Disbarment ends career of Aspen lawyer McFlynn

Tim McFlynn deserves a lot of credit for a lot of things we take for granted in Pitkin County.He fought successfully, in the face of big private money, to keep public access to the pristine Hunter Creek Valley near Aspen.He convinced Pitkin County voters that it was a good idea to tax themselves to set aside open space and trails.He helped carve out a compromise over what to do with the city of Aspen’s property at Cozy Point.And in the last two years he’s founded two public interest legal organizations, Roaring Fork Legal Services and Public Counsel of the Rockies.But none of it mattered yesterday, when the Colorado Supreme Court disbarred the local attorney from practicing law for the next eight years.Beginning Jan. 2, McFlynn will no longer be licensed to practice law in the state of Colorado. The disbarment effectively ends his 33-year career as a practicing attorney.McFlynn was disbarred after admitting he borrowed money from a bank account set up to hold money that belongs to clients of McFlynn, Pickett & Whitsitt.The COLTAF account, as it is known, is used by law firms to hold retainers, or money that may be part of a real estate transaction that the firm is negotiating. The account is also used for settlements that have yet to be passed on to a client. The money in the account belongs to clients, not attorneys.Nancy L. Cohen, deputy counsel at the Supreme Court’s Office of Attorney Regulation, said it doesn’t really matter which account McFlynn borrowed the money from. He would be in just as much trouble if he had taken it from his firm’s operating account.What got McFlynn disbarred, she said, is his “knowing conversion” of someone else’s money into his own control without their permission. The state has a zero-tolerance policy when it comes to attorneys who commit such an offense.”There have been lawyers who had great reputations, who no doubt served their clients well, who have nevertheless been disbarred for a knowing conversion,” Cohen said. An admission of misconduct McFlynn’s disbarment has been in the works since last January, when he contacted the Office of Attorney Regulation to admit his wrongdoing.After meeting with Cohen and one other attorney in Denver last March, he realized the magnitude of his error, that his career as a litigator was over.”I walked out into a bright, sunny afternoon in LoDo, feeling numb all over,” he said.In the months that followed, McFlynn says he began winding down his practice and negotiating the terms of his demise with Cohen. The firm disbanded. McFlynn eventually agreed to sign a conditional admission of misconduct.That document, released by Supreme Court Judge Roger Keithley’s office yesterday, details the attorney’s offenses.On May 20, 1999, McFlynn circulated a memo to Timothy Whitsitt, Martha Pickett and other attorneys in the firm, asking them to review their clients’ ledgers in an attempt to account for excess funds in the COLTAF account.By early July, the firm’s attorneys had finished their reviews, and it became apparent there was a surplus of $5,106.87 that couldn’t be accounted for. There were also funds under client names in the COLTAF account that belonged to the firm, but had yet to be transferred to its operating account.Later that month, according to the admission, McFlynn wrote four separate checks: Three made payable to actual clients of the firm, and one to a fictional client. “The respondent endorsed each check with the payee’s name, signed the checks over to himself, and then deposited each check into his personal checking account,” it reads.The first check was payable to Paul Allen in the amount of $3,574.50, the second to Troutward Bound for $206.19, the third to Michael Landreth for $600, and the fourth to Walsh Environmental for $5,106.87.The admission points out that McFlynn, Whitsitt & Pickett had no client known as Walsh Environmental. “Respondent placed the name Walsh Environmental and referenced the Lenado Project on the check so as to avoid having to place his own name as the payee on the check.” The $5,106.87 that McFlynn paid himself using that name equals the “surplus” he believed was in the COLTAF account.The other three checks McFlynn wrote involved the firm’s clients. But none had given him or anyone else at the firm the power of attorney necessary to endorse checks made payable in their names.The checks made out to Troutward Bound and Michael Landreth involved unpaid fees that had yet to be transferred from the COLTAF account to the firm’s operating account.But the check drawn under Paul Allen’s name “turned out to consist of an undisbursed real estate transfer tax payable in early 1995 to the Town of Snowmass Village and $329.50 payable to Mr. Allen’s accountant,” reads McFlynn’s admission. “Accordingly, the respondent knowingly converted $3,754.50 in Allen funds that were owed but not yet paid to third parties.”McFlynn also admitted to borrowing $16,000 from a client, with permission, in November 1999. While the loan was on the up-and-up, it turned out to be $1,015 more than the client had available in the COLTAF account to lend, which means McFlynn was again borrowing money without permission, albeit negligently.McFlynn told The Aspen Times he didn’t think he was harming anyone by loaning himself the money, which he paid back in full in late 1999, shortly after a $50,000 loan from a friend came through.”I believed at the time of each withdrawal that only `surplus’ or firm (not client) funds were being borrowed as a personal accommodation to my business, to be repaid upon receipt of a committed loan,” McFlynn wrote in an explanatory statement of mitigation that accompanies his admission of misconduct.McFlynn said the money was used mostly to pay the bills and stay in business while he was in the midst of forming Public Counsel of the Rockies, a legal nonprofit that takes up various legal causes deemed to be of community-wide importance.”I had sold my house in June 1999 to erase my debt and start Public Counsel of the Rockies,” he said. “But there was still one loan that I could not service, if we were going to put the time and money needed to get Public Counsel up and running. Once I got the commitment for the $50,000 loan, I borrowed the money from the firm’s account.”It’s a mistake he says he would not make again. But given that his career is much closer to its end than to its beginning, it appears he won’t have the chance to make it again. McFlynn says he does not plan to seek reinstatement of his license.After walking out of that March 2000 meeting feeling all numb, McFlynn recalls, “I got into my car and went to the hospital to visit Nikya Grant, the young snowboarder who was paralyzed from his neck down last winter, and everything was put back into perspective.”