|The Colorado Lawyer|
Vol. 32, No. 7 [Page 143]
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From the Courts
Matters Resulting in Diversion
Matters Resulting In Diversion And Private Admonition
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
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, 2003, through May 19, 2003, at the intake stage, Regulation Counsel entered into 20 Diversion Agreements involving 21 separate requests for investigation. ARC approved 7 Diversion Agreements involving 9 separate requests for investigation. The PDJ did not approve any Diversion Agreements during this time frame. ARC issued one private admonition involving one separate request 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 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 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: lack of competence implicating Colo. RPC 1.1; an attorney’s neglect of a matter and/or failure to communicate implicating 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 implicating Colo. RPC 8.4(b); fee issues implicating Colo. RPC 1.5; failure to withdraw from representation or protect the client’s interest upon termination implicating Colo. RPC 1.16; revealing confidential information implicating Colo. RPC 1.6; communicating with someone represented by counsel implicating Colo. RPC 4.2; and trust account issues implicating Colo. RPC 1.15.
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
— The respondent was retained to represent a developmentally disabled person who was incarcerated pursuant to a juvenile commitment as an aggravated juvenile offender and while on probation in a separate case. The developmentally disabled person violated the terms of his probation and was facing a lengthy prison sentence for so doing. Respondent appeared at the sentencing hearing and advocated that the developmentally disabled person be turned over to his family for supervised probation. The assistant district attorney asked for a multi-year prison sentence, with a review of the possibility of supervised probation of one year. The court granted the assistant district attorney’s request. Respondent failed to inform the court that his client already had been incarcerated for more than four years and did not request credit for this pre-sentence confinement. When the developmentally disabled person appeared one year later for the review hearing, the successor judge was uncertain whether he had authority to review the developmentally disabled person’s sentence, because it was not clear respondent had complied with C.R.Crim.P. 35(b). As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, as well as attend a minimum of eight hours of continuing legal education concerning juvenile procedure and eight hours of continuing legal education concerning criminal procedure. The rule implicated is Colo. RPC 1.1.
— The respondent represented a client in a domestic relations matter. The court entered a decree of dissolution of marriage in August 2000. Post-decree, the respondent received information from the client alleging that the opposing party had not disclosed certain marital assets. The respondent prepared and served a subpoena duces tecum on the opposing party, to produce personal bank records. At the time the subpoena duces tecum was prepared and served, there was no pending action before the court. The court subsequently issued an order quashing the subpoena duces tecum, making a finding that ". . . subpoena for deposition in duces tecum are inappropriate." As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1, Colo. RPC 3.1, and Colo. RPC 8.4(d).
Diligence and/or Failure to Communicate
— The respondent represented a client, pro bono, in a dissolution of marriage action. The decree in the underlying case was entered in September 2002. The separation agreement, which became an order of the court, awarded the former marital home to the respondent’s client. The property was to be transferred via a quit-claim deed within ten days of the court order/separation agreement. The respondent did not prepare the quit-claim deed until two months later. The respondent did not communicate with the client concerning the transfer documents during those two months. The respondent sent an unexecuted quit-claim deed to the client for review at the end of November 2002. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and prepare a quit-claim deed for the client with written confirmation to the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— The respondent was retained in a dissolution of marriage action. The client paid the respondent an initial retainer of $1,500. The respondent prepared the dissolution petition, sent it to the client for approval, and subsequently mailed the petition to the court for filing at the end of January 2002. In early March 2002, the respondent received the waiver and acceptance of service from the client’s spouse. The respondent’s office mailed a notice to set the case for permanent orders. Neither the respondent nor the staff followed through with the scheduled setting. In March and April 2002, the respondent received conflicting financial information from the client. In mid-April, the respondent set aside the information, intending to work on reconciling the differences and drafting the client’s financial affidavit, but ultimately failed to do so. In early September 2002, the client called the respondent to inquire about his case. The respondent informed the client that no hearing had been scheduled yet. At the same time, the opposing counsel called the respondent regarding the client’s financial affidavit. Shortly thereafter, the respondent received the opposition’s written discovery requests and a notice for the client’s deposition. Opposing counsel indicated, however, that the discovery responses due in late October and the November deposition would be unnecessary if he received the respondent’s client’s financial affidavit. Planning to prepare and file the financial affidavit, the respondent did not inform the client about the discovery requests, the deposition, or his communications with opposing counsel. Dissatisfied with the respondent’s handling of his case, the client retained new counsel. The respondent received written notification of the client’s decision to hire new counsel. The respondent promptly signed the substitution of counsel form and transferred the client’s file to his new attorney. The client then learned from his new counsel about his deposition scheduled for November. The client wrote to the respondent, expressing his dissatisfaction and demanding the return of his retainer. The respondent immediately returned the full amount of the retainer with a letter of apology. The client filed a request for investigation with the Office of Attorney Regulation. The respondent acknowledges he neglected the client’s matter. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— The respondent was retained to file a petition for dissolution of marriage and obtain child support. The client informed the respondent that the main concern was obtaining child support as soon as possible. The respondent filed the petition for dissolution and a motion for temporary orders. The client’s spouse filed a pro se response. Despite the client’s desire for immediate action on the child support issue, the respondent failed to set the initial status conference or a hearing on the temporary orders for several months. Due to the respondent’s delay: (1) the conference was held four months after the case was filed; and (2) temporary orders for child support were entered five months after the case was filed. The respondent admits the delay in setting the initial conference. The respondent maintains there was a delay because the client’s spouse had not yet retained counsel and the respondent was reluctant to proceed against the unrepresented party. The respondent failed to discuss the decision to delay the case with the client or obtain authorization to delay the matter. Within months of being ordered to pay temporary child support, the client’s spouse stopped paying. The client sought help from child support enforcement, but was told the agency could not assist her because she was represented by counsel. The client wrote to the respondent, demanding that the respondent immediately withdraw from the case and release her file. The respondent wrote to the client, enclosing a copy of the motion to withdraw and the client’s file. A few weeks later, the client checked with the court and found that the respondent had not filed any motion to withdraw. The client again wrote to the respondent, demanding the respondent withdraw from the case immediately. The respondent filed the motion to withdraw. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.2(a), Colo. RPC 1.3, and Colo. RPC 1.4.
—The respondent was retained for representation in a dissolution of marriage action. The client paid the respondent a $1,200 retainer, plus $119 for service and filing fees. Within days, the client became frustrated with her inability to reach the respondent. The client’s husband, who was representing himself pro se, informed his wife that he, too, was having difficulty reaching the respondent and that when he did reach the respondent, the respondent was rude and unprofessional. Consequently, the client believed the respondent was making her situation worse rather than better. The client telephoned the respondent and left a message that she was terminating the respondent. The client also requested an itemized statement and a refund of the unused portion of her retainer. The respondent called the client to inform her that the respondent would return the unused part of her retainer once the respondent completed the billing statement. The client wrote to the respondent, confirming her termination of their attorney-client relationship and again requesting her retainer refund. The letter was misaddressed by the client and re-routed by the U.S. Post Office, and was not received by the respondent until a few weeks later. That same day, the client’s new attorney wrote to the respondent, noting that he and the client had tried to call respondent but found the number disconnected. The new attorney’s letter reiterated the client’s request for a refund and an itemized statement. The respondent left a check in the client’s mailbox. The respondent claims the respondent also called the new attorney’s office to inform him that the respondent would be providing the client with an itemized statement that day. The client maintains the respondent left only the refund check in her mailbox, without any note or billing statement. The general counsel for the client’s union also wrote to the respondent regarding the client’s dissatisfaction with respondent’s services and failure to provide an itemized billing statement. Several months later, the client sent a letter to the respondent via certified mail, again asking for an itemized bill and the remaining refund from her retainer. The respondent admits the respondent received the client’s certified letter and did not respond because the respondent believed the client was trying to secure undeserved additional discounts. The respondent provided an accounting. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 1.15(b).
— The respondent was contacted by an individual who had suffered a workers’ compensation injury concerning whether she had additional employment rights. The individual was represented by another attorney to represent her in the workers’ compensation matter. The respondent initially informed the individual that he would not accept and represent her in the workers’ compensation claim, when she informed the respondent that she was dissatisfied with the representation of her workers’ compensation attorney. Ultimately, after the workers’ compensation attorney withdrew from representation of the complainant, the respondent entered his appearance. The respondent’s fee agreement provided for a contingency of 25 percent, rather than a 20 percent contingency fee. The workers’ compensation proceeding was determined against the complainant and no compensation was awarded to the client. While the workers’ compensation matter was pending, the client was involved in an automobile accident. The client requested the respondent’s assistance in obtaining compensation for the property damage suffered to her automobile. The respondent wrote to the insurance carrier, who did not pay. The respondent notified the client of this determination. The client had surgery on her right shoulder and elbow and then obtained a second opinion that the wrong surgery had been performed, and that additional surgery was necessary. The client met with the respondent to discuss the second opinion and the need for additional medical treatment. The respondent agreed to assist the client to see if the insurance company would pay for the additional medical care if the facts justified such. The respondent advised the client to contact the insurance carrier. The respondent indicated that he would contact the insurance company if the client was unsuccessful in her efforts. Thereafter, the client contacted the respondent, seeking the status of communications with the insurance company. The client terminated the attorney-client relationship with the respondent when several of the calls were not returned. The respondent maintains that he did not agree to represent the client in any proceeding or administrative matters other than the workers’ compensation matter, although he did agree to counsel the client concerning other matters and did tell the insurance company he was her representative. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), and Colo. RPC 1.5(a).
— The respondent met with a client concerning various post-decree issues, including a pending motion to emancipate minor child and terminate child support. The motion was dated July 12. The respondent was given a copy of the motion on July 29. The respondent received a retainer in the amount of $1,000, which was deposited into the respondent’s trust account on July 31. The respondent filed neither a response to the above-mentioned motion, nor a request to the court for an extension of time within which to respond to the motion. The respondent cannot recall when he first attempted to review the court file in the underlying matter, but a copy of the register of actions in the respondent’s file is dated September 9. The register of actions indicates the court granted the opposing party’s above-mentioned motion on August 9. The respondent did not notify the client of the court’s order until October 5, when the respondent wrote a letter to the client and returned the retainer fee. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.3.
— The respondent was retained to handle three separate legal matters for a client. The respondent accepted a $1,500 retainer to handle these matters. The respondent treated the flat fee retainers as earned on receipt and did not hold them in trust until they were earned. Despite the fact that all three matters had actions pending in court, the respondent failed to enter his appearance in one case at any time after being retained, and delayed his entry of appearance in the other two cases until ten months later. As a result of the delay in entering his appearance in each matter, the client substantially resolved two of the three matters on his own, and respondent withdrew from the third after doing minimal work. The respondent provided a refund of a portion of the retainer, as well as accountings showing work that the respondent had done in the cases to earn the portion of the fee that was not refunded. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and Trust Account School. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), and Colo. RPC 1.15.
— The respondent was retained by a client to seek permanent residence for the client’s wife. The respondent prepared the appropriate paperwork for the application; however, the respondent did not file the application. The respondent attributes this to the family’s failure to return certain forms with signatures notarized. The respondent recalls that the family returned the forms signed, but not notarized; the respondent then sent the family new forms, with instructions to sign the forms before a notary and return them. The respondent did not hear from the family again until approximately two years later. Rather than attempt to contact the family to ask why they had not returned the notarized forms, the respondent placed the file of the case in storage. When the client’s family attempted to contact the respondent to learn about the status of the wife’s application for permanent residence, the family was unable to reach respondent, even though the family left many messages. The respondent attributes his lack of communication and inability to locate the wife’s file to a variety of reasons, including poor health, staffing difficulties, and interference from his landlord. Eventually, the respondent located the file in question. Upon opening it, the respondent discovered that the application had never been filed. As a result, the family was required to submit a new application. As part of the conditions of the Diversion Agreement, the respondent must have his health monitored, submit to a practice audit by an experienced immigration lawyer, and attend Ethics School. The rule implicated is Colo. RPC 1.3.
— The respondent was hired to assist the client in a workers’ compensation case. The opposing party made a final settlement offer sometime in late 2002. The respondent sent correspondence to the client, outlining the final settlement offer and requesting that the client contact the respondent with his decision to accept or reject the offer. In response to the respondent’s correspondence, the client attempted to contact the respondent, on December 26, January 14, and March 27. Although the client’s attempted communications were documented in the respondent’s file, the respondent did not respond to the telephone messages until contacted by the Office of Attorney Regulation Counsel. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— The respondent was hired to assist the clients in resolving a dispute with a third party over a mining claim and to obtain a restraining order against the third party to stop the removal of materials from the mine. The client believed the third party was causing serious damage to the property and wanted the restraining order immediately. There was no written fee agreement. The respondent was paid $1,300. Between June and August 2001, the client made repeated calls to the respondent, requesting action on the case, particularly the restraining order. In August 2001, the respondent mailed to the client the documents necessary to obtain the restraining order. The client signed them before a notary and returned them to the respondent by overnight mail the same day. The respondent also sent the client a draft complaint to be filed against the third party. The respondent claimed he was unable to obtain the restraining order or file the complaint because he was unable to effect service of process. However, the respondent was unable to document what attempts were made to obtain service. The client had provided the respondent with a detailed map to the mine site and claims to have provided the respondent with an address where the third party could be served. The respondent finally accomplished service on the third party in January 2002. By that time, the restraining order was unnecessary due to winter weather conditions. When the defendant failed to file a timely answer, the client requested that respondent immediately file a motion for default. There was a draft of the motion for default in the respondent’s file, but it was not filed before the defendant filed an answer and counterclaim. The respondent admitted that he does not always "tickle" or calendar things, and takes action when he has time to do so. The client fired the respondent and hired new counsel. The respondent provided an accounting in May 2002 and refunded $119 to the complainant. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, as well as refund $875 to the client and provide proof of payment to the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), and Colo. RPC 1.5(b).
— The respondent was retained by a client for issues involving child support and parenting time. Prior to retaining the respondent, the client paid a $1,200 retainer to his first attorney. After the first attorney was discharged, the client retained the respondent and the remainder of said retainer was paid to the respondent. The oral agreement of the parties contemplated that the respondent would bill the client on an hourly basis for work to be performed. The respondent failed to provide the client with a written fee disclosure, explaining the basis and rate of the fee before or within a reasonable time after commencing the representation. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.5(b).
— The respondent was retained by the client concerning an adverse Department of Motor Vehicle hearing, in which the client was designated as a habitual traffic offender. The respondent first met with the client in April 2002, and the initial payment for legal services was received on May 1, 2002. Although the respondent worked on the case, the respondent did not provide the client with a written fee disclosure. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.5(b).
— The respondent was arrested and charged with violations of CRS §§ 42-4-1301(1)(a) and 42-4-1301(2)(a). Pursuant to the arrest, the respondent submitted to a blood test. The respondent’s blood alcohol content ("BAC") was .161. The respondent pled guilty to driving while ability impaired. As part of the conditions of the Diversion Agreement, the respondent must comply with the court sentence, attend recovery and peer support meetings, abstain from the use of alcohol, take breathalyzers, and attend Ethics School. The rule implicated is Colo. RPC 8.4.
— The respondent was arrested for DUI, after being stopped for weaving and failing to use a turn signal. The respondent’s BAC was .188. At the time of the arrest, the respondent was on probation for a prior DUI, at which time the BAC was .218. The respondent pled guilty to a reduced charge of DWAI. The respondent was sentenced to Level II alcohol education; sixty-eight hours of therapy with a psychiatrist; abstinence; forty-eight hours of community service; fifteen days in jail; and supervised probation for two years. The probation on the prior case was not revoked. As part of the conditions of the Diversion Agreement, the respondent must comply with the terms and conditions of the sentence imposed, attend Ethics School, attend ALANON, and undergo random breathalyzers and urinalysis testing. The rule implicated is Colo. RPC 8.4(b).
— The respondent was arrested for DUI, speeding, and possession of drug paraphernalia. The respondent initially agreed to cooperate with the administration of voluntary roadside maneuvers. The respondent began testing, and after three requests, the respondent refused to complete the remainder of the tests, including blood alcohol testing. The respondent was finally administered a blood alcohol test. The respondent’s blood alcohol was .070. The respondent pled guilty to DWAI. The respondent was sentenced to twenty-four hours of community service, participation in the M.A.D.D. panel, was referred for alcohol evaluation, and sentenced to ninety days’ jail time, all of which was suspended. The court’s alcohol unit recommended completion of Level 1 education and further recommended random urinalysis testing twice a month. As part of the conditions of the Diversion Agreement, the respondent must comply with the terms and conditions of the sentence imposed and attend Ethics School. The rule implicated is Colo. RPC 8.4(b).
— The respondent’s wife suffers from depression and exhibits "bi-polar" symptoms. Although she had initially taken medication for this condition, she eventually stopped taking medication. This caused her moods to become more volatile. At a time when she was no longer on medication, the respondent’s wife and respondent had an argument. The respondent grabbed his wife by the arm and pulled her into another room, so that their child would not hear the argument. The respondent’s wife reported this incident to the police. The police investigated and discovered, inter alia, that the respondent’s wife’s arm was bruised. When the respondent learned this had happened, he turned himself into the police. He was charged and pled guilty to the reduced charges, a misdemeanor. The respondent was placed on supervised probation and required to attend domestic violence counseling. The respondent has complied with the terms of his probation and there have been no further domestic incidents. As part of the conditions of the Diversion Agreement, the respondent must comply with the terms and conditions of his probation and attend Ethics School. The rule implicated is Colo. RPC 8.4(b). Regulation Counsel policy requires review of all domestic violence cases by the Attorney Regulation Committee.
Conduct Prejudicial to the
Administration of Justice
— The respondent is the petitioner in a district court case. The opposing party filed three contempt actions, alleging, among other things, that the respondent violated the permanent orders by not complying with the parenting time schedule, by removing the children from the Denver metropolitan area without permission of the opposing party or the approval of the guardian ad litem, and by removing one of the children from therapy without the court’s approval. The court dismissed all contempt allegations against the respondent with the exception of the removal of the child from therapy without court order or approval. The court found that with respect to the termination of therapy, there was a technical violation of the court order, it was a willing and knowing violation, and the respondent, being an attorney and understanding what a court order is and failing to get a waiver from or modification of the court order, engaged in an act of contempt. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 8.4(d) and Colo. RPC 8.4(g).
Conduct that Adversely Reflects on the Lawyer’s Fitness to Practice Law
— The respondent was retained to represent a client with regard to an automobile accident. During the initial meeting, the respondent claims to have made observations that the client appeared to be depressed. In an attempt to "build the client’s ego," the respondent made several remarks to the client over the course of the representation. The respondent’s remarks included comments about how attractive she was; how he would "chase her all around the office . . . if she was thirty years older"; "hasn’t your mother ever told you what happens when you put your legs up in the air" or words to that effect, when discussing the fact that she was experiencing numbness and tingling in her legs; and other comments including sexual innuendo. The client perceived the respondent’s comments as sexual harassment. The respondent claims that his comments were all made in jest, that the client appeared to think they were funny, that she "seemed to take [the comments] as a compliment," and that the client never advised him that she was offended by any of the remarks. The respondent claims that he would not have made the comments if she had complained to him. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and attend a training session on sexual harassment. The rule implicated is Colo. RPC 8.4(h).
Termination of Representation
— The respondent represented a client in a dissolution of marriage matter. At the time the respondent was retained, a petition for dissolution of marriage had been filed and the client had filed a response pro se. The respondent entered his appearance for the client at the first status conference held before a magistrate judge. At the status conference, the magistrate established deadlines for initial disclosures and for submission of financial affidavits. Thereafter, the respondent had difficulty communicating with his client and was unable to comply with the deadlines established by the court. The respondent also did not receive from his client all of the payments the client had agreed to make toward the respondent’s total fee. The respondent did not seek an extension of time for his client to file mandatory disclosures and to submit his financial affidavit. Instead, on the eve of the second status conference before the magistrate, the respondent spoke to his client and informed the client that he was terminating his representation of the client and would not appear at the status conference with him. The client appeared for the status conference without the respondent. Interim orders were entered by the magistrate and the matter was set for a default permanent orders hearing. The client was unable to retain new counsel to represent him at the permanent orders hearing and the respondent failed to file a motion to withdraw from representation with the court prior to the hearing date. Neither the respondent nor his client appeared for the permanent orders hearing, and orders were entered by default. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and provide verification of formal withdrawal from representation in the dissolution matter. The rule implicated is Colo. RPC 1.16(d).
Failure to Disclose Legal
Authority to a Tribunal
— The respondent entered his appearance as counsel for the defendant. At trial on the matter, a dispute arose regarding the respondent’s attempts to introduce evidence that the complaining witness suffered from "mood swings" as a pertinent trait of character under C.R.E. 404. The court asked counsel for case law on the issue. The respondent cited certain federal and Colorado case authorities to support his position. The following day, the district attorney informed the court that respondent had failed to cite the controlling Colorado case authority on the C.R.E. 404 issue. The respondent claims he did not intentionally mislead the court about the legal authority at issue and that the failure was due to passage of time and inaccurate memory. However, when questioned by the court about the issue, the respondent acknowledged that he was extremely familiar with the case, because it was his case. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 3.3(a)(3) and Colo. RPC 8.4(c).
Scope of Representation
— The respondent represented a client in a social security disability matter. After denial of the client’s benefits, the case was appealed and ordered remanded for another hearing. During the interim, the client obtained employment and told the respondent she no longer wished to pursue the matter. The respondent faxed a letter to the Social Security Administration’s Denver Office of Hearings and Appeals, giving notice that he no longer represented the client. Several months later, the Administrative Law Judge ("ALJ") wrote to the respondent, advising that the court planned to schedule a hearing on the case. The ALJ then sent the respondent and the client a notice that the hearing had been scheduled. The respondent faxed a letter to the ALJ, requesting a continuance of the hearing, as well as an on-the-record decision granting the client disability and a trial work period. The respondent failed to inform the court that: (1) the client had indicated she no longer wished to pursue the matter; (2) the respondent had not communicated with the client; and (3) the respondent had not obtained authority to represent the client further, or to seek a continuance or any decision on the case. The ALJ faxed a letter to the respondent, stating that: (1) the respondent’s requests for a continuance and a decision on the record were denied; (2) the respondent and the client were both to appear at the hearing as scheduled; and (3) if the respondent believed the client’s appearance was not required, the respondent was still expected to appear to waive the client’s appearance on the record and state that further testimony was not relevant or material. The letter further noted that a vocational expert had been scheduled for the hearing and that the respondent would have an opportunity to ask the expert questions on the client’s behalf. The respondent attempted to contact the client but was unsuccessful. Shortly before the hearing, the respondent faxed a note to the ALJ stating that the respondent had not been able to reach the client and would not be attending the hearing that day. Despite the notice and written instruction, the respondent failed to appear at the hearing. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.2(a), Colo. RPC 3.3(a)(1), Colo. RPC 3.4(c), and Colo. RPC 8.4(d).
Disobey an Obligation Under the
Rules of a Tribunal
— The respondent represented a client in a dissolution of marriage action. At the initial status conference, the matter was set for permanent orders. The respondent mailed a subpoena duces tecum to a third party for production of documentation concerning counseling sessions with the parties. Contrary to C.R.C.P. 45, the respondent’s subpoena did not reference any deposition, hearing, or trial, nor did it specify any time or place for the third party’s testimony or production of documents. The respondent intended to effectuate the production of the third party’s records, without holding any deposition, hearing, or trial. The third party wrote to the respondent informing him that, absent authorization from both of the parties, the confidential information could not be released. The third party then consulted legal counsel concerning the propriety of the respondent’s subpoena. The third party telephoned Attorney Regulation Counsel and filed a request for investigation of the respondent’s conduct regarding the subpoena issue. The respondent claims the subpoena was merely a "friendly form" subpoena and was not intended to harass or mislead the third party into disclosing privileged or confidential information. The subpoena, however, stated in large, bold print, "Failure to produce the requested documentation will result in issuance of a warrant for your arrest." As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 3.4(c), Colo. RPC 4.1(a), Colo. RPC 4.4, and Colo. RPC 8.4(c).
Confidentiality of Information
— The respondent disclosed to defense counsel that there were differences of opinion within his office as to the strength of a particular criminal case being handled by another prosecutor. At the time he made these disclosures, the respondent was not directly involved in the case in question, nor was he in a position to set policy and define the objectives that the prosecutor’s office would pursue. Because of this, the respondent was required to consult with the respondent’s superior before making disclosures of confidential information. However, he failed to do so. The respondent did not act out of a dishonest or selfish motive. He believed his disclosure was in the best interest of the public, because it could lead to an early settlement, thereby saving the prosecutor’s office resources which otherwise would be required to take the case to trial. Instead of settling, the defense attempted to use the respondent’s disclosures in discovery. The defense moved for production of internal memos written by the attorneys who had declined prosecution of the case. The judge denied the motion. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.6(a).
Communication with Person
Represented by Counsel
— Following an internal investigation of an allegation of sexual harassment by a tenured professor, the respondent contacted the person who had conducted the investigation. Thereafter, the respondent copied the dean of the school with a letter he sent to the complainant, who is general counsel for the school. The complainant then sent two letters to the respondent, informing him that all communication should be with complainant, and requesting that he not copy the client with his correspondence. Within days, the respondent wrote directly to the dean and, on the following day, copied the dean with a letter he had sent to the complainant. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.2.
— The respondent authorized a credit company to take automatic withdrawals from the respondent’s trust account for approximately two months. The respondent has an ongoing personal obligation to pay the credit company. The withdrawals were in the amounts of $200, $450, and $120. On three separate occasions, the respondent transferred personal funds into the trust account in order to meet personal obligations to the credit company. The respondent held no client funds in the trust account for those months. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and Trust Account School. The rule implicated is Colo. RPC 1.15.
— The respondent self-reported his conviction after a jury trial of driving while ability impaired. The respondent refused to comply with any additional conditions other than those imposed by the criminal case. The rule implicated is Colo. RPC 8.4(b).
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