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

April 2008       Vol. 37, No. 4       Page  117
From the Courts
Matters Resulting in Diversion

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 November 19, 2007 through February 15, 2008, at the intake stage:

  • Regulation Counsel entered into twelve Diversion Agreements involving thirteen requests for investigation.
  • ARC entered into ten Diversion Agreements involving fourteen requests for investigation during this time frame.
  • The PDJ approved no Diversion Agreements during this time frame.
  • ARC approved four private admonitions involving four requests for investigation during this time frame.
  • The PDJ approved one private admonition.

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 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
  • attendance at continuing legal education 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 November 19, 2007 through February 15, 2008 generally involve the following:

  • 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
  • scope of representation issues, implicating Colo. RPC 1.2
  • confidentiality issues, implicating Colo. RPC 1.6
  • trust account issues, implicating Colo. RPC 1.15
  • bringing a meritorious claim and contention, implicating Colo. RPC 3.1
  • complying with court rules, 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.

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 November 19, 2007 through February 15, 2008. 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.

Scope of Representation

> Respondent is related to client by marriage and has been friends with her for years. During that time, respondent represented client on several occasions. In September 2005, client married. Her family was against the marriage.

Respondent claims he had conversations with client and explained client’s legal options regarding divorce. Respondent also claims client said she planned to file for divorce once she obtained sufficient funds. In early May 2006, client was involved in a serious motorcycle accident that left her in a coma. In late May 2006, respondent filed a petition for dissolution of marriage on client’s behalf, at the request of client’s family. Client had no knowledge of respondent’s filing and had not authorized it, because she was in a coma at that time. Respondent did not disclose client’s condition to the domestic court.

Client’s husband hired counsel to contest the divorce. The court issued a show cause order and, receiving no response to the show cause order, dismissed and closed the case.

Client later regained consciousness and recovered. To date, she remains married.

Rules Implicated: Colo. RPC 1.2(a), 1.4(b), and 8.4(d).

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

Neglect and Failure to Communicate

Respondent represented the complaining witnesses, who were beneficiaries of a trust. Respondent brought litigation against the trustee, seeking appointment of a replacement. The parties settled, and two new trustees were appointed. Respondent failed to notify a third-party creditor of the change. As a result, the creditor failed to timely make a payment to the trust. The beneficiaries were deprived for several months of a distribution out of this payment.

Rule Implicated: Colo. RPC 1.3.

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

__________________

> Client hired respondent in June 2005 to represent him in his divorce proceedings. One of the primary issues in the divorce was the evaluation of client’s interest in a family business owned by client, his wife, and his wife’s parents.

Respondent and his client failed to appear at a hearing in November 2005 concerning respondent’s motion. Attorney fees were awarded against client in the sum of $1,685.40, because the motion filed by respondent was found to be frivolous, groundless, and without legal standing. Respondent paid the award of attorney fees from his own funds. Respondent failed to comply with a number of deadlines throughout the case and, due to one of the missed deadlines, client’s supplemental business evaluation was excluded.

Rules Implicated: Colo. RPC 1.3, 1.4, and 3.1.

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.

__________________

> Complainant consulted with respondent about a dispute arising out of a contract to sell and purchase real estate. Complainant paid respondent an advance retainer in the amount of $2,500, which retainer was deposited into the trust account.

Respondent filed a Complaint, defendants filed their Answer and counterclaims, and respondent filed a timely Answer to the counterclaims. Thereafter, defendants filed a Motion to Dismiss and a Motion for Partial Summary Judgment. Respondent filed a response to both on complainant’s behalf. The court granted the Motion to Dismiss but denied summary judgment.

Complainant sent a fax to respondent, expressing her dissatisfaction with the progress respondent was making and stating that she was terminating his representation. Thereafter, complainant informed respondent that she was meeting with another lawyer (second lawyer). At complainant’s request, respondent provided complainant’s file to the second lawyer.

Respondent prepared a Substitution of Counsel form and recalls sending it to the second lawyer, but never received a signed form from him. Notwithstanding the lack of a signature, respondent filed the Substitution of Counsel with the court. The second lawyer informed respondent that he did not intend to enter an appearance on behalf of complainant.

Respondent also prepared a Notice of Intent to Withdraw and a Motion to Withdraw from Representation, which he filed with the court and sent to complainant, because respondent still represented complainant. Defendants’ counsel filed a request to set the case for trial, a copy of which was served on respondent.

The court entered an Order in which it stated that it had received a Notice of Intent to Withdraw but that no Motion to Withdraw had been filed. There being no motion to address, the court entered an Order directing that if neither plaintiff nor defendants set the case for trial, the case would be dismissed without further notice.

Thereafter, defendants’ counsel filed, and served electronically, a Notice of Trial Setting, indicating that the case had been set for a one-day trial to the court. At the time of the Notice, respondent still was counsel of record for complainant and recently had been served with the court’s Order, indicating that it had not received his Motion to Withdraw. Respondent did not advise complainant of the trial setting, and notice of the setting was not sent to her directly.

There appears to have been substantial confusion about respondent’s Motion to Withdraw. The court did not act on respondent’s Motion to Withdraw until after the case was set for trial. The court allowed respondent to withdraw. Respondent believes he sent a copy to complainant of the Order allowing him to withdraw. However, he has no records to support this belief. Complainant denies ever receiving a copy of an Order allowing respondent to withdraw.

Complainant heard nothing further from anyone concerning her case until the court contacted her, inquiring as to whether she had any exhibits for trial. At that time, she learned that the case had been set for trial without her knowledge. She promptly retained counsel to represent her in seeking a continuance of the trial date, which was granted.

Several months after he was retained to represent complainant in the first matter, respondent agreed to represent complainant in another real estate litigation matter in which she had been sued. Respondent filed an Answer on behalf of complainant.

Counsel for plaintiffs sent a letter to respondent proposing a settlement. Respondent received the letter and forwarded it to complainant. According to complainant, she faxed a copy of the letter from opposing counsel to respondent, instructing him to settle on the terms proposed by opposing counsel. Respondent denies having received this communication from complainant.

Respondent sent another letter to complainant, reiterating the settlement proposal made by opposing counsel and recommending that complainant accept the proposal. Complainant alleges that she noted on a copy of respondent’s July 18 letter that she wished to settle, and returned a faxed copy to respondent. Respondent denies having received this communication, as well.

Respondent did not communicate acceptance of the settlement proposal to opposing counsel. Shortly thereafter, respondent received the communication from complainant advising respondent that his representation was being terminated. The same communications as described above between complainant, respondent, and the second lawyer, also occurred in regard to the second litigation.

The case languished without activity for approximately two months. Counsel for plaintiffs contacted the court and set the case for a one-day trial to the court, commencing on March 5, 2007. Counsel filed a Notice of Trial and mailed a copy to respondent on October 20, 2006. Respondent does not believe he received a copy of the Notice of Trial, and did not notify complainant that a trial had been set.

On or about November 1, 2006, opposing counsel filed a Motion for Judgment on the Pleadings. A copy of the Motion was served on respondent. Respondent admits receiving the Motion. He also admits that he did not respond to the Motion or notify complainant that the Motion had been filed. He contends that he assumed he was off the case. The Motion for Judgment on the Pleadings was granted, as no response was ever filed.

In early February 2007, respondent recalls that he learned from the court that he still was counsel of record. Respondent filed and served a Notice of Intent to Withdraw and a Motion to Withdraw. As with his previous Substitution of Counsel, respondent used the wrong case caption and the wrong case number. Eventually, however, his Motion made its way into the correct court file.

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

Diversion Agreement: 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. 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.

__________________

> Respondent represented a client in criminal cases. Respondent’s client was convicted after a jury trial in each matter. After the trial, respondent advised client of his post-trial and appellate rights. Client wanted to appeal the convictions.

Respondent failed to file the appropriate paperwork to initiate an appeal on behalf of client, and failed to take appropriate action to refer the case to the Office of the Public Defender or to the Office of Alternate Defense Counsel so that an appeal could be initiated by either of those offices.

On learning of his error, respondent took action to obtain other counsel for client to initiate appropriate proceedings to seek reinstatement of client’s post-trial and appellate rights. Respondent offered to testify that his error compromised client’s right to pursue an appeal, thereby amounting to ineffective assistance of counsel with regard to an appeal of client’s cases.

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 mismanaged her trust account. She failed to keep accurate records and she made a mathematical error, which resulted in overpaying herself fees from one client and overpaying herself from unearned retainers from two other clients. She ultimately earned the retainers from all three clients.

Rule Implicated: Colo. RPC 1.15(a).

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

__________________

Respondent represented a criminal defendant and accepted a retainer paid by client’s mother. Before the money was earned (four days after receipt), respondent transferred the money from his COLTAF account to his operating account. Respondent ultimately earned most of the retainer. The rest of the retainer was consumed by the work of another criminal defense attorney hired by respondent to assist in the case.

Respondent represented a second criminal defendant and deposited his retainer into his trust account. After respondent had earned a portion of the money, he transferred the entire retainer into his operating account, before earning all of the retainer. Respondent subsequently earned the entire retainer.

Rule Implicated: Colo. RPC 1.15(a).

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

Confidentiality of Information

In November 2007, respondent disposed of client files by placing the files in the private dumpster with public access outside his office. The files contained legal documents that included personal information of respondent’s former clients, such as names, Social Security numbers, and other types of personally identifying information. Prior to placing the files in the dumpster, respondent took no action to remove or destroy the personal information contained in the various files.

Rule Implicated: Colo. RPC 1.6.

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

Complying With Court Orders

> Respondent, who is not a Colorado attorney but is admitted to practice law in other jurisdictions, was admitted pro hac vice in two Colorado matters, even though she was not eligible for pro hac vice status because she resides in Colorado. Although respondent listed the Colorado law firm address where she is employed as an associate in the motions, she did not expressly advise the courts in the motions that she lived in Colorado, and therefore did not fit the requirements of the pro hac vice rule.

Rule Implicated: Colo. RPC 3.4(c).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend and successfully pass Ethics School within one year, pay all costs within thirty days, and have no disciplinable conduct during a two-year diversion period.

__________________

> Respondent employs and supervises a non-Colorado attorney who is an associate at his firm. Respondent was in a supervisory position. The associate resides in Colorado. In two Colorado matters, the associate was admitted pro hac vice, even though she was not eligible for pro hac vice status because she resides in Colorado. Respondent consulted with the associate prior to her filing the pro hac vice motions, and signed one of the motions. Although the associate listed the Colorado law firm as her own address in the motions, she did not expressly state that she lived in Colorado, and therefore did not fit the requirements of the rule; nevertheless, she was requesting admission pro hac vice. In addition, for a period of approximately one year, there was not qualifying language on the firm’s letterhead reflecting the limitations on the associate’s licensure.

Rules Implicated: Colo. RPC 3.4(c), 5.1(c), and 7.5(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall complete Ethics School, pay all costs within thirty days, and have no other violations during a two-year diversion period.

Criminal Conduct

Respondent was operating a motor vehicle and was involved in a motor vehicle accident, resulting in injuries. Respondent was charged with violations of CRS § 42-4-1301(1)(a), driving under the influence (DUI); CRS § 42-4-1301(2)(a), DUI per se; and CRS § 42-4-1402(1)(2), careless driving causing death/injury. Pursuant the Colorado Express Consent Law, respondent consented to a chemical test to determine her blood alcohol concentration (BAC) at the time of driving. The result of the blood test was 0.239.

Respondent pled guilty and was convicted of violating CRS § 42-4-1301(1)(a), DUI. Pursuant to that conviction, respondent was sentenced to complete alcohol education and therapy, useful public service, restitution to the Colorado State Patrol, and various fines and costs.

Additionally, while respondent was traveling to attend a court hearing on behalf of a client, she received a telephone call on her cell phone from her employer. Respondent and the employer had a dispute concerning respondent’s office responsibilities and obligations. Respondent attended the hearing. After the hearing, respondent contacted her employer and informed the employer that she would be resigning the position she held with the firm at the end of the week. Subsequent to the last conversation with respondent’s employer, respondent contacted the firm’s office manager and informed her she would not be attending a 1:00 p.m. hearing scheduled that day on behalf of another firm’s client. Respondent did not attend the hearing. Respondent’s failure to attend the scheduled hearing resulted in the hearing being continued by the court. Per information provided by respondent, instead of attending the hearing, respondent went to her home and, because of a number of personal issues, attempted suicide.

Rules Implicated: Colo. RPC 8.4(b), 1.3, 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend and complete Ethics School; pay all costs; comply with all conditions of the court sentence; undergo a monitored sobriety program for twelve months, including urinalysis once a month for six months; attend an alcohol abuse/dependency program; and have no other violations during a two-year diversion period.

__________________

> Respondent was charged with violation of CRS § 42-4-1301(1)9(a), DUI; CRS § 42-4-1301(2)(a), DUI per se; and CRS § 42-4-1007(1)(a), weaving. Subject to the Colorado Express consent law, respondent submitted to a blood test to determine his BAC. The result of the test was 0.230.

Respondent was convicted of violating CRS § 42-4-1301(1)(a), DUI. Respondent was sentenced to complete sixty hours of useful public service, twenty-four hours of Level II education, and fifty-two hours of therapy, and was ordered to pay various fines and costs. In addition, respondent was ordered to attend weekly Alcoholics Anonymous (AA) meetings; attend a victim impact panel; read "Under the Influence" and provide a written report to the court; and not to consume or possess any alcohol or illegal substances during a one-year probation period.

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 two years, comply with the court’s sentence, abstain from alcohol, attend weekly AA meetings or the equivalent, and participate in monitored sobriety.

__________________

Respondent and his wife were out of town for their son’s sporting event. During one evening of the trip, respondent and his wife consumed alcohol, and when they returned to their hotel, got into an altercation. The police were contacted and respondent’s wife initially alleged respondent hit her in the face. When they returned to Colorado, respondent’s wife recanted her statement to the police. Respondent voluntarily attended domestic violence (DV) classes in Colorado. Later, respondent entered into a plea agreement in the other state in which he pled to two counts of simple battery (non-DV). Respondent received an eighteen-month period of probation, with imposition of sentence suspended for three years, and eligibility to petition the court for dismissal of the matter after the eighteen-month probation. Respondent self-reported the conviction to OARC.

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 the criminal matter, complete Ethics School, pay all costs within thirty days, and have no other violations during a one-year diversion period.

__________________

Respondent was stopped when she failed to drive in a single lane and was ultimately arrested and charged with DUI. Respondent’s BAC was .145. Respondent pled guilty to driving while ability impaired (DWAI) and failure to drive in a single lane. Respondent was sentenced to probation for one year and agreed to undergo an alcohol evaluation and complete any recommended education/therapy and any other conditions imposed by the probation department. 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 comply with all terms of the criminal matter, complete Ethics School, and pay all costs.

__________________

> Respondent was driving a vehicle when a police officer observed the vehicle weaving and turn right on a red light when that turn was prohibited. The police officer stopped the vehicle and determined respondent had been drinking. The officer conducted the horizontal gaze nystagmus (HGN) test, and believed respondent was under the influence of alcohol. Respondent declined to perform other field sobriety tests. Respondent submitted to a breath test and his BAC was measured at .126. Respondent had a prior DUI in another state eighteen years earlier.

Respondent pled guilty to DWAI and was sentenced to serve fifteen days of jail; however, the court allowed respondent to serve that time in a special program through the jail. In addition, as conditions of his probation, respondent was ordered to abstain from alcohol during a one-year period of supervised probation and to participate in alcohol education and therapy. Respondent also is undergoing a program of monitored sobriety as a condition of probation.

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 the criminal matter, complete Ethics School, pay all costs, abstain from alcohol, provide monthly reports, and have no other violations during a two-year diversion period.

__________________

Respondent and his wife had an altercation at the marital home. During the argument, respondent referenced his wife’s statements and actions and told her if she did or said these things again, he would kill her. Respondent was charged with municipal violations of assault, threats to person/property, and disturbing the peace in Denver Municipal Court. Respondent was convicted by a jury of the municipal charge of threats to person/property. He was found guilty of disturbing the peace and assault. Respondent suffers from bipolar disorder. Respondent self-reported this conviction to OARC.

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 the criminal matter, complete Ethics School, pay all costs within thirty days, and have no other violations during a one-year diversion period.

__________________

Respondent was stopped by police for driving without headlights. Based on respondent’s driving actions, refusal to perform roadside maneuvers, refusal to perform the HGN test, and the strong odor of an alcoholic beverage, respondent was arrested for suspicion of DUI. Respondent submitted to a blood test, which resulted in a BAC of .141. Respondent was convicted of DWAI, second offense.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with the sentence imposed in the criminal case, which include: 365 days’ jail (360 days suspended on successful completion of twenty-four months’ supervised probation); payment of fines and costs; alcohol evaluation, followed by successful completion and payment of any treatment recommended subject to hearing; no further offenses; abstinence from alcohol consumption for two years; attendance at a victim impact panel; and forty-eight hours of useful public service. Additionally, respondent shall use Antabuse, Sobrietor, or Vivitrol (with random breath tests or urinalysis tests) for two years, and attend Ethics School.

__________________

> Respondent was cited for disturbing the peace and assault in connection with a confrontation respondent had with a passenger in another car. Respondent used pepper spray against the alleged victim.

Respondent pled guilty to disturbing the peace. The assault charge was dismissed. Respondent received a one-year deferred judgment with unsupervised probation and payment of court costs, and was ordered to attend a specific conflict management course. Respondent timely completed the court-ordered conflict management course. Respondent timely reported his criminal conviction to OARC.

At the request of OARC, respondent underwent an anger management evaluation conducted by a licensed psychologist. The psychologist concluded that: (1) respondent did not need additional counseling or treatment; (2) the incident was an isolated event; and (3) therapeutic intervention was not warranted.

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, pay all costs, and have no other violations during a one-year diversion period.

__________________

Respondent was issued a summons under CRS § 18-6-401, for unlawfully and with criminal negligence assaulting his son, a minor. Respondent entered into a one-year unsupervised deferred judgment. The deferred judgment was for violating CRS § 18-9-108, a class 3 misdemeanor, for "disrupting a lawful assembly."

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with the conditions of the deferred judgment, pay all costs, and have no disciplinable conduct for one year.

__________________

Respondent was charged under CRS § 18-18-406(4)(a)(I) with possession of more than one ounce, but less than eight ounces, of marijuana (a class 1 misdemeanor). Respondent entered into a one-year deferred judgment agreement for the offense of possession of less than one ounce of marijuana.

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; comply with all recommendations of the evaluator; provide OARC with quarterly progress reports during the term of the diversion; abstain from the use of mood-altering substances, including marijuana, during the course of the diversion, unless prescribed by a duly licensed Colorado physician; submit to full screen urinalysis testing at least one time per month for a period of one year; attend and successfully pass Ethics School within one year; pay all costs; and have no disciplinable conduct for one year.

__________________

Respondent was involved in a one-car accident in rural Colorado. Respondent drove his vehicle off the road and crashed into several large rocks.

A state trooper was dispatched to the scene of the accident, and determined that respondent had been drinking prior to the accident. Respondent submitted to a breath test and his BAC was measured at .110.

Respondent pled guilty to DWAI. That day, he was sentenced to serve six months of jail, but the court allowed day-for-day credit for any in-patient treatment program that respondent would enroll in. The next day, respondent enrolled in and entered the Salvation Army Adult Rehabilitation program, which is a 180-day comprehensive residential treatment program.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Ethics School, comply with all conditions associated with the court sentence, pay all costs, complete the Salvation Army Adult Rehabilitation Center program, and have no disciplinable conduct during a two-year diversion period.

Conduct Prejudicial to the Administration of Justice

Respondent engaged a court reporting service to report depositions for him. Respondent did not tell the court reporting service that his client would be responsible for paying its fees and that he would not. The court reporting service transcribed the depositions and sent them to respondent, along with invoices for its work. Respondent did not pay the court reporting service.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall pay the court reporting service the principal owed to it within ninety days and all interest owed to it through the date of payment of the principal within 180 days, attend and successfully pass Ethics School within one year, pay all costs, and have no disciplinable conduct for one year.

__________________

Respondent was appointed to handle a criminal matter. On the first day of trial, respondent failed to appear in court. The court received a message from respondent’s spouse that respondent was under a doctor’s care and would not be participating in the trial for at least two or three days. The prosecutors and the defendant appeared. The court vacated the trial date. Respondent appeared in court two days later and the court reset the trial date. During trial and after the prosecution rested, but before the defense presented its evidence, respondent sought a continuance. The court granted a continuance for a half-day. The following day before the jury was brought in, respondent again requested another continuance. The court held a hearing in Chambers concerning respondent’s request. During the hearing, respondent broke down and disclosed he was having health issues. The court found that respondent could not continue to represent the defendant effectively, and declared a mistrial. The week following respondent’s breakdown, respondent declared he was ready to proceed in another criminal case.

Rule Implicated: Colo. RPC.8.4(d).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must continue with mental health treatment and medication management recommendations, have a limited practice monitor, pay costs, and attend Ethics School.

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