PEOPLE v. KROB 44886 (2024)

OPINION APPROVING STIPULATION TO DISCIPLINE

Before the Presiding Disciplinary Judge (“the Court”) is a “Stipulation to Discipline Pursuant to C.R.C.P. 242.19” filed on December 12, 2024, by Jody M. McGuirk of the Office of Attorney Regulation Counsel (“the People”) and Gary Lozow, counsel for Matthew Z. Krob (“Respondent”).

I. THE PARTIES’ STIPULATION

On May 17, 2024, a jury found Respondent guilty of two counts of sexual assault, two counts of unlawful sexual contact, second-degree assault, third-degree assault, and telephone obstruction. Respondent committed these crimes against his spouse in a single incident on November 20, 2023. Respondent was sentenced to twelve years to life in the Department of Corrections. He will then serve ten years to life on parole and be required to register as a sex offender.

Respondent violated his duty to comply with Colorado state laws by knowingly or intentionally committing these crimes, thereby injuring not only his spouse but also the reputation of the legal profession. The parties rely on Standard 5.12 of the American Bar Association Standards for Imposing Lawyer Sanctions (“ABA Standards”)¹ to arrive at suspension as the baseline sanction. ABA Standard 5.12 generally applies when a lawyer knowingly engages in criminal conduct that does not contain the elements listed in ABA Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.² The parties apply three factors in aggravation under ABA Standard 9.22: multiple offenses,³ the vulnerability of the victim,⁴ and illegal conduct.⁵ In mitigation under ABA Standard 9.32, the parties give weight to Respondent's lack of prior discipline,⁶ his cooperation during this disciplinary proceeding,⁷ and the imposition of other penalties and sanctions.⁸ On balance, the parties agree that a three-year fully served suspension is the appropriate sanction. The parties also mention that, as a convicted felon, a Colorado state statute prohibits Respondent from practicing law while incarcerated or on probation.

II. ANALYSIS

The Court endeavors to honor parties’ stipulations and is favorably inclined to accept targeted and proportionate agreements that are consistent with the considerations governing imposition of disciplinary sanctions, including the ABA Standards’ theoretical framework.⁹ Discipline is not punishment. Rather, the lawyer discipline system is designed to further the Colorado Supreme Court's regulatory objectives, including promoting the public interest; increasing the public's understanding of, and confidence in, the rule of law; ensuring compliance with the rules of professional conduct; and safeguarding the rule of law to foster a robust system of justice.¹⁰ Lawyers serving more than one year of suspension must petition for reinstatement under C.R.C.P. 242.39 and demonstrate by clear and convincing evidence their rehabilitation, compliance with disciplinary orders, and fitness to practice law.

Here, the Court agrees with the parties that a fully served three-year suspension is the appropriate outcome under the ABA Standards’ theoretical framework. While the Court “always has discretion in determining the sanction for attorney misconduct,”¹¹ its mandate is nevertheless to use the ABA Standards as a framework for imposing sanctions. Because the parties’ agreement is consistent with considerations governing the imposition of disciplinary sanctions—namely, the ABA Standards—the Court lacks a well-founded basis to require the parties to depart from the presumptive sanction of suspension.

Nevertheless, the Court harbors significant reservations as to whether, on this particular set of facts, the ABA Standards achieve the Court's regulatory objectives. Reading between the proverbial lines in the stipulation, the Court surmises that Respondent violently raped his spouse. The Court struggles to syncretize the fact that this egregious sexual offense warrants a twelve-year-to-life prison sentence under Colorado's criminal code yet triggers only suspension, not disbarment, as the presumed sanction under the ABA Standards. Indeed, this disparity in outcomes suggests that the time has come to broaden the ambit of ABA Standard 5.11 to include rape and other serious felony criminal conduct as presumptively disbarrable offenses, better reflecting the contemporary understanding of the lasting harm to sexual assault victims and the societal ills that result from such offenses.

Ultimately, the Court's deep concerns about the parties’ stipulation are somewhat assuaged by Respondent's minimum twelve-year prison sentence followed by no less than ten years of mandatory parole. As the parties observe, Respondent's sentence extends far beyond his stipulated three-year period of suspension. If that carceral or probationary period lasts more than five years, he will be required to both sit for the bar exam and petition this Court for reinstatement. In petitioning for reinstatement, Responded will be required to muster clear and convincing evidence that he has rehabilitated from his misconduct, show he has complied with court orders, and demonstrate his fitness to practice law. Because, by definition, parolees are “on the path to rehabilitation but are not yet rehabilitated,”¹² Respondent will not be able to make such a showing until he completes his terms of incarceration and parole. As a result, Respondent's suspension will likely present no differently than if the parties had stipulated to his disbarment, where a lawyer must wait eight years following an order of disbarment before seeking readmission to the practice of law by following the same steps. In short, Respondent's three-year suspension, coupled with the anticipated period of his incarceration and parole, has the same practical effect as disbarment. With this dynamic in mind, and because rejecting the stipulation could amount to an abuse of the Court's discretion, the Court reluctantly approves the parties’ agreement.¹³

III. CONCLUSION

Because the parties’ stipulation is consistent with the ABA Standards, the Court APPROVES the parties’ stipulation to discipline. The Court contemporaneously issues an order and notice of Respondent's suspension.

FOOTNOTES

1.   Found in the ABA Annotated Standards for Imposing Lawyer Sanctions (2d ed. 2019).

2.   ABA Standard 5.11(a) provides for disbarment when a lawyer engages in serious criminal conduct that includes as a necessary element “intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses.” In addition, ABA Standard 5.11(b) provides that disbarment is generally appropriate for “any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.”

3.   ABA Standard 9.22(d).

4.   ABA Standard 9.22(h).

5.   ABA Standard 9.22(k).

6.   ABA Standard 9.32(a).

7.   ABA Standard 9.32(e).

8.   ABA Standard 9.32(k).

9.   See C.R.C.P. 242.19(c); In re Attorney F., 2012 CO 57 ¶ 19, 285 P.3d 322.

10.   See Preamble to Chapters 18 to 20, Colorado Court Rules.

11.   Att'y F., ¶ 15.

12.   In re Miranda, 2012 CO 69 ¶ 18, 289 P.3d 957.

13.   But see In re Littleton, 719 S.W.2d 772, 778 (Mo. 1986) (“Suspension is never a proper substitute for disbarment.”).

BRYON M. LARGE, PRESIDING DISCIPLINARY JUDGE