ANNOTATION Law reviews. For article, “The Evolving Doctrine of Informed Consent in Colorado”, see 23 Colo. Law. 591 (1994). For article, “Confirm Attorney Fees in Writing: Court Changes Colo. RPC 1.4, 1.5”, see 29 Colo. Law. 27 (June 2000). For article, “Ethical Concerns When Dealing With the Elder Client”, see 34 Colo. Law. 27 (October 2005). For article, “The Duty of Loyalty and Preparations to Compete”, see 34 Colo. Law. 67 (November 2005). For article, “Ethics in Family Law and the New Rules of Professional Conduct”, see 37 Colo. Law. 47 (October 2008). For article, “Attorney-Client Communications in Colorado”, see 38 Colo. Law. 59 (April 2009). For article, “Informed Consent Under the Rules of Professional Conduct”, see 40 Colo. Law. 109 (July 2011). For article, “The Rules of Professional Conduct: An Equal Opportunity for Ethical Pitfalls”, see 41 Colo. Law. 71 (October 2012). Annotator’s note. Rule 1.4 is similar to Rule 1.4 as it existed prior to the 2007 repeal and readoption of the Colorado rules of professional conduct. Relevant cases construing that provision have been included in the annotations to this rule. Public censure appropriate where harm suffered by attorney’s client was speculative, attorney retracted his misrepresentations and admitted to his client before the institution of disciplinary proceedings that he had done nothing on the client’s appeal, attorney had no prior discipline, he made full and free disclosure of his misconduct to the grievance committee, and he expressed remorse for his misconduct. People v. Nelson, 848 P.2d 351 (Colo. 1993). Public censure instead of private censure was appropriate where attorney failed to respond to discovery requests and motions for summary judgment and the findings of the board did not support the applicability of ABA Standard 9.32(i) as a mitigating factor since there was no medical evidence that attorney was affected by chemical dependency or that alcohol contributed to or caused the misconduct. People v. Brady, 923 P.2d 887 (Colo. 1996). Aggravating and mitigating factors. The following factors are considered aggravating when deciding the appropriate level of discipline: (1) Prior discipline, (2) a pattern of misconduct, and (3) bad faith obstruction of the disciplinary process through total non-cooperation with the disciplinary authorities. Failure to appear before the disciplinary board will cause one to lose the ability to present evidence of mitigating factors. People v. Stevenson, 980 P.2d 504 (Colo. 1999). Attorney’s restitution agreement was neither an aggravating nor mitigating factor since the attorney did not propose or attempt any form of restitution until after a request for investigation had been filed with the office of disciplinary counsel. People v. Brady, 923 P.2d 887 (Colo. 1996). Attorney’s argument that public discipline is not appropriate because it would stigmatize a recovering alcoholic was rejected since overriding concern in discipline proceedings is to protect the public through the enforcement of professional standards of conduct. People v. Brady, 923 P.2d 887 (Colo. 1996). Neglecting to file response to motion for summary judgment and to return client files upon request was sufficient to result in one-year and one-day suspension. People v. Honaker, 847 P.2d 640 (Colo. 1993). Ninety-day suspension justified where attorney’s failure to respond to discovery requests resulted in default and entry of judgment against client for $816,613. People v. Clark, 927 P.2d 838 (Colo. 1996). Attorney’s inaction over a period of more than two years and other disciplinary violations warrant suspension for 30 days where there are mitigating factors. People v. LaSalle, 848 P.2d 348 (Colo. 1993). Suspension for one year and one day appropriate when attorney neglected to return client files upon request. People v. Honaker, 847 P.2d 640 (Colo. 1993). Suspension for three years, rather than disbarment, was appropriate where violation of this rule and others caused serious harm to attorney’s clients, but mitigating factors were present, including no previous discipline in 14 years of practice, personal and emotional problems, and cooperation and demonstrated remorse in proceedings. People v. Henderson, 967 P.2d 1038 (Colo. 1998). Three-year suspension warranted for attorney who effectively abandoned and failed to communicate with clients. People v. Shock, 970 P.2d 966 (Colo. 1999). Duty to communicate imposed by this rule violated by attorney’s failure to keep clients in bankruptcy proceedings reasonably notified about the status of the case, including the dismissal of their first bankruptcy petition and the filing of their second. People v. Calvert, 280 P.3d 1269 (Colo. O.P.D.J. 2011). Previously disbarred attorney who violated this rule would be forced to pay restitution to clients as a condition of readmission. People v. Vigil, 945 P.2d 1385 (Colo. 1997). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify public censure. People v. Titoni, 893 P.2d 1322 (Colo. 1995); People v. Doherty, 908 P.2d 1120 (Colo. 1996); People v. Woodrum, 911 P.2d 640 (Colo. 1996); People v. Barbieri, 935 P.2d 12 (Colo. 1997); People v. Williams, 936 P.2d 1289 (Colo. 1997); People v. Buckingham, 938 P.2d 1157 (Colo. 1997); People v. Todd, 938 P.2d 1160 (Colo. 1997); People v. Doherty, 945 P.2d 1380 (Colo. 1997); People v. Barr, 957 P.2d 1379 (Colo. 1998). Conduct violating rule sufficient to justify public censure. People v. Smith, 847 P.2d 1154 (Colo. 1993); People v. Damkar, 908 P.2d 1113 (Colo. 1996); People v. Marsh, 908 P.2d 1115 (Colo. 1996); People v. Jenks, 910 P.2d 688 (Colo. 1996); People v. Pooley, 917 P.2d 712 (Colo. 1996); People v. Belsches, 918 P.2d 559 (Colo. 1996). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Crews, 901 P.2d 472 (Colo. 1995); People v. Kuntz, 908 P.2d 1110 (Colo. 1996); People v. Murray, 912 P.2d 554 (Colo. 1996); People v. Hohertz, 926 P.2d 560 (Colo. 1996); People v. Paulson, 930 P.2d 582 (Colo. 1997); People v. Bates, 930 P.2d 600 (Colo. 1997); People v. Reynolds, 933 P.2d 1295 (Colo. 1997); People v. Townshend, 933 P.2d 1327 (Colo. 1997); People v. Scott, 936 P.2d 573 (Colo. 1997); People v. Sather, 936 P.2d 576 (Colo. 1997); People v. Harding, 937 P.2d 393 (Colo. 1997); People v. Primavera, 942 P.2d 496 (Colo. 1997); People v. Field, 944 P.2d 1252 (Colo. 1997); People v. Johnson, 946 P.2d 469 (Colo. 1997); People v. Wright, 947 P.2d 941 (Colo. 1997); People v. Rishel, 956 P.2d 542 (Colo. 1998); In re Corbin, 973 P.2d 1273 (Colo. 1999); In re Bobbitt, 980 P.2d 538 (Colo. 1999); In re Demaray, 8 P.3d 427 (Colo. 1999); People v. Albani, 276 P.3d 64 (Colo. O.P.D.J. 2011); People v. Staab, 287 P.3d 122 (Colo. O.P.D.J. 2012). Conduct violating this rule, in conjunction with other disciplinary rules, sufficient to justify disbarment where the attorney continued to practice law while on suspension, repeatedly neglecting his clients and failing to take reasonable steps to protect clients’ interests. People v. Fager, 938 P.2d 138 (Colo. 1997). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify disbarment. People v. Jamrozek, 921 P.2d 725 (Colo. 1996); People v. Steinman, 930 P.2d 596 (Colo. 1997); People v. Wallace, 936 P.2d 1282 (Colo. 1997); People v. Mannix, 936 P.2d 1285 (Colo. 1997); People v. Madigan, 938 P.2d 1162 (Colo. 1997); People v. Swan, 938 P.2d 1164 (Colo. 1997); People v. Clyne, 945 P.2d 1386 (Colo. 1997); People v. Crist, 948 P.2d 1020 (Colo. 1997); People v. Roybal, 949 P.2d 993 (Colo. 1997); People v. Holmes, 951 P.2d 477 (Colo. 1998); People v. Holmes, 955 P.2d 1012 (Colo. 1998); People v. Hindman, 958 P.2d 463 (Colo. 1998); People v. Valley, 960 P.2d 141 (Colo. 1998); People v. Skaalerud, 963 P.2d 341 (Colo. 1998); In re Bilderback, 971 P.2d 1061 (Colo. 1999); In re Hugen, 973 P.2d 1267 (Colo. 1999); In re Tolley, 975 P.2d 1115 (Colo. 1999); In re Stevenson, 979 P.2d 1043 (Colo. 1999); In re Haines, 177 P.3d 1239 (Colo. 2008); People v. Rasure, 212 P.3d 973 (Colo. O.P.D.J. 2009); People v. Sweetman, 218 P.3d 1123 (Colo. O.P.D.J. 2008); People v. Zodrow, 276 P.3d 113 (Colo. O.P.D.J. 2011); People v. Calvert, 280 P.3d 1269 (Colo. O.P.D.J. 2011); People v. Tolentino, 285 P.3d 340 (Colo. O.P.D.J. 2012). Conduct violating rule sufficient to justify disbarment. People v. Robnett, 859 P.2d 872 (Colo. 1993). Cases Decided Under Former DR 9-102. Law reviews. For series of articles, “Interest on Lawyer Trust Accounts Program: A Primer for Lawyers”, see 12 Colo. Law 577 (1983). For article, “Ethical Problem Areas for Probate Lawyers”, see 19 Colo. Law. 1069 (1990). Paragraphs (A) and (B)(3) require as a minimum standard of conduct that a lawyer segregate his clients’ funds from his own and keep them in identifiable bank trust accounts. People v. Harthun, 197 Colo. 1, 593 P.2d 324 (1979); People v. Schubert, 799 P.2d 388 (Colo. 1990). Most severe punishment is required when a lawyer disregards his professional obligations and converts his clients’ funds to his own use. People v. Kluver, 199 Colo. 511, 611 P.2d 971 (1980); People v. Dohe, 800 P.2d 71 (Colo. 1990); People v. Whitcomb, 819 P.2d 493 (Colo. 1991). Misuse of funds by a lawyer strikes at the heart of the legal profession by destroying public confidence in lawyers. The most severe punishment is required when a lawyer disregards his professional obligations and converts his clients’ funds to his own use. People v. Buckles, 673 P.2d 1008 (Colo. 1984); People v. Wolfe, 748 P.2d 789 (Colo. 1987). Conversion of client funds is conduct warranting disbarment because it destroys the trust essential to the attorney-client relationship, severely damages the public’s perception of attorneys, and erodes public confidence in our legal system. People v. Radosevich, 783 P.2d 841 (Colo. 1989). Disbarment is the presumed sanction for misappropriation of funds barring significant mitigating circumstances. People v. Young, 864 P.2d 563 (Colo. 1993); People v. Varallo, 913 P.2d 1 (Colo. 1996); People v. Coyne, 913 P.2d 12 (Colo. 1996). Failure and refusal to refund unearned portions of fees collected from two clients constituted violations of C.R.C.P. 241(B) (now C.R.C.P. 241.6), DR 2-110, and this rule. People v. Gellenthien, 621 P.2d 328 (Colo. 1981). Attorney obligated to forward client’s file upon request. Failure to forward client’s file a year after a request is made constitutes conduct violative of disciplinary rules. People v. Belina, 765 P.2d 121 (Colo. 1988). Failing to provide a client with an accounting of charges applied against a retainer after the client’s request therefor, in conjunction with other instances of neglect, is conduct warranting public censure. People v. Goodwin, 782 P.2d 1 (Colo. 1989). Failure to make proper accounting to client with respect to trust funds and failure to promptly deliver to the client funds to which she is entitled warrants public censure. People v. Robnett, 737 P.2d 1389 (Colo. 1987). Failure to deposit funds in trust account, to notify client of receipt of funds and provide accounting, and to forward file promptly to new attorney constitute a violation of this rule and, with other offenses, warrants public censure. People v. Swan, 764 P.2d 54 (Colo. 1988). Violation of duty to account for and promptly return client property upon request over a three-year period warrants public censure. People v. Shunneson, 814 P.2d 800 (Colo. 1991). Public censure for failure to promptly distribute proceeds of a settlement is warranted since respondent’s negligence did little or no actual or potential injury to client. People v. Genchi, 824 P.2d 815 (Colo. 1992). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify public censure. People v. Ashley, 796 P.2d 962 (Colo. 1990); People v. Sadler, 831 P.2d 887 (Colo. 1992). Converting estate or trust funds for one’s personal use, overcharging for services rendered, neglecting to return inquiries relating to client matters, failing to make candid disclosures to grievance committee, and attempting to conceal wrongdoing during disciplinary proceedings warrants the severe sanction of disbarment. People v. Gerdes, 782 P.2d 2 (Colo. 1989). Conduct violating this rule sufficient to justify public censure. People v. Bollinger, 648 P.2d 620 (Colo. 1982); People v. Wright, 698 P.2d 1317 (Colo. 1985); People v. Mayer, 716 P.2d 1094 (Colo. 1986); People v. Schaiberger, 731 P.2d 728 (Colo. 1987); People v. Barr, 748 P.2d 1302 (Colo. 1988); People v. Danker, 759 P.2d 14 (Colo. 1988). Two-year unjustified retention of one client’s file, coupled with failure to withdraw at request of said client and refusal to forward a second client’s file to subsequent counsel, resulting in both clients sustaining injuries, justifies suspension for the period of a year and a day. People v. Hodge, 752 P.2d 533 (Colo. 1988). Failure to account for money collected on behalf of client, despite numerous client requests for accounting, and failure to adhere to terms of agreement with client regarding representation, coupled with prior, ongoing suspension, warrants additional six-month suspension. People v. Yost, 752 P.2d 542 (Colo. 1988). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Moya, 793 P.2d 1154 (Colo. 1990); People v. Creasey, 793 P.2d 1159 (Colo. 1990); People v. Schubert, 799 P.2d 388 (Colo. 1990); People v. Garrett, 802 P.2d 1082 (Colo. 1990); People v. Lamberson, 802 P.2d 1098 (Colo. 1990); People v. Crimaldi, 804 P.2d 863 (Colo. 1991); People v. Dunsmoor, 807 P.2d 561 (Colo. 1991); People v. Dash, 811 P.2d 36 (Colo. 1991); People v. Creasey, 811 P.2d 40 (Colo. 1991); People v. Wilson, 814 P.2d 791 (Colo. 1991); People v. Heilbrunn, 814 P.2d 819 (Colo. 1991); People v. Smith, 828 P.2d 249 (Colo. 1992); People v. Driscoll, 830 P.2d 1019 (Colo. 1992); People v. Regan, 831 P.2d 893 (Colo. 1992); People v. Denton, 839 P.2d 6 (Colo. 1992). People v. Smith, 880 P.2d 763 (Colo. 1994); People v. Banman, 901 P.2d 469 (Colo. 1995); People v. Crews, 901 P.2d 472 (Colo. 1995); People v. Dickinson, 903 P.2d 1132 (Colo. 1995); People v. Davis, 911 P.2d 45 (Colo. 1996). Conduct violating this rule sufficient to justify suspension. People v. Vernon, 660 P.2d 879 (Colo. 1982); People v. Pilgrim, 698 P.2d 1322 (Colo. 1985); People v. Foster, 716 P.2d 1069 (Colo. 1986); People v. Coca, 716 P.2d 1073 (Colo. 1986); People v. Calvert, 721 P.2d 1189 (Colo. 1986); People v. Holmes, 731 P.2d 677 (Colo. 1987); People v. Geller, 753 P.2d 235 (Colo. 1988); People v. Griffin, 764 P.2d 1166 (Colo. 1988); People v. Goldberg, 770 P.2d 408 (Colo. 1989); People v. Goens, 770 P.2d 1218 (Colo. 1989); People v. Kaemingk, 770 P.2d 1247, (Colo. 1989); People v. McGrath, 780 P.2d 492 (Colo. 1989). Derelictions in fiduciary duties by an attorney which go beyond mere negligence warrant disbarment. People v. Roads, 180 Colo. 192, 503 P.2d 1024 (1972). Attorney failed to deliver property of a client in violation of this rule by ignoring requests for client’s files made by the client, the client’s attorney, and the grievance committee. People v. Felker, 770 P.2d 402 (Colo. 1989). Refusal to provide accounting for money and jewelry delivered to him and refusal to itemize the services performed and the costs incurred warrant disbarment. People v. Lanza, 660 P.2d 881 (Colo. 1983). Commingling and appropriation of funds warrants disbarment. When a lawyer collects $3000 on behalf of a client in connection with a sale of real estate and commingles it with his other trust funds and unlawfully converts it to his own use, his flagrant disregard of his professional obligation warrants disbarment. People v. McMichael, 199 Colo. 433, 609 P.2d 633 (1980). Where a practicing attorney breached fiduciary duties to his client in misrepresenting his dealings and in handling of funds given to him in trust, his conduct warranted disbarment, and, before he may seek readmittance to the state bar association, he must first demonstrate to the grievance committee that rehabilitation has occurred and that he is entitled to a new start. People ex rel. Buckley v. Beck, 199 Colo. 482, 610 P.2d 1069 (1980). Commingling a client’s funds with those of the lawyer is a serious violation of the Code of Professional Responsibility, even in the absence of an actual loss to the client, because the act of commingling subjects the client’s funds to the claims of the lawyer’s creditors. People v. McGrath, 780 P.2d 492 (Colo. 1989). Misappropriation of funds, failure to account, and deceit and fraud in handling the affairs of a client necessitate that an attorney be disbarred. People v. Bealmear, 655 P.2d 402 (Colo. 1982); People v. Costello, 781 P.2d 85 (Colo. 1989). Conduct which causes a client serious or potentially serious injury and demonstrates a complete lack of concern for a client’s interests and welfare warrants disbarment. People v. Lyons, 762 P.2d 143 (Colo. 1988). Alcoholism not excuse. Efforts at alcoholism rehabilitation do not excuse conduct which includes dishonesty and fraud, failing to preserve identity of client funds, and failing to properly pay or deliver client funds, and which otherwise warrants disbarment. People v. Shafer, 765 P.2d 1025 (Colo. 1988). Total disregard of obligation to protect a client’s rights and interests over an extended period of time in conjunction with the violation of a number of disciplinary rules and an extended prior record of discipline requires most severe sanction of disbarment. People v. O’Leary, 783 P.2d 843 (Colo. 1989). Disbarment was appropriate where attorney removed $5,000 from a client’s trust account, refused to return money upon several request by the client which ultimately resulted in a suit against the attorney, and the attorney lied about the transaction to the attorney with whom he shared office space. Factors in aggravation included a history of prior discipline, including suspension for conversion of client funds, the dishonest motive of the attorney in removing and not returning the client’s funds, the attorney’s refusal to acknowledge the wrongful nature of his conduct, the vulnerability of the client, and the attorney’s legal experience. Mitigating factors were insufficient for disciplinary action short of disbarment. People v. McGrath, 833 P.2d 731 (Colo. 1992). Disbarment is appropriate sanction where attorney knowingly converts client property and causes injury or potential injury to a client. People v. Bowman, 887 P.2d 18 (Colo. 1994); People v. Varallo, 913 P.2d 1 (Colo. 1996). Rule is violated when attorney “knowingly” converts client funds; there is no requirement that the attorney intend to permanently deprive the client of the funds. People v. Varallo, 913 P.2d 1 (Colo. 1996). Disbarment was appropriate where attorney converted $25,000 of client funds on seven different occasions over a period of four months and did not restore any of the missing funds until after he was detected. People v. Robbins, 869 P.2d 517 (Colo. 1994). Disbarment was appropriate where the balance of the respondent’s trust accounts fell below the amount necessary to pay settlements on at least 45 occasions and where the respondent withdrew attorney fees on at least 68 occasions from trust accounts before receiving the funds from which the fees were to be taken. People v. Lefly, 902 P.2d 361 (Colo. 1995). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify disbarment. People v. Nichols, 796 P.2d 966 (Colo. 1990); People v. Broadhurst, 803 P.2d 478 (Colo. 1990); People v. Rhodes, 814 P.2d 787 (Colo. 1991); People v. Vermillion, 814 P.2d 795 (Colo. 1991); People v. Ashley, 817 P.2d 965 (Colo. 1991); People v. Rouse, 817 P.2d 967 (Colo. 1991); People v. Whitcomb, 819 P.2d 493 (Colo. 1991); People v. Margolin, 820 P.2d 347 (Colo. 1991); People v. Bradley, 825 P.2d 475 (Colo. 1992); People v. Mullison, 829 P.2d 382 (Colo. 1992); People v. Tanquary, 831 P.2d 889 (Colo. 1992); People v. McGrath, 833 P.2d 731 (Colo. 1992); People v. Brown, 840 P.2d 348 (Colo. 1992); People v. Walsh, 880 P.2d 766 (Colo. 1994); People v. Varallo, 913 P.2d 1 (Colo. 1996); People v. Coyne, 913 P.2d 12 (Colo. 1996); People v. Jamrozek, 921 P.2d 725 (Colo. 1996). Conduct violating this rule sufficient to justify disbarment. People v. Kendrick, 646 P.2d 337 (Colo. 1982); People v. Dwyer, 652 P.2d 1074 (Colo. 1982); People v. Golden, 654 P.2d 853 (Colo. 1982); People v. Fitzke, 716 P.2d 1065 (Colo. 1986); People v. Quick, 716 P.2d 1082 (Colo. 1986); People v. Yost, 729 P.2d 348 (Colo. 1986); People v. James, 731 P.2d 698 (Colo. 1987); People v. Coca, 732 P.2d 640 (Colo. 1987); People v. Foster, 733 P.2d 687 (Colo. 1987); People v. Quintana, 752 P.2d 1059 (Colo. 1988); People v. Kengle, 772 P.2d 605 (Colo. 1989); People v. Frank, 782 P.2d 769 (Colo. 1989); People v. Dulaney, 785 P.2d 1302 (Colo. 1990); People v. Franks, 791 P.2d 1 (Colo. 1990); People v. Mulligan, 817 P.2d 1028 (Colo. 1991); People v. Young, 864 P.2d 563 (Colo. 1993). Failure to transfer file to new attorney after repeated requests constitutes a violation of this rule. People v. Hebenstreit, 764 P.2d 51 (Colo. 1988). Conduct held to violate this rule. People v. Goss, 646 P.2d 334 (Colo. 1982). Applied in People v. Spiegel, 193 Colo. 161, 567 P.2d 353 (1977); People v. Good, 195 Colo. 177, 576 P.2d 1020 (1978); People v. Pacheco, 198 Colo. 455, 608 P.2d 333 (1979); People v. Belfor, 200 Colo. 44, 611 P.2d 979 (1980); People ex rel. Silverman v. Anderson, 200 Colo. 76, 612 P.2d 94 (1980); People v. Lanza, 200 Colo. 241, 613 P.2d 337 (1980); People v. Meldahl, 200 Colo. 332, 615 P.2d 29 (1980); People v. Davis, 620 P.2d 725 (Colo. 1980); People v. Dutton, 629 P.2d 103 (Colo. 1981); People v. Moore, 681 P.2d 480 (Colo. 1984); People v. Underhill, 683 P.2d 349 (Colo. 1984); People v. Franco, 698 P.2d 230 (Colo. 1985); People v. Blanck, 700 P.2d 560 (Colo. 1985); People v. Turner, 746 P.2d 49 (Colo. 1987).