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

The Colorado Lawyer
April 2009
Vol. 38, No. 4 [Page  121]

© 2009 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 November 19, 2008 through February 11, 20 09, at the intake stage:

  • Regulation Counsel entered into twelve Diversion Agreements involving fourteen requests for investigation.
  • ARC entered into one Diversion Agreement involving one request for investigation.
  • The PDJ did not approve any Diversion Agreements.
  • ARC did not issue any private admonitions.
  • The PDJ did not approve any private admonitions.

Determining if 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. 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 shorter than one year and no longer than three years.

Purpose 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 November 19, 2008 through February 11, 2009 generally involve the following:

  • scope of representation and allocation of authority between client and lawyer, implicating Colo. RPC 1.2
  • neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4, where the client is not harmed, restitution is paid to redress the harm, or malpractice insurance exists
  • fees issues, implicating Colo. RPC 1.5
  • trust account issues, implicating Colo. RPC 1.15
  • failure to comply with a court order, implicating Colo. RPC 3.4(c)
  • threats to prosecution, implicating Colo. RPC 4.5
  • criminal conduct, 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 November 19, 2008 through February 11, 2009. The sample gives a general description of the misconduct, the Colorado Rule (or Rules) of Professional Conduct implicated, and the corresponding conditions of the Diversion Agreement.

Competence/Scope of Representation and
Allocation of Authority Between Client and Lawyer

> In March 2007, respondent was retained to represent the client in a criminal matter pending in district court. A flat fee of $5,000 was paid in March 2007 and deposited into respondent’s COLTAF account. Pursuant to the written fee agreement, respondent disbursed $2,500 to himself on his written entry of appearance being filed with the court. The remaining $2,500 was disbursed to respondent in June 2007.

In March 2007, respondent appeared in district court and set the matter for a jury trial to commence in August 2007. In April 2007, there was a scheduled motions hearing. Respondent met with the District Attorney and negotiated a plea agreement. Respondent’s client entered a plea on that date. It is noted that respondent did not prepare or file any motions on behalf of the client.

In May 2007, respondent appeared at the sentencing hearing with the client. The client was sentenced on two cases to six years with the Department of Corrections to run concurrent with sentencing from a third case. Later in May 2007, respondent prepared a Motion for Reconsideration of Sentence. Respondent was instructed not to file the Motion for Reconsideration of Sentence until the client reviewed the motion.

In June 2007, respondent filed a Motion to Withdraw as attorney of record in the underlying case. Later in June 2007, respondent spoke with the client via telephone and agreed to make a number of corrections and additions to the Motion for Reconsideration of Sentence. In July 2007, the court granted respondent’s Motion to Withdraw.

In August 2007, without the client’s authorization, and after respondent had been removed as attorney of record, respondent filed a Motion for Reconsideration of Sentence that did not include the modifications or additions as discussed during the respondent–client telephone conference in June 2007. The Motion for Reconsideration of Sentence filed by respondent did not contain any substantive basis or reason for the court to reconsider the sentence imposed. During the pendancy of respondent’s representation, there was only a minimum amount of communication between the client and the respondent.

Rules Implicated: Colo. RPC 1.2(a), 1.3, 1.4, and 1.5.

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

Diligence and/or Failure to Communicate

Respondent neglected to handle a simple probate matter over an extended period of time. Respondent failed to account for a retainer the client had paid to him. Respondent failed to withdraw, even though he had effectively terminated his services on the client’s behalf.

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

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

__________________

> Respondent represented father in a post-decree domestic matter regarding parenting time. Mother was represented by counsel.

In June 2008, the court held a hearing and issued verbal orders concerning parenting time. At father’s request, respondent volunteered to prepare the proposed written order. The judge instructed respondent to draft the order and provide a copy to opposing counsel within seven days. Respondent failed to comply with the judge’s instruction.

Mother had difficulty exercising her parenting time when father disputed the days and times mother sought to visit with the child. Without a written order, local authorities declined to help mother enforce her parenting time. Mother subsequently obtained a transcript of the June 2008 hearing and asked her attorney for help in getting a written order. Mother’s attorney filed a motion asking the court to approve the transcript as the written order. The court granted the motion in late October 2008.

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

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

__________________

> In July 2008, respondent was ordered to prepare written permanent orders in his client’s divorce case and failed to do so. In August 2008, the court was unable to leave respondent a message about his failure to submit the orders because his telephone mailbox was full. In September 2008, the court left a message for respondent concerning his failure to submit the orders. Respondent did not contact the court. There is a factual dispute concerning respondent’s communication with his client during this time period. The client hired new counsel. Respondent faxed a draft of the permanent orders to his client’s new attorney in October 2008. As of late November, no orders had been filed.

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’s law firm was retained to represent the client in a dissolution of marriage matter. Respondent ordered a house appraisal on behalf of the client but failed to submit the appraisal to the court for its consideration, ultimately affecting the amount of maintenance awarded to the client.

The client also gave respondent information, which, if proven, had an impact on the amount of maintenance she received. Respondent failed to follow up on the information the client provided.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall complete Ethics School, refund to the client the fees paid, and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent claims he was retained to represent the client on a workers’ compensation matter. Although the client signed a contingency fee agreement, he left respondent’s office believing he made it clear to respondent that he did not need respondent’s services as a workers’ compensation lawyer.

Approximately eight months later, after learning that respondent apparently was representing him in the workers’ compensation matter, the client sent a letter to respondent terminating the attorney–client relationship. The day after being retained, respondent had two telephone calls with the client that lasted three minutes; otherwise, respondent had no contact with the client.

Rule Implicated: Colo. RPC 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.

Threatening Prosecution

> Respondent was retained to represent the father in a custody action. During the representation, respondent sent numerous e-mails to opposing counsel wherein he made threats to do everything in his power to put her client (the ex-wife) in jail; press charges against her for false reporting and domestic violence; and impose the law on her by virtue of contempt.

Respondent also told opposing counsel that he would not stop until her client was behind bars, even if it took him a year. In one e-mail to opposing counsel, respondent included a portion of an e-mail sent to him by his client that referred to the ex-wife in an extremely derogatory manner.

Rule Implicated: Colo. RPC 4.5.

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.

Criminal Conduct

> In March 2008, respondent was charged with driving while under the influence of alcohol (DUI), in violation of CRS § 42-4-1301(1)(a); DUI per se, in violation of CRS § 42-4-1301(2)(a); speeding, in violation of CRS § 42-4-1101(1); and driving while ability impaired (DWAI), in violation of CRS § 42-4-1301(1)(b). Respondent’s blood alcohol concentration (BAC) was 0.082.

In September 2008, in county court, respondent pled guilty and was convicted of DWAI. Respondent was sentenced to eighteen months of supervised probation. In addition, he was ordered to complete twenty-four hours of useful public service, pay various fines and costs, attend "persistent drunk driving school," and submit to the County Probation Department (Department) for an alcohol evaluation. The terms and conditions of the Department require respondent to participate in a monitored sobriety program of random breath tests for a period of twelve months. The Department also required respondent to complete twenty-four hours of Level II education and sixty-eight hours of outpatient therapy by October 2009.

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, have no disciplinable conduct for eighteen months, and pay all costs associated with the eighteen-month Diversion Agreement.

__________________

> In April 2007, respondent was charged with DUI and failing to drive in a single lane, in violation of CRS § 42-4-1007(1)(a). Respondent refused to choose a chemical test to determine the BAC at the time of driving.

In November 2007, respondent was charged in another county with DUI and driving vehicle with license under restraint, in violation of CRS § 42-2-138(1)(a). Pursuant to the Colorado Express Consent law, respondent submitted to a chemical test (blood test) to determine his BAC at the time of driving. The test result indicated a BAC of 0.317.

In May 2008, respondent pled guilty to violation of CRS §§ 42-4-1301(1)(a) and 42-2-138(1)(a), in the first county court case; later that month, respondent pled guilty to violation of CRS § 42-4-1301(1)(b) in the second county court case.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; have no disciplinable conduct for three years; comply with the court sentence; attend Alcoholics Anonymous (AA) or an equivalent recovery program; participate in the MEMS 3000 alcohol monitoring system twice daily for one year; and pay all costs associated with the three-year Diversion Agreement.

__________________

> In August 2008, respondent was stopped by a police officer for speeding and passing a vehicle on the right in a bike/parking lane. The officer smelled the odor of alcohol and asked respondent to perform field sobriety tests. Respondent performed the tests, and later provided a breath sample that tested his BAC as .104.

In October 2008, respondent pled "no contest" to the offense of DWAI. He was sentenced to a period of probation for one year, as well as other conditions of probation.

At the time of sentencing, the judge ordered respondent to report the conviction to the appropriate licensing authorities, because respondent was a lawyer. The judge notified the OARC of the case and the disposition. Respondent failed to report the conviction to the OARC within ten days, as required by C.R.C.P. 251.20(b).

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

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

__________________

> In August 2007, respondent spoke with his wife by mobile phone while he was driving. Suspecting that respondent had been drinking, respondent’s wife called local law enforcement and asked them to locate respondent for his own safety. The officer who stopped respondent arrested him on suspicion of DUI. Respondent’s BAC was .289.

In November 2007, respondent pled guilty to DUI. Respondent timely reported his conviction to the OARC.

In February 2008, respondent was sentenced to 120 days in jail, with 106 days suspended; fourteen days in-home detention, with work release; sixty-four hours of community service; and monitored sobriety during eighteen months of probation. Respondent reports that he has had no alcohol since his DUI arrest.

Respondent underwent an alcohol and substance abuse evaluation by a licensed psychologist and certified addictions counselor, who concluded that respondent satisfies the DSM IV diagnostic criteria for Alcohol Abuse with Sustained Full Remission. The evaluator recommends that respondent continue attending two AA meetings per week and comply with the terms and conditions of his probation, including monitored sobriety.

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, have no disciplinable conduct for two years, and pay all costs associated with the two-year Diversion Agreement.

Conduct Prejudicial to the Administration of Justice

> In 2006, respondent began using a copy and imaging service (Provider #1). When respondent failed to pay the outstanding bill, Provider #1 refused to provide any more services. Respondent then began using another copy service (Provider #2). When Provider #2 went to respondent’s office in person in late 2007, respondent made partial payments. When Provider #2 went to respondent’s office in person again in early 2008, respondent said he would not pay Provider #2 any more money. Respondent disputes making such a statement and maintains he did not refuse to pay Provider #2.

In December 2007, a contract attorney working for respondent retained a court reporting service (Provider #3). Provider #3 performed services from December 2007 through February 2008, and sent invoices to respondent’s firm. Respondent failed to pay.

In January 2008, respondent began using another copy and imaging service (Provider #4). Provider #4 sent respondent bills and reminders, but respondent failed to pay. Provider #4 turned respondent’s account over to collections.

Provider #2 filed a small claims court action against respondent. When respondent failed to appear for trial in July 2008, the court entered default judgment against respondent for $3,036.46. Provider #2 hand-delivered copies of the judgment to respondent’s office, but respondent still did not pay.

Provider #1 filed a small claims court action against respondent. When respondent failed to appear for trial in August 2008, the court entered default judgment against respondent for $2,343.53.

In September 2008, Provider #3 called the OARC to report respondent’s firm for failing to pay for professional services. Respondent acknowledged that Provider #3’s bill was his responsibility. In September 2008, respondent paid Provider #3’s bill.

In October 2008, Provider #2 called the OARC to report respondent’s failure to pay for professional services to Provider #1, Provider #2, and Provider #4. In November 2008, respondent paid approximately $4,600 to Providers #1, #2, and #4, and they agreed to accept it as full satisfaction of the amounts owed. Respondent is now restructuring his firm’s practice and working on a payment plan with the remainder of his creditors.

Rule Implicated: Colo. RPC 8.4(d).

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

__________________

> Respondent represented a client in a divorce case. Respondent and her client were scheduled to attend a mediation session. Prior to the mediation, the mediator sent a confirming letter, explaining her forty-eight-hour cancellation policy. Respondent cancelled the mediation session on the morning mediation was scheduled, because her client could not or would not rearrange her work schedule. Respondent sent an e-mail to opposing counsel that she and her client would satisfy any cancellation fee charged by the mediator.

That day, the mediator sent an invoice to respondent seeking payment of the cancellation fee. The mediator made numerous attempts to collect the cancellation fee, including numerous invoices, telephone calls, and contacts to the Conciliation Panel of the Colorado Bar Association. Respondent acknowledged that she was responsible for payment of the cancellation fee, but failed to pay the fee for six months.

Rule Implicated: Colo. RPC 8.4(d).

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

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