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People v. Martin6/5/1995
Original Proceeding in Discipline
EN BANC
Per Curiam
The lawyer respondent in this discipline case was convicted of the third-degree sexual assault of a client. A hearing panel of the Supreme Court Grievance Committee approved the findings of a hearing board, but modified the board's recommendation of a ninety-day suspension to a suspension for six months. The respondent excepted to the panel's recommendation on the ground that a six-month suspension was too severe and was punitive in nature. After considering the seriousness of the offense of which the respondent was convicted and the nature of the professional misconduct, however, we order that the respondent be suspended for one year and one day.
I.
The respondent was admitted to the Colorado bar in 1985. The hearing board listened to the testimony of the victim, the respondent, and both parties' witnesses. No transcript of the testimony was filed in this court and we therefore assume that the factual findings of the hearing board majority are supported by the record, and we accept them. On March 19, 1993, the respondent pleaded guilty to, and was convicted of, third-degree sexual assault, occurring in September 1992.
The victim of the assault was the respondent's client. She testified that, following a perfunctory Discussion of her legal problems, the respondent initiated unwanted sexual contact with her, although she repeatedly told him to stop, and that she finally escaped and ran from his office. The respondent denied sexual contact with the victim, and contended that he had denied the factual basis of the third-degree sexual assault charge at the time he pleaded guilty, that is, he had entered a so-called Alford plea.
Two members of the hearing board concluded that the respondent's actual conduct was more serious than his account, but fell short of the aggravated sexual behavior claimed by the victim. The third member of the board believed the victim's testimony. In any event, all three members of the board found by clear and convincing evidence that the respondent "behaved in a sexually aggressive manner toward [the victim] at a time when they were attorney and client, she was intimidated and humiliated by his treatment of her, and he pleaded guilty to third degree sexual assault."
Sufficient proof "that a lawyer has been convicted of a crime . . . shall conclusively establish the existence of such conviction for purposes of disciplinary proceedings in this state and shall be conclusive proof of the commission of that crime by the respondent." C.R.C.P. 241.16(a) (emphasis added).
The term conviction as used in these rules shall include any ultimate finding of fact in a criminal proceeding that an individual is guilty of a crime, whether the judgment rests on a verdict of guilty, a plea of guilty, or a plea of nolo contendere, and irrespective of whether entry of judgment or imposition of sentence is suspended or deferred by the court. C.R.C.P. 241.16(h). Whether or not the respondent entered an Alford plea, we conclude for the purpose of this discipline proceeding that he actually committed the acts necessary to constitute third-degree sexual assault.
Section 18-3-404(1), 8B C.R.S. (1986), states in relevant part: "Any actor who knowingly subjects a victim to any sexual contact commits sexual assault in the third degree if: (a) The actor knows that the victim does not consent . . . ." Third- degree sexual assault under the circumstances of this case is a class 1 misdemeanor. ยง 18-3-404(2), 8B C.R.S. (1993 Supp.). At the time of the offens
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