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

The Colorado Lawyer
October 2008
Vol. 37, No. 10 [Page  105]

© 2008 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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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 May 16, 2008 through August 19, 2008, at the intake stage:

  • Regulation Counsel entered into seven Diversion Agreements involving eight requests for investigation
  • ARC entered into seven Diversion Agreements involving eight requests for investigation
  • PDJ approved two Diversion Agreements involving two requests for investigation
  • ARC did not issue any private admonitions
  • PDJ did not approve any 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 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 that are conducted by attorneys from 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 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, 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 16, 2008 through August 19, 2008 generally involve the following:

  • an attorney’s neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 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
  • trust account issues, implicating Colo. RPC 1.15
  • withdrawal from representation issues, implicating Colo. RPC 1.16
  • conflict of interest issues, implicating Colo. RPC 1.9
  • restrictions on the practice of law, implicating Colo. RPC 5.6(a)
  • 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 during May 16, 2008 through August 19, 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.

Diligence and/or Failure to Communicate

> The client hired respondent in November 2006 to represent him on a felony criminal case in Denver and another in Aurora. Respondent was paid a $2,500 retainer.

Following a preliminary hearing in the Denver case, the client was arrested on federal charges. Because respondent declined to accept the federal case, the client was represented by a federal public defender. The client was dissatisfied with respondent’s representation and hired new counsel to represent him in the Denver case.

The client wanted to delay the Aurora case as long as possible. Rather than withdrawing from the Aurora case, respondent failed to attend a court hearing. The client was incarcerated and also did not appear. Respondent did no further work on the Aurora case and had no further communication with his client concerning that case. The federal public defender obtained a dismissal of the Aurora case after the federal case was resolved.

Respondent was retained to represent another client in an immigration matter. The client had been in custody for approximately two months. Respondent was paid $4,000.

Respondent entered his appearance and filed a motion to continue a hearing set for the next day. The motion to continue was not granted and respondent failed to appear. The hearing was continued to late November 2006. Respondent appeared in late November 2006 but sought another continuance because of the late receipt of documents from Immigration and Customs Enforcement. Respondent appeared in February 2007 and sought another continuance. Respondent was allowed to withdraw in mid-April 2007, when he appeared in court.

During the representation, respondent failed to provide bi-weekly or monthly accountings as set forth in the fee agreement. Respondent had refunded $1,250 of the $4,000 retainer before the Diversion Agreement.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.16, and 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall: attend Ethics School; complete four hours of CLE in criminal procedure; agree to a practice monitor; refund $1,500 to his client in the criminal matter within ten days of signing the Diversion Agreement; write off any remaining balance of any additional fees claimed; and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent agreed to provide legal representation to husband and wife for husband’s immigration matter. Clients believed respondent was going to file all of their immigration documents at once, to expedite the immigration process. Respondent believed that, for financial reasons, clients wanted him to file the immigration documents sequentially, which would have resulted in a longer process. Respondent did not confirm his understanding in writing.

Respondent’s office filed the I-130 Petition for Alien Relative form (I-130) for the husband, but did not promptly provide a copy to the clients. Although respondent’s office later filed additional immigration documents for the husband, they were not accompanied by an approved I-130 and, as a result, were denied.

Clients became frustrated with respondent and decided to hire new counsel. On two occasions, clients requested an accounting and refund from respondent. Respondent did not provide an accounting or refund.

Rules Implicated: Colo. RPC 1.4, 1.16(d), and 1.15(c).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall: complete Ethics School; refund all monies paid to respondent within sixty days; participate in a law office audit; have no further violations; and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent did not file status reports as ordered by the court, did not attend a court-ordered hearing, and did not attend his client’s final orders hearing. Respondent’s conduct did not prejudice his client in this case. As mitigation, respondent had personal and emotional problems during the relevant time period and he had no prior discipline in almost twenty-five years as a lawyer.

Rule Implicated: Colo. RPC 1.3.

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

__________________

> Respondent negligently supervised an employee who misled clients into paying fees directly to her. That employee is being prosecuted by a district attorney’s office for theft.

Rules Implicated: Colo. RPC 1.3, 5.3(a) and (b), and 5.5(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall: attend Ethics School and Trust Account School; refund $500 to one client; have no further violations; and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was retained by the client in August 2006 and received a $2,000 retainer. There was no written fee agreement. The client was the beneficiary of a former boyfriend’s Individual Retirement Account (IRA). Two months after the client received the IRA funds, the former boyfriend’s wife made a claim against the funds. During the representation, respondent failed to provide periodic itemized bills and failed to return calls to the client in a timely fashion. Because no real progress had been made on the case due to respondent’s neglect, the client fired respondent in July 2007 and requested her file. It took two months for her to obtain her file.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.5(b), and 1.16(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall: attend Ethics School and Trust Account School; refund to the client $1,250 within thirty days and write off any remaining balance; and pay all costs associated with the one-year Diversion Agreement.

Conflicts of Interest

> Respondent and members of respondent’s firm represented an individual and entities owned by the individual in various business and real estate transactions and litigation matters. In one matter, respondent gave advice to a business partner of one of his clients and, after the client terminated respondent’s representation, continued to advise the partner in a manner that conflicted with the client’s interests. Respondent shared confidential information with the client’s partner.

Rules Implicated: Colo. RPC 1.9(a) and 1.6.

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 other violations.

Withdrawal From Representation Issues

> Respondent represented a client in obtaining a default judgment in a collection matter. After securing the judgment but before proceeding with collection, respondent learned the amount of the funds loaned by the client to defendant as secured by the default judgment was not accurate. Respondent did not want to assist the client in perpetrating a fraud on the court, but was uncertain how to withdraw from the case without negatively impacting the client. Respondent did not withdraw and, instead, failed to communicate with the client regarding the collection matter. Ultimately, the client hired new counsel who negotiated a settlement for the actual amount of funds loaned.

Rules Implicated: Colo. RPC 1.4 and 1.16.

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 other violations.

Fees/Trust Account Issues

> Respondent was convicted by a jury of interference with a police officer and failure to obey a lawful order of a police officer. This conviction was based on an incident in which officers were trying to obtain respondent’s identification information after they had been sent to a home. Respondent attempted to leave the premises to obtain his passport so that he could prove who he was. He had been ordered not to leave. Respondent was sentenced to pay a fine of $350, and no other penalties were imposed. He has paid the fine.

In another matter, client’s mother hired respondent to get her son out of jail. Respondent also agreed to handle a speeding ticket that the client had received. The mother paid respondent $1,500. Respondent does not know what he did with the money but thinks he put it in trust. He thinks he had a fee agreement but cannot find a copy. The mother said that respondent never gave her a fee agreement; he only gave her a receipt for the $1,500.

The mother believes she spoke with respondent approximately five times after she had paid him, and that on one occasion, he said he was working on the jail matter. Respondent stated that he spoke by phone with the client while he was in jail.

Respondent told the client’s mother that her son had a court date on the speeding ticket of March 12, 2007. The client missed the court date because he was in jail and no one told the court. Eventually, the mother arranged a court date for the speeding ticket and she stated that it was dismissed.

Respondent talked to the judge’s clerk twice to find out if there was anything that could be done for the client. The response was not favorable. The client was placed on the work release program, but was not released from jail until June 2007.

The mother wrote a letter to respondent on August 5, 2007, asking for a refund of the $1,500 she paid. Both the mother and the client signed that letter. Respondent did not respond.

After being contacted by OARC, respondent refunded $1,500 from his COLTAF account. Respondent admits he did not handle the fee appropriately and admits he has no record of what he did with the money.

Rules Implicated: Colo. RPC 1.15(a), 1.4(a), 1.5(b), and 8.4(b).

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

__________________

> In November 2007, respondent was contacted by a family about representing a client in a criminal case. Respondent agreed to represent the client and requested a $10,000 retainer. In late November 2007, respondent received $5,000 as a fee retainer to represent the client.

Respondent did not provide the client with a written fee disclosure or written fee agreement. Respondent met with the client several times, obtained discovery materials, discussed the case with the lawyer for a codefendant, engaged in preliminary discussions with the district attorney, appeared at one court hearing, and took other action to represent the client.

In January 2008, the client terminated respondent and hired another lawyer to represent him. In late January 2008, respondent sent the client an itemized billing statement showing that he earned the entire $5,000 retainer that was paid, and that he was owed additional sums for services provided to the client. Respondent has elected not to pursue collection of any unpaid sums reflected on that billing statement.

Rule Implicated: Colo. RPC 1.5(b).

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

__________________

> Respondent was retained to represent a client on a motion to reopen a case. Respondent advised the client that the retainer fee would be $1,500. The client paid $700, but never paid the balance due. The client never returned to respondent’s office to provide the necessary documentation needed to file a motion to reopen.

Respondent never contacted the client to ask him if he wanted to go forward with the case or what he wanted respondent to do with the retainer. Respondent never deposited the funds into his trust account or refund the $700 paid by his client until contacted by the OARC.

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

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

Restrictions on Right to Practice

> Respondent hired an attorney to work for respondent. Two months later, respondent presented the attorney with a short letter and an employment agreement that restricted the employee’s right to practice after termination of employment. Respondent’s letter to the attorney stated that the employment agreement is a requirement to work at respondent’s firm.

Rule Implicated: Colo. RPC 5.6(a).

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

Criminal Conduct

> In January 2008, respondent pled guilty to reckless endangerment, in violation of CRS § 18-3-208, a class 3 misdemeanor. Respondent received a deferred sentence and was ordered to complete various conditions, including unsupervised probation, for the period of one year.

Rule Implicated: Colo. RPC 8.4(b).

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

__________________

> In June 2007, after a two-car accident, respondent was arrested and charged with violation of CRS § 42-4-1402, careless driving, and CRS § 42-4-1301, driving under the influence (DUI) of drugs or alcohol. In December 2007, respondent was convicted of violation of CRS § 42-4-1301(1), driving while ability impaired (DWAI). The disposition of the case was a deferred judgment and sentence. Respondent was sentenced to twelve months’ private probation; twenty-four hours of Level II alcohol education; twenty-four hours of useful public service; no use of alcohol or unprescribed medication; no use of prescribed pain medications while driving; no violation of the law except minor traffic violations of four points or fewer; and 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 all conditions of the court sentence; attend Ethics School; have no additional disciplinable conduct; and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent had an altercation with his ex-wife that arose out of an argument respondent had with their teenage daughter. Respondent’s ex-wife attempted to intervene by standing between respondent and their daughter. Respondent grabbed his ex-wife by her hair at the nape of her neck and pushed her out of the way. She started to fall against a wall, but caught herself. The ex-wife called the police, and respondent was arrested and later pled guilty to phone harassment, nondomestic violence, a class 3 misdemeanor.

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; attend Ethics School; have no additional disciplinable conduct; and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was arrested in March 2002 for suspicion of DUI. She was given a breathalyzer test. Her blood alcohol level was .101. In October 2002, respondent was convicted of violating CRS § 42-4-1301(1)(b), DWAI, a misdemeanor. In January 2004, respondent was sentenced to eighteen months of alcohol evaluation and supervision, a fine, court costs, and twenty-four hours of community service. Respondent successfully completed all of the conditions of her sentence.

Respondent did not provide the OARC with a written report of this 2002 conviction as required under C.R.C.P. 251.20(b). This conviction was reported to the OARC by a third party in 2007.

Rule Implicated: Colo. RPC 8.4(b).

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

__________________

> Respondent was convicted of two misdemeanor charges in two cases, one involving harassment and the other a violation of a protective order. She received a deferred sentence on the harassment charge during a twenty-four-month probation, and was given twenty-four months’ probation on the violation of a protective order.

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 two criminal cases against her; attend Alcoholics Anonymous or another equivalent recovery program on a weekly basis or more often, if requested by a mental health professional, and report so on a quarterly basis; abstain from the use of alcohol and be monitored; pay all costs within thirty days; and have no additional disciplinable conduct during the three-year Diversion Agreement.

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