Vol. 33, No. 7
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 ("OARC"). Thereafter, ARC or some other entity must approve the agreement.
From February 18, 2004, through May 19, 2004, at the intake stage, Regulation Counsel entered into 26 Diversion Agreements involving 26 requests for investigation. ARC approved 11 Diversion Agreements involving 14 requests for investigation. The PDJ approved 3 Diversion Agreements during this time frame. ARC issued one private admonition involving one separate request for investigation during this time frame.
Regulation Counsel reviews the following factors to determine if diversion is appropriate: (1) there is little likelihood that the attorney will harm the public during the period of participation; (2) Regulation Counsel can adequately supervise the conditions of diversion; and (3) the attorney is likely to benefit by participation in the program.
Regulation Counsel will consider diversion only if the presumptive range of discipline in the particular matter is likely to result in a public censure or less. However, if the attorney has been publicly disciplined in the last three years, the matter generally will not be diverted under the rule. See C.R.C.P. 251.13(b). Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion. See C.R.C.P. 251.13(b).
The purpose of a Diversion Agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. Furthermore, the Diversion Agreement 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 an individual in a federal civil litigation matter. Thereafter, the respondent failed to terminate his relationship with the individual and she continued to look to the respondent for legal advice and assistance. Rather than terminating his relationship with the client, the respondent continued to provide representation to her from time to time in specialized matters in which the respondent was not familiar or competent to practice. At one point, the respondent told his client that he had spoken with a witness when he had not. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and have a practice monitor. The rules implicated are Colo. RPC 1.1 and Colo. RPC 8.4(c).
— The respondent represented a client in a dissolution of marriage matter. After the decree of dissolution was entered, the respondent assisted the client in selling the marital residence, the equity in which was to be divided between the respondent’s client and the opposing party. The client ended up entering into a deal pursuant to which title to the marital residence was quit-claimed to a third party in return for a promissory note and deed of trust. The respondent was involved in the closing, which took place at the respondent’s office. However, the respondent failed to note that the agreed-upon maturity date was omitted from the promissory note. The respondent also allowed the third party to take possession of all original closing documents, including the original promissory note and the original deed of trust. After the third-party purchaser failed to pay the promissory note on the agreed-upon maturity date, the client was unable to pursue a foreclosure, because she did not have the actual note. The respondent offered to take an assignment of the note and deed of trust from her client, in return for a credit on the client’s account. The respondent, in connection with the proposed transaction, did not explain to her client in writing the potential conflicts of interest involved in such a transaction between an attorney and client. The client also contends that the respondent failed to advise the client to consult with independent counsel concerning the transaction. Ultimately, the transaction was fair and reasonable. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.8(a).
— The respondent represented clients in a civil lawsuit against an auto dealer and the manufacturer, alleging defects in a new vehicle purchased by the clients. The respondent did not conduct any discovery and did not fully respond to the defendants’ discovery. The respondent failed to set the case for trial, relying on statements from opposing counsel that the defendant would set the case for trial. The defendants made reasonable settlement offers, which the respondent’s clients refused to accept. When the clients refused to accept the settlement proposals, the respondent attempted to find new counsel to take over representation. The respondent did not seek to withdraw from representation when his clients would not follow his advice. Ultimately, the case was dismissed for failure to prosecute, despite the respondent’s contention that he relied on statements from opposing counsel in believing that opposing counsel would set the case for trial. The clients filed a civil malpractice suit against the respondent, which the respondent settled. The respondent had no prior disciplinary record. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.3.
Diligence and/or Failure to Communicate
— In March 2003, the respondent was appointed as alternative defense counsel ("ADC") to represent an inmate ("client") on his post-conviction matter. Thereafter, the respondent wrote to the client asking him what issues he wanted addressed in the appeal and that he communicate with her by letter. The client wrote back on three different occasions, asking specific questions related to his appeal. The respondent did not respond to the questions. The respondent sent the client a copy of the opening brief but still did not address the client’s earlier questions about his case. On July 29, 2003, the client wrote to the respondent, noting that the brief was missing pages and asking for those pages, plus asking for an explanation as to why the respondent requested appellate issues, then failed to use them or explain why they were not used. After the client filed a request for investigation with the Office of Attorney Regulation Counsel, the respondent finally sent the client a complete copy of the opening brief, along with notice of intent to withdraw from his case due to his complaint about the respondent. The respondent still did not address the client’s questions about his case or the brief. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.4(a).
— On March 30, 2002, the respondent was hired by a client to represent him with regard to post-decree matters, as outlined in the engagement letter, "parenting time, child support, [and] retirement benefits." The court, at a status conference held on August 1, 2002, addressed several issues to the retirement accounts of the parties. The respondent was ordered to prepare the appropriate qualified domestic relations orders ("QDROs") to separate the interests of the parties in the retirement accounts, in accordance with prior court orders. Thereafter, the client asked the respondent several times about the status of the QDROs. The respondent failed to take appropriate action to draft the QDROs. The client sent a letter to the respondent terminating her as his lawyer. The respondent filed a motion to withdraw, but the court never took action on the motion. The respondent failed to follow up with the court to determine the status of the motion to withdraw, or to determine her status as attorney of record for the client. The client filed a motion requesting that the court remove the respondent as his attorney of record, which was granted. Because of his concerns about the respondent’s handling of his case, the client began asking the respondent to provide him with a complete copy of his file materials. Despite numerous requests in this regard, the respondent did not provide the file materials to her client. Ultimately, the respondent provided those file materials to the Office of Attorney Regulation Counsel in September 2003, and they were subsequently forwarded to the client. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.4, Colo. RPC 1.16(d), and Colo. RPC 3.4(c).
— The respondent neglected his client’s civil case from July 2001 until he finally withdrew in March 2003. During that time period, the respondent failed to submit disclosures and cooperate in discovery. Because the respondent failed to comply with an April 8, 2002 court order, the client’s case was dismissed without prejudice on May 7, 2002, but was ultimately reopened. The respondent also disclosed to opposing counsel that he and his client disagreed on how the case should be handled as well as the fact that he had called the police to remove his client and her son from his office. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.6(a), Colo. RPC 3.2, and Colo. RPC 3.4(c).
— Respondent represented the landlord in a landlord-tenant eviction matter. A hearing was held in February 2003. The tenant was evicted; however, the issue of unpaid rents was left unresolved. After the February 2003 hearing, the client made several telephone calls to the respondent. The respondent did not return or respond to the client’s telephone calls, messages, or letters. In March 2003, the respondent received a check from the sheriff’s department, belonging to the client. The check was a refund for services involving service of process and civil assists that were not completed. The respondent did not forward the check to the client until eleven months later, after being contacted by the Office of Attorney Regulation Counsel. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— The respondent was appointed to represent a client whose parental rights had been terminated. The court, in the underlying case, entered its written termination order on October 23, 2002. Between October 23, 2002 and March 11, 2003, the respondent did not file with the trial court any post-trial motions on behalf of the client. Further, the respondent did not file any appellate pleadings on behalf of the client, until March 11, 2003, outside of the appellate time frame or deadlines. Between October 23, 2002 and late February 2003, the respondent had no communication with the client. The respondent did respond to a letter she received from her client dated February 24, 2003. 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 a group of tenants in an apartment complex in pursuing a civil action. The respondent misinformed the clients about when their civil complaint was filed, failed or refused to provide copies of the complaint and demand letter to clients, failed to provide other requested information and documents to clients, and failed to send any invoices or other correspondence to the clients accounting for funds paid to the respondent’s firm. The conduct occurred over approximately a four-month period. Otherwise, the respondent handled the case appropriately. At the time of the conduct, the respondent was an attorney for less than a year. The respondent continues to represent some clients and has since associated with more experienced counsel. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.4(a).
— The respondent was hired to assist in a civil matter. The respondent was paid a retainer of $500. The respondent did not send a fee disclosure or billing statement to the complainant, and the funds were not kept in a trust account. Despite repeated attempts to communicate with the respondent, the respondent did not return telephone calls to the client and did not provide an accounting of his time for services rendered pursuant to the representation until a request for investigation was filed with the Colorado Supreme Court Office of Attorney Regulation. The respondent maintained no file or work product and ultimately reconstructed a bill for the time he spent on the matter and sent it to the complainant, along with the respondent’s personal check dated December 15, 2003, in the amount of $31.25, which represented the balance of the unearned fees. 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 1.5(b), Colo. RPC 1.4(a), and Colo. RPC 1.15(g).
— The respondent was hired to initiate divorce proceedings on behalf of the complainant, and agreed to a $750 flat fee, plus costs, if no hearings were required. There was no written fee agreement, and the respondent does not have a trust account. The attorney-client relationship deteriorated when the respondent requested the remainder of the fee after presenting a bill that failed to give the complainant credit for a payment he had made. The respondent then gave a third party a stipulation for him to withdraw, and requested that the third party obtain the complainant’s signature. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and Trust Account School. The rules implicated are Colo. 1.5(b), Colo. RPC 1.6(a), Colo. RPC 1.15(a), and Colo. RPC 1.15(f).
Conflict of Interest
— The respondent undertook the representation of both a husband and wife for estate planning purposes. One of the documents to be prepared was an ante-nuptial agreement. Prior to executing any agreement, the wife asked to speak with the respondent outside the presence of her husband concerning her possible forfeiture of marital rights. Two days before the wife’s request to speak privately, the respondent had prepared, for discussion purposes, a draft ante-nuptial agreement that indicated that he represented only the wife. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and remove all billing related to work on the ante-nuptial agreement and reduce the bill. The rule implicated is Colo. RPC 1.7(b).
— In November 2001, a person ("depositor") gave the respondent $8,345 to hold in his trust account. The money was to be held in trust, as payment for another party when that party accomplished certain work for the depositor. At the time the funds were conveyed to the respondent, depositor directed the respondent not to release any funds to the other party without his express authorization. Depositor authorized the release of $5,000 to the other party. Because of a dispute that arose with the other party, depositor asked the respondent to refund the remaining balance of the funds held in trust, $3,345. Depositor asked the respondent, by way of letters dated June 2, 2003, August 14, 2003, and October 9, 2003, to refund these funds. The respondent failed to respond to any of these letters. On December 9, 2003, the respondent advised that he was still holding the $3,345 in his trust account, that he received at least two of the three letters the depositor sent to him, and that he needed to check on the status of the work to determine whether the other party was making any claim to the money. The respondent had no explanation for his delay in checking into the matter and failure to respond to complainant. Thereafter, the respondent looked into the matter, and refunded the remaining balance of the money to the depositor some time in late December 2003 or early January 2004. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.15.
— Respondent had a check presented against his COLTAF account for insufficient funds in January 2004. The respondent failed to transfer a credit card payment to his trust account, thus creating a situation where the overdraft occurred. The respondent admitted to not maintaining proper records and not supervising personnel designated to oversee and reconcile the account. As part of the conditions of the Diversion Agreement, the respondent must attend Trust Account School. The rule implicated is Colo. RPC 1.15.
— The respondent represented a client in a civil matter on a contingent fee basis. The respondent reached a settlement on behalf of the client, and the settlement proceeds were sent to the respondent. The respondent paid one-third of the settlement proceeds to himself, pursuant to the fee agreement. The remainder of the settlement proceeds remained in the respondent’s trust account by agreement with the client. Eventually, the respondent paid the remaining settlement proceeds to himself to cover fees and costs incurred by the client in other legal matters. It is likely the respondent earned all of the funds he paid to himself out of the settlement proceeds. However, the respondent failed to maintain all of the financial records concerning his handling of the funds, as provided in Colo. RPC 1.15(g). To the extent the respondent had kept such information and performed required accounting functions initially, he had lost much of the data due to a computer failure. The respondent had not maintained printed copies of the financial information maintained in his computer system, nor had he copied or "backed up" the information to a separate disk or CD-ROM. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.15(g) and Colo. RPC 1.15(h).
Failure to Timely Comply with
— The court allowed the respondent to enter as substitute counsel for his client, the wife, in a long, bitterly contested domestic action. At the time of the respondent’s entry of appearance, his client’s discovery responses were outstanding. In February and March 2002, opposing counsel filed motions to compel discovery, which the court granted. Instead of segregating the documents and timely preparing written responses, the respondent sent boxes of disorganized documents to opposing counsel. Opposing counsel filed for sanctions to compensate the time spent by counsel and support staff to review the boxes and ascertain which documents were responsive to the discovery requests. The respondent admitted the discovery violation was his own personal responsibility rather than his client’s. At a hearing on November 18, 2002, the court ordered the respondent personally to pay $5,000 to the opposing party. The respondent filed a motion to set off this sanction against money the opposing party owed the respondent’s client, on grounds that his client could not pay the respondent, because the opposing party was not paying the respondent’s client. The court granted the respondent’s motion. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 3.4(d).
Lawyer as Witness
— Respondent represents the husband/father in a dissolution matter. In the fall of 2003, a dispute developed between the parents regarding whether the parties’ 15-year-old son would reside with the father or with the child’s mother. On December 23, 2003, the respondent filed a motion to modify primary parental responsibility, seeking to change the child’s primary residential placement from the mother to the respondent’s client. The respondent’s motion stated, "Counsel has interviewed the minor child and, from the interview, believes that the child wishes to remain with his father and that . . . the minor child feel[s] that this move is in the best interest of the minor child." At a February 23, 2004 status conference on the matter, the court noted concerns with the respondent’s offering his own personal opinion as to the veracity or conviction of the child. The respondent potentially could become a witness if the child testified differently from what he told the respondent. As a result of these concerns, the court appointed a child legal representative for the parties’ minor child on February 24, 2004. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 3.7
— The respondent represents the wife in a very contentious divorce proceeding with the complainant husband, who is a law school student. Throughout the case, the respondent had questioned the complainant’s fitness to practice law, based on the complainant’s actions in the divorce case, and had voiced his concerns to the complainant’s attorney. In December 2003, the respondent wrote the complainant’s attorney a letter, which stated in pertinent part as follows: "If I have to dig out of your client the amount of money he improperly took from my client over the last several years, you should correctly assume I will make that fact known to the Attorney Regulation counsel [sic]. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.5(a).
— The complainant’s relationship with her psychotherapist ended badly, and the complainant began treatment with a new therapist. The complainant was threatening to file a grievance against her original therapist. On behalf of the complainant’s original psychotherapist, the respondent wrote a letter to the new therapist, which contained the following language: "If we were advising [complainant], if she were our client, we would be remiss not to inform her (or anyone else who made such a threat) that threatening a grievance to compel a therapist against his or her will to resume treatment amounts to criminal extortion. (We have enclosed a copy of the statute, so that you can review it with [complainant].) Extortion is a class IV felony, punishable by imprisonment from 2 to 12 years in the state penitentiary. Particular attention should be paid to the wording in the statute that defines an extortionate threat to include threatening to "damage the property or reputation" of another. Threatening to grieve someone is, of course, a direct threat to professional reputation. On these facts, for [complainant], or anyone else to threaten [R’s counsel] with a grievance amounts to extortion. For anyone to encourage or assist [complainant] in such threats would make such a person a complicitor. The risks do not end there. [R’s client] will, however, if attacked, defend himself resolutely regardless of cost. He will pursue the matter in every forum the law permits, whether civil, administrative, or criminal. If forced, he will seek all remedies available, including restraining orders, criminal prosecution, and compensatory and punitive money damages." As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.5(a).
— The respondent represented a client in regard to a real estate dispute with a real estate agent. The respondent sent a letter characterized as a settlement demand in which the terms of the settlement demand were that the complainant take back the property for a price sold, the costs incurred by the respondent’s client, and execute a release of all claims. The settlement demand indicated that if the offer was not agreed on within ten days of the correspondence, the respondent would: file a lawsuit; report the matter to the Colorado Real Estate Commission, with the threat that the respondent would pursue the matter until complainant’s real estate license was permanently revoked by the Colorado Real Estate Commission; make public disclosure to civic leaders and local government, in which there was an implicit threat of reporting the matter to the district attorney, as the respondent opined that complainant’s conduct may result in criminal liability. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.5.
Communicating with Opposing Party
— The respondent represents a non-custodial parent in post-decree dissolution of marriage action. The opposing party is represented by counsel. The respondent at all times knew the opposing party was represented by counsel. On April 13, 2004, the court entered an order concerning parenting time. On Sunday, April 18, 2004, there was a dispute between the parties as to the logistics and terms of the court’s parenting time order. After an unsuccessful attempt to reach the opposing counsel, the respondent contacted, via telephone, the opposing party directly. During this telephone conversation, the respondent discussed substantive issues on the case including informing the opposing party that he believed he was in contempt of court. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 4.5.
— On September 15, 2003, the respondent sent a demand letter to the complainant seeking certain damages and/or compensation for a client who claimed he received an unsolicited facsimile advertisement/solicitation. On September 23, 2003, the respondent sent another demand letter to the complainant seeking certain damages and/or compensation for the same client pertaining to another facsimile advertisement/solicitation. In response to those demand letters, complainant provided information to the respondent and his firm that he had an existing business relationship with the respondent’s client and, therefore, that the facsimile solicitations were not subject to federal and state junk fax statutes. On October 13, 2003, a legal assistant in the respondent’s office sent a letter to the complainant providing legal analysis of the existing business relationship defense, notifying the complainant that the firm did not believe that defense had merit, and requesting more information from the complainant. On the letter, the legal assistant used a signature block for one of the other legal assistants in the respondent’s office. The respondent did not review this letter prior to the time it was sent to complainant. On October 15, 2003, complainant sent a letter to the respondent asking for case law supporting the firm’s position that his defense lacked merit. On October 21, 2003, the legal assistant in the respondent’s office sent a facsimile transmission to the complainant, providing further legal analysis of the "existing business relationship" defense. On this facsimile transmission, the legal assistant used an assumed name instead of his real name. This communication from the legal assistant was not reviewed by the respondent prior to being sent, and conveyed a copy of a class certification order in a Dallas County, Texas case as support for the firm’s position that the defense lacked merit. The respondent knew that his legal assistant was using an assumed name in communications and other activity the assistant performed for the law firm. The respondent explained that his employees were provided extensive training regarding their role as legal assistants, but acknowledged that the legal assistants exceeded the scope of their responsibilities. The respondent indicated that the legal assistants were reprimanded, and that the firm incorporated new policies requiring that an attorney approve all written communications of the nature described above. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, ensure that his legal assistants and other staff members do not use pseudonyms, and ensure that correspondence is reviewed and has correct signature block of signor. The rules implicated are Colo. RPC 5.3 and Colo. RPC 8.4(c).
Unauthorized Practice of Law
— The respondent became licensed to practice law in another state in 1999. On April 1, 2003, he began working at a law firm in Colorado as an associate. At the end of April 2003, the respondent submitted his application to take the July 2003 Colorado Bar examination. The respondent passed the Colorado Bar examination. In October 2003, he attended Colorado’s course on professionalism. On December 9, 2003, the respondent received notice that he passed the MPRE. On December 10, 2003, the respondent received authorization to take the Oath of Admission to the Colorado Bar. The respondent did not take the oath or become admitted to practice law in Colorado until January 9, 2004. Prior to January 2004, the majority of the respondent’s legal work at the Colorado law firm involved litigation in other jurisdictions. Work involving Colorado clients and/or Colorado legal matters was done under the direction and supervision of licensed Colorado attorneys in the firm. In one matter, however, the respondent provided legal advice to a client and represented that client’s legal interests after a district court complaint was filed against the client. The respondent sent letters in the case to potential cross claimants and the letterhead used a Colorado address for the respondent at the Colorado law firm; however, no disclaimers or other information that informed those individuals that the respondent was not licensed to practice law in Colorado were included. The respondent signed the letters, thereby representing that he was authorized to practice law on this legal matter. The respondent was acting under the direction and supervision of licensed Colorado attorneys at the time he was representing the interests of this client, but did not reflect the same in the above-described correspondence to other parties or their counsel. The respondent has expressed considerable remorse and has demonstrated a cooperative attitude. The Colorado law firm has now established a written policy to ensure that this type of conduct will not occur in the future. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 5.5(a) and Colo. RPC 7.5.
— A sheriff’s deputy observed the respondent driving erratically. After pulling the respondent over and observing indications that the respondent had been drinking, the deputy asked the respondent to perform roadside sobriety tests. When the respondent could not successfully complete the tests, the deputy arrested the respondent on suspicion of driving under the influence of alcohol and weaving. At the sheriff’s office, the respondent consented to a blood test to measure his alcohol consumption. The respondent’s blood alcohol was measured at .178. Upon retest, the respondent’s blood alcohol measured .176. The respondent pled guilty to reckless driving and driving under the influence of alcohol. The respondent received a two-year deferred judgment. This is the respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, the respondent must comply with court sentence. The rule implicated is Colo. RPC 8.4(b).
— The police attempted to stop the respondent because of erratic driving. The respondent initially failed to yield, then stopped his car. After stopping the car, the respondent fled on foot through alleys and yards. The police caught up to the respondent, subdued him and placed him under arrest. At the time, the officer smelled the odor of an alcoholic beverage about the respondent’s person. The officer read the respondent the expressed consent advisement and asked the respondent to submit to testing. The respondent refused to take any test to determine his blood alcohol concentration. The respondent was convicted (pursuant to his guilty plea) of driving while under the influence of alcohol. The respondent was evaluated for issues of substance abuse that could interfere with his ability to practice law. The evaluator determined that there was no need for treatment or other educational programs. 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 was stopped by a police officer for making an illegal left hand turn on a red traffic signal and weaving. While speaking with the respondent, the officer noted indications that the respondent had been drinking. At the officer’s request, the respondent initially attempted roadside sobriety tests but subsequently refused to complete them. The officer arrested the respondent for suspicion of driving under the influence of alcohol, failing to obey a traffic signal, and child abuse (for having her minor child with her while driving under the influence). At the police station, the respondent consented to a breath test to measure her alcohol consumption. The respondent’s alcohol level measured at .199. The respondent pled guilty to driving while ability impaired by alcohol and careless driving. All other charges were dismissed. This is the respondent’s first alcohol-related traffic offense. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with terms of court sentence, comply with an evaluation, undergo a treatment program, abstain from alcohol or any other mood altering substance unless such substance is prescribed by a duly licensed Colorado physician, and have monitored usage of prescription medication. The rule implicated is Colo. RPC 8.4(b).
— The respondent was observed by a police officer driving erratically and failing to stop at the place required at a traffic signal. Noticing alcohol on the respondent’s breath, the officer asked the respondent to perform roadside sobriety tests. When the respondent refused, the officer arrested the respondent on suspicion of driving under the influence of alcohol, driving vehicle with excessive alcohol content, failure to stop at traffic control signal, and weaving. At the police station, the respondent consented to a breath test which measured his alcohol level at .174. A jury convicted the respondent on all four charges. The respondent received a sentence of 180 days in jail with work release and therapy release. This is not the respondent’s first alcohol-related offense. The respondent was previously convicted of DUI in 1987, 1989, and 1990. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, comply with court sentence, attend therapy sessions, attend AA or a similar program, attend class on bi-polar disorders, and continue treatment that includes stress management. The rules implicated are Colo. RPC 8.4(b).
— The respondent was involved in a single-car rollover accident. The officer who responded to the scene of the accident smelled a strong odor of an alcoholic beverage about the respondent’s person. The officer asked the respondent to submit to a blood alcohol test, which he did. The test revealed a blood alcohol concentration of .201. The respondent was charged with driving while under the influence of alcohol, in violation of Colorado statutes. The respondent was convicted, pursuant to his guilty plea, of driving under the influence of alcohol. At the request of the OARC, the respondent submitted to an independent medical evaluation. The evaluator prepared a report stating that the respondent did not meet the criteria for a diagnosis of alcohol dependence. 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).
— The respondent was involved in a single-car accident wherein he lost control of his vehicle and hit the curb, thereby causing a flat tire. A police officer responded to the scene, and smelled a strong odor of an alcoholic beverage about the respondent’s person. The officer asked the respondent to submit to a blood alcohol test, but the respondent refused. The respondent was charged with driving while under the influence of alcohol, in violation of Colorado statutes, as well as careless driving, failure to yield the right of way to an emergency vehicle, and driving with bald tires. On September 25, 2003, the respondent was convicted, pursuant to his guilty plea, of driving under the influence of alcohol. The other charges were dismissed. This conviction was reported to the OARC, in accordance with C.R.C.P. 251.20(b). On March 18, 2004, the evaluator prepared a report stating that the respondent did not meet the criteria for a diagnosis of alcohol dependence or alcohol abuse. 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 or about March 27, 2003, the respondent received an invoice from a court reporter requesting payment for deposition transcripts. The court reporter sent reminder notices for that invoice in April, May, June, July, and August 2003. In June and July 20 03, the court reporter sent invoices to the respondent, requesting payment for other deposition transcripts prepared at his request. The court reporter sent reminder notices for these invoices in July and August 2003. On August 29, 2003, the court reporter provided additional copies of all invoices at the request of a non-lawyer assistant working in the respondent’s office. On November 5, 2003, the court reporter talked to the respondent about the invoices. At that time, the respondent asked the court reporter to provide additional copies of the invoices. Pursuant to his request, the court reporter faxed copies of the invoices to the respondent that day. Despite her efforts to collect on the outstanding invoices, the court reporter was unable to collect payment on the invoices for periods of between six and nine months. During this time, the respondent never disputed his responsibility to pay the invoices. In the course of the investigation, issues arose concerning bookkeeping practices. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, attend Trust Account School, and pay the invoices, including interest, in full within fourteen days after execution of Diversion Agreement. The rules implicated are Colo. RPC 8.4(d) and Colo. RPC 8.4(h).
— The respondent represented a debtor attempting to stop a foreclosure action on the debtor’s home. After suit was filed, the respondent failed to timely set the case for final trial after losing a preliminary injunction hearing. Additionally, the respondent failed to file a brief or response to a motion for attorney’s fees after requesting additional time to respond on four occasions. In mitigation, the respondent paid the attorney fees award, had no prior discipline record, and had numerous personal and emotion problems that interfered with her meeting court deadlines. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School, continue treatment with health care providers, and provide monthly progress reports from health care providers. The rule implicated is Colo. RPC 8.4(d).
— The respondent’s son was the defendant in an alcohol-related traffic matter. A fee agreement was presented to the court for approval by the attorney representing the respondent’s son and the prosecutor. After the judge rejected the plea agreement and set the matter for trial, the respondent contacted the judge directly concerning the case. In order to get the judge to return her telephone call, the respondent gave her name (her last name is different than that of her son) and her title with a government agency. When the judge returned the respondent’s telephone call, the respondent identified herself as the defendant’s mother, and discussed with the judge substantive aspects of the case ex parte. The judge engaged in a discussion with the respondent for approximately one-half hour. Subsequently, the judge determined that he should recuse himself from the case. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(d).
Conduct that Adversely Reflects on the Lawyer’s Fitness to Practice Law
— On more than one occasion, the respondent sent correspondence to opposing counsel in domestic relations matters, which included obscene and patently offensive language. The respondent also used in the communication a rubber stamp depicting an obscene hand gesture. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School and refrain from using the offensive stamp in the future. The rule implicated is Colo. RPC 8.4(h).
— In the course of representing a client in a workers’ compensation matter, the respondent left an obscenity-filled message on opposing counsel’s voicemail, in which the respondent was both insulting and threatening. The message included the threat to file a grievance against the opposing attorney. The rules violated are Colo. RPC 4.5(a) 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