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TCL > April 2003 Issue > Colorado Supreme Court Office of Regulation Counsel

April 2003       Vol. 32, No. 4       Page  119
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 summaries are contributed by the Colorado Supreme Court Office of Regulation Counsel.

 

Diversion and Private
Admonition Summaries

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, 2002, through February 19, 2003, at the intake stage, Regulation Counsel entered into 20 Diversion Agreements involving 20 requests for investigation. ARC approved 11 Diversion Agreements involving 12 requests for investigation. The PDJ approved one Diversion Agreement during this time frame. ARC issued 2 private admonitions involving 2 requests for investigation 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" and/or "Trust Account School" that are 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); violations of Colo. RPC 1.15; conflicts of interest, in violation of Colo. RPC 1.7; failure to withdraw from representation or protect the client’s interest upon termination, in violation of Colo. RPC 1.16; and failure to supervise, in violation of Colo. RPC 5.1.

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 Agreements

Diligence and/or Failure to Communicate

— The respondent was retained by a client who paid the respondent an initial retainer of $1,000. The client died approximately two months later. In 2001, as personal representative of the deceased’s estate, a bank filed a civil action against the deceased’s physician on alleged improper financial transactions between the deceased and the physician. The physician provided disclosures to the bank’s attorney that named the respondent as a person who may have discoverable information about the deceased’s desire to provide funds to the physician as a gift. On January 17, 2002, the bank’s attorney wrote to the respondent and informed him about the bank’s lawsuit against the physician. The bank attorney’s letter explained that the bank wanted to exercise its rights to preserve and utilize the attorney-client privilege between respondent and the deceased, and asked the respondent to provide the bank’s attorney with the deceased’s file. The respondent received the letter but failed to respond. Receiving no response, the bank’s attorney called the respondent approximately two months later. An attorney who office-shares with the respondent returned the call, indicating that the attorney would help get the file. The bank’s attorney wrote to the attorney, confirming their telephone conversation, offering to pay for any file copying costs, and including copies of the bank’s letters testamentary. However, the respondent did not produce the file until after the request for investigation was filed. The bank’s attorney also requested an accounting, which was not timely provided. The rules implicated are Colo. RPC 1.4(a), Colo. RPC 1.15(b), and Colo. RPC 1.16(d).

— The respondent represented a client in a workers’ compensation matter with the federal government. The respondent was hired, among other things, to file an appeal of a matter. The respondent did not do so, and did not act diligently with regard to that appeal. The respondent also failed to communicate adequately with his client, particularly after she asked him for communication regarding the status of the matter. The respondent returned portions of the file to her, but not the entire file. The respondent represents in the Diversion Agreement that he has returned the entire file to his client. Consistent with the accounting provided, respondent must refund the unearned fees to the client. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), and Colo. RPC 1.16(d).

— The respondent, who was retained in a child custody and visitation matter, was paid a $750 retainer. The client later paid the respondent an additional $130. The client claims the respondent neglected his case by not obtaining service on the opposing party. The client also claims that the respondent failed to keep him informed about the status of his case, and failed to promptly comply with his requests for information. The respondent maintains he attempted to communicate with the client but has no record of his communications except for two letters dated February 26, 2002, and August 7, 2002. By the time the client received the respondent’s August 2002 letter, the client already had resolved his case in court pro se. The client claims the respondent failed to provide him any billing statements or accounting of his time or fees in his matter, despite having requested such information, including a specific written request dated July 9, 2002. The respondent admits he failed to provide billing statements to the client, but maintains the failure was due to computer problems and then to the moving of his office. The respondent did not provide the client any billing statement until October 17, 2002, as a result of the client’s request for investigation filed with the Office of Attorney Regulation. The client disputes the value and benefit of the respondent’s fees. The respondent maintains he performed services in excess of the amount the client paid. As part of the conditions of the Diversion Agreement, the respondent shall: (1) resolve the fee dispute with the client directly; or (2) submit the dispute to arbitration by the Colorado Bar Association Fee Arbitration Committee ("Committee"). If the client refuses to participate in such arbitration, the respondent shall have no further obligation with regard to the fee dispute. Within thirty days of resolution with the client or by the Committee, or the client’s refusal to participate, the respondent shall provide written notification of such resolution or refusal to the Office of Attorney Regulation. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.5, and Colo. RPC 1.15(b).

— The respondent represented a client regarding certain use and/or zoning regarding real estate. The representation included handling a dispute with an adjoining landowner. The representation commenced sometime in August 2001. There was only minimal communication with the client between September 2001 and January 2002. Between June and August 2002, there was little or no communication between the respondent and client. The client’s "family attorney" from another state wrote two letters to the respondent during this time, requesting that the respondent advise the client and the attorney of the status of the case. The respondent failed to respond to these letters. The respondent had received a payment from the client. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and refund monies received from the client. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.

— The respondent was retained to represent clients regarding claims stemming from the deaths of their mother and brother in an automobile accident. The respondent entered into a contingent fee arrangement with the clients that included a provision allowing quantum merit recovery of fees in the event respondent was terminated before settlement or trial in the case. The respondent negotiated on behalf of his clients and obtained a policy-limit settlement offer regarding his clients’ claims. The clients refused to authorize settlement, but instead terminated the respondent’s representation. In the letter terminating the respondent’s representation, the clients requested "an itemized bill showing the date, the time, and description of the services rendered to date as well as the person performing the service and the amount for each itemized entry." The clients also requested an itemization of the costs incurred in the case. After he was terminated, the respondent negotiated a flat fee as compensation for the services rendered in the case. Having negotiated a flat fee, the respondent believed that the clients no longer wished to receive an accounting of his services. Complainants filed a grievance with the Office of Attorney Regulation Counsel alleging, among other things, that the respondent failed to provide an accounting pursuant to their written request. The respondent provided the accounting as part of the response to the Office of Attorney Regulation Counsel months after it was requested. The rule implicated is Colo. RPC 1.4(a).

— The respondent previously had represented a client in a child support case. In October 2001, that client contacted the respondent because the client had been notified of alleged child support arrearages for the same time period that was the subject of the previous representation. The respondent agreed to further representation of the client concerning this matter. The respondent had little or no communication with the client between October 2001 and January 2002. Further, the respondent did not contact the Child Support Enforcement Agency until March 2002 concerning this matter. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.

— The respondent represented a client in a personal injury case that settled in September 1999. The respondent received the settlement funds on behalf of his client in November 1999. A lien in favor of Medicare had been filed in the case; consequently, the respondent advised his client that he would have to hold a portion of the settlement proceeds to satisfy that lien. Although the respondent had agreed to seek a reduction of the Medicare lien, no further action in that regard was taken until late May 2000, when the respondent prepared a partial distribution schedule and paid the client a portion of the settlement proceeds. In June 2000, Medicare sent a letter to the respondent advising him that the amount due to Medicare was reduced by approximately one-third. This letter requested payment of the reduced amount. The respondent advised his client of the reduction, but advised that there may be further avenues available to appeal the amount or seek a further reduction. It does not appear that the respondent took any further steps to appeal or reduce the amount due to Medicare. Starting on December 1, 2000, Medicare sent the respondent and/or his client notices that the debt to Medicare was delinquent and needed to be paid. Also, the letters from Medicare indicated that interest was accruing on the unpaid debt. The respondent took some action in April 2001 to try to resolve the debt by sending a trust account check to pay the amount of the debt, plus a personal check written by the respondent to pay the interest that had accrued. At the same time, the respondent disbursed the remaining balance of the funds from his trust account (the difference between the original amount of the Medicare lien and the amount of the reduced Medicare debt), plus interest. The respondent’s trust account check written to Medicare never cleared his trust account. Medicare continued to send letters to the client, advising that the debt remained unpaid and that additional interest was accruing. In December 2002, Medicare sent the client a letter advising that the delinquent debt was being referred to the Department of the Treasury for collection. After the respondent received a copy of this letter from his client, he sent payment to the Department of the Treasury. This payment included the amount of the debt, as well as the full amount of interest due. The respondent subsequently followed up to make sure that the payment was received, and that the debt was satisfied. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, attend Trust Account School, and pay funds to his client for interest. The rule implicated is Colo. RPC 1.3.

— The complainant hired the respondent in late 1997 to handle post-decree child custody and support issues. The client’s divorce was granted by an out-of-state court in 1995; thus, it was necessary to obtain jurisdiction of the matter pursuant to the Uniform Child Custody Jurisdiction Act. The respondent obtained jurisdiction of the matter in Colorado. A hearing was held in late October 1998, at which time the court issued findings of fact and orders. The respondent was ordered to reduce the findings and orders to writing, to submit them to the court, and to provide a copy of the written orders to the out-of-state court, and certify his completion of this task to the court. After the hearing, there were some discussions by the parties that delayed the filing of the written orders. Eventually, the respondent prepared the draft-written orders and submitted them to the parties for approval in January 1999. Neither party answered the respondent’s request for approval. Thereafter, the respondent forwarded the written orders to the court for filing. However, the proposed written orders listed the wrong case number, and they were never made part of the appropriate file. Additionally, the orders were never provided to the out-of-state court. In April 2002, the client called the respondent and requested a copy of the written orders. The respondent had already closed the file, and upon retrieving the file from storage, determined that the written orders had never been reviewed by the court. On April 23, 2002, the respondent advised his client of the fact that there was not a signed copy of the orders, and indicated that he would follow up on the matter in an expedited manner. On December 18, 2002, the respondent advised that he finally had obtained a transcript of the hearing and had filed a motion and the transcript, asking that the court recognize the transcript as the findings of fact and orders in the case. The delay in obtaining the transcript was due to a combination of difficulties encountered by court personnel in locating a "transcribeable copy" of the notes from the hearing and the ill health and death of one of the respondent’s family members. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).

— The respondent was retained to assist in resolving a situation involving a mortgage default. The respondent agreed to negotiate with the client’s lenders. The client paid the respondent a $250 retainer. Thereafter, the client called the respondent, asking for the status of the case; the client received no return call. The respondent contacted the client’s lenders, but was unable to negotiate the resolution the client wanted, and failed to communicate the outcome of the negotiations to the client. The client received notification of the upcoming foreclosure date. The client called the respondent and the respondent agreed to call the lender’s counsel. When the client did not hear back from the respondent, she called him again. At that time, the respondent informed the client that he had not been able to reach an agreement with the client’s lenders. Thereafter, the client wrote to the respondent, stating she no longer required his services. The client then telephoned the Office of Attorney Regulation to file a request for investigation of the respondent’s conduct as her attorney. The client also wrote to the respondent, requesting an itemized billing statement for the $250 she had paid him. The respondent failed to respond to the client’s accounting request or the request by the Office of Attorney Regulation Counsel to respond to the accounting. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and Trust Account School, and provide an itemized accounting of the client’s retainer to the Office of Attorney Regulation Counsel and to the client. The rules implicated are Colo. RPC 1.4 and Colo. RPC 1.15(b).

— The complainant hired the respondent in 1997 to represent her in a divorce case, which became final in October 1998. The complainant was to receive funds from her ex-husband’s 401k retirement plan within ten days. The complainant began contacting the respondent’s office about this money in or about June 2001. In the complainant’s discussions with respondent’s staff, apparently there was some confusion between the ex-husband’s 401k plan and his retirement plan. The respondent prepared the appropriate documents for the retirement plan, but believed the husband’s attorney was making the transfer of the 401k funds. The transfer of funds did not occur and the ex-husband’s attorney withdrew. Thereafter, the respondent made some effort to obtain the funds and obtained a judgment, but never contacted the ex-husband’s employer for assistance until July 2002. The respondent admits he did not always return the complainant’s calls or respond to her letters. The respondent has now written to the complainant and explained the situation and is taking steps to complete the transfer of funds for her. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).

 

Fees

— The respondent represented a client in a post-decree child support matter. The respondent did not provide a written fee disclosure to the client and never filed a motion to withdraw in that matter. The client sought guidance from the respondent regarding a dispute she was having with her employer. The respondent advised that the client should try to settle the dispute directly with the employer, and advised that he would not represent her in that matter. The client’s employer asked the respondent to represent the employer in the employment dispute with the client. The respondent agreed to represent the employer based on his prior representation of that client in several matters. The respondent continued working on the employment dispute for several months, despite the fact that the adversary was a current client of his in another matter and had sought guidance from the lawyer in the employment matter. The rules implicated are Colo. RPC 1.5(b) and Colo. RPC 1.7.

 

Criminal Conduct

— The respondent was arrested and charged with violation of CRS § 42-4-1402 (careless driving); CRS § 42-4-1301(1)(a) (driving a vehicle under the influence of alcohol); and CRS § 42-4-1301(2)(a) (driving a vehicle with excessive alcohol content in blood/breath). Subsequent to the above-mentioned arrest, the respondent submitted to a breath test resulting in a blood alcohol content ("BAC") value of 0.229. The respondent entered a guilty plea to driving under the influence of alcohol. Pursuant to the guilty plea, the respondent was sentenced to unsupervised probation for a period of twenty-four months; a fine of $424; no use of alcohol for twelve months; sixty hours of useful public service; and an alcohol evaluation in compliance with all recommendations of the evaluation. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with the court sentence, abstain from alcohol, and participate in an Antabuse program, with monthly reports to the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

— The respondent was arrested for DUI after failing to stop for a red light. The respondent’s BAC was .195. Following the arrest, the respondent completed Level II alcohol education and therapy. The respondent pled guilty to a reduced charge of DWAI and was sentenced to six-to-eighteen months’ probation; alcohol evaluation and treatment, which had been completed; and twenty-four months of community service. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and comply with the terms and conditions of the sentence imposed. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

Conflict of Interest

— The respondent represented siblings in an effort to obtain a guardianship and conservatorship for the clients’ elderly father. Although the fee agreement listed one sibling as the client, the other sibling was a participant in discussions concerning the case, was copied with billing statements, and was referred to as a party in the various pleadings. The respondent met with both clients to prepare for an upcoming hearing, including review of testimony and documents. During that meeting between the clients and the respondent, a dispute arose between the two clients. Both clients made statements to the respondent as counsel. Subsequent to learning of the conflict/dispute between the clients, the respondent withdrew as counsel for only one of the clients. The hearing went forward without one of the clients being represented. The rules implicated are Colo. RPC 1.7(a) and Colo. RPC 1.7(c).

— The respondent represented a car owner whose car, while being driven by the client’s son, was involved in an accident. The respondent also met with the person who was the passenger in the car at the time of the accident, and commenced an attorney-client relationship with the passenger as well. The respondent agreed to pursue an insurance claim for the car owner. The respondent also informed the passenger that if he were able to obtain a claim against the car owner’s insurance company, he would pursue a claim for bodily injuries on behalf of the passenger. The respondent informed the car owner and the passenger that he was unable to get the insurance company to pay a claim in the case and, therefore, the car owner would not be reimbursed for any medical bills she had paid and the passenger would not have a source to recover on any additional damages. However, the respondent did advise the passenger that he would pursue a claim against the driver of the car, a minor at the time of the accident and the child of the car owner, if a retainer was paid. The rule implicated is Colo. RPC 1.7.

Termination of Representation

— The respondent’s law firm represented a client in a personal injury case in 2000. The client’s case was settled and the file was closed. In July 2002, the client’s lawyer in a workers’ compensation matter wrote to the law firm, requesting a copy of her personal injury file. The request was accompanied by a request from the client that her file be provided to her lawyer. Initially, the lawyer who handled the client’s case, and his paralegal, searched for the file. They determined that the file was stored with other archived files. Consequently, the request for the file was turned over to the respondent (one of the partners in the law firm) within approximately two or three days of the initial request. The client’s new lawyer called the respondent’s law firm about two months later, inquiring about the search for the client’s file. The lawyer was advised that the file was still in storage and that a request had been made to the respondent to retrieve the file. Additionally, the client called respondent’s firm to determine why her file had not been located pursuant to her request. She was told that the file was in storage, and that requests had been made for its retrieval. Despite these requests for the file, the respondent did not take steps to retrieve the file. After being contacted by the Office of Attorney Regulation, the respondent still failed to deliver the file, claiming it was not relevant and that he was busy traveling. The rule implicated is Colo. RPC 1.16(d).

— The respondent represented a client in post-decree dissolution proceedings in approximately 1997. At the close of the representation, the client’s file was closed and maintained by the respondent with other archived files. At some point, the client decided to take action to collect unpaid child support. The client requested the respondent return her file so that she could handle the child support arrearage matter. The client claims to have made numerous requests for more than one year, seeking the return of her file. Despite his client’s requests for the return of the file, the respondent did not take steps to retrieve the file until after the respondent was contacted by the Office of Attorney Regulation; then, the respondent located the file and contacted the former client. The rule implicated is Colo. RPC 1.16(d).

Responsibilities of a Partner
Of Supervisory Lawyer

— The respondent is a principal of a small litigation firm. A client came to the firm with a partnership case. The thrust of the plaintiff’s claim was that his alleged partner had transferred a piece of partnership property to the alleged partner’s ex-wife as part of their divorce. The respondent assigned the case to an inexperienced associate. The associate drafted a complaint that did not raise a number of possible causes of action, and the respondent did not review the complaint. The associate did not conduct discovery until a year after the complaint was filed, the defendant failed to answer the written discovery or to produce documents, and the associate did not move to compel production. The associate took a deposition of the defendant approximately fifteen months after the filing of the complaint. At the deposition, the defendant claimed to have "boxes of documents" that supported his contention that the plaintiff owed him money and that, therefore, the defendant had been entitled to transfer the partnership property to his ex-wife. The associate continued the trial date based on not having received the defendant’s documents. However, the associate did not seek to compel production of them. One year and nine months after the complaint was first filed, the associate drafted and filed an amended complaint. The rescheduled trial was six months away, but the associate did not conduct discovery and did not prepare for trial. The client retained other counsel after the case had been pending for more than two and one-half years. Throughout the time, the case was being handled by the associate, the respondent reviewed the bills to the client on a monthly basis and received informal reports on the case. Notwithstanding, the respondent did not take steps to ensure that the associate complied with his ethical obligations to provide diligent and competent representation to the client. As part of the Diversion Agreement, the respondent is to attend Ethics School. The rules implicated are Colo. RPC 5.1(a), Colo. RPC 5.1(b), and Colo. RPC 5.1(c).

Scope of Representation

— The client retained the respondent to represent him with regard to injuries sustained when the client was hit by a car. The client and the respondent signed a contingent fee agreement that included the following language: "The attorneys are hereby authorized to undertake any actions they deem necessary to represent the Client on the matters described" in an earlier section of the fee agreement. The respondent sent a letter to an insurance adjustor offering to settle the case, indicating that: "At this time, our client has authorized us to make the enclosed offer of settlement regarding his claim" and "[Client] has authorized our firm to accept $17,500 in full and final settlement of his claim." The respondent sent a copy of this letter to his client at the same time that it was sent to the insurance adjustor. The respondent had not talked to his client about the settlement offer and had not received authorization to make any settlement offer in the case. The respondent believed he did not have to seek authorization from his client at the time of making the initial settlement demand, because the language in his fee agreement allowed him the unfettered discretion to make a settlement demand based on his experience and the facts of the case. The rule implicated is Colo. RPC 1.2(a).

Private Admonitions

— The respondent used a COLTAF trust account as a personal account, by keeping personal funds in the account and using the account to pay personal or office expenses. Throughout the period of time the account was used in this manner, the respondent kept only his personal funds in the account and did not have any client or third-party funds in that account. The respondent also failed to communicate in writing to several of his clients, before or within a reasonable time after commencing representation, the basis or rate of his fee. The rules violated are Colo. RPC 1.5(b) and Colo. RPC 1.15(f).

— The respondent failed to respond to a written request for investigation sent by Regulation Counsel, as provided in C.R.C.P. 251.10, and otherwise failed to cooperate with Regulation Counsel in a disciplinary investigation. Through investigation of the underlying allegations, however, Regulation Counsel determined that there was not clear and convincing evidence of misconduct as alleged by the complaining witness. The rules violated are Colo. RPC 8.1(b) and C.R.C.P. 251.5(d).

Municipal Court Judge Matter

— The respondent is a municipal court judge. In that capacity, he reviewed a file pertaining to a traffic citation that was pending before him. The city attorney handling the case had some discourse with the defense attorney regarding whether the municipal court had jurisdiction over the matter. The city attorney affixed a note indicating that a question was raised whether the charged offense occurred within the jurisdiction of the municipal court. The respondent, in his capacity as the municipal court judge to whom the underlying matter was assigned, wrote a note to the city attorney handling the case that reads as follows: "[City Attorney], § 18-1-102(10) says that when an offense is committed on the boundary line between two counties, or so close thereto as to be difficult to readily ascertain in which county the offense occurred, the offense is committed and the offender may be tried for the offense in either county. Do you still want to dismiss? . . ." Apparently, this note was affixed to the Motion to Dismiss in the file and returned to the city attorney. A copy of the note was not provided to the defense attorney. The defense attorney discovered the note in the file when he went to the municipal court and attempted to set a hearing to be heard on a motion to dismiss for lack of jurisdiction. As a condition of the Diversion Agreement, the respondent will attend a municipal judge conference. The rules implicated are Colorado Code of Judicial Conduct, Canons 2(A) and 3(A)(4).

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