|The Colorado Lawyer|
Vol. 31, No. 7 [Page 165]
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From the Courts
Matters Resulting In Diversion and Private Admonition
Colorado Supreme Court Office of 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 February 20, 2002, to May 17, 2002, at the intake stage, Regulation Counsel entered into 17 Diversion Agreements. From March 9, 2002, through May 11, 2002, ARC approved 28 Diversion Agreements involving 37 separate requests for investigation. The PDJ approved one (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 also may 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 threatening prosecution, in violation of Colo. RPC 4.5.
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
— The respondent was arrested and charged with driving under the influence of alcohol and careless driving. The respondent had been driving on a country road when she went off the side of the road and struck a metal post with her vehicle. After striking the metal post, the vehicle traveled approximately ninety feet, where it became stuck in a ditch alongside the road. When asked to take roadside field sobriety tests and a test to determine her blood alcohol concentration, the respondent refused. The respondent entered a plea of guilty to the careless driving charge, and pled guilty to the DUI in return for a deferred sentence on that charge. As part of her sentence, the court imposed conditions including the following: Respondent was placed on probation for a period of one year, ordered to perform seventy-five hours of useful public service, and ordered to attend twenty-four hours of Level II alcohol education counseling. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent entered a plea of guilty to a misdemeanor harassment charge and received a deferred judgment during a twenty-four-month period of probation. The respondent’s plea and conviction resulted from offensive voicemail messages the respondent left for a woman he met while they were both attending an alcohol treatment program. In a separate matter, the respondent, after being terminated from representation of a client in a workers’ compensation matter, failed to file a motion and notice of withdrawal. The rules implicated are Colo. RPC 8.4(b), C.R.C.P. 251.5(b), and Colo. RPC 1.16(a).
— The respondent went through security screening at an airport. Security personnel found a film canister containing marijuana in respondent’s pocket. The respondent was issued a summons and complaint charging him with possession of less than one ounce of marijuana, in violation of CRS § 18-18-406(1), a Class 2 petty offense. The plea of guilty was accepted and the respondent was assessed fines and costs in the amount of $118. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— Law enforcement officers contacted the respondent as he sat in a parked vehicle. The respondent was asked to exit the vehicle. As he exited the vehicle, the officers made the observation that the respondent stumbled, was very unsteady, and appeared to be intoxicated. The law enforcement officers determined that the respondent had crashed the vehicle through a construction barricade, which blocked access to the road on which the respondent’s vehicle was parked. The actual property damage was less than $150. That amount was paid to the barricade company by the respondent approximately twenty days after the accident. The respondent was cited for leaving the scene of an accident, failing to notify the police of an accident, reckless driving, and driving under the influence of alcohol. The respondent’s blood alcohol concentration ("BAC") was 0.318. The respondent pled guilty to driving under the influence of alcohol and the other charges were dismissed. The respondent was sentenced to serve 365 days in jail, all of the jail time suspended on the following conditions: supervised probation for a period of twenty-four months; completion of seventy-two (72) hours of useful public service; completion of a Level II alcohol education counseling; attendance of a Victim Impact Panel; continue therapy with a psychiatrist; and payment of costs associated with the criminal case. The respondent has completed all terms and conditions of his probation. The respondent self-reported this matter to the Office of Regulation Counsel, participated in eighteen months of voluntary therapy, submitted to an agreed-upon independent medical examination, participated in an outpatient relapse prevention program, and has taken regular voluntary breathalyzer tests. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was found by police in an adult movie theater, passed out, with his lower torso exposed and several liquor bottles around his feet. The respondent was arrested and charged with public indecency—lewd exposure. The respondent entered a guilty plea to disorderly conduct and was sentenced to six months’ probation, with conditions of random breath screens and alcohol therapy. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was involved in an accident wherein he rear-ended the vehicle in front of him. The police officer responding to the scene smelled the odor of an alcoholic beverage on the respondent’s person and in his vehicle. The respondent was asked to perform field sobriety tests, which he failed. Subsequently, the respondent provided a blood sample and his BAC was .121 within two hours of the time of the accident. The respondent was cited for driving while under the influence of alcohol and careless driving causing bodily injury. The respondent pled guilty to DWAI and careless driving resulting in injury. He was sentenced to a period of twenty-four months of probation, ninety-eight hours of useful public service, a $1,000 fine plus court costs, and was ordered to undergo an alcohol evaluation. An alcohol evaluation was conducted and resulted in a recommendation that the respondent complete twenty-four hours of Level II alcohol education counseling. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent’s vehicle was observed weaving on Colorado Highway 14, west of Interstate 25, by a Colorado State Patrol officer. The officer stopped the respondent and detected a strong odor of alcohol. The respondent agreed to attempt roadside sobriety maneuvers, but the officer found the respondent’s performance unsatisfactory. The officer then arrested the respondent on suspicion of driving under the influence of alcohol. The respondent voluntarily submitted to a breathalyzer test, which measured his alcohol level at 0.161. The respondent pled guilty to driving while ability impaired by alcohol. 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 stopped for rolling through a stop sign and failing to stop at a red light. The officer smelled the strong odor of an alcoholic beverage coming from the respondent’s person. The respondent was subsequently arrested for driving while under the influence of alcohol. A breath test was administered that revealed the respondent’s blood alcohol level was 0.151. The respondent was convicted of driving while ability impaired. He was sentenced to a period of probation from twelve to twenty-four months, a fine and court costs, public service, a period of electronic home monitoring, and was required to undergo an alcohol evaluation and follow the recommendations made by the evaluator. Based on the results of the evaluation, the respondent is required to undergo Level II alcohol education counseling and therapy, and is required to undergo random testing to ensure that he maintains sobriety while on probation. After being stopped for the DUI offense, the respondent voluntarily enrolled in and completed Level II alcohol education counseling and individual therapy with a licensed psychologist and certified addiction counselor. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was stopped for driving the wrong way down a one-way street. Upon making contact with the respondent, the officer who initiated the stop smelled the odor of an alcoholic beverage on the respondent’s breath, and observed other indications of intoxication. The respondent was asked to complete field sobriety tests. He did, and the officer believed the respondent’s performance on those tests was poor. After being advised of the express consent advisement, the respondent refused to submit to chemical testing of his breath or blood. The respondent was charged with driving a motor vehicle while under the influence of alcohol, and driving the wrong way on a one-way street. The respondent subsequently pled guilty to an amended charge of driving while ability impaired. The respondent successfully completed the conditions of his court-ordered sentence, including Level II alcohol education counseling, and was discharged from probation. The rules implicated are Colo. RPC 8.4(b), Colo. RPC 8.4(h), and C.R.C.P. 251.5(b).
— The respondent pled guilty to a misdemeanor charge of criminal mischief based on a domestic disturbance during which the respondent, while intoxicated, destroyed various items of personal property and threw an object in the direction of his wife. Through an independent medical evaluation, it was determined that the respondent’s conduct resulted largely from the respondent’s alcoholism and bi-polar disorder. The rule implicated is Colo. RPC 8.4(b).
Conduct Involving Dishonesty, Fraud,
Deceit, or Misrepresentation
— The respondent was retained to represent a client in two separate misdemeanor criminal matters, pursuant to a single written fee agreement pursuant to which the respondent agreed to charge for his services at a rate of $100 per hour. The agreement also provided that the client was to pay a "non-refundable retainer" in the amount of $750 for each of the two cases, with a portion of the retainer paid up front and additional payments made each two weeks. Subsequently, the respondent and the client agreed to convert the agreement to a flat fee of $750 for each of the two matters. The respondent negotiated plea bargains in both cases. The client paid only $1,000 toward the combined fees owed for both cases, which the respondent agreed to accept as full payment. Shortly after his representation of the client was concluded, the respondent was retained by the client’s wife to represent her in a dissolution of marriage from the now former client. The respondent entered into a fee agreement with the new client that included the same non-refundable fee language. The respondent’s representation of the wife did not last long, as the couple reconciled. The respondent did not attempt to invoke the non-refundable language in his fee agreement to keep any funds he had not earned. The rules implicated are Colo. RPC 8.4(c) and Colo. RPC 8.4(h).
Conduct Prejudicial to the
Administration of Justice
— The respondent issued two subpoenas duces tecum to non-parties in a post-decree dispute with his wife’s ex-husband. The respondent did not intend to hold a deposition if the documents were provided to him. The non-parties, a mortgage company and an investment company, provided the documents to the respondent and the respondent cancelled the deposition without the agreement of the opposing party. The rule implicated is Colo. RPC 8.4(d).
Conduct that Adversely Reflects on the Lawyer’s Fitness to Practice Law
— In 1997, the respondent left the private practice of law to work for a governmental agency. The respondent did not close his trust account at that time, but began using his trust account as a personal account. All client funds were removed from the account. The respondent attempted to close his trust account but closed his personal account instead, unintentionally. When he learned that his trust account was still open, he believed it did not matter, since no client funds were in the trust account and he was not performing any legal work for private clients. The respondent began experiencing symptoms of mental illness while working for a governmental agency and resigned in 2001. During 2001, the respondent wrote five checks on his trust account without sufficient funds to pay the checks. No client funds were involved in the transactions. The respondent has since closed the trust account. The rule implicated is Colo. RPC 8.4(h).
Diligence and/or Failure to Communicate
— The respondent represented a client in an attempt to withdraw a plea entered while the client was represented by other counsel. The respondent failed to file the motion prior to the cut-off date provided in the criminal rules. Despite this, the court considered the motion on its merits but denied the motion. The client asserted a malpractice claim against the respondent, which was settled. The rule implicated is Colo. RPC 1.3.
— The respondent was appointed to represent a defendant. The defendant ultimately entered a plea of guilty in return for the remaining charges being dismissed with an order for restitution as part of the sentence. The overall sentence was to be in the ten-to-fourteen-year sentencing range, and the court would have the option of sentencing the defendant to community corrections. The defendant was rejected by the community corrections program, and was ultimately sentenced to the Department of Corrections for a period of fourteen years. The respondent filed a motion for reconsideration of sentence. This motion was denied without a hearing by the court. The defendant wrote several letters to the respondent for approximately six months concerning her case status. The respondent did not inform the defendant of the court’s denial of her Motion for Reconsideration until approximately six months after the motion was denied. The rule implicated is Colo. RPC 1.4.
— The respondent neglected to maintain a current address of his immigration client, and when he sent the client a letter stating he would no longer represent him, he sent it to an expired address. In addition, the respondent failed to file a motion with the immigration court to withdraw from the case and failed to provide a copy to the client. The respondent practices under the firm name using "and associates," even though there are no other attorneys who are employees or partners in the firm. The rules implicated are Colo. RPC 1.3 and Colo. RPC 7.1(a).
— The respondent was hired by a resident of another state who was a beneficiary under a trust. The client wanted the respondent to dissolve the trust or, in the alternative, change trustees. Months passed, but the respondent took little action to advance his client’s claim. The client wrote to the respondent, but received little or no response. Ultimately, approximately twenty-two months later, the respondent refunded his entire retainer to the client. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent represented four different clients. In the first matter, the respondent neglected to prepare a note and deed of trust for real estate in a divorce. In the second case, the respondent was slow in returning a file to the client. In the third case, the respondent did not communicate as well as he could have about a homeowners’ association matter. In the last case, the respondent did not properly prepare a note and deed of trust to property in a divorce. The facts indicated that the problems the respondent had related to moving his practice from one part of the state to another. The respondent is no longer in private practice. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent represented a plaintiff in an employment case. The respondent filed the case on behalf of his client two years and one day after she was fired. The defendant successfully moved for summary judgment based on the statute of limitations. The respondent should have filed the case the day before he did. He admitted a problem with his "calendaring system" and he was having personal problems at the time. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent was ordered to prepare a Qualified Domestic Relations Order ("QDRO") for his client’s military pension from the Air Force Reserves. In early 2000, the respondent contacted the military base finance department regarding the QDRO. In April 2000 and December 2000, the respondent’s paralegal wrote two letters and placed calls to the respondent’s client to determine if he had received the QDRO forms from the military base. In February 2002, after speaking with the Office of Attorney Regulation Counsel about the present matter, the respondent telephoned the military reserves to obtain information about the QDRO. The respondent obtained information from the retirement military pay division regarding steps his client’s ex-wife must take to proceed with the QDRO request to get her share of the respondent’s client’s QDRO. The respondent provided that information to the complainant in March 2002, approximately two years after being ordered to prepare the decree. The rule implicated is Colo. RPC 1.3.
— The respondent represented a personal representative in a probate matter. The respondent neglected the matter by failing to file estate tax returns at the proper time. The respondent also failed to account properly for money received from investments; however, there was no evidence that the respondent ever converted or misappropriated funds. The respondent was sued civilly by the personal representative and fully complied with the terms of the settlement. The respondent suffered from depression. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent represented the debtor in a bankruptcy proceeding. The debtor client’s ex-wife filed an adversary proceeding to except from the discharge certain debts that had been allocated to the debtor in the couple’s divorce. After incomplete discovery responses were received from the ex-wife, the respondent sent a demand letter to opposing counsel, but did not file a motion to compel, and did not schedule a deposition of the ex-wife. Despite inquiries from the client, the respondent did not pursue these matters as trial approached. When the client obtained new counsel, the respondent delayed in providing the file to new counsel. The rule implicated is Colo. RPC 1.3.
— The respondent was hired by a client to handle a civil action against the department of corrections regarding an illegal or improper sentencing and incarceration of the client. From approximately May 2001 through April 2002, the respondent failed to: (1) ascertain the applicable statute of limitations for the client’s claim(s); (2) determine what, if any, causes of action the client could pursue; (3) file any pleadings; (4) contact any potential opposing parties on the client’s behalf; and (5) advise the client regarding any of his legal rights or remedies. The rule implicated is Colo. RPC 1.3.
— The respondent was retained by a closely held corporation to assist the corporation in buying back some of its stock from one of its three shareholders. The corporation offered to purchase the shareholder’s one-third of the corporation’s stock for $75,000. After making his own written offer to purchase 100 percent of the corporation’s stock for $390,000, the dissenting shareholder made a statutory demand for payment of $133,000 for his shares of stock. Pursuant to statute, the corporation had sixty days from the date of the dissenting shareholder’s demand for payment within which to file suit seeking an appraisal of the shares. The client requested that the respondent file such a suit, but the respondent failed to file the suit within the time period required by statute. The suit filed by the respondent was dismissed by the court. Although the corporation was denied an opportunity to have the court determine the value of its stock, the ultimate harm suffered by the client was speculative. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.3.
— The respondent filed a motion to modify child support on behalf of a client in a post-decree divorce matter. Simultaneous to the time that respondent filed the motion, he also filed and put into place an income assignment, whereby additional money was withheld by the opposing party’s employer, consistent with the request made in the motion to modify child support. Shortly after the first withholding period by the opposing party’s employer, respondent was notified by opposing counsel that the income assignment was improper in light of the fact that the court had not ruled on the motion to modify child support. Despite making several comments to opposing counsel that he would remove the income assignment, respondent took no action to remove or vacate the improper income assignment. Opposing counsel filed a motion for forthwith relief from income assignment. The court granted this motion and ordered respondent’s client to immediately refund all the money received pursuant to the income assignment. The court ordered the respondent to pay attorney fees to the opposing counsel in the case, and entered judgment in the amount of $1,486, plus interest, as well as additional costs to collect on the judgment, "for (respondent’s) unreasonable actions and inactions that caused (the opposing party) to incur attorney fees." The rule implicated is Colo. RPC 1.1.
— The respondent was retained by a client to file a Chapter 7 bankruptcy. Among the debts to be included was a debt to the Internal Revenue Service ("IRS"). The respondent filed the bankruptcy for the client. However, because the respondent did not file the bankruptcy until after April 15 of the year in question, the IRS debt was not discharged. The client did not learn that the debt was not discharged until the bankruptcy was closed when the IRS made demand. The rule implicated is Colo. RPC 1.1.
— The respondent represented a defendant in a county court civil action. After the matter was set for trial, counsel for the plaintiff filed a motion for continuance of the trial date. The respondent filed no response on behalf of his client, who did not object to a continuance. The respondent assumed the continuance would be granted, but the court never entered an order continuing the trial date. The respondent did not prepare for the trial and neither the respondent nor his client appeared in court on the trial date. The court called the case for trial and contacted the respondent by telephone to inform him that the case was proceeding to trial. Both the respondent and his client lived approximately seven hours from the county in which the trial was being held. The respondent was allowed by the court to present his witnesses, including his client and an expert witness, by telephone. None of the witnesses was fully prepared to present testimony and the respondent’s lack of preparation in general may have affected the outcome of trial. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.3.
— The respondent represented a client in a domestic relations case. The client called the respondent and told the respondent that the daycare provider for the client’s child would not release the child to him. The respondent called the daycare provider and left a message on her answering machine to the effect that he had instructed the father—respondent’s client—to return, and demanded that the child be turned over to him, and that if the daycare provider did not release the child to the father, the police would be called and kidnapping charges would be pursued. The rule implicated is Colo. RPC 4.5.
Unauthorized Practice of Law
— The respondent’s law firm was owed money by a resident of Nevada, and a lawsuit was initiated in Nevada. The respondent undertook representation of his law firm in the Nevada case. The respondent is not admitted to practice law in the state of Nevada, nor did he seek or obtain pro hac vice admission. The judge in the Nevada case referred this matter to the State Bar of Nevada for investigation of the respondent’s apparent unlicensed practice of law. The respondent self-reported the referral to the Nevada Bar. The rule implicated is Colo. RPC 5.5(a).
Conflict of Interest
— From 1995 through August 1998, the respondent represented a client in regard to post-dissolution matters in connection with a 1993 dissolution of marriage case. The respondent also employed the client at his office for a brief period of time in 1995. In March 1999, the respondent entered his appearance for the same client in a different dissolution proceeding to deal with some post-dissolution issues. In April 1999, the respondent filed C.R.C.P. 26.2 disclosures on the client’s behalf. Thereafter, the client and her former spouse informed their respective counsel that they intended to negotiate a resolution of the outstanding issues without the assistance of counsel. The clients were successful in reaching a stipulation and resolving the issues without further assistance from their counsel. In late April or early May 1999, the client sent a letter to the respondent indicating her interest in pursuing a personal relationship with the respondent. The client alleged that the respondent indicated his interest in a personal relationship with her during the course of the attorney-client relationship. In June 1999, the respondent began a sexual relationship with the client, which lasted until approximately October 1999. At the time the respondent began the intimate relationship with the client, he was no longer performing any legal services for her, and neither the respondent nor the client contemplated that the respondent would be performing any additional legal services. However, the respondent failed to formalize his withdrawal from representation until October 1999, when he filed a motion to withdraw. The rules implicated are Colo. RPC 1.7(b) and Colo. RPC 8.4(h).
— The respondent entered into a business relationship with a client without providing written disclosures. In mitigation, the respondent and the client had been friends and business associates prior to the attorney-client relationship, and the terms of the business transaction was fair and reasonable to the client. The rule implicated is Colo. RPC 1.8(a).
— The respondent represented an illegal immigrant who had been charged criminally with attempting to defraud the United States through use of false identification documents. The client was transported to El Paso, Texas, the city in which the charges were being prosecuted. The respondent consulted with local criminal defense counsel, who was ultimately successful in obtaining dismissal of the charges. Additional charges were thereafter filed in relation to a separate attempt to enter the United States illegally, and the respondent requested a separate payment for the second criminal charge. After the client pled guilty to the second charge, he was deported. The relatives of the client were concerned that the respondent had not earned the fees paid and requested an accounting. There was a delay in providing the accounting and the client file. There was no written advisement regarding the basis for charging of the respondent’s attorney fees. The second matter involved criminal charges, which would subject the client to deportation if a conviction were obtained. There was no written advisement as to the basis of the respondent’s attorney fees. There were difficulties in communication, and the client elected to terminate the respondent’s services. There was a delay in providing a refund of unearned fees. The rules implicated are Colo. RPC 1.5, Colo. RPC 1.15(b), and Colo. RPC 1.16(d).
— The respondent entered into a written fee agreement in a workers’ compensation case in August 2000, which provided for a fee of 25 percent rather than 20 percent, as mandated by CRS § 8-43-403, and thereafter collected a clearly unreasonable fee from his client’s benefits on the basis of that fee agreement. It is the respondent’s position that the reason for the 25 percent contingency fee was that the client, after being advised in writing of CRS § 8-43-403, requested respondent to enter into a written fee agreement that guaranteed that the fee would not go up regardless of the number of appeals that might occur, and requesting that the fee be set at a flat 25 percent. The respondent agreed and was paid the 25 percent, as agreed. The fee agreement did not state that the increased fee would include appeals, and there were no appeals taken on behalf of the client. The respondent ultimately refunded the overpaid amounts plus interest after being contacted by the client’s new attorney even though the client never executed the release discussed below. But for the excessive fee percentage, the written fee agreement is in substantial compliance with the requirements for contingency fee agreements set forth in Chapter 23.3. In connection with the refund of the disputed fee, the respondent asked his client and the client’s new attorney to sign a release of all claims that included the following terms: (1) "[Client] specifically states that it is his clear intention to fully and forever release Anderson from any and all claims or complaints, either in tort or via any administrative agency. . . ."; and (2) "[Client and his attorney] agree by their signatures hereon that neither shall reveal to any person, administrative agency, corporation or any other entity of any type, nature, or description, the terms and conditions of this accord and satisfaction." It is the respondent’s position that the references to an administrative agency in the release were to the Colorado Division of Workers’ Compensation or the Division of Administrative Hearings and were in no way intended to refer to the Office of Attorney Regulation Counsel. The respondent claims he knew at the time of requesting the release that it is unethical to attempt to deprive anyone of the right to file a grievance or to ask that a complainant withdraw a grievance as part of a settlement. The rule implicated is Colo. RPC 1.5.
Organization as Client
— The respondent was retained to represent an organization. The respondent perceived that the organization’s governing board was about to fire an important executive who, in the respondent’s estimation, was doing a good job. The respondent also believed that the governing board’s procedures for nominating new board members were improper. The respondent raised these concerns with the governing board and gave the governing board her advice concerning these and related matters. The board rejected respondent’s advice. The board then proceeded to take action against the executive with which the respondent disagreed. Rather than resign or await upcoming elections at which new board members could be chosen, the respondent undertook to represent the faction within the organization, which supported the executive. The respondent filed on behalf of the faction a lawsuit seeking declaratory judgment and injunctive relief. The respondent named the members of the governing board with whom she disagreed as defendants in the suit. The respondent also sought to enlist aid from interested third parties outside the organization. The rule implicated is Colo. RPC 1.13.
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