF MISCONDUCT 'AND IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.22 ‘This matter is before the Presiding Disciplinary Judge ("the Court’) on a ‘Stipulation, Agreement and Affidavit Containing the Respondent's Conditional Admission of Misconduct” filed by April M. McMurrey, Office of Attorney Regulation Counsel ("the People”), and Joseph P. Fonfara on behalf of Robert Stuart McCormick (‘Respondent’) on March 15, 2010. In this stipulation, the parties waive their right to @ hearing under C.R.C.P. 251,22(c) ‘The Court, having reviewed the case file and the stipulation, and being fully advised of the issues presented, ORDERS the following! 1, The stipulation is accepted and approved. 2. ROBERT STUART MCCORMICK, Attorney Registration No. 12870, is PUBLICLY CENSURED. Pursuant to C.R.C.P, 251,32, Respondent shall pay costs incurred in conjunction with this matter in the amount of $1,216.88 within thirty (80) days of the date of this order. Costs are payable to the Colorado Supreme Court Attorney Regulation Offices. Statutory interest shall accrue from the date of this order. Should Respondent fail to make payment of the aforementioned costs and interest within thirty (30) days, Respondent shall be responsible for all additional costs and expenses, including reasonable attorney fees, incurred by the People in collecting the above-stated amount. The People may amend the amount of the judgment for additional costs and expenses by providing a motion and bill of costs to the Court.4, The Court GRANTS the People's request to dismiss Claim V and Claim VI of the complaint charging Respondent with violations of Colo. RPC 1.3, and 1.16(d) ‘THIS ORDER IS ENTERED THE 26" DAY OF MARCH, 2010. ‘THE EFFECTIVE DATE OF THE PUBLIC CENSURE IS THE 267 DAY OF MARCH, 2010. / WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGERespondent's Counsel Joseph Fonfara 311 Bast Mulberry Street Fort Collins, CO 80524 Via First Class Mail Office of Attorney Regulation Counsel April M, Men 1560 Broadway, Suite 1800 Denver, CO 80202 Vie Hand Delivery American Bar Association c/o Nadine Cignoni Office of Attorney Regulation Counsel 1560 Broadway, Suite 1800 Denver, CO 80202 Via Hand Delivery Board of Continuing Legal Education Karen Bradley Assistant Executive Director 1560 Broadway, Suite 1820 Denver, CO 60202 Via Hand Delivery Colorado Attorney Registration Elvia Mondragon 960 Broadway, Suite 1810 Denver, CO 80202 Via Hand Delivery Colorado Bar Association Charles Turner Executive Director ‘900 Grant Street, Suite 950 Denver, CO 80203-4309 Via First Class Mail Colorado Supreme Court Susan Festag 2 Bast 14% Ave., 4% Floor Denver, CO 80203 Vie Hand Delivery IRS, Office of Professional Responsi ‘Attn: Kathy Gibbs SE: OPR, 1111, Constitutional Ave., N.W, Washington, DC 20224 Via First Class Mail Martindale Hubbell Law Directory Attn: Joe Rudy, Rating Consultant P.O. 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