PEOPLE v. MOSELEY 53592 (2025)

OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PEOPLE'S CROSS-MOTION FOR SUMMARY JUDGMENT UNDER C.R.C.P. 56, AND DISMISSING THE COMPLAINT

Before the Presiding Disciplinary Judge (“the Court”) is “Respondent's Motion for Summary Judgment Pursuant to C.R.C.P. 56(b),” filed by Alexander R. Rothrock, counsel for John Z. Moseley (“Respondent”) on February 4, 2025. Justin P. Moore of the Office of Attorney Regulation Counsel (“the People”) filed on March 4, 2025, the “People's Response to Respondent's Motion for Summary Judgment Pursuant to C.R.C.P. 56(b) and Cross-Motion for Summary Judgment Under C.R.C.P. 56(c).” Respondent replied in support of his own summary judgment motion on March 18, 2025, and he submitted “Respondent's Response to the People's Cross-Motion for Summary Judgment Under C.R.C.P. 56(c)” on March 31, 2025. The People filed a reply in support of their cross-motion on April 14, 2025.

I. BACKGROUND

Respondent was admitted to practice law in Colorado on July 15, 2019, under attorney registration number 53592.¹ He is thus subject to the jurisdiction of the Court in this matter.²

On October 3, 2024, the People filed a complaint in this reciprocal discipline case, which is premised on Respondent's ninety-day suspension from the practice of law, followed by another suspension of a year, by the U.S. District Court for the Western District of Louisiana. Respondent answered the People's complaint on December 2, 2024, asserting two defenses against the imposition of reciprocal discipline: that the procedure followed in the other jurisdiction did not comport with Colorado's requirements of due process of law and that the proof on which the other jurisdiction based its determination of misconduct was so infirm that the determination cannot be accepted.³ Also on December 2, 2024, Respondent provided the Court the full copy of the record from the Louisiana federal proceeding. On December 16, 2024, the Court held scheduling conference and set a two-day hearing to take place on August 27-28, 2025.

II. LEGAL STANDARDS

C.R.C.P. 56(c) provides that summary judgment is appropriate when the pleadings, affidavits, depositions, or admissions show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.⁴ Summary judgment permits the parties to pierce the formal allegations of the pleadings and save the time and expense involved in a trial when, as a matter of law and based on undisputed facts, one party could not prevail.⁵

The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party.⁶ A material fact is one that will affect the outcome of the case.⁷ Where a party moves for summary judgment on an issue on which that party would not bear the burden of persuasion at trial, that burden is satisfied by demonstrating that there is an absence of evidence in the record to support the nonmoving party's case.⁸ Once the moving party meets the initial burden, the burden shifts to the nonmoving party to muster sufficient evidence to make out a triable issue of fact on that claim.⁹ Though the nonmoving party is entitled to the benefit of all favorable inferences reasonably drawn from the undisputed facts, with all doubts resolved against the moving party,¹⁰ the nonmoving party cannot rest upon mere allegations or denials; rather, it must present specific facts showing the existence of a genuine and material factual dispute.¹¹ Mere conclusory statements on ultimate issues that do not include facts that tend to prove or disprove the opposing party's allegations do not give rise to genuine issues of fact.¹²

C.R.C.P. 242.21 governs reciprocal discipline. C.R.C.P. 242.21(a) provides that a sister jurisdiction's final adjudication of misconduct constituting grounds for lawyer discipline in Colorado conclusively establishes such misconduct here unless the party challenging imposition of that discipline establishes by clear and convincing evidence that:

(1) The procedure followed in the other jurisdiction did not comport with Colorado's requirements of due process of law;

(2) The proof upon which the other jurisdiction based its determination of misconduct is so infirm that the determination cannot be accepted;

(3) The imposition of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or

(4) The misconduct proved warrants a substantially different form of discipline in Colorado.13

A respondent invoking any of these defenses bears the burden to demonstrate by clear and convincing evidence that less severe or no discipline should be imposed in Colorado.¹⁴ If the matter can be resolved on a dispositive motion, such as a motion filed under C.R.C.P. 56, the Court may, without a hearing or a hearing board, issue a decision imposing the same discipline as was imposed by the foreign jurisdiction.¹⁵

The Colorado Supreme Court has made clear that reciprocal discipline proceedings do not afford respondents the opportunity to retry a foreign jurisdiction's disciplinary proceeding.¹⁶ Some courts have characterized their duty in reciprocal discipline matters as according deference to the disciplining jurisdiction.¹⁷ As the Massachusetts Supreme Court put it, “The factual aspect of our inquiry ․ is generally limited to determining whether the attorney received a fair hearing at which sufficient evidence was presented to justify our taking reciprocal disciplinary action.”¹⁸

III. RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

Undisputed Material Facts

Respondent is the sole member of MMA Law Firm PLLC (“MMA”), a Houston law firm.¹⁹ On August 25, 2022, William Huye, a lawyer formerly affiliated with MMA, filed an action on behalf of Gerald Stidham against GeoVera Specialty Insurance Company in the United States District Court for the Western District of Louisiana.²⁰ Stidham's case was one of approximately 1,600 lawsuits filed on the eve of the expiration of a statute of limitations by MMA on behalf of Louisiana residents to recover from various insurance companies for allegedly denying or underpaying insurance claims for property damage caused by Hurricane Laura (August 27, 2020), Hurricane Delta (October 9, 2020), and Hurricane Ida (August 29, 2021) (collectively, the Hurricane Cases).²¹ All of the Hurricane Cases were assigned to the Honorable James D. Cain, Jr.²²

Respondent was not counsel of record or listed in the MMA signature block in any of the Hurricane Cases.²³ But Respondent is a named partner at MMA; he was a visiting lawyer in the jurisdiction; his firm was responsible for the pending Hurricane Cases; he was responsible for the employees in his firm; his name is referenced in the Hurricane cases; and his name appeared on checks that the court reviewed.²⁴

On October 20, 2022, and December 13, 2022, Judge Cain held hearings in four Hurricane Cases other than Stidham's case.²⁵ Respondent was not counsel of record in any of these four cases.²⁶ During the hearings, Judge Cain questioned Huye extensively about how MMA came to have so many Hurricane Cases, why MMA filed so many on the eve of the expiration of the statute of limitations, and why, in some instances, MMA filed more than one case for the same plaintiff for the same damages.²⁷

On March 3, 2023, in Stidham's case, Judge Cain entered a memorandum order suspending MMA and MMA lawyers, including Respondent, from the practice of law in the Western District of Louisiana for a period of ninety days.²⁸ On the same day, Judge Cain adopted the memorandum order in a case caption entitled In re McClenny Moseley & Associates PLLC (the “MMA case”).²⁹ At the conclusion of the ninety-day period, the matter was referred to a full panel of Article III judges for consideration of further discipline.³⁰

On June 8, 2023, Judge Terry A. Doughty entered an order in the MMA case extending the suspensions of six current or former MMA lawyers, including Respondent, pursuant to “LR83.2.10(B)(3) and the unanimous vote of the Article III judges of the Western District of Louisiana.”³¹ Judge Doughty extended Respondent's suspension for an additional year.³² Judge Doughty's order also notified the six lawyers of their right to “seek an opportunity to be heard regarding these suspensions.”³³

On June 22, 2023, Respondent requested a hearing regarding his one-year suspension.³⁴

On August 8, 2023, Judge Cain held hearings on the “appeals of the temporary suspensions that were extended” of certain MMA lawyers, including Respondent.³⁵ The purpose of the hearings was to appeal the lawyers’ suspensions from the practice of law in the Western District of Louisiana.³⁶ On August 24, 2023, Judge Cain entered an order stating that as to Respondent, there was no “no just cause” to modify his one-year suspension.³⁷

Analysis

In his summary judgment motion, Respondent argues the undisputed facts establish that the United States District Court for the Western District of Louisiana (“the federal court”) failed to comport with Colorado's due process requirements when it imposed on him two consecutive suspensions. Respondent contends that he never received a charging document setting forth the alleged facts forming the basis for the suspensions or the rules he allegedly violated. He maintains that he never signed or allowed his name to appear on a pleading filed in the federal court. Just as important, he claims, he first appeared before the federal court to appeal his suspension in a hearing that he was offered only after he was already suspended. In short, Respondent says, he was not provided notice of the precise nature of the charges of professional misconduct against him, and he was not afforded an opportunity to be heard before his license was twice suspended.

The People disagree. They contend that based on the October and December 2022 hearings, Respondent was on notice about the nature of the alleged misconduct, if not about the precise alleged rule violations at issue. They also assert that Respondent was afforded due process, as he consented to the federal court's jurisdiction, he was made aware of the applicable processes and procedures, the federal court followed Local Rule 83.2.10 by giving him notice of a hearing and an opportunity to be heard, and he never lodged an appellate challenge to that process. The People also insist that Respondent was not entitled to a hearing before he was suspended. They reason that one of Respondent's colleagues—Claude F. Reynaud—appealed these same procedures on due process grounds but the Fifth Circuit rejected Reynaud's arguments. The Court “should not second-guess the Fifth Circuit's conclusions about the due process provided within the walls of its jurisdiction,” the People conclude.³⁸

Respondent retorts that he was deprived of due process, as evidenced by two main procedural flaws: first, his authority to practice law in the federal court was twice suspended before he was even offered a hearing; and second, he was not given notice of the precise nature of the charges of professional misconduct against him either before or after he was stripped of his license in the jurisdiction. As to the first point, Respondent emphasizes that due process requirements must be measured against Colorado's standards and that this Court owes no deference to the Fifth Circuit's logic in the Reynaud case. As to the second point, Respondent objects that he was not given adequate notice because no document, including the memorandum order of March 3, 2023, links allegations of misconduct to his own actions, whether as a participant or a supervisory lawyer.

Due Process's Twin Pillars

A respondent lawyer is entitled to due process in disciplinary proceedings.³⁹ The lawyer need not, however, be afforded the same constitutional safeguards as those granted a defendant in a criminal trial.⁴⁰ In Colorado, disciplinary proceedings have been found to comport with due process standards when respondent lawyers are sent notice of the proceedings and are given an opportunity to be heard in their defense.⁴¹

Notice

As noted above, the first pillar of due process in Colorado lawyer discipline is the requirement that lawyers receive notice of the “precise nature of the charges” against them.⁴² Notice must be “reasonably calculated, under all circumstances, to apprise interested parties of a pending action ․”⁴³ Fair notice of the precise nature of the charges does not necessarily require enumeration of the specific disciplinary rules the lawyer allegedly violated.⁴⁴ But fair notice does envision “a recitation of the facts revealing the offensive conduct” as well as “the identification of the legal prohibition which proclaims such conduct violative of the rules applicable to a lawyer's conduct.”⁴⁵

Here, it is undisputed that Respondent's firm, MMA, filed approximately 1,600 Hurricane Cases shortly before the statute of limitations in those cases was set to expire. The parties do not dispute that Respondent was a visiting lawyer in the jurisdiction; his firm was responsible for the pending Hurricane Cases; he was responsible for the employees in his firm; his name is referenced in the Hurricane cases; and his name appeared on checks that the court reviewed.⁴⁶ It is also undisputed that Respondent was not counsel of record or listed in the MMA signature block in any of the Hurricane Cases.⁴⁷

Likewise, the parties do not dispute that Judge Cain held hearings in October and December 2022, during which Judge Cain questioned Huye in detail about the Hurricane Cases and MMA's handling of them. Based on the record of the underlying federal court proceeding, cited and incorporated in Respondent's summary judgment motion, the Court finds that during those two 2022 hearings, Respondent was referenced individually just once ⁴⁸ and was not mentioned as a potential subject of investigation or discipline. Moreover, the specter of firm-wide discipline was never raised as a possibility during those hearings.

As such, while Huye and other counsel of record in the Hurricane Cases knew well the substantive nature of Judge Cain's very real concerns—and while those individual lawyers might even be said to have received notice that their own licenses were in peril—the Court cannot find that Respondent himself received the same notice. When Judge Cain suspended Respondent on March 3, 2023, Respondent had never been apprised of a pending disciplinary action, let alone a threatened action against him personally. Nor had he been officially alerted by the federal court that conduct attributable to him specifically had come under scrutiny. Indeed, during the hearing on August 8, 2023, Judge Cain asserted that the federal court was not required to give Respondent notice under the local federal rule before suspending him for ninety days.⁴⁹ This absence of notice reasonably calculated to inform Respondent of a pending action against him related to specific conduct runs contrary to Colorado's due process requirements.⁵⁰

The People's argument that Respondent received sufficient notice because he submitted to the federal court's jurisdiction and because the federal court followed its own procedures falls flat. The Court cannot endorse an attempt to graft constructive notice onto a process where none existed. Whether Respondent helmed a law firm that launched more than a thousand Hurricane Cases in the jurisdiction, whether he thereby submitted to the federal court's jurisdiction, and whether he was aware of the local rules is beside the point. While the federal court may have had jurisdiction over Respondent—an issue on which this Court takes no position—that jurisdictional authority does not somehow transmute into reasonably calculated notice to an individual lawyer that his license is in jeopardy. Further, neither the federal court's local rule nor the Fifth Circuit's due process analysis in Reynaud's case are the yardsticks against which this Court must decide Respondent's motion. Rather, this Court must measure the federal court's procedures against Colorado's due process standards, not Louisiana's local federal rules or the Fifth Circuit's reasoning. Finally, Respondent's decision not to appeal his one-year suspension to the Fifth Circuit is immaterial to the question of whether he received adequate notice that Judge Cain was considering disciplinary action against him. The Court finds that Respondent has established as a matter of law that the procedure followed in the federal court did not comport with Colorado's notice requirements for the due process of law.

Opportunity to Be Heard

The second pillar of due process requires that an individual who faces deprivation of any significant property interest be given an opportunity to be heard. In Colorado, this requires that an individual is afforded the opportunity to be heard “at a meaningful time and in a meaningful manner.”⁵¹ Whether an opportunity is meaningful varies according to context, as due process “is not a technical concept with fixed content unrelated to time, place, and circumstance; rather it is flexible and calls for such procedural protections as the particular situation demands.”⁵² Generally, a meaningful opportunity entitles an individual to a hearing before being deprived of the property interest.⁵³

Limited exceptions exist, however. In rare cases that demand prompt action, an important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may justify postponing the opportunity to be heard until after an individual is initially deprived of the property interest.⁵⁴ But even where the government pursues a “discipline first, hearing second” sequence,⁵⁵ as Respondent terms it, “ ‘a prompt postsuspension hearing, one that ․ proceed[s] and [is] concluded without appreciable delay’ is required.”⁵⁶ When determining whether a full hearing has been held sufficiently promptly, several factors are relevant: “the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken.”⁵⁷

Here, on March 3, 2023, Judge Cain suspended Respondent without notice or hearing. During that ninety-day period, Respondent was given no opportunity to present his position or answer allegations. At the end of that ninety-day period, on June 8, 2023, the Article III judges in the federal court voted unanimously to extend Respondent's suspension for another year. Again, Respondent was not given a hearing before that one-year suspension was imposed or took effect. He was, however, invited to seek an opportunity to be heard within fifteen days of the June 2023 suspension order. Respondent did so on June 22, 2023. Forty-seven days later, a hearing was held on August 8, 2023. Sixteen days after that, Judge Cain issued an order declining to modify Respondent's one-year suspension. All told, Respondent was suspended from the practice of law in the Western District of Louisiana for five months and five days before he was given an opportunity to be heard, and he was suspended for five months and twenty-one days before a final disposition was issued.

For purposes of this order, the Court assumes arguendo that the federal court's decision to suspend Respondent in March 2023 without first soliciting his position comported with Colorado's requirements of due process. The Court therefore turns to the question, using the tripartite test set forth above as a lodestar, of whether Respondent's postsuspension hearing was sufficiently prompt and thus “meaningful” under Colorado's requirements of due process of law.

First, Respondent's private interest in retaining his professional license and livelihood is very great, and the harm occasioned by delay in receiving a hearing is significant, both financially and reputationally.⁵⁸ Indeed, in the October 2022 hearing Judge Cain remarked, “I want you to know now if you get a bar complaint against you, you get sanctions against you, it follows you as lawyers. It follows you.”⁵⁹

Counterbalanced against Respondent's interest is, second, the federal court's justification for delaying a postsuspension hearing and its relation to the underlying governmental interest. The memorandum order of March 3, 2023, limns a host of ethical concerns surrounding MMA's handling of the Hurricane Cases and justifies a suspension “to protect the interests of [MMA's] current clients in this district.”⁶⁰ At the hearing on August 8, 2023, Judge Cain elaborated, explaining why he did not provide Respondent an opportunity to be heard promptly after the March 2023 memorandum order entered: “But to protect the public, there was no way I was going to let the suspension or this [federal court] was going to lift your suspension pending you getting a hearing because of the mess that your firm has created for [the federal court], for the people this state and this district.”⁶¹ This Court acknowledges and well appreciates the imperative to protect the public and the judicial system from the consequences of unscrupulous or reckless lawyer conduct.⁶² But it is not persuaded that the federal court's explanation as to its mandate to protect the public while not proceeding expeditiously with a postsuspension hearing after March 3, 2023, should detrimentally affect Respondent's Colorado license without appropriate process in this state.⁶³

Finally, the Court considers the likelihood that the interim suspension decision of March 3, 2023, may have been mistaken. Given that the panel of Article III judges in the federal court voted unanimously to extend Respondent's suspension for another year, and given that Judge Cain found no reason to modify that term of suspension after he held the August 2023 hearing, this Court adjudges it unlikely that Respondent's March 2023 order of suspension was mistaken or otherwise erroneous.

These three factors, taken together, point toward a finding that the federal court's five-month and five-day delay in holding a postsuspension hearing failed to comport with Colorado's requirements of due process. In reaching this conclusion, the Court looks to hallmarks of due process in Colorado, most salient of which are the state's lawyer disciplinary rules governing interim suspensions. That process allows for the temporary suspension of a lawyer's license to practice law pending a full disciplinary hearing against the lawyer. C.R.C.P. 242.22, which establishes interim suspension procedures, provides for service of an interim suspension petition on the lawyer, who then has fourteen days to answer the petition. The lawyer may also request a hearing. Any hearing must take place within fourteen days of the lawyer's answer. Within seven days after the hearing, this Court must submit a report with recommendations to the Colorado Supreme Court, which then decides the matter. Start to finish, a recommendation is delivered to the Colorado Supreme Court no more than five weeks after an interim suspension petition is filed, and no lawyer is temporarily suspended before receiving an opportunity to be heard. Further, a lawyer who is temporarily suspended has the right to an accelerated disposition of the lawyer's formal disciplinary proceeding. These procedures suggest that a federal court proceeding honoring Colorado's due process requirements would have afforded Respondent an opportunity to be heard around twenty-eight days after the memorandum order issued on March 3, 2023.⁶⁴ Because a hearing did not occur for another four months after that point, the Court cannot find that Respondent was afforded a meaningful opportunity to be heard.

In short, Respondent has met his burden to establish as a matter of law that, under C.R.C.P. 242.21(a)(1), the procedure followed in the federal court did not comport with Colorado's requirements of due process of law. The Court thus GRANTS “Respondent's Motion for Summary Judgment Pursuant to C.R.C.P. 56(b).”

IV. PEOPLE'S CROSS-MOTION FOR SUMMARY JUDGMENT

The People do not set forth an independent set of material facts in their cross-motion for summary judgment. In the absence of that separate set of material facts, the Court treats the People's statement of additional material facts in the cross-motion as such and deems them undisputed, as Respondent does not admit, deny, or address them.⁶⁵

Undisputed Material Facts

Respondent is a named partner of MMA, which stands for McClenny Moseley & Associates, PLLC.⁶⁶ MMA represented clients in the Western District of Louisiana with claims arising from Hurricanes Laura, Delta, and Ida beginning in 2022.⁶⁷ MMA and its lawyers consented to the jurisdiction of the United States District Court for the Western District of Louisiana, including in 2022 and 2023, because the firm filed cases in that jurisdiction.⁶⁸

Judge Cain's memorandum order of March 3, 2023, provided notice of Judge Cain's concerns about MMA's activities, including: duplicate filings; cases filed against insurers who had no policy in place with the plaintiff; cases filed on behalf of plaintiffs who had already settled their hurricane claims with the insurer; use of an unlicensed estimator, rather than a public adjuster for establishing damages; a client having difficulty terminating the firm; the firm filing a petition without client consent, and improper endorsement of a settlement check; dismissing a matter without client consent; and filing suits against insurers who had never issued a policy to the given plaintiff.⁶⁹ Judge Cain also articulated his concerns that MMA was engaging in ongoing misconduct through poor client communication, use of legal marketing program Velocity, and failure to properly document its expenses for settlement approval.⁷⁰

Judge Cain's memorandum order of March 3, 2023, referenced and attached two transcripts from hearings on October 20, 2022, and December 13, 2022, in which lawyers from MMA represented plaintiffs; that memorandum order also referred to a cease and desist letter dated February 17, 2023, issued to the MMA firm by the Louisiana Insurance Commissioner.⁷¹ In that memorandum order, Judge Cain also specifically referenced various testimony during both the October 2022 and December 2022 hearings as examples of MMA's conduct.⁷²

During the October 2022 hearing, several MMA clients testified, and some appeared to have not received adequate communication from their lawyers before suit was filed.⁷³ During the December 2022 hearing, MMA client Betty Green testified.⁷⁴ Green filed suit against insurer State Farm despite previously settling her claim with the insurer in a suit filed with a different plaintiff's lawyer.⁷⁵ Judge Cain heard testimony about MMA's use of an unlicensed “estimator” for establishing damages, rather than the licensed public adjusters relied on by plaintiffs in most cases.⁷⁶ Judge Cain also heard testimony from the lawyer of a client who had inadvertently retained MMA and faced difficulty terminating the firm.⁷⁷ The client submitted a notarized statement detailing his efforts to terminate services with MMA, which nonetheless filed a petition on his behalf without his knowledge or consent.⁷⁸ Judge Cain heard testimony regarding MMA's improper endorsement of a settlement check in the matter of Melvin Addison.⁷⁹ Judge Cain heard testimony from MMA client Nancy Crockett, who alleged that MMA had dismissed her suit without communicating with her.⁸⁰ And Judge Cain heard testimony regarding numerous suits filed against insurers who had never issued a policy to the plaintiff.⁸¹

The Louisiana Department of Insurance issued a cease-and-desist letter on February 17, 2023, in which it identified Respondent as a managing partner and/or managing member and outlined its factual findings about MMA's misconduct.⁸²

Judge Cain's memorandum order of March 3, 2023, provided Respondent notice by stating:

Under Local Rule 83.2.10, any judge of this court may suspend an attorney for up to ninety days for misconduct without having to seek approval from the other Article III judges of the court or the chief judge. Based on the misconduct before this court, a suspension of the full ninety days for all MMA attorneys who have appeared before the court and for anyone affiliated with that firm is justified. Further, the court is concerned that MMA is committing ongoing misconduct through its poor client communication, use of legal marketing program Velocity, and failure to properly document its expenses for settlement approval. A suspension is therefore necessary to protect the interest of its current clients in this district.83

Local Rule 83.2.10 was adopted on July 12, 2022, and provides notice to lawyers and firms that practice in the Western District of Louisiana.⁸⁴ Judge Cain followed the procedures contemplated in Local Rule 83.2.10 regarding Respondent's ninety-day suspension.⁸⁵

As set forth in the order Judge Doughty issued on June 8, 2023, Respondent's suspension was referred to Article III judges in the Western District of Louisiana for review.⁸⁶ The full panel of Article III judges in the Western District of Louisiana voted unanimously to extend Respondent's suspension by one year.⁸⁷ Judge Doughty's order of June 8, 2023, provided Respondent with notice of the unanimous vote of Article III judges to extend his suspension by one year.⁸⁸ That order provided Respondent the opportunity to request a hearing within fifteen days of the order's issuance.⁸⁹

Respondent confirmed that he received the order issued June 8, 2023, and he availed himself of the hearing to challenge the suspension.⁹⁰

Respondent's hearing took place on August 8, 2023, at which Respondent was permitted to present evidence, testimony, and argument.⁹¹ During the hearing, Respondent raised his argument about due process, and Judge Cain responded by stating, “[t]hat's why you are getting the hearing today.”⁹²

After the hearing, on August 24, 2023, Judge Cain entered a ruling and declined to shorten or modify Respondent's suspension.⁹³ That ruling constitutes a final adjudication of misconduct.⁹⁴ Respondent had the opportunity to appeal the ruling of August 24, 2023, to the Fifth Circuit Court of Appeals, as a former colleague at MMA, Claude F. Reynaud, did.⁹⁵ Respondent did not appeal the ruling of August 24, 2023, to the Fifth Circuit.⁹⁶

Analysis

The People maintain in their cross-motion for summary judgment that no disputed material facts exist, that the due process defense set forth in C.R.C.P. 242.21(a)(1) does not apply, and that the evidence conclusively establishes that Respondent should be disciplined under C.R.C.P. 242.21. They request that the Court enter summary judgment in their favor, find that reciprocal discipline is appropriate under C.R.C.P. 242.21, and suspend Respondent for one year and three months.

As set forth in the People's cross-motion, there is no genuine dispute that on March 3, 2023, Respondent's license to practice law in the United States District Court for the Western District of Louisiana was suspended for ninety days. Also undisputed is that his suspension in the jurisdiction was extended for another year on June 8, 2023. These suspension orders conclusively establish a sister jurisdiction's final adjudication of misconduct in this Colorado reciprocal discipline case. As such, the People have met their initial burden.

The People's cross-motion for summary judgment also asks the Court to find as a matter of law that Respondent's due process defense under C.R.C.P. 242.21(a)(1) does not apply. Because the People would not bear the burden of persuasion as to the defense at trial, they need only show that there is an absence of evidence in the record to support Respondent's defense. But as analyzed above and as incorporated here, the People cannot do so. Indeed, Respondent has shown ample evidence in the record to support his defense under C.R.C.P. 242.21(a)(1). The Court thus must DENY the People's cross-motion for summary judgment.

V. CONCLUSION

The Court DENIES the People's cross-motion for summary judgment. The Court GRANTS Respondent's motion for summary judgment and finds under C.R.C.P. 242.21(a)(1) that the procedure followed in the United States District Court for the Western District of Louisiana did not comport with Colorado's requirements for due process of law. The Court thus DISMISSES the People's reciprocal discipline complaint against Respondent in this case, which is premised on his suspensions in the United States District Court for the Western District of Louisiana imposed on March 3, 2023, and June 8, 2023. If the People wish to seek discipline against Respondent for conduct relating to the allegations underlying the suspensions in the United States District Court for the Western District of Louisiana, they must bring a complaint under C.R.C.P. 242.25.

The Court VACATES the two-day hearing set for August 27-28, 2025, and VACATES the prehearing conference set for Wednesday, August 13, 2025, at 9:00 a.m.

FOOTNOTES

1.   Mot. ¶ 1; Resp. & Cross-Mot. at 3 ¶ 1.

2.   C.R.C.P. 242.1(a).

3.   C.R.C.P. 242.21(a)(1)-(2).

4.   See Civil Serv. Comm'n v. Pinder, 812 P.2d 645, 649 (Colo. 1991); Jones v. Dressel, 623 P.2d 370, 373 (Colo. 1981).

5.   Roberts v. Am. Family Mut. Ins., 144 P.3d 546, 548 (Colo. 2006); Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 238 (Colo. 1984); A-1 Auto Repair & Detail, Inc. v. Bilunas-Hardy, 93 P.3d 598, 603 (Colo. App. 2004).

6.   See Cont'l Airlines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987).

7.   Dominguez Reservoir Corp. v. Feil, 854 P.2d 791, 795 (Colo. 1993).

8.   Cont'l Airlines, 731 P.2d at 712; see also Gibbons v. Ludlow, 2013 CO 49, ¶ 11, 304 P.3d 239 (noting the moving party “need only identify those portions of the record and affidavits which demonstrate an absence of a genuine issue of a material fact”).

9.   C.R.C.P. 56(e); Cont'l Airlines, 731 P.2d at 713.

10.   Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo. 1999).

11.   Cont'l Airlines, 731 P.2d at 713.

12.   Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 858 (Colo. App. 2007).

13.   C.R.C.P. 242.21(a)(1)-(4).

14.   People v. Calder, 897 P.2d 831, 832 (Colo. 1995).

15.   C.R.C.P. 242.21(b)(3)(B).

16.   See In re Kennedy, 2024 CO 21, ¶ 44, 546 P.3d 1160; Calder, 897 P.2d at 832 (“The hearing board appropriately declined the respondent's invitation to retry the Utah disciplinary proceedings.”).

17.   In re Loigman, 582 A.2d 1202, 1203 (D.C. App. 1990); In re Lebbos, 423 Mass. 753, 672 N.E.2d 517, 519 (1996).

18.   Lebbos, 672 N.E.2d at 519.

19.   Mot. ¶ 1; Resp. & Cross-Mot. at 3 ¶ 1.

20.   Mot. ¶ 2; Resp. & Cross-Mot. at 3 ¶ 2.

21.   Mot. ¶ 2; Resp. & Cross-Mot. at 3 ¶ 2.

22.   Mot. ¶ 2. The People aver they lack information to admit or deny that assertion, but they do not set forth specific facts showing that there is a genuine issue for trial. See Resp. & Cross-Mot. at 3 ¶ 2.

23.   Mot. ¶ 2. The People aver that they lack information to admit or deny this assertion, but they do not set forth specific facts showing there is a genuine issue for trial. See Resp. & Cross-Mot. at 3-4 ¶ 2.

24.   Resp. & Cross-Mot. at 3-4 ¶ 2. Respondent did not deny these assertions or put forward evidence to create triable issues of fact.

25.   Mot. ¶ 3; Resp. & Cross-Mot. at 4 ¶ 3.

26.   Mot. ¶ 3; Resp. & Cross-Mot. at 4 ¶ 3.

27.   Mot. ¶ 3; Resp. & Cross-Mot. at 4 ¶ 3.

28.   Mot. ¶ 4; Resp. & Cross-Mot. at 4 ¶ 4.

29.   Mot. ¶ 4; Resp. & Cross-Mot. at 4-5 ¶ 4. The case's number is 3:23-mc-00062-JDC.

30.   Mot. ¶ 5; Resp. & Cross-Mot. at 5 ¶ 5.

31.   Mot. ¶ 6; Resp. & Cross-Mot. at 5 ¶ 6.

32.   Mot. ¶ 6; Resp. & Cross-Mot. at 5 ¶ 6.

33.   Mot. ¶ 6; Resp. & Cross-Mot. at 5 ¶ 6.

34.   Mot. ¶ 7; Resp. & Cross-Mot. at 5 ¶ 7.

35.   Mot. ¶ 8; Resp. & Cross-Mot. at 5 ¶ 8.

36.   Mot. ¶ 8; Resp. & Cross-Mot. at 5 ¶ 8. Respondent states that at the hearing on August 8, 2023, he presented argument; the People deny this characterization, however, and aver that Respondent was sworn in and presented his own testimony during the hearing. Mot. ¶ 8; Resp. & Cross-Mot. at 5-6 ¶ 8. The Court does not consider this disputed fact material to its analysis. See People v. Smith, 937 P.2d 724, 727-28 (Colo. 1997) (finding due process was satisfied by presentation of oral argument).

37.   Mot. ¶ 8; Resp. & Cross-Mot. at 6 ¶ 8.

38.   Resp. & Cross-Mot. at 17.

39.   In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); In re Egbune, 971 P.2d 1065, 1072 (Colo.1999).

40.   People v. Morley, 725 P.2d 510, 514 (Colo. 1986); People v. Harfmann, 638 P.2d 745, 747 (Colo.1981).

41.   People v. Varallo, 913 P.2d 1, 6 (Colo. 1996); Calder, 897 P.2d at 832 (approving a hearing board's findings that a respondent had failed to demonstrate that an originating jurisdiction's disciplinary proceeding violated due process standards, where the lawyer had participated in five days of evidentiary hearings, followed by an appeal); see also City & Cty. of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982) (“The essence of procedural due process is fundamental fairness. This embodies adequate advance notice and an opportunity to be heard prior to state action resulting in deprivation of a significant property interest.”).

42.   In re Abrams, 2021 CO 44, ¶ 38, 488 P.3d 1043.

43.   Ault v. Dep't of Revenue, 697 P.2d 24, 27 (Colo. 1985) (citations omitted).

44.   State v. Turner, 217 Kan. 574, 538 P.2d 966, 972 (1975).

45.   People v. Stillman, 42 P.3d 88, 93 (Colo. O.P.D.J. 2002); see also In re Quiat, 979 P.2d 1029, 1038 (Colo. 1999).

46.   Resp. & Cross-Mot. at 3-4 ¶ 2. Respondent did not deny these assertions or put forward evidence to create triable issues of fact as to them.

47.   Mot. ¶ 2. The People aver that they lack information to admit or deny this assertion and do not cite evidence creating a triable issue of fact. See Resp. & Cross-Mot. at 3-4 ¶ 2.

48.   Record at 336.

49.   Record at 1028.

50.   See, e.g., Quiat, 979 P.2d at 1038 (finding a lack of notice when a disciplinary complaint alleged that a lawyer made rude and threatening phone calls in violation of disciplinary rules but did not notify the lawyer directly or by necessary implication that he should defend himself against a charge of dishonest conduct); People v. Lynch, 35 P.3d 509, 513 (Colo. O.P.D.J. 2000) (concluding that a lawyer did not receive requisite notice via the substantive factual allegations or the counts in the disciplinary complaint that he was being charged with abandonment of his client); Colorado State Bd. of Dental Exam'rs v. Micheli, 928 P.2d 839, 842 (Colo. App. 1996) (determining that a notice of charges failed to provide adequate notice when it apprised a respondent dentist of the type of conduct being alleged but made no mention that the alleged actor was the respondent's assistant); accord In re Bielec, 755 A.2d 1018, 1024-25 (D.C. 2000) (in a reciprocal discipline case, finding a lack of notice in the originating jurisdiction when the underlying complaint failed to mention any disciplinary code violation and any action on the lawyer's part that indicated he engaged in misconduct, which, as a practical matter, prevented the District of Columbia court from discerning the ethical canons, if any, the lawyer's conduct violated in that jurisdiction and thus determining which sanction would be appropriate); United States v. Shaygan, 652 F.3d 1297, 1319 (11th Cir. 2011) (stating that a lawyer charged with misconduct “is entitled to notice of the charge,” including the “precise rule, standard, or law” that the lawyer is alleged to have violated and how the lawyer violated it, and noting that lawyers “cannot be held responsible for the acts or omissions of others”).

51.   Colorado State Bd. of Med. Exam'rs v. Boyle, 924 P.2d 1113, 1118 (Colo. App. 1996).

52.   Eason v. Bd. of Cty. Comm'rs of Cty. of Boulder, 70 P.3d 600, 608 (Colo. App. 2003).

53.   Adams Cty. Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 696 (Colo. 1990); Eason, 70 P.3d at 608 (ruling that where the government feasibly can provide a predeprivation hearing before taking property, it generally must do so, regardless of the adequacy of a postdeprivation remedy).

54.   Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988).

55.   Respondent's Reply at 3.

56.   Barry v. Barchi, 443 U.S. 55, 66, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979). Justice Brennan, who concurred in part in Barchi, extended this due process analysis one step further to require not only a timely hearing but also a prompt disposition: “To be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a suspension can still be avoided—i.e., either before or immediately after suspension.” Id. at 73-74, 99 S.Ct. 2642.

57.   Mallen, 486 U.S. at 242, 108 S.Ct. 1780.

58.   See Barchi, 443 U.S. at 73-74, 99 S.Ct. 2642 (Brennan, J. concurring in part) (observing that an order suspending a horse trainer from racing horses, even if for just a short time, “threatens to inflict substantial and irreparable harm”); Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“First, the significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood.”); Mallen, 486 U.S. at 243, 108 S.Ct. 1780 (“Appellee's interest in continued employment is without doubt an important interest that ought not be interrupted without substantial justification. We have repeatedly recognized the severity of depriving someone of his or her livelihood.”); Gershenfeld v. Justices of The Supreme Court of Pennsylvania, 641 F. Supp. 1419, 1427 (E.D. Pa. 1986) (finding that each day a lawyer was suspended caused him “severe and irreparable” harm).

59.   Record at 149. Judge Cain also opined, “You got—the only thing you got going forward in this world is your reputation, and as lawyers your reputation follows you. You get a bad one, it's really hard to shake it.” Record at 149. See Eason, 70 P.3d at 607 (remarking that a property owner suffered “stigma” in continued use of the property, given governmental assertions of illegality).

60.   Record at 140.

61.   Record at 1028.

62.   See Gershenfeld, 641 F. Supp. at 1424 (“the state's interest in protecting its citizens from negligent or corrupt attorneys outweighs the attorney's private interest”).

63.   See Barchi, 443 U.S. at 66, 99 S.Ct. 2642 (“We also discern little or no state interest, and the State has suggested none, in an appreciable delay in going forward with a full hearing.”).

64.   See Gershenfeld at 1426, (concluding that Pennsylvania's temporary suspension of a lawyer violated due process, where the lawyer was suspended without a hearing on May 28, 1986; was later afforded a hearing, after which the presiding officer recommended the suspension be rescinded; and where the Pennsylvania court ultimately rescinded the suspension on August 15, 1986); cf. Mallen, 486 U.S. at 242-43, 108 S.Ct. 1780 (concluding that a delay of up to ninety days for a postsuspension decision did not per se violate a bank official's due process, where the individual had already been indicted on a federal crime).

65.   See C.R.C.P. 56(e); see also Ceconi v. Geosurveys, Inc. 682 P.2d 68, 70 (Colo. App. 1984) (finding that the trial court properly decided a summary judgment motion on the movant's uncontroverted facts).

66.   Resp. & Cross-Mot. at 6 ¶ 1.

67.   Resp. & Cross-Mot. at 6 ¶ 2.

68.   Resp. & Cross-Mot. at 6 ¶ 3.

69.   Resp. & Cross-Mot. at 6 ¶ 4.

70.   Resp. & Cross-Mot. at 7 ¶ 5.

71.   Resp. & Cross-Mot. at 7 ¶ 6.

72.   Resp. & Cross-Mot. at 7 ¶ 7.

73.   Resp. & Cross-Mot. at 7 ¶ 8.

74.   Resp. & Cross-Mot. at 7 ¶ 9.

75.   Resp. & Cross-Mot. at 7 ¶ 9.

76.   Resp. & Cross-Mot. at 7 ¶ 10.

77.   Resp. & Cross-Mot. at 7 ¶ 11.

78.   Resp. & Cross-Mot. at 7-8 ¶ 11.

79.   Resp. & Cross-Mot. at 8 ¶ 12.

80.   Resp. & Cross-Mot. at 8 ¶ 13.

81.   Resp. & Cross-Mot. at 8 ¶ 14.

82.   Resp. & Cross-Mot. at 8 ¶ 15. Respondent asserts in his reply that on January 31, 2025, after the filing of the record in this case, an administrative law judge vacated the cease-and-desist letter on the grounds that the Louisiana Insurance Commissioner lacked subject matter jurisdiction over MMA. Respondent's Reply at 4, n.2, Ex. A. The Court does not interpret Respondent's assertion as disputing the People's factual statement here.

83.   Resp. & Cross-Mot. at 8-9 ¶ 16.

84.   Resp. & Cross-Mot. at 9 ¶ 17.

85.   Resp. & Cross-Mot. at 9 ¶ 18.

86.   Resp. & Cross-Mot. at 9 ¶ 19.

87.   Resp. & Cross-Mot. at 9 ¶ 20.

88.   Resp. & Cross-Mot. at 9 ¶ 21.

89.   Resp. & Cross-Mot. at 9 ¶ 22.

90.   Resp. & Cross-Mot. at 9 ¶ 23.

91.   Resp. & Cross-Mot. at 9 ¶ 24.

92.   Resp. & Cross-Mot. at 9 ¶ 25.

93.   Resp. & Cross-Mot. at 10 ¶ 26.

94.   Resp. & Cross-Mot. at 10 ¶ 27; Compl. ¶ 10; Answer ¶ 10.

95.   Resp. & Cross-Mot. at 10 ¶ 28; Ex. 2.

96.   Resp. & Cross-Mot. at 10 ¶ 29.

BRYON M. LARGE, PRESIDING DISCIPLINARY JUDGE