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In re Van Buskirk6/1/1999
ORIGINAL PROCEEDING IN DISCIPLINE
EN BANC ATTORNEY SUSPENDED
Tom Alan Van Buskirk is the respondent in this lawyer discipline case. He was initially licensed to practice law in Colorado in 1988. He entered into a conditional admission with the Office of Disciplinary Counsel in which he consented to either a three-year suspension or disbarment. An inquiry panel of the grievance committee approved the conditional admission and recommended a three-year suspension. We accept the conditional admission and the panel's recommendation.
I. The Conditional Admission
The conditional admission addresses the allegations of misconduct contained in the formal complaint filed in GC 98B-46, as well as Count III of GC 97B-63. The remaining counts in GC 97B-63 were resolved by a conditional admission in People v. Van Buskirk, 962 P.2d 975 (Colo. 1998). We suspended Van Buskirk for six months with the requirement that he must petition for reinstatement. See id. at 977. The misconduct in that case involved Van Buskirk's convictions for hit and run, careless driving, disorderly conduct, and DUI. We noted that the conduct in Count III of GC 97B-63 was not included in the conditional admission because it was the subject of pending criminal charges. See id. at 976. Those criminal charges have now been resolved.
A. GC 98B-46
At about 1:30 a.m. on August 9, 1997, Van Buskirk climbed up the outside of a building and onto the second floor balcony of Sheila McCombs-Smith, his former fiancee, and knocked on the door. She asked him to meet her at the base of the stairway to the building. When he did they had a brief Discussion and then she struck him and threatened to call the police. Van Buskirk grabbed McCombs-Smith's cordless phone and threw it across the parking lot. When she ran back to her apartment, Van Buskirk followed her inside, uninvited. Kenneth Tilton, a friend of McCombs-Smith's, was inside. According to the conditional admission, Van Buskirk "and Mr. Tilton had contact, which resulted in Mr. Tilton falling onto a glass-top table, which broke." Van Buskirk then left the apartment at Tilton's request.
The Aurora police were unsuccessful in contacting Van Buskirk, but he eventually turned himself in. He was charged with first-degree burglary, a class 3 felony; third-degree asault, a class 1 misdemeanor; harassment, a class 3 misdemeanor; and violation of a bail bond condition, a class 6 felony. On November 2, 1998, Van Buskirk pleaded guilty to one count of second-degree burglary, a class 4 felony, and received a four-year deferred sentence. The other charges were dismissed.
Van Buskirk has stipulated that the foregoing conduct violated Colo. RPC 8.4(b) (engaging in conduct violating the criminal laws); 8.4(h) (engaging in conduct adversely reflecting on a lawyer's fitness to practice); as well as C.R.C.P. 241.6(5) (violating the criminal laws of a state or the United States).
B. Count III of GC 97B-63
The charges in Count III arose from a domestic disturbance involving McCombs-Smith. Van Buskirk broke into her apartment when she was out at about 2:00 a.m. on the morning of September 28, 1996. He looked at her telephone records, listened to messages on her answering machine, and made telephone calls to two people who had left messages. He then went to sleep in McCombs-Smith's bed. She returned sometime after 3:00 a.m. A neighbor heard a disturbance in McCombs-Smith's apartment and called the police. Van Buskirk was arrested and charged with first-degree burglary, wiretapping, third-degree assault, and criminal mischief. After a preliminary hearing, Van Buskirk was bound over on charges of first-degr
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