Search



Not a CBA Member? Join Now!
Find A Lawyer Directory
STRATUM
Find A Lawyer Directory
Know Your Judge

TCL > January 2009 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

The Colorado Lawyer
January 2009
Vol. 38, No. 1 [Page  93]

© 2009 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

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 August 20, 2008 through November 18, 2008, at the intake stage:

  • Regulation Counsel entered into twelve Diversion Agreements involving twelve requests for investigation.
  • ARC entered into eight Diversion Agreements involving nine requests for investigation.
  • No Diversion Agreements were submitted to the PDJ for approval.
  • ARC issued one private admonition concerning one request for investigation.
  • The PDJ did not approve any private admonitions.

Determining Whether Diversion is Appropriate

Regulation Counsel reviews several factors to determine whether diversion is appropriate. Diversion is appropriate when:

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. 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; classes are conducted by attorneys from the OARC. The 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 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 August 20, 2008 through November 18, 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
  • safekeeping of property, implicating Colo. RPC 1.15
  • trust account issues, implicating Colo. RPC 1.15
  • candor to the tribunal, implicating Colo. RPC 3.3
  • fairness to opposing party and counsel, implicating Colo. RPC 3.4
  • dealing with unrepresented persons, implicating Colo. RPC 4.3
  • responsibilities regarding nonlawyer assistants, implicating Colo. RPC 5.3
  • 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 August 20, 2008 through November 18, 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

> Respondent suffers from bipolar disorder and has been under the care of a psychiatrist for approximately eight years. In November 2007, respondent failed to get his prescriptions renewed because of a mix-up. Accordingly, respondent failed to take his medication and went into a "manic phase." Once respondent began taking his medication, it took several months to regulate the medication. During the time period between late 2007 and February 2008, respondent handled two client matters.

In early December 2007, a client hired respondent to handle a criminal case involving domestic violence. A preliminary hearing was scheduled for January 2008. The client paid respondent a $2,000 fee. Respondent met with the client and a friend who agreed to assist with the investigation. The fee agreement provided a flat fee of $2,000. Respondent failed to deposit the check into his COLTAF account. Respondent did not enter his appearance in the criminal case and failed to appear at the preliminary hearing. Thereafter, the client was unable to contact respondent.

The client demanded an accounting and a refund. Respondent prepared the accounting and eventually refunded the client $1,700 ($1,200 directly to the client and $500 that had been paid to the client’s friend for investigative services, which was returned by the friend to the client). Although there was potential harm, there was no actual harm, because the client attended the preliminary hearing and the matter is still ongoing.

In another client matter, respondent was retained to defend two individuals and an entity in a civil dispute. The client paid $3,000, of which $2,500 was a retainer for legal services and $500 was a cost retainer. The $2,500 check was not deposited into respondent’s COLTAF account. The $500 check for costs was deposited in the COLTAF account.

Respondent performed legal services for the clients. However, when he was in his manic phase in early 2008, he failed to communicate with the clients concerning the status of the case.

Respondent went on inactive status. He failed to notify his clients and the court that he went on inactive status and filed to withdraw from the matter.

Respondent prepared an accounting that showed respondent earned $2,175 of the $2,500 retainer. Respondent refunded $325. Respondent spent the full $500 for costs.

The clients now have the file, including respondent’s work product. There was no actual harm to the clients.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.16, and 1.15(a) and (c).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and Trust Account School, and shall follow a psychiatric treatment plan during the three-year Diversion Agreement.

__________________

> Respondent was plaintiff’s counsel in an employment case. Respondent failed to timely obtain from opposing counsel acceptances of service on defendants. Respondent also failed to otherwise timely serve process on defendants. Opposing counsel moved to dismiss and the court so ordered. Respondent re-filed the case. Defendants were personally served with process. Opposing counsel then filed a second motion to dismiss, on grounds that the statute of limitations had run and that equitable tolling should not apply. The stress exacerbated respondent’s existing clinical depression and was a factor in respondent’s increased consumption of alcohol.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; submit to residential rehabilitation, alcohol monitoring, and alcohol counseling; refrain from the use of alcohol; and cooperate with a practice monitor during the three-year Diversion Agreement.

__________________

> Complainant retained respondent to commence a support and paternity action and to retrieve property that was in the possession of complainant’s ex-wife. Respondent missed a deadline to file a motion for reconsideration in the paternity matter, which resulted in complainant being unable to dispute paternity. Respondent’s office received a letter from opposing counsel for respondent’s client to pick up complainant’s property. Respondent’s secretary failed to scan and e-mail the letter to respondent, so respondent never read it. Respondent also failed to notify complainant about the deadline for retrieval of his property, which resulted in the property being disposed of without complainant’s knowledge.

Rules Implicated: Colo. RPC 1.3, 1.4, and 5.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and agree to a practice monitor during the two-year Diversion Agreement.

__________________

> Due to health issues, respondent failed to timely respond to discovery on behalf of his client, which resulted in dismissal of his client’s civil case. Respondent filed a response to the discovery once the motion for summary judgment was filed; however, the court granted summary judgment and denied respondent’s motion for reconsideration. Respondent also failed to timely communicate with his client during this time.

Rules Implicated: Colo. RPC 1.1, 1.3, and 1.4.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall complete Ethics School and have a practice monitor during the two-year Diversion Agreement.

__________________

> Respondent filed a motion in district court. At respondent’s request, a court date was set; however, respondent failed to inform his client of the court date until more than two weeks after the hearing date. Consequently, the matter was dismissed due to their failure to appear. Respondent advised his client that he would file a motion to rescind the dismissal. Although respondent filed a Notice of Withdrawal, he never filed a motion to rescind the dismissal.

Rules Implicated: Colo. RPC 1.3. and 1.4.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was retained to file a bankruptcy petition for a client. Respondent spoke with the client and the client’s creditors, and had the client complete worksheets, which the client returned. However, more than a year passed and respondent still had not filed the bankruptcy petition. After being contacted by the OARC, respondent gave the client the option of having respondent refund the retainer or file the bankruptcy petition. Respondent ultimately refunded the retainer to the client.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

Safekeeping Property; Trust Account Issues

> A chiropractor began treating respondent’s client in August 2006 for injuries sustained in an automobile accident. Respondent knew that his client was being treated by the chiropractor pursuant to a lien executed by the client prior to resolution of the case. Respondent distributed all of the settlement proceeds, except attorney fees, directly to his client. Respondent failed to notify the chiropractor he was not honoring the lien.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and reimburse the chiropractor $7,500 during the one-year Diversion Agreement.

__________________

> Respondent had an overdraft in his client trust account. At the time of the overdraft, respondent should have had money in trust for twelve clients. Respondent withdrew funds from the trust account for his fees, after reviewing billings from a billing service he used. The billing service made numerous mistakes, including showing client deposits or double deposits that were not actually made. Respondent’s spouse, who was the bookkeeper, was not current in reconciling the account and should have caught the errors made by the billing service. Respondent fully reimbursed the trust account for the money that should have been in it at the time of the overdraft.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, abide by financial monitoring conditions, and pay all costs associated with the two-year Diversion Agreement.

Candor Toward the Tribunal

> Respondent failed to adequately disclose the contested nature of an allocation of parental responsibilities action to the court in an adoption proceeding.

Rules Implicated: Colo. RPC 3.3(a)(1) and 8.4(c) and (d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

Complying With Court Orders

> In February 2007, the court granted temporary custody of several children to the Department of Human Services (DHS) and ordered placement outside the home. The court appointed respondent as the children’s guardian ad litem (GAL).

The complaining witness and his wife (collectively, CW) were the foster parents for two of the children. CW wished to adopt them, if possible. When the biological parents failed to comply with the court-ordered treatment plan, the county moved to terminate their parental rights.

Chief Justice Directive 04-06 states that a GAL shall conduct an independent investigation in a timely manner, which includes visiting the home from which the child is removed, when appropriate. Based on another foster parent’s report, DHS removed the children from CW’s home in January 2008. DHS informed respondent about the removal. Respondent did not interview CW or visit their home after the removal, or speak with the foster parent whose report resulted in the children’s removal.

CW objected to the removal and asked that the children be returned. When that did not happen, CW hired counsel. In March 2008, CW’s attorney filed a motion for an emergency hearing.

At a hearing in March 2008, the court found that although DHS had a good-faith basis for concern, DHS overreacted. The court found the children were not endangered in placement with CW, and removal from CW’s home was not in the children’s best interests. The court declined to place the children with CW, because moving them yet again would not be in their best interests. Respondent filed a motion to withdraw from the case.

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

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

Dealing With Unrepresented Person

> Respondent represented a criminal defendant in a child-prostitution case. Respondent wanted to speak to the child–witness, who resided outside Colorado. Respondent and his investigator first spoke to the child’s mother, by phone. Thereafter, the mother contacted the sheriff’s department in Colorado. The mother stated that respondent advised her that if her daughter testified, she would be subject to additional criminal charges. As a result of the mother’s statements, the sheriff’s department initiated an investigation in which pretext phone calls were made to respondent, wherein a deputy pretended to be the child–witness. During the course of the conversation, respondent and the "child–witness" discussed issues relating to proper service of a subpoena, potential charges the child might face by testifying, whether the child was in compliance with her own deferred judgment, and what would happen if the child–witness did not testify. Respondent ultimately advised her to consult counsel.

Respondent was charged with intimidating a witness and witness tampering. Respondent received a two-year deferred prosecution on both charges.

Rule Implicated: Colo. RPC 4.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all terms of the deferred prosecution, attend Ethics School, and pay all costs associated with the two-year Diversion Agreement.

Criminal Conduct

> In February 2008, respondent was stopped by a police officer for weaving. The office detected an odor of alcohol and asked respondent to perform field sobriety tests. Respondent refused to perform the tests, and later refused to provide a breath or blood sample to determine his blood alcohol content (BAC).

In March 2008, respondent entered an inpatient alcohol treatment program. He was discharged from that treatment program in April 2008 and has been following the aftercare recommendations since that time. As part of his aftercare regimen, respondent meets regularly with a licensed therapist.

In May 2008, respondent pled guilty to the offense of Driving Under the Influence (DUI) of alcohol. In July 2008, respondent was sentenced to eighteen months of probation.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, comply with the court sentence, abstain from alcohol, comply with the recommendation of the treating therapist, submit to random urinalysis (UA) or breathalyzer tests for six months, and pay all costs associated with the two-year Diversion Agreement.

__________________

> In June 2008, respondent was charged with violations of CRS § 42-4-1101 (speeding); CRS § 18-18-406(1) (possession of one ounce or less of marijuana); and CRS § 18-18-428 (possession of drug paraphernalia). In August 2008, respondent was convicted of violation of CRS § 18-18-428 (possession of drug paraphernalia).

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

__________________

> In March 2008, respondent was charged with violations of CRS § 42-4-1301(a) (driving a motor vehicle while under the influence of alcohol); and CRS § 42-4-1007(1)(a) (weaving). In March 2008, respondent submitted to a chemical test to determine respondent’s blood alcohol level at the time of driving a motor vehicle. Respondent submitted to a blood test. The results of the chemical test indicated a BAC of 0.158. In July 2008, respondent was convicted of violating CRS § 42-4-1301(b) (driving while ability impaired (DWAI)).

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all the conditions of the court sentence, attend Ethics School, and pay all costs associated with the one-year Diversion Agreement.

__________________

> In June 2007, respondent was charged with violations of CRS § 42-4-1301 (DUI); CRS § 42-4-1301(2)(a) (driving a motor vehicle with a BAC of 0.080 or greater); CRS § 42-4-604 (red light violation); and CRS § 42-4-1402 (careless driving). Respondent submitted to a chemical test to determine respondent’s BAC at the time of driving a motor vehicle. Respondent elected to submit to a blood test and signed the blood withdrawal consent form. The results of the chemical test indicated a BAC of 0.169. In June 2008, respondent was convicted of violating CRS § 42-4-1301 (DWAI with prior DUI).

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all the conditions of the court sentence, attend Ethics School, abstain from the use of alcohol and submit to monitored sobriety, and pay all costs associated with the one-year Diversion Agreement.

__________________

> In the early morning hours, a police officer observed respondent’s vehicle fail to stop for a red light before turning right, and then weave several times. The officer stopped respondent and detected an odor of alcohol. When questioned, respondent admitted to having a couple of drinks. Respondent was unable to perform roadside sobriety tests satisfactorily and was arrested on suspicion of DUI. Respondent’s BAC was 0.221. A jury convicted respondent of DUI. This is his first alcohol-related conviction. Respondent timely reported his conviction to the OARC.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all the conditions of the county court sentence, attend Ethics School, and pay all costs associated with the two-year Diversion Agreement.

__________________

> In August 2007, a sheriff’s deputy observed a vehicle weaving. Respondent was the passenger in the vehicle. When the deputy contacted the driver, he noticed an odor of alcohol and called for a backup officer. The driver did not perform the roadside sobriety tests satisfactorily, so the deputy began to place him under arrest. Respondent got out of the car, approached the deputies and the driver, and asked what was going on. The second deputy ordered respondent to stay inside the car until they were done with the driver. Respondent refused. The deputy repeated his instruction, but respondent still did not comply. The deputy arrested respondent for obstructing a peace officer.

In July 2008, respondent pled guilty to obstructing a peace officer and received a two-year deferred judgment. Respondent timely reported her conviction to the OARC.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all the conditions of the county court sentence, attend Ethics School, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent was convicted of DUI. This was 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 abstain from the use of alcohol, submit to random UAs twice a month, participate in individual therapy, and use a monitored sobrietor during the two-year Diversion Agreement.

© 2009 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=2009.


Back