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TCL > January 2008 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

The Colorado Lawyer
January 2008
Vol. 37, No. 1 [Page  105]

© 2008 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 August 18, 2007 through November 19, 2007, at the intake stage:

  • Regulation Counsel entered into seventeen Diversion Agreements involving seventeen separate requests for investigation.
  • ARC entered into ten Diversion Agreements involving ten requests for investigation.
  • The PDJ approved no Diversion Agreements.
  • ARC approved one private admonition involving two requests for investigation.
  • The PDJ approved no private admonitions.

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 may address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reason for such conduct was poor office management, then one of the conditions of diversion may be a law office management audit and/or practice monitor. The time period for a Diversion Agreement generally is no less than one year and 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
  • continuing legal education (CLE) courses
  • any other conditions that 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, 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 August 18, 2007 to November 19, 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
  • trust account issues, implicating Colo. RPC 1.15
  • bringing a meritorious claim and contention, implicating Colo. RPC 3.1
  • 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.

Notes

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

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

3. See id.


Random Samples of Diversion Agreements

Below are random samples of Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct from August 18, 2007 to November 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

In January 2004, client sought representation for a post-decree dispute she was having with her ex-husband. Client retained an attorney (Attorney A) and signed a written fee agreement with him.Respondent shared office space with Attorney A and maintains he had an "of counsel" relationship with Attorney A. However, the fee agreement between Attorney A and client did not mention respondent or any "of counsel" association or relationship between respondent and Attorney A. Attorney A’s letterhead also did not mention respondent or any "of counsel" association or relationship.

In late summer 2004, client’s ex-husband made a threat against Attorney A. Attorney A told respondent he wanted to withdraw from client’s case. Respondent offered to take over as attorney for client. Client still needed assistance in the dispute with her ex-husband, so she agreed to the substitution of counsel.

Respondent did not provide client any written fee agreement or fee disclosure. Respondent maintains he believed that Attorney A’s fee agreement with client governed his attorney-client relationship with client, despite the fact that respondent’s hourly fee was different from the hourly rate listed for Attorney A in Attorney A’s written fee agreement (and the agreement did not even mention respondent).

The pleadings respondent filed on client’s behalf and respondent’s billing statements to client reflected only respondent and his own individual professional corporation. Respondent’s pleadings and billing statements made no mention or reference to Attorney A or any association with Attorney A.

Respondent represented client in her post-decree domestic matter and a separate civil restraining order cause. The two cases were consolidated in July 2004. During the course of those matters, client’s ex-husband kidnapped the parties’ minor child and removed him from the state.

When client’s ex-husband did not appear at a contempt hearing, the court issued a Bench warrant and ordered him to pay some of client’s attorney fees. Client’s ex-husband did not comply with the contempt order or the court’s prior order to pay child support, and client asked respondent to take action. Respondent refused to take any action on client’s behalf until she paid respondent’s outstanding fees.

Client also asked respondent to file a motion to modify custody. Respondent maintains the scope of his representation did not include any new custody matters for client. Client disagrees. Respondent had no written fee agreement or engagement letter that defined or restricted his scope of representation.

Respondent moved his office out of the Denver metro area. Client continued asking respondent to take action on her case. Respondent refused on the ground that client still owed him fees. However, respondent did not withdraw.

After moving, respondent discontinued his billing service and did not send any more billing statements to client. On more than one occasion, client requested a full accounting of exactly what fees she owed. Respondent failed to comply with client’s request.

Client’s ex-husband was arrested. Respondent was still client’s attorney of record in both the domestic case and the civil restraining order matter at that time. The court re-set the contempt hearing, and gave notice to respondent.

Thereafter, respondent told client he would withdraw as her attorney. Client received respondent’s motion to withdraw shortly thereafter. Even though the court had not granted respondent’s motion, respondent did not appear at the contempt hearing. The court re-set the contempt hearing.

To date, client’s ex-husband has not paid the fees ordered by the court. Client presently disputes respondent’s fees.

Rules Implicated: Colo. RPC 1.1; Colo. RPC 1.2(a); Colo. RPC 1.3; Colo. RPC 1.4; Colo. RPC 1.5(b); Colo. RPC 3.2; and Colo. RPC 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, pay all costs, have no disciplinable conduct for one year, and engage in fee arbitration if complainant agrees.

Neglect

Respondent represented wife in a dissolution of marriage proceeding. Respondent was ordered to prepare a qualified domestic relations order (QDRO) for Public Employees’ Retirement Association benefits. Due to health problems and difficulty communicating with her client, respondent failed to complete the QDRO within in the required time.

Rules Implicated: Colo. RPC 1.3; Colo. RPC 3.4(c); and Colo. RPC 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend and complete Professionalism School, complete four CLE credits addressing QDROs, pay all costs within thirty days, and have no other violations during a two-year diversion.

__________________

Respondent was terminating his employment with another attorney. Toward the end of his employment, it became apparent to his employer that respondent had failed to adequately represent certain clients. In one case, respondent failed to return a telephone call from a client, although he had promised he would review the situation and return the call. In another case, respondent appeared late for court on behalf of a client. In another matter, respondent failed to make arrangements to represent a client who had paid a retainer. Respondent did not realize that the retainer had been paid and had advised the client that he would not represent him unless a retainer was paid.

In connection with the dissolution of respondent’s employment relationship with the other attorney, respondent unilaterally sent a letter to clients that misstated the clients’ alternatives concerning legal representation going forward. Then, in connection with a dispute with his former employer concerning trust account funds, respondent threatened a grievance against the former employer unless the funds were paid to him within a time frame respondent believed was appropriate.

Rules Implicated: Colo. RPC 1.3; Colo. RPC 1.4(a) and (b); and Colo. RPC 4.5(a).

Diversion Agreement: Practice monitor and complete Ethics School, and have no disciplinable conduct for one year.

Failure to Communicate

Respondent represented a defendant charged with possession of a schedule II controlled substance (more than one gram)—second offense, a class 2 felony; schedule II possession with intent to distribute a controlled substance, a class 3 felony; and possession of marijuana (one ounce or less), a class 2 petty offense.

Respondent represented defendant through a motions hearing. Subsequent to the motions hearing, the prosecution filed habitual criminal counts. Shortly thereafter, respondent filed a motion to withdraw. The motion to withdraw was not granted until five months later. During those five months, respondent never advised defendant that habitual criminal counts had been filed or that he received discovery pertaining to the habitual criminal counts.

Pursuant to C.R.C.P. 251.13(c), the purpose of this Diversion Agreement is to educate respondent and to assure that this type of conduct does not occur in the future.

Rule Implicated: Colo. RPC 1.4.

Diversion Agreement: Have no disciplinable conduct for one year.

__________________

> Respondent was retained to represent a client in a domestic relations matter. Respondent filed a Verified Motion for Emergency Temporary Orders with the court. That same day, the court issued an Order Suspending Parenting Time Pursuant to Section 14-10-129(4). In that same Order, the district court magistrate set a date for a hearing. Although the Order was placed in respondent’s drop box at the courthouse, respondent claimed he was unaware of the hearing. The opposing party also claimed she did not receive notice of the hearing; however, she appeared at the hearing. On the date of the hearing, the magistrate contacted respondent by telephone, and the matter proceeded to hearing without his client present in person or by telephone. The client was unaware of the hearing.

According to the magistrate, respondent never asked the court whether his client could be included in the hearing by conference call nor did he ask to continue the hearing so that his client could be present in person and present testimony. After listening to testimony, the court found no grounds for suspending parenting time and vacated its previous order suspending parenting time.

Rule Implicated: Colo. RPC 1.4(a) and (b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, pay all costs, and have no disciplinable conduct for one year.

Fees/Trust Account Issues

> Respondent’s legal assistant received a retainer from a client but failed to make note of the receipt of the funds in respondent’s financial records. Respondent failed to reconcile his trust account statement or to otherwise review his financial records. As a result, respondent’s client never was given credit for the retainer he had paid. Pursuant to C.R.C.P. 251.13(c), the purpose of this Diversion Agreement is to educate respondent and to assure that this type of conduct does not occur in the future.

Rule Implicated: Colo. RPC 1.15(a), (c), and (g).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Trust Account School and have no further violations.

__________________

> Respondent was retained by client to represent him in any claims client had in a civil matter. Client executed a fee agreement that included a clause that stated, "Client hereby agrees to pay the firm, including any associated counsel, a $5,000 non-refundable flat fee. . . ."

Client paid respondent $2,500 in July 2005, and $2,500 in October 2005. Respondent also received a $1,000 "cost" deposit from client. Client’s first payment of $2,500 was deposited into a COLTAF account. Prior to the funds being earned by respondent, client’s $2,500 was transferred from respondent’s COLTAF account to the firm’s operation account.

Respondent opened his own COLTAF account in October 2005. However, client’s October 2005 payment to respondent was deposited directly into respondent’s operating account, prior to the funds being earned by respondent.

At the conclusion of the case, respondent sent to client a settlement check in the amount of $800. Respondent also paid, on behalf of client, fees to various court reporters and legal services companies, as well as Lexis/Nexis.™ The total amount paid by respondent to client or to the third parties on client’s behalf exceeded the amount paid to respondent by client.

Pursuant to C.R.C.P. 251.13(c), the purpose of this Diversion Agreement is to educate respondent and to assure that this type of conduct does not occur in the future.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Trust Account School and Ethics School, and have no disciplinable conduct in the next year.

__________________

In May 2007, bank reported that a check in the amount of $500 was paid against insufficient funds on an account designated as an attorney trust account belonging to respondent. Respondent stated her belief that the overdraft was due to her failure to record a check in her register. Respondent attempted to reconcile the amount and find the exact cause of the error but was not able to do so. Respondent had not maintained the account in accordance with Colo. RPC 1.15. Respondent has since closed the account.

In July 2007, another bank reported that a check in the amount of $201.70 was returned due to insufficient funds on an account designated as a COLTAF account belonging to respondent. Respondent opened this account in June 2007 and obtained checks. Respondent wrote and mailed two checks from the new account prior to funding this account, with an intended transfer from her other trust account. Respondent realized on receipt of the overdraft notice from the second bank that she had failed to transfer the funds.

Rule Implicated: Colo. RPC 1.15(h).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Trust Account School, have an audit performed in regard to the COLTAF account, and have no disciplinable conduct during the diversion period.

Meritorious Claims and Contentions

Complainant hired respondent to assist her in a dispute with her stepfather concerning her mother’s will, which purported to give complainant a one-half interest in the marital home. Prior to hiring respondent, a probate case had been filed and complainant was appointed as personal representative of her mother’s estate. Other than mediation, nothing further happened in the probate case until complainant’s stepfather filed a motion to remove complainant as personal representative.

After speaking to complainant and learning that the marital home had passed to complainant’s stepfather as a joint tenant and that there were no assets in the estate, respondent filed a civil suit against complainant’s stepfather. The civil case filed by respondent was dismissed with prejudice pursuant to a memorandum of understanding reached by the parties. However, the court also entered judgment against respondent personally for $3,108.87, for pursuing frivolous and groundless claims against complainant’s stepfather.

Rule Implicated: Colo. RPC 3.1.

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent shall complete Ethics School, pay all costs, and pay the judgment with interest.

Criminal Conduct

Respondent had an altercation with her husband. Both parties had been drinking with friends at their home. Husband went upstairs, locked the bedroom door and went to bed. When respondent attempted to enter the bedroom and discovered the door was locked, she became angry and broke the lock to enter the bedroom. She yelled at husband. Husband called the police and reported respondent hit him. The police responded and examined husband, who had two scratches. The police arrested respondent. Respondent pled guilty to harassment, a class 3 misdemeanor. Later, husband stated respondent yelled at him but did not hit him.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all terms of criminal matter, complete Ethics School, have an alcohol evaluation and comply with any recommendations, pay costs within thirty days, and have no other violations during a two-year diversion period.

__________________

> Respondent was charged with violations of CRS § 42-4-1301(1)(a), driving a motor vehicle while under the influence (DUI); and CRS § 42-4-1301(2)(a), driving a motor vehicle with a blood alcohol content (BAC) of 0.08 or greater. Respondent’s BAC was 0.142.

Respondent pled guilty to violating CRS § 42-4-1301(1)(b), driving while ability impaired (DWAI). Pursuant to this conviction, respondent was sentenced to one year of supervised probation and was ordered to complete alcohol evaluation and treatment; complete twenty-four hours of useful public service; refrain from using alcohol and drugs during the period of probation; attend victim impact panel; and pay various fines and costs.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with the conditions in the criminal case, pay all costs, have no disciplinable conduct for one year, have monitored Antabuse treatment, attend Alcoholics Anonymous or similar group meetings, abstain from alcohol, and attend Ethics School.

__________________

> Respondent was charged with violations of CRS § 42-04-1302(1)(a), DUI; CRS § 42-4-1301(2)(a), DUI per se; CRS § 42-4-1409(3), failure to present evidence of insurance; and CRS § 42-4-1007(1)(a), failure to drive in a single lane (weaving). Respondent’s BAC was 0.152.

Respondent pled guilty to violating CRS § 42-4-1301(1)(b), DWAI—second offense. Respondent was sentenced to twenty-four months of supervised probation; alcohol evaluation and treatment (consisting of Level II education and therapy, Track C); forty-eight hours of useful public service work; electronic home monitoring; no alcohol use; various fines and costs; and completion of Ethics School.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with the conditions in the criminal case, pay all costs, have no disciplinable conduct for two years, abstain from alcohol, undergo EtG-type testing for alcohol every four days, and attend Ethics School.

__________________

Respondent pled guilty to DWAI. Respondent was under the influence of Ambien, for which he had a prescription. This is respondent’s first offense related to DWAI. Respondent received the following sentence: one year of unsupervised probation; court fees and costs of $369; Level I Education; ninety days’ jail (suspended); and twenty-four hours’ community service.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all conditions in the criminal case, attend Ethics School, and have no disciplinable conduct for one year.

__________________

Respondent pled guilty to DUI, alcohol. His BAC was .324. He received the following sentence: two years of probation; 365 days in jail (275 days suspended); ninety days of electronic home monitoring; forty-eight hours of community service; Level II education; eighty-six hours of therapy; participation on a Mothers Against Drunk Drivers panel; and payment of court costs. Although respondent had a previous DUI conviction, this was his first alcohol-related offense since he was admitted to the Colorado Bar.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all conditions of the criminal case, attend Ethics School, and comply with the recommendations of an alcohol evaluator.

__________________

Respondent was stopped by police because the front fender was hanging from the vehicle she was driving, making it unsafe. Another officer found the front bumper of the vehicle at a different location.

Respondent’s BAC was .196. Respondent pled guilty to DWAI and received a one-year deferred judgment that includes one year of probation, including conditions of probation.

At the request of the OARC, respondent submitted to an evaluation to determine whether she met the criteria for a diagnosis of alcohol/substance abuse or dependence. That evaluation determined that respondent did not meet the criteria for a diagnosis of substance abuse or dependence. This is respondent’s first alcohol-related offense.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, pay all costs, have no disciplinable conduct for one year, and comply with her court sentence.

Conduct Prejudicial to the Administration of Justice

Respondent represented a client in a criminal case. Client was incarcerated at a jail. Respondent met with that client in the jail numerous times.

During one jail visit, respondent had physical contact with his client, including touching his client’s ankles. Jail personnel observed this physical contact between respondent and his client, and explained to him that the policies and procedures of the jail prohibited this type of physical contact between an inmate and any visitor, including the inmate’s lawyer. Respondent’s meeting with his client was terminated and respondent was asked to leave the facility.

Respondent protested the policy of the jail and filed motions with the court about the jail personnel’s actions. Respondent requested a more private room to meet with his client, and maintained that certain physical contact was necessary with his client to properly investigate her case and prepare to represent her.

The court addressed respondent’s concerns during a hearing. The court entered an order allowing private meetings between respondent and his client "as long as the procedures of the meetings and what occurs at those meetings are not in contravention to the security proceedings that have been established at the jail."

Respondent again met with his client at the jail. During this meeting, jail staff observed respondent having inappropriate physical contact with his client by holding her hand, in violation of jail policies and procedures. Respondent asserted that he and his client were praying at the time. The meeting between respondent and his client was terminated and respondent was directed to leave the facility.

After this date, respondent filed additional motions with the court seeking sanctions against the jail for denying him "private" meetings with his client. The court held a hearing on respondent’s request for sanctions. At the hearing, the court determined that respondent’s request for sanctions was premised on a statute providing a civil remedy and dismissed his motion. At the hearing, respondent again raised his concerns about the jail prohibiting him from having "private" meetings with his client. The court reiterated the previous order, and explained to respondent that jail staff could observe any meetings between respondent and his client, and again explained to respondent that he has a continuing obligation to abide by any security policies and procedures implemented by the jail. The court specifically told respondent that if the jail has a policy that he may not touch his client, he must comply with that policy.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, pay all costs, and have no disciplinable conduct for one year.

Private Admonition

Respondent represented a husband and wife who were the buyers in a real estate transaction that failed to close. Respondent failed to advise clients of a potential conflict in representing them, arising from his longstanding relationship with their lender, who had potential liability for the failed real estate transaction. Respondent filed a complaint in county court on behalf of clients against the seller and the seller’s real estate agent. After respondent filed the complaint, clients informed him that the complaint contained inaccurate information. Respondent failed to amend the complaint. Because respondent did not amend the complaint, as the trial approached, clients became concerned respondent did not understand the facts of their case and inquired about dismissing the matter. Respondent inaccurately advised clients they were unable to dismiss the matter. At trial, respondent argued facts in his opening statement that clients had advised were not accurate. Respondent’s prosecution of the case was frivolous and prejudicial to the administration of justice. Clients did not prevail at trial and attorney fees were assessed against clients and respondent, with 10 percent against clients and 90 percent against respondent. Respondent alleged he did not have notice of liability for the attorney fee issue; the matter is under review by another county court judge.

Rules Implicated: Colo. RPC 1.2(a); Colo. RPC 3.1; Colo. RPC 3.3(a)(1); Colo. RPC 8.4(c) and (d); and Colo. RPC 1.7(b).

Conditions: As part of the conditions of the Diversion Agreement, respondent shall refund attorney fees to clients in the amount of $6,000 within thirty days of the date of the admonition and pay the entire amount of any attorney fees assessed against respondent and clients in the civil litigation matter.

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