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

The Colorado Lawyer
July 2009
Vol. 38, No. 7 [Page  145]

© 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 February 12, 2009 through May 12, 2009, at the intake stage:

  • Regulation Counsel entered into ten Diversion Agreements involving eleven requests for investigation.
  • ARC entered into five Diversion Agreements involving five requests for investigation.
  • The PDJ did not approve any Diversion Agreements.
  • ARC did not issue any private admonitions.
  • 1The 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.2 Other factors may preclude Regulation Counsel from agreeing to diversion.3

Purpose of the Diversion Agreement

The purpose of a Diversion Agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. Furthermore, the Diversion Agreement may address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reason for such conduct was poor office management, then one of the conditions of diversion may be a law office management audit and/or practice monitor. The time period for a Diversion Agreement generally is no less than one year and no greater than three years.

Conditions of the Diversion Agreement

The type of misconduct dictates the conditions of the Diversion Agreement. Although each Diversion Agreement is factually unique and different from other agreements, many times the requirements are similar. Generally, the attorney is required to attend Ethics School and/or Trust Account School. 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 February 12, 2009 through May 12, 2009 generally involve the following:

  • competent representation of a client, implicating Colo. RPC 1.1
  • scope of representation, implicating Colo. RPC 1.2
  • 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 exits
  • fee issues, implicating Colo. RPC 1.5
  • trust account issues, implicating Colo. RPC 1.15
  • declining or terminating representation, implicating Colo. RPC 1.16
  • duties to former clients, implicating Colo. RPC 1.9
  • failing to comply with a court order, implicating Colo. RPC 3.4(c)
  • impartiality and decorum of the tribunal, implicating Colo. RPC 3.5
  • being called as a witness, implicating Colo. RPC 3.7
  • threatening prosecution, implicating Colo. RPC 4.5
  • 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 February 12, 2009 through May 12, 2009. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct implicated, and the corresponding conditions of the Diversion Agreement.

Competence/Scope of Representation

> Respondent represented several named plaintiffs in a multi-plaintiff action against a defendant for breach of the common lease agreement and other related claims. One of the named plaintiffs was included as a party due to that person’s role as an agent for another party. Respondent named that person as a represented party before speaking to that person. That person later disputed acting as an agent and expressed concern at allegedly being represented by respondent. Respondent then dismissed that person as a party.

Rules Implicated: Colo. RPC 1.1 and 1.3.

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.

Diligence and/or Failure to Communicate

> Respondent represented a client on collections work in many cases. The client demanded an accounting of all monies owed. The client also demanded immediate return of all files after terminating respondent. Respondent failed to provide a completed accounting to his client in a timely fashion. Respondent has no prior discipline in many years of practice.

Rules Implicated: Colo. RPC 1.3, 1.4, and 1.15.

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

__________________

> In a nonlitigation matter over a period of almost a year, respondent failed to complete work he was hired to perform, failed to maintain adequate contact with the client, and initially failed to return files when requested to do so. Respondent eventually returned both the client files and all of the paid retainer to the client.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent is to cooperate with a practice monitor for two years and pay all costs associated with the two-year Diversion Agreement.

Fees

> Respondent failed to supervise the paralegal in his office who was responsible for preparing bills. As a result, respondent negligently overbilled and double-billed for some services.

Rules Implicated: Colo. RPC 1.5(a) and 5.3(a), (b), and (c).

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

Duties to Former Clients

> Respondent represented two individuals in a dispute with an insurance company and obtained additional payment for them. As part of the distribution of proceeds in 2001, respondent prepared a quitclaim deed, transferring the real property from client A to client B, and a promissory note from client B to client A. His representation ended. In 2007, client B died and respondent undertook representation of client A, filing a claim against client B’s estate. Part of respondent’s argument on behalf of client A was that the same documents he prepared in 2000 had been obtained through coercion or misrepresentation. The court granted a motion to disqualify respondent and his firm.

Rules Implicated: Colo. RPC 1.9 and 3.7.

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

Impartiality and Decorum of the Tribunal

> Respondent appeared on the day of trial in one of his cases and requested a continuance. The judge inquired if respondent was prepared to handle the case; respondent told the judge he was not prepared. Respondent failed to prepare for the case because his client had not paid a retainer that respondent required in advance of the trial.

In lieu of withdrawing from the case when his client did not pay, respondent remained in the case and thought the court would grant his request for continuance of the trial date. After the judge indicated an unwillingness to continue the trial date, respondent requested to withdraw from the case and explained to the court that his client had not paid him. The judge granted the motion to withdraw and excused respondent from the case.

In a separate matter, respondent sent a letter directly to the judge. In the letter, respondent pointed out that he thought the judge treated him harshly in an earlier case. Based on this treatment in the earlier case, respondent asked the judge to recuse himself from a case pending in front of the judge in which respondent represented the criminal defendant. In the letter, respondent threatened to file a motion to recuse if the judge did not respond to his request.

Rules Implicated: Colo. RPC 3.5(b) 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 one year, and pay all costs associated with the one-year Diversion Agreement.

Criminal Conduct

> In April 2007, respondent was charged with violation of CRS §§ 42-4-1101(1) (speeding); -1301(1)(b) and (9)(b)(ii) (driving while ability impaired (DWAI)); and -1301(1)(a) (driving under the influence (DUI)). Respondent submitted to a chemical test to determine the blood alcohol concentration (BAC) at the time of driving. The result of the chemical testing was a BAC of .197.

In November 2008, in county court, respondent was convicted of violation of CRS § 42-4-1301(1)(b) (DWAI—second offense). Pursuant to this conviction, respondent was sentenced to 365 days’ jail (360 days suspended); twelve months of supervised probation; various fines and costs; participation and compliance with any treatment recommendation by the probation department; alcohol evaluation; alcohol education therapy; attendance at Colorado Lawyers Helping Lawyers or Alcoholics Anonymous programs; abstinence from consumption of alcohol; and sixty-four hours of useful public service.

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 two years, attend individual or group therapy, abstain from the use of alcohol, have random breathalyzer tests three times a week for one year, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent was arrested for shoplifting in a grocery store and ultimately pled no contest to the petty offense of use of property of another, and received a six-month deferred sentence. Respondent paid $50 in court costs.

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.

__________________

> Respondent was arrested for DUI in 2008. Respondent’s BAC was .159. Respondent underwent an alcohol evaluation with an evaluator approved by the OARC. The evaluator made no treatment recommendations. 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 is required to attend Ethics School, comply with all conditions of the court sentence, have no disciplinable conduct for one year, and pay all costs associated with the one-year Diversion Agreement.

__________________

> In January 2009, a summons and complaint was filed against respondent, alleging violations of CRS § 18-8-405 (second-degree official misconduct). The charges were based on the alleged nonrepayment of funds to a government agency for personal expenses. It is noted that respondent has reimbursed the agency for the expenses in question. In January 2009, respondent entered a no contest plea to CRS § 18-8-405(1)(a), a class 1 petty offense.

Rule Implicated: Colo. RPC 8.4.

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

__________________

> In May 2008, respondent was involved in a single-car accident when he struck the median, causing damage to his vehicle. Respondent reported the accident to the police and a police officer responded to the scene. The officer smelled the odor of an alcoholic beverage and asked respondent to perform field sobriety tests. Respondent performed the tests and later provided a breath sample. His BAC was .189.

In October 2008, respondent pled guilty to the offenses of DWAI and failure to drive in a single lane. He was sentenced to a period of probation for twelve months, as well as other conditions of probation. Respondent reported the conviction to the OARC within ten days, as required by C.R.C.P. 251.20(b).

At OARC’s request, respondent was evaluated to determine whether he suffers from any substance abuse or dependence disorder. The evaluator determined that respondent did not meet the diagnostic criteria for a substance abuse or dependence disorder.

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 two years, comply with all the conditions of the court sentence, and pay all costs associated with the two-year Diversion Agreement.

__________________

> In August 2008, respondent was arrested and charged with violations of CRS §§ 42-4-1301(1)(a) (DUI); -1301(2)(a) (DUI per se); -1409 (driving a motor vehicle without proof of insurance); and -1007(1)(a) (failure to drive in a single lane). Respondent submitted to a chemical test to determine the BAC at the time of driving. The result of the chemical test indicated a BAC of .172.

In November 2008 in county court, respondent pled guilty to violations of CRS §§ 42-4-1301 (DWAI) and -1007(1)(a) (failure to drive in a single lane). In November 2008, respondent was sentenced to one year of supervised probation; 180 days’ jail (180 days suspended); twenty-four hours of useful public service; and various fines and costs. Additionally, respondent was ordered to follow all the terms and conditions as required by the Probation Department, which required respondent to complete Level II education/therapy.

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

__________________

> In January 2009, respondent was arrested and charged with violations of CRS §§ 42-4-1301(1)(a) (DUI); -1301(2)(a) (DUI per se); -206 (defective license plate); and -208 (defective brake lights). Pursuant to respondent’s arrest, respondent submitted to a chemical breath test to determine the BAC at the time of driving; the resulting BAC reading was .137. In March 2009, respondent pled guilty to violating CRS § 42-4-1301(1)(b) (DWAI).

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, abstain from alcohol, participate in a monitored Antabuse program, continue treatment with a mental health professional, comply with all the conditions of the court sentence, have no disciplinable conduct for three years, and pay all costs associated with the three-year Diversion Agreement.

__________________

> Respondent and ex-spouse had a verbal and physical confrontation. There were no physical injuries; however, their child was present. Respondent pled guilty to disorderly conduct. Respondent received a one-year deferred sentence with conditions, including domestic violence evaluation. Respondent timely self-reported the conviction.

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 all the conditions of probation in the court sentence, attend domestic violence therapy, have no disciplinable conduct for two years, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent’s car was stopped by local police after respondent attended a Denver Broncos football game in December 2008. Respondent could not perform roadside sobriety tests satisfactorily. Respondent was arrested for DUI. Respondent’s BAC measured a reading of .217.

In February 2009, respondent pled guilty to DUI. The court sentenced respondent to ten days’ in-home detention; sixty hours of useful public service; twenty-four months’ probation, including monitored sobriety (random breath tests) and Level II alcohol education; and standard fines and court costs.

Respondent began attending Level II education classes prior to his conviction. The organization providing the alcohol education also is administering respondent’s random breath tests. All of respondent’s tests from late January through February 2009 were negative.

This is respondent’s first alcohol-related conviction. Respondent timely reported the conviction to the OARC.

Respondent underwent an alcohol and substance abuse evaluation conducted by a psychiatrist, who opined that respondent does not suffer from a primary psychiatric or substance diagnosis. The psychiatrist also identified no impediments to respondent’s capacity to practice law.

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 all conditions of the court sentence, have no disciplinable conduct for two years, and pay all costs associated with 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.


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