|The Colorado Lawyer|
Vol. 34, No. 1 [Page 145]
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From the Courts
Matters Resulting In Diversion And Private Admonition
Editor’s Note: Articles describing Diversion Agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These summaries are contributed by the Colorado Supreme Court Office of Regulation Counsel.
Diversion and Private
Background Information Regarding Diversion
Diversion is an alternative to discipline. See C.R.C.P. 251.13. Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel ("Regulation Counsel"), the Attorney Regulation Committee ("ARC"), the Presiding Disciplinary Judge ("PDJ"), the hearing board, or the Supreme Court may offer diversion as an alternative to discipline. For example, Regulation Counsel can offer a Diversion Agreement when the complaint is at the central intake level in the Office of Attorney Regulation Counsel. Thereafter, ARC or some other entity must approve the agreement.
From August 18, 2004, through November 18, 2004, at the intake stage, Regulation Counsel entered into 10 Diversion Agreements involving 12 requests for investigation. ARC approved 16 Diversion Agreements involving 29 requests for investigation. The PDJ approved 2 Diversion Agreements during this time frame. ARC issued 2 private admonitions involving 4 requests for investigation during this time frame. The PDJ approved one private admonition involving 2 requests for investigation during this time frame.
Regulation Counsel reviews the following factors to determine if diversion is appropriate: (1) there is little likelihood that the attorney will harm the public during the period of participation; (2) Regulation Counsel can adequately supervise the conditions of diversion; and (3) the attorney is likely to benefit by participation in the program.
Regulation Counsel will consider diversion only if the presumptive range of discipline in the particular matter is likely to result in a public censure or less. However, if the attorney has been publicly disciplined in the last three years, the matter generally will not be diverted under the rule. See C.R.C.P. 251.13(b). Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion. See C.R.C.P. 251.13(b).
The purpose of a Diversion Agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. Furthermore, the Diversion Agreement also may address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reason for such conduct was 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, which are conducted by attorneys from the Office of Attorney Regulation Counsel. 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, 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; fee issues, implicating Colo. RPC 1.5; conflicts of interest, implicating Colo. RPC 1.7(b); dealing with unrepresented persons implicating Colo. RPC 4.3; conduct that is prejudicial to the administration of justice, implicating Colo. RPC 8.4(d); trust account issues, implicating Colo. RPC 1.15; and knowingly disobeying an obligation under the rules of a tribunal, implicating Colo. RPC 3.4(c)..
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
— Complainant hired respondent on or about October 1, 1999, for representation arising out of injuries sustained in an automobile collision. A contingency fee was executed on October 4, 1999. Respondent subsequently filed a lawsuit prior to the expiration of the statute of limitations in October 2002. Respondent never effected service of a summons and complaint upon defendant in the case and, as of the date the attorney-client relationship ended, defendant’s whereabouts were unknown. Respondent failed to effect service upon defendant in the two years after filing suit. Respondent obtained a trial date for December 2004, but never engaged in any discovery and failed to keep complainant informed of the status of the case, and failed to return numerous telephone calls or provide specific written documentation as requested by complainant on numerous occasions. Complainant terminated the attorney client-relationship in July 2004 and retained new counsel to try and salvage the case. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.3, and Colo. RPC 1.4.
— Respondent filed a motion in a DUI that had no chance of success. He failed to calendar the hearing on the motion and was not prepared to handle it competently. He had no witnesses scheduled to appear to support the motion, and probably would not have done so even if he had the matter on his calendar. He charged his client for this motion, even though it was valueless. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.5(a).
Diligence and/or Failure to Communicate
— Respondent was retained and paid $300 by a client who was seeking to break his lease and sue the landlord for mold exposure. Respondent had no written fee agreement or written fee disclosure. At respondent’s suggestion, the client moved out of his apartment. Respondent tried but was unable to resolve his client’s lease claims. Shortly thereafter, the client lost his job and moved in with family in Las Vegas, Nevada. When the landlord demanded damages for unpaid rent and breaking the lease, the client called and left messages at respondent’s office and home numbers. In mid-July 2003, the client was served with an unlawful detainer complaint. Respondent told the client he would continue efforts to resolve the matter, but respondent’s negotiations with the landlord were unsuccessful. On July 22, 2003, the landlord obtained a default judgment for possession of the property. The client continued to call and leave messages, but respondent did not communicate with the client. On September 14, 2003, the client wrote respondent, advising that he had left approximately twenty messages with no response and needed assistance because the landlord was demanding back rent. Respondent received the client’s letter but did not contact him. After the Office of Attorney Regulation Counsel contacted respondent, he still did not communicate with the client. Respondent admits he failed to communicate with the client from mid-July 2003 on. Respondent presently is being treated for depression. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and continue treatment with his doctor or other approved medical provider. The rules implicated are Colo. RPC 1.4 and Colo. RPC 1.5(b).
— Respondent undertook the representation of two individuals in multiple cases involving criminal charges related to neglect, illegal transportation, and illegal display of certain animals. One of the clients paid the fees for both individuals. The engagement letter prepared by respondent was extremely confusing and did not accurately reflect the actual agreement concerning the amount of the fees to be paid. It was sent to only one of the clients. Respondent was ultimately fired by both individuals who requested an accounting of all fees paid. Respondent admits that he purposely failed to provide an accounting until contacted by this office because he was angry with one of the clients for reasons unrelated to the representation. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.4 and Colo. RPC 1.15(b).
— Complainants, whose son is incarcerated in Colorado, consulted with respondent on or about December 5, 2003, to see if he could assist them in having their son moved to a prison closer to their out-of-state home. Respondent was paid $500 on December 5, 2003. Shortly thereafter, complainants informed respondent that his services were no longer needed, and requested a refund of the $500. Complainants wrote a letter to respondent, dated April 3, 2004, requesting an accounting and/or refund. Respondent admits he did not respond to this letter, but claims that is because the letter is not in his file. Although respondent believes he earned the $500, he has now refunded the entire amount to complainants. In September 2003, in another matter, the client’s family requested respondent represent a client in several felony and misdemeanor cases. Respondent agreed to represent the client but had no written fee agreement with him or his family. Respondent and the client’s family verbally agreed on the terms of respondent’s representation, but the terms are now in dispute. Respondent did not communicate the basis of his fee in writing before or shortly after the representation commenced. In late October 2003, the client’s family paid respondent $10,000 for representation on all of the pending cases. Respondent did not deposit the funds in a separate client trust account, because respondent did not have a client trust account. On December 5, 2003, the client wrote to respondent about hiring new counsel and asked respondent to withdraw. The client asked respondent to deduct a reasonable sum from the funds paid by his family to cover respondent’s work to date and to refund the remainder to the client’s mother. The client provided his mother’s address in the letter. Respondent admits a refund of some monies is due to the client but has not yet tendered any refund to the client, his mother, or his family. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, Trust Account School, and resolve the fee dispute within thirty days or submit the matter to fee arbitration and (within ten days) supply an accounting and refund check to the client. The rules implicated are Colo. RPC 1.4(a), Colo. RPC 1.5(b), Colo. RPC 1.15(a), Colo. RPC 1.15(b), Colo. RPC 1.15(c), Colo. RPC 1.15(f), Colo. RPC 1.15(g), Colo. RPC 1.15(h), and Colo. RPC 1.16(d).
— Respondent entered his appearance on behalf of a limited liability company and its principal officers in regulatory proceedings without communicating adequately with all of the clients concerning the representation. One whom respondent purported to represent later contended respondent never provided notice of the regulatory proceedings or respondent’s purported representation to that client. Respondent also withdrew from representation in regulatory proceedings without providing proper notice to all of his clients, and failed to appear for a hearing as directed by the limited liability company. The Administrative Law Judge had not granted leave to withdraw. Finally, in seeking authority to practice law in another jurisdiction, respondent failed to provide accurate information concerning his disciplinary history in Colorado. In this regard, respondent’s conduct was found to have been negligent rather than intentional. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.4(a), Colo. RPC 1.4(b), Colo. RPC 8.4(d), and Colo. RPC 8.4(h).
— Respondent represented a client in a domestic relations matter. During a telephonic status conference in which respondent participated, the court set a hearing date concerning a motion. On the date of the hearing, respondent was suffering from complications of a serious medical condition that had required hospitalization a few days earlier. Respondent was unable to attend the hearing. Respondent left a message with opposing counsel’s office and attempted to notify the court that he would not be able to attend the hearing. Respondent left the message with the wrong division of the court. Respondent was unable to speak with anyone else in the firm at which he was employed on the date of the hearing. Respondent previously had failed to note the hearing date on the firm’s master calendar and other members of the firm were not aware of the hearing. The court held the hearing as scheduled and issued a sanctions order against respondent’s firm. In seeking to have the sanctions order set aside, respondent argued that he had not been given notice of the hearing. This allegation was untrue. Because of his medical condition and the effects of pain medication he was taking at the time, however, respondent was not thinking as clearly as usual at the time he sought reconsideration of the sanctions order. 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).
— The complaining witness engaged respondent to assist with a custody matter. Respondent did not timely provide the complaining witness with a written retainer agreement. Respondent also failed to send the complaining witness billing statements as fees were incurred. In addition, respondent engaged in a practice of leaving earned fees in his trust account, thereby commingling his funds with client funds. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and submit to a financial audit. The rules implicated are Colo. RPC 1.4, Colo. RPC 1.5(b), and Colo. RPC 1.15.
— Respondent, who was appointed to represent an inmate in post-conviction proceedings, failed to inform the client that the delay in the case was because he was having difficulty obtaining transcripts. Thereafter, respondent failed to advise the client that the case had no merit and explain the reasons for his conclusion. Respondent merely provided the complainant with a copy of his response to the request for investigation and withdrew. Throughout the one year representation, respondent failed to respond to calls and letters from his client. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 1.4(b).
Conflict of Interest
— Respondent entered into a written fee agreement agreeing to represent a client in a dissolution of marriage matter for a total fee of $750. The client paid the full amount. Several months later, respondent determined that the representation would be more complicated and would take more of respondent’s time than originally anticipated. Respondent demanded that the client to pay an additional $750 to complete the representation, despite the fact respondent already had been paid the full amount for which he contracted to provide such representation. The client paid the additional $750. Respondent did not explain to the client that respondent was already obligated to represent the client for the amount already paid and the client was not contractually obligated to pay an additional fee. Respondent did not explain to the client the conflict of interest involved in respondent’s request for additional fees beyond those specified in the original contract of employment. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and refund the client in the amount of $750. The rule implicated is Colo. RPC 1.7(b).
— Respondent represented a client in several criminal matters but failed to communicate the basis or rate of his fee to the client in writing prior to or within a reasonable time after commencing the representation in any of those matters. Respondent’s failure in this regard created confusion concerning the fee arrangements for the various matters. When the client balked at paying significant additional fees to respondent shortly before the date one of the matters was scheduled for trial, respondent threatened to withdraw from representation. Respondent also made unprofessional and disparaging remarks toward the client, and suggested that he would provide a less than energetic defense if the court did not allow him to withdraw from representation and the client did not pay the additional fee. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and submit to binding arbitration with the client. The rules implicated are: Colo. RPC 1.5(a), Colo. RPC 1.5(b) and Colo. RPC 8.4(h).
— Respondent represented a client in a workers’ compensation matter and received funds belonging to the client for permanent partial disability benefits. After depositing the funds into the firm’s trust account, respondent became involved in efforts to negotiate a full and final settlement on the client’s behalf for more money. For more than a year thereafter, the client’s matter remained unresolved and respondent neglected to disburse to the client any of the funds respondent held for the benefit of the client. During this period of time, respondent’s office staff inadvertently made a double disbursement from respondent’s trust account for fees earned in another case. This accounting and disbursement error caused the balance in respondent’s trust account to dip below the balance of client funds respondent should have been holding in the trust account. Respondent was unaware of the discrepancy until the workers’ compensation client learned respondent was holding funds belonging to the client and demanded payment. Respondent promptly paid the client out of personal funds. Later, respondent received notice of an overdraft in the trust account and paid for a complete audit of his accounts to determine the cause of the problem. Although respondent did not knowingly misappropriate client funds, respondent created the problem by failing to maintain all records and perform all accounting functions required by Colo. RPC 1.15(g). As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and Trust Account School, and have financial monitoring for two years. The rules implicated are Colo. RPC 1.15(a), Colo. RPC 1.15(b), Colo. RPC 1.15(g), and Colo. RPC 5.3(b).
— Respondent accepted a referral from an out-of-state, "nationwide" law firm. Respondent had no written agreement with the firm, nor did he enter into a written fee agreement with the client. The firm’s fee agreement with the client charged a prohibited "nonrefundable" fee that was clearly excessive. The portion of the fee paid to respondent by the firm was not unreasonable or excessive. The client fired respondent and demanded her file, an accounting, and the unused balance of the fee. Respondent sent his file, an accounting, and $1,000 from his portion of the fee to the firm. He assumed the firm would provide these items to the client. The firm eventually sent the client her file but has not provided her with the accounting or any refund, including the $1,000 refunded by respondent. During investigation, it was learned that respondent did not have a trust account. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, attend Trust Account School, provide evidence that he established a trust account; and remove his name from the firm’s website. The rules implicated are Colo. RPC 1.15(a) and Colo. RPC 1.15(f).
— Respondent, who was receiving monetary payments from a third party on behalf of his client, failed to render an accounting when requested to do so. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 1.15(b).
Knowingly Disobey an Obligation
Under the Rules of a Tribunal
— Respondent was ordered to pay child support of $1,000 a month. Respondent failed to comply with court ordered child support from June 2003 until December 2003. He made up all the arrearages in January 2004 and is in compliance at the present time. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 3.4(c).
— On August 18, 1997, complainant and respondent entered into a written agreement whereby complainant conveyed his 50 percent interest in real estate to respondent for a value. As part of this transaction, respondent marked the original promissory note "paid in full," signed and dated that notation, and executed a release of the deed of trust. Approximately nineteen months after the agreement, on March 17, 1999, respondent filed a complaint against complainant in Pueblo County, alleging that complainant had defaulted on the October 6, 1995 promissory note that had been marked paid in full. The complainant presented evidence that the note had, in fact, been paid in full. The complainant then moved for an award of attorney fees, pursuant to CRS § 13-17-102, and was awarded attorneys fees and costs against respondent, alleging that he knew or should have known that the note was, in fact, paid in full and that the filing of the complaint was frivolous, groundless, and lacked potential justification. The trial court awarded attorney fees and costs of $11,176.47 in favor of complainant. The award was upheld by the appellate court. In another case, respondent was retained to collect a judgment for a client. Respondent issued a "Subpoena to Produce" to an individual at a California company. This subpoena included language ordering the person addressed in the subpoena "to attend and give testimony by deposition at the law offices of [respondent]" on a given date and time. The subpoena also demanded the production of documents at the time scheduled for the deposition. Respondent did not provide a copy of this subpoena to the party from whom he was trying to collect the judgment, or to that person’s attorney. The Subpoena to Produce did not conform to the requirements for subpoenas set out in Colo.R.Civ.P. 45 and/or Colo.R.Civ.P. 69. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 3.4(c) and Colo. RPC 8.4(d).
— Respondent self-reported that he was in arrears in child support payments, upon paying his annual registration and executing the affidavit of compliance with child support. Respondent admitted he had accrued an arrearage. Respondent entered into an oral agreement with his ex-wife as to a repayment plan. Respondent is now current with the child support arrearage. Respondent had incurred arrearages during the approximate four-month period of unemployment. Respondent is now current on all child support obligations and is in compliance with the child support order. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 3.4(c).
Dealing with Unrepresented Person
— Respondent represented Party A in litigation concerning ownership of a parcel of real estate. While the litigation was pending, Party A sold the real property to Party B. A term of the sale was that Party B would pay Party A’s attorney fees in the litigation. Respondent learned of the transaction after it occurred. Thereafter, respondent met with Party B, but never advised her of the potential conflict between her interests and those of Party A. Respondent never advised Party B to seek independent counsel. Further, respondent never disclosed the fact of the transaction to the court, although ownership and title to the property were matters that were specifically raised by the pleadings and the trial court previously had ordered the joinder of creditors who took an interest in the property during the litigation. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and refund to Party B $30,000 in fees. The rules implicated are Colo. RPC 4.3 and Colo. RPC 3.4(c).
— A health-care provider ("Dr. C"), who believed that another similar type health-care provider ("Dr. O") was violating a contractual non-compete clause, hired respondent and his law firm. Seeking to determine whether Dr. O was, in fact, violating the non-compete clause, respondent called the office where Dr. O was working to find out whether he could get an appointment with Dr. O. Respondent did not identify himself as a lawyer working for Dr. C at any time during the telephone call. The receptionist in the dental office offered respondent an appointment and asked for his name. Respondent gave his name to the receptionist. She then asked whether he had seen Dr. O before, and respondent answered that he had not. Respondent then told the receptionist that he needed to check on something and terminated the call. Respondent did not schedule an appointment or reveal the purpose of his call. Respondent’s call was made on behalf of his client. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 4.3.
Conduct Involving Dishonesty, Fraud,
Deceit or Misrepresentation
— Respondent completed a drug-screening certificate when she entered the U.S. Navy shortly after high school. In the certificate, she admitted use of marijuana. Several years later, while in law school and when applying for an intern position with the U.S. Air Force, she admitted use of marijuana in her past. A year later, she applied for a position as a judge advocate with the U.S. Air Force. In the application process, she denied the use of marijuana and denied ever using or possessing illegal substances. The statement was inconsistent with prior statements she made to the U.S. Air Force. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(c).
Conduct that is Prejudicial to the
Administration of Justice
— A grievance was filed against respondent by a client. Respondent disclosed to the Office of Attorney Regulation Counsel that his drinking was to blame for the problem with the client. Before being contacted by the Office of Attorney Regulation Counsel, respondent had consulted with an addictions specialist, who recommended either inpatient or intensive outpatient therapy. Respondent entered an intensive outpatient program that he successfully completed. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules implicated are Colo. RPC 8.4(d) and Colo. RPC 8.4(h).
— Respondent represented an insurer in a workers’ compensation matter. The Administrative Law Judge entered an order permitting the claimant to receive on-going treatment from a chiropractor. The order specifically found that occasional chiropractic treatment would be reasonable and necessary for the claimant under the circumstances. Nevertheless, respondent advised his client initially not to pay claimant’s chiropractic bills but instead to challenge the bills as being unreasonable and unnecessary. Ultimately, however, respondent’s client paid the bills plus penalties that were assessed against it. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(d).
Conduct that Adversely Reflects on a
Lawyer’s Fitness to Practice Law
— Respondent failed to pay a court reporter for the cost of a deposition. Respondent paid the court reporter after intervention by Office of Attorney Regulation Counsel. Additionally, respondent had three checks returned for insufficient funds in his trust account. The checks were drawn against respondent’s funds that were improperly placed in the trust account. Respondent deposited sufficient funds to have the check honored by the bank and paid all resulting bank fees. Respondent lacked proper client and general ledgers for his trust account. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and Trust Account School. The rules implicated are Colo. RPC 8.4(h) and Colo. RPC 1.15(a).
— Respondent pled guilty to driving while ability impaired ("DWAI") and was sentenced to thirty days’ jail or in-house detention; alcohol evaluation and treatment; eighteen months’ probation; fees; costs; and forty-eight hours of useful public service. Respondent had a prior conviction for DWAI in April 1999 and before he was admitted to the Colorado Bar. This is respondent’s second alcohol-related offense. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; abstain from alcohol; attend treatment with counselor and provide releases; undergo random urinalysis or breathalyzers for alcohol not less than two times per month, at respondent’s expense, for a period of one year; and comply with all terms and conditions of the criminal case. The rule implicated is Colo. RPC 8.4(b).
— Respondent represented a person in a criminal matter who was sentenced to a term in the Colorado Department of Corrections. At the same time and continuing thereafter, respondent represented the family of a woman who had been killed by a drunk driver while she was riding her bicycle. Respondent had commenced a civil action against the drunk driver and a company for which he was employed. The drunk driver and the company were each represented by counsel.
The drunk driver received a prison sentence. He was transported to prison with respondent’s criminal defendant. During the ride to prison, he began discussing the civil suit and his role in the death of the woman. Respondent’s client advised respondent of the information the drunk driver provided during the ride to prison. Respondent wrote to his criminal client, detailing additional information he would like to learn from the drunk driver. In response, the criminal client gathered information concerning matters relevant to the civil action and provided the information to respondent in a letter.
Respondent did not promptly disclose the letters to or from his criminal client or the identity of his criminal client to opposing counsel in the civil action. Instead, respondent met with the criminal client in prison and, at that time, had the criminal client sign a witness statement that respondent wrote and that summarizes, to some degree, information the criminal client provided to respondent. Respondent then disclosed the statement in the civil litigation. During the interviewing period between the date respondent received the letters from his criminal client and the date the statement was disclosed, respondent’s law partner took the depositions of witnesses in the civil action and used information from the letters to question the witnesses. In September 2003, opposing counsel in the civil action discovered the letters themselves and demanded their disclosure. They were disclosed at that time.
Respondent suffered from personal or emotional problems, including significant medical problems. Further, respondent had no prior disciplinary history and had a good reputation in the legal community. As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. The rules violated are Colo. RPC 3.4(c) and Colo. RPC 4.2.
— In January 2002, respondent wrote a check drawn on his regular operating account that was returned for insufficient funds ("NSF"). The check was for return of a filing fee paid by a client that respondent had misplaced and not deposited into his COLTAF account. In July 2001, he had a check on his COLTAF account returned, stamped "NSF," because he did not deposit his client’s check into his COLTAF account before he wrote a check against the item to be deposited. In September 2001, he wrote three checks on his COLTAF account that were returned stamped "NSF," because he did not deposit client funds into his COLTAF account before writing checks against the items to be deposited, and did not take into account bank service charges for returned checks.
In the second matter, in May 2003, respondent wrote two checks on his COLTAF account that were returned stamped "NSF," because he did not deposit funds into his COLTAF account before writing checks against the client deposits. Respondent also did not keep proper client ledger sheets or a general ledger for his COLTAF account, or balance his COLTAF account at least on a quarterly basis.
In the third matter, in July 2003, in closing his private practice, respondent did not diligently pursue his client’s claim in a post-divorce action, nor did he inform his client that he was leaving private practice. With the same client, he negligently converted client funds from his COLTAF account by paying himself fees for work not yet completed.
In each instance, respondent covered the checks that were returned "NSF" and refunded client money that he had not yet earned. The rules violated are Colo. RPC 1.15(a), Colo. RPC 1.15(g), Colo. RPC 1.15(f)(1), Colo. RPC 1.3, and Colo. RPC 1.4.
— The sole shareholder of the law firm was placed on disability-inactive status. Respondent became the de facto manager for the firm in his absence. Respondent allowed the disabled attorney’s name to appear on the law firm’s letterhead without designation of disability-inactive status and with no indication that he was not authorized to practice law. Respondent used such letterhead for professional correspondence. Additionally, the disabled attorney’s business cards were displayed at the reception area of the law office; his name also continued to appear on office signs without designation of disability-inactive status; and with no indication he was not authorized to practice law, the disabled attorney’s name and biography appeared in the law firm’s listing in Martindale.com, without designation of his disability-inactive status, and with no indication he was not authorized to practice law. Respondent participated in the use of such false or misleading communication to the public. Finally, the disabled attorney’s name appeared in the 2003 Denver Metropolitan Qwest Dex telephone directory and yellow pages, without designation of disability-inactive status and with no indication he was not authorized to practice law. Again, respondent participated in the use of such false or misleading communication to the public. The rules violated are Colo. RPC Rule 7.1(a) and Colo. RPC 7.5(a).
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