Vol. 31, No. 4
From the Courts
Matters Resulting In Diversion and Private Admonition
Colorado Supreme Court Attorney Regulation Counsel
Editor’s Note: Articles describing diversion agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These articles are contributed by the Colorado Supreme Court Office of Regulation Counsel.
Diversion and Private
Background Information Regarding Diversion
Diversion is an alternative to discipline. See C.R.C.P. 251.13. Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel ("Regulation Counsel"), the Attorney Regulation Committee ("ARC"), the Presiding Disciplinary Judge ("PDJ"), the hearing board, or the Supreme Court may offer diversion as an alternative to discipline. For example, Regulation Counsel can offer a Diversion Agreement when the complaint is at the central intake level in the Office of Attorney Regulation Counsel. Thereafter, ARC or some other entity must approve the agreement.
From November 20, 2001, to February 20, 2002, at the intake stage, Regulation Counsel entered into 10 Diversion Agreements. From December 14, 2001, through February 9, 2002, ARC approved 9 Diversion Agreements involving 9 separate requests for investigation. The PDJ approved 1 Diversion Agreement during this time frame.
Regulation Counsel reviews the following factors to determine if diversion is appropriate: (1) there is little likelihood that the attorney will harm the public during the period of participation; (2) Regulation Counsel can adequately supervise the conditions of diversion; and (3) the attorney is likely to benefit by participation in the program.
Regulation Counsel will consider diversion only if the presumptive range of discipline in the particular matter is likely to result in a public censure or less. However, if the attorney has been publicly disciplined in the last three years, the matter generally will not be diverted under the rule. See C.R.C.P. 251.13(b). Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion. See C.R.C.P. 251.13(b).
The purpose of a Diversion Agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. Furthermore, the Diversion Agreement will also address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reason for such conduct was the result of poor office management, then one of the conditions of diversion may be a law office management audit and/ or practice monitor. The time period for a Diversion Agreement is generally no less than one year or greater than two years.
Types of Misconduct
The type of misconduct dictates the conditions of the Diversion Agreement. Although each Diversion Agreement is factually unique and different from other agreements, many times the requirements are similar. Generally, the attorney is required to attend Ethics School that is conducted by attorneys from the Office of Attorney Regulation Counsel. An attorney may also be required to fulfill any of the following conditions: law office audit; practice monitor; financial audit; restitution; payment of costs; mental health evaluation and treatment; attend CLE courses; and any other conditions that may be appropriate for the particular type of misconduct. Note: The terms of a Diversion Agreement may not be detailed in this summary if the terms are generally included within Diversion Agreements.
After the attorney successfully completes the requirements of the Diversion Agreement, Regulation Counsel will close its file, and the matter will be expunged pursuant to C.R.C.P. 251.33(d). If Regulation Counsel has reason to believe that the attorney has breached the Diversion Agreement, then Regulation Counsel must follow the steps provided in C.R.C.P 251.13 before an agreement can be revoked.
The types of misconduct resulting in diversion for the time period described above, generally involve the following: an attorney’s neglect of a matter and/or failure to communicate, in violation of Colo. RPC 1.3 and Colo. RPC 1.4, where the client is not harmed or restitution is paid to redress the harm or malpractice insurance exits; violation of a criminal statute, in violation of Colo. RPC 8.4(b); conduct involving dishonesty, misrepresentation, fraud, or deceit, in violation of Colo. RPC 8.4(c); conduct that was prejudicial to the administration of justice, in violation of Colo. RPC 8.4(d); and contacting a represented party, in violation of Colo. RPC 4.2.
Some cases resulted from personal problems the attorney was experiencing at the time of the misconduct. In those situations, the Diversion Agreements may include a requirement for a mental health evaluation and, if necessary, counseling to address the underlying problems of depression, alcoholism, or other mental health issues that may be affecting the attorney’s ability to practice law.
Random Samples of Diversion
— A motorist telephoned 911 and reported the respondent’s vehicle was weaving and following too closely. The motorist claimed the respondent almost rear-ended his car twice. While stopped at an intersection, the motorist removed the respondent’s car keys. The respondent then left his car and fled the scene on foot. The respondent maintains he thought the motorist intended to harm him. After being apprehended by a police officer, the respondent was turned over to a sheriff’s deputy who responded to the 911 call. The respondent indicated he was unable to perform roadside sobriety tests due to physical ailments and after-effects of medical tests he had undergone earlier that day. The respondent was arrested on charges of driving while under the influence of alcohol, weaving, and following too closely. During administration of a breath test for alcohol, the deputy claimed respondent blew out the side of his mouth and covered the mouthpiece with his thumb, which registered as an invalid sample. Rather than administer another test later, the deputy recorded the test as a refusal by respondent. Due to concerns about respondent’s medical condition, the attending nurse requested another breath test be administered for medical purposes. That test reported respondent’s blood alcohol was .180. The respondent maintains that the effect of any alcohol he consumed on the date of his arrest was exaggerated by CT scan dye administered during his medical testing earlier that day. The respondent ultimately prevailed on the breath test issue at the Denver Motor Vehicle hearing. The respondent pled guilty to driving while ability impaired by alcohol and driving a defective vehicle. This is the respondent’s first alcohol-related offense. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was arrested and charged with lane usage violation, driving while ability impaired, driving under the influence and DUI per se. The respondent entered a guilty plea and was sentenced for driving while ability impaired. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent represented a client in a divorce. The client had the spouse’s medical records that tended to show that the spouse was not disabled. The Medical Records Act, C.R.S. § 18-4-412, covered the medical records. The client gave the medical records to the respondent and he used them to justify asking the court for a medical examination of the spouse. The spouse had not consented to use of the medical records by anyone. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was observed by a police officer making a wide turn and accelerating above the posted speed limit. The officer stopped the respondent, questioned whether he had been drinking, and requested the respondent perform roadside sobriety tests. The officer found respondent’s performance unsatisfactory and arrested him on suspicion of driving while under the influence of alcohol. A blood test administered shortly thereafter measured respondent’s blood alcohol at 0.179. The respondent pled guilty to driving while ability impaired by alcohol. This is the respondent’s second alcohol-related offense. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
Conduct Involving Dishonesty, Fraud,
Deceit, or Misrepresentation
— The respondent represented a client in a felony drug case, but was not formally retained to represent the client in civil forfeiture proceedings brought against his client based on the same circumstances as the criminal charges. In other matters, however, the respondent represented clients in both the criminal proceedings and in the civil forfeiture proceedings, and had entered into agreements with prosecutors pursuant to which answers in the civil forfeiture actions would not be required until after the criminal matters had been resolved. In this particular client’s civil forfeiture action, a default judgment was entered against the client because he failed to file an answer. Subsequently, the respondent filed a motion to set aside the default judgment, contending that he represented the client in both his criminal and civil forfeiture actions, and that this was one of the cases in which he had reached an agreement with prosecutors that an answer would not be required until the criminal matter was resolved. In response, prosecutors denied that the respondent had ever entered an appearance on behalf of this particular client or that he had ever reached any agreement with the district attorney’s office in regard to this case. After reviewing the response, the respondent admitted to the prosecuting attorney that he had been mistaken in his belief that he had represented this client in the civil forfeiture matter prior to the
entry of default. The prosecutor advised the court of the conversation in an amended response and the court denied the motion to set aside the default judgment. The untrue allegations made by the respondent to the court in the motion to set aside the default judgment resulted from his failure to exercise reasonable care in reviewing his own file and records. The rule implicated is Colo. RPC 8.4(c).
— The respondent was retained in connection with a dissolution of marriage matter. The respondent entered into a written fee agreement that included language indicating that the retainer paid to the respondent by the client was "non-refundable." The respondent was negligent in representing that her retainer was non-refundable, as all advance retainers are refundable if not earned through the subsequent work of the lawyer. The respondent’s conduct did not result in any harm, as the entire retainer was earned through the work performed. The rules implicated are Colo. RPC 8.4(c) and Colo. RPC 8.4(h).
Conduct Prejudicial to the
Administration of Justice
— The respondent briefly represented the complaining witness in an employment matter. A fee dispute later arose. In settling that dispute, the respondent included language providing that the ex-client would take no further action against the respondent, including the grievance matter. The rule implicated is Colo. RPC 8.4(d).
— The respondent represented an ad hoc organization in a proceeding before a commission. In connection with the representation, the respondent retained the services of an engineer to serve as an expert. The expert sent proposals for expert services to the respondent and the respondent authorized the expert to perform work for an amount not to exceed $4,000. The expert billed the respondent $3,895.99 for this work. Subsequently, the expert submitted a proposal for additional work concerning the same manner. The respondent authorized the additional work. The proposal for the additional work was not submitted to the clients. The expert performed the additional services and billed the respondent an amount that was less than the amount approved pursuant to the second proposal. The total of the invoices submitted by the expert to the respondent was more than $13,000. After not receiving any payment from the respondent for more than a year, the expert sent copies of his invoices to members of the ad hoc client group directly. Members of the group informed the expert that they had not seen his invoices previously and that all funds raised by the organization had already been paid out to the respondent for his fees. Prior to entering into the diversion agreement, the respondent had not paid the expert anything for his services for which he originally submitted invoices in the summer of 1998. As part of the conditions of the diversion agreement, the respondent is required to pay the full amount of the expert’s invoice. The rules implicated are Colo. RPC 8.4(d) and Colo. RPC 8.4(h).
Communication With Person
Represented By Counsel
— The respondent wrote and mailed a letter to opposing counsel’s client. Prior to mailing that letter, the respondent had negotiated a stipulation with opposing counsel on other issues in the case, wrote letters to him and spoke by telephone with him, and received a signed stipulation from him. The rule implicated is Colo. RPC 4.2.
Diligence and/or Failure to Communicate
— The respondent represented a client in a dissolution of marriage matter. At the conclusion of the permanent orders hearing, the Judge instructed the respondent to prepare a written order on the matter within 30 days. The respondent failed to do so. The opposing party discovered that no written order had been filed and contacted the respondent. The opposing party claims the respondent stated on multiple occasions that he would check into the problem and ensure that the written order got filed. The respondent failed to file any written order with the court until after contact by the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 1.3, Colo. RPC 3.2, Colo. RPC 3.4(c), and Colo. RPC 8.4(d).
— The respondent represented a client in a civil dispute involving a partnership. The case was filed and set for trial. Opposing counsel unilaterally prepared a proposed trial management order and sent it to the respondent. The respondent made some changes to the proposed trial management order, and returned it to opposing counsel. The respondent also provided an identification of his client’s proposed witnesses and exhibits for input into the trial management order. Because he did not receive the proposed document until late in the afternoon, and had not been able to respond to it prior to the end of normal business hours, respondent checked with opposing counsel the following morning to verify that office’s receipt of the input. The respondent was informed that opposing counsel had filed the original trial management order with the court without waiting for the respondent’s modifications. There was subsequent communications between the respondent and opposing counsel concerning the filing of an amended trial management order incorporating the respondent’s additions, specifically the witness disclosures, and respondent was informed opposing counsel would incorporate respondent’s modifications and file an amended proposed trial management order. Opposing counsel filed the amended trial management order. However, opposing counsel failed to include the various changes and witness disclosures provided by the respondent in the amended filing. Other than a phone call to opposing counsel to verify that the amended trial management order had been filed, during which call respondent was assured that it had been, respondent made no further efforts to assure that the appropriate disclosures had been made or correctly filed with the court. According to the respondent, the court did not inform the respondent that the disclosures, which were referenced as being attached within the document, did not appear in the court’s file. At the trial, the respondent’s client’s witnesses were not allowed to testify due to non-disclosure on the filed trial management order. The rule implicated is Colo. RPC 1.3.
— The respondent was retained by a client to assist with the disposition of his brother’s estate. The client claims the respondent told him the work would only take a few weeks. Three weeks later, the client began calling the respondent’s office and leaving messages requesting information and a return call from the respondent. The respondent did not return the client’s calls and the client was repeatedly told by the respondent’s secretary that the matter was proceeding normally and that the client should just wait. The client called the probate court and learned nothing had been filed in his brother’s case. The client then phoned the respondent’s office and informed the respondent’s secretary about the information given by the probate court. That day, the respondent called the client and apologized for how the matter had been handled. The client informed the respondent that he intended to hire another attorney to take over his case the next day. Within two days, the respondent’s secretary called the client to inform him that his paperwork was ready to be signed. The client, however, had already retained new counsel. Subsequent counsel completed the client’s matter in less than three weeks at a charge for one hour of work plus the court filing fee. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— The respondent was hired to represent a client with regard to a modification of a child support award. The respondent provided services, and the matter resulted in the client successfully obtaining a modification to the child support award. The client then went to the appropriate Social Services agency to have them assume responsibility for collection of the child support from the father of the child. The client filled out the appropriate paperwork in order to accomplish this goal. The Social Services agency advised the client that the respondent needed to withdraw in order for the collection to take place through their agency. Some time in May 2001, the client tried to contact the respondent, but was unable to reach her. The client left several messages for the respondent advising that she needed the respondent to withdraw from the case. The client did not receive any response from the respondent, and the respondent did not withdraw from the case. The Social Services agency advised the client that if the respondent did not withdraw from her case on or before a certain date, they would close their file. The client again left messages for the respondent but received no response. The client attempted to notify the respondent of the reason she needed her to withdraw and the deadline imposed by Social Services by sending her a letter via certified mail. The respondent did not receive the letter, and the letter was returned to the client. Social Services advised the client that they were closing their file due to the fact that the respondent was still the client’s attorney of record. The respondent did not communicate with the client for a period of approximately three months, and neglected to file the motion to withdraw for the same period of time, despite specific direction from the client to do so. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), and Colo. RPC 1.16(a).
— The respondent was employed to handle a personal injury matter resulting from an automobile accident. The respondent realized that the statute of limitations had expired, without a civil complaint being filed or the matter being settled. The respondent informed the client of the running statute of limitations. Thereafter, with the client’s consent, the respondent accomplished the settlement of the personal injury case for the amount offered by the defendant prior to the expiration of the statue of limitations. The respondent waived all of his attorney fees and costs. The rule implicated is Colo. RPC 1.3.
— The respondent was retained to collect a child support judgment. The respondent was referred to the complainant through investigators complainant had found on the Internet. The respondent neglected the matter, blaming the investigators for the delay. However, the respondent took no action to collect the judgment or gather information that might be used in collecting the judgment by following Colorado Rules of Civil Procedure, Rule 69. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.1.
— The respondent was retained to represent a client in a personal injury matter resulting from an auto accident in another state. The respondent had various communications with the insurance companies on behalf of the client. Various adjusters were assigned to the client’s case, and after a certain date, only limited communication by the respondent was made with the insurance companies or the client. The respondent has indicated there were no discussions with the client specifically informing the client that the personal injury action would need to be filed in the state where the accident occurred, or that the respondent would need permission from the other state’s courts to represent the client in that forum. Further, the respondent learned that he had missed the filing deadline for this type of case, pursuant to the other state’s statute of limitations for automobile accidents. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.2, and Colo. RPC 1.3.
— The respondent represented a client in a probation revocation matter and the court scheduled a hearing in the matter. The respondent subsequently learned that the bank, due to insufficient funds in the account, did not honor the check that his client gave him to pay the retainer in the case. Shortly before the probation revocation hearing, the respondent filed a motion to withdraw as attorney for the probationer. The respondent appeared for the probation revocation hearing because the court had not acted on the motion to withdraw. At the outset of the hearing, the respondent asked the court to allow him to withdraw, explaining that he was not prepared to proceed with the hearing, that he wanted to withdraw, and that he did not feel that he could provide "effective assistance of counsel based on many factors in [the] case." The court denied respondent’s request, telling him to "do [his] best." Thereafter, the court went forward with the probation revocation hearing, but respondent refused to participate on behalf of the client. When given the opportunity to cross-examine the prosecution witness at the hearing, the respondent advised the court that he was "not in a position to effectively cross-examine the witness." Upon further inquiry by the court, the respondent advised that he felt that he had a conflict of interest with his client, and thus could not proceed with the representation. The court expressed it’s concern about any conflict of interest in light of the testimony given by the prosecution witness, and encouraged respondent to act on behalf of his client. The respondent declined, instead telling the court that his client may have some questions and evidence that he would like to present. Despite numerous opportunities to take part in the hearing, the respondent failed to take any action to advocate on behalf of the client. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.16(c), and Colo. RPC 8.4(d).
— The respondent represented a client in a second-degree felony assault matter involving mandatory sentencing for crime of violence involving serious bodily injury. The prosecution offered to allow the client to plead to third-degree assault, a class one misdemeanor, in lieu of the felony charge. The respondent failed to advise his client that he could not receive probation if convicted of the second-degree assault charge and incorrectly advised the client that he was probation-eligible if convicted on the felony charge. Based on the respondent’s advice, the client elected to go forward with a jury trial, which resulted in a felony conviction. The client was immediately incarcerated for the mandatory five-year sentence. Subsequently, the client retained new counsel and was successful in having his conviction vacated based on ineffective assistance of counsel. During the time the respondent represented the client, he was suffering from severe depression, which affected his ability to function in the practice of law. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.4(b).
— The respondent represented a client in a bankruptcy filing. The respondent failed to explain to the client the ramifications of having approximately $2,000 in the bank account and cash on hand at the time of the bankruptcy filing. In addition, the respondent did not explain to the client the ramifications of having a vehicle that was unencumbered and had a value that was greater than the statutory exemption. He offered to withdraw from the representation, but the client declined the offer. The rule implicated is Colo. RPC 1.1.
Accounting Records Issues
— The respondent had two notifications made by his bank to the Office of Attorney Regulation Counsel about his trust account balance dipping below zero. The investigation revealed that he had commingled funds of his own with those of his client in his trust account. There was no conversion of client funds. The respondent quickly covered the overdrafts. The respondent did not keep adequate bookkeeping records for his trust account. The rules implicated are Colo. RPC 1.15(a) and Colo. RPC 1.15(g).
— The respondent represented a party in a civil rights action. While the action was pending, a chiropractor who had treated respondent’s client provided a lien to respondent claiming an interest in the settlement or judgment from the action. The respondent settled the action, but failed to pay the entire lien to the chiropractor, or to otherwise interplead the funds to resolve any disputed claims to them. One of the conditions of the diversion agreement is for the respondent to pay the balance of the lien to the chiropractor. The rule implicated is Colo. RPC 1.15(c).
Truthfulness in Statements to Others
— The respondent is an attorney whose license has been inactive since January 2000. The respondent currently remains on inactive status. In September 2001, the respondent contacted a potential opposing party, via telephone, on behalf of a couple, concerning a landlord/tenant dispute. The rules implicated are Colo. RPC 4.1, Colo. RPC 5.5, Colo. RPC 8.4(a), and Colo. RPC 8.4(c).
— The respondent wrote a letter to opposing counsel in a litigation matter, alleging that opposing counsel had been contacting witnesses who were represented by the respondent’s law firm. The respondent’s letter concluded: "If we learn that you have contacted any such witnesses regarding testifying in this trial, we will be filing a grievance with the Supreme Court of the State of Colorado as well as a motion for sanctions with the court." Thereafter, a member of opposing counsel’s law firm sent a letter to the respondent expressing concern about the threat, quoted above. In response, the respondent sent another letter to opposing counsel stating that both opposing counsel and the author of the letter acted at their peril. The rule implicated is Colo. RPC 4.5.
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