The Colorado Lawyer
Vol. 35, No. 10 [Page 129]
© 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 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
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, the ARC or some other entity must approve the agreement.
From May 19, 2006 through August 17, 2006, at the intake stage, Regulation Counsel entered into nine Diversion Agreements involving ten requests for investigation. ARC entered into six Diversion Agreements involving six requests for investigation during this time frame. The PDJ did not approve any Diversion Agreements during this time. ARC issued one private admonition involving one request for investigation during this time period. The PDJ did not approve any private admonitions during this period.
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 may be a law office management audit and/or practice monitor. The time period for a Diversion Agreement generally is 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 OARC. An attorney also may be required to fulfill any of the following conditions:
- law office audit
- practice monitor
- financial audit
- 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 May 19, 2006 through August 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, restitution is paid to redress the harm, or malpractice insurance exists
- fee issues, implicating Colo. RPC 1.5
- trust account issues, implicating Colo. RPC 1.15
- failing to properly withdraw and following court orders, implicating Colo. RPC 1.16 and Colo. RPC 3.4(c)
- criminal conduct, implicating Colo. RPC 8.4(b)
- conduct prejudicial to the administration of justice, implicating Colo. RPC 8.4(d).
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 May 19, 2006 through August 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.
• The respondent was representing a client in a dissolution of marriage action when the client learned his wife had died. At the time of the wife’s death, the respondent was owed $130.74 for work associated with the dissolution case. On or about October 13, 2003, the client retained the respondent to represent him to probate the estate of his deceased wife. From October 14, 2003 through June 24, 2004, the client paid the respondent $1,750. On several occasions, the respondent sent separate invoices to the client in the dissolution and probate matters.
Over the course of the representation, the client asked the respondent to prepare documentation proving that he was the representative of his deceased wife’s estate. The client asserted that he needed this documentation to obtain information about his deceased wife’s assets and liabilities. On March 4, 2004, the respondent provided the client with a letter (authored by the respondent), stating that the client was "the heir and executor of her estate according to Colorado law." The client attempted to use this letter to obtain credit and other information about his deceased wife. The letter was not recognized by at least one credit agency, and the client was asked to provide a copy of the death certificate and "acceptable documentation stating that [he was] authorized to act on the late consumer’s behalf."
On or about May 6, 2004, the respondent prepared and had the client sign an affidavit that he was the "successor of" his deceased wife, and that he was "entitled to the payment of any sums of money due and owing the decedent." The client was unable to use the affidavit to gather the information he was seeking about assets and liabilities of his deceased wife. At no time did the respondent file any petition or pleading in any court to open an estate or have the client appointed as the personal representative of the estate of his deceased wife. The client asserts that the respondent told him at some point that the probate had been finalized, and that there were no court or other documents to provide to him. The respondent asserts that this was a "small estate proceeding," that he believed "that no ‘formal letters’ are issued and that the declaration of small estate is sufficient for a personal representative who is the spouse to act on someone’s behalf in an estate.
On December 14, 2004, the respondent sent the client an invoice showing that the client had a $449.26 credit in his account. On March 6, 2006, the client wrote to the respondent inquiring about several issues related to the estate. In that letter, the client specifically inquired about the status of his account and the unearned balance of his retainer. The respondent did not reply to the client’s March 6, 2006 letter.
After the client filed a request for investigation with the ARC, the respondent refunded $449.26 to the client on June 23, 2006. Over the course of the representation, the respondent charged the client $1,102.50 to write letters, prepare the affidavit and respond to issues raised by the client in the estate matter. The respondent had malpractice insurance at the time he represented the client.
Rules Implicated: The rules implicated are Colo. RPC 1.1; Colo. RPC 1.3; Colo. RPC 1.4(a); and Colo. RPC 1.5(a).
Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall refund the fees for the probate case to the client and attend Ethics School.
Diligence and/or Failure to Communicate
• In 2001, the court appointed the respondent to represent Defendant A on a Rule 35(c) post-conviction matter. The respondent filed the Rule 35(c) motion, but the court denied it on August 21, 2002. The respondent told Defendant A that the respondent would appeal the denial. On October 4, 2002, the respondent filed the notice of appeal. The court later issued a show cause order, asking why the trial court record had not been filed. The respondent did not file the record or respond to the show cause order. The court dismissed Defendant A’s appeal and closed the case. The respondent did not inform Defendant A about the dismissal. The respondent’s firm has offered to work with Defendant A to file a motion to reinstate the case.
In 2003, the court appointed the respondent to represent Defendant B on an appeal. The notice of appeal was filed on June 9, 2003. The deadline for filing the lower court record was September 12, 2003. On January 23, 2004, the court noted that the respondent had not yet filed the lower court record and issued a show cause order. The respondent did not file the court record or respond to the show cause order. On March 3, 2004, the court dismissed Defendant B’s appeal based on the failure to file the court record and failure to respond to the show cause order. The respondent did not inform Defendant B about the dismissal. The managing attorney for the respondent’s firm visited Defendant B in prison, explained what had happened with the appeal, and offered to assist Defendant B in having his case reinstated. The respondent has been diagnosed with and is presently being treated for severe depression and diabetes.
Rules Implicated: The rules implicated are Colo. RPC 1.3; Colo. RPC 1.4; and Colo. RPC 3.2.
• The respondent was hired by the client in May 2004 to establish paternity and child support on behalf of the client’s minor child. Paternity was established and an agreement and stipulation were reached with the opposing party in July 2005. The court ordered the respondent to prepare a stipulation and order to submit for execution to the pro se opposing party and to the client. The client executed the stipulation and returned it to the respondent in August 2005.
Between August and December 2005, the client made numerous attempts, via telephone and e-mail, to contact the respondent regarding the status of the child support stipulation and payments. The respondent did not communicate with the client from August 2005 to December 2005, and the eventual communication was precipitated by the filing of the request for investigation. Upon receiving no communication from the respondent, the client contacted the court to find out the status and was informed the stipulation had not been filed. In April 2005, subsequent to the client contacting the OARC, the respondent secured an order from the court for child support of $495.29 per month and an arrearage of $5,719. The respondent admits he did not adequately communicate or take the necessary action to properly represent the client between August and December 2005.
Rules Implicated: The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
• The respondent represented the wife in a divorce and custody dispute. Temporary orders were held in July, and provided that the husband was to have supervised parenting time. Although an exact date was not specified by the court, the respondent was ordered to prepare the written order. When the respondent failed to file the orders within a reasonable amount of time, opposing counsel filed a motion for an order to show cause, because the husband could not exercise his parenting time without the court order. The respondent filed a proposed order in October, and the court approved it when it was filed.
Rule Implicated: The rule implicated is Colo. RPC 1.3.
Fees/Trust Account Issues
• The respondent’s bank reported an overdraft on the respondent’s COLTAF trust account. The check was paid by the bank, leaving the account in a negative status. The respondent paid this check to himself, believing he had funds on retainer for his client that represented those funds, when in fact he did not. During January 2006, on five occasions the respondent paid himself regarding this same client. The respondent never realized that the client’s retainer had been exhausted after the second payment and continued thereafter to write three more checks to himself.
Rules Implicated: Colo. RPC 1.15(a) and (h).
Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall have financial monitoring.
• The respondent’s bank reported an overdraft on a COLTAF trust account belonging to the respondent. The respondent accepted a check on behalf of his client in the amount of $1,070. This check represented a retainer fee and was deposited into the respondent’s trust account. This check was returned for non-sufficient funds. The respondent paid $7,200 as a child support payment on behalf of another client. This payment left the respondent’s trust account in a negative status. The respondent had paid himself from the first client’s funds. The respondent took these payments as cash withdrawals from his account. The respondent failed to provide an adequate account reconciliation or client ledger for his client. The respondent failed to wait to take funds until the retainer check had cleared and the funds were available.
Rules Implicated: Colo. RPC 1.15(a) and (h).
Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend trust account school.
Declining or Terminating Representation
• Following his client’s criminal conviction, the respondent filed a notice of appeal in the Court of Appeals. Thereafter, the respondent and his client parted ways, but the respondent failed to withdraw from the appellate case. The Court of Appeals issued an order to show cause why the appeal should not be dismissed for failure to file the record. The respondent did not respond. The Court of Appeals ordered the respondent to respond to the show cause order or the court would take further action. The respondent did not respond. The respondent was given five days to comply with the order or be removed from the case. The respondent did not respond. By order dated January 10, 2006, the respondent was removed as counsel, and the case was referred to the Public Defender to determine whether the appellant was eligible for representation by his office.
Rules Implicated: Colo. RPC 1.16(a)(3) and Colo. RPC 3.4(c).
• The respondent was arrested and charged with violation of CRS § 42-4-1404 (careless driving) and CRS § 42-4-1301(1)(a) (driving under the influence). The respondent submitted to a blood test, which resulted in a blood alcohol content ("BAC") reading of 0.224. The respondent entered a plea of guilty to CRS § 42-4-1310(1)(b) (driving while ability impaired). The respondent was sentenced pursuant to the guilty plea. This is the respondent’s first alcohol-related conviction.
Rule Implicated: 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 the court sentence.
• The respondent was involved in a one-vehicle accident. The respondent lost control of his vehicle on a curve, driving the vehicle off the road and striking metal posts on a walking/biking trail. The vehicle ended up in a drainage ditch. The respondent acknowledged that he had been drinking alcohol before driving the vehicle, but refused to submit to blood alcohol testing. The respondent then began outpatient alcohol treatment, which included a self-monitored Antabuse program. He also was seeing a psychiatrist for ongoing issues, including panic attacks and anxiety. The respondent pled guilty to DWAI. The respondent was sentenced to serve thirty days of in-home detention and twelve months of unsupervised probation, and to complete the outpatient treatment/therapy program that he started. The respondent remains in the outpatient treatment program, and continues to be seen by the psychiatrist for other mental health issues. This is the respondent’s second alcohol-related offense.
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, comply with court sentence, be monitored on Antabuse for six months and unmonitored for the remaining eighteen months, and continue outpatient treatment and treatment with the psychiatrist.
• The respondent’s car was observed weaving and driving with its headlights off. When the deputy stopped the respondent’s car, he noticed an odor of alcohol and asked the respondent how much he had had to drink. The respondent stated he drank two beers. The respondent was unable to find his driver’s license or insurance Information The respondent agreed to perform roadside sobriety tests but was unable to satisfactorily perform them. The deputy arrested the respondent on suspicion of DUI. The respondent agreed to take a breathalyzer test, which measured his BAC at .220. On retest, the respondent’s breath test measured .223. The respondent pled guilty to DUI. This was the respondent’s first alcohol-related conviction.
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall comply with court sentence, comply with the recommendations of his psychiatrist, and attend Ethics School.
• The state patrol was notified of a multiple-car accident. The officer on scene found the respondent had driven her car into a parked, empty truck, and continued down the street onto the sidewalk. The respondent then backed up her car and hit another parked car. Paramedics took the respondent to the hospital. The respondent told the state patrol officer she could not remember what happened. The officer detected alcohol on respondent’s breath and asked her about it. The respondent stated she had a few beers. When the respondent could not satisfactorily perform sobriety tests, the officer arrested her on suspicion of DUI. The respondent provided a blood sample, which measured her BAC at .178. The respondent pled guilty to driving while ability impaired by alcohol. This was the respondent’s first alcohol-related conviction. The respondent was evaluated by a medical professional who found the respondent meets the criteria for a diagnosis of alcohol dependence.
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, comply with court sentence, comply with recommendations of evaluator, abstain from use of alcohol, and be monitored by sobriety tests.
• The respondent was convicted of driving while ability impaired. The reporting sheriff’s officer who had been dispatched to the incident observed the respondent standing behind the pickup truck that was nose first in a ditch. The respondent told the officer that he missed his driveway by approximately 100 feet. The officer asked the respondent to perform a roadside sobriety test, which he declined. A subsequent test of respondent’s BAC showed that it was .260 percent. The respondent has no prior drinking and driving offenses. An independent medical examination was performed. This is the respondent’s first alcohol-related offense.
Rule Implicated: 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, attend Alcoholics Anonymous meetings on a weekly basis or be seen by a psychologist or other licensed therapist; abstain from the use of alcohol and/or other mood altering substances; and undergo random urinalysis for alcohol and/or other mood altering substances.
Conduct Prejudicial to the Administration of Justice
• The respondent was an hour late to a client’s court proceeding. When he appeared, opposing counsel informed the court she believed the respondent was drunk. The magistrate observed that the respondent smelled of alcohol, his appearance was not good, and his speech was not clear. The respondent refused to do a preliminary breath test. The court found the respondent was intoxicated and, thus, in contempt of court. The respondent was sentenced to one day in jail for his contempt. Through the course of the disciplinary proceedings, the respondent underwent an independent medical examination and was diagnosed as alcohol-dependent.
Rule Implicated: Colo. RPC 8.4(d).
Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, participate in an intensive outpatient program for alcoholism, and participate in monitored use of Antabuse.
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