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

July 2007       Vol. 36, No. 7       Page  143
From the Courts
Colorado Supreme Court Office of Attorney Regulation Counsel

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 February 20, 2007 to May 16, 2007, at the intake stage, Regulation Counsel entered into fifteen Diversion Agreements involving sixteen 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 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 (neglect), and the reason for such conduct was poor office management, 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 no greater than three 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
  • 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 from February 20, 2007 to May 16, 2007 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 exists
  • fee issues, implicating Colo. RPC 1.5
  • conflict of interest, implicating Colo. RPC 1.9
  • trust account issues, implicating Colo. RPC 1.15
  • failing to properly withdraw, implicating Colo. RPC 1.16
  • meritorious claims and contentions, implicating Colo. RPC 3.1
  • disobeying an obligation under the rules of a tribunal, implicating Colo. RPC 3.4(c)
  • committing a criminal act, 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 from February 20, 2007 to May 16, 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 entered into a contingent fee agreement with clients to represent them in a declaratory judgment matter involving real property. The respondent represented the clients at trial and on appeal, and per the fee agreement, was entitled to 50 percent of the recovery. As part of the recovery, the clients received royalties for oil and mineral rights on the real property. The respondent improperly drafted quitclaim deeds to convey his portion of the proceeds to himself, pursuant to the contingent fee agreement. Based on confusion regarding the deeds, the oil companies held all disbursement of the proceeds, including those to the client, in suspense.

Rules Implicated: Colo. RPC 1.1 and Colo. RPC 1.8(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and consult with a title attorney regarding the quitclaim deeds the respondent prepared and take all actions recommended by the title attorney to effect the original terms of the contingent fee agreement.

Diligence and/or Failure to Communicate

> The respondent was retained by a client to represent her on a third-degree assault charge for a fixed fee of $1,000 up to trial. The client paid $500 and nothing more. The client also was a party in a dependency and neglect (D&N) case. The respondent did not represent her in the D&N, case although an entry of appearance mistakenly was filed. The respondent filed motions to continue the criminal case; however, they mistakenly were filed in the D&N case. As a result, the respondent failed to appear in court with his client on any of her court dates. The client fired the respondent and received a deferred judgment. The respondent had obtained discovery and spoken with the prosecutor concerning a disposition of the case. Because of the mistakes made by the respondent, including his failure to appear in court, he refunded $149.44 of the $500 that was paid, apologized to the client, and took measures in his office to ensure that similar mistakes are not made in the future.

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

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

> The respondent failed to communicate with the client during the course of representation, including communicating about the fees. In another matter involving the same client, the respondent was in the process of deciding whether to represent the client; in the meantime, the respondent received correspondence from the opposing party, to which he did not respond. The client decided not to hire the respondent for the second matter.

Rules Implicated: Colo. RPC 1.3; Colo. RPC 1.4; and Colo. RPC 1.15.

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and undergo a financial audit.


> The respondent was appointed to represent a client in post-conviction proceedings. Despite numerous attempts to speak with the respondent concerning his Crim.P. 35(a),(b), and (c) motions, the client was unable to do so. The client and the respondent spoke once. The client alleged that during that conversation, the respondent told him that she had not read his motion; the respondent claimed she told the client that she had begun but not yet completed her review of transcripts and was not prepared to discuss anything with him. The respondent mistakenly believed she had been appointed to represent the client only on his 35(c) claim and that the client was proceeding pro se on his 35(a) and (b) motions.

Rule Implicated: Colo. RPC 1.4.

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


> The respondent was retained to represent the client in a criminal case charging him with one count of distribution of cocaine. The client previously had been represented by the public defender. The client also hired the respondent to represent his son in three criminal cases. The client met with the respondent at his office. The respondent told the client that he would represent him for a flat fee of $3,500. The respondent also stated that he would represent the client’s son in his three cases for a flat fee of $3,500. The respondent did not have a written fee agreement in the client’s son’s cases. The client paid the respondent $1,000. He later paid the respondent a total of $4,000 on both cases.

The respondent was late to a bond hearing in the client’s son’s case. The respondent obtained a continuance. He stated that he had worked out an arrangement with the district attorney that the son would be released and given credit for time served. At the next court appearance, the client did not approve of how the respondent appeared or handled himself, and decided to terminate the respondent’s services in all cases. The respondent sent the client a bill for all services. However, the bill was confusing because it did not explain precisely how much time the respondent spent on each service for each clients. The respondent agrees that the bill was inadequate and needed to provide more detailed information about the tasks performed and the time spent on each task to adequately communicate with the client.

The respondent refunded $583.50 to the client before the request for investigation was filed. As a part of this matter, the respondent agreed to refund an additional $1,300 for fees related to a motion to withdraw and a letter to the client after the respondent was fired, among other unreasonable charges. The respondent agrees to have his form fee agreement reviewed, revised, and updated by his attorney. The respondent hired a law firm management consultant to help him get his accounting and bookkeeping in order, and agrees to follow the consultant’s recommendations concerning bookkeeping and trust account management.

Rules Implicated: Colo. RPC 1.4(a); Colo. RPC 1.5(b); and Colo. RPC 1.15(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and Trust Account School, have his form fee agreements reviewed by an attorney, and follow the law firm management consultant’s recommendations.


Conflict of Interest

> One corporation commenced a legal action against another corporation. A business partner of plaintiff corporation contacted the respondent and asked for his opinion regarding the legality of specific action already taken by the plaintiff corporation. After reviewing documents given to the respondent by the plaintiff, including the complaint filed and a legal memorandum prepared by the plaintiff’s in-house counsel, the respondent gave an opinion to plaintiff’s business partner and billed the plaintiff corporation for the opinion. Subsequent to giving this legal opinion to the plaintiff’s business partner, the respondent was contacted by defendant corporation’s counsel and asked if he would take over the case. The respondent agreed to take over the case and entered his appearance on behalf of the defendant corporation. Before a hearing, the plaintiff corporation’s attorney filed a motion to disqualify the respondent, arguing a violation of Colo. RPC 1.9. The court granted the motion to disqualify the respondent, citing a violation of Colo. RPC 1.9.

Rule Implicated: Colo. RPC 1.9.

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 overdrafts on the attorney trust account belonging to the respondent. These overdrafts were caused when respondent’s credit card carriers automatically drafted against the account for monthly service charges. The respondent was a sole practitioner from approximately May 2004 to May 2005. The account in question was used by the respondent for her solo practice. The respondent joined another law firm in May 2005 and took steps to close this account, as it was no longer required. The respondent completed forms with the bank to close this account, but relied on her assistant to submit the forms to the bank and complete the closing of the account. The respondent failed to follow up on the closing of the account and termination of the credit card agreement. Three clients who had been issued refund checks did not cash their checks. The respondent was not aware that the checks had not cleared the account, because she did not review the bank statements. As of August 2005, the balance in the trust account was $672.42, and the credit card companies continued to take their fees from the trust account. By January 2007, the account was depleted and held a negative balance. The respondent did not review her bank statements and was not aware of these transactions. The respondent never obtained documentation from the bank showing the trust account was closed. The respondent has since contacted the three clients who had been issued refund checks and issued each of them a check for the full amount due, plus interest. The respondent also has closed the account.

Rules Implicated: Colo. RPC 1.15 and Colo. RPC 5.3(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Trust Account School and undergo a financial audit.


> The respondent represented a client in a personal injury case in which she alleged she had been injured when she was struck by a vehicle. The respondent did not adequately account for how he handled funds in her case. The OARC was notified by a bank that a check on the respondent’s trust account was presented against insufficient funds. This check was payable to the client for her share of the settlement proceeds after subtracting costs and the respondent’s fees. After learning of the overdraft, the respondent deposited funds of his own into the trust account to result in a positive balance and to pay the client. The respondent also paid fees and penalties for the client.

The respondent’s records are extremely difficult to understand in this case. The respondent paid costs of approximately $7,850. The client paid costs of approximately $5,470. The total settlement the client received was $25,000, out of which the respondent received a total fee of approximately $2,950, and the client received approximately $14,200. The respondent’s fee agreement specified he was to receive 25 percent of the settlement ($6,250). He did not receive his agreed-on fee. Although the respondent has never been able to provide complete documentation that sufficiently records his payments for costs, his clients’ payments for costs, and how he calculated the final disbursements, no clear and convincing evidence establishes that he owes his client any funds.

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

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

Meritorious Claims and Contentions

> The respondent filed a motion for modification of parental responsibilities, parenting time, and child support on behalf of a client. Initially, the motion was denied for lack of an affidavit. The respondent re-filed the motion. After hearing, the court found that the respondent argued and addressed an improper legal standard throughout the hearing. The court further found that there was no evidence presented to support the proper standard of proof. In fact, the court found that the evidence presented did not even support the lesser standard advanced by the respondent. The court therefore found the motion groundless and frivolous and lacking any basis in fact, in violation of C.R.C.P. 11. The court awarded reasonable attorney fees and costs to the opposing party and against the respondent and her client, jointly and severally. The court required that the judgment be paid within thirty days. The respondent did not pay the judgment for several months.

Rules Implicated: Colo. RPC 3.1 and Colo. RPC 3.4(c).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School, complete six hours of CLE in basic family law, and complete four hours of CLE in law office management.

Disobeying an Obligation Under the Rules of a Tribunal

> The respondent was a party to a divorce and the court entered permanent orders. Pursuant to the court’s order, the respondent was ordered to provide his ex-wife with a cash payment as part of the parties’ property division. The respondent also was ordered to pay his ex-wife monthly maintenance for a period of six months. Both parties moved for reconsideration of the court’s permanent orders. In her motion, the ex-wife requested that the court order that the cash payment be due on a date certain, because of her dire financial status. The court granted the ex-wife’s request and ordered the respondent to pay his ex-wife the amount within ten days. The respondent did not pay his ex-wife the court-ordered cash payment as required. The respondent sent the payment after receiving his ex-wife’s complaint to Regulation Counsel. Instead of complying with the court’s order and without his ex-wife’s permission, the respondent placed the funds into one of his law firm trust accounts to pay ongoing rental expenses incurred by joint property the parties had been ordered to sell so the proceeds could be split between them.

On the date the respondent submitted his response to the OARC, he filed a motion with the court, requesting permission to apply his ex-wife’s remaining maintenance payments directly to the parties’ ongoing rental expenses. The respondent stated in the attachment to the motion that "payments made by Husband are more in debt service than is owed to Petitioner for property award previously ordered." In addition to asking the court for permission to apply the court-ordered maintenance payments to the rental expenses, the respondent also sought an order "approving the accounting attached hereto, and approving offsets Husband has made to date as shown in the such accounting." Thus, the respondent sought the court’s approval of his decision to disobey the court’s earlier order that he make a cash payment to his ex-wife by a date certain. Specifically, the respondent failed to adequately advise the court that: (1) the cash payment was not made as ordered; and (2) by asking the court to "approve" the attachment, the respondent essentially was asking the court to reverse its early ruling that the respondent pay his ex-wife in cash by a date certain. The respondent paid his ex-wife as a condition precedent to his Diversion Agreement.

Rules Implicated: Colo. RPC 3.4(c) and Colo. RPC 8.4(d).

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

Criminal Conduct

> The respondent ran a red light, hit another vehicle, and then hit a fire hydrant, resulting in property damage but no personal injuries. The respondent was arrested and charged with driving under the influence (DUI); DUI per se; third-degree assault; and careless driving. The respondent’s blood alcohol concentration (BAC) was .140. The respondent pled guilty to driving while ability impaired (DWAI), and the remaining charges were dismissed. The respondent was sentenced to one year of supervised probation, thirty hours of community service, fines, and costs. 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.


> The respondent was charged with violating CRS § 42-2-101 (driving a motor vehicle without having a valid license); CRS § 42-4-1301 (DUI); CRS § 42-4-1301(2)(a) (driving a motor vehicle with a BAC of .08 or greater); and CRS § 42-4-604 (red light violation). The respondent’s BAC was .188. The respondent was convicted of violations of CRS § 42-4-1301 (DWAI) and CRS § 42-4-1007 (failure to drive in a single lane). The respondent was sentenced to one year of supervised probation; Level II education and forty-two hours of Level II therapy; victim impact panel; thirty-two hours of useful public service; and various fines and costs.

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; participate in intensive outpatient program; provide monthly reports; continue treatment with mental health professional; abstain from alcohol and/or drugs; have monitored Antabuse or random breathalyzer and urinalysis tests for twelve months; and make arrangements for compliance during out-of-state travel.


> The respondent was arrested and charged with speeding and DUI. This is the respondent’s first alcohol-related offense. There was no accident, no injury, and no property damage. The parties stipulated that respondent’s BAC was .147. The respondent pled guilty to DWAI and was sentenced to pay fines and costs; two days of jail waived on successful completion of twelve months of unsupervised probation; completion of twenty-four hours of useful public service within 180 days; and to undergo an alcohol evaluation and comply with all recommendations, if any.

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 all terms and conditions of sentence imposed.


> The respondent, while driving his vehicle, collided with a neighbor’s car and attempted to leave without supplying information. Police officers were driving to the scene when they saw the respondent walking toward an apartment building. One of the officers ordered the respondent to stop. The respondent continued to walk toward the front of the apartment building but then turned around and walked back toward the officer. The respondent had a bottle of beer in his hand. Although the respondent denied that there had been an accident, a witness reported that the respondent crashed his car into the back of her parked car twice. One officer reported that there was silver paint transfer on the front license plate of the respondent’s car and silver paint missing from the rear bumper of the neighbor’s car.

As a result of the above incident, the respondent was arrested for DUI. The respondent’s BAC was determined to be .211. The respondent pled guilty to DWAI and was ordered to pay a fine and court costs. The respondent was not ordered to serve a probationary period. This is the respondent’s first alcohol-related offense. The respondent was evaluated by a licensed professional counselor.

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, and notify the other jurisdiction where he is licensed of the DWAI conviction.


 > The respondent was arrested and charged with DUI and failure to yield the right of way, which resulted in a property damage accident. This is the respondent’s third alcohol-related offense. The respondent’s BAC was .136. The respondent entered in-patient treatment and was successfully discharged twenty-nine days later. Thereafter, he attended daily Alcoholics Anonymous (AA) meetings and continued aftercare with his counselors. The respondent pled guilty to DWAI and was sentenced to thirty days of in-home detention and payment of fines and costs.

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 terms and conditions of sentence imposed; comply with terms, conditions, and recommendations of evaluation; attend AA meetings; and abstain from alcohol.


> The respondent was arrested and charged with violation of CRS § 42-4-107(1)(a) (failure to drive in a single lane) and CRS § 42-4-1301(1)(a), (DUI). The respondent’s BAC at the time of arrest was .230. The respondent pled guilty to DUI. This is the respondent’s first alcohol-related offense. An evaluation was completed. The respondent was not diagnosed with an alcohol-related addiction.

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 court sentence.


> The respondent was stopped while driving a vehicle for failing to stay in the designated lane and failure to use a turn signal. The respondent pled guilty and was convicted of DWAI. 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 and comply with court sentence.


> The respondent was observed driving erratically by a sheriff’s officer. The respondent’s vehicle continued to weave and cross the lane lines at least three times. The officer pulled the respondent over and observed that the respondent had a moderate odor of alcohol, bloodshot and watery eyes, and slurred speech. The respondent refused to perform roadside sobriety tests. When the respondent stepped out of vehicle, he was unsteady and had to lean against the car for support. The officer arrested the respondent for suspicion of DUI. The respondent consented to a blood test. His BAC was .199. The respondent pled guilty to DUI. 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 and comply with court sentence.


> The respondent was involved in a single-car accident when he drove his vehicle into a ditch. A state patrol officer responded to the scene of the accident and arrested the respondent for DUI. The respondent’s BAC was .176. The respondent pled guilty and was convicted of DUI. The respondent was evaluated by a qualified professional to identify any substance and/or mental health issues. The evaluator diagnosed the respondent as having a substance dependence disorder. 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 court sentence, comply with recommendations of evaluator, attend outpatient treatment program, sign releases, provide monthly reports, abstain from alcohol and/or drugs, and participate in random urinalysis.


> The respondent was involved in a single-car accident when he drove his vehicle into and over a stop sign. Witnesses followed the respondent’s vehicle and called the police. Police officers responded and arrested the respondent for DUI. The respondent refused to submit to testing to determine his BAC. The respondent pled guilty and was convicted of DUI. The respondent was evaluated by a qualified professional to identify any substance and/or mental health issues. The evaluator diagnosed the respondent as having a substance dependence disorder in remission. The evaluator noted that the respondent entered a treatment program, and that he is working with a specific provider for his aftercare. 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 court sentence, comply with recommendations of evaluator, continue aftercare, provide monthly reports, abstain from alcohol and/or drugs, and see a psychiatrist within thirty days.


> The respondent was issued a summons by the police for driving a vehicle with an expired driver’s license, headlamps not lit when required, disregarding a stop sign, DUI, and DUI per se. The respondent’s BAC was .183. The respondent was convicted of DWAI. This is the respondent’s second alcohol-related offense. The respondent was sentenced to: ninety days in jail, with eighty days suspended if the respondent completes all other requirements of the sentence before a date certain; two days in jail and eight days of electronic home monitoring; sixty hours of useful public service; obtain a drug/alcohol evaluation from the Probation Department, and follow all treatment recommendations therein; successfully complete the day reporting program; no consumption of alcohol or drugs; and payment of various fines and court costs. The probation department required the respondent to: complete Level II education; complete sixty-eight hours of Level II therapy; complete the day reporting program; complete random breathalyzer tests for the entire length of the program; remain clean and sober throughout the entire program; sign up with a treatment provider within thirty days of the evaluation by the probation department.

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, provide confirmation of compliance with court sentence, abstain from alcohol and/or drugs, and obtain breathalyzer tests for one year with releases.

Conduct Prejudicial to the Administration of Justice

> The respondent was scheduled to appear at two separate trials in two different courts. The respondent believed that one of the cases would settle and that he could appear at the other trial later that day. The respondent made arrangements for another attorney to appear in the second trial. The respondent appeared for the first trial and the case did not settle. The trial commenced at that time. The other attorney appeared at the second trial and announced "ready" for trial. A jury trial was scheduled to begin later that afternoon. The respondent learned that the second case was scheduled for jury trial; he called a third attorney and asked him to cover that trial. The third attorney went to the courthouse for the second trial, and told the judge that he was prepared to proceed. This attorney had discussed the case with the respondent, but had neither reviewed the file nor talked to the client. The client and the court expressed concern about the third attorney’s ability to proceed. The jury trial was continued to avoid a situation involving ineffective assistance of counsel for the client.

The court ordered the respondent to appear to explain the circumstances leading to his failure to appear for the scheduled trial. At the hearing, the respondent was polite and apologetic, and offered to pay any costs and witness expenses associated with the continuance. The court found the respondent in summary contempt and imposed ninety days of jail time. The jail time was suspended on the condition that the respondent pay court costs and witness expenses, including transportation costs of prosecution witnesses and others who traveled for the scheduled trial. The respondent paid the court costs and witness fees associated with the rescheduled trial.

Rule Implicated: Colo. RPC 8.4(d).

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

Private Admonitions

> The respondent represented a woman in her divorce case. The husband was represented by counsel. The respondent took a call from the husband. The respondent invited the husband to ask his attorney to join the telephone conversation. The husband declined to do so. The respondent then proceeded to converse with the husband about possible settlement of the divorce case. The respondent assumed that the husband was negotiating settlement directly with the respondent to avoid paying attorney fees. The next day, the respondent wrote to the husband’s counsel. The respondent admitted having spoken with the husband about the divorce case outside the presence of counsel. The respondent then addressed in his letter issues that the respondent had discussed with the husband the day before. The husband’s counsel filed in the divorce case a motion to disqualify the respondent. The husband’s counsel informed the court of the respondent’s conversation with the husband and stated that counsel never consented to the respondent’s direct contact with his client. The respondent thereafter withdrew.

Rule Violated: Colo. RPC 4.2.

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