|The Colorado Lawyer|
Vol. 33, No. 10 [Page 145]
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From the Courts
Matters Resulting in Diversion
Matters Resulting In Diversion And Private Admonition
Editor’s Note: Articles describing Diversion Agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These summaries are contributed by the Colorado Supreme Court Office of Regulation Counsel.
Diversion and Private
Background Information Regarding Diversion
Diversion is an alternative to discipline. See C.R.C.P. 251.13. Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel ("Regulation Counsel"), the Attorney Regulation Committee ("ARC"), the Presiding Disciplinary Judge ("PDJ"), the hearing board, or the Supreme Court may offer diversion as an alternative to discipline. For example, Regulation Counsel can offer a Diversion Agreement when the complaint is at the central intake level in the Office of Attorney Regulation Counsel ("OARC"). Thereafter, ARC or some other entity must approve the agreement.
From May 20, 2004 through August 17, 2004, at the intake stage, Regulation Counsel entered into 30 Diversion Agreements involving 30 separate requests for investigation. ARC approved 6 Diversion Agreements involving 9 separate requests for investigation. The PDJ approved one Diversion Agreements during this time.
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 may also address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reason for such conduct was 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 nor 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 OARC. An attorney also may be required to fulfill any of the following conditions: law office audit; practice monitor; financial audit; restitution; payment of costs; mental health evaluation and treatment; attend CLE courses; and any other conditions that may be appropriate for the particular type of misconduct. Note: The terms of a Diversion Agreement may not be detailed in this summary if the terms are generally included within Diversion Agreements.
After the attorney successfully completes the requirements of the Diversion Agreement, Regulation Counsel will close its file, and the matter will be expunged pursuant to C.R.C.P. 251.33(d). If Regulation Counsel has reason to believe that the attorney has breached the Diversion Agreement, 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; conflicts of interest, implicating Colo. RPC 1.7; communicating with someone represented by counsel, implicating Colo. RPC 4.2; threatening prosecution, implicating Colo. RPC 4.5; responsibilities regarding nonlawyer assistants, implicating Colo. RPC 5.3(b); unauthorized practice of law, implicating Colo. RPC 5.5; conduct that is prejudicial to the administration of justice, implicating Colo. RPC 8.4(d); 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
— Respondent represented the defendant in a court criminal case. Respondent’s client resides in another state. At a disposition hearing held on October 22, 2003, respondent requested a motions hearing and twenty days within which to file motions on his client’s behalf. The court granted respondent’s request, set the case for a motions hearing on January 28, 2004, and gave respondent twenty days to file the motions. Respondent failed to timely file his client’s motions. At the January 28, 2004 motions hearing, respondent informed the court he learned the week before that his motions for defendant had not been filed with the court or served on the prosecution. Respondent asked the court to reset the motions hearing and permit his client’s motions to be filed out of time. The prosecution objected, and the court agreed to review the issues at a hearing set for March 31, 2004. Respondent’s client traveled from the other state to Colorado for the January 28, 2004 motions hearing, which had to be reset due to respondent’s failure to timely file his client’s motions. As part of the conditions of the Diversion Agreement, the Respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.3, and Colo. RPC 8.4(d).
— In early 2001, clients sought representation in a dispute with their home builder from an attorney ("Attorney 1") who had represented them on other matters. Attorney 1 handled their previous matters on an hourly rate. Because Attorney 1 had previously represented the clients, there was no written fee agreement. Due to a heart attack and bypass surgery in 2000, Attorney 1 advised he would need assistance from other attorneys to handle the case. The clients agreed. Attorney 1 informed the clients that any other attorney brought into the case would bill them independently, and that they could work out payment arrangements themselves with the other attorneys. Attorney 1 later informed the clients that if the case could not be settled, respondent would handle the trial. Attorney 1 began actively including respondent in work on the case in November 2001. Respondent continued working on the case through late August 2003 and early September 2003, when a significant dispute developed between the clients and respondent regarding his fees and his work on the case. The clients knew respondent was involved in the case and was to be their trial attorney. However, they had no idea exactly how much work respondent had performed or how much he was charging, because he provided them no written fee agreement or disclosure and no billing statement for any of his time until the end of August 2003. In early September 2003, the clients received respondent’s first billing statement, showing respondent’s time charged for almost two years. At the same time, respondent asked the clients to sign a written fee agreement and informed them that if they did not pay him and sign his fee agreement, he would withdraw from their case. The clients refused and respondent filed a motion to withdraw, which the court granted on November 10, 2003. Trial for the clients’ case was set to begin on January 26, 2004. On April 15, 2004, the clients and respondent mediated the fee dispute and reached an agreement. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 1.5(b).
— Respondent entered into a "minimum fee contract" with a criminal defendant for the sum of $7,000. As part of the terms of the agreement, client agreed to pay a minimum initial retainer of $2,500. The $7,000 amount was characterized as a "minimum fee" that would be charged and not be refunded, regardless of the amount of time expended by the attorney, unless the attorney determined that circumstances warranted a refund. The rule implicated is Colo. 1.5(g).
— Respondent was hired in February 2001 to represent the complainant and her adult son on criminal charges stemming from an incident at the complainant’s home. The complainant was charged with a misdemeanor, and her son was charged with a felony. Respondent was paid $10,000 flat fee to represent both of them. There was no written fee agreement or engagement letter, and respondent did not provide any bills or otherwise account for the use of the $10,000 until a grievance was filed. The rule implicated is Colo. RPC 1.5(b).
Diligence and/or Failure to Communicate
— In mid-September 2002 and again in early October 2002, inmates at a Colorado correctional facility assaulted another inmate, which left him comatose, with serious head injuries. On or about November 12, 2002, the inmate’s mother hired respondent to represent her in seeking appointment as her son’s guardian and conservator, as well as representing her son’s interests regarding his treatment during his incarceration and damages incurred from the assaults. In December 2002, respondent filed petitions to appoint the mother as her son’s guardian and conservator. Respondent sent letters of intent to sue to the Colorado Office of Attorney General, the Colorado Department of Corrections, and other facilities involved in the inmate’s incarceration. In October 2003, respondent filed a complaint in federal district court on behalf of the mother and her mentally incapacitated son. Although respondent met with the inmate’s mother once early in the representation, he had no substantive direct communication with her thereafter, until a dispute developed regarding his fees. Respondent delegated virtually all communications with the mother to respondent’s support staff, even though the mother complained that the staff could not answer her questions or provide her legal advice. Only when a dispute developed regarding respondent’s fees did he begin to communicate directly with the mother. In January 2004, respondent wrote to the mother twice to advise that he would withdraw if she did not bring her account current. In February 2004, respondent filed a motion to withdraw as counsel for the mother and her son, citing grounds that the mother was no longer paying respondent’s bills and that communications with her had been fractured. The rules implicated are Colo. RPC 1.2(a), Colo. RPC 1.4(a), and Colo. RPC 1.4(b).
— Respondent was retained by an insurance company to issue an opinion regarding liability in a pedestrian-automobile accident. Respondent opined that the client could deny coverage for the accident. The client asked respondent to file a declaratory judgment action against the parties involved in the accident. In November 2002, respondent agreed to file the action for the client, but failed to do so. Throughout the next year, respondent told the client the declaratory judgment action had been filed. Respondent also told the client that the lawsuit had been served with no response from the adverse parties, and that the court had not yet ruled because it was overloaded due to judicial budget cuts. In February 2004, respondent took a temporary leave from the law firm due to depression. During respondent’s absence, respondent’s failure to file the declaratory judgment action came to light. As a result, respondent informed the client about the false statements, resigned from the law firm, and changed the license status to inactive. Respondent’s partners filed the declaratory judgment action on behalf of the client, preserving its claims on the coverage issue. Respondent did not bill the client for any work associated with the declaratory judgment action, even though respondent had drafted the petition and left work product with the firm when respondent resigned. Approximately three years prior to this incident, respondent’s law partner was severely injured. Respondent tried to handle respondent’s and the partner’s case load. In addition, respondent’s spouse had passed away in September 2003, as a result of an accident. Respondent is presently in therapy, seeking treatment for depression. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and notify the Office of Attorney Regulation if the license status changes to active. If respondent changes the license to active during the term of the agreement, respondent shall continue with therapy and/or treatment for depression. The rules implicated are Colo. RPC 1.3 and Colo. RPC 8.4(c).
— Respondent and a representative of an insurance company reached a settlement regarding claims asserted by one of respondent’s clients. Pursuant to the terms of the settlement, the insurance company sent a letter to respondent, conveying the settlement check and a release of liability. The letter conveying the documents stated that cashing the settlement check was not to occur until the insurance company received the executed release back from respondent and his client. Respondent cashed the settlement check on August 28, 2003, and disbursed the funds to his client. In September 2003, an agent from the insurance company called respondent and inquired about the status of the release. Respondent advised that he sent the signed release via first class mail at or about the time that he negotiated the settlement check. Because the insurance company never received the signed release, another release was sent to respondent for execution. Respondent sent this release to his client some time in October 2003, but never followed up with the client to ensure that it was signed and returned to the insurance company. The agent of the insurance company attempted to follow up with respondent to determine the status of the release, but respondent failed to respond to any of these calls. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and send a letter to the agent for the insurance company, detailing his efforts to obtain the signed release from his client from the time of the settlement to the present. The rules implicated are Colo. RPC 1.3 and Colo. RPC 4(h).
Complainant, who is an attorney, turned an account over to a collections company, who in turn hired respondent to file suit against the debtor. Respondent failed to communicate with the complainant until two days before trial, at which time the complainant was told to appear in a distant location and to bring his expert with him. The complainant instructed respondent to withdraw and seek a continuance. Respondent sent a motion to withdraw, but not a motion to continue the trial. The trial attorney hired by respondent obtained a continuance and all parties involved subsequently reached a settlement. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 1.4(a).
— On March 25, 2004, respondent entered his appearance in a criminal case, on behalf of his client. On that date, the court set the preliminary hearing for May 3, 2004. On May 2, 2004, the sister of respondent’s client informed respondent he was no longer needed and that the client would obtain new counsel. On May 3, 2004, respondent failed to appear at the scheduled court date with his client. Respondent had not filed a motion to withdraw or substitution of counsel or informed the court of respondent’s intention not to appear. The court set a new appearance date for appearance of counsel for May 6, 2004. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 8.4(d).
— Respondent from time to time collaborated with another attorney on cases heard before an administrative tribunal. When it was more convenient or efficient for respondent to handle a hearing than for the other attorney to do so, respondent would appear to represent the client, substituting for the other attorney, sometimes only shortly before the hearing. When it was more convenient for the other attorney to handle the hearing, the other attorney would appear, substituting for respondent. As part of this "covering" arrangement, the two lawyers shared client confidences and fees, sometimes without the clients’ prior consent. Respondent and the other attorney were not partners or members of the same firm. As part of the conditions of the Diversion Agreement, respondent must: attend Ethics School; notify clients at the time of retainer of respondent’s association with the other lawyer; notify clients of the potential for disclosure of confidential communications and obtain the clients’ consent to such disclosure; obtain the clients’ consent to any splitting of fees; and notify the tribunal of any substitution of counsel. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(b), Colo. RPC 1.5(d), Colo. RPC 1.6(a), and Colo. RPC 1.16(d).
— Respondent was hired by a client to update her will. The client was not presented with a written fee agreement or any written fee disclosure. The client was provided a computer disk with information relevant to the revisions, and a copy of her will. The client did not hear from respondent, and in December 2003, the client contacted respondent about the revisions to the will. Respondent advised that he lost the client’s telephone number and that he would have the revised will completed in a couple of weeks. On March 5, 2004, the client sent a letter to respondent, inquiring about the progress of the work. This letter included a request that respondent return the client’s file materials to her. Respondent did not respond to the client’s letter. After an inquiry from the OARC, respondent returned the file materials to his client. In another matter, in August 2003, a California resident and her Kansas attorney contacted respondent about enforcing a Kansas judgment against her brother who resides in Colorado. On August 31, 2003, the client signed respondent’s engagement letter and paid a $1,000 retainer. Respondent reviewed the documents supplied by the client and her attorney, but ultimately concluded that enforcing the Kansas judgment would be difficult if not impossible because the Kansas court order did not specify the dollar amount of the judgment or the particular party on whose behalf the judgment was entered. Respondent informed his client and her Kansas attorney that a more definitive order was needed from Kansas before respondent could seek to enforce the order in Colorado. On November 6, 2003, the client wrote to respondent and requested he provide a written opinion about her options and his recommendations on her matter. Thereafter, the client repeatedly e-mailed respondent, requesting the opinion letter and status on her case. In late January 2004, respondent spoke with the client and told her the letter was almost done. The client continued to e-mail respondent, requesting the letter and case status in February, March, and April 2004. On April 2, 2004, respondent e-mailed the client, apologized for the delay, and stated he would finish the opinion letter that weekend. When she still had not received the opinion letter or any communication from respondent, the client filed a request for investigation with the OARC. In June 2004, respondent finally provided her a draft of his opinion letter. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, provide an itemized accounting, and refund any unearned portion of funds to the client within fifteen days of executing the Agreement. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.5(b), and Colo. RPC 1.16(d).
— Respondent was hired by the client in approximately February 2001 for post-decree modification of a dissolution matter. The client paid a retainer of approximately $500 and met with respondent. Respondent never filed any pleadings or sent the client an accounting, and failed to maintain proper communication with her after the initial meeting. In approximately November 2003, respondent contacted the client and advised that he had unearned funds from her case in his trust account. The client tried to communicate with respondent to obtain said funds and the funds were finally released to the client in late February 2004. Respondent failed to maintain proper communication with the client and failed to return unearned fees in a timely manner. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and Trust Account School. The rules implicated are Colo. RPC 1.4 and Colo. RPC 1.15(b).
Respondent was hired by complainant to provide legal assistance for estate planning. Respondent and the client signed a fee agreement on November 12, 2002, and a retainer fee was paid. After meeting with the client, respondent prepared various estate planning documents. As instructed by respondent, the client returned the executed documents to the respondent on January 14, 2003. After the client returned the various executed documents to respondent, respondent did no further work on the client’s case. For approximately nine months, the client made numerous attempts to contact respondent about her matter, without a response from respondent. The client’s attempted communications with respondent were by telephone and written correspondence. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— Respondent was retained by the client to represent him in a landlord/tenant dispute. Respondent first met with the client several weeks before the trial date, which had already been set. The client paid a $350 retainer fee. At the initial meeting, respondent informed the client that she would not be available on the trial date currently scheduled. Notwithstanding her unavailability for the trial date, respondent accepted the client’s case and informed the client that she would be filing an entry of appearance and a motion to continue the trial. Respondent did file the entry and the motion to continue. Relying on the assumption the court would grant the motion to continue, respondent made no arrangements for substitution counsel to cover the client’s trial date. On the eve of the trial, the court denied the motion to continue. On the day of the trial, the client was present in court without counsel. The court again reaffirmed its denial of respondent’s motion to continue. The client proceeded to trial without the assistance of counsel. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 1.3.
— Respondent was hired in 1999 to assist complainants in resolving a property line dispute and was paid $736 in May or June 2000. A certified letter sent to respondent in November 2001, seeking the status of the case, was returned "unclaimed." Complainants again requested status on January 21, 2002. Respondent failed to respond until October 28, 2002, when he advised them of his inability to contact the process server. In May 2003, complainants provided respondent with a list of their claimed damages. By letter dated February 12, 2004, respondent, for the first time, requested documentation of the claimed damages. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and refund the sum of $736 to complainants, with proof of payment to the OARC. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— The respondent neglected his client’s case and failed to provide or respond to discovery. The court entered a judgment of $2216.91 against respondent as a sanction for failing to respond to discovery after being ordered to do so. The case was ultimately dismissed without prejudice. The court found the case was dismissed as a result of respondent’s conduct, and entered a judgment of $20,083.75 against respondent for fees and costs that the court had awarded to defendant. Respondent must attend Ethics School and obtain co-counsel or refer to another attorney any currently pending contested cases. Respondent has refunded the fees paid to him and has forgiven additional fees and costs. The rules implicated are Colo. RPC 1.3, Colo. RPC 3.2, and Colo. RPC 3.4(c).
— On August 21, 2001, respondent was appointed to represent a client in a post-conviction matter, specifically a Rule 35(c) motion. In April 2004, respondent withdrew from the case. During the pendency of respondent’s involvement in the case, there were large gaps of time in which respondent did no work on the case or did not communicate with his client. As of the date of respondent’s withdrawal from the case, respondent had yet to complete the review of the transcripts, file any pleadings, or set any hearings in furtherance of his client’s efforts at post-conviction relief. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— Respondent met with a father, mother, and daughter in November 2003 regarding the clients’ desire to collect on a judgment they had obtained in Denver County Court. In early December 2003, the clients signed a written fee agreement with respondent and paid a $600 retainer. Thereafter, respondent attempted to negotiate a voluntary payment arrangement with the judgment debtor. The negotiations were unsuccessful, so respondent served interrogatories on the judgment debtor. On the afternoon of March 3, 2004, respondent e-mailed the clients to let them know if respondnet did not receive the interrogatory responses or a reasonable settlement proposal from the debtor, respondent would file a motion for contempt on March 9, 2004. That same afternoon the mother e-mailed respondent information about the debtor possibly selling her business. Respondent e-mailed the clients back to let them know respondent still planned to file a motion with the court if the debtor did not answer the interrogatories or present a reasonable settlement offer. Throughout the remainder of March 2004, the clients e-mailed and left multiple phone messages for respondent, asking about the status of the case and the motion respondent said he would file. On April 16, 2004, the daughter wrote to respondent, advising that she and her mother had tried repeatedly for over five weeks to reach him about her case, and asked respondent to contact either her or her mother immediately. Respondent did not respond to the daughter’s letter or otherwise communicate with her or her mother. Respondent claims he did not see the daughter’s April 16, 2004 letter. Respondent claims he communicated with the clients, but the billing records show no communications with the clients or work on their case beginning early March 2004. Respondent must attend Ethics School and, within fifteen days of the date of the agreement, must surrender the clients’ file, documents, and/or papers to them and issue a check to the clients in the amount of $1,385.22. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.5(a), and Colo. RPC 1.5(f).
Conflict of Interest
— Client A retained respondent to defend Client A in a collection action pertaining to an unpaid student loan. Client A was referred to respondent by Client B, a company for whom respondent performed legal services and Client A’s employer. On November 11, 2003, respondent sent a letter to the U.S. Department of Education and their collection agency, notifying them that he was representing Client A in the dispute, and seeking validation of the debt. On January 29, 2004, respondent’s paralegal sent Client A materials that were received from the U.S. Department of Education related to the debt. The letter from the paralegal asked Client A to review the materials and call respondent’s office. Some time in late-January 2004 or early-February 2004, a dispute arose between Client A and Client B pertaining to benefits and/or other aspects of the employment contract. In mid-February 2004, Client B terminated Client A as an employee. Thereafter, Client B alleged that Client A violated the terms of a non-compete clause that was part of the employment contract. On February 17, 2004, respondent called Client A and left a voicemail message directing him to "cease and desist" from certain conduct. The message indicated that Client A’s "failure to do so will result in your immediate arrest . . . for threatening employees, threatening bodily harm, and for attempting to destroy the business reputation of [Client B]." Respondent’s message also indicated that if Client A did not return the call within one hour, respondent would "contact the [sheriff] and have you placed under arrest." On February 18, 2004, respondent signed and filed a civil action on behalf of Client B, asserting claims against Client A related to the employment dispute. At the time the lawsuit was filed and served on Client A, he believed that respondent was representing him in the student loan matter. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and withdraw as counsel for Client B and not enter appearance as counsel for Client B in any matter concerning Client A. The rules implicated are Colo. RPC 1.7(a) and Colo. RPC 4.5(a).
— Respondent experienced an overdraft in his COLTAF account with his bank. A check respondent had written to a non-client did not clear the account. Upon investigation, it was revealed that respondent was relying on his wife and on his part-time bookkeeper to maintain the records regarding his COLTAF, account and was not properly supervising either person as required by Colo. RPC 5.3. During the time period in question, the part-time bookkeeper had taken an extended leave. During her absence, respondent did not replace her. Also during this time, respondent failed to maintain the COLTAF record keeping as required by Colo. RPC 1.15(g)(1). Respondent provided COLTAF bank account statements wherein it was shown an unreported overdraft had occurred on the account. Respondent was unable to explain the circumstances of the overdraft. Respondent provided a copy of a fee agreement that revealed a paragraph regarding a bonus payment. As part of the conditions of the Diversion Agreement, respondent must attend Trust Account School and a three-hour CLE course concerning fee agreement and fee issues. The rules implicated are Colo. RPC 1.15(g)(1) and Colo. RPC 5.3.
Communication with Person
Represented by Counsel
— Complainant represents the co-trustees of a trust, an elderly woman and her son. Respondent represents one of the beneficiaries of the trust. Despite knowing that the trustees were represented by counsel, respondent went to the home of the elderly woman to discuss the welfare of the client. There is a factual dispute concerning who requested the meeting. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 4.2.
— Respondent was licensed to practice law in Colorado, although he worked primarily as a delivery driver. In July 2000, respondent became employed as a delivery driver for certain transport companies located in Colorado. In January 2002, a disbarred out-of-state attorney was hired by the companies as an Executive Vice-President. The disbarred attorney then approached respondent about performing legal work for the companies. In the spring 2002, respondent began doing legal work for the companies, including types of legal work that respondent had never done before. In one litigation matter, the Executive Vice-President negotiated and drafted settlement documents without respondent’s oversight. In another legal matter, respondent entered an appearance on behalf of a neighboring tenant without the authority to do so. When the tenant’s counsel instructed respondent to dismiss the tenant from the action, respondent contacted the tenant directly to determine if the attorney had accurately expressed the tenant’s wishes. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 4.2 and Colo. RPC 5.5.
— Respondent wrote a letter that contained the following language: "[My clients] are prepared to dismiss their surcharge action with prejudice and not file a grievance, with your immediate payment of their legal fees and costs to date. . . ." The rule implicated is Colo. RPC 4.5(a).
— Respondent represented a client in a civil dispute with neighbors concerning client’s placement of an advertising sign on their property. The neighbors maintained the sign was a trespass on their property. Respondent wrote to the neighbors about the dispute and monetary damages he intended to pursue on behalf of respondent’s client. Respondent’s letter also threatened to refer the neighbors to the police and district attorney for criminal charges if they continued to interfere with the client’s sign. The rule implicated is Colo. RPC 4.5.
Unauthorized Practice of Law
— From late September 2003 through January 2004, respondent represented a client in connection with her New Mexico state and federal tax issues. The respondent’s law office is located in Albuquerque, New Mexico. Respondent is licensed to practice law in Colorado, but is not licensed in New Mexico. When a dispute developed with respondent regarding fees and the decision to withdraw as her counsel, respondent’s client filed a complaint with the New Mexico Supreme Court Disciplinary Board and its Client Attorney Assistance Program. When respondent’s client learned respondent was licensed only in Colorado and not in New Mexico, she filed a request for investigation of respondent with the OARC. Shortly thereafter, the New Mexico Disciplinary Board filed a request for investigation of respondent with the OARC regarding respondent’s representation in the client’s New Mexico state tax matter and unauthorized practice of law in New Mexico. On April 15, 2004, the State Bar of New Mexico’s Unauthorized Practice of Law Panel concluded respondent engaged in the unauthorized practice of law in New Mexico. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 5.5.
— Respondent was arrested and charged with violations of CRS § 42-4-1301(1A) (driving a motor vehicle under the influence of alcohol); CRS § 42-4-1301(2A) (driving a motor vehicle with excessive alcohol content on breath); CRS § 42-4-1101 (speeding); and CRS § 42-4-1001(1A) (failure to drive in a single lane). Pursuant to the arrest, respondent submitted to a blood test. Respondent’s blood alcohol level was 0.138. Respondent pled guilty to CRS § 42-4-1301(b)(9)(h)(ii) (driving while ability impaired, second). As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, comply with court sentence, attend AA meetings, and provide monthly reports to the OARC. The rule implicated is Colo. RPC 8.4(b).
— Respondent became involved in a physical altercation with neighbors at his vacation condo. As a result of the altercation, respondent pled guilty to two counts of disorderly conduct. Restitution of $1342.61 was ordered and has been paid. Respondent has since sold the condo. Respondent must attend Ethics School, comply with all terms and conditions of sentence and comply with all treatment recommendations made, providing monthly progress reports. The rule implicated is Colo. RPC 8.4(b).
— Respondent was convicted and sentenced to driving under the influence ("DUI"). This was respondent’s first alcohol driving offense, although his blood alcohol content ("BAC") was .426 at time of arrest. Respondent submitted to an independent medical examination ("IME"). As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; comply with all terms and conditions imposed by the court in the underlying DUI matter; comply with all terms, conditions and recommendations contained in the IME report; abstain from the use of alcohol and any other non-prescribed mood altering substances; and continue with antabuse (for only one more year). The rule implicated is Colo. RPC 8.4(b).
— A grievance was filed against respondent by a client. During the investigation, respondent voluntarily disclosed that his drinking was to blame for the problem with the client. Before being contacted by the OARC, respondent had consulted with an addictions specialist who recommended either inpatient or intensive outpatient therapy. Respondent entered an intensive outpatient program for two months. As part of the conditions of the Diversion Agreement, respondent must comply with all recommendations made by the outpatient program, attend AA meetings, and abstain from alcohol or any other mood altering substance. The rule implicated is Colo. RPC 8.4(b).
— Respondent was stopped by a Colorado State Trooper for driving without headlights and for weaving. Respondent pled guilty and was convicted of driving while ability impaired. Respondent was sentenced: to serve twenty days jail-time by electronic monitoring; to undergo an alcohol evaluation and comply with recommendations; to abstain from the use of alcohol for the period of his probation; to be on supervised probation for a period of eighteen months; to perform forty-eight hours of community service; and to pay other fines and costs. Respondent promptly reported his conviction. Respondent has a prior driving while ability impaired ("DWAI") conviction. Respondent was evaluated for substance abuse issues. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; comply with court sentence; comply with all terms, conditions, and recommendations of the evaluation; attend AA or equivalent; comply with random testing; attend a relapse prevention program; and provide written confirmation of compliance. The rule implicated is Colo. RPC 8.4(b).
— Respondent was stopped for driving with no headlights. The officer smelled the odor of an alcoholic beverage about respondent’s person. Respondent pled guilty to the charges of driving while ability impaired and failing to drive in a single lane. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(b).
— Respondent was arrested after falling asleep or passing out at a stoplight. This was respondent’s first alcohol-related offense; however, respondent self-admitted to a thirty-day in-patient facility in 1996 because of a problem with alcohol. Respondent pled to DUI and was sentenced to supervised probation for one year; level II alcohol education and therapy; random breathalyzers; forty-eight hours of community service; and fines and costs. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; comply with all terms and conditions of the sentence; comply with all terms, conditions, and recommendations of the evaluation done by the psychologist; verify participation in any treatment or support program; continue treatment at a hospital’s intensive outpatient program, including daily use of Antabuse; continue seeing the psychiatrist; attend AA; abstain from alcohol or any other mood altering substance unless prescribed by a duly licensed physician; and, if the respondent stops the use of Antabuse, must undergo random breathalyzers or other testing (such testing will be at respondent’s expense for a period of one year). The rule implicated is Colo. RPC 8.4(b).
— Respondent was observed by a sheriff’s deputy driving erratically and repeatedly swerving his car between lanes. After pulling respondent over and noticing an odor of alcohol on respondent’s breath, the deputy asked respondent to perform roadside sobriety tests. When respondent failed to perform the tests satisfactorily, the deputy asked respondent to submit to a portable breath test ("PBT"). Respondent’s PBT result was .162. Respondent pled guilty to driving while ability impaired by alcohol. Respondent received a sentence of 365 days in jail, 355 of which was suspended on condition of successful completion of two-year probation, including fines and court costs; forty-eight hours of public service; Level II alcohol education; and abstention from alcohol. Respondent was ordered to serve ten days of in-home detention. This is not respondent’s first alcohol-related offense. Respondent was previously convicted of DWAI in September 1989. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; comply with court sentence; comply with evaluator’s recommendations; participate in a support program, providing monthly reports to the OARC; abstain from the use of alcohol; obtain treatment with a therapist; and perform random breathalyzers for three months. The rule implicated is Colo. RPC 8.4(b).
— Respondent was stopped for driving improperly on a mountain highway. The officer that conducted the stop smelled the strong odor of an alcoholic beverage. After respondent was arrested, it was determined that she was involved in a minor hit-and-run accident prior to the time she was stopped on the mountain road. Respondent received a citation, charging her with various offenses related to the accident, in addition to a citation for DUI (alcohol) and other related offenses to that portion of her conduct. Pursuant to her plea of guilty, the court convicted respondent of DWAI and improper mountain driving. The other charges were dismissed. Respondent was sentenced to two days in jail, both of which were suspended for the period of one year. Respondent was placed on probation for a period of one year; was ordered to undergo an alcohol evaluation and comply with any recommendations; was ordered to complete useful public service; and was ordered to pay fines and costs associated with the case. Respondent reported her conviction. Respondent was evaluated to determine if there are any substance abuse issues that interfere with her ability to practice law. The evaluator determined that respondent did not meet the criteria for a substance abuse or dependence disorder. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(b).
— On October 10, 2003, respondent was arrested and charged with violations of CRS § 42-4-1301(1)(a) (driving vehicle while under the influence of alcohol and/or drugs) and CRS § 42-4-1007(1)(b) (passing on shoulder of right-hand traffic lane). Pursuant to the arrest, respondent submitted to a blood test. The blood test indicated that respondent’s blood alcohol content was .247. On February 25, 2004, respondent pled guilty to DWAI. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, comply with court sentence, abstain from alcohol and drugs, and perform random breathalyzers two times a week for one year, submitting reports to the OARC. The rule implicated is Colo. RPC 8.4(b).
Conduct that is Prejudicial to the
Administration of Justice
— A retired judge rendered alternate dispute resolution services that respondent had requested on behalf of his client while respondent was employed with a law firm, which said employment ended in November 2002. For approximately sixteen months, the judge regularly sent the billing to respondent who failed to pay. Approximately one month after respondent was notified that the judge had filed a request for investigation, and after respondent was unable to resolve a dispute with his prior partner as to the proper responsible party, respondent then paid the invoice with his personal check. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(d).
— Respondent appeared for a court proceeding. At that time, the court clerk and the opposing counsel in the case reported to the judge that respondent smelled of alcohol. The judge requested an in-chambers meeting with the lawyers, and confronted respondent about whether he had been drinking that morning. During this in-chambers meeting, the judge detected the strong odor of alcohol about respondent’s person. The judge asked respondent to take a portable breath test, and respondent complied. The test showed a blood alcohol concentration of .069 percent. The judge instructed respondent to call someone to pick him up, and not to leave the courtroom until his ride arrived. In response to this instruction, respondent became upset and argumentative. The court held respondent in direct contempt for appearing in court while impaired by alcohol. Due to respondent’s argumentative conduct, the court remanded him to the custody of the Jefferson County Sheriff. The judge advised respondent’s client that the hearing scheduled for that day would be continued to a different date and time due to respondent’s inability to represent him that day. The court held another hearing related to respondent’s contempt. At that time, the court noted that respondent was sober, and released him from custody without any further sanction. The judge reported this conduct to the OARC. Respondent was evaluated to determine whether he has any substance abuse or other psychological issues that interfere with his ability to engage in the active practice of law. The evaluator prepared a report indicating that respondent does not meet the criteria for a diagnosis of any substance abuse or substance dependence. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(d).
— Respondent represented the wife/mother in a dissolution of marriage action. Opposing counsel represented the husband/father. The parties disagreed on which school their children would attend during the upcoming school year. The parties agreed to abide by the recommendation of the court-appointed guardian ad litem ("GAL") on this issue. On July 30, 2003, the GAL issued the recommendation that the children attend the school the father preferred, pending a parenting evaluation and recommendations made by the evaluator. On July 31, 2003, only respondent and opposing counsel attended a status conference with the court. After reviewing the GAL’s report, the court approved her recommendations. The judge instructed respondent to prepare and file the written order from the July 31, 2003 status conference. Thereafter, respondent left several messages for the GAL and wrote to her on August 11, 2003, regarding his client’s desire to change the GAL’s recommendation on the school issue. After communicating with respondent, but having no communication with the father’s counsel, the GAL changed her recommendation regarding the school issue. On August 12, 2003, the GAL gave her second report and recommendations, this time recommending the children attend the school the mother preferred. Respondent’s client enrolled the children at the school she preferred. On August 14, 2003, respondent had his paralegal prepare the written order for the July 31, 2003 status conference and sent it to opposing counsel for approval. Opposing counsel objected to the proposed order and faxed corrections to respondent’s proposed order, requesting inclusion of the court’s order that the children attend the school the father preferred. Respondent changed the proposed order to state only that the children shall attend the school pursuant to the GAL’s recommendation. Opposing counsel refused to sign the proposed order unless it specified the court’s approval of the GAL’s recommendation at the time of the July 31, 2003 status conference, which was the school the father preferred. By the time the court revisited the issue on September 12, 2003, the children had already been attending the school the mother preferred for an entire month. Consequently, the father did not wish to disrupt the children further and the court then approved the GAL’s revised recommendation for the children to attend the other school. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 8.4(d), and Colo. RPC 8.4(h).
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