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TCL > January 2006 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

The Colorado Lawyer
January 2006
Vol. 35, No. 1 [Page  155]

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Colorado Supreme Court Office of Regulation Counsel

Disciplinary Case Summaries for 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 August 19, 2005, through November 16, 2005, at the intake stage, Regulation Counsel entered into 10 Diversion Agreements involving 13 separate requests for investigation. ARC entered into 6 Diversion Agreements involving 10 requests for investigation during this time frame. The PDJ did not approve any Diversion Agreements during this time frame. ARC issued 2 private admonitions involving 2 requests for investigation during this time frame. The PDJ did not approve any private admonitions 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 that 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 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 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 and Colo. RPC 1.8(a); trust account issues, implicating Colo. RPC 1.15; discovery issues, implicating Colo. RPC 3.4(d) and Colo. RPC 8.4(d); 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 Diversion Agreements

Competence

— Respondent was both a licensed real estate broker and a licensed Colorado attorney. Respondent received two unsolicited fax ads offering mortgage products. The faxes contained only the sender’s ("sender") first name. Before suing under state and federal no-fax laws, respondent first wanted to verify who sender was and the nature of sender’s business. Approximately one year later, respondent phoned sender and stated he was a realtor interested in sender’s products, and asked to meet. Respondent did not disclose that respondent also was an attorney or that respondent’s actual purpose was to gather information for a lawsuit against sender. Sender agreed to meet with respondent the next day. When he met with sender, respondent asked about sender’s products but still did not disclose that he was an attorney or the true purpose of his inquiry. During the meeting, respondent produced a copy of the fax at issue and asked sender if it was his. Sender admitted the fax looked like one he used some time ago. Respondent concluded the meeting and left. Respondent then filed a lawsuit naming himself and his real estate company as co-plaintiffs against sender. At trial respondent was awarded a judgment. Respondent then began representing other clients who had received unsolicited faxes from sender. Respondent filed a civil action for his clients against sender and personally served the summons and complaint on sender to save his clients the cost of service. Respondent was unaware that C.R.C.P. 4 and Colorado case law prohibit an attorney from personally performing service of process for his own clients. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.1, Colo. RPC 4.3, and Colo. RPC 8.4(c).

— Client hired respondent for a dispute over client’s former spouse relocating the parties’ children out of state. The court ordered no relocation until a full hearing could be held. After a hearing, the court directed respondent to prepare and file the written order within sixteen days. When respondent failed to file the order on time, the court directed him to file it within twenty days. Respondent still did not file the order on time. Respondent later filed the proposed order. Both parties then filed motions regarding custody and child support. At a hearing in October 2002, the trial court ordered the city attorney to calculate child support and arrearages using the parties’ incomes and amounts paid for private school tuition and medical insurance. The court awarded the former spouse custody of the parties’ daughter and awarded custody of their son to client. The court directed respondent to prepare the written order no later than October 30, 2002. Respondent did not prepare the written order. Respondent’s billing records reflect no further work on client’s case after the October 2002 hearing. The city attorney ultimately filed the proposed order, which the trial court signed on November 20, 2002. Respondent did not provide client a copy of the order. Client found out about the order when his wages were garnished in December 2002. Client then obtained the order from the court and found the calculations were incorrect. Client wanted the order corrected, but had been unable to contact respondent in November and December. In December 2002, client filed his own motion asking the court to remove respondent as counsel, as well as an objection to the child support calculations and orders. In February 2003, respondent sent client a draft motion to amend or correct the trial court’s order, but did not explain why he failed to file it. Respondent’s draft notes the incorrect calculations and that the written order was inconsistent with the oral orders as confirmed by the hearing transcript. At the hearing on client’s objection, the reviewing judge acknowledged that the trial court’s written order conflicted with its oral orders, but ruled that he must assume the trial court examined and agreed with the proposed order. The court also found client’s objection was untimely, because any objection had to be filed no later than December 5, 2002. Respondent and client are in dispute about the fees. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.2(a), Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.5(a), and Colo. RPC 8.4(d).

Diligence and/or Failure to Communicate

— Client hired respondent to represent the grandson of client in four domestic cases, including paternity, child support, and termination of parental rights. In August 2002, client paid respondent a $2,000 retainer to represent the grandson. In approximately February 2003, respondent sent a letter to client advising that there were irreconcilable differences between respondent and the grandson, and that he was withdrawing from the matter. Between March 2003 and March 2005, client sent respondent numerous letters and made numerous phone calls, requesting an itemized accounting of his time spent on the case, a refund of the unearned retainer, and a return of the file on the matter. Respondent failed to respond or otherwise comply with those requests until receiving notification from the Office of Attorney Regulation Counsel. Upon contact from the Office of Attorney Regulation Counsel, respondent immediately provided the file to client, an itemized accounting of the fees earned, and refunded the unearned retainer in the amount of $1,115. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and Trust Account School. The rules implicated are Colo. RPC 1.4 and Colo. RPC 1.15(b).

— Respondent entered an oral appearance on behalf of a juvenile. Respondent was retained through a prepaid legal plan and therefore did not have a written fee agreement or send an engagement letter. Respondent wrote to client’s parents and incorrectly informed them that client did not have to appear for a hearing. Based on respondent’s advice, client did not appear and a bench warrant was issued. Client and his mother got the bench warrant quashed. The case register indicates respondent failed to appear. Thereafter a pretrial conference was held. Respondent was late for the conference. The court noted that fact, as well as the fact that respondent has not yet obtained discovery or communicated with client’s defense counsel on another case pending in another county. Client’s attorney in the other county negotiated a plea, which included dismissal of the case respondent was handling. Respondent was present when the court scheduled a status conference in the case he was handling. Respondent failed to appear at the status conference because it was not calendared properly. The court dismissed the case at the status conference. Additionally, respondent’s letterhead used the term "Associates" when respondent had no associates. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and revise his letterhead. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), Colo. RPC 1.5(b), and Colo. RPC 7.1(a).

— Respondent failed to advise client in writing of the basis of his fee. Further, respondent failed to communicate with another client about his fees for approximately a ten-month period. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.4(a), Colo. RPC 1.5(b), and Colo. RPC 1.15(c).

— In four bankruptcy matters, respondent neglected client matters and failed to communicate with clients over a period of time. At the time, respondent was a sole practitioner and was experiencing anxiety and feelings of being overwhelmed. After the clients filed requests for investigation, respondent promptly returned the clients’ fees and files. Respondent closed the practice and began working with another attorney. Respondent has no prior discipline. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and continue with a mental health professional. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).

— Respondent’s clients paid respondent a total of $1,859 to prepare, file, and represent them in a Chapter 7 bankruptcy. The above-mentioned monetary amount included the filing fee. Clients provided respondent the final payment and paperwork necessary to file the action in February 2005. Respondent filed the bankruptcy petition and the next day the court entered a Notice of Deficiency for failure to file Statement of Financial Affidavits, Schedules and Summary Schedules. The court ordered all schedules and statement of financial affairs to be filed in two weeks. A Motion for Relief from Stay was filed by a creditor. A Notice of Deficiency, Requirement to Cure and Recommendation for Dismissal was entered by the court. Respondent failed to cure the deficiency in the bankruptcy filing and failed to respond to the Motion for Relief from Stay. The court issued an order dismissing the case for failure to cure the deficiency. Subsequent to the court dismissing clients’ bankruptcy petition, respondent informed clients that he would take action to correct the situation and get the bankruptcy case reopened. During this time frame, clients made repeated attempts to communicate with respondent by telephone, written correspondence, and e-mail. Respondent failed to take any action to have the bankruptcy case re-opened, or to communicate with his clients, until months after meeting with Assistant Regulation Counsel. As part of the conditions of the Diversion Agreement, respondent shall prepare the bankruptcy petition or withdraw as requested by clients, be responsible for any additional filing fees, and give notice to OARC within seven days of either the re-filed bankruptcy petition or withdrawing. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.

Conflict of Interest

— Respondent entered into a business transaction with his client, a corporation. Respondent loaned money to client without adequate disclosures or compliance with all of the conditions of Colo. RPC 1.8(a). As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.7(b) and Colo. RPC 1.8(a).

— Respondent and his former employer represented a client in a divorce case. Immediately prior to the final orders hearing, and upon respondent’s request, client paid $2,000 to respondent to satisfy the estimated attorney fees for representation at the hearing. Respondent represented client until filing a motion to withdraw approximately one month after the hearing. An order granting the motion to withdraw was entered several weeks after respondent filed the motion. Client had requested communication from respondent regarding ongoing contested post-decree issues that respondent did not adequately address between the permanent orders hearing and the effective date of his withdrawal. Prior to entry of an order allowing respondent to withdraw, respondent accepted employment with a firm where opposing counsel in client’s divorce case was a partner. Respondent commenced employment one day after filing his motion to withdraw. Respondent failed to communicate the possibility of said employment or his negotiations for employment with the new law firm to his client. Respondent admits this failure may have contributed to the lack of communication regarding other issues and that his employment at the new firm began before an order was entered allowing respondent to withdraw from the case. Respondent and his former firm also had a dispute with client regarding the reasonable amount of fees client had paid. Further, client disputed certain fees that respondent and firm were owed after the representation ceased. As part of an agreement to resolve the dispute, the parties agreed that client balance due and owing to the former law firm would be written off. The write-off of the fees was to mitigate harm to client as a result of any conflict. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 1.4 and Colo. RPC 1.7(b).

Fairness to Opposing Party and Counsel with Regard to Discovery

— Respondent was aware that co-counsel drafted interrogatory responses that, it was determined, were misleading to the extent they were inconsistent with existing information claimed to be privileged in the possession of respondent and client. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 3.4(d) and Colo. RPC 8.4(d).

— Respondent signed interrogatory responses that, it was determined, were misleading to the extent they were inconsistent with existing information claimed to be privileged in the possession of respondent and client. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School. The rules implicated are Colo. RPC 3.4(d) and Colo. RPC 8.4(d).

False or Misleading Communication

— For several years, respondent published an advertisement for his law office in a foreign language newspaper that circulated in Colorado. The ad was misleading in certain respects. As part of the conditions of the Diversion Agreement, respondent shall submit all advertising in advance to the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 7.1(a) and Colo. RPC 7.5(b).

Criminal Conduct

— Respondent was convicted of driving while ability impaired ("DWAI"). Respondent had been arrested for driving under the influence ("DUI") of alcohol in two separate incidents. Respondent was arrested for driving under the influence of alcohol following a single motor vehicle accident in which respondent lost control of the vehicle he was operating. Respondent was not injured. Respondent was released from jail to a friend who picked him up. The friend took respondent home, where respondent drank several glasses of vodka. Following the consumption of several glasses of vodka, respondent borrowed the friend’s vehicle and drove back toward his home. On the way home, respondent stopped at the drive-through window of a fast food restaurant to order food. While there, respondent became belligerent and started yelling obscenities. A police officer saw the behavior and arrested the respondent for DUI. Respondent had been under the care of a doctor at the time of these two incidents and had maintained sobriety for two years. Following the two incidents, the respondent began treatment with another doctor and was prescribed Antabuse. Respondent shall continue taking Antabuse as long as recommended by his doctor. Respondent pled guilty to DWAI in the first case and the second case was reduced to a non-alcohol related offense. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, comply with the court sentence, submit monthly reports to OARC, abstain from alcohol consumption, continue treatment with his doctor, attend a recovery program, and submit to random urinalysis testing. The rule implicated is Colo. RPC 8.4(b).

— Respondent was operating his vehicle when it struck another vehicle. Respondent received a citation for his fault in the incident. Pursuant to the investigation following the collision, respondent was charged with DUI. There were no serious injuries as a result of the collision. Respondent subsequently was evaluated by an alcohol abuse evaluator and was recommended to undergo alcohol abuse treatment and individual psychotherapy for the diagnosis of an alcohol abuse problem. This is respondent’s second alcohol-related offense. As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, comply with terms and conditions of sentence imposed and with evaluation, attend Alcoholics Anonymous or other equivalent recovery program, participate in any treatment or support program recommended by evaluator and provide monthly progress reports, abstain from use of alcohol or mood altering substance unless prescribed, undergo random urinalysis or breathalyzers, and make arrangements with OARC for continued treatment if out-of- state travel is anticipated. The rule implicated is Colo. RPC 8.4(b).

— Respondent was convicted pursuant to his guilty plea of DWAI. The conviction resulted from an incident when respondent was stopped for speeding and weaving. At that time, respondent’s blood alcohol concentration was measured at .158. This is respondent’s first alcohol-related conviction. 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).

Private Admonitions

— Respondents were supervisors in a litigation matter. They directed the drafting and service of interrogatory responses that ARC determined to be misleading. The interrogatory responses concerned certain information in the possession of respondents and their client. Respondents believed the information was privileged and objected on that ground; therefore, they believed that they did not have a duty to disclose the information. The responses were misleading because they were inconsistent with the undisclosed information. The responses resulted in the trial court’s conducting further proceedings. The rules violated are Colo. RPC 3.4(d) and Colo. RPC 8.4(d).

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2006.


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