|The Colorado Lawyer|
Vol. 34, No. 7 [Page 137]
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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. Thereafter, ARC or some other entity must approve the agreement.
From February 17, 2005 through May 23, 2005, at the intake stage, Regulation Counsel entered into 14 Diversion Agreements involving 14 separate requests for investigation. ARC approved 10 Diversion Agreements. The PDJ approved one Diversion Agreement during this time. No private admonitions were issued 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 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: 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; conflicts of interest, implicating Colo. RPC 1.7(b); communication with represented persons, implicating Colo. RPC 4.2; threatening criminal or administrative prosecution to gain an advantage in a civil case, implicating Colo. RPC 4.5; conduct that is prejudicial to the administration of justice, implicating Colo. RPC 8.4(d); trust account issues, implicating Colo. RPC 1.15; knowingly disobeying an obligation under the rules of a tribunal, implicating Colo. RPC 3.4(c); and criminal conduct, implicating Colo. RPC 8.4(b).
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
Diligence and/or Failure to Communicate
— The respondent was retained to represent the complainant and her husband in a construction defects case against the complainant’s homebuilder. The basis or rate was not in writing. The suit was filed on October 20, 2000. After a settlement conference, the case was set and then reset for trial two times. After the second trial date was vacated in April 2002, the respondent did nothing to reset the case for trial or talk with his clients until approximately nine months later when the court issued a show case order as to why the case should not be dismissed for want of prosecution. During the period of neglect, the respondent was suffering from depression and was unable to respond to the needs of the case. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and continue treatment for the depression. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, and Colo. RPC 1.5(b).
— The respondent represented a client in a contract dispute. At the time the representation commenced, the respondent was working on a full-time basis as in-house counsel for a financial group and had a limited part-time private practice on the side. The respondent failed to communicate the basis or rate of his fee to the client in writing, despite not having represented the client in the past. During the representation, the respondent claims not to have received, and did not respond to, letters sent to his office address by an attorney representing the opposing party. In the correspondence, opposing counsel expressed his client’s willingness to agree to most of the essential terms he understood the respondent’s clients had demanded to settle the matter. Opposing counsel also expressed the understanding that his client need not file an answer while the parties were discussing possible settlement of the case. Because the respondent claims not to have received the correspondence from opposing counsel, he sought and obtained a default judgment on behalf of his client. Subsequently, the default judgment was set aside. Despite having experienced problems receiving mail at his part-time office, the respondent only checked his mailbox at that location approximately one time per month during the period of time he was representing this particular client. During the later stages of the representation, the respondent vacated his part-time office entirely, but failed to notify the court in which the client’s civil action was pending of his change of address. When the client terminated the respondent’s representation and retained new counsel, the respondent failed to cooperate with the client’s new counsel, particularly in regard to new counsel’s requests for the client file. New counsel ultimately had to subpoena the client file in connection with the hearing on the opposing party’s motion to set aside the default judgment. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and refund to the client the fees paid. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), Colo. RPC 1.5(b), and Colo. RPC 1.16(d).
— The Colorado Civil Rights Division ("CCRD") and the U.S. Equal Employment Opportunity Commission ("EEOC") allow non-lawyers to represent individuals with respect to discrimination claims before them. The respondent previously assisted a particular non-lawyer and some of his clients in employment-related matters before CCRD and EEOC when the advice of an attorney was necessary. The respondent agreed to assist the non-lawyer in a particular employment-related matter and consented to have her name given to the client to contact her directly. The respondent then signed an entry of appearance form and gave it to the non-lawyer for filing with CCRD. The entry of appearance was never filed, but the overall circumstances gave the client the impression that the respondent was representing the client. The respondent never clarified her stat-us with the client until she moved out of the state and elected to have no further involvement with the client’s matter. In the interim, the respondent also received an advance payment from the non-lawyer for her anticipated assistance with the client's matter. The respondent failed to deposit any portion of the advance retainer into a trust account. When the respondent notified the non-lawyer that she had elected not to provide any services in connection with the case, she returned the full amount of the advance retainer. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.4(b) and Colo. RPC 1.15(a).
— The complainant retained the respondent March 10, 2004, for the purpose of helping the complainant resolve problems on the complainant’s credit report. Between March 10, 2004 and August 2004, the respondent sent letters to different credit companies in an attempt to resolve the complainant’s credit report issues. In August of 2004, the respondent closed her practice and went to work for a law firm. The respondent notified the complainant that she was joining the new firm, and advised that she would still handle the case at the new firm. On August 16, 2004, the respondent sent and e-mail to the complainant, providing a status report on each of the underlying credit issues in the case. In September and October 2004, the complainant sent several letters to the respondent requesting information and a status update on her case. The complainant stated in some of her letters to the respondent that she had not heard from the respondent and that there were seven items still being reported incorrectly on her credit reports. On November 11, 2004, a settlement offer was sent to the respondent from Trans-Union, one of the agencies involved in the underlying case. On December 16, 2004, the complainant again sent a letter to the respondent, requesting information and a status report on her case. On January 23, 2005, the respondent wrote to the complainant and apologized for not contacting the complainant sooner. The respondent gave the complainant a summary of all the credit issues and where the complainant stood with each of them. Additionally, the respondent communicated in this letter the settlement offer from Trans-Union. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— In October 2001, a client ("Client") retained the respondent for representation in a probate case. Client claimed the executor of her father’s estate improperly spent estate assets. Before a February 11, 2002 hearing, the parties reached an agreement that was read into the record and approved by the court. The judge instructed the respondent to prepare the written stipulation and file it with the court within ten days. The respondent did not file the stipulation within ten days, because he and opposing counsel could not agree on exact language for the agreement. The respondent decided to use a transcript from the hearing as the stipulation and order. On May 21, 2002, the respondent ordered the hearing transcript. The court reporter informed the respondent that she needed the request in writing and payment. When the respondent failed to do so, Client sent the reporter a written request and payment on June 17, 2002. A week later, Client received the transcript and forwarded it to the respondent. The respondent received the transcript but did not file it with the court until May 1, 2003. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rule implicated is Colo. RPC 1.3.
Conflict of Interest
— The respondent is a part-time municipal court judge who also maintains a private law practice. On September 14, 2004, a client retained the respondent for representation in a felony criminal case. The respondent negotiated with the District Attorney ("DA") and reached a plea agreement for the client. The respondent planned to finalize the agreement at the disposition hearing set for mid-March 2005. On approximately January 31, 2005, the respondent learned the client had been issued a new charge of violating a municipal ordinance. The respondent telephoned the client and told her that due to their attorney-client relationship, he would recuse himself from hearing her municipal case if the case came before him. The respondent told the client she still needed to appear for the municipal case, but that he would recuse himself and have the matter assigned to another judge. On February 2, 2005, the client failed to appear for the municipal case. Rather than simply recuse himself and assign the matter to another judge, the respondent issued a bench warrant for the client’s arrest. In early March 2005, the respondent filed a motion to withdraw as the client’s attorney in the felony case. Shortly before the disposition hearing, the respondent spoke with the client in the courthouse elevator and asked the client what she intended to do about the outstanding warrant. The client said she planned to take care of it later that afternoon. When the respondent entered the courtroom, he informed the court clerk about client’s outstanding arrest warrant and suggested a deputy be present during the hearing. At the disposition hearing, the DA was prepared to resolve the felony case against the client. The respondent, however, informed the court he could not continue, because he had a conflict with client, and asked for permission to withdraw. The court granted the respondent’s motion. The respondent then informed the court about client’s outstanding warrant. The court ordered the client to be taken into custody, whereupon the client was arrested. The client’s next scheduled court date in the municipal case was mid-April 2005. The respondent arranged for another judge to handle the municipal case. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and earn 8 CLE credits regarding responsibilities of municipal judges. The rule implicated is Colo. RPC 1.7(b).
— This matter came to the attention of the Attorney Regulation Counsel by means of a trust account notification from the respondent’s bank. The respondent’s trust account was over-drawn by a small amount of money, due to charges for checks that he claims he did not order. A review of the respondent’s trust account records showed that he made many checks payable to cash from the account and that he did not have adequate records (either a general ledger or client ledgers) for his trust account. Additionally, the respondent entered into a business transaction with a client. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and Trust Account School. The rules implicated are Colo. RPC 1.15(g) and Colo. RPC 1.8(a).
Meritorious Claims and Contentions
— The respondent was engaged in a dispute with his former employer, a law firm, over attorney fees. The law firm hired counsel to represent it in the attorney fees litigation. During an exchange of e-mail between the law firms’ counsel and respondent, the respondent sent copies of e-mails from the respondent to the law firm’s counsel directly to the law firm’s principal. The respondent also propounded to the law firm a subpoena duces tecum, seeking documents outside the scope of discovery. The respondent also published accusations against the law firm’s principal in an electronic forum available to third-parties. The respondent implied that he would request an investigation by the Office of Attorney Regulation Counsel unless the attorney fees litigation settled. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School; submit to an anger management evaluation, complying with all terms, conditions, and recommendations of such evaluation; and make reports concerning his participation in any treatment or support program recommended by the evaluator. The rules implicated are Colo. RPC 3.1, Colo. RPC 3.4(d), Colo. RPC 4.2, Colo. RPC 4.4, and Colo. RPC 4.5.
Knowingly Disobey an Obligation Under the
Rules of a Tribunal
— During his representation of a defendant in a criminal matter, the respondent failed to comply with the clear and reasonable rulings and orders of the Presiding Judge concerning the evidence that would be admitted. The respondent repeatedly asked questions of witnesses and offered documents into evidence that the judge had ruled inadmissible. During the second day of trial, the respondent was held in contempt of court and jailed for the evening. During investigation, it was learned that the respondent’s conduct was caused, at least in part, by his failure to take medication for a diagnosed illness. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with all requirements of the treating physician. The rules implicated are Colo. RPC 3.4(c) and Colo. RPC 8.4(d).
— The respondent was ordered by the court to personally pay $665 to the opposing party for failure to comply with discovery. The respondent was unaware of the order until sometime mid-2003, when opposing counsel telephoned her. The respondent believed that her client was going to pay the sanction, because he had not provided the necessary discovery to her. The respondent did not comply with the order until February 2005, when she learned client had not paid. In February 2005, the respondent paid the $665 and obtained a satisfactory judgment, when she learned the judgment was outstanding. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rule implicated is Colo. RPC 3.4(c).
Communicating Ex Parte
— The respondent represented the wife in a contentious divorce action. The respondent appeared in the courtroom of the presiding judge in the case for a setting requested by opposing counsel. The judge previously overruled the respondent’s objection to the setting. At the time he arrived at the courthouse, the respondent already was frustrated by a series of adverse rulings by the judge, which the respondent believed were legally incorrect and demonstrated the judge’s bias. As the respondent waited for opposing counsel to call in for purposes of the setting, the respondent sat in the judge’s clerk’s office. The judge was in his chambers adjacent to the clerk’s office and had his door open. After waiting between ten and fifteen minutes for opposing counsel to call for the setting, the respondent said "that son of a bitch had a setting and he hasn’t called in; I’m not gonna stay around." The clerk tried to explain to the respondent that she had only two phone lines and there were ten or twelve settings that morning that might have prevented opposing counsel from getting through. At that point, the respondent demanded to see the judge and started walking toward the judge’s open door. The judge walked over to the respondent and advised that he could not speak to the respondent without opposing counsel present. The respondent began shouting that the judge was biased, that he was treating the respondent’s client differently than the other side, and that "this is bullshit." Because the respondent was so upset, the judge asked the respondent to come into his chambers and closed the door. The respondent continued to shout, telling the judge that he was biased and was not fair to his client. The respondent addressed specific rulings previously made by the judge in the case and how those rulings affected his client. The judge told the respondent that he was not biased and asked the respondent to calm down. At that point, the judge opened the door and the respondent walked out, vowing to have the judge recused from the case. According to the judge, he never felt physically threatened by the respondent but definitely viewed the respondent’s behavior as inappropriate. Later that morning, after the judge returned to his office after having been out of his office, he found a softbound version of 2004 Colorado Court Rules on his desk, along with a card from the respondent. The card said, "Dear Judge -------, since you have lost your copy, you may have mine." The following morning, the respondent returned to the judge’s office and apologized to the judge and his clerk for his behavior the previous day. At the time of the incident, the respondent was under the care of a doctor, who was treating the respondent medically for ongoing symptoms of anxiety and depression, and by a psychologist, who was providing ongoing psychotherapy services to the respondent both individually and within the context of his family. Through the doctors, the respondent was addressing chronic depression and anxiety that were exacerbated by two traumatic events. The respondent was evaluated and, based on this evaluation, no anger management counseling was recommended. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and remain under the care of the two mental health doctors and comply with mental health treatment recommendations. The rules implicated are Colo. RPC 3.5(b) and Colo. RPC 8.4(h).
Threatening Criminal or Administrative Prosecution
— The respondent represented clients in a civil matter. On October 18, 2004, the respondent sent correspondence to opposing counsel that stated, in part: "Furthermore, Colorado statutes impose criminal liability for acts of fraud, conversion, theft, and embezzlement. Unless we are able to resolve these issues expeditiously, in addition to pursuing civil remedies, we will also be scheduling a meeting with the ------- District Attorney’s Office to discuss filing of formal charges. . . ." As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rule implicated is Colo. RPC 4.5.
— The respondent represented clients in a civil matter concerning a dispute over the sale of a business and a purchase contract. Over the course of the above-mentioned civil matter, the respondent and the opposing counsel exchanged a number of e-mail communications. On September 1, 2004, the respondent sent an e-mail to the opposing counsel that stated, in part: "I will be reporting ----------’s conduct quite promptly to the Colorado State Board of Accountancy for breaching my client’s confidentiality if he does not voluntarily withdraw from this matter (please refer to Rule 7.7 of the Rules of Colorado State Board of Accountancy for violating my client’s confidential tax return information). I will let ---------- explain his conduct to his own state regulatory board." On September 1, 2004, a second e-mail was sent by the respondent to opposing counsel that stated: "---------- told me any CPA would probably be ethically barred from even testifying in any fashion, much less testifying as a partisan expert witness. He also specifically informed me that if what I said was true, any such CPA would likely face serious sanctions including suspension or revocation of licensure with the state of Colorado. In sum, --------- told me that while there may be no legal rule preventing ----------’s testimony, there would be a serious risk to his licensure" (i.e., revocation or suspension within the state of Colorado). "I implore you to forward this e-mail to ---------- as soon as possible. I will need a letter within a week signed by ---------- confirming his non-expert witness status in this case and a written confirmation of his full, non-biased participation as a witness equally accessible to both sides." On September 10, 2004, the respondent sent an e-mail to opposing counsel that stated: "Please confirm that ---- is not going to be your CPA expert and he has withdrawn as required under his code of professional ethics. I will instruct my clients to file a formal complaint with the State Board of Accountancy if confirmation is not received by close of business Monday, September 13." As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rule implicated is Colo. RPC 4.5.
— The respondent was involved in a one-car accident. At the time of the accident, a Colorado State Patrol Officer smelled the odor of an alcoholic beverage, asked the respondent to perform field sobriety tests, and conducted a breathalyzer test to determine the respondent’s blood alcohol level. The test measured respondent’s blood alcohol concentration to be .155. As a result of this conduct, the respondent was convicted of Driving While Ability Impaired in Jefferson County Combined Court. This is the respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with court sentence. The rule implicated is Colo. RPC 8.4(b).
— The respondent was stopped by a State Patrol officer in another state for weaving and driving his vehicle on the shoulder of the road. The officer noted an odor of alcohol and that the respondent had difficulty producing his driver’s license. When the respondent stepped out of the vehicle, the officer noted the respondent was unsteady. The respondent agreed to perform roadside sobriety tests but was unable to do so satisfactorily. When the officer asked the respondent to take a portable breath test ("PBT"), the respondent agreed. The PBT measured .155. The officer then arrested the respondent for suspicion of driving while under the influence of alcohol. The respondent later provided two additional breath samples, which measured .182 and .194. The respondent entered a deferred prosecution agreement in the other state on the DUI charge. This is the respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with deferred prosecution agreement. The rule implicated is Colo. RPC 8.4(b).
— The respondent was charged with harassment by following a person in a public place (a class three misdemeanor) and harassment by stalking (a class five felony). The charges arose from allegations that the respondent repeatedly followed and harassed her former boyfriend and his wife from January 2002 through September 2004. On January 21, 2005, the respondent pled guilty to the misdemeanor harassment charge and the charges were dismissed as part of the plea agreement. The respondent timely self-reported her criminal conviction. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with court sentence. The rule implicated is Colo. RPC 8.4(b).
— The respondent was arrested and charged with DUI, weaving, and failure to yield to a marked police car. The respondent’s blood alcohol concentration was .186. The respondent entered a guilty plea to reduced charges, and was sentenced to one year of supervised probation, twenty-four hours of community service, and assessed $622 in costs. This is the respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with court sentence. The rule implicated is Colo. RPC 8.4(b).
— On November 30, 2004, the respondent was convicted of driving while ability impaired. At that time, the court sentenced the respondent to one year of supervised probation, including a period of monitored sobriety. On December 7, 2004, the respondent reported this conviction to the Office of Attorney Regulation Counsel ("OARC"), and advised that he voluntarily completed an in-patient alcohol treatment program. At the request of the OARC, the respondent was evaluated to determine whether he suffers from any substance abuse disorders. On March 8, 2005, the evaluator diagnosed the respondent as suffering from alcohol dependence (severe), in early remission. This is the respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School; comply with court sentence; comply with evaluator recommendations; provide monthly progress reports; attend treatment/support program; obtain mental health treatment; abstain from alcohol; and undergo breathalyzers once a week for the first year and once a month for the second year, with reports. The rule implicated is Colo. RPC 8.4(b).
— On April 10, 2003, the respondent tried to prevent her male companion from getting into his car to leave the home. When she was unsuccessful, she hit his car window with a rock, causing damage. Her male companion drove to the sheriff’s office and reported the incident. The respondent was arrested and charged with criminal mischief, domestic violence, resisting arrest, and harassment. The respondent was again arrested on April 12, 2003, and charged with a restraining order violation and violation of her bail bond conditions from the previous arrest. The respondent pled guilty to resisting arrest. All other charges were ultimately dismissed. The respondent received a two-year deferred sentence, had to pay costs, and was required to write a letter of apology to the police officer. Upon her completion of diversion, the domestic violence and harassment charges were dismissed. The respondent underwent an Independent Medical Examination to determine whether she needed anger management counseling. The evaluator concluded that she does not and made no recommendation for further treatment or therapy other than on a voluntary basis. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with sentence imposed. The rule implicated is Colo. RPC 8.4(b).
— The respondent pled guilty to criminal mischief, a second-degree misdemeanor, as a result of damage he did to his and his wife’s marital residence, after he learned of his wife’s infidelity. He was sentenced to a term of probation for six months, was fined, and was required to complete an anger management class. The respondent completed the class and received early termination of his probation. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 8.4(b).
Conduct Involving Dishonesty, Fraud, Deceit, or
— In 2004, the respondent’s personal friend was attempting to reconcile with his daughter, who was living in another state. The daughter encountered difficulty in getting time off from work to visit her father in Colorado and asked the respondent for help. The respondent prepared and served a subpoena on his friend’s daughter that purported to order her attendance and testimony as a witness on April 22, and 23, 2004, in a district court civil action. The civil action, however, was a closed case, and no hearing was set. Respondent issued the subpoena to help his friend’s daughter get time off from work to visit her father. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rule implicated is Colo. RPC 8.4(c).
Conduct that is Prejudicial to the
Administration of Justice
— The respondent appeared in a municipal court to represent his client at a restitution hearing. The prosecuting attorney reported to the judge that the respondent "reeked of alcohol." The judge held a brief conference in chambers and requested the respondent to undergo a breath test. The respondent complied. The result of the breath test was blood alcohol content of .050. The judge then continued the case, as he believed the respondent may have been impaired. As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, may not consume any alcohol for at least a twelve-hour period prior to any court appearance, and shall not be convicted of any alcohol-related offense during the diversion period. The rule implicated is Colo. RPC 8.4(d).
— The respondent appeared on behalf of his client at a disposition hearing in a criminal case. When the case was called, three assistant district attorneys approached the Bench and informed the judge of their belief that they could smell alcohol on the respondent’s breath. When asked about drinking, the respondent claimed his last consumption of alcohol had been at 3:00 the prior afternoon. When asked by the judge to submit to a breathalyzer, the respondent left the courtroom and abandoned his client. The client’s case had to be continued. The court issued a contempt citation to the respondent for leaving his client without counsel, but ultimately dismissed it. This is the respondent’s second alcohol-related incident at a court appearance. As part of the conditions of the Diversion Agreement, the respondent shall comply with all terms, conditions, and recommendations made by the evaluator, shall verify participation in any treatment or support program recommended by the evaluator, shall provide monthly reports; shall entoll in an abstinence oriented intensive outpatient program approved by the OARC, shall attend Alcoholics Anonymous or other equivalent recovery program, undergo a psychiatric check-up with a psychiatrist approved by OARC, may undergo a minimum of twelve counseling sessions, abstain from the use of alcohol or any other mood altering substance unless such substance is prescribed by a duly licensed Colorado physician, shall take monitored Antabuse, and provide OARC with monthly reports or undergo random breathalyzers for alcohol not less than two times per day at the respondent’s expense for a period of one year, unless OARC determines a longer period of time is necessary. The rule implicated is Colo. RPC 8.4(d).
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