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In re Kearns12/20/1999
ORIGINAL PROCEEDING IN DISCIPLINE
EN BANC
PUBLIC CENSURE
The respondent in this attorney regulation case, Jerry Thomas Kearns, was convicted of vehicular assault, a class 4 felony, and two counts of driving under the influence of alcohol. The District Court for the City and County of Denver sentenced Kearns to three years' confinement in the Colorado Department of Corrections (DOC). A hearing panel of the supreme court grievance committee approved the findings and recommendation of a hearing board that Kearns be publicly censured. The complainant asserts that a public censure is too lenient given the seriousness of Kearns's criminal convictions. Although we agree that Kearns's misconduct was very serious, we conclude that the significant mitigating factors that are present in this case make a public censure appropriate.
I.
Jerry Thomas Kearns was admitted to practice law in Colorado in 1991. The formal complaint in this case charged Kearns with violating C.R.C.P.241.6(5), 12 C.R.S. (1997) (violating a criminal law) (now C.R.C.P.251.5(b)), and Colo. RPC 8.4(b) (committing a criminal act that adversely reflects on the lawyer's fitness to practice). Prior to the hearing, Kearns filed a motion to continue the hearing until the court of appeals decided his appeal of the criminal convictions involved in this case. That motion was denied. The parties stipulated to the admission of certain exhibits, including a transcript of Kearns's criminal trial. They also stipulated that, if he were called to testify, Kearns would assert his Fifth Amendment privilege not to testify. See C.R.C.P.241.14(d), 12 C.R.S. (1997) (providing that the respondent in a lawyer discipline proceeding may not be required to testify if to do so would violate the respondent's constitutional privilege against self-incrimination) (now C.R.C.P.251.18(d)). After considering the exhibits and the testimony of the victim, Paul Donovan, the hearing board made the following findings by clear and convincing evidence.
On September 10, 1997, Kearns was convicted of vehicular assault, a class 4 felony, see §18-3-205(1)(b), (c), 6 C.R.S. (1999), driving under the influence of alcohol, see §42-4-1301(1)(a), 11 C.R.S. (1999), and driving under the influence of alcohol (blood alcohol content of 0.10 or more), see §42-2-1301(2)(a), 11 C.R.S. (1999).
Kearns's convictions arose out a motor vehicle accident involving the truck he was driving, and a motorcycle driven by Paul Donovan. In the early morning hours of September 14, 1996, Kearns failed to stop at a stop sign at an intersection in the City and County of Denver. He struck Donovan's motorcycle, causing Donovan serious life-threatening injuries. Donovan sustained a severe head injury, a broken leg, a broken thumb, and three broken ribs. Because of excessive bleeding, Donovan's spleen had to be removed surgically. Donovan was in a coma for about two months, he suffers from a permanent speech impediment, and it is likely that he will never work at his former employment again.
After the accident, Kearns called 911 to report it. He volunteered to the police officers on the scene that he was the driver of the truck that struck the motorcycle, and he expressed concern for Donovan. Kearns was arrested for suspicion of driving under the influence . A blood test revealed that his blood alcohol content was 0.161 grams of alcohol per 100 milliliters of blood. Kearns self-reported the incident to the office of disciplinary counsel and has cooperated in these proceedings. He was insured at the time of the accident.
Following his convictions for vehicular assault and DUI, the court sentenced Kearns to three year
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