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TCL > April 2004 Issue > Matters Resulting In Diversion And Private Admonition

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page  131]

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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
Admonition Summaries

Background Information Regarding Diversion

Diversion is an alternative to discipline. See C.R.C.P. 251.13. Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel ("Regulation Counsel"), the Attorney Regulation Committee ("ARC"), the Presiding Disciplinary Judge ("PDJ"), the hearing board, or the Supreme Court may offer diversion as an alternative to discipline. For example, Regulation Counsel can offer a Diversion Agreement when the complaint is at the central intake level in the Office of Attorney Regulation Counsel. Thereafter, ARC or some other entity must approve the agreement.

From November 21, 2003, through February 17, 2004, at the intake stage, Regulation Counsel entered into 18 Diversion Agreements involving 20 separate requests for investigation. ARC approved 8 Diversion Agreements involving 11 separate requests for investigation. The PDJ did not approve a Diversion Agreement during this time frame. ARC issued one private admonition 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 type of misconduct resulting in diversion for the time period described above, generally involves 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
Diversion Agreements

Competence

— The respondent represented a defendant at a new trial following a prior conviction that was reversed and remanded on appeal. In the prior case, the defendant was charged with second-degree kidnapping with crime of violence and sexual assault, as well as an additional count of crime of violence. At the first trial, the defendant was acquitted of the crime of violence charge. At the second trial, the defendant was again charged with a crime of violence. The respondent did not object. The jury instructions included instruction on the crime of violence. The respondent did not object, and the defendant was convicted on all counts. After the verdict, but before sentencing, the respondent reported the error to the defendant and the court; the crime of violence conviction was deleted from the record by the court. The defendant’s conviction at the second trial described herein has once again been reversed for reasons unrelated to the respondent’s conduct. 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

— The respondent represented a client in a criminal case and in a subsequent Rule 35 motion. The Rule 35 motion was heard by the court in May 2002 and denied by the court in July 2002. The respondent, on behalf of the client, filed an appeal in August 2002. In December 2002, the Court of Appeals issued a show-cause order as to why the case should not be dismissed for lack of a record. In January 2003, the respondent filed a response to the show-cause order, informing the court that he was at that time unable to locate necessary transcripts as part of the record. No other response to the show-cause order was filed by the respondent. The Court of Appeals dismissed the appeal on April 3, 2003, for failure to submit a record or other responses to the show-cause order. In efforts to locate the necessary transcripts, the respondent "checked with the court clerks" in March 2003, but took no further efforts to locate the existing transcripts or have new transcripts prepared. In April 2003, the respondent, via written correspondence, informed the client that the appeal had been dismissed and that he would be taking further steps to locate the necessary parts of the record and have the appellate case reopened. Since that date, up through November 5, 2003, the respondent took no meaningful efforts to locate the transcripts, have the appeals case reopened, or to communicate with the client. In addition to the appeals case, in the summer of 2002, the client and respondent had discussed the respondent assisting the client in applying and obtaining Social Security benefits. The respondent states that he informed the client that the client would have to make personal application for the SSI benefits before the respondent could take any further action or steps to assist with the Social Security benefits case. However, the respondent failed to respond to further written inquiries from the client concerning this 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 represented an immigrant from Mexico who was eligible for permanent legal resident status based on his father’s naturalization and application for permanent resident status. The client was notified of a continued hearing date. When the client did not appear, the hearing was rescheduled. Because of confusion regarding the client’s location, the respondent did not attempt communication with the client regarding the new date. The client thereafter hired new counsel to re-open the matter, and the case was resolved. The respondent placed in his COLTAF account client payments for fees already earned. In addition, there was no written fee agreement. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and Trust School. The rules implicated are Colo. RPC 1.4, Colo. RPC 1.5(b), and Colo. RPC 1.15(a).

— The client filed a pro se motion to modify parenting time and child support in December 2001. She thereafter hired the respondent on May 16, 2002, and paid him $750 to help her complete the modification process. At the time he was retained, the respondent said all he needed to do was to obtain the court file and set a hearing date. The respondent alleges the client was to have provided the court file and never did; the client alleges she told the respondent the file was sealed and that he told her that her mother would be able to get it. The client further alleges that when she told the respondent her mother was denied access to the court file, he told her he would obtain it. Although the respondent still did not have the court file in November 2002, he entered an appearance and requested a setting. The respondent called the client in mid-December 2002 and asked about her availability for a hearing. The client told the respondent she was moving to Pennsylvania, but to set the hearing on any date at any time and she would make herself available. The respondent alleges that the ex-husband then failed to respond to requests for his availability. The respondent alleges the client then agreed to wait until after tax season to pursue the motion. The client alleges there was never any discussion about tax season or any agreement to further delay the modification. On March 5, 2003, the client wrote the respondent a letter outlining her frustration with her inabilities to speak with him and his failure to obtain a court date after he had promised her in January that he would do so. The respondent did not respond to that letter. In April 2003, the respondent indicated his intent to withdraw and refund $750 to the client. However, he took no action to do so as of November 3, 2003. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, submit a motion to withdraw from the case, issue a refund check, and provide the Office of Attorney Regulation Counsel with copies of the motion to withdraw and the refund check. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).

— On November 16, 2001, the court made oral findings at a temporary orders hearing. The respondent was directed to prepare a written order within two weeks. The respondent submitted a support order for child support and maintenance, but failed to reduce to writing a finding that the husband was to pay $167 on a credit card and $308 for past due property taxes. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and relinquish any further claim to the balance owed for attorney fees. The rule implicated is Colo. RPC 1.3.

— The Office of Attorney Regulation Counsel received two different redacted copies of reports from a government agency following an investigation of the respondent’s conduct in representing the government in two cases. The government agency concluded that the respondent had intentionally failed to respond to the first set of requests for admissions propounded by the plaintiff. The agency further concluded that the respondent’s failure to respond to a second set of requests for admissions propounded by the plaintiff was done in reckless disregard of his duty of diligence. Due to the respondent’s failure to respond to the requests for admissions, the admissions were deemed admitted. The case ultimately settled with the government agreeing to purchase an annuity for the plaintiff and paying her attorney the attorney fees. The second redacted copy of a report concerned respondent’s failure to file the government’s summary judgment motion by the deadline ordered by the court. The report concluded such conduct constituted professional misconduct in reckless disregard of his duties to comply with court orders and to diligently represent the interests of his client. Pursuant to a stipulated agreement with the plaintiff, the respondent’s client paid sanctions ordered by the court. 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 handled a real estate matter involving client’s property that had gone into foreclosure. The respondent filed a civil action on June 18, 2001, to void the foreclosure and restore the property to his client. Trial was set for December 17 and 18, 2001. On December 8, 2001, the respondent became seriously ill but believed he would recover in time to stay on the case if the trial date was postponed. On December 14, 2001, the respondent electronically filed an emergency motion to continue the trial. On December 17, 2001, the respondent participated by phone in a hearing on his motion. The court granted the motion, reset the trial for January 18, 2002, and set the summary judgment briefing schedule. On December 19, 2001, opposing counsel filed a motion for summary judgment. On January 3, 2002, the respondent electronically filed a motion for extension of time to respond to the summary judgment motion. On January 7, 2002, the court granted respondent’s motion, giving him until January 8, 2002 to file the response. The respondent, however, failed to file the response or any further requests for more time. The respondent maintains that due to his health, he was unable to draft a reasoned response to the motion. On January 17, 2002, the respondent met with his client to prepare for trial. On January 18, 2002, the respondent learned that on January 15, 2002, the court had granted the summary judgment motion, dismissed his client’s claims, and vacated the trial date. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and the respondent will not pursue collection of the fee. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, and Colo. RPC 1.5(a).

— The respondent represented a client in a custody matter. The respondent performed work on the case for about ten months when he started to suffer from severe depression. His client tried to contact him a week before a permanent orders hearing and he told her that he was in a state of depression and had not been able to prepare for permanent orders. He told her that he would not be able to represent her, and that he would provide her with a list of alternative lawyers. He never did so. The respondent obtained a continuance for his client’s matter, however, he did not inform her of the new date. In the second matter, the respondent represented a plaintiff in a personal injury case. The respondent neglected to file a disclosure of experts in a timely and complete fashion. The respondent disclosed to his client and the court that he had problems in his practice because of his depression. In the third matter the respondent represented a client in a divorce case. The respondent prepared various documents but had difficulty contacting the other party. After some time, the client tried to contact the respondent with no success. The client hired a new lawyer and the respondent then informed the client that the respondent had been suffering from depression. In all three matters, the respondent was truthful with his clients about the reasons for his lack of communication and diligence. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, have a independent medical evaluation, and obtain a practice monitor if he returns to private practice. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.

— In late July 2002, the respondent heard about a prospective client from the client’s brother. The respondent contacted the client to discuss her probate matter and post-decree issues involving an out-of-state divorce. The respondent was and is not licensed in the client’s home state. In August 2002, the respondent began writing to out-of-state attorneys who might serve as local counsel. From August through December 2002, the respondent and the client spoke several times, but the respondent still did not provide any written documentation of his work. In December 2002, the respondent sent a written fee agreement to the client for representation in the probate matter. The client signed the probate case fee agreement and faxed it back to the respondent. Soon thereafter, he received a billing statement totaling $2,033 for work the respondent claimed he performed on the probate matter (with charges going back to mid-September 2002). The client disputes his fees. From early January through early March 2003, the only work respondent performed on the client’s custody matter was a series of telephone conversations with her. On March 3, 2003, the client met with the respondent about her custody case. She paid respondent an initial retainer of $25,000 for that matter. The respondent did not present her with any agreement or written fee disclosure. The respondent then paid himself $5,000 of the client’s retainer. The respondent’s work primarily consisted of attempts at securing local counsel for the client. Thereafter, the client instructed respondent to transfer her retainer to her prior counsel. The respondent sent the client’s local counsel a check for $20,000, and a letter to the client informing her about the retainer transfer. When she found out the respondent kept $5,000, the client fired respondent and requested an accounting and refund of her remaining retainer. The respondent then sent the client a billing statement on her custody matter. This bill was the first and only statement of charges ever provided to the client. The billing statement covered work respondent claimed he performed from July 2002 through the end of March 2003. The client admits respondent performed some authorized work in March 2003, but disputes the remainder of his fees as well as any attorney-client relationship until she paid the initial retainer in March 2003. The client claims that from the first phone call through early 2003, the respondent told her he was just assisting her as a family friend, and had she known respondent intended to bill for whatever he was doing prior to March, she would never have hired him or given him any retainer. The respondent must attend Ethics School, and resolve the fee disputes with the client directly or submit the dispute to arbitration. The respondent shall provide written notification of the resolution or refusal by the client to participate in fee arbitration, to the Office of Attorney Regulation. The rules implicated are Colo. RPC 1.4(a), Colo. RPC 1.5(a), Colo. RPC 1.5(b), and Colo. RPC 1.5(f).

— In October 1998, the respondent was appointed to represent an inmate on a C.R.Crim.P. 35(c) motion. In May 1999, the respondent ordered transcripts of the trial as the originals had been lost. In October 1999, the respondent obtained copies of the transcripts and began a review. In February 2000, the inmate filed a pro se motion for appointment of new counsel. The motion claimed that the respondent failed to properly communicate with him. The respondent did not respond to the inmate/client’s motion, nor did he contact his client to discuss the case or the ramifications of filing the motion. The respondent took no action, as he believed the court would set a hearing. In September 2002, the respondent received a letter from his client asking for a status report. The respondent sent his client a letter advising him that the motion for appointment of new counsel was still pending and that he would not take any action on the case until the court ruled on the motion. Shortly thereafter, the respondent filed a motion to withdraw from the case. 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.

Fees

— The respondent was retained to review a client’s estate plan, revise existing trusts, and assist in the proper funding of the trusts. The respondent charged a flat fee. The respondent had not regularly represented the client. The client paid one-half of the flat fee as a retainer by credit card into respondent’s COLTAF account. The respondent immediately transferred the retainer from his COLTAF account to his general operating account before beginning work on the retained matter. Shortly after transferring the funds to his general operating account, the respondent began work and conferred a benefit upon his client. Ten months later, when questions arose as to the scope of the flat fee arrangement, the respondent prepared a formal written fee agreement for his client’s signature. A disagreement occurred between the respondent and his client, and the fee agreement was never signed. The client terminated the attorney. A fee dispute arose, which was resolved between the client and the respondent. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.5(b) and Colo. RPC 1.5(f).

— The respondent represented the wife in a divorce case. During the time he represented the wife, the respondent billed her for numerous telephone calls with and to the opposing attorney. The recollection of the opposing attorney and her paralegal, as confirmed by their records, was that far fewer calls and/or voicemails occurred between the respondent and opposing counsel and her paralegal than respondent billed for. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and engage in fee mediation. The rule implicated is Colo. RPC 1.5.

Conflict of Interest

— The respondent and his firm represented the complainant and his family in various legal matters over the course of several decades. In the 1980s, businesses owned by the client’s family borrowed significant funds and executed promissory notes secured by real estate. The respondent’s firm provided legal services in connection with the transactions. Years later, a wealthy friend of the complainant’s family purchased the promissory notes from the original lender. In the late 1990s, at a time when the respondent’s firm was not representing any of the complainant’s family members or businesses, the respondent prepared and filed a civil action seeking to foreclose on the promissory notes and deeds of trust as purchased by the family friend. The respondent withdrew from representation in the foreclosure action after his former clients demanded he do so, but not before the respondent prepared and filed the complaint against his former clients. During the course of his prior representation of the same clients, the respondent negligently commingled client’s funds with funds belonging to the respondent’s firm for a brief period of time, and neglected to pay to his client a portion of the proceeds from a real estate closing for a period of several years. 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 1.9(a), Colo. RPC 1.9(c), Colo. RPC 1.5(a), and Colo. RPC 1.15(b).

Trust Accounts

— A stipulation entered into by complainant through his attorney and the respondent, on behalf of his clients, required the respondent to hold $500 in his trust account until he confirmed that the underlying dispute between the complainant and respondent’s clients was resolved. The respondent failed to keep the money in his trust account until he confirmed that the dispute was resolved. The respondent relied on his clients’ representations that they had complied with the stipulation by vacating and leaving the premises in good condition. Subsequent to disbursing the funds to his clients, the respondent received correspondence from the complainant, advising that one of the terms of the stipulation was not met and that the matter was still in dispute. The respondent paid the complainant the sum of $500 to resolve the dispute and acknowledged that he should have confirmed that the terms of the stipulation had been met prior to disbursing the funds to his clients. 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(c) and Colo. RPC 3.4(c).

— The respondent’s client paid the respondent cash as a cost deposit for filing fees. The respondent did not deposit the cash into his COLTAF account. In November 2003, the respondent’s personal bank account was closed. On November 24, 2003, a check was presented to the respondent’s COLTAF account against insufficient funds. The bank returned the check and charged the respondent’s COLTAF account a handling charge. The returned check was made payable to the court for the client’s filing fee. On November 25, 2003, another check was presented to the respondent’s COLTAF account against insufficient funds. The bank returned the check and charged the respondent’s COLTAF account a handling charge. The second check was for a personal expense. At the time the two checks were presented against insufficient funds in the respondent’s COLTAF account, the respondent had been practicing law as a sole practitioner only for approximately one year. The respondent failed to become familiar with Colo. RPC 1.15 before the overdraft. The respondent believed he had sufficient funds in his COLTAF account to pay the filing fee. The respondent did not have either a personal or professional bank account. He used his trust account as a personal bank account. From at least August 2003, the respondent used his COLTAF account to pay both client and personal expenses. According to the respondent, he placed earned fees and personal funds into his COLTAF account to cover his personal expenses. He also placed some client funds in the account. The respondent has since paid the two returned checks, paid the bank fees associated with the presentment of checks against insufficient funds, opened a professional bank account, and ceased utilizing his COLTAF account for personal or business purposes. 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 accepted the client’s retainer check, in the amount of several thousand dollars, and deposited it into his COLTAF account. The respondent then wrote checks against the COLTAF account, including for what he calculated were his earned fees on other matters. Several months later, the respondent’s COLTAF account dipped below the amount of the client’s unearned retainer. A few months later, the COLTAF account went into a negative balance due to an unrelated returned item. As a result thereof, the full amount of the client’s unearned retainer was technically converted by the respondent. The respondent did not maintain individual client trust account ledgers and did not endeavor to reconcile the amounts he was holding in trust for individual clients with his COLTAF account statements. Instead, he deposited retainers into his COLTAF account, calculated what he thought were his earned fees, and withdrew that amount from the COLTAF account. Apparently, because of this practice, the respondent withdrew from his COLTAF account more than he was due for earned fees and thereby converted the client’s unearned retainer. The client did not use respondent’s legal services, but instead decided to hire other counsel. Sometime later, the client asked the respondent to refund her retainer. The respondent was not immediately responsive to complainant’s calls and took some time to return the retainer. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and be monitored financially. The rules implicated are Colo. RPC 1.15(a), Colo. RPC 1.15(g)(1), Colo. RPC 1.15(g)(2), and Colo. RPC 1.16(d).

Disobey an Obligation Under the
Rules of a Tribunal

— An individual was arrested for stalking his ex-girlfriend. The defendant was on a deferred judgment for similar behavior against his ex-girlfriend. After his arrest, the defendant was taken to jail and booked on domestic violence charges. Shortly thereafter, he telephoned his current girlfriend, the former legal secretary of the respondent. The girlfriend then inquired of the respondent as to whether anything could be done to get the defendant out of jail. The respondent telephoned a judge at his home on a Friday evening, after the courthouse was closed, "to see if anything could be done." Thereafter, the judge released the defendant, setting the oral terms for the statutory restraining order. After the District Attorney found out, he objected to the manner in which the defendant was released from jail on Friday evening. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 3.5(b).

Communication with Person
Represented by Counsel

— The respondent engaged in unprofessional conduct during a deposition and also contacted an opposing party without the permission of counsel. 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(h).

— The complainant’s client had been sued by the respondent based on a dishonored check issued to the respondent’s client. The complainant made numerous unsuccessful attempts to contact the respondent to resolve the matter. The complainant called the respondent, filed an answer on behalf of his client, and sent the respondent a letter dated March 13, 2003. Notwithstanding the prior communications from the complainant, all of which referenced his representation of his client, the respondent wrote the complainant’s client directly on March 24, 2003. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.2

Threatening Prosecution

— The respondent sent a letter to a party who claimed that the respondent’s client owed him money for services provided relating to locating commercial real estate. In the letter, the respondent stated as follows: "Should you pursue your threat of litigation, be advised that such an outrageous act would have severe consequences. . . . We would also feel compelled to report you to all of the appropriate regulatory and licensing authorities, so as to protect other unsuspecting clients from such abuse in the future." As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.5.

Responsibilities Regarding
Nonlawyer Assistants

— In 1994, the respondent represented the co-personal representatives of an estate. One of the personal representatives was the sole heir. In July 1996, the estate closed. In early January 2000, the respondent received notice that the estate was due an additional $60,000 from a qualified domestic relations order ("QDRO") from the deceased’s divorce. The respondent assigned the task of locating the two personal representatives to an independent paralegal that works for the respondent on a regular basis. The paralegal is a South Dakota licensed attorney, who is not licensed in Colorado. The paralegal traveled to the courthouse to obtain addresses from the court’s file. He found addresses in the file that were not current addresses for the representatives. On February 7, 2000, the paralegal wrote to the personal representatives to inform them of the money. He used the wrong addresses, although the court’s file and the respondent’s closed office file contained the correct address. The respondent did not review his own records to verify the paralegal’s work. The respondent made no other attempts to locate either person until June 2002. The respondent spoke about the case with the County Administrator. The County Administrator suggested that the respondent file a Petition for Appointment of a Special Administrator. In August 2000, the paralegal prepared and the respondent filed a petition for an order reopening the estate and having himself appointed special administrator. The court granted the petition in September 2000. The debtor of the deceased eventually made payment on the QDRO in July 2001. The respondent placed the funds in his COLTAF account and eventually into a separate interest bearing estate account. He also hired an accountant to prepare and file an estate tax return. In June 2002, the paralegal contacted a skip tracing firm to locate the heir and former personal representative. In late June, the heir was located at the last address in the court and respondent’s files. In January 2003, the respondent filed a motion to close the estate and approve fees of the special administrator. As a part of the motion, the respondent filed an affidavit supporting his claim for fees. The affidavit identified persons doing work by initials of the person’s name. After the paralegal’s initials, the notation "ATTY" appears. A dispute arose between the heir and the respondent over fees being charged to the estate. The respondent amended his affidavit to show the paralegal was not an attorney admitted in Colorado, but only a paralegal. The fee dispute was resolved between the parties before any court hearing. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 5.3(b).

— In connection with the services as a special advocate for a minor child in dissolution proceedings, the respondent sent medical records authorization forms to the child’s mother. The forms the respondent sent to the mother did not include names of providers to whom the forms would be sent or the identity of the person whose records were being requested. The respondent asked the mother to leave the information blank and to sign the forms without dating them. The mother signed the forms but dated them contemporaneously. The forms all indicated that they expired within thirty days from the date they were signed. The respondent did not use all of the forms within thirty days of the date the mother signed. Instead, the respondent’s legal assistant "whited-out" the original dates and typed in new dates. The respondent also used one of the forms to request a treatment summary from the mother’s treating psychologist. Although the respondent advised the mother’s attorney she would be requesting records from the mother’s psychologist, this disclosure was not made at the time the medical records authorization forms were provided to the mother for signature. There was no dispute that the respondent was entitled to obtain all of the records she sought through use of the medical records authorization forms. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 5.3(b) and Colo. RPC 8.4(h).

Criminal Conduct

— After a jury trial, the respondent was convicted of obstructing a peace officer, resisting arrest, possession of drug paraphernalia, and possession of not more than one ounce of marijuana or marijuana concentrate. At the request of the Office of Attorney Regulation Counsel, the respondent was evaluated through an independent medical examination. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, abstain from the use of mood altering substances, and have an evaluation by a psychologist. The rule implicated is Colo. RPC 8.4(b).

— The respondent is married to and resides with his wife, who is an addict. Periodically, the respondent’s wife lapses into drug use. During one such relapse, the wife incurred thousands of dollars in credit card debt to support her drug use and kept it secret from the respondent. When the respondent discovered the debt and the drug relapse, he became frustrated with his wife’s behavior. Shortly thereafter, the respondent returned home from work and an argument began over a trivial subject. It quickly escalated into an argument over the wife’s deceptive drug use and financial deceit. The respondent ripped his clothing and threw his glasses, his watch, candles and other household items, breaking several of them. He kicked a door off the hinges. The respondent’s wife called the police, as she was afraid of the respondent’s behavior. The police arrived and arrested the respondent, although no physical contact had occurred between the respondent and his wife. The respondent entered a plea to a misdemeanor charge of criminal mischief. He was also found to have committed an act of domestic violence as defined by C.R.S. § 18-6-800.3. The respondent received a deferred sentence and was placed on twenty-four months’ probation. He also was ordered to attend thirty-six weekly group therapy sessions on anger management and domestic violence. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with terms of probation from criminal case, and attend individual counseling. The rule implicated is Colo. RPC 8.4(b).

— The respondent was cited for driving under the influence of alcohol, failing to drive in a single lane, and a red light violation. At the time of his arrest, the respondent’s blood alcohol concentration was measured to be .140. The respondent pled guilty to a charge of driving while ability impaired and was sentenced to fifteen months of supervised probation. The conditions of the probationary sentence included that the respondent was to maintain a period of monitored sobriety for one year, was to serve ten days of electronically monitored in-home detention, was to perform forty-eight hours of useful public service, and pay certain fines and costs. The respondent submitted to an evaluation to determine whether alcohol or other factors interfere with his ability to practice law. The evaluation revealed that the respondent meets the criteria established by the American Psychiatric Association for a diagnosis of alcohol dependence. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with court sentence, comply with the recommendations of the evaluation, abstain from alcohol, obtain outpatient treatment, and comply with aftercare recommendations. The rule implicated is Colo. RPC 8.4(b).

— The respondent was stopped by a police officer for failing to signal properly. The officer noted an odor of alcohol and asked the respondent to step out of the vehicle. When respondent did so, the officer noted the respondent was unsteady and had bloodshot, watery eyes and slurred speech. The officer asked the respondent to perform roadside sobriety tests. The respondent initially agreed but subsequently decided not to perform the sobriety tests. The officer again asked the respondent if he would perform the sobriety tests. When the respondent refused, the officer arrested him for suspicion of driving while under the influence of alcohol. The officer explained express consent to the respondent and asked if he would submit to alcohol testing. The respondent refused. The officer explained the respondent could lose his driver’s license for a year if he declined the testing, but the respondent still refused. At the sheriff’s office, the officer offered the respondent another opportunity to submit to alcohol testing. The respondent declined the offer. The respondent pled guilty to driving while ability impaired by alcohol. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and comply with court sentence. The rule implicated is Colo. RPC 8.4(b).

Conduct that is Prejudicial to the
Administration of Justice

— On September 8, 2003, the respondent sent a letter to a consumer advising that he and his firm had been retained to collect a debt against the consumer. The letter requested that the consumer take action to either pay the debt or otherwise dispute the validity of the debt. In accordance with the Colorado Fair Debt Collection Practices Act, CRS §§ 12-14-101 et seq., the letter included the following language: "If the consumer notifies a debt collector or collection agency in writing . . . that the consumer refuses to pay a debt or the consumer wishes the debt collector to cease further communication with the consumer, then the debt collector or collection agency will not communicate further with the consumer with respect to such debt, except for a written communication to advise the consumer that the debt collector’s further efforts are being terminated and that the debt collector or creditor may invoke specified remedies that are ordinarily invoked by such debt collector or creditor, or where applicable to notify the consumer that the debt collector or creditor intends to invoke a specified remedy permitted by law." See CRS § 12-14-105(3)(a). On September 17, 2003, the consumer sent a letter to the respondent disputing the debt, and requesting that the respondent "cease and desist" from any further communications regarding the debt or the collection matter. The respondent received this letter and reviewed it on or before September 23, 2003. On September 30, 2003, a second letter was sent to the consumer from the respondent’s firm, with the respondent’s computer-generated signature. The respondent did not review the letter before it was sent. The September 30, 2003 letter included the following language: "Since you, the consumer, did not notify this Firm within thirty (30) days after receipt of the first Notice that you disputed the validity of the debt or any portion thereof, the debt is assumed to be valid by this Firm." This letter also included language that was a further attempt to collect the underlying debt. These statements in the September 30, 2003 letter were inconsistent with the statements in respondent’s initial debt collection notice to the consumer, dated September 8, 2003, and the fact that the consumer disputed the debt and requested no further communication. The conduct violated the Colorado Fair Debt Collections Practices Act. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(d).

— The respondent failed to honor a doctor’s lien he had signed on behalf of a patient. When the case settled, all settlement proceeds were disbursed to the respondent and his client. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, place the disputed sum into his COLTAF account within thirty days of executing the Diversion Agreement, interplead the funds and obtain a judicial resolution if the dispute has not been resolved within six months, and notify the Office of Attorney Regulation Counsel of the status of the dispute. The rule implicated is Colo. RPC 8.4(d).

Private Admonitions

— The respondent failed to maintain records of deposits and withdrawals in his trust account. When the respondent’s trust account was overdrawn, his bank sent a notice of overdraft to the Office of Attorney Regulation Counsel ("OARC"). The OARC inquired of the respondent as to the cause for the overdraft. The respondent was unable to provide appropriate trust account records to the OARC, because he had not kept them. The rule violated is Colo. RPC 1.15(g)(1).

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