Vol. 33, No. 1
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 August 20, 2003, through November 20, 2003, at the intake stage, Regulation Counsel entered into 18 Diversion Agreements involving 24 separate requests for investigation. ARC approved 23 Diversion Agreements involving 28 separate requests for investigation. The PDJ did not approve a Diversion Agreement during this time frame. ARC issued 2 private admonitions involving 2 separate 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 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 that 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
— The respondent represented a client in the re-trial of a DUI case. The client had been convicted at an earlier trial, but a new trial was granted based on the trial court not allowing testimony by a witness who had not been disclosed to the prosecution in the earlier matter, pursuant to C.R.Crim.P 16. Despite the fact that the re-trial was scheduled approximately four months after the original conviction was vacated, the respondent took no action to disclose the witness to the prosecution in the second trial. The respondent interviewed the witness, notified her of the date for the new trial, but neglected to issue a subpoena to the witness to ensure her presence at trial. The respondent elected not to issue a subpoena to the witness based on her statement that a subpoena was not necessary, and that she would appear voluntarily at the new trial. The respondent attempted to coordinate with the witness for approximately two weeks before trial, but was unable to reach the witness. On the day of trial, the respondent requested a continuance because of his inability to contact the witness, and the fact that he received another pressing matter in his office the day before. The court denied the respondent’s request for a continuance. The respondent explained to his client that the court’s refusal to grant the continuance and the fact that there was no assurance the witness would appear for trial essentially left him in the position that he had no defense at the new trial. Consequently, the client terminated the respondent at the time of the hearing. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and attend a CLE in criminal procedure. The rule implicated is Colo. RPC 1.1.
— The respondent mistakenly believed that an opposing party had agreed to an income wage assignment. The respondent prepared the income wage assignment and served it on the opposing party’s employer. The wage assignment stated that it had been approved by the District Court, when in fact it had not. The respondent believed, on the basis of a stipulated temporary order signed by both parties, that the wage assignment was appropriate, even though the court had not yet had time to approve it. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.1.
Diligence and/or Failure to Communicate
— In an employment-related matter, the respondent failed to take part in a meeting with his client’s employer prior to termination of his client’s employment, despite requests by the employer for such a meeting. The failure of the respondent or the client to attend the requested meeting made it easier for the employer to justify terminating the client’s employment. In the same matter, the respondent also failed to communicate to the client in writing the basis or rate of his fee. In another matter, the respondent failed to promptly comply with a court order directing the respondent and his client, jointly and separately, to pay attorney fees and costs in the amount of more than $2,000. The order with respect to fees and costs was entered as a sanction for the client’s failure to comply with a discovery order. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and enter into and comply with a payment schedule to satisfy the order concerning payment of attorney fees. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.5(b), and Colo. RPC 3.4(c).
— The respondent was retained to handle a divorce. A temporary orders hearing was scheduled to take place in the case on December 16, 2001. The client initially learned about the temporary orders hearing from his wife on December 13, 2001. The respondent did not notify the client of the temporary orders hearing until a telephone conversation on December 14, 2001. The client maintained that the respondent did not keep him informed of significant dates in the case and other developments as the case progressed. Although the respondent claims to have properly informed the client about dates and developments in the case, he could not provide documentation or other evidence to refute the allegation. Despite receiving interrogatories from opposing counsel on July 17, 2002, the respondent did not provide copies to his client until October 1, 2002. Additionally, there was evidence suggesting that the respondent may not have responded to numerous inquiries from opposing counsel about issues in the case, including the preparation and exchange of information pertinent to facilitating trial management. Finally, while handling the case, the respondent failed to appear for two hearings (a setting conference and a pre-trial conference), and could not provide any explanation why he missed these hearings. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and have a practice audit. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— The respondent was retained in early 2003 by a client to represent her in a pending criminal case. After several months, the client terminated the attorney-client relationship. The respondent returned the client’s files, along with a bill for the legal services provided. Although the respondent provided an accounting at the end of the attorney-client relationship, the respondent did not provide the client with a written fee disclosure at or near the beginning of the case. In another matter, the respondent represented a client in a criminal matter. The respondent filed a motion to reconsider in August 2002, which was denied in November 2002. The respondent did not notify the client of the court’s decision until April 2003. In another matter, the respondent was appointed to represent a client on the appeal of the client’s domestic violence conviction. By letter dated April 10, 2002, the respondent informed the client that the respondent had filed the brief for the appeal. The respondent had no communication with the client from the time of appointment in September 2001 until the April 2002 letter. By letter dated July 15, 2002, the respondent informed the client that the client’s appeal had been denied. The respondent also stated that he believed the client should next file a Rule 35(c) motion, and that the respondent would check with the court on whether he could take any additional action on the client’s case. The respondent did not communicate further with the client. In mid-September 2002, the client wrote to the respondent, seeking a copy of an order in his case and the status of the respondent’s representation. The respondent did not respond to the client’s letter. On March 3, 2003, the client filed a request for investigation of the respondent’s conduct, alleging the above-described failure to maintain reasonable communications. Finally, in a separate matter, the respondent represented the defendant in a case involving a car accident. After two prior continuances requested by the prosecution, a restitution hearing was set to be heard by the court on December 6, 2002. The complainants traveled to Denver from Florence to attend the hearing on December 6, 2002. Because the respondent failed to appear at the hearing on behalf of his client, the hearing was again continued. As a result, the complainants incurred unnecessary expenses to travel to Denver. The respondent admits that he was not present in court when the December 6, 2002 hearing was scheduled. He circled the time on his calendar but failed to identify the matter or case. Because he was busy working on other matters at the time of the hearing, he did not answer his telephone when the court tried to contact him and did not realize that he had to be in court. He later apologized to the court and was not sanctioned by the court. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, have a practice/case audit, and reimburse the complainants for their travel expenses. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— On December 2, 2002, the court appointed the respondent to represent the complainant in a dependency and neglect case. On December 6, 2002, the complainant asked the respondent to withdraw because the respondent had to reschedule an appointment. On two different occasions the complainant wrote the court requesting that the respondent withdraw and that the court appoint another attorney to represent her. The request for a new attorney was denied on December 24, 2002, because it was conditioned on a continuance of the trial date of January 16, 2003. The request for a continuance of the trial date was also denied. On December 30, 2002, the Department of Social Services filed a Motion for Summary Judgment. On December 31, 2002, the court issued an order that any response or opposition to the Motion for Summary Judgment had to be filed on or before January 13, 2003. The respondent wrote the complainant on December 31, 2002 and told her a Motion for Summary Judgment had been filed but that she had not yet seen it and would send a copy when she received it. The complainant claims she never received a copy of the December 31, 2002 minute order, but the register of actions indicates that a copy was transmitted to her. On January 3, 2003, the court received the complainant’s consent to the respondent’s Motion to Withdraw and on January 6, 2003, the court received another letter from the complainant again consenting to the respondent’s withdrawal and requesting court appointed counsel. On January 6, 2003, the court issued another minute order that the complainant’s request would be considered at an evidentiary hearing on January 13, 2003. The court reiterated that its order of December 31, 2002 remained in full force and effect and that the complainant’s personal attendance on January 13, 2003 was required. The respondent agrees that she received this order but did nothing to ascertain the content of the December 31, 2002 order mentioned therein. Although she remained attorney of record on complainant’s case, the respondent did not file a response to the Motion for Summary Judgment. On January 13, 2003, the court granted the respondent’s Motion to Withdraw and granted the complainant’s request to proceed pro se. On January 13, 2003, after she had been permitted to withdraw, the respondent wrote the complainant a letter telling her that the guardian ad litem had told her that morning in court that the response to the Motion for Summary Judgment was due that day. The respondent said that according to her calculations the response was not due until January 14, 2003. The respondent advised that the motion could result in a finding that the complainant’s child was dependent and neglected if the complainant failed to file a response. The respondent claimed she had not filed a response because the complainant had instructed her not to file any documents on her behalf. The Motion for Summary Judgment was granted on January 14, 2003. 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 1.4(b).
— The complainant retained the respondent and paid him $750 in June 2002 to represent him at a restraining order hearing. The respondent told the complainant when he was hired that he had a conflict and could not attend the hearing; he obtained a verbal continuance from the clerk and had the complainant appear on the original date with the written request for a continuance. Thereafter, the complainant told the respondent he had an outstanding warrant. The day before the complainant appeared at the hearing on the restraining order, the respondent found there was an outstanding warrant and that bond was set at $50,000. The complainant was arrested on a charge of felony menacing when he appeared in court. The respondent claims that he and the complainant agreed to stipulate to the restraining order and that the respondent would apply the $750 he had been paid toward a $5,000 fee to represent the complainant on the felony charge. The respondent began to prepare for the criminal trial and was paid an additional $1,000 before he was fired. The respondent did not have a written fee agreement or any other written communication concerning the fee to be charged on either the restraining order or the felony case. The complainant filed a request for investigation seeking a fee refund. 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 1.5(b).
— The respondent was retained in November 2001 to represent a client concerning pending criminal charges against the client. In January 2002, the client terminated the attorney-client relationship and hired new counsel. Upon the substitution of counsel, the respondent transferred the unused retainer funds to the client’s new attorney, but did not provide an accounting. Although the client requested the accounting from the respondent several times in 2002 and early 2003, the respondent did not provide the accounting until the first week of July 2003. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.4 and Colo. RPC 1.15(b).
— The complainant retained the respondent to represent him on a charge of domestic violence. The respondent verbally quoted a flat fee of $3,000, but did not prepare a written fee disclosure or send an engagement letter explaining the rate or basis of the fee. The respondent refused to provide an accounting that demonstrated the entire $3,000 had been earned. The respondent was unaware of the requirements of Colo. RPC 1.5(b) and felt he did not have to provide an accounting of how the funds were earned because it was a flat fee. As part of the conditions of the Diversion Agreement, the respondent must attend trust account school and must prepare an accounting and, if the respondent is unable to demonstrate that he earned the entire $3,000, he must refund any remaining balance to the client’s mother. The rules implicated are Colo. RPC 1.4, Colo. RPC 1.5(b), and Colo. RPC 1.15(b).
— Respondent agreed to represent a new client regarding a debt. The respondent accepted $300 from the client in early-March 2003. In March and April 2003, the respondent notified the attorney for the creditor that he was representing the client with regard to the debt, performed legal research to determine his client’s liability for the debt, and explained the matter to his client. A billing statement was sent to the client in mid-April 2003, indicating that the entire $300 had been earned, and listing a remaining balance due of $225. After receiving the bill, the client e-mailed the respondent that she understood their fee arrangement to be a flat fee of $300, and that no other remaining balance would be due. The respondent then advised his client that he understood the fee arrangement to be on an hourly basis, with the $300 serving as the initial retainer. The respondent believed he sent a fee agreement to the client, but that he did not receive the signed document from the client. The respondent did not have any documentation to support his claim that a written fee disclosure was sent to the client at any time prior to sending the billing statement. The respondent has now incorporated office procedures to ensure that all clients receive written fee disclosures setting forth the basis and rate of his fees in the future. With regard to this particular client, the respondent elected to waive any unpaid fees, and accepted the $300 as full payment for the legal services rendered. The rule implicated is Colo. RPC 1.5.
— On February 13, 2003, the police served the respondent’s client (prior to hiring the respondent) with a Protective Custody Notice and Request to Appear at the Family Crisis Center, regarding his alleged sexual assault on his daughters. On February 14, 2003, counsel for the client’s ex-wife filed an emergency motion to terminate his parenting time with his daughters. Instead of hiring local counsel, the client searched the Internet and found a website for the respondent’s law firm located in California. On February 17, 2003, the client telephoned the respondent’s firm and talked with an employee about the client’s pending legal matters. Respndent’s employee informed the client that if he chose to retain the firm, the respondent would be handling the case pursuant to a written fee agreement, which required a $7,500 nonrefundable retainer. On February 18, 2003, the client agreed to retain the respondent and paid the $7,500 retainer. The respondent was performing legal work pursuant to C.R.C.P. 220. The client subsequently became dissatisfied with the respondent’s handling of his case, disputed the respondent’s fees, and requested a refund. On March 19, 2003, the respondent spoke with the client by telephone and refused the refund request based on the written fee agreement’s nonrefundable retainer provision. After a request for investigation was filed, the respondent and the client agreed to resolve the fee dispute by refunding all but $2,800 of the client’s $7,500 retainer. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and remove non-refundable language from future fee agreements used in Colorado. The rules implicated are Colo. RPC 1.5(a) and Colo. RPC 8.4(c).
— The respondent was arrested by a deputy sheriff for a second offense within five years involving driving a motor vehicle while under the influence of alcohol. The arresting office stopped the respondent because his car crossed the centerline three times, and crossed the fog line once. The respondent submitted a blood sample to determine his blood alcohol concentration, which resulted in a positive test of .094. The respondent was convicted by a jury of weaving and driving while ability impaired ("DWAI"). The respondent was sentenced to twenty-four months of probation; to undergo an alcohol evaluation and submit to any treatment or other recommendations set forth in the evaluator’s report; to serve forty-five days of jail by way of electronically monitored in-home detention; to perform forty-eight hours of useful public service; and to pay various fines and costs. In another matter, the respondent issued a check from his trust account. When the aforementioned check was presented for payment at the bank, the balance in the respondent’s trust account was not sufficient to cover the check. The bank paid the check, which, along with bank fees, created an overdraft in the respondent’s trust account. Funds had to be transferred from the respondent’s operating account to cure the overdraft. The account has since been closed. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, trust account school, and comply with the court sentence in a criminal matter. The rules implicated are Colo. RPC 8.4(b) and Colo. RPC 1.15(a).
— The respondent was arrested for driving a motor vehicle while under the influence of alcohol or drugs. Before the arrest, a sheriff observed the respondent’s vehicle traveling faster than the posted speed limit. At the time of the stop, the deputy smelled a strong odor of an alcoholic beverage and made other observations that indicated the respondent was under the influence of alcohol. The respondent ultimately refused to submit to either a blood or breath test to determine his blood alcohol concentration. The respondent pled guilty to an amended charge of driving while ability impaired, and was sentenced to three to eighteen months of probation, twenty-four hours of useful community service, an alcohol evaluation by the probation department and treatment as recommended therein, and various fines and costs. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with all terms and conditions of the court sentence, comply with all terms and conditions of evaluation, abstain from alcohol, and comply with recommendations of therapist. The rule implicated is Colo. RPC 8.4(b).
— The respondent was involved in a domestic violence case involving his wife. He slipped and grazed her with a chair. She did not receive medical attention. He also had been charged DWAI. The respondent was given a deferred judgment and sentence for the two cases. A condition of that deferred judgment and sentence was that he complete a domestic violence course and pay costs, which he has done. The respondent had numerous mitigating factors. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with requirements in criminal cases, and continue psychotherapy for anger management. The rule implicated is Colo. RPC 8.4(b).
— The respondent pled guilty to disorderly conduct in connection with an incident involving his wife. The court dismissed charges of second-degree assault and mandatory sentencing for a crime of violence—serious bodily injury. The court found that the factual basis for the respondent’s conviction did not involve domestic violence. The conviction arose out of events that occurred March 31, 2002, when the respondent’s wife approached him and expressed disagreement with his decision to go skiing the following day. The respondent’s wife grabbed a backpack that the respondent held. She lost her grip and slipped and fell backwards into a workbench, where she sustained two cuts to her scalp. The respondent’s wife also dislocated her finger. The parties’ children did not witness the altercation. The respondent has no prior criminal history and no prior history of domestic violence. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(b).
— The respondent and his wife got in an argument. The respondent retreated. Thereafter, the respondent approached his wife in an effort to discuss the matter with her. She refused. The respondent struck his wife with a "glancing blow" on the back of her head. The respondent then left the house, throwing and breaking a glass dish as he left. The respondent was subsequently arrested. The respondent pled guilty to disturbing the peace, misdemeanor assault, and threats to injure a person or damage property. In return, the respondent received a deferred judgment. A condition of the respondent’s sentence is his participating in the AMEND program. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and complete all terms of the lawyer’s sentence. The rule implicated is Colo. RPC 8.4(b).
Conduct that is Prejudicial to the
Administration of Justice
— In mid-November 2002, the respondent asked a court reporter to prepare an invoice for depositions that took place in September 2002. The court reporter prepared the invoice and sent it to the respondent via facsimile and U.S. mail. The court reporter sent reminder invoices to the respondent in December 2002 and January, February, March, April, and May 2003. During this time, the respondent never contacted the court reporter about the debt. Respondent acknowledges receiving the invoices and several voicemail messages from the court reporter during March, April, and May 2003. Respondent also acknowledges that he did not respond to any of the invoices or voicemail messages. Respondent claims that he believed he had sent a check around the beginning of 2003 to cover the original invoice, and that his payment had not been posted to the account, thereby resulting in the subsequent invoices and voicemail messages. Respondent acknowledges that he did not take any action to confirm this belief. In June 2003, after contacting the Office of Attorney Regulation Counsel, the respondent paid the debt, including accrued interest. The rule implicated is Colo. RPC 8.4(d).
— The respondent used the complaining witness’s court reporting services on May 30, 2002. The initial invoice was sent from the court reporter office to the respondent on May 30, 2002, with monthly invoices sent from June 2002 through March 2003. The respondent did not pay the invoices until July 22, 2003. As part of the conditions of the Diversion Agreement, the respondent must attend trust account school. The rule implicated is Colo. RPC 8.4(d).
Conduct that Adversely Reflects on the Lawyer’s Fitness to Practice Law
— The respondent was retained to represent a party. The opposing party took the deposition of the respondent’s client. In the course of the respondent’s client’s deposition, an issue arose concerning the continuance of the current deposition to another date due to time constraints and other scheduled depositions for that date. During the deposition, the respondent and opposing counsel engaged in an unprofessional exchange on the record and in the presence of the deponent and opposing party. During this unprofessional exchange, opposing counsel stood up across the table from the respondent. The respondent on several occasions called the opposing counsel a "punk" and a "weasel." In addition, the respondent made references to the opposing counsel’s ethnic background. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(h).
— In 1999, the respondent was appointed trustee for a minor’s trust. The respondent did not regularly perform such services, and intended to serve as trustee only briefly, until a successor could be appointed. A successor was appointed in 2001. During the second year of the respondent’s service, the respondent failed to have a 2000 tax return prepared on behalf of the trust. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and attend eight hours of CLE that addresses the duties of fiduciaries, including trustees. The rule implicated is Colo. RPC 8.4(h).
Conflict of Interest
— When the respondent left a law firm where he had been responsible for a particular workers’ compensation case, the client was given the option of remaining with the original firm or following the respondent to his new firm. The client chose to transfer the case to the respondent’s new firm so that the respondent could continue to represent her. The workers’ compensation insurance carrier in the client’s claim was also a client of the respondent’s new firm for non-workers’ compensation matters. The respondent’s new firm represented the insurance carrier in construction defect and liability claims only. When the respondent joined the new firm, the firm and the respondent conducted a "conflict of interest" check for all clients and cases that transferred with the respondent to the new firm. No conflict was indicated in the firm’s check. Unknown to the respondent at that time, the insurance carrier was a client of the new firm. However, the insurance carrier was listed differently, thus triggering no conflict of interest notification in the system. The respondent later learned in the year 2002 that the new firm in fact represented the insurance carrier. The respondent failed to inform either client of a potential conflict until September 2002, when the respondent advised the client that the new firm represented the insurance carrier. The complainant alleges that she first learned of the conflict from the respondent’s paralegal when she contacted the respondent about pursuing a bad faith claim. The rule implicated is Colo. RPC 1.7(a).
Disobey an Obligation Under the
Rules of a Tribunal
— The respondent represented a husband in a dissolution of marriage action. Child custody was in dispute, as was the issue of the wife’s past use of drugs and alcohol. The temporary orders hearing was held but not completed and was reset for a later date. The respondent effectuated service of a subpoena duces tecum on the wife’s psychotherapist. The respondent’s subpoena duces tecum was served less than forty-eight hours before the hearing. The respondent stated the psychotherapist could also comply with the subpoena by hand-delivering the medical records to the respondent’s office no later than noon rather than attending the hearing. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 3.4(c).
— In a criminal case, the respondent sent several subpoenas duces tecum to various witnesses, calling for production of records at his office rather than at a court trial or hearing. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and have a practice monitor. The rule implicated is Colo. RPC 3.4(c).
— The respondent was divorced September 8, 1999. The decree incorporated the terms of the stipulation between the respondent and his former wife. The stipulation included a provision for the respondent to pay support for a child of the marriage. The respondent paid child support through April 2002. At that point, the respondent learned, through genetic testing, that he was not the biological father of the child. The respondent filed a motion to terminate child support. The motion was denied. Thereafter, the respondent filed a statement with the Office of Attorney Registration, stating that he was not in compliance with respect to any outstanding child support orders. A motion to reconsider his motion to terminate child support was filed five days later. That motion also was denied. The respondent took no action to remedy the situation for several months. Thereafter, the respondent was contacted by the Office of Attorney Regulation Counsel and he paid all arrearages due. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and pay all court ordered child support. The rule implicated is Colo. RPC 3.4(c).
— The respondent got behind on the payment of his child support. The respondent blamed the problem, in part, on the Family Support Registry, alleging that the registry failed to credit his account with payments he made. The registry states the respondent made payments with non-sufficient funds checks. The respondent paid all the arrearages due. His former spouse agrees that an account will be established in a local bank that enables the respondent to just deposit money and his former wife to make withdrawals, thereby streamlining the child support payment process. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 3.4(c).
Special Responsibilities of a Prosecutor
— The respondent, a deputy district attorney, failed to reveal information in discovery before a critical phase of a criminal case. The respondent lawyer recognized his error and revealed the information to the defendant’s counsel immediately after that phase had passed. There was no harm to the defense of that case due to the failure to disclose the information. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 3.8(c).
Confidentiality of Information
— The complaining witnesses in this matter contacted the respondent via telephone in early June 2002. The respondent advised the complaining witnesses concerning the enforcement of the penalty payment terms contained in a promissory note. Subsequently, the respondent also advised the other party to the note concerning the same matter. In addition, subsequent to speaking with both parties to the note, the respondent wrote an opinion letter to an escrow company disclosing his conversations and advice given to the parties to the note. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.6 and Colo. RPC 1.7.
Communication with Person
Represented by Counsel
— The respondent represented a client in a child custody case. The underlying case was a multi-jurisdictional case involving two state courts, one of which was a Colorado court. On February 3, 1999, the other state court entered a stipulated judgment. The other state court order set forth child support obligations, as well as custody and parenting time obligations. The respondent, on behalf of his client, filed a motion requesting the state of Colorado to assume jurisdiction of the underlying custody case. The Colorado court granted the motion only as to jurisdiction to enforce the decree. The Colorado court did not assume jurisdiction to modify the other state court order. The respondent then filed a motion to assume jurisdiction of a foreign decree, as well as a motion to modify custody in the Colorado court. The Colorado court issued an order vacating earlier orders of the court and denied the respondent’s client’s motion to assume jurisdiction of the other state orders. The opposing party in the underlying case was represented by counsel from the other state. The respondent was aware that the opposing party was represented, as evidenced by the respondent’s correspondence to the counsel. Further, there were letters from the opposing party to the respondent’s client that carbon-copied both the respondent and the opposing party’s counsel. The copy of the other state’s stipulated judgment also contained the opposing party’s counsel’s name, address, and telephone number. The respondent sent correspondence directly to the opposing party concerning parenting time schedules and the filing of additional actions in Colorado. The subject of the respondent’s correspondence to the opposing party clearly deals with the subject of the other state’s stipulated judgment and parenting time of the parties’ child. After the Colorado court had entered its order declining jurisdiction in the underlying case, an associate in the respondent’s firm, under the supervision of the respondent, directly contacted the opposing party via telephone, seeking an agreement by the opposing party to modify the other state court’s order as it pertained to custody and the parenting time. At the time of this telephone conversation, the opposing party was represented by counsel from Colorado and the other state. An associate in the respondent’s firm, under the supervision of the respondent, filed "Petitioner’s Verified Motion to Assume Jurisdiction of Allocation of Decision Making and Parenting Time Pursuant to Section 14-13-101 et seq. C.R.S." The motion was filed in a different Colorado court and failed to disclose to the court the case history. The court denied the above motion and made findings that the motion as filed was frivolous, groundless, and vexatious. The rules implicated are Colo. RPC 4.2 and Colo. RPC 5.1.
— The respondent is a deputy district attorney. The respondent was assigned to prosecute a defendant charged with felony burglary and assault on his girlfriend. The girlfriend gave an initial report to the police at the time of the incident. She later gave a written statement inconsistent with her initial report to the police. She then hired an attorney to represent her. Her attorney contacted the respondent and informed him that his client did not desire to talk with him unless she was granted immunity or unless her attorney was present. The respondent continued to attempt to contact the girlfriend, as he felt she was not a suspect and would not be charged with a crime. 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 is an associate in a law firm that represented a mother in a child custody matter. The respondent’s supervisor, the sole shareholder of the law firm, filed a motion on behalf of the client in a state district court. The motion sought to transfer jurisdiction of the matter from the court in a foreign jurisdiction to Colorado. The motion was denied ruling that Colorado had no jurisdiction to modify another jurisdiction’s custody order until and unless that court relinquished jurisdiction in favor of Colorado. The shareholder then assigned the matter to the respondent for further action. The respondent determined that a new motion addressing the same issues could be filed on the client’s behalf, if a contemporaneous action was filed in the foreign court requesting that jurisdiction be relinquished. The respondent also determined that another county was the proper venue for the filing of a motion in Colorado, because her client resided in the other county. The respondent prepared and filed two motions in the district court. In one of those motions, the respondent included a section entitled "Case History." However, the respondent omitted from the Case History section the fact that a prior motion requesting identical relief had been filed in another county, and had been denied. Prior to filing the motions, the respondent contacted the opposing party directly, although the respondent knew that he was represented in the foreign case. Further, the opposing party had retained Colorado counsel. Colorado counsel had mailed a letter of representation to the respondent’s supervisor. The respondent states she was unaware of the letter. As part of the motion the respondent filed on behalf of her client, the respondent represented that her client had "filed simultaneous herewith a motion to relinquish jurisdiction of the foreign jurisdiction." In fact, such a motion was not filed simultaneously, but was filed months later. The respondent attributes the failure to file the other motion simultaneously to the client’s lawyer in foreign jurisdiction. However, the respondent did not follow-up with counsel to determine that the motion was filed simultaneously, and the respondent did not notify the court that the other motion had not been filed simultaneously. The foreign jurisdiction refused to relinquish jurisdiction. The Colorado court denied the respondent’s motions and awarded attorney fees to the opposing party pursuant to CRS §§ 13-17-101 et seq. This order is on appeal. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 4.2 and Colo. RPC 8.4(d).
— In 1998, the respondent, and two others formed a firm ("old firm"). One shareholder left the old firm in December 1999. Thereafter, the respondent and the other shareholder formed a firm in 2000. On July 1, 2000, the respondent, the other shareholder, and a new shareholder formed a new firm. The respondent and other shareholder continued to maintain the old firm’s COLTAF and operating accounts until August 2002, when the old firm’s COLTAF account was closed. The old firm had an employee who was a paralegal and who was given additional responsibilities as a bookkeeper. The other attorney had a signature stamp that was supposed to be used in limited circumstances. The stamp could be used to sign letters or could be used to stamp checks when a shareholder was not in the office. From December 7, 2000, through July 23, 2002, a period of approximately nineteen months, the paralegal/bookkeeper stole funds from the old firm’s COLTAF account. Approximately $12,217 was stolen on fifteen different occasions during that nineteen-month period. All of the checks were signed with the signature stamp and then endorsed by paralegal/bookkeeper. Respondent had a duty to supervise the bookkeeper. Respondent’s failure to supervise her as a bookkeeper, permitted her to steal funds over a nineteen-month period. In mitigation, the respondent’s practice consisted strictly of contingent cases, so he did not have bills to review and he did not take any cost retainers. The respondent never had a problem with funds received from his contingent cases. Neither the respondent nor the other shareholder designated who would be responsible for supervising the bookkeeper or assuring that the COLTAF account was properly maintained. Furthermore, neither attorney discussed who would be responsible for insuring that the financial records were reconciled, in accordance with Colo. RPC 1.15. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, trust account school, and be monitored financially. The rules implicated are Colo. RPC 1.15(a) and Colo. RPC 5.3(b).
— The respondent entered into a fee agreement with his client for a flat fee through the time a plea was entered by the client. The respondent completed that segment for which was contracted. The fee agreement stated that the retainer became the sole property of the respondent upon his entry of appearance, subject to Colo. RPC 1.15 and 1.16. The respondent placed the retainer in his operating account. The client complained about the fee agreement after the representation was concluded, by which time the entire fee had been earned. The respondent has prepared a new form fee agreement, which separates specific stages of the representation, at which time specified amounts of a flat fee will be considered earned. He will leave funds in his trust account until such landmarks are achieved. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.15(a).
— Respondent operates a small law office. Respondent was not aware of the requirements of Rule 1.15(g). Respondent failed to supervise his bookkeeper’s handling of the firm’s accounts, including the COLTAF account. A taxing authority levied the respondent’s COLTAF account. The bookkeeper failed to replenish the levied amounts. This caused the COLTAF account to have a substantial negative balance for approximately one month. The bank charged the COLTAF account overdraft fees and insufficient fund check fees during that month. Because of the respondent’s inattention, client funds were used for non-client purposes. 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 1.15(g) and Colo. RPC 5.3(b).
— The respondent represented two parties in a personal injury/automobile accident claim that had been filed with an insurance company. The respondent reached an agreement with the insurance adjuster to settle his clients’ claims for $25,000. In return, the respondent’s clients’ would provide a release of all claims against the insurance company. After reaching the agreement orally, the respondent received from the insurance adjuster a check payable to himself and his clients for $25,000, a document entitled "Release," but which included both a release and an indemnification provision, in addition, which the parties had admittedly had not discussed, and a letter from the adjuster stating that the respondent was not to negotiate the check until the "release" had been fully executed. The respondent crossed out the portion of the "release" that included the indemnification language, and initialed it. He also handwrote in the margin his reason for doing so: that it had not been agreed to and there was no consideration given for the indemnification. The respondent’s client signed the amended document, and it was returned to the insurance company. Simultaneously, the check was endorsed and placed in the respondent’s trust account, and the funds were disbursed to his clients and to his firm accordingly. When the insurance adjuster received the document, she protested to the respondent and demanded immediate return of the funds. The insurance adjuster then referred the matter to legal counsel who sued the respondent and his clients. The civil suit was quickly settled. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.15(c).
— This was a trust account notification matter. Investigation revealed that the respondent failed to maintain contemporaneous records of disbursements from, and deposits to, his attorney trust account. The respondent’s trust account was not designated as an attorney trust account. The respondent did not retain copies of client billings and did not maintain client ledgers for each client who had deposited funds into his trust account. The investigation further established that no client funds were misappropriated and no check payable to any client was returned for insufficient funds. As part of the conditions of the Diversion Agreement, the respondent must attend trust account school and allow a random trust account audit by Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 1.15(f), (g), and (h).
Assisting in the Unauthorized Practice of Law
— Immediately upon completion of law school and admission to the Bar, the respondent entered into an arrangement with a California attorney, who had an office in Colorado, to practice law together under the name of the California lawyer, and to pay the California lawyer one-half of all fees generated and collected as rent. The respondent was to service all Colorado clients and the California attorney was to service all federal cases. Respondent also drafted and signed pleadings in a case arising from a custody dispute that made an accusation that "perhaps" opposing counsel and the judge had been bribed. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and have the lawyer’s practice monitored. The rules implicated are Colo. RPC 5.5, Colo. RPC 3.1, and Colo. RPC 1.1.
— The respondent represented parties in a civil dispute concerning the ownership of certain real estate. The dispute was settled and an order adopting a stipulation was entered by the District Court. Subsequently, the respondent learned the opposing party had violated the terms of the settlement and, in doing so, had presented false documents for recording in the land records. The respondent wrote a letter to the party, which stated: "I am enclosing a Quit Claim Deed for your signature reconveying the property to its rightful owners. If I have not received the executed and notarized deed within ten days of today’s date[,] February 5, 2003, I will seek a criminal indictment against you with the [. . .] District Attorney." In addition to the foregoing, the respondent, acting on behalf of his fiancé, entered into a negotiation with his client for an easement across his client’s property. The respondent did so without advising his client that their interests were adverse, and he did not get a written waiver or consent from his client regarding a conflict between them. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 4.5 and Colo. RPC 1.9(a).
— The respondent, who represented a client in regard to a Petition for Allocation of Parental Responsibility and Parenting Time, failed to communicate with his client or to respond to telephone calls from the client for nearly six months. During the period of non-communication, the client sent a letter to the respondent, requesting an accounting with respect to the retainer the client had paid to the respondent. The respondent had not sent any billing statements to the client during the course of the representation. The respondent did not provide a billing statement or accounting to the client for more than three months after receiving the client’s written request, and not until after the client had submitted a request for investigation to the Office of Attorney Regulation Counsel. At that time, the respondent fully accounted for any funds paid to him by the client. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 1.15(b).
— The respondent is a sole practitioner. He mismanaged his law firm accounts in several respects. First, the respondent violated Colo. RPC 1.15(f), because the respondent improperly placed earned fees from his immigration law practice into his COLTAF accounts. Because the fees were earned, the respondent should have placed them into his business account. Second, the respondent did not comply with Rule 1.15(g)(1) in that he failed to list specific client purpose of certain disbursements. Third, the respondent did not comply with Rule 1.15(g)(2) in that he failed to maintain the required accounting records and receipt and disbursement records of deposits in and withdrawals from his two COLTAF accounts. Fourth, the respondent violated Colo. RPC 8.4(h) by presenting a financial instrument against insufficient funds in one of his COLTAF accounts. The rules implicated are Colo. RPC 1.15 and Colo. RPC 8.4(h).
© 2004 The Colorado Lawyer
and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer
provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2004