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

The Colorado Lawyer
July 2006
Vol. 35, No. 7 [Page  139]

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

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From the Courts
Colorado Supreme Court Office of Attorney Regulation

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 Attorney Regulation Counsel.

Diversion and Private Admonition Summaries

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 February 21, 2006, through May 18, 2006, at the intake stage, Regulation Counsel entered into 11 Diversion Agreements involving 15 separate requests for investigation. ARC entered into 2 Diversion Agreements involving 3 separate requests for investigation during this time frame. The PDJ did not approve any Diversion Agreements during this time frame. ARC issued one private admonition involving one request for investigation during this time frame. The PDJ did not approve any private admonitions during this time frame.

Determining if Diversion is Appropriate

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).

Purpose of the Diversion Agreement

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 might be a law office management audit and/or practice monitor. The time period for a Diversion Agreement is generally no less than one year and not greater than two years.

Conditions of the Diversion Agreement

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 continuing legal education ("CLE") courses
  • any other conditions that would be determined 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.

Types of Misconduct

The types of misconduct resulting in diversion during February 21, 2006 through May 18, 2006 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 the client is not harmed or restitution is paid to redress the harm or malpractice insurance exits
  • fee issues, implicating Colo. RPC 1.5
  • trust account issues, implicating Colo. RPC 1.15
  • criminal conduct, implicating Colo. RPC 8.4(b)
  • the attorney’s failure to supervise non-lawyer employees, implicating Colo. RPC 5.3.

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

Below are random samples of Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct during February 21, 2006 to May 18, 2006. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct implicated, and the corresponding conditions of the Diversion Agreement.

Competence/Fees

The respondent was hired by the client and the client paid the respondent a monthly retainer of $5,000 to represent the client’s business entity. The respondent represented the business entity in two lawsuits that occurred over a span of approximately one year between 2004 and August 2005. During the pretrial preparation of the case, the respondent failed to provide an itemized monthly accounting to client, did not take the depositions requested by client, did not perform sufficient pretrial discovery, and did not send subpoenas to witnesses the client wished to have testify at the trial. During the pendency of the pretrial litigation, the respondent continued to receive a regularly monthly retainer. The respondent failed to send regular monthly billing statements or to otherwise account for his services rendered within a reasonable time. The respondent neglected to send any invoices for approximately nine months prior to withdrawing from representation of the client. The case that proceeded to trial resulted in a judgment that was entered against the client in the sum of $35,585.35. In the other matter, the respondent withdrew from the case due to his status as a potential witness. The respondent subsequently provided an itemized accounting and invoices to client, but only after the Office of Attorney Regulation Counsel required him to account for his time pursuant to Colo. RPC 1.15.

Rules Implicated: The respondent’s conduct and failure to comply with the client’s requests, the withdrawal from representation because he was listed as a witness for trial, and the failure to send regular monthly invoices and itemized accountings to the client implicate Colo. RPC 1.1 (competence); Colo. RPC 1.3 (neglect); Colo. RPC 1.15 (b) (financial accounting); and Colo. RPC 1.5(b) (fee disclosure).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School.

Diligence and/or Failure to Communicate

The respondent filed an application for a patent on behalf of a client in March 2003. The U.S. Patent Office acknowledged receipt of the application. The respondent communicated with the client periodically through 2003, 2004, and 2005 about the patent application and other legal matters. The respondent advised his client that the U.S. Patent Office would issue an examination report approximately twelve to twenty-four months after filing, but that longer delays could occur. In November 2005, the client contacted the respondent and inquired about the status of the patent application. The respondent called the U.S. Patent Office and learned that the client’s application was deemed abandoned due to an incomplete application. Upon further investigation, the respondent learned that his operating account check that accompanied the patent application to pay the appropriate fee was returned for insufficient funds. The respondent does not recall being notified of this deficiency by the U.S. Patent Office at the time the check was returned. The respondent acknowledges that he failed to diligently monitor the status of the client’s patent application. Additionally, the respondent acknowledges that there was confusion with his operating account at the time the check was returned for insufficient funds.

Rules Implicated: The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.15(g).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School.

__________________

The respondent was retained in October 2002 to assist the complainant with two matters, and was paid a $2,000 retainer. One case involved a dispute with a painting contractor; the other involved a dispute with a car wash. The respondent took no action on the car wash case. A suit was filed against the painting contractor about a year later. Thereafter, the respondent was informed by the court that full compliance with Rule 121 had not occurred. The respondent then filed a motion for default, but no further activity happened on the case until a year later, when the court issued a notice of dismissal for failure to prosecute. The respondent obtained an order on December 2, 2004, allowing the case to remain active for sixty days. However, there was no further activity on the case for ninety days, so the court issued another notice of dismissal for failure to prosecute. The case was dismissed on April 11, 2005. The complainant then requested a refund of the retainer, but he agreed that the respondent could continue the representation, because the paint case had been filed. The complainant alleges the respondent gave him a number of excuses concerning the progress of his cases. Throughout the three-year representation, the complainant had difficulty contacting the respondent and received only two invoices. The complainant contacted the Office of Attorney Regulation Counsel. The respondent then provided the complainant with a copy of all invoices (the last one dated September 30, 2003); a refund of $1,231.60 from her trust account (the balance of the retainer); and an operating account check for $350 (the respondent’s personal payment to compensate the complainant for the amount on the car wash case).

Rules Implicated: The rules implicated are Colo. RPC 1.3; Colo. RPC 1.4(a); and Colo. RPC 1.4 (b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School.

__________________

The respondent was retained by a client in November 2004 to represent him in post-decree issues. On December 30, 2004, the respondent filed the verified consolidated petition. On March 3, 2005, the respondent filed a certificate with a waiver of service signed by the opposing party. On April 14, 2005, the judge presiding over the case issued a delay prevention order. The order noted that the opposing party did not file a response to the petition for modification, and ordered the respondent and/or the client to take action so that the matter would not be dismissed. On June 7, 2005, the court signed an order dismissing the case. The order of dismissal includes a stamped certification that the order was served on all parties via Justicelink or U.S. mail on June 14, 2005. The respondent asserts that she attempted to file a motion for entry of default via electronic filing on or about April 13, 2005. She received a message that the filing did not go through. The respondent asserts that she talked to a court clerk who explained that they were experiencing problems with the electronic filing system and instructed her to send the motion via U.S. mail. The respondent asserts that she delegated to her paralegal the responsibility to send the original motion via U.S. mail. The respondent failed to "tickle" her calendar to check with the court as to the status of the motion or case. The respondent acknowledges that there is no documentation in her file to confirm a conversation with the court clerk, nor any documentation to demonstrate that the motion and copies were transmitted to the court or to the client. The respondent acknowledges that the court never received the motion for entry of default, and that she did not receive a file-stamped copy from the court. The respondent asserts that she did not receive the order of dismissal from the court, and states that she discovered the dismissal order in July 2005. There is a dispute over how the client learned of the dismissal order or what action was to be taken. The client states that he terminated the respondent because of her failure to take action to reopen the matter. The respondent could not produce any documentation from her file to demonstrate any communication with her client about the dismissal or a recommended course of action.

Rules Implicated: The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, and Colo. RPC 5.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School.

__________________

The respondent entered his appearance on behalf of a plaintiff in a civil case. Prior to that time, the client handled the case pro se. The court held a hearing on a defense motion to dismiss that case. The court determined that the tort claim asserted in the pro se complaint was barred by the client’s failure to provide notice pursuant to the Colorado Governmental Immunity Act. However, although the pro se complaint contained only a "FIRST CLAIM FOR RELIEF," the court determined that the complaint asserted a constitutional claim in addition to the tort claim. The court allowed plaintiff twenty days within which to file an amended complaint. Some time in June 2005, the respondent drafted an amended complaint restating his client’s constitutional claim alleging denial of due process. The respondent sent a copy of the first amended complaint to his client. The first amended complaint was not filed with the court, nor was a copy sent to opposing counsel or served on any defendant named in the case. On January 5, 2006, the court held a hearing on a second defense motion to dismiss the lawsuit. At that hearing, the court determined that the pro se complaint was defective, and that no amended complaint was ever filed in the case. The court found that good cause did not exist to allow the plaintiff to file the amended complaint out of time. The court dismissed the case with prejudice as to all defendants. On January 16, 2006, the respondent wrote to his client confirming that the court dismissed the case. In the letter, the respondent offered to handle an appeal, but advised the client that his chances of success in that appeal were remote at best. The respondent had malpractice insurance at the time he represented the client.

Rule Implicated: The rule implicated is Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School.

__________________

The respondent was appointed in late August 2005 as alternative defense counsel to represent the client. The respondent met with the client on September 1, 2005 at the jail. The respondent met with the client again one week later at the courthouse, just prior to the preliminary hearing. The underlying case was set for arraignment on October 7, 2005. On this date, the respondent spoke briefly with the client. The arraignment was continued until mid-November. In November, a plea offer was made and the case was continued until January 6, 2006. From September 1, 2005 through January 6, 2006, the client sent various pieces of correspondence to the respondent. The respondent did not specifically respond to the client’s written correspondence and, other than as set forth above, the respondent had no communication with the client. On January 6, 2006, the respondent met with the client at the courthouse. The client rejected the plea offer and entered a not-guilty plea. The underlying case was set for a motions hearing on April 4, 2006. The respondent worked on the case during the time frame from January 6, 2006 to April 4, 2006, including reviewing discovery and meeting with an investigator assigned to assist the respondent, and one meeting with the client. However, despite repeated attempts by the client to communicate with the respondent via written correspondence, the respondent had no additional communications with the client. In late January or early February 2006, the respondent moved his law offices and failed to inform the client of the new address. On April 4, 2006, the court removed the respondent from the case and appointed new counsel for the client.

Rule Implicated: The rule implicated is Colo. RPC 1.4.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School.

Fees/Trust Account Issues

The respondent’s bank reported an overdraft on the COLTAF trust account belonging to the respondent. The sum of $10,000 was paid by the bank, leaving the account in a negative status. A check was made payable to the respondent for earned fees. The respondent received a check for $5,000 from his client as a retainer. On that same day, the same client delivered a second check in the amount of $5,000 to the respondent’s assistant. The assistant was informed this second check would not clear the bank and the check should be held until such time as it would. The assistant proceeded to store the check in a desk drawer. A deposit slip had been prepared and the full deposit amount of $10,000 was recorded in the trust account checkbook ledger. Approximately one week later, the respondent had earned the entire $10,000 and thus wrote the check to transfer the funds from his trust account to his office account. The respondent was never aware the second $5,000 check had not been deposited until the check payable to him caused an overdraft on his trust account.

Rules Implicated: The rules implicated are Colo. RPC 1.15(a); Colo. RPC 1.15(g); Colo. RPC 1.15(h); and Colo. RPC 5.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Trust Account School and have financial monitoring.

__________________

The respondent’s bank reported an overdraft on an attorney trust account belonging to the respondent. The respondent wrote a check in the amount of $225. The check was paid by the respondent’s bank but placed the trust account in a negative status. The respondent stated she did not have a clear understanding of her COLTAF account and was using it as a trust account and as an office account. The respondent’s COLTAF account was not clearly designated as such on her checks and she did not maintain the appropriate records required under Colo. RPC Rule 1.15.

Rules Implicated: The rules implicated are Colo. RPC 1.15(f); Colo. RPC 1.15(g); and Colo. RPC 1.15(h).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Trust Account School and Ethics School.

__________________

The respondent’s bank reported an overdraft on an account designated as an attorney trust account belonging to the respondent. The respondent opened this trust account in August 2005. On or about August 20, 2005, the respondent was retained to represent a client in a criminal matter. The retainer paid to the respondent totaled $1,000, which was paid by credit card in installments of $500—the first on August 20, 2005 and the second on August 23, 2005. At the time the credit card payments were made, the respondent did not have the capability to accept credit card payments and was using a local market to process any credit card payments he received. The respondent entered the entire $1,000 amount into his trust account log at the time of the transactions, but failed to physically acquire the second $500 deposit from the market. It was not until the check in the amount of $1,050 was returned by the bank on October 3, 2005 that the respondent became aware that he had not retrieved the second installment from the market. That check was payable to the respondent as earned fees. During the course of these transactions, the respondent acted as his own bookkeeper. The records maintained by the respondent were insufficient.

Rules Implicated: The rules implicated are Colo. RPC 1.15(a); Colo. RPC 1.15(c); Colo. RPC 1.15(g); and Colo. RPC 1.15(h).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Trust Account School and Ethics School, and have financial monitoring.

Criminal Conduct

The respondent was charged with, inter alia, violation of CRS § 42-4-1301(1)(a), driving under the influence ("DUI"); CRS § 42-4-608(1), failure to use a turn signal; CRS § 42-2-138(1)(A), driving vehicle while under restraint; and CRS § 18-8-104, obstructing a peace officer. The respondent refused a chemical test to determine his blood alcohol content ("BAC"). The respondent entered a plea of guilty to violation of CRS § 18-8-104, obstructing a peace officer; and CRS § 42-2-138(1)(A), driving under restraint. The respondent received a two-year unsupervised deferred judgment to the obstruction charge. Pursuant to the guilty plea to § 42-2-138(1)(A), the respondent was given a choice of how to serve his sentence. He chose ten days of home detention and paid various fines and costs.

Rule Implicated: The rule implicated is Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, comply with the court sentence, comply with his doctor’s recommendations, abstain from alcohol, take monitored Antabuse or submit random urinalysis, provide monthly written confirmation of compliance, attend intensive outpatient program, attend psychotherapy, and attend weekly Alcoholics Anonymous meetings.

__________________

The respondent returned home after completing a three-week trial out of town. The respondent and his wife attended a dinner and wine tasting at the local country club that same evening. They left the club at approximately 9 p.m. On the drive home, the respondent failed to negotiate a curve, which resulted in a single car accident. The respondent and his wife were taken to the hospital, where the respondent was treated and released. The respondent’s wife was hospitalized briefly for minor injuries but has since fully recovered. The respondent’s blood alcohol was tested at the hospital and his BAC measured .115. A second test measured his BAC at .105. The respondent was charged with DUI and careless driving. Because his wife was injured in the accident, the respondent also was charged with vehicular assault. The respondent pled guilty and was convicted of DUI and careless driving. The assault charge was dismissed. This is the respondent’s first alcohol-related incident. The respondent timely self-reported his conviction.

Rule Implicated: The rule implicated is Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with court sentence.

__________________

The respondent was arrested on multiple charges, including solicitation of prostitution, a third-degree misdemeanor. The respondent pled guilty to solicitation of prostitution, and the remaining charges were dismissed. The respondent was sentenced to one year of adult probation, as well as payment of costs.

Rule Implicated: The rule implicated is Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School.

__________________

The respondent pled guilty to misdemeanor trespassing. The respondent was sentenced to a six-month period of probation, and ordered to pay fees and costs associated with the criminal case and to undergo anger management classes.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and comply with court sentence.

Rule Implicated: The rule implicated is Colo. RPC 8.4(b).

© 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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