Vol. 32, No. 10
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 May 20, 2003, through August 19, 2003, at the intake stage, Regulation Counsel entered into 18 Diversion Agreements involving 18 separate requests for investigation. ARC approved 6 Diversion Agreements involving 9 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 may 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, which are conducted by attorneys from the Office of Attorney Regulation Counsel. An attorney may also be required to fulfill any of the following conditions: law office audit; practice monitor; financial audit; restitution; payment of costs; mental health evaluation and treatment; attend CLE courses; and any other conditions that may be appropriate for the particular type of misconduct. Note: The terms of a Diversion Agreement may not be detailed in this summary if the terms are generally included within Diversion Agreements.
After the attorney successfully completes the requirements of the Diversion Agreement, Regulation Counsel will close its file, and the matter will be expunged pursuant to C.R.C.P. 251.33(d). If Regulation Counsel has reason to believe that the attorney has breached the Diversion Agreement, then Regulation Counsel must follow the steps provided in C.R.C.P 251.13 before an agreement can be revoked.
The types of misconduct resulting in diversion for the time period described above generally involve the following: 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
— An experienced lawyer handling a medical malpractice case failed to timely file a certificate of review, as required by CRS § 13-20-602. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.3.
Diligence and/or Failure to Communicate
— The respondent represented a party involved in a dispute pertaining to a business that was an asset of an estate. The respondent’s client, an employee of the business prior to the owner’s death, ran the business for a short time after the owner’s death in October 1998. The respondent’s client was in possession of personal checks with a total value of $1,223.86, made payable to the business. The personal checks were written by clients of the business after the owner’s death, and were payments for services rendered after the owner’s death. The dispute pertaining to the business included who was entitled to the proceeds of the checks written to the business after the owner’s death. The personal checks were never cashed. In February 2000, the attorney for the opposing party wrote a letter to the respondent setting forth several issues to be addressed at a session in the case. One of the issues raised in that letter pertained to assets of the business that accrued after the time of the owner’s death. The dispute pertaining to the business was resolved in December 2000. At that time, it was determined that the checks belonged to the estate, and not to the respondent’s client. However, the checks were stale due to the fact that no one took action to cash them for more than two years. After resolving the dispute, the respondent or someone in his office conveyed the checks to the opposing party on March 12, 2001. The respondent came into possession of the checks some time between the time that he was retained by his client and March 2001, but has no record of when he received them from his client. 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 3.4(a), and Colo. RPC 4.4.
— The minor son of the respondent’s client suffered personal injuries when he was bitten on the face by a dog. After speaking only with the respondent’s paralegal, the client signed a contingency fee agreement in October 2001. During the following months, the client made numerous attempts to meet or speak with the respondent. The client was always referred to the respondent’s paralegal. In January 2002, the respondent wrote a demand letter to the insurance company for $50,000 for the son’s injuries. The respondent did not provide a copy of the demand letter to the client, nor did the respondent discuss anything about the demand letter with the client prior to sending it. By letter dated in September 2002, the client fired the respondent. Although the respondent alleges he spoke with the client at least once, he has no record of that conversation. The client alleges that from October 2001 until September 2002 she was never allowed to meet or speak with the respondent. 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 1.4(b).
— The respondent was hired by a client to represent the client in a workers’ compensation matter. Thereafter, the client retained a new attorney to represent him in the matter. The client’s new attorney wrote to the respondent, enclosed a signed release from the client, and requested that the respondent forward the file to the client’s new attorney. The respondent failed to forward the file to the new attorney and took no other action on the request. The former client sent the respondent a certified letter, requesting the respondent to return the file to the client. The file was not sent. The client contacted the Office of Attorney Regulation Counsel regarding the respondent’s failure to return file materials. The respondent did not send the client the contents of the file until after the ARC intervened. 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 1.16(d).
— The respondent was retained to represent a client in a divorce action. An issue arose at the end of the case and the respondent sent a letter to opposing counsel proposing a settlement of the issue. Opposing counsel e-mailed a counteroffer to the respondent. A couple of months later, opposing counsel sent a letter to the respondent, reminding him of the counteroffer and seeking an answer whether the counteroffer was acceptable to the respondent’s client. Shortly thereafter, a copy of opposing counsel’s letter was sent to the respondent’s client, including a copy of the e-mail. The client maintains that this was the first time he was made aware of opposing counsel’s counteroffer to resolve the amount of interest owed. The client attempted to reach the respondent to discuss the calculations contained in opposing counsel’s e-mail, but claims that he was not able to do so. In early April, the client sent a check directly to opposing counsel for the amount set forth in the e-mail. The client sent a letter to the respondent, expressing his dissatisfaction with the lack of communication about the counteroffer and his inquiries about the calculations in the e-mail. This letter specifically advised the respondent that the client sent a check to opposing counsel in the amount set forth in the e-mail. The client received voicemail messages from the respondent that addressed his calls. The respondent’s messages did not indicate any awareness of the fact that the client sent a check to opposing counsel to resolve the interest issue. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.4(a).
— The respondent was contacted by a client concerning a hearing on a permanent restraining order against the client. At the time the client contacted the respondent, the client was in the military and was about to be deployed. The respondent verbally agreed to have someone appear at the hearing on the client’s behalf and quoted a flat fee of $1,125. The respondent did not prepare a written fee agreement or any other writing concerning the fee. The case was thereafter continued a number of times through no fault of the respondent, and the respondent spent far more time than originally anticipated. The respondent requested and received an additional $375. At no time did the respondent provide the client with an accounting of how the fee the client paid had been earned. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.4 and Colo. RPC 1.5(b).
Candor Toward the Tribunal
— The respondent is a deputy district attorney who prosecuted a case concerning multiple charges against the defendant arising from a road rage incident involving the defendant and another driver ("witness"). Prior to this case, the witness also had been charged for his own conduct related to the same incident. The witness pled guilty to one count of reckless endangerment. During the witness’s testimony in the defendant’s case, an issue arose regarding the witness’s own responsibility and guilty plea concerning the road rage incident. The defense attempted to show the witness was more culpable than victim in the incident. Objecting to the defense questions put to the witness, the respondent stated, ". . . as far as we know, the witness may have had an Alford plea or pled nolo contendere." Because the respondent was also the prosecutor in the case against the witness and was present when the witness pled guilty, he knew he had not taken an Alford plea or pled nolo contendere. On multiple occasions during the trial, the respondent made personal comments about the credibility of witnesses and called the defendant "a brat on a bike from Boulder"; "an angry boy"; and a "beach bum." The jury convicted the defendant and he appealed to the district court. The defendant argued that the respondent intentionally misled the court and jury concerning the witness’s guilty plea. The district court noted that because the witness testified he felt it was in his best interest to plead guilty and did so to accept a plea bargain but did not testify that he was accepting responsibility for the episode, the only evidence before the jury was that the witness pled guilty for the purposes of accepting a plea bargain. For purposes of the appeal, the district court concluded the respondent did not make false statements of material fact knowingly or otherwise and that the respondent’s argument was of a legitimate inference. The district court found some of the respondent’s conduct and statements during trial were unprofessional but ultimately concluded that any impropriety was harmless error and upheld the defendant’s conviction. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 3.4(e), Colo. RPC 3.5(a), and Colo. RPC 8.4(h).
— The respondent represented the intervener in a child support matter. In October 2002, the parties proceeded to hearing on the motion to modify child support. At the hearing, the court ruled that the child support be increased to $646. The court ruled that the petitioner should not get a credit for health insurance until the petitioner provided proof that the children were on the policy and the exact costs for the policy. The court did not specifically rule on the issue of retroactivity. Subsequent to the hearing, the respondent submitted a proposed order to complainant’s counsel and to the court, setting child support in the amount of $660 per month and making it retroactive to on or about December 2001, which was prior to the filing of the respondent’s client’s motion. The order also gave the petitioner credit for health insurance premiums in the amount of $188 per month, even though it was undisputed that the petitioner had not paid for health insurance during the retroactive period. The court signed the order in November 2002. In December 2002, the respondent in the underlying case, through counsel, filed a motion to amend judgment or, in the alternative, for a new trial, requesting the court to modify the November 2002 order as to actual child support amounts, and that such amount not be made retroactive. In February 2003, the court entered its order, nunc pro tunc January 2003, modifying the actual child support amount and the effective date of the child support order. Complainant’s counsel expended $275 for attorney fees in filing the above-mentioned motion to amend judgment. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and pay restitution in the amount of $275 to the complainant. The rules implicated are Colo. RPC 3.3 and Colo. RPC 4.1.
— The respondent was arrested for DUI after speeding and crossing a fog line on the highway. The respondent’s blood alcohol content ("BAC") was .113. The respondent pled guilty to driving while ability impaired ("DWAI") and was sentenced to twelve to eighteen months’ probation; 180 days in jail, 135 days suspended—forty-five of those days in-home detention; alcohol evaluation and treatment; forty-eight hours of community service, and fines and costs. This was the respondent’s second plea to DWAI. The prior offense occurred approximately two-and-a-half years earlier. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with terms and conditions of sentence imposed, abstain from alcohol, enroll and pass a DUI program, and undergo random breathalyzers. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was stopped and arrested when he failed to drive in a single lane. The respondent ultimately was charged with DUI, failure to display proof of insurance, and lane usage violation. The respondent’s portable breath test showed a BAC of .138. A blood sample taken at the jail reported a BAC of .184; a second sample was reported at .171. This was the respondent’s first alcohol related offense. The respondent pled guilty to DWAI and was sentenced to probation for three to eighteen months; alcohol evaluation and treatment; and twenty-four hours of community service, in addition to fines and costs. The respondent was evaluated by a psychiatrist, who concluded that because the respondent does not meet the criteria for any substance abuse disorders, he should not be required to participate in further treatment or monitoring to ensure abstinence. As part of the conditions of the Diversion Agreement, the respondent must comply with the terms and conditions of the court sentence imposed and attend Ethics School. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was arrested after being stopped at a security check point on the road approaching the U.S. Air Force Academy. A breathalyzer at the time showed a BAC of .111. This was the respondent’s second alcohol-related offense within five years. The respondent pled guilty to reckless driving. The charge for driving with excessive alcohol content was stipulated for deferral of prosecution. The respondent was sentenced to payment of various fines. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with terms and conditions of sentence imposed, abstain from the use of alcohol, random breathalyzers at least once a week, and if the respondent is arrested and/or charged with any alcohol related offense at any time during the term of this agreement, the respondent shall report it to the Office of Attorney Regulation Counsel within ten days of the incident. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was stopped for running a stop sign. He was ultimately charged with that offense and DUI. The police report indicates that the respondent refused breath or blood testing. The respondent denies that he refused and claims it was a misunderstanding. The portable breath test at the scene registered a BAC of .198. 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 alcohol evaluation and treatment; twelve months’ probation; no alcohol while on probation; 180 days in jail, suspended; 24 hours of community service; fines and costs. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, and comply with the terms and conditions of the court sentence imposed. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— On January 3, 2002, respondent pled guilty to Driving While Ability Impaired (Drugs), in violation of CRS § 42-4-1301(1)(b). The conviction resulted from an incident wherein respondent was driving while impaired by marijuana. As a result of that conviction, the court sentenced respondent to eighteen months of probation, to perform twenty-four hours of community service, to undergo a substance abuse evaluation and follow any treatment recommendations as a condition of probation, and assessed fines, surcharges, and fees. After reporting the conviction to the Office of Attorney Regulation Counsel, respondent underwent an Independent Medical Examination and as part of the evaluation, respondent submitted urine samples that tested positive for the metabolite of marijuana. Respondent admitted recent and continuing use of marijuana to the evaluator. As part of the conditions of the Diversion Agreement, the respondent must abstain, must have random urinalysis twice monthly for one year, must provide lab results to the Office of Attorney Regulation Counsel, and therapy. The rule implicated is Colo. RPC 8.4(b).
— The respondent was charged with driving a vehicle while under the influence of alcohol/drugs. The respondent refused to submit to a blood or breath test to determine his blood alcohol level. The respondent was convicted of DWAI. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, attend two follow-up evaluations, provide monthly progress reports, undergo treatment, attend AA, abstain from alcohol/drugs, and have random urinalysis or breathalyzers (plus monthly urinalysis), with a copy of the test results to be provided to the Office of Attorney Regulation Counsel. The rule implicated is Colo. RPC 8.4.
Conduct Involving Dishonesty, Fraud,
Deceit, or Misrepresentation
— The respondent, while representing a client in a divorce proceeding, utilized the services of a mediator. At the end of the mediation session on October 21, 2002, the respondent wrote a personal check to the mediator to cover that portion of the mediator’s fee that was to be paid by either the respondent or his client. The mediator presented the respondent’s personal check to her bank for payment, but the check was returned on October 28, 2002, because there were insufficient funds in the account to cover the check. The mediator called the respondent, who assured her that he would wire sufficient funds into the account to cover the check and advised her that she could present the check again to her bank. The check was again presented to the bank, and subsequently returned to the mediator on November 6, 2002, because there still were insufficient funds in the account. When contacted again by the mediator on November 14, 2002, the respondent assured the mediator that he would send her certified funds to cover the amount of the check and any associated fees resulting from the bank rejecting the check. The mediator did not receive certified funds from the respondent, so she left several messages inquiring about the status of the money. On December 3, 2002, the mediator received a facsimile from the respondent that stated, ". . . the payment in full will be delivered by courier by noon tomorrow, December 4, 2002." On December 4, 2002, the mediator received another personal check from the respondent, written on a different personal account. The mediator presented this check to the bank for payment, but it was returned due to insufficient funds in that account. The mediator then called the respondent and demanded certified funds no later than December 18, 2002, to cover the check and associated fees. Some time in March 2003, after the mediator contacted Regulation Counsel, the respondent provided a check that cleared the bank and covered the amount that was due and owing related to the services provided by the mediator in October 2002. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 8.4(c) and Colo. RPC 8.4(h).
Conduct that Adversely Reflects on the Lawyer’s Fitness to Practice Law
— The respondent, through a letter, authorized the complainant’s firm to prepare certain databases on compact disks. The respondent had been advised that the estimated cost for that service would be $2,500. The respondent’s letter did not state or clarify that the client would be responsible for payment for the requested services. On or about April 22, 2002, the complainant submitted an invoice to the respondent in the amount of $1,923.18. The complainant did not receive payment or any other communication from the respondent. By letters dated on or about July 2, 2002, July 24, 2002, August 30, 2002, September 27, 2002, and October 25, 2002, the complainant reminded the respondent of the outstanding invoice and requested payment. The respondent did not dispute the bill or otherwise respond to those letters. The complainant contacted ARC. By letter, the respondent’s client informed the complainant that the respondent had forwarded the complainant’s letter to ARC for response. In that letter, the client claimed responsibility for the charges incurred, but requested additional information before making payment. This was the first communication the complainant had received from anyone concerning the outstanding invoice, which remains unpaid. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and must take affirmative action to resolve the issue of payment of the complainant’s bill within thirty days of the execution of the agreement. The rule implicated is Colo. RPC 8.4(h).
Conflict of Interest
— The respondent was retained for representation in a flood damage dispute. The clients paid respondent a $2,500 retainer. The respondent sent written notice of the clients’ claim to the opposing company. Unbeknownst to the respondent, his firm began contemplating representation of the company in late August 2002. Later in 2002, the managing partner of the respondent’s firm informed him about the firm’s possible representation of the company and asked if respondent had any clients that might conflict with the representation. The respondent told the managing partner he might but would have to check to make sure. The respondent did not inform the firm or the managing partner about the clients’ conflict with the company. Thereafter the respondent learned that the company had agreed to begin sending some of their cases to the respondent’s firm. In approximately March 2003, the firm circulated a list of the entities the firm would be representing for the company. Approximately one month later, the respondent wrote to his clients informing them that he was terminating the representation based on the firm’s decision to begin representing the company. In mid-May 2003, the respondent’s firm returned $1,180.76 to the clients as the unearned portion of their retainer. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, provide a check to the Office of Attorney Regulation Counsel, made payable to the clients and in the amount of $1,056.74, and provide a written letter to the Office of Attorney Regulation Counsel that he has informed his firm about the conflict. The rule implicated is Colo. RPC 1.7.
Disobey an Obligation Under the
Rules of a Tribunal
— The respondent represented a client in a labor dispute against the client’s employer. The respondent also represented the client in a separate civil action against the client’s employer, but had difficulty obtaining service on the employer. A hearing in the labor matter was held, and during the hearing, the respondent instructed one of his witnesses to serve the owner of the employer with process right before he was to be cross-examined. As a result of the service during the hearing, the hearing officer stopped the proceedings, questioned the respondent about the actions, and called for a recess. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 3.5(c) and Colo. RPC 8.4(d).
Confidentiality of Information
— The respondent was appointed as child’s legal representative for a minor in a pending domestic relations case. The respondent informally asked questions of the minor child’s peer while at a social gathering. As a result, it became clear to the minor child’s peer that the respondent was counsel for the minor child. The respondent revealed facts relating to the representation of the minor child with the minor child’s peer, without the consent or knowledge of the respondent’s client, the minor child. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.6(a).
— A former client to the respondent referred her sister-in-law to the respondent for representation. When the new client did not pay her bill as agreed upon, the respondent wrote her a letter outlining the deficient payment history and promises she had made concerning payment. The respondent sent a blind copy of this letter to the new client’s sister-in-law in the hope that the sister-in-law would assist in collection of the debt. 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
— The respondent, in his role as a Deputy District Attorney, made comments about the substance of their cases directly to criminal defendants who were represented by counsel. The respondent’s comments were made in the presence of the defendants’ attorney, and had to do with whether the defendants should accept plea agreements that had been offered in the criminal cases. 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 represented the petitioners in a matter involving a guardianship and conservatorship. The respondent and opposing counsel disagree about what actually transpired after a hearing concerning appointment of a special conservator for the aunt. The respondent claims that opposing counsel never entered an appearance and that she and her client did not participate in the hearing; opposing counsel claims she entered an oral appearance and participated in the hearing. The undisputed facts are that after the hearing, the two clients were discussing the case in the hallway. The respondent went to look for and found opposing counsel who had agreed that it would be a good idea for the two clients to talk. However, opposing counsel assumed the respondent would not participate in the conversation between the clients, and left the courthouse. The respondent was present when the two parties discussed the case and engaged in the discussion with them, without opposing counsel’s knowledge or permission. 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 represented a party in a civil matter. During the representation, the respondent took the deposition of a witness. Pursuant to the subpoena, the witness was to produce and make available certain documents. Subsequent to the deposition, a dispute arose between the respondent and the deponent over copy costs or charges concerning the requested documents. The witness turned the matter over to a collections firm, which contacted the respondent about the alleged debt. In response, the respondent called the witness and left a voice mail message with the following statement: ". . . I am going to call every agency in the state to make sure that you are either arrested or you cannot do business in this state." As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.5.
Assisting in the Unauthorized Practice of Law
— The respondent associated with a person who had legal training but no license to practice law. For some portion of the relevant time period, the non-lawyer was the sole owner of the law firm. Questions were raised by other lawyers in the office on whether this individual was a lawyer in any jurisdiction. These other lawyers researched the issue and discovered the individual had no license to practice law. The respondent did not leave the firm when told this information. The respondent remained associated with this non-lawyer. At some point, the respondent asked for proof that the person was licensed in the foreign jurisdiction and when this was not timely forthcoming, the respondent then determined to leave the unlicensed person’s employment. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 5.5(a).
— The respondent presented a check from his COLTAF account against insufficient funds. The bank assessed a service fee. The respondent’s check represented a refund to a client of unearned attorney fees. The respondent also paid two other client refunds of unearned attorney fees when the balance in the respondent’s COLTAF account dipped below what was necessary to maintain the funds owed to each client. All three clients were ultimately paid in full and the respondent paid the service fee assessed against his COLTAF account. n
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