Duty Calls

Membership has its privileges -- but for this sheriff's deputy, a lawyer wasn't one of them.

In May 1998, Chris Clendening, who by then had more than twenty years with the Denver Sheriff's Department under his belt, was assigned to extradite a prisoner from Detroit. A second deputy sheriff collected an advance check to cover the trip; he cashed it and turned over the entire amount, $3,490, to Clendening, who was handling the finances. And then the two headed off to get their man.

But rather than catch the planned round-trip flight from Denver to Detroit, the pair flew to Chicago, where they took in a Bulls game, rented a car and then drove to Detroit to collect the prisoner. Their altered travel plans "saved the city $720 in airfare, which should have gone back to the city," wrote a Denver Police Department sergeant who later investigated the case, "but it did not." Instead, most of those savings were eaten up by the creative receipts Clendening turned in for the trip -- a nonexistent meal at El Tortilla Restaurant, another fictitious snack at Le Peep -- "a total amount of $458.36 of public monies," the sergeant reported, "which were converted to personal and unauthorized use by Deputy Sheriff Chris Clendening...on duty at the time of the incident."

Needless to say, Clendening was not rewarded for saving the city almost $250 off the original cost of his business travel. Instead, he wound up charged with a felony.

But his long, strange trip was only beginning.

Since May 1997, shortly after the Denver Sheriff's Union affiliated itself with the Colorado Police Protective Association, Clendening had taken advantage of a particular CPPA member service: the $100,000 Legal Defense 2000 benefit plan. In exchange for $35 in dues every month (an automatic payroll deduction, $15 of which went to the sheriff's union, another $5 to the CPPA), Clendening was promised a "$100,000 duty related civil or criminal defense plan" from the law firm of Bruno, Bruno & Colin. The firm collected the remaining dues, just under $15 a month, from Clendening and countless others from the CPPA's 5,000-plus membership.

According to the official brochure for the Bruno, Bruno & Colin option, "services are for duty related incidents incurring within the scope of your employment, provided that you are a plan member in good standing at the time of the incident giving rise to the civil suit, criminal or traffic charge or disciplinary action for which representation is sought." In the case of duty-related criminal incidents, the firm provided "defense through the trial court stage, cap of $100,000."

But Clendening never got close to a courtroom with any Bruno lawyer -- not then, anyway. In fact, when he called Bruno, Bruno & Colin -- which advertised a 24-hour access line for LD2000 subscribers -- the firm said the plan didn't cover his situation. It would, however, be happy to represent him for a $15,000 retainer -- with another $10,000 required if the charges went to trial.

Instead, Clendening found another attorney, and on November 9, 1999, he pleaded guilty to a misdemeanor charge of falsely completing an official expense report; he was sentenced to one year of unsupervised probation and was allowed to keep his job with no black mark on his record. Even among the penny-ante crimes now regularly spilling out of the Denver Sheriff's Department -- a black market in cigarettes at the Denver County Jail, pilfering from cars in the city's vehicle impound lot -- Clendening's infraction seems like very small change.

Certainly it was the sort of case that the high-powered firm of Bruno, Bruno & Colin could take care of before lunch. After all, these lawyers have been representing cops for decades, arguing some of the town's toughest cases, and their experience was touted in the November 1996 representation agreement between the CPPA and Bruno, Bruno & Colin, which drafted the very document in which it praised itself as having "developed a particular expertise and knowledge related to the representation of public safety employees in actions arising out of and within the course and scope of their employment."

Actions like those of Denver police officer Joseph Bini, for example, who's been charged with perjury in connection with sworn statements he made to obtain a search warrant for a house at 3738 High Street -- the house where Ismael Mena lived, and the house where Mena died last September, shot to death by police in a no-knock raid on what turned out to be the wrong address. David Bruno of Bruno, Bruno & Colin is representing Bini, who's slated to go to trial early in October.

The law firm has a different arrangement with the Denver Police Protective Association, of which Bini is a member, than it did with the Denver Sheriff's Union. When a Denver officer needs legal representation, he approaches the DPPA board, which decides if the alleged conduct falls within the "scope of employment"; if so, the cop is entitled to legal representation. The CPPA agreement left the decision of whether to represent a member up to Bruno, Bruno & Colin -- making the CPPA just a middleman and the member himself the client. Refused representation that he'd paid for, Clendening complained to the sheriff's union, which complained to the CPPA, which talked with Bruno, Bruno & Colin. "Given the nature of your concerns," one CPPA official wrote Lenny Ortiz, union treasurer, "I believe that most can be resolved by a thorough examination of the LD2000 plan document."

But no matter how often you examine that January 1997 document, it simply serves up more of the same bland legalese. Here's Article 3, 3.4: Defense of Criminal Actions. "A participant shall be entitled to legal representation for duty-related criminal actions initiated against the member for incidents arising within the course and scope of the member's employment through the trial court's stage to a cap of $100,000."

Armed with that, Clendening hired another lawyer, Scott Jurdem -- this time to file suit against the Denver Sheriff's Union and the CPPA for breach of contract. Sheriff's union attorneys Ron Podboy and Mike O'Malley got busy researching the contract and wound up suing Bruno, Bruno & Colin, and the law firm was soon added to the list of defendants in Clendening's case.

And so last week, Clendening finally got his time in a Denver courtroom with a Bruno, Bruno & Colin attorney -- even if David Bruno was on the other side.

Initially, explains Jurdem, he saw this as a bad-faith insurance case, analogous to a situation in which a driver pays benefits to an insurance company that then refuses to pay up after he's hurt in an accident. But an earlier judge didn't buy that one. So in court, Jurdem argued that under the Colorado Consumer Protection Act, the law firm and the CPPA had engaged in deceptive trade practices -- essentially a bait-and-switch. The jury didn't buy that, either.

But jurors did find that both the CPPA and Bruno, Bruno & Colin had breached the contract obligating them to provide legal representation to Clendening, and they awarded him just under $11,000 -- the amount he'd had to pay a lawyer to defend him on those "duty related criminal charges." The Denver Sheriff's Union was exonerated, having lived up to its promises -- including the promise to provide a lawyer.

The problem came when the law firm decided not to do its duty -- after having collected a thousand times the amount the deputy had confessed to stealing.

Bruno's attorneys had argued that stealing was not part of the duty of a law enforcement officer. But no crime is considered part of an officer's duty, Jurdem countered; if the provisions of LD2000 were construed that way, Bruno, Bruno & Colin would never represent anyone.

And in fact, the firm has never defended anyone under article 3, 3.4, the criminal defense provision. The firm says that's because Jurdem's client was the only one to ever ask for representation.

But Bruno, Bruno & Colin has certainly defended cops who've been charged with making mistakes -- criminal mistakes -- on the job. David Bruno's in the process of defending one right now, as his attorney pointed out in closing arguments last Thursday. Clendening's duty-related crime cost the city a couple hundred bucks; Joe Bini's cost the city a whopping settlement -- and Ismael Mena his life.

The verdict in the Clendening case is likely to inspire appeals; with the In Re: Sather decision released in May, the Colorado Supreme Court indicated it may take a much harder line with attorneys regarding their professional responsibilities, particularly regarding fee agreements. But that's the high court. In the court of public opinion, the verdict's already in.

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