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TCL > January 2007 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

January 2007       Vol. 36, No. 1       Page  117
From the Courts
Colorado Supreme Court Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

Disciplinary Case Summaries for
Matters Resulting in Diversion and Private Admonition

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 August 18, 2006 through November 18, 2006, at the intake stage, Regulation Counsel entered into ten Diversion Agreements involving twelve requests for investigation. ARC entered into seven Diversion Agreements involving eight requests for investigation during this time frame. The PDJ did not approve any Diversion Agreements during this time frame. ARC issued two private admonitions involving seven requests 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 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 and 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 that are conducted by attorneys from the OARC. An attorney may also 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 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 August 18, 2006 through November 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
  • failing to properly withdraw, implicating Colo. RPC 1.16
  • failing to follow court orders, implicating Colo. RPC 3.4(c)
  • criminal conduct, implicating Colo. RPC 8.4(b)
  • conflict of interest, implicating Colo. RPC 1.7
  • 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 August 18, 2006 through November 18, 2006. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct (Colo. RPC) implicated, and the corresponding conditions of the Diversion Agreement.

Competence/Withdrawal

The respondent was retained by the client in an employment matter. The filing deadline for the client’s case was July 29, 2005. On August 5, 2005, the respondent told the client that the respondent failed to docket the client’s case on time. The respondent advised the client that he may have a malpractice claim and suggested the client contact another attorney. The client hired a malpractice attorney shortly thereafter. The client’s malpractice attorney called and wrote the respondent requesting the file and the client’s personal notes. The respondent did not respond to any of the requests. In March 2006, the client filed a request for investigation with OARC, because the client still had not received his file or any response from the respondent. By letter dated April 10, 2006, the respondent admitted to OARC that he failed to file the client’s lawsuit within the statute of limitations. The respondent did not explain his failure to respond to the client’s file requests. In mid-May, OARC again wrote to the respondent, requesting that the respondent arrange the transfer of the client’s original file and documents to client or client’s malpractice counsel. On June 6, 2006, the respondent’s insurance carrier sent the client a copy of the file.

Rules Implicated: Colo. RPC 1.1; Colo. RPC 1.2(a); Colo. RPC 1.4(a); and Colo. RPC 1.16(d).

Diligence and/or Failure to Communicate

On April 7, 2005, the respondent was present in court when his client’s case was set for trial on June 16, 2005. Neither the respondent nor the client appeared for trial on June 16, 2005, and the court was unable to contact the respondent. A Bench warrant was issued for the respondent’s client. The case was set for disposition and a show cause hearing, and the client was sentenced on July 14, 2005. On September 16, 2005, the respondent requested additional time for his client to attend a conflict management class, which was to have been completed by September 15, 2005. On September 23, 2005, the court administrator mailed a notice of hearing to the respondent’s office. The hearing was set for November 3, 2005, and the respondent and his client failed to appear. The court was again unable to contact the respondent. A Bench warrant was issued for the respondent and his client. On November 7, 2005, the respondent called the court and said his paralegal had left and that the notice of hearing was not in the file. The show cause ultimately was vacated as to the respondent.

In another matter, the respondent represented complainant’s 17-year-old son in a felony menacing case. The respondent charged a flat fee of $1,500 for the representation and did not provide a fee disclosure as required by Colo. RPC 1.5(b). The respondent filed a motion to withdraw on February 23, 2006. The respondent failed to provide an accounting until OARC asked him to do so. The itemized accounting indicated that the respondent had earned $4,700 on an hourly fee basis. The respondent ultimately wrote off the $3,200 balance.

In a third matter, the respondent represented a client in a personal injury claim that was settled in January 2006 for $19,000. The respondent did not provide the client with a settlement disbursement statement pursuant to Chapter 23.3 of the Colorado Rules of Civil Procedure. The disbursement statement the respondent provided to the OARC was not executed by the client. Following settlement of the personal injury complaint, the client requested the disbursement statement and her file contents from the respondent, but he failed to provide the requested file or any settlement documents. The respondent only provided the settlement documents following inquiry and investigation by OARC.

Rules Implicated: Colo. RPC 1.3; Colo. RPC 1.4; Colo. RPC 1.5(b); Colo. RPC 1.15(b); Colo. RPC 1.16(d); and Colo. RPC 8.4(d).

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

__________________

A client sought advice and representation from the respondent in a small claims lawsuit that was filed against him. The client asserts that respondent assured him she would take action to represent him in the lawsuit and to remove the matter to county court.

The respondent asserts that she asked the client to sign a fee agreement and to pay a retainer fee prior to any representation in the lawsuit. The respondent does, however, acknowledge that she agreed to take action on behalf of the client to contact opposing counsel and discuss removal to county court without having the fee agreement and retainer taken care of first. The respondent contacted counsel about the underlying lawsuit.

The client did not sign a fee agreement and did not pay any advance retainer. The respondent did not clarify whether the client wanted her to take any further action on his behalf. The respondent did not take any action to respond to the lawsuit or take any other action on the client’s behalf.

Default judgment entered against the client. When the client learned of the default judgment, he notified the respondent and asked her to take action to protect his interests. The respondent asserts that she again told him of the need for a meeting to discuss the underlying issues. The respondent took no further action. The client contacted OARC with concerns about the respondent’s handling of the case. After the OARC contacted the respondent, she entered into a settlement with the client.

Rules Implicated: Colo. RPC 1.3 and Colo. RPC 1.4(a).

__________________

During the course of representing a client in a collections matter, the respondent failed to communicate with the client and neglected the matter, which resulted in the case being dismissed. The client hired new counsel and the matter was settled.

Rules Implicated: Colo. RPC 1.3 and Colo. RPC 1.4.

__________________

The respondent was hired by a client regarding an application for asylum. The client alleged that if he was forced to return to Ethiopia, he would be tortured. The respondent handled the trial of this matter in front of an immigration judge. The immigration judge determined that the client would not be tortured if he was returned to Ethiopia.

The respondent filed for the client, without payment of attorney fees, an appeal of the immigration judge’s ruling to the Bureau of Immigration Appeals. The client requested the respondent to commit to writing a brief without payment. The client had not paid for the appeal or the appeal brief and, to protect the client’s rights to file the appeal brief, the respondent filed a motion for extension of time without payment. He was granted time to file the appeal. When the client paid for the brief, the respondent stated that the client agreed that the respondent would not be able to file the appeal by the deadline because it would take considerable time to draft the brief, and the respondent had a lot of other cases he was working on with briefs due. The respondent claims that the client understood this and still paid him to do the appeal and file it late. The respondent states that his client’s goal was to delay the order of deportation that the immigration judge had entered after the asylum trial, and the only effect of the late filing of the brief was to delay the client’s deportation.

The respondent filed the appeal brief and it was denied. The respondent was hired later to do an appeal to the Tenth Circuit. The respondent completed the client’s petition, including an opening brief, which was denied. The respondent understands that a client cannot waive the lawyer’s obligation to be diligent and that when a client pays for a service, the service must be rendered by the attorney within the applicable deadlines, even considering the attorney’s work schedule and the desire of the client to delay his removal as much as possible.

Rules Implicated: Colo. RPC 1.3 and Colo. RPC 1.16(a)(1).

Conflict of Interest

The respondent was retained by three siblings to help administer an estate. The three siblings were the sole beneficiaries of the estate. On the same date he was retained, the respondent executed a fee agreement with each of the beneficiaries. One of the three beneficiaries was appointed as the personal representative. The respondent believed he could represent both the personal representative and the other two beneficiaries in the estate matter.

A dispute arose between one of the beneficiaries and the personal representative. The complainant beneficiary retained private counsel and made allegations of misconduct against the personal representative. Subsequent to the beneficiary retaining new counsel, his attorney advised the respondent that an ethical conflict of interest existed. The respondent ultimately withdrew from the representation.

The respondent remitted a bill for services rendered, and was paid the sum of $2,005.50 during the time he knew or should have known that a conflict of interest existed between the personal representative and the beneficiary, who were both clients at the time. The respondent has agreed, as a term of this Diversion Agreement, to disgorge the $2,005.50. Those fees are to be refunded to the estate. The respondent is required to report the status of the refund within thirty days from the date of the agreement.

Rule Implicated: Colo. RPC 1.7.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and refund $2,005.50 to the estate.

Fees/Trust Account Issues

The respondent’s bank reported an overdraft on an account designated as an attorney trust account belonging to the respondent. The respondent is in the process of moving out of state and contemplated completing her move by the end of June or July 2006. In late 2005, the respondent closed her office account. During the winter and spring of 2006, the respondent was winding down her law practice. The trust account remained open and was being used as both an office and trust account. At the time of the overdraft, the respondent was in the process of settling or had settled four to five personal injury cases.

The respondent’s practice was to prepare a disbursement statement at the time the settlement was agreed to, not at the time the funds were actually paid to her client. The respondent then would take her earned fees from the trust account in a series of cash withdrawals. After the overdraft occurred, the respondent realized she had withdrawn $5,000 from the trust account in error, because she failed to pay $5,043.60 to a medical provider pursuant to a personal injury matter that had been settled. The medical provider has now been paid. Furthermore, the respondent’s disbursement statements contained a notation for "Administrative expenses per fee agreement." This expense was $25 per month and was based on the period of time (in months) that a case remained open in the respondent’s office. However, the respondent’s fee agreements failed to list this expense. When a personal injury settlement was received in more than one payment, the respondent took her total fee from the first settlement check. Her fee agreement failed to provide for this arrangement.

Rules Implicated: Colo. RPC 1.15(a) and (f) and Colo. RPC 1.5.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, attend Trust Account School, and have an audit of the trust account.

Disobeying an Obligation Under the Rules of a Tribunal

The respondent is a Colorado attorney subject to a court order from another state to pay child support on behalf of a minor child. The respondent periodically failed to comply with the court order for child support during 2004 and 2005, and accrued child support arrearages at various times. When he completed his Attorney Registration form, dated December 24, 2005, the respondent inadvertently certified that he was not in compliance with the child support order when, at that time, he was in compliance. The respondent currently is in compliance with the child support order and has paid all arrearages. Further, the order will vacate within the next year, as the minor child will become emancipated.

Rule Implicated: Colo. RPC 3.4(c).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and provide quarterly reports verifying compliance with the ongoing support order.

Communication Ex Parte

The respondent sent an e-mail correspondence to a county court judge. The respondent made reference to specific facts and circumstances pertaining to two cases the judge presided over. In the e-mail, the respondent questioned the judge about the legal authority for his decisions in each case. The judge presided over a hearing in one of those cases the day before the date of the e-mail correspondence. The judge presided over a hearing in the other case prior to the date the e-mail was sent.

The respondent’s office represented one of the parties in each case. The respondent did not send a copy of his e-mail to opposing counsel in either case.

Rule Implicated: Colo. RPC 3.5(b).

Criminal Conduct

The respondent was involved in an automobile accident. The respondent was driving a vehicle and crossed the center line on the road, striking a vehicle in the oncoming lanes of traffic. The accident resulted in damage to the two vehicles involved in the accident. It was determined that the respondent had been drinking alcohol prior to the time of the accident. The respondent’s blood alcohol was measured at .184 at the time of, or shortly after, the automobile accident. The respondent pled guilty to driving while under the influence of alcohol and was sentenced to one year of probation; ninety days of jail were suspended for the period of probation. The respondent was ordered to pay a fine and court fees, and was sentenced to perform community service.

Prior to sentencing in the criminal case, the respondent participated in an outpatient alcohol treatment program. Additionally, the respondent sought treatment and therapy through the Colorado Attorney Assistance Program. The respondent successfully completed individual therapy sessions with that provider, but is still subject to aftercare recommendations made by the provider. The respondent is under the ongoing care of a psychiatrist, and takes medication prescribed by the doctor. 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, provide reports and releases, obtain monthly urinalysis or breathalyzer tests, attend Alcoholics Anonymous (AA) meetings, and comply with psychiatrist’s recommendations.

__________________

A state patrol officer stopped the respondent’s car for defective taillights and expired license plate tags. The officer noted that the respondent had alcohol on his breath; slow coordination; thick-tongued speech; and bloodshot, watery eyes. The respondent admitted he had been drinking. When asked to perform roadside sobriety tests, the respondent refused and said he was going home.

The officer asked the respondent to step outside the car. The respondent stated, "No, I will not get out and you can’t make me." The officer again asked the respondent to get out of the car because she was arresting him on suspicion of Driving Under the Influence (DUI). The respondent said he was not getting out, locked his door, and began screaming obscenities at the officer. The officer again asked the respondent to get out of the car. The respondent kept screaming obscenities and threw his car keys in the glove box.

The officer called for backup. The respondent took the keys out of the glove box and put them in the ignition. The officer drew her weapon and instructed the respondent to take the keys out of the ignition. The respondent complied. The officer put her gun away and told the respondent to keep his hands where she could see them. The respondent began yelling obscenities again. The officer continued asking him to get out of the car. The respondent refused, locked the other doors, and started reaching for something on the passenger seat. The officer advised the respondent to keep his hands where she could see them.

Two other officers arrived. One of them drew his gun, approached the respondent’s car and ordered him out. The respondent refused and yelled more obscenities. The other officer kicked in the passenger side window. The two officers dragged the respondent out of the car.

When placed under arrest, the respondent refused to do any drug or alcohol testing, or answer any questions. The respondent was charged with resisting arrest; obstructing a police officer; DUI; and driving with expired license plate tags, defective taillights, and no proof of insurance.

The respondent pled guilty to DUI and received a six-month deferred judgment. The respondent’s sentence required public service and payment of fines and court costs, and prohibited the consumption of alcohol. This was the respondent’s first alcohol-related conviction. Thereafter, the respondent was evaluated by a medical professional, who found respondent presents strong indications of alcohol abuse and possible dependency, as well as a high probability of substance dependency. The evaluator recommended the respondent participate in therapy and AA meetings or the equivalent, and that the respondent indefinitely continue to abstain from drugs and alcohol.

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 doctor’s recommendations, be monitored on Antabuse or have random urinalysis tests, provide monthly written confirmation of compliance, make arrangements with OARC for out-of-state travel, attend intensive outpatient program, attend individual psychotherapy, provide releases, and attend AA meetings.

__________________

The respondent was involved in a verbal dispute/altercation with several persons. The police were contacted and responded to the scene. The respondent was arrested and charged with disturbing the peace and trespass. The respondent entered a plea of guilty to disturbing the peace. The respondent’s plea was entered pursuant to a Motion and Stipulation for Deferred Judgment and Sentence. The court approved and entered an Order for Deferred Judgment and Sentence.

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 and attend ethics school.

Private Admonitions

The respondent was administratively suspended for failing to comply with his continuing legal education requirements and for failing to pay his registration fees. Nonetheless, he continued to have signage at an office building identifying himself as an attorney at law, and continued to identify himself as a lawyer on his voicemail recording.

Rule Violated: Colo. RPC 7.1.

__________________

Over a long period of time, the respondent improperly used his trust account to pay personal expenses, failed to maintain an office account, and did not maintain the required financial records for the trust account.

Rules Violated: Colo. RPC 1.15(f)(1); Colo. RPC 1.15(f)(2); and Colo. RPC 1.15(g).

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