This is a lawyer discipline case. The complainant and the respondent, E. Giancarlo Small, entered into a stipulation, agreement, and conditional admission of misconduct. See C.R.C.P. 241.18. The parties agreed to discipline in the range of a private censure to
Small was admitted to practice law in this state in 1994. The conditional admission provides that on March 8, 1994, Small was involved in an automobile accident in which his vehicle, an Audi, was struck from behind by a vehicle driven by Patricia A. Corbin. Corbin agreed to pay Small's damages, and he obtained three estimates. Corbin contended that even the lowest estimate was too high and she refused to pay it. Small filed an action against Corbin in the Jefferson County Small Claims Court on October 12, 1994.
At the trial, Small was called to testify and was asked if he had insurance at the time of the accident. In fact, Small did not have insurance on the Audi after December 12, 1993, and thus had no insurance at the time of the accident. Nevertheless, under oath, and under questioning by both Corbin and the court, Small asserted that he had insurance for the Audi and that he had chosen not to file an uninsured motorist claim with his insurer. He gave an elaborate and untruthful explanation why he had not filed an uninsured motorist claim.
The conditional admission states that Small's "testimony at trial of his case against Ms. Corbin was false. The respondent knew his testimony was false, or he testified with reckless disregard for the truth of his testimony." The parties have also stipulated that Small's false testimony did not actually harm Corbin because the court's award of damages in Small's favor was not based on its belief that Small had insurance on the date of the accident. According to the parties, "the only damage caused by the respondent's misrepresentation was to the legal system by the disrepute that is brought on it and lawyers in general by such misrepresentation."
Small admits that the foregoing conduct violated Colo. RPC 3.3(a)(1) (knowingly making a false statement of material fact or law to a tribunal); and Colo. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
The inquiry panel approved the conditional admission, with the recommendation that Small receive a public censure. The complainant asserts that public discipline is appropriate. Small urges the court to conclude that private discipline is adequate. Under the ABA Standards for Imposing Lawyer Sanctions 6.12 (1991 & Supp.1992) (ABA Standards):
On the other hand, a public censure
Id. at 6.13. A private censure is only appropriate "when a lawyer engages in an isolated instance of neglect in determining whether statements or documents are false ... and causes little or no actual or potential injury to a party, or causes little or no adverse or potentially adverse effect on the legal proceeding." Id. at 6.14.
Small's argument for private discipline is that "recklessness" should be equated with "negligence" for purposes of applying the ABA Standards. We disagree. As we explained in People v. Rader, 822 P.2d 950, 953 (Colo.1992):
(Emphasis added; some citations omitted.) With one important exception, we have considered a reckless state of mind, constituting scienter, as equivalent to "knowing" for disciplinary purposes. See, e.g., People v. Sims, 913 P.2d 526, 530 (Colo.1996) ("The hearing board found that the respondent's conduct was so careless and reckless that, when taken in combination with the fact that he deliberately closed his eyes to facts he had a duty to see, the conduct must be deemed to be knowing and thus sufficient to establish a violation of DR 1-102(A)(4)."); People v. Walker, 832 P.2d 935, 936 (Colo.1992) ("In our view, the respondent's mental state when he submitted the vouchers for payment must be deemed to be knowing because he acted with at least a reckless disregard for the propriety of multiple and duplicative billing in court-appointed cases.").
The one exception is in cases involving a lawyer's misappropriation of another's property:
People v. Zimmermann, 922 P.2d 325, 329 (Colo.1996) (citations omitted). This case does not involve either misappropriation or a sanction of disbarment, so this exception does not apply. While Corbin may not have sustained actual damage due to Small's false testimony under oath at the trial, we consider it apparent that Small's misrepresentations threatened to cause a "potentially adverse effect on the legal proceeding." ABA Standards 6.12. We conclude therefore that a period of suspension is the presumed disciplinary sanction in this case. See id.
According to the complainant, the following mitigating factors are present: Small has not been previously disciplined in four years of practice, see id. at 9.32(a); he is inexperienced in the practice of law, see id. at 9.32(f)
In People v. Bertagnolli, 861 P.2d 717, 721 (Colo.1993), we held that the failure of the lawyer to correct an error in the testimony of one of the lawyer's witnesses of which the lawyer was aware in an arbitration proceeding warranted a public censure. Because Bertagnolli's conduct went beyond mere negligence, like Small's in this case, we found private discipline inadequate. See id. Considering the seriousness of the misconduct together with the factors in mitigation, we agree that a public censure is warranted in this case. Had the false testimony in this case gone to a dispositive and material fact, however, we would have found a public censure too lenient. See People v. Kolbjornsen, 917 P.2d 277, 279 (Colo.1996) (suspending lawyer for a year and a day for falsely denying at his trial for failing to provide proof of insurance that he had been driving without insurance). Accordingly, we accept the conditional admission and the inquiry panel's recommendation. At least one member of the court would have rejected the stipulation.
The respondent, E. Giancarlo Small, is hereby publicly censured. It is further ordered that Small pay the costs of this proceeding in the amount of $456.25 within thirty days after this opinion is announced to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 920-S, Denver, Colorado 80202.