Vol. 31, No. 10
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 May 18, 2002, through August 19, 2002, at the intake stage, Regulation Counsel entered into 18 Diversion Agreements involving 24 separate requests for investigation. ARC approved 9 Diversion Agreements involving 16 separate requests for investigation. The PDJ approved one 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 also will 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 that was prejudicial to the administration of justice, in violation of Colo. RPC 8.4(d); conflicts of interest, in violation of Colo. RPC 1.7, Colo. RPC 1.8(a), and Colo. RPC 1.9; failure to respect the rights of third persons concerning the use of medical records, in violation of Colo. RPC 4.4 and Colo. RPC 8.4(b); 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 physically attacked a car and left the scene. As a result, the respondent was charged with criminal mischief (offensive gesture) and disorderly conduct. During the arraignment, the respondent was given one month to consider whether to plead to a reduced charge of disorderly conduct. The respondent failed to appear for the next court date and a bench warrant for his arrest was issued. The respondent pled guilty to disorderly conduct and agreed to pay $500 restitution for reimbursement of the deductible required to repair damage to the car. The respondent did not report his conviction to the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 8.4(b), Colo. RPC 8.4(g), and C.R.C.P. 251.20(b).
— The respondent was observed weaving and speeding while driving. The respondent was arrested and found to have a blood alcohol concentration ("BAC") of .158. This was the respondent’s first alcohol-related offense and involved no injuries or property damage. The respondent pled guilty to DWAI and was sentenced to twelve months of probation and twenty-four hours of useful public service, in addition to fines and costs. The respondent had completed Level II alcohol education prior to her alcohol evaluation. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 21.5(b).
— An individual parked her car in a reserved parking space, left her car unlocked in the space for approximately one hour, then returned and drove away, and later discovered that her purse and a compact disc case holding approximately fifty CDs were missing from her vehicle. The respondent sent the individual a letter stating, "As a result of your trespass parking in an unauthorized parking space and the inconvenience you caused in that regard, we are in possession of a packet of 48 CDs and a small purse which contains a few credit cards and a comb." The letter provided information regarding the steps the individual would have to take to retrieve her property. On an unrelated matter, while representing a client, the respondent asked for overdue fees and an advance on fees prior to completion of a client’s case. The client requested that the respondent allow him to make monthly payments for the balance owed and future fees in the case. The respondent agreed but asked the client to sign a promissory note and deed of trust on client’s house to secure the respondent’s interest in being paid. The respondent presented them to the client shortly before the scheduled final hearing in the case, but they were not signed until after the case was actually settled. The respondent failed to advise the client that the use of independent counsel may be advisable, in light of the fact that the respondent was taking an adverse interest in client’s property and thereby neglected to give his client a reasonable opportunity to seek the advice of independent counsel in the transaction. The rules implicated are Colo. RPC 8.4(b), Colo. RPC 8.4(g), and Colo. RPC 1.8(a).
— The respondent was at a bar in Breckenridge with some friends. After drinking alcohol late into the evening, he became separated from his friends. The respondent began walking through the town of Breckenridge. He broke the door of a pizza parlor, went inside, and immediately called the police to advise them of what he had done. While he was waiting for them to arrive, he ate pizza that was left over in the restaurant. The police arrested the respondent for burglary. The respondent was arrested by the sheriff’s department for violations of CRS § 18-4-203(1) (burglary, second degree) and § 18-4-501 (criminal mischief). The respondent entered into a plea agreement. Pursuant to the plea agreement, the respondent was placed on a two-year deferred judgment for violation of CRS § 18-4-503(1), second-degree criminal trespass. The rules implicated are Colo. RPC 8.4(b) and Colo. RPC 8.4(g).
— The respondent was arrested for driving a vehicle while under the influence of alcohol. Her blood alcohol content was .454. The respondent was stopped again while driving her vehicle and, as a result of a detection of alcohol on her breath, was charged with the habitual use of controlled substance, driving a motor vehicle while under the influence of alcohol, and careless driving. Her blood alcohol content was .41. The respondent entered guilty pleas to driving under the influence in both cases and was placed on home detention and the court required breathalyzer testing. All other charges were dismissed. The diversion is for two years and requires that the respondent comply with all the conditions of the probation and other substantial conditions. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
Conduct Prejudicial to the
Administration of Justice
— The respondent was representing the wife in post-decree matters in one county when she disappeared with the couple’s four-year-old daughter. The complainant was representing the husband who had been awarded sole custody of the child. When the wife fled with the child, she left behind a child from a previous marriage. (For purposes of this agreement and to avoid confusion, the child left behind will be referred to as "Adam," which is a fictitious name.) The wife left Adam with her parents, although the child had a relationship with the husband, who was considered a psychological parent. Adam’s biological father lived out of state. In March 2000, the husband filed a motion to amend the dissolution petition because the wife would not allow him parenting time with Adam. Two hearings were held on the motion, but there was no ruling by the court. At a forthwith hearing in April 2001, when the wife disappeared, the respondent asked the complainant if her client was pursuing custody and parenting time with Adam. By letter dated April 20, 2001, the complainant confirmed to the respondent that her client was pursuing that issue. By accident, the complainant discovered that on May 2, 2001, the respondent had filed an emergency petition for temporary decision-making authority on behalf of Adam’s maternal grandparents in a different county. Notwithstanding his knowledge that the complainant’s client was claiming custody and parenting time with Adam in the first county case, the respondent’s petition did not disclose the pending motion nor did he give notice in the other case to the complainant’s client or the biological father, in violation of CRS § 14-13-209. The complainant’s client intervened in the second case. At a hearing on June 1, 2002, the respondent argued to the second court that the court in the first case had declined jurisdiction in Adam’s case because the court had not ruled on the motion for many months and, because the complainant’s client had no standing, he was not entitled to notice. The case was transferred back to the first court. The rule implicated is Colo. RPC 8.4(d).
Diligence and/or Failure to Communicate
— The respondent received correspondence from an inmate. The respondent wrote a letter to the inmate in which he stated that he had been assigned to the case, was ordering the relevant transcripts, and that after a review of the transcripts and the paperwork for the plea he would provide his opinion on the merits of the motion. The respondent was never formally appointed to represent the inmate on a Rule 35(c) motion, which had been filed pro se. There was no further communication until approximately one year later, when the inmate wrote to the respondent inquiring about the status of his motion. The respondent did not respond to that letter. Upon being contacted by the Office of Attorney Regulation, the respondent claimed that at the time the case came into his office, they had a poor tickler system, which has since been corrected. The only thing that would trigger action on the file was receipt of the transcripts. Because the transcripts were never received, no action was taken. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent was hired by a client to pursue a claim for undisclosed defects in a home. The client gave the respondent a contractor’s report and an estimate of repair costs. The respondent obtained a site inspection in June 1999. Between August and November 1999 there was no further communication between the respondent and his client, nor was any further action taken on the case. In March 2000, the respondent obtained another engineering report and suggested that the client submit the matter to mediation as required by contract. By August 2000, the client had heard nothing further about the case and called the respondent and told him to go forward with the mediation. By letter, the respondent contacted the other parties about mediation and all agreed. By letter, the respondent represented to the complainant that he would schedule mediation. Because the respondent was not receiving payment, he took no further action on the client’s case. Other than periodic invoices, the client heard nothing further from the respondent and requested the return of the file, at which time she paid the balance of her bill, which had been unpaid since December 2000. By letter, the respondent returned the client’s file and stated, "It is difficult to justify giving a matter high priority when a large balance remains outstanding for such a long period." The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent represented a client in a personal injury case resulting from a car accident in another state. The case was settled for an amount of money that was close to, or equal to, the policy limits. The appropriate distributions of the settlement funds were made. At the time of the settlement, there were several outstanding issues: (1) a possible uninsured motorist claim; (2) unpaid mileage expenses; and (3) an overpayment to a medical services provider. In August 2001, the respondent made contact with a billing administrator concerning the overpayment for medical services. As of March 2002, the respondent made no additional follow-up calls or pursued the matter in any other way. The respondent spoke with his clients concerning the remaining issues in August 2001. Despite receiving repeated phone messages and at least one piece of correspondence from his clients, the respondent had no further contact or communications with his clients. The rule implicated is Colo. RPC 1.4
— The respondent represented a client in a divorce case. The court entered permanent orders in the case. The permanent orders included provisions regarding the distribution of retirement fund assets to the parties. According to the provisions in the permanent orders, the respondent’s client was ordered to pay for the preparation of the Qualified Domestic Relations Order ("QDRO") documents to effect the division of retirement assets. The permanent orders included a requirement that, "within 30 days the parties shall execute and deliver all property and the documents necessary to effectuate the provisions of these permanent orders." The respondent asked another lawyer with more experience in drafting QDRO documents to handle the division of retirement assets, but remained ultimately responsible for handling her client’s case. The QDRO documents were not submitted to the opposing party within the time established in the permanent orders. Additionally, the respondent failed to submit a motion for extension of time to the court on her client’s behalf. After several months passed, the opposing party exchanged correspondence with the respondent and the other lawyer regarding the fact that the documents were not prepared. Eventually, the opposing party filed a verified motion for issuance of citation for contempt against the respondent’s client. Although the client earlier had sent a letter to the respondent terminating her as his lawyer, the respondent did not file a motion to withdraw from the case. The respondent’s client was found in contempt of court. The client hired new counsel to prepare the QDRO documents in an attempt to purge the contempt. Despite the action taken by the client and his new attorney, the court imposed an award of "costs and damages resulting from lost interest," as well as attorney fees against the client. The respondent is required to pay the award of costs and damages as part of this agreement. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.16(a).
— The respondent represented a client in a dissolution of marriage action. The court entered the decree of dissolution of marriage. The decree provided for respondent’s client to receive, as part of the property distribution, a certain percentage of her ex- spouse’s retirement and profit sharing plans. The court’s order required the parties to execute all documents necessary to accomplish the provisions of the decree. A QDRO is needed to effectuate the property division. The respondent states he prepared a "draft" of the QDRO, but never completed or sent the QDRO to the opposing counsel, opposing party’s employer, or the court. The respondent withdrew from further representation of the client, via a substitution of counsel. At the time of the substitution of counsel, the QDRO had not been completed. The rule implicated is Colo. RPC 1.3.
The respondent represented a client in a dissolution of marriage. The court entered a decree of dissolution of marriage and approved a separation agreement signed by the parties in the case. The respondent’s client was to receive 50 percent of her ex-husband’s 401(k) plan with his employer. The separation agreement called for the respondent to draft a QDRO within sixty days of the date of the decree in the case. The respondent neglected to draft the QDRO and submit it to the court for approval until eleven months after the time that the document was to be prepared. The rule implicated is Colo. RPC 1.3.
— The respondent, in two separate domestic relations matters, neglected client matters and failed to communicate with clients when communication was necessary over a period of several months. Neither client suffered any actual harm as a result of the respondent’s conduct. During the period of time in question, the respondent was diagnosed with stomach cancer and was debilitated by both his condition and the chemotherapy he was receiving. The rule implicated is Colo. RPC 1.3.
— The respondent represented a client in a divorce case. As part of the representation, the respondent drafted a QDRO, which was approved by the court. The QDRO related to the appropriate assignment of stock to the client, in accordance with the terms of the separation agreement in the case. After the court approved the QDRO, the respondent sent it to the appropriate plan administrator for implementation. The respondent received a letter from the plan administrator advising that the QDRO was not in conformity with the procedures for determining and implementing QDROs in the employee stock ownership plan. The respondent requested information as to the plan’s requirements from the plan administrator prior to preparing the QDRO. At that time, he was told that there was no form that they could provide, and to simply prepare an appropriate order. When she rejected the respondent’s original QDRO, the plan administrator provided guidance on how to prepare a QDRO that conformed to the procedural requirements of the plan. The respondent moved the location of his office and, in the course of the move, the client’s file was misplaced. Around the time of the move, the client called the respondent at least twice, inquiring as to the status of the QDRO. The respondent advised the client that he would actively look for her file. The respondent located the client’s file sometime in mid- or late-2001. He took the file to his office with the intent to revise and re-submit a new QDRO that would satisfy the procedural requirements of the plan. After receiving voicemails from the client in early 2002, inquiring about the status of the QDRO, the respondent revised the QDRO and submitted it to the court for approval. The court entered an order approving the same. The respondent failed to respond to the status inquiries of his client, and failed to keep his client reasonably informed regarding the status of the QDRO from approximately mid-2000 until sometime in mid-2002, even though the task had been completed a few months earlier. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent was appointed to represent a defendant with regard to his post-conviction matters. This appointment happened well before any of the post- conviction relief timelines expired. Despite the appointment, the respondent never made contact with the defendant to discuss his case. The defendant made a specific inquiry about his post-conviction matters to respondent, after being told by the trial defense lawyer that the respondent was appointed to handle post-conviction matters. The respondent sent the defendant a letter acknowledging the fact that the court had appointed him (or his office), but advising the defendant that he and his office "consider [trial defense counsel] to still be [his] attorney of record." The respondent’s letter also stated that the time to file a C.R.Crim.P 35(b) motion had expired, and explained that he (and his office) would not provide any assistance, referring him to the trial defense counsel. Due to the confusion about who was representing him, and his inability to get anyone to counsel him on his post-conviction rights, the defendant wrote to the Office of Attorney Regulation Counsel. The Office of Attorney Regulation Counsel contacted the respondent and asked for an explanation of the matter. The respondent acknowledged the problem, and agreed to look into the post-conviction matters and counsel the client in that regard. The respondent filed a motion for reconsideration of sentence. The court denied this motion as untimely. Subsequently, the respondent communicated with the defendant and advised him of other post-conviction relief that could be pursued in his case, including a claim of ineffective assistance of counsel by the trial defense counsel. The respondent provided the appropriate analysis of the risks and benefits associated with any action. The defendant sent correspondence to the respondent in March, April, and May 2002 directing him to file a motion alleging ineffective assistance of counsel against his trial defense counsel. The respondent replied to the defendant’s March letter immediately, advising him that pursuing such a motion could subject him to significant exposure in the event of a favorable ruling by the trial court. The defendant’s March, April, and May 2002 letters to respondent demonstrate that he wanted to pursue the motion despite the risk of exposure. The respondent took no further action on the matter after sending the defendant the March 2002 letter trying to dissuade him. In June 2002, the defendant again wrote to the Office of Attorney Regulation Counsel. This time, he advised that the respondent was not taking action on his case, and was not communicating with him. The respondent filed a C.R.Crim.P. 35(c) motion after he was notified that his client had contacted the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent faxed a letter to opposing counsel, which stated that a civil action seeking compensatory and punitive damages, as well as restitution, would be commenced if the opposing party did not take certain actions by a date certain. The letter also stated as follows: "In addition, a criminal complaint for, at least, obtaining her signature by deception and offering a false instrument for recording will be filed against you." The rule implicated is Colo. RPC 4.5(a).
— The respondent represents an estate. A tractor was purchased from the wife of the deceased. The respondent believed the sale/transaction was inappropriate and that the tractor needed to be returned to the estate. The respondent left voicemail messages on the answering machine of the buyer of the tractor, indicating that if the tractor was not returned to the estate, the respondent would pursue criminal actions against the buyer. The rule implicated is Colo. RPC 4.5.
Communication with Person
Represented by Counsel
— The respondent represented a plaintiff in a breach of contract and tort action. The defendants were all represented by counsel. The respondent and one of the defendants were both present in the same hair salon. When the respondent overheard the defendant mention vacation plans; the respondent told the defendant that he should remain in town because depositions for the case were being conducted soon. The defendant told the respondent that he had nothing to say to the respondent and asked the respondent to stop talking to him. The respondent again told the defendant to stay in town because depositions were coming up. The respondent communicated by letter directly with another defendant. The respondent’s letter mentioned not only the incident with the defendant at the hair salon, but also included references and statements about the still ongoing litigation and underlying dispute between respondent’s client and the defendants. At the time of both above-described communications, the respondent knew defendants were represented by counsel, and the respondent did not have counsel’s consent to communicate directly with either defendant. The rule implicated is Colo. RPC 4.2.
Aiding in the Unauthorized Practice of Law
— The respondent hired a disbarred lawyer to work at the respondent’s law firm. One of the respondent’s clients was a homeowners association. The disbarred lawyer’s work included reviewing the client’s assessment and dues schedules, and assisting the association client conduct business activities. The disbarred lawyer attended a homeowner’s association meeting on one occasion. The respondent was not present. At the meeting, the disbarred lawyer provided legal advice. The respondent was required to disgorge all fees charged to the homeowner association client for any work done by the disbarred lawyer. The rules implicated are Colo. RPC 5.3(b) and Colo. RPC 5.5(b).
Conflict of Interest
— The respondent met with two individuals about resolving certain mining claims. On the same day, the respondent sent a letter to them confirming their meeting and setting forth certain actions, including the filing of a complaint and contents of a demand letter. This correspondence also included a fee agreement to be signed by the two individuals. One of the individuals chose not to sign the fee agreement engaging the respondent as counsel, or to go forward as a plaintiff in the discussed litigation. The respondent signed and subsequently filed a complaint naming one individual as a defendant and the other individual who signed the fee agreement as a plaintiff. The substance and subject of the complaint was the same as those
discussed in the prior meeting between the individuals and the respondent. The rules implicated are Colo. RPC 1.7 and Colo. RPC 1.9.
— The respondent represented a client in a dissolution of marriage matter. The attorney-client relationship was strained and difficult throughout most of the case. The client disputes the respondent’s fees, claiming the respondent failed to provide proper communication or competent representation or to abide by the client’s decisions concerning objectives in the case. The respondent disputes the client’s claims about the handling of the case. The respondent and client met at his office to work on revisions to the proposed final orders in the case. Just before the client left the respondent’s office, the respondent presented the client with a promissory note secured by her home and asked her to sign it as security for her unpaid fees. The client claims the respondent did not explain the ramifications of the note nor allow her an opportunity to read or ask questions about it. The client also claims she had a verbal agreement with the respondent to pay the remainder of his fees by personal check after receiving funds from her home mortgage refinance scheduled for the following week. The client further claims the respondent told her simply to sign the note and not worry about the note’s terms because she would be paying him the following week. The client signed the note before leaving the respondent’s office. The respondent maintains he fully discussed the note with the client when he first presented it to her. However, the respondent failed to: (1) inform the client that independent counsel might be advisable; (2) give her an opportunity to seek the advice of independent counsel regarding the note; or (3) obtain her written consent to the promissory note transaction. On the night before the refinance closing, the client’s lender called to inform her that the respondent had filed a lien on her home seeking payment of the note from the refinance proceeds. That same evening, the client had a three-way conference call with her lender and the respondent. The client and the respondent disputed each other’s intentions with regard to the note and the agreement concerning how the client would pay the remainder of the respondent’s fees. The client’s closing occurred the following day with full payment of the note to the respondent. The rule implicated is Colo. RPC 1.8(a).
— The respondent represented the husband in a dissolution of marriage action. After the respondent had substantially completed his representation, he asked his client to execute a promissory note for the balance of the respondent’s fees, secured by a deed of trust on the marital residence. The client complied with the respondent’s request. In entering into this transaction with his existing client, the respondent failed to inform his client that the use of independent counsel may be advisable in regard to the transaction, nor did he give his client a reasonable opportunity to seek the advice of independent counsel. At the time the respondent obtained his lien on the marital residence, he knew the equity in the residence was to be split equally between his client and the opposing party. Subsequently, the respondent sold and assigned his note and deed of trust to another entity. Several months after the respondent’s representation had been terminated, the marital residence was sold and, after paying all liens and closing costs, the remaining equity in the property was paid to the parties in equal shares. However, because of the amount of the lien the respondent had assigned, a portion of the wife’s share of the equity had to be used to pay the lien originally recorded to cover the respondent’s fees. The rule implicated is Colo. RPC 1.8(a).
— The respondent incorporated, represented, and served as registered agent for a corporation, which owned an ice cream store. The shareholders and board members of the corporation included the complaining witness, his daughter, and his daughter’s former husband. At some point, a dispute arose between two of the shareholders over the sale of the ice cream store. Acting on direction from the president of the corporation, and on behalf of the corporation, the respondent wrote a letter to one of the shareholders concerning their dispute. The respondent admits he took direction with regard to the corporation from the president, rather than a majority of the board members, because of who was the president of the corporation. Thereafter, the respondent received a call from the president terminating his services as the corporate attorney. The respondent took no action to notify the other board members that he had been fired. The respondent’s associate attended a board meeting in November 2001, at which time the board also fired the respondent and requested that he remove himself as registered agent for the corporation. He failed to do so until February 2002. One of the shareholders called the respondent and requested an original corporate kit and minutes, but after speaking to the president of the corporation, the respondent gave those items to the president. Thereafter, the respondent’s firm undertook representation of one of the shareholders in his post-decree dissolution action from another shareholder. Permanent orders were entered by the court and one of the issues associated with the post-decree dissolution action was the division of the jointly held stock in the corporation. In the post-decree dissolution action, respondent’s associate, on behalf of the client, filed a motion for preliminary injunction asking the court to prohibit the sale of the assets of the corporation. The motion sought to stop action that the board of directors deemed appropriate. The rules implicated are Colo. RPC 1.7 and Colo. RPC 1.13(a).
Accounting Records Issues
— The respondent failed to deposit a settlement check into his trust account. The respondent withdrew funds from his trust account to pay his fees in connection with the settlement, not realizing he had failed to deposit the settlement check. The respondent deposited the settlement check one month later into his trust account. By withdrawing his fees prior to making the deposit, the respondent placed his trust account into an overdraft status. The respondent’s mother suddenly became gravely ill and passed away. This personal loss kept the respondent out of his law office for approximately two and one-half weeks. During this time frame, the respondent’s personal banker transferred money from his COLTAF account to another checking account to cover a similar overdraft. This transfer was not done with the respondent’s knowledge consent or authority. The Office of Attorney Regulation Counsel was notified of the overdraft in the respondent’s COLTAF account. Since the overdraft, the respondent has refunded his COLTAF account and paid all service charges in relation to the overdraft items. The rule implicated is Colo. RPC 1.15.
— The respondent was hired to handle a criminal matter. A few days later, the client hired the respondent to handle a dissolution of marriage matter. The client paid the respondent $1,350 as attorney fees for both matters. The respondent did not provide the client with written fee agreements or written disclosures of the basis or rate of his attorney fees for both matters. The respondent met with the client on three occasions, appeared at hearings in the criminal matter, drafted pleadings in the dissolution of marriage matter, and held discussions with opposing counsel in the dissolution of marriage matter. The client terminated the respondent’s services and requested a refund of fees. The respondent informed the client that he earned the fees, but failed to provide an accounting of the earned fees to the client or upon the request of successor counsel. The rules implicated are Colo. RPC 1.15 and Colo. RPC 1.5(b).
— The respondent was depositing flat fees, which he had already earned, into his trust account, when a series of small overdrafts occurred. In addition, the respondent was slow to pay a court reporter for an appearance fee and transcript. The rules implicated are Colo. RPC 1.15 and Colo. RPC 8.4(d).
— The respondent formed a limited liability company to research bankruptcy court files and find records concerning undistributed bankruptcy funds under supervision of the U.S. Bankruptcy Court. The respondent then would locate and contact creditors to whom the funds were payable, offering to do all of the work necessary to get the funds released to the creditor in return for a percentage of the funds. The respondent’s law firm did the legal work to obtain release of the funds and generally received all of the fees earned from the written contracts entered into between the limited liability company ("LLC") and the individual clients. There were no fee agreements between the individual clients and the respondent’s firm, or between the LLC and the firm. The respondent solicited business from clients through the LLC, without referring to her communications as "advertisements" or otherwise including any advisement to potential clients that her correspondence should be considered an advertisement. Funds received pursuant to the contracts between the LLC and the individual clients were deposited into a trust account maintained by the respondent. From the trust account, the respondent paid to the clients the amount they were entitled to receive, pursuant to their written contracts with the LLC. After the LLC ceased doing business, the respondent left funds in the trust account for several years. During this period of time, a portion of the funds technically were the property of the LLC, while other funds were payable to the respondent’s firm for legal work performed for the LLC. The respondent did not maintain all of the financial records concerning the funds that would have been necessary to determine whether the funds belonged to the LLC or her law firm. However, because of an agreement with her former partner, the respondent was the only person with any claim to the funds. Thus, there was no harm or risk of harm to any third party. The rules implicated are Colo. RPC 1.15(a), Colo. RPC 1.15(g)–(j), Colo. RPC 7.2, Colo. RPC 7.3(d), and Colo. RPC 8.4(a).
— The respondent’s bank returned a check that was presented to the respondent’s COLTAF account. At the time the check was presented, the respondent’s balance in his COLTAF account was less than the amount of the check. The bank assessed a returned item fee. The check was made payable to an expert witness on behalf of the respondent’s client. According to the respondent, he is unable to determine why his COLTAF account did not contain sufficient funds to pay the check. Subsequently, the respondent and the expert agreed not to present the check a second time, since the matter was going to settle and the expert’s actual fee was less than the original amount. The respondent will pay the expert after the matter has settled. The respondent deposited an amount into his COLTAF account to reimburse the account for the returned item fee. The rule implicated is Colo. RPC 1.15.
— The respondent was censured for conduct "in violation of his duties and obligations as a lawyer," by the disciplinary commission of the supreme court of another state. The findings indicated that the respondent’s conduct violated the rules of professional conduct concerning the safekeeping of client property, maintaining appropriate client financial records, and trust account maintenance. The respondent and respondent’s partner were responsible for keeping the client ledgers for the cases each one handled. The respondent’s partner’s wife forged the partner’s name on a trust account check and left the trust account with insufficient funds. After the respondent found out about the insufficient funds, he requested that his partner reimburse the trust account. Further, respondent failed to take steps to reconcile the trust account. On one occasion the respondent advanced funds to a client from the trust account before the client’s workers compensation settlement check had been deposited into the trust account. The rules implicated are Colo. RPC 1.15 and Colo. RPC 8.4.
— The respondent agreed to file a motion for a client, who had been handling a suit pro se, to retain the action on the docket after the court issued a notice of dismissal. The respondent filed the requested motion, but he performed no further actions in the civil suit, as the client was negotiating privately with the defendant. The respondent did not withdraw. Thereafter, the court issued a second dismissal notice, which the respondent transmitted to the client. The client did not bring in the requested retainer until after the court dismissed the suit. The respondent failed to communicate with the client after the court notified the respondent of the dismissal. There was also a delay in returning the client’s file but it was returned. The retainer was deposited in the operating account, rather than the respondent’s trust account, and there was some delay in accounting for the retainer. The respondent maintained the retainer amount until fully earned. In another matter, the respondent failed to communicate timely with his client regarding the substance of a plea agreement, which had been proposed by the prosecuting attorney. Despite three letters from the client, the respondent failed to respond until after the request for investigation was filed. One of the conditions of the agreement is a law office audit. The rules implicated are Colo. RPC 1.4(a), Colo. RPC 1.15(a), Colo. RPC 1.15(b), and Colo. RPC 1.16(d).
Respect for Rights of Third Persons
— The respondent represented a client in a dissolution of marriage action and a domestic violence matter. The client’s spouse allegedly abused prescription drugs and may have been under the influence at the time of the alleged domestic violence incident involving the client. The respondent received certain medical bills and records that pertained to the spouse’s treatment at a rehabilitation treatment center for substance use, as well as prescription drug purchase records for the spouse. These medical records were obtained without the spouse’s permission. The respondent used these records at a hearing and also provided these records to the assistant district attorney handling the domestic violence matter. The rules implicated are Colo. RPC 4.4 and Colo. RPC 8.4(b).
The respondent, who represented the defendant in a medical malpractice action, utilized a general medical records authorization to obtain slides containing samples of the plaintiff’s human tissue from the hospital where the plaintiff was treated. Prior to the date the respondent’s office utilized the authorization form to obtain the tissue samples, the respondent’s office had received a written objection to any efforts by the respondent to obtain the plaintiff’s tissue samples from the hospital without an agreement or order restricting the use of the samples. The respondent himself had not seen the written objection from plaintiff’s counsel prior to the date his office obtained the tissue slides. The respondent also communicated ex parte with one of the plaintiff’s treating physicians, based on his mistaken belief that the physician was merely a consultant rather than a treating physician. The rule implicated is Colo. RPC 4.4.
Candor Toward the Tribunal
— The respondent and her law partner executed a promissory note and a deed of trust in favor of a separate business entity owned by the respondent and her husband. Several years later, after the partnership had been dissolved, the respondent commenced a foreclosure action on behalf of the separate entity against her former law partner, who by then owned the property securing the note. The respondent estimated the balance that was due on the note when she commenced the foreclosure proceedings, as she did not have the firm’s records concerning the note payments at the time. The respondent’s former partner did not oppose the foreclosure initially, and the foreclosure was completed based on the figures alleged in her complaint. Subsequently, when a dispute arose concerning entitlement to the proceeds from the foreclosure sale, the respondent’s former partner produced evidence demonstrating that the promissory note had been substantially paid long before the foreclosure proceedings were commenced. Thus, the respondent was on notice that she had submitted incorrect information and evidence in the foreclosure proceedings. The respondent failed, for several months thereafter, to take any remedial measures in the court proceedings. Appropriate remedial measures were eventually taken at the urging of Regulation Counsel. The rule implicated is Colo. RPC 3.3(a)(4).
Fraud, or Deceit
— The respondent wrote to a prospective client regarding his willingness to represent her in a potential divorce matter. The respondent ultimately did represent the client in her domestic matter. The respondent’s letter notes his charge for a non-contested divorce is a non-refundable fee. The respondent’s letter also included statements that the client would: (1) "be awarded alimony, i.e. ‘maintenance’ . . . for at least ten years into the future, and probably fifteen"; (2) be permitted "to remain in the family home until your youngest child is emancipated"; and (3) not be required to pay respondent’s attorney fees because her husband would have to pay for both lawyers in the case. The court in the matter ordered maintenance for eight years for the client, that the family home be sold by a certain date, and that the ex-spouse pay a portion of respondent’s attorney fees. The rules implicated are Colo. RPC 7.1 and Colo. RPC 8.4(c).
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