Vol. 34, No. 10
From the Courts
Matters Resulting in Diversion
Matters Resulting in Diversion And Private Admonition
Editor’s Note: Articles describing Diversion Agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These summaries are contributed by the Colorado Supreme Court Office of Regulation Counsel.
Diversion and Private Admonition Summaries
Background Information Regarding Diversion
Diversion is an alternative to discipline. See C.R.C.P. 251.13. Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel ("Regulation Counsel"), the Attorney Regulation Committee ("ARC"), the Presiding Disciplinary Judge ("PDJ"), the hearing board, or the Supreme Court may offer diversion as an alternative to discipline. For example, Regulation Counsel can offer a Diversion Agreement when the complaint is at the central intake level in the Office of Attorney Regulation Counsel ("OARC"). Thereafter, ARC or some other entity must approve the agreement.
From May 17, 2005 through August 18, 2005, at the intake stage, Regulation Counsel entered into 15 Diversion Agreements involving 15 requests for investigation. ARC did not approve any Diversion Agreements. The PDJ did not approve any Diversion Agreements during this time. No private admonitions were issued during this time period.
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; trust account issues, implicating Colo. RPC 1.15; failing to supervise lawyers and non-lawyers, implicating Colo. RPC 5.1 and Colo. RPC 5.3; 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 counseling, if necessary, to address the underlying problems of depression, alcoholism, or other mental health issues that may be affecting the attorney’s ability to practice law.
Random Samples of Diversion Agreements
Abiding by Client’s Objectives And Returning Funds
— In July 2003, client retained respondent to secure an access easement and paid a $3,000 initial retainer. Respondent told client he would write to the opposing party and wait ninety days before filing any legal action. In October 2003, client called to find out the opposing party’s response. Respondent’s associate informed client the letter had not yet been sent. The demand letter was sent in late November 2003. Respondent maintains his firm was working on title issues regarding client’s property. However, except for client’s call on July 25 to inform respondent that client’s other neighbor did not wish to join in securing the easement, respondent’s billing statements show no work performed on client’s case from the day client retained the firm in July to October 8, when client called to inquire about the status of the case.
In January 2004, respondent filed a lawsuit on client’s behalf. Trial was set for October 1, 2004. Negotiations continued through September 2004. The parties came close to settling, but client objected to a provision proposed by the opposing side. Client left messages informing respondent of his objection. In late September, opposing counsel said he would recommend his client remove the provision. Even though respondent had not secured a final settlement or discussed the issue with client, respondent authorized opposing counsel to vacate the trial date. Respondent did not inform client about his conversation and agreement with opposing counsel to vacate the trial.
On the day before trial, client called to ask what time to be at court for trial the next day. Only then was client informed that respondent was out of town and had vacated the trial date. The client spoke with respondent and expressed his displeasure over the trial date being vacated without his knowledge or consent. Respondent called opposing counsel, who had not yet talked with his client about removing the provision. Respondent and opposing counsel exchanged proposed settlements and revisions throughout October and November 2004.
By letter dated November 20, 2004, client fired respondent and requested a refund of unearned fees. On November 22, respondent wrote to client and provided a copy of the settlement agreement. The letters crossed in the mail. When client reviewed the agreement, he found the objectionable provision had been removed, but client refused to sign the settlement agreement.
To date, client’s case has not been resolved. Respondent did not prepare his motion to withdraw until January 2005 or file it with the court until March 25, 2005. Despite client’s November 2004 refund request, respondent did not send client his refund until March 24, 2005. Respondent maintains the untimely motion preparation, filing, and refund were due to oversights by his paralegal.
As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.2(a), Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.16(d), Colo. RPC 3.2, and Colo. RPC 5.3.
Diligence and/or Failure to Communicate
— The complainant hired respondent to pursue a personal injury case on her behalf and paid him $150 for the filing fee. Respondent filed a complaint on March 30, 2001. Thereafter, opposing counsel filed motions to compel discovery. Respondent did not file a response to the motions. The complainant’s case was dismissed on February 20, 2002 without prejudice, for failure to comply with the court’s delay prevention order dated January 7, 2002. During this time, the complainant was unable to contact respondent. Respondent notified his malpractice carrier concerning this claim and asked them to contact the complainant. He also provided the complainant with all information necessary for her to contact his carrier directly in the event he and the complainant are unable to reach a settlement on their own. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, and have a practice monitor. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
— Respondent was retained to represent a client with regard to the dissolution of a business. The client advised respondent that there was a very short time frame, and that she needed him to negotiate with her business partner and advocate the client’s interests with regard to the dissolution. Respondent did not provide the client with a written fee disclosure. He took some initial action to contact the lawyer for his client’s business partner. Respondent failed to take any further action on the client’s case due to an illness. Respondent did not seek medical treatment for the illness. The client attempted to contact respondent by telephone on April 12, 2005 and April 14, 2005, and then went to respondent’s office on April 25, 2005. Respondent was not available at any of these times, and did not return any of the client’s messages. On April 26, 2005, the client sent respondent a letter expressing her frustration with respondent’s failure to contact her and seeking a status report on the legal matter. Respondent did not respond to this letter. The client subsequently contacted the Colorado Supreme Court OARC. After OARC contacted respondent, he sent a status report to the client and refunded the retainer that was paid in April 2005. Additionally, problems existed with respondent’s trust account practices. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, Trust Account School, and have a practice monitor. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.5(b) and Colo. RPC 1.15.
— Three items were presented against insufficient funds on respondent’s account designated as an attorney trust account for a firm. The bank paid all three items. Respondent was formerly associated with the firm. The firm was dissolved and each attorney opened his own independent trust account. Before dissolution, the firm maintained two trust accounts: one account was for the fixed fee cases for one attorney, and the other account was for the hourly rate cases for respondent. All of the partners were authorized signatories on both accounts. Upon the dissolution of the firm, respondent began to transfer funds from the hourly trust account to his new trust account. Respondent made a bookkeeping error and transferred more funds to the new account than were available in the old account. When he attempted to rectify the error with an online transfer, he compounded the problem by inadvertently transferring the funds from the other attorney’s fixed fee account. Respondent went to the bank to correct the accounts and paid the overdraft fees from his office account. As part of the conditions of the Diversion Agreement, respondent shall attend Trust Account School and have financial monitoring. The rule implicated is Colo. RPC 1.15.
Meritorious Claims and Contentions
— Respondent represented decedent’s family in a contested estate case against decedent’s widower. On December 7, 2004, respondent filed a motion to enforce an agreement between his clients and the widower. On January 6, 2005, widower’s counsel filed a response disputing the alleged agreement and sought attorney fees on grounds that respondent’s motion was frivolous and groundless. Respondent did not file a reply. On January 25, 2005, the court denied respondent’s motion, found the motion was frivolous and groundless, and awarded attorney fees. Respondent did not appeal the court’s finding. On February 1, 2005, opposing counsel filed an affidavit of attorney fees for responding to the frivolous motion. Respondent did not file any objection. On February 28, 2005, the court assessed $125 in attorney fees jointly against respondent, his firm, and his clients. Respondent did not pay the sanction or appeal the ruling. The Office of Attorney Regulation Counsel wrote respondent regarding the court’s finding and sanction. Respondent did not pay the sanction, because respondent maintained the judge’s ruling was wrong. Respondent has now paid the court-ordered sanction. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 3.1 and Colo. RPC 3.4(c).
Responsibilities of a Partner Of Supervisory Lawyer
— On May 20, 2004, respondent was court-appointed to represent a client in a criminal case. The court held arraignment in the client’s case on November 8, 2004. At that hearing, the court scheduled dates for the jury trial, pre-trial, and motions hearings and also gave the parties a filing deadline for motions in the case. Respondent did not attend the arraignment, but instead delegated the appearance at the arraignment to another lawyer in her office. After the arraignment, the dates set by the court in the client’s case were not properly calendared within respondent’s office. As a result of the dates being miscalendared, respondent did not file motions in a timely manner, failed to appear for the motions hearing and the pretrial conference in the client’s case, and sought to continue the trial date in the client’s case. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 5.1(a) and/or Colo. RPC 5.1(b).
Responsibilities Regarding Nonlawyer Assistants
— In July 2004, respondent and his law firm were retained to look into possible post-conviction issues for a client and to assist the client in obtaining placement in a community corrections facility in lieu of further incarceration in the Department of Corrections, including the preparation of a portfolio of materials for this purpose. Respondent conducted research related to any post-conviction issues. In January 2005, respondent prepared a letter to the client advising him of possible post-conviction issues and the cost associated with pursuing any of those issues. Respondent earned the fee paid for this portion of the representation. Respondent delegated responsibility for preparation and submission of the portfolio seeking community corrections placement to a non-lawyer assistant. In the course of handling that aspect of the representation, the non-lawyer assistant sent correspondence and gave advice to the client. This correspondence and advice was not reviewed or approved by respondent. Additionally, the non-lawyer assistant told both the respondent and the client that the portfolio was properly sent to the appropriate agencies for consideration by several community corrections programs. In actuality, the portfolio was not submitted to the community corrections agencies considering the client for placement, and had no bearing on the decision whether to accept or reject the client in any of those programs. Consequently, although the portfolio was prepared, the work done in this regard conferred no benefit upon the client. Upon learning that the portfolio was not submitted to the appropriate agencies for consideration, respondent refunded that portion of the fee in its entirety. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rule implicated is Colo. RPC 5.3.
— A state patrol officer stopped respondent for weaving and driving his vehicle on the shoulder of the road. The officer noted an odor of alcohol and that respondent had difficulty producing his driver’s license. When respondent stepped out of the vehicle, the officer noted respondent was unsteady. Respondent agreed to perform roadside sobriety tests but was unable to do so satisfactorily. When the officer asked respondent to take a portable breath test ("PBT"), respondent agreed. The PBT measured .155. The officer then arrested respondent for suspicion of driving while under the influence of alcohol. Respondent later provided two additional breath samples, which measured .182 and .194. This incident took place in another state. Respondent entered into an agreement on the DUI charge. This is respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, comply with deferred prosecution agreement in another state, and comply with a doctor’s recommendations. The rule implicated is Colo. RPC 8.4(b).
— Respondent was driving his truck and was stopped for speeding. Pursuant to the traffic stop, respondent agreed to a request to perform voluntary roadside maneuvers due to being a suspected DUI driver. Respondent was unable to perform the roadside maneuvers to the satisfaction of the officer and was arrested for DUI. Respondent was administered a breath test to determine blood alcohol content ("BAC"). The result of the BAC was .188. Respondent plead guilty to Driving While Ability Impaired ("DWAI"). This is respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and comply with sentence imposed. The rule implicated is Colo. RPC 8.4(b).
— Respondent pled guilty to the charge of misdemeanor theft in Municipal Court. The relevant facts regarding the conviction are as follows: (1) Respondent exited from a department store without paying for a kitchen mixer attachment that had been in his shopping cart. (2) Respondent had a number of items in his cart and paid for all items before exiting the store, except for the mixer attachment. (3) After respondent exited the store, he walked home, pushing the shopping cart, and noticed the mixer attachment was in his cart and that he had not paid for it. (4) Respondent continued walking and arrived at his home, several blocks away, without returning the mixer attachment. (5) Respondent was cited for misdemeanor theft during an investigation that night. The item was returned to the department store the same night. (6) Respondent has no prior history of any criminal convictions. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 8.4(b) and Colo. RPC 8.4(c).
— Respondent was stopped by a deputy sheriff deputy for driving his vehicle back and forth between lanes and weaving. When the deputy asked for respondent’s license, registration, and proof of insurance, respondent appeared confused and was unable to provide the documents. When asked if he had been drinking, respondent said yes, but that he could not remember how much. The deputy noted respondent had a strong odor of alcohol, bloodshot watery eyes, and slurred speech. The deputy asked respondent to step out of the vehicle. When respondent did so, he was unsteady and had to use the car to keep his balance. The deputy had to grab respondent several times to keep him from falling. The deputy then arrested respondent for suspicion of driving while under the influence of alcohol. Respondent agreed to provide a blood sample, which measured his BAC at .174. Respondent pled guilty to DWAI by alcohol. This is respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and comply with court sentence. The rule implicated is Colo. RPC 8.4(b).
— While driving, respondent displayed a gun to another driver. Respondent held a valid concealed weapons permit at the time of the incident. Respondent was cited, appeared in court and pled guilty to disorderly conduct (displaying a weapon) in violation of CRS § 18-9-106(1)(f). Respondent was sentenced to twelve months’ probation, to pay a fine, and to forfeit the weapon involved in the incident. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rule implicated is Colo. RPC 8.4(b).
— Respondent was convicted pursuant to his guilty plea of third-degree assault, a class 1 misdemeanor. The conviction resulted from an altercation respondent had with another person. This was not an incident involving domestic violence. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and comply with terms of court sentence. The rule implicated is Colo. RPC 8.4(b).
— Respondent was arrested and charged with a DUI when she was observed using multiple lanes and failed to use her turn signal. There were no injuries or property damage. The police report indicates that respondent refused testing, although respondent alleges there was a misunderstanding concerning this issue. Respondent underwent two alcohol evaluations. Respondent pled guilty to DWAI and was sentenced to suspended jail time; one year of unsupervised probation; costs and fines; and an alcohol evaluation, including compliance with the terms of the evaluation, which recommended completion of twenty-four hours of Level II alcohol education. At the request of the OARC, respondent also independently met with and was evaluated by an addictions therapist, who made no recommendations for further treatment or therapy. This is respondent’s first alcohol-related offense. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and comply with the court sentence. The rule implicated is Colo. RPC 8.4(b).
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