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Keywords

attorneylawyerhearingtrialplearegulationdouble jeopardy
lawyerhearingplearegulationdouble jeopardyprosecutorrespondent

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In re Cardwell, 50 P.3d 897

Facts

Jerry E. Cardwell, an attorney admitted to practice law in Colorado in 1983, represented a client in two DUI cases. During the representation, Cardwell failed to disclose a prior conviction of his client for driving while ability impaired (DWAI) when negotiating a plea agreement in a subsequent DUI case. This misrepresentation led to the trial court accepting a plea agreement that was not legally permissible due to the client's prior conviction. Cardwell was later charged with perjury and attempting to influence a public servant, to which he pleaded guilty, resulting in a deferred judgment and a four-year sentence.

Jerry E. Cardwell is the respondent in this lawyer regulation proceeding. While assisting his client to plead guilty in a driving under the influence (DUI) case, Cardwell failed to disclose to the prosecutor and to the court that his client had previously been convicted of driving while ability impaired (DWAI).

Issue

Whether the disciplinary sanctions imposed on Cardwell constituted double jeopardy and whether the hearing board's findings warranted a new hearing.

The Supreme Court, Mullarkey, C.J., held that: (1) lawyer regulation proceedings and the sanctions imposed in them are not criminal in nature for double jeopardy purposes.

Rule

Lawyer regulation proceedings and the sanctions imposed are not considered criminal punishment for double jeopardy purposes, and the appropriate sanction for violations of professional conduct rules is determined by the need to protect the public.

The PDJ and one hearing board member concluded that Cardwell's ethical violations warranted a three-year suspension, with eighteen months stayed.

Analysis

The court analyzed the nature of the disciplinary proceedings and concluded that they serve a remedial purpose rather than punitive. The court found that Cardwell's misrepresentations were knowingly made and that the hearing board's decision to impose a three-year suspension, with 18 months stayed, was appropriate given the severity of the misconduct and the need to protect the public.

In analyzing the appropriate sanction, the majority concluded that disbarment was the presumed sanction for this type of misconduct.

Conclusion

The Supreme Court affirmed the hearing board's decision to suspend Cardwell for three years, with 18 months of the suspension stayed, and remanded the case for further proceedings.

Affirmed and remanded.

Who won?

The Colorado Supreme Court prevailed in affirming the hearing board's decision, reasoning that the sanctions were appropriate given Cardwell's misconduct and the need to protect the public.

The board found that although Cardwell's client did not suffer significant harm as a result of his misconduct, the legal system did.

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