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

The Colorado Lawyer
October 2007
Vol. 36, No. 10 [Page  153]

© 2007 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

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.


Diversion and Private Admonition Summaries

Diversion is an alternative to discipline.1 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 May 17, 2007 through August 17, 2007, at the intake stage, Regulation Counsel entered into nine Diversion Agreements involving nine 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 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.2 Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion.3

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 nor 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 during May 17, 2007 through August 17, 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 exits
  • fee issues, implicating Colo. RPC 1.5
  • conflict of interest, implicating Colo. RPC 1.7
  • trust account issues, implicating Colo. RPC 1.15
  • 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 May 17, 2007 through August 17, 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 was retained by a client for a personal injury matter that arose from a car accident that occurred in another state. The respondent told the client he would hire counsel in another state to handle the litigation if the respondent could not settle the case. Thereafter, the respondent communicated with the opposing party and its insurance carrier. The respondent sent several demand letters and packets proposing settlement, but no settlement was ever reached. The client called the respondent’s office to ask about the status of the case. The respondent’s assistant researched the other state’s statute of limitations and conferred with the respondent. The respondent spoke with the client several times during the remainder of that year, but did not inform the client that the other state’s statute of limitations for personal injury claims was two years from the date of the injury. Later that year, the client called the respondent regarding the status of her case. The respondent gave the client the names of some lawyers in the other state. The client called one of these lawyers and was told the statute of limitations on the case had already run. The client filed a civil action alleging malpractice against the respondent. The client and the respondent settled the client’s claim.

Rules Implicated: Colo. RPC 1.1; Colo. RPC 1.2(a); 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.

__________________

> Shortly before his death, a father created a family partnership (Partnership). The Partnership was formed to own and manage real property previously owned by the father. Following the father’s death, his widow and sons were the remaining partners. One of the sons operated a business on part of the Partnership’s property. The son retained the respondent to represent his business. Later, the son, acting as general partner, retained the respondent to represent the Partnership. The son’s business, while represented by the respondent, asserted a lien against the Partnership’s property for improvements made by the son’s business and materials provided to the property by a third party. The respondent was listed on the statement of lien as counsel for the business. The persons and entities described above commenced litigation. In the litigation, another attorney represented the business. The respondent represented the Partnership.

Rules Implicated: Colo. RPC 1.1 and Colo. RPC 1.7.

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

Diligence and/or Failure to Communicate

> The respondent was hired for representation in a real estate matter. The respondent agreed to investigate the client’s matter for a $500 fee, which the client paid in October. The respondent failed to provide a written fee disclosure. The respondent agreed to represent the client further in the matter for an additional $2,000 fee, which the client paid later in October. The respondent did not provide any written fee disclosure for this aspect of the representation, either. Between March and May of the following year, the client expressed dissatisfaction with the respondent’s work on the matter. The client also asked for specific information regarding the respondent’s fees, plus an accounting of what work the respondent had performed for the funds paid by the client. The respondent indicated he would provide an accounting, but did not do so. The client continued to request an itemized accounting. The respondent did not comply with the client’s requests. The respondent provided no fee information, billing statements, or accounting during the entire representation. The respondent ultimately rendered an accounting of the client’s funds in May, two years after the respondent was first hired by the client.

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

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

__________________

> The respondent received a settlement on behalf of a client and placed the funds in the trust account. The respondent distributed the funds to the client and to herself for attorney fees over the course of months, but failed to maintain the required records for the disbursements, pursuant to Colo. RPC 1.15(g), and failed to provide receipts to the client for the disbursements, causing the client to be confused regarding how much money had been disbursed. In addition, after all the client’s funds were disbursed and no other client funds were in the trust account, the respondent cashed checks from a personal account against her trust account. Because the bank cashed the checks against the trust account, and no funds were left in the trust account, numerous overdrafts resulted in the trust account. Ultimately, the bank closed the account.

Rules Implicated: Colo. RPC 1.4(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.

Fees/Trust Account Issues

> The respondent entered into a one-year Diversion Agreement for issuing a check with insufficient funds from his Colorado Lawyers Trust Account Foundation (COLTAF) account. As part of the Diversion Agreement, the respondent retained a financial monitor to conduct a financial audit of his firm accounts. The financial monitor completed her audit and reported to the OARC that the respondent had a number of trust account issues before and after entering into his Diversion Agreement, including commingling of funds and depositing unearned retainer fees into his office account instead of into his COLTAF account. However, because of the large balance kept in the respondent’s office account, his deposit errors did not result in conversion of unearned fees. The respondent did not properly supervise his bookkeeper. With the aid of his monitor, the respondent appropriately moved all unearned fees back into his COLTAF account and implemented system-wide changes to his billing and bookkeeping practices to rectify these issues.

Rules Implicated: Colo. RPC 1.5(f); Colo. RPC 1.15(a); Colo. RPC 1.15(g); Colo. RPC 1.15(h); and Colo. RPC 5.3(b).

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 an attorney COLTAF trust account belonging to the respondent. The check was returned by the bank. That check was payable to the respondent in the sum of $25, and was written against his COLTAF account. When the respondent closed the account, he was not aware that the check remained outstanding. The respondent further wrote numerous checks out of sequence to different clients for different matters, and had no method for indicating if a check cleared his account. The respondent opened a new account with a different bank.

Rules Implicated: Colo. RPC 1.15(g) and Colo. RPC 1.15(h).

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

Criminal Conduct

> While driving a vehicle, the respondent was stopped for failing to drive within a single lane. The respondent pled guilty and was convicted of the offense of driving while ability impaired (DWAI). The respondent was the subject of an individual medical examination, which identified the respondent as meeting the criteria for a diagnosis of alcohol abuse disorder and made specific recommendations to address that diagnosis. 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, obtain treatment with a mental health counselor, abstain from alcohol, provide monthly reports, and undergo urinalysis or breathalyzer checks six times a month for one year.

__________________

> While driving, the respondent was observed by a sheriff’s officer to be weaving across double-yellow road lines several times. The officer pulled over the respondent. When the officer approached the respondent’s car, the officer saw an opened twelve-pack of beer in the car. The respondent admitted she had been drinking alcohol. The initial preliminary breath testing registered blood alcohol content (BAC) at .192, but a later retest measured respondent’s BAC at .164. The respondent pled guilty and was convicted of DWAI. The respondent timely self-reported her conviction. This is the respondent’s first alcohol-related incident. As a result of this matter, the respondent was evaluated for alcohol and substance abuse.

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 comply with the evaluator’s recommendations.

__________________

> The respondent was charged with violations of CRS § 42-4-1301(1)(b), DWAI; CRS § 42-4-1301(1)(a), driving under the influence (DUI); CRS § 42-4-1402, careless driving; and CRS § 42-4-1301(2)(a), DUI per se. The respondent agreed to and completed a breath test to determine her BAC at the time of driving. The results were a .194 BAC. The respondent entered a guilty plea to CRS § 42-4-1301(1)(b), 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 the court sentence.

__________________

> The respondent was involved in a single-car rollover accident. The respondent was driving on Interstate 25 and lost control of the vehicle as it approached another vehicle to pass. The Colorado State Patrol responded to the scene of the accident, and arrested respondent for DUI. The respondent’s BAC was .122. The respondent pled guilty and was convicted of DWAI. The respondent underwent an evaluation, which determined that the respondent did not meet the criteria for diagnosis of alcohol abuse, alcohol dependence, or any other psychiatric illness.

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 and his girlfriend were vacationing in another state. They gambled and consumed alcohol, and then returned to their room. They engaged in sex, which, with the girlfriend’s consent, was "rough." The couple then argued. Another guest called the hotel’s security officers. The security officers investigated, and then summoned the police. Both the respondent and his girlfriend were arrested. The case was resolved by the respondent entering a plea to a misdemeanor charge of disturbing the peace. The respondent paid a fine, performed community service, and underwent counseling.

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 terms, conditions, and recommendations of an alcohol evaluation; and abstain from the use of alcohol or the use of any other mood altering substance.

__________________

> The respondent was arrested and charged with violation of CRS § 42-4-1301, DUI; CRS § 42-4-1301(2)(A), driving motor vehicle with blood alcohol level of 0.8 or greater; and CRS § 42-4-202, unsafe vehicle. Pursuant to her arrest, the respondent submitted to a breath test to determine her blood alcohol level at the time of driving. The test administered registered her blood alcohol level at .236. The respondent pled guilty to CRS § 42-4-1301, DUI.

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, abstain from the use of alcohol or the use of any other mood altering substance, and be monitored with Antabuse.

__________________

> The respondent was convicted of DUI and was sentenced to ninety days’ home detention, with other conditions. The incident leading to the conviction occurred when the respondent, observed by a police officer driving a car, ran into a parked car. The respondent refused a test of his breath or blood. His license was revoked for refusing. The respondent has an earlier conviction for DUI, a conviction for DWAI, and a conviction for reckless driving, which arose out of a charge of DUI. This is the respondent’s third 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; comply with all terms and conditions of the sentence imposed; participate in any treatment or support program recommended by the evaluator, and provide monthly progress reports to the OARC; attend Alcoholics Anonymous or other equivalent recovery program; abstain from the use of alcohol or any other mood altering substance, unless such substance is prescribed by a duly licensed Colorado physician; and participate in a monitored Antabuse program or random breathalyzer and urinalysis program.

__________________

> The respondent was stopped by a police officer for speeding. The officer noted alcohol on the respondent’s breath and that his face was flushed and his speech was slurred and "thick-tongued." The respondent agreed to perform roadside sobriety tests, but was unable to satisfactorily do so. The respondent was arrested on suspicion of driving while intoxicated by alcohol. The respondent consented to a blood test, which measured his BAC at .154. A retest measured respondent’s BAC as .139. The respondent pled guilty and was convicted of DWAI. The respondent timely self-reported his conviction. This is the respondent’s second alcohol-related incident. The respondent previously pled guilty to DWAI in July 1998. As a result of this matter, the respondent was evaluated for alcohol and substance abuse.

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 comply with the evaluator’s recommendations.

Conduct Prejudicial to the Administration of Justice

> The respondent’s client executed a lien to her chiropractor, authorizing him to be paid from any proceeds she might obtain in her personal injury case. The respondent was on notice of the lien’s existence from the chiropractor and took no action to inform the chiropractor that he would not honor the lien. Prior to settlement of the client’s case, the respondent tried to negotiate a payment of $5,000 to resolve the lien that totaled $10,355. That offer was rejected. The case settled in August 2006. The chiropractor tried numerous times to contact the respondent, but heard nothing further from him, until he received a letter in which the respondent indicated the chiropractor had agreed to accept $8,600. The respondent then offered to settle for $7,000. The respondent told the OARC he was holding $8,600 in the trust account for payment to the chiropractor. However, the respondent again offered the chiropractor $7,000, which he rejected. The respondent finally tendered $8,600 to the chiropractor. Because the chiropractor rejected the $8,600 as final settlement, the respondent will pay the balance of the lien with his personal funds prior to the expiration date of the agreement.

Rule Implicated: Colo. RPC 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, the respondent shall attend Ethics School and pay the balance of the lien by the end of the term of agreement.

__________

1. See C.R.C.P. 251.13.

2. See C.R.C.P. 251.13(b).

3. See id.

© 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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