Hayden The Supreme Court of Colorado has disbarred Hayden attorney Mark Fischer from practicing law for eight years.
The court found that Fischer, in handling a divorce case, misappropriated funds belonging to his client and her husband. Effective April 5, his name will be stricken from the roll of attorneys licensed to practice law in Colorado.
"I violated rules, and I never disputed that," Fischer said. "When you violate rules, it is right and proper to suffer sanctions. I just think the consequences seem to be greater than the acts, but that is also not my call to make. I have to honor the system."
The case for his disbarment arose from the divorce of Gerald Hallman and Fran McKinney, in which Fischer represented McKinney. The main asset shared in the marriage was a piece of property near Hayden that had a mobile home on it.
As part of the couple's legal separation agreement, McKinney agreed to sell the property and use the proceeds to pay debts the couple shared, as well as pay Hallman $10,000, according to the case, People v. Fischer.
When the property was sold, Hallman's attorney said it was understood that Fischer would pay $10,000 to Hallman out of the proceeds held in Fischer's account.
Fischer did not pay Hallman and in a letter to Hallman's attorney, Fischer claimed McKinney instructed him not to.
"Ms. McKinney had to discount the property by at least $5,000 because of the inadequate and unapproved sewer system," Fischer wrote in the letter. He said he was not sure McKinney wanted him to pay Hallman the other $5,000 out of a second deed of trust.
Fischer claimed to have acted under the direction and for the benefit of his client; however, he did not seek the court's direction in changing the payoff from what was mandated in the separation agreement, the state Supreme Court said in People v. Fischer.
Dispersing funds against a court-ordered settlement agreement is a violation of the law.
"Where Mark got confused is one of our rules of ethics says lawyers represent the interests of their clients," said Ralph A. Cantafio, Fischer's attorney. "And when Mark was instructed by his client on how to disperse, he thought, 'I'm acting upon my client's instruction.'
"What Mark should have done differently was he should have filed a motion with the court to amend the separation agreement or filed a motion saying 'I don't know how to disperse it.'"
Hallman learned the money was not being distributed in accordance with the separation agreement. He filed an action with the Supreme Court Disciplinary Council, wanting the matter investigated, Cantafio said.
"Under our laws of ethics, if you misappropriate trust fund monies for the benefit of yourself, the presumed sanction is disbarment," Cantafio said.
"I had no intention of violating a court order," Fischer said. "I was trying to help Ms. McKinney."
The Colorado Supreme Court could have suspended Fischer from practice instead of disbarring him, which would have kept him from practicing for three years, Cantafio said.
If Fischer chooses to be reinstated, it will require him to petition the Supreme Court and retake the Colorado Bar Exam.
Fischer has practiced law for more than 25 years and is appealing the case.
He has now completely paid off all financial terms and conditions in the separation agreement. However the payments were made after the filing of the request for investigation and Fischer faced the threat of a lawsuit, the state Supreme Court said.
"Under the circumstances, little weight is accorded Fischer's payment of restitution," reads People v. Fischer. "Fischer was cooperative in these disciplinary proceedings. Considerable evidence was presented of Fischer's excellent reputation in the community."
West Routt Fire Chief Bryan Rickman was one of the several witnesses who testified on behalf of Fischer. Cantafio also supported Fischer. "I consider Mark one of my best friends," Cantafio said. "I would still trust him on a handshake."
"There's some divine wisdom in this," Fischer said. "You have to trust that what the court says will be best for my family and me. I have no bitterness or anger toward anyone involved in the system. I honor this system, and I believe I acted honorably within this system."
--To reach Nick Foster call 871-4204 or