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

The Colorado Lawyer
April 2007
Vol. 36, No. 4 [Page  105]

© 2007 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Colorado Disciplinary Cases

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. Visit
http://www.coloradosupremecourt.com/Regulation/Regulation.asp.


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 November 19, 2006 through February 19, 2007, at the intake stage, Regulation Counsel entered into five Diversion Agreements involving seven requests for investigation. ARC entered into six Diversion Agreements involving seven requests for investigation during this time frame. The PDJ did not approve any Diversion Agreements during this time frame. ARC did not approve any private admonitions during this time frame. The PDJ approved one private admonition 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 such as 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 shorter than one year and no longer 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
  • CLE course attendance
  • 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 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
  • communication with persons represented by counsel, implicating Colo. RPC 4.2
  • 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 November 19, 2006 through February 19, 2007. 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

> The respondent filed a petition to seal arrest and criminal records on behalf of his client when he should have known that the petition he filed contained a false statement. The attorney falsely stated that no one other than the petitioner required medical attention when, in fact, the petitioner needed no medical attention and the victim was treated at an emergency facility for her injuries. The respondent neglected to check the facts. In a separate matter, the attorney failed to advise his client, who had two prior DWAI convictions, that by pleading guilty to a third DWAI, she would have her driver’s license revoked for two years.

Rules Implicated: Colo. RPC 1.1 and Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and attend a CLE course on DUI defense.

Diligence and/or Failure to Communicate

> The respondent agreed to represent a client in a divorce case and in criminal matters involving allegations of domestic violence and violations of a protection order. The respondent entered his appearance in the criminal matters on February 8, 2006. On that date, he requested a continuance of the matter to allow him time to review pertinent materials in the cases. On March 15, 2006, the respondent appeared for a pre-trial conference in the criminal cases. A not-guilty plea was entered that day. The court established a deadline for motions to be filed and scheduled a motions hearing in the case.

Thereafter, the respondent failed to file motions by the deadline established by the court and failed to appear for several scheduled court dates in the case. Also, the court ordered the respondent to take action to set the matter for trial, but respondent failed to do so.

On July 25, 2006, the court issued an order to show cause why the respondent should not be held in contempt for failing to appear at a scheduled hearing in the case. The court scheduled a hearing for August 8, 2006 on the order to show cause. On August 8, 2006, the respondent appeared for the court hearing and apologized to the court and to his client for failing to appear at other scheduled hearings in the case. The court discharged the citation at that hearing, after which the client terminated the respondent.

On September 1, 2006, the respondent refunded a significant sum of money to his client. The refund exceeded the amount that the respondent charged for work on the criminal cases.

Rules Implicated: Colo. RPC 1.3 and Colo. RPC 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and have a law office audit.

__________________

> The respondent was retained to handle an appeal for a client. The client was found guilty of violating a municipal ordinance and she decided to appeal. The client filed a notice of appeal pro se with the district court. The client retained the respondent to handle the appeal. The client paid the respondent a modest retainer. The clerk of the municipal court sent notice to the client that the record on appeal was ready. The district court issued a briefing schedule. The district court received the record on appeal. The respondent did not learn that the record on appeal was ready or that the district court had issued a briefing schedule.

About three months later, the district court issued a delay prevention order, giving the client a deadline by which to file her appeal brief or face dismissal. The client forwarded this order to the respondent. He did not timely file the appeal brief.

The city filed a motion to dismiss, based on the client’s failure to timely file her appeal brief. The city mailed a copy of the motion to the respondent, correctly addressed. The respondent did not file a response. The district court dismissed the appeal. The respondent filed a motion for extension of time to file the appeal brief. The court granted the motion, giving the respondent an additional thirty days to file the appeal brief.

The respondent researched, prepared, and attempted to electronically file the appeal brief. For reasons unknown to the respondent, the district court did not receive the electronically filed appeal brief. The respondent did not follow up to learn whether his electronic filing of the brief had been received. The respondent did not inquire of the city why he did not receive its answer brief. The respondent did not notice that he had not received an invoice from Lexis® for the electronic filing. The respondent took no further action on the appeal and did not move to withdraw.

After a number of months, the district court dismissed the appeal. The client terminated the respondent’s services. The respondent returned a portion of her retainer.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and refund the remaining portion of the retainer to the client.

__________________

> The client alleged that the respondent neglected her divorce matter and retained unearned fees after she terminated him. The client hired the respondent in June 2005 and executed a written, hourly fee agreement under which the respondent was to be paid $125 per hour. The client paid respondent a $1,000 retainer in two payments of $500 each. The respondent filed the client’s divorce petition in July 2005 in the wrong jurisdiction and did not effectuate proper service on the client’s spouse. While the client’s spouse did not object to the improper service, he did successfully request that the case be transferred to the appropriate jurisdiction. The client and respondent had very little contact between September 1, 2005 and December 8, 2005. Other than attend an at-issue conference, the respondent took no further action on the client’s matter prior to the client’s termination of him in late December 2005.

During their first meeting in December 2005, the client asked for an accounting of the retainer she already had paid, as well as a copy of the divorce petition the respondent filed with the court. The respondent did not provide the complainant with either. The client then fired the respondent in late December and requested a refund of $500 from her $1,000 retainer. The respondent refunded $500 to her that day. He also gave the client a copy of her file, but the file did not contain an accounting of the time he alleges he spent working on her case.

A week later, the client phoned the respondent and asked that he return the additional $500 she initially paid toward her retainer. The respondent objected, stating that he had performed more than $500 worth of work on her matter. Thus, he refused to refund the remaining $500 retainer. However, he failed to provide the client with an accounting of work performed and/or fees earned.

The respondent then closed his private practice and failed to report his new work and home address to the Office of Attorney Registration within thirty days of his move, as required.

Rules Implicated: Colo. RPC 1.3; Colo. RPC 1.4(a); Colo. RPC 1.4(b); Colo. RPC 1.15(b); and Colo. RPC 1.15(b).

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

Fees/Trust Account Issues

> The respondent and other attorneys represented numerous plaintiffs in a mass-joinder lawsuit. The attorneys entered into fee agreements with only twenty to twenty-five of the plaintiffs. These fee agreements did not conform to the rules of civil procedure.

The respondent did not withdraw after he was no longer actively involved in the case. The respondent was not the lead counsel and was inexperienced in the practice of law.

Rules Implicated: Colo. RPC 1.5(b.); Colo. RPC 1.5(c); Colo. RPC 1.5(d); and Colo. RPC 1.16(d).

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

__________________

> The respondent was hired to pursue a civil complaint. The client paid a retainer to the respondent and, upon termination of the attorney-client relationship, requested an itemized accounting and a refund of the unearned retainer. The client alleges that for approximately four months, the respondent failed to return phone messages or have any communication with the client. When the respondent ultimately provided an itemized accounting and a refund of the unearned retainer, the unearned retainer was paid with an operating account check.

The respondent advised the OARC that he was unaware that he needed to keep COLTAF funds and operating accounts funds separate. The respondent said he never wrote checks from the COLTAF account, but would transfer funds into the operating account and write checks regarding client funds in that manner.

The respondent also represented the client in a separate criminal matter. The client paid the respondent a $5,000 retainer. The representation commenced and continued through trial. The respondent used a portion of the retainer to pay costs associated with the trial and appeal.

During the course of the trial, the respondent was sanctioned for violating an order relating to C.R.E. 404(b). The client paid the $1,000 sanction on behalf of the respondent. The respondent asserts that the payment was voluntary and was credited to the outstanding balance for services rendered to the client for the criminal case.

On or about October 4, 2006, the respondent sent his client a full accounting. This accounting demonstrates that the client’s bill was credited for the $1,000 paid to satisfy the sanction imposed by the court.

Rules Implicated: Colo. RPC 1.4; Colo. RPC 1.15(a); Colo. RPC 1.15(b); Colo. RPC 1.15(c); Colo. RPC 1.15(f); and Colo. RPC 3.4(c).

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

__________________

> The respondent practices bankruptcy law and was retained by a client to file a bankruptcy petition. At that time, the respondent charged clients a flat fee of $895 for these types of filings ($650 flat legal fee and an additional $209 for the bankruptcy court filing fee). It also was the respondent’s policy at that time to place all flat fee retainers into the professional account, instead of the COLTAF account.

The client began making installment payments to the respondent, because the client could not pay the entire fee upfront. The respondent agreed to file the client’s petition after he paid his entire fee and cost retainer. The client made several installment payments to the respondent, then changed his mind about declaring bankruptcy and requested that the respondent return his unearned retainer fee. The respondent returned $200 by check, which was written from the professional account. That check was returned to the client for insufficient funds. The respondent immediately refunded the original $200, plus $5 for a processing fee charged to the client for the returned check.

The respondent later discovered that the client had provided the respondent approximately $500 in cashier checks that were never cashed. The respondent returned those checks to the client, as well. These two refunds left a retainer balance of $100 that the respondent characterized as "nonrefundable" fees. After receipt of the client’s grievance and review of the rules prohibiting attorneys from designating unearned fees as "nonrefundable," the respondent returned the remaining $100 to the client.

Rules Implicated: Colo. RPC 1.15(a); Colo. RPC 1.5(b); Colo. RPC 1.5(f); and Colo. RPC 1.16(d).

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

Communication With Person Represented by Counsel

> The respondent represented a client in a criminal case in Denver District Court. A co-defendant was represented by other counsel. The respondent was aware that the co-defendant was represented by counsel. During the pendency of the case, the co-defendant made statements to the District Attorney’s Office as part of, and in compliance with, the terms of a plea agreement with the District Attorney’s Office. Also during the pendency of the case, the respondent’s client informed the respondent that the co-defendant had discharged her counsel and was no longer represented.

At some point, the co-defendant appeared unannounced at the office of the private investigation firm the respondent had retained to assist in the investigation and defense of his client. The co-defendant indicated to the private investigator that she was there to "correct" statements previously given to the District Attorney’s Office. The investigator’s office contacted the respondent and advised him that the co-defendant was present and wished to give a recorded statement. The respondent instructed the investigator to make sure that the co-defendant was no longer represented and, if not, to proceed with the interview/statement. The co-defendant verified to the investigator that she was no longer represented. The respondent’s investigator took a recorded statement from the co-defendant. At the time the co-defendant appeared at the respondent’s investigator’s office, she was still represented by counsel. Other than asking the co-defendant about the status of her counsel, neither the respondent nor his agent contacted the co-defendant’s counsel or the court to determine if she was still represented by counsel.

Rules Implicated: Colo. RPC 4.2 and Colo. RPC 5.3.

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

Conduct Prejudicial to the Administration of Justice

> The respondent was held in contempt for not appearing in court when required and disobeying court orders in nine matters. The judge did not impose sanctions, but he stated, in part:

Nevertheless, this Order ought to serve as a clear, unequivocal expression of concern to the Respondent that the conduct described above is inappropriate and cannot be replicated in the future. If it is, the Respondent can anticipate that the affected parties may ask the court to assess punitive sanctions, or remedial sanctions or both. It is the Court’s hope that the description of the behaviors in this Order will serve to help the Respondent contour a corrective plan so that he complies with Court orders and appearance dates. He testified that he plans to do so, and the Court is confident he can succeed.

About six months after the order of contempt, a magistrate issued an order finding the respondent in contempt of court for failing to appear at a hearing relating to two minor children in an expedited permanency plan proceeding, and failing to seek a continuance of the hearing. The magistrate found that the respondent’s behavior prejudiced the two minor children, the petitioner, and the Department of Social Services in their efforts to fulfill the statutory mandate of expedited permanency for the subject children, and unjustifiably delayed the administration of justice. The magistrate ordered the respondent to pay attorney fees and costs incurred by the county attorney and the Department of Social Services, limited to the preparation and participation in the contempt proceedings. The respondent eventually paid all the fees and costs ordered by the court.

Rule Implicated: Colo. RPC 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, have a practice audit, and comply with all recommendations made by the practice auditor, and is subject to up to two subsequent 120-day reviews by the practice auditor to determine whether the recommendations made in the audit have been followed and whether any further changes need to occur.

__________________

> The respondent appeared with his client, a juvenile, for a sentencing hearing before the complaining witness, a magistrate. The magistrate suspected that the respondent was under the influence of alcohol. She called the alcohol unit to test the respondent. The technician arrived and performed a breathalyzer test on the respondent. The test showed that the respondent’s blood alcohol content was above the legal limit. The magistrate found the respondent in direct contempt of court based on his having appeared under the influence of alcohol. She ordered him to spend the night in the county jail.

Rules Implicated: Colo. RPC 8.4(d) and Colo. RPC 8.4(h).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall have an alcohol evaluation, comply with the recommendations of the evaluator, provide monthly reports to the OARC, abstain from the use of alcohol or any other mood altering substance, unless such substance is prescribed by a duly licensed Colorado physician, and attend Ethics School.

__________________

> The respondent engaged a court reporting service to provide services to him in several cases. From September 2003 through September 2005, the court reporting service sent invoices to the respondent for services that were rendered on various dates in those cases. The respondent’s bookkeeper received those invoices but failed to pay each invoice. From October 2005 through March 2006, the respondent’s bookkeeper made several promises to pay the unpaid invoices. In February 2006, the court reporting service received a partial payment that covered a small portion of the overall bill. In April 2006, the court reporting firm wrote to the OARC about the unpaid invoices. After inquiry by the OARC about the unpaid invoices, the respondent paid the entire debt to the court reporting service.

In another matter, the respondent engaged the services of a court reporting firm to record various depositions. In addition, the respondent ordered from the court reporting firm transcripts of those depositions. The court reporting firm performed the services requested. The depositions were taken and recorded. The court reporting firm sent invoices for professional services to the respondent on October 11, 2005 and December 15, 2005. The court reporting firm made additional communications to the respondent, in attempts to collect on the outstanding invoices (facsimile of outstanding invoices and correspondence dated December 5, 2005; correspondence to the respondent dated December 15, 2005; correspondence to the respondent dated January 17, 2006; correspondence to respondent dated February 8, 2006). The respondent did not pay the invoices or respond to the above-listed correspondence until September 13, 2006.

Rules Implicated: Colo. RPC 8.4(d) and Colo. RPC 5.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall have a practice audit.

Private Admonition

> The respondent did not refund unearned fees to a client in a timely manner. The respondent has now refunded the money.

Rule Violated: Colo. RPC 1.16(d).

© 2007 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=2007.


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