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TCL > January 2010 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

January 2010       Vol. 39, No. 1       Page  119
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 12, 2009 through November 11, 2009, at the intake stage:

> Regulation Counsel entered into seventeen Diversion Agreements involving twenty requests for investigation.

> ARC entered into six Diversion Agreements involving nine requests for investigation.

> no Diversion Agreements were submitted to the PDJ for approval

> ARC issued one private admonition involving one request for investigation.

> PDJ did not approve any private admonitions.

Determining Whether Diversion is Appropriate

Regulation Counsel reviews the following factors to determine whether 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.

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 OARC attorneys. 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 12, 2009 through November 11, 2009 generally involved the following:

  • a lawyer’s failure to provide competent representation to a client, implicating Colo. RPC 1.1
  • 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
  • conflict of interest, implicating Colo. RPC 1.7
  • safekeeping of property, implicating Colo. RPC 1.15(a)
  • trust account issues, implicating Colo. RPC 1.15
  • declining or terminating representation, implicating Colo. RPC 1.16
  • complying with court orders, implicating Colo. RPC 3.4(c)
  • conduct intended to disrupt a tribunal, implicating Colo. RPC 3.5
  • failure to supervise associates and/or staff, implicating Colo. RPC 5.1 and 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 12, 2009 through November 11, 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.

Diligence and/or Failure to Communicate

> An Order of Removal was entered against respondent’s client. Respondent’s staff incorrectly calendared the deadline for filing a motion to reopen. Respondent filed the motion to reopen after the deadline, admitting his mistake. The court denied the motion. Respondent moved for reconsideration, which also was denied. Additionally, due to a mistake in withdrawing more funds from trust than were necessary to pay application fees for respondent’s client, respondent inadvertently (negligently) converted monies from his trust account.

Rules Implicated: Colo. RPC 1.3 and 1.15(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School, attend Trust Account School, employ a practice monitor, restore the amount of the negligently converted funds to his trust account, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent undertook representation of the complaining witness in a claim against her employer for injuries she sustained. Respondent’s fee agreement included a provision that interest would be charged on all costs advanced, but did not specify the interest rate. Respondent also failed to provide cost billings prior to the settlement so that the complaining witness had the option of paying them to avoid the interest charges.

Respondent knew, but did not inform his client before she settled her case, that the employer would not pay for certain treatments and devices, because the employer had sole discretion to determine what qualified as "medical" treatment. Respondent failed to make certain the complaining witness’s hospital bill was paid in full until after he was contacted by OARC. The settlement statement respondent provided to the complaining witness was misleading and did not itemize the costs being charged.

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, refund monies to the complaining witness, and pay all costs associated with the one-year Diversion Agreement.

__________________

> In September 2008, a client signed a fee agreement concerning the estate of her deceased brother. The client paid respondent $5,000 as a retainer in the estate matter.

From September through October 2008, respondent had ongoing communications with his client and opposing counsel concerning the administration of the estate and the preservation of the estate assets. A hearing concerning the estate was held in November 2008. Respondent attended the hearing on behalf of his client, but did not communicate the outcome of the hearing to the client until nine days later.

In December 2008, the client communicated to respondent that she no longer wanted to pursue the case, and that she was requesting a final accounting and refund of any unused retainer. This request was renewed in written correspondence eight days later. Respondent did not respond to the client, prepare the itemized statement and accounting, or prepare the refund of the unused client funds due the client until May 2009.

In another matter, respondent was hired in January 2008 to represent a client in an allocation of parental responsibilities matter. The client paid a $1,000 retainer. The client was in the military, and was assigned to a tour of duty in South Korea for one year shortly after she retained respondent.

Respondent represented the client and advocated her interests while she was assigned to South Korea. Respondent also took action to obtain grandparent visitation for his client’s parents while the client was assigned to South Korea.

In July 2008, the grandparents took the child out of Colorado, giving rise to contempt proceedings and temporary orders granting sole custody and decision-making authority to the father of the child. At the temporary orders hearing, the court ordered that parenting time with respondent’s client would be established when she received a permanent duty station assignment in the continental United States.

Respondent’s client was scheduled to return to the continental United States in mid-January 2009, and a permanent orders hearing was scheduled in the case for late January 2009. Respondent failed to talk to his client or notify her of the January 2009 hearing. The client found out about the hearing from her parents. She attended the hearing and was able to obtain a continuance from the court. Respondent filed a motion to withdraw from the case after the hearing in January 2009.

In January 2009, the client sent a letter to respondent requesting a fully itemized accounting. Respondent had been paid a total of $1,700. Respondent claims he never received this letter. As part of his response to this request for investigation, respondent prepared an itemized accounting showing work performed between January 2008 and September 2008. The accounting did not demonstrate any effort made by respondent to communicate with his client while she was assigned to and living abroad. It showed that respondent did not earn part of the retainer that was paid by the client. Respondent refunded the unearned retainer to the client.

In mid-December 2008, respondent was retained to represent another client in a child support modification matter. The client paid respondent a retainer. Later that month, respondent drafted a verified motion to modify child support and had the client sign it. In January 2009, respondent filed the motion to modify on the client’s behalf.

In late January 2009, the client went to the courthouse and withdrew the motion to modify. The client tried to call respondent to let him know she no longer needed his services, but was unable to reach him. A few days later, the client sent respondent an e-mail, informing him that she had reached an agreement on her own with her child’s father and no longer needed respondent’s services or the modification. The client’s e-mail specifically stated she was terminating the attorney–client relationship, and requested an itemized accounting of the funds she paid.

When the client did not receive any response from respondent, she sent him another e-mail in late February 2009. The client’s e-mail again specifically requested an accounting of the funds she paid respondent.

The client left messages for respondent, asking him to withdraw from her case and to provide an accounting of her funds. When the client still did not receive any response from respondent, the client contacted OARC.

In April 2009, OARC wrote to respondent regarding the client’s complaint. In mid-April 2009, respondent: (1) filed a motion to withdraw as client’s attorney; (2) wrote to the client apologizing for the delay in responding to her requests; (3) provided the client an accounting of her funds and a $1,054 refund; and (4) provided copies of the same to OARC.

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

Safekeeping Property and Trust Account Issues

> Respondent deposited settlement funds for a client into his trust account. A hold was placed on the deposit; the funds were not available for seven days. Respondent made withdrawals from the trust account. Although respondent sought and received approval from the bank president to withdraw the settlement funds against the hold, respondent’s withdrawal of the settlement funds triggered a trust account notification. Investigation of his management of his trust account determined respondent failed to comply with Colo. RPC 1.15 by withdrawing cash from the trust account, failing to maintain accurate records of settlement funds, and disbursing settlement funds too soon after the related deposit.

Rule Implicated: Colo. RPC 1.15.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; attend Trust Account School; participate in a financial audit; cooperate with a financial monitor; and pay all cost associated with the two-year Diversion Agreement.

__________________

> Respondent practices immigration law with two lawyers who reside in other states. One of the lawyers made a change to the trust account that resulted in credit card deposits being made directly to the office account. Respondent did not promptly move the credit card deposits from the office account to the trust account; however, the balance in the trust account was sufficient to cover the amount of funds that should have been placed in trust.

In one client matter, respondent treated an upfront amount received as a cap on fees rather than as a flat fee. Respondent billed against the fee and took the entire fee before he completed the services. Respondent also failed to maintain the records required by Colo. RPC 1.15.

Rule Implicated: Colo. RPC 1.15.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; participate in a financial audit; cooperate with a financial monitor; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In December 2007, a corporation faxed a PI Case Status Report Form to respondent’s office, informing him of an outstanding lien on any proceeds in the client’s underlying case. Respondent’s office was notified in April 2008 of the lien via additional faxed correspondence and in March 2008 and August 2008 by telephone.

Respondent’s office responded by fax to the corporation’s April 2008 faxed correspondence. Additionally, a representative of respondent’s office spoke with the corporation’s office in August 2008 and November 2008. All communications from respondent’s office to the corporation indicated respondent’s office was aware of the lien on any proceeds from the client’s underlying case.

In December 2008, respondent disbursed all proceeds from the underlying case to the client and himself for fees and costs. Respondent disbursed no monies to the corporation pursuant to the corporation’s lien.

Rule Implicated: Colo. RPC 1.15(c).

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 overdrew his COLTAF account. Respondent paid several personal bills out of his COLTAF account electronically and by check. Respondent commingled funds by leaving earned funds in his account and depositing non-client-related funds into his COLTAF account to pay his personal bills. Respondent made two ATM withdrawals out of the COLTAF account.

Respondent paid the money back to his COLTAF account once he was made aware of the error. Respondent failed to maintain his account in accordance with Colo. RPC 1.15.

Rule Implicated: Colo. RPC 1.15.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Trust Account School; submit quarterly reports with supporting documentation that he is in compliance with Rule 1.15; and pay all costs associated with the one-year Diversion Agreement.

Conflicts of Interest

> Respondent filed pleadings in two dissolution of marriage matters involving children in which respondent purported to represent both the husband and the wife in each matter. The court found respondent’s representation was a conflict and refused to allow the joint representation.

Rule Implicated: Colo. RPC 1.7.

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

Complying With Court Orders

> In April 2009, an order was entered in district court requiring respondent to pay an award of attorney fees to opposing counsel in the amount of $1,700. The order made the attorney fee award payable within ten days of the date of the order. Respondent failed to pay the debt by the due date.

In May 2009, opposing counsel filed a verified motion for entry of judgment on the award of attorney fees. In June 2009, the court reduced the award of attorney fees to judgment, and ordered that interest would accrue at the rate of 8 percent per annum from the date the payment was due.

Respondent claims that he has not had and does not have the ability to pay the debt. However, respondent has not taken any action to notify the court of his inability to pay, and has not attempted to make payment arrangements with opposing counsel.

Rule Implicated: Colo. RPC 3.4(c).

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

__________________

> From October 2007 through January 2008, respondent requested and received transcripts from a court reporting services firm. Respondent failed to pay for the transcripts. The court reporting firm sent respondent invoices, monthly bills and statements, and collection letters. Respondent still did not pay for the transcripts.

In August 2008, the court reporting firm filed a small claims court collection action. Trial was to be held in September 2008. In September 2008, respondent stipulated to the entry of judgment for $2,903.79 and enforcement of that judgment being stayed thirty days. The court approved the Stipulation and made it an Order of the court. To date, respondent has not complied with the Order or paid the amount owed to the court reporting firm.

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; satisfy the entry of judgment; and pay all costs associated with the one-year Diversion Agreement.

Conduct Intended to Disrupt a Tribunal

> Respondent represented a criminal defendant in municipal court. Throughout the proceeding, respondent’s conduct was disrespectful toward the court. The trial had to be extended to a third day due in part to respondent’s obstructive behavior.

Rules Implicated: Colo. RPC 3.5(d) and 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; obtain eight hours of continuing legal education on the topic of professionalism; and pay all costs associated with the one-year Diversion Agreement.

Criminal Conduct

> In January 2008, respondent was arrested and charged with violations of CRS § 42-4-1409, driving with no proof of insurance; CRS § 42-4-1301, driving under the influence (DUI); and CRS § 42-4-604 (red light violation). Respondent was contacted by the police after she was observed driving through a red light. Respondent submitted to a chemical test to determine her blood alcohol content (BAC) at the time of driving. The results indicated a BAC of 0.176.

In March 2008, respondent was convicted of violation of CRS § 42-4-1301, driving while ability impaired (DWAI), and CRS § 42-4-1402 (careless driving). Respondent was sentenced to six months of supervised probation; Level II education; victim impact panel; useful public service; and various fines and costs. It is noted that respondent has successfully completed all terms and conditions of the probation in the county court case. Respondent did not report the above conviction to OARC until April 2009.

Rules Implicated: Colo. RPC 3.4(c) and 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 April 2008, respondent was involved in a one-car accident. Officers from the sheriff’s department contacted respondent as he was walking near his home. The officers from the sheriff’s department determined that respondent had been the driver of the car involved in the accident. Respondent was arrested and charged with violations of CRS § 42-4-1409(3), failure to display proof of insurance; CRS § 42-4-1402, careless driving; CRS § 42-4-1606(1), failure to report accident; CRS § 42-3-114, expired license plate; and CRS § 42-4-1301(1)(a), DUI. Respondent submitted to a chemical test to determine his BAC at the time of driving. The results indicated a BAC of 0.214.

In January 2009, respondent was convicted of violation of CRS § 42-4-1301(1)(a), DUI. Respondent was sentenced to two years of supervised probation; eighty hours of useful public service; Level II education; eighty-six hours of therapy; twenty-four days of jail time; no additional criminal offenses; and abstinence from the use of alcohol during treatment. This was respondent’s second alcohol-related 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 terms of the criminal court sentence; abstain from alcohol; have random breathalyzer tests three times a week for a year; and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent was cited for DUI in August 2008. Respondent was arrested in the early afternoon after he drove over some lawns and hit a light pole in a residential neighborhood. He damaged a landscape retaining wall in the process. Respondent failed a roadside sobriety test at the scene. The respondent’s BAC was .239 when tested two hours later.

In February 2009, respondent pled guilty to DUI greater than .20. Respondent timely reported his conviction to OARC.

Respondent was sentenced to twenty days of in-home detention; supervised probation to include Level II alcohol education; fifty-two hours of group therapy; sixty-eight hours of community service; a two-hour alcohol awareness program, participation in an Antabuse program; and mandatory sobriety consisting of random breathalyzers two to three times per week. Respondent reported to his probation officer that he is being prescribed Antabuse through his primary care physician. Respondent is complying with all of the requirements of his probation and has paid in full all court costs and fees, totaling $1,332.

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 terms of the criminal court sentence; abstain from alcohol; have random breathalyzer tests two times a week for two years; and pay all costs associated with the three-year Diversion Agreement.

__________________

> In June 2008, respondent was arrested and charged with violations of CRS § 42-4-1301 (DUI); CRS § 42-4-1301(2)(A) (DUI per se); CRS § 42-4-1402 (careless driving); and CRS § 42-4-604 (red light violation). Respondent was contacted by police officers due to respondent’s involvement in an auto accident resulting in no injuries. Respondent submitted to a chemical test to determine his BAC at the time of driving. The result was a BAC of 0.192.

In November 2008, respondent entered a guilty plea. In January 2009, respondent was convicted of violations of CRS § 42-4-1301 (DWAI) and CRS § 42-4-1007(1)(a) (failure to drive in a single lane).

Respondent was sentenced to fifteen months of supervised probation. The terms and conditions of respondent’s probation include compliance with all court orders; no further violations; attendance at victim impact panel; Level II education; and fifty-two hours of therapy, useful public service, 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 the conditions of the criminal court sentence; abstain from alcohol; have random breathalyzer tests four times a week for one year; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In December 2008, respondent was arrested and charged with violations of CRS § 42-4-1301 (DUI) and CRS § 42-4-1007(1)(A) (failure to drive in a single lane). Respondent was contacted by a sheriff’s deputy after being observed driving erratically (weaving). Respondent submitted to a chemical test to determine his BAC at the time of driving. The result was a BAC of 0.160.

In June 2009, respondent was convicted for violation of CRS § 42-4-1301 (DWAI). This is respondent’s first alcohol-related offense. Respondent was sentenced to twelve months of supervised probation; including abstinence from alcohol use; monitored sobriety; alcohol education therapy; useful public service; 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 the conditions of the criminal court sentence; abstain from alcohol; participate in the MEMS 3000 alcohol monitoring system; and pay all costs associated with the one-year Diversion Agreement.

__________________

Another motorist called the police to report that respondent was swerving. Respondent subsequently pled guilty to DUI. His BAC was .233.

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 random breathalyzer tests for one year; attend weekly Alcoholics Anonymous (AA) meetings for one year; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In September 2008, respondent was arrested and charged with violations of CRS § 42-4-1301 (DUI); CRS § 42-4-1301(2)(A) (DUI per se); CRS § 18-8-104 (obstructing a police officer); and CRS § 42-4-1402 (careless driving). Respondent submitted to a chemical test to determine his BAC at the time of driving. The result was a BAC of 0.194.

In April 2009, respondent entered a guilty plea to violation of CRS § 42-4-1301(1)(b) (DWAI). Respondent was immediately sentenced to one year of supervised probation, twenty-four hours of useful public service, attendance at a victim impact panel, and various fines and costs. Terms and conditions of respondent’s probation include compliance with all court orders, no further violations, monitored breathalyzers, and Level II education.

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 criminal court sentence; attend Ethics School; abstain from 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 convicted of DUI and careless driving. Her BAC was 0.290. She was sentenced to 365 days of jail time, with 355 days suspended; ten days of in-home detention; sixty hours of community service; Level II education; eighty-six hours of therapy; and eighteen months’ probation.

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 criminal court sentence; comply with all recommendations of her therapist; participate in the MEMS 3000 alcohol monitoring program for two years; and pay all costs associated with the three-year Diversion Agreement.

__________________

In April 2009, respondent was involved in a one-vehicle rollover crash. Respondent was taken to the hospital because of possible injuries, and was given a blood test to determine his BAC. Respondent’s BAC was measured to be .203, but a later re-test showed the BAC to be .198.

In August 2009, respondent pled guilty to DUI and was sentenced. Later that month, respondent reported the conviction to OARC. At the request of OARC, respondent submitted to an independent medical evaluation (IME) to determine whether he met the criteria for a diagnosis of alcohol/substance abuse or dependence. The IME determined that respondent met the criteria for a diagnosis of alcohol abuse.

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 the criminal court sentence; have random urinalysis or breathalyzer tests three times a week for one year; and pay all costs associated with the three-year Diversion Agreement.

__________________

> In October 2008, respondent was stopped for driving in the parking lane and driving on the wrong side of the road. The police officer who stopped respondent smelled the odor of alcohol and made other observations that caused him to believe respondent was under the influence of alcohol.

Respondent submitted to and failed several field sobriety tests. Her BAC was determined to be .272.

In April 2009, respondent was convicted of DUI. At the request of OARC, respondent submitted to a further evaluation to determine whether she met the criteria for a diagnosis of alcohol/substance abuse or dependence. That evaluation determined that respondent did meet the criteria for a diagnosis of alcohol dependence. This is respondent’s first alcohol-related offense.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; comply with all the conditions of the criminal court sentence; follow the recommendations of the evaluator; have random urinalysis tests once a month for one year; participate in the MEMS 3000 alcohol monitoring system for two years; and pay all costs associated with the three-year Diversion Agreement.

Conduct Prejudicial to the Administration of Justice

> During January 2008, respondent used the services of a court reporter on behalf of a client and was promptly billed approximately $6,000 for those services. Respondent did not dispute the bills or contact the service provider. The service provider contacted OARC in June 2009 concerning unpaid invoices. When contacted, respondent asserted that the bills were the client’s responsibility, but admitted he does not remember telling the service provider the client would be solely responsible when he requested the services. The service provider has since written off $1,680.49 in interest, and the client has agreed to make monthly payments toward the balance of $6,591. The first payment was made in July 2009.

Rule Implicated: Colo. RPC 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent agrees that if the client fails to pay in full, it will be respondent’s personal responsibility to pay any remaining balance due. Respondent also is required to attend Ethics School and to pay all costs associated with the two-year Diversion Agreement.

__________________

In two matters, respondent opposed the individual serving as the child family investigator (CFI). In the first matter, respondent drafted and filed the objection. In her motion, respondent made statements about the CFI in which she did not clearly distinguish her opinion from what was stated as fact. In the second matter, an associate working for respondent drafted the objection to the CFI. The objection stated erroneous information as the basis of the objection. Respondent did not review the objection before the associate filed the objection. At the request of the CFI’s counsel, respondent and her associate moved to strike their statements in the objections and stated only that there was a conflict with the CFI. In another client matter, when the client requested a copy of her file, respondent’s legal assistant included pleadings from an unrelated client matter in the client’s file.

Rules Implicated: Colo. RPC 5.1(b), 5.3(b), 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 one-year Diversion Agreement.

Breach and Amendment of Diversion Agreement

> In Fall 2008, respondent’s compliance with the original Diversion Agreement was interrupted when he moved from the Front Range to the western part of the state. For a time, respondent unplugged his MEMS 3000 alcohol testing machine and ceased attending counseling and AA meetings. After discussions with OARC, respondent resumed testing and complying with other conditions. The amended Diversion Agreement memorializes respondent’s agreement to continue his alcohol monitoring, counseling, and AA attendance in his new location for the remainder of the three-year term of the original Diversion Agreement.

Rule Implicated: C.R.C.P 251.13(g).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; participate in weekly alcohol counseling; attend daily AA meetings; abstain from the use of alcohol; test daily using the MEMS 300 alcohol testing machine; and pay all costs associated with the remainder of the three-year Diversion Agreement.

Private Admonition

> In 2007, a U.S. District Court judge appointed respondent to act as pro bono counsel to complainant, a prisoner housed in Cañon City. Complainant had already filed a 42 U.S.C. § 1983 complaint pro se against a number of prison officials, alleging retaliation for his request for judicial review of alleged unjust discipline. By 2007, more than 130 pleadings had been filed in complainant’s case, and a number of his claims had been dismissed on defendants’ motion to dismiss.

After respondent was appointed, he filed a response to the motion for summary judgment on complainant’s behalf. In December 2007, a magistrate recommended that the district court grant the motion for summary judgment. Under F.R.C.P. 72(b)(2), respondent had only ten days to file objections to the magistrate’s recommendations. Respondent failed to file any objections; it is disputed whether he actually received notice of the magistrate’s recommendation through the Lexis/Nexis® service program.

The district court issued an order granting summary judgment against complainant in January 2008; judgment was entered in February 2008. Thus, complainant’s notice of appeal was due thirty days later in March 2008. Further, any motion for relief to be filed on complainant’s behalf had to be filed within ten days of entry of judgment to toll the appeal period.

In February 2008, respondent notified complainant in writing that he would draft and file a notice of appeal. Respondent never filed the notice of appeal. Instead, in March 2008, he filed a motion for relief under F.R.C.P. 60(b)(1), alleging that he did not receive electronic service of the magistrate’s recommendation and, thus, was unable to timely file objections. This motion was filed approximately six weeks after respondent received the court order granting summary judgment and, significantly, more than ten days from entry of judgment.

In early April 2008, the district court denied respondent’s motion for relief filed under F.R.C.P. 60(b)(1), finding that it appeared from the Lexis/Nexis records that respondent had been served with the magistrate’s recommendation. In mid-April 2008, respondent advised complainant that he would not file an appeal on his behalf. At the end of April 2008, complainant filed a notice of appeal pro se on the sole issue of whether summary judgment was appropriately entered. Complainant’s appeal was dismissed for lack of jurisdiction due to his failure to file the notice within thirty days of entry of judgment. However, the circuit court noted in its order that it would have had jurisdiction to consider whether the denial of respondent’s motion for relief was appropriate, had that issue been included in complainant’s notice of appeal.

Rules Implicated: Respondent was admonished with a Private Admonition for violating Colo. RPC 1.1 and 1.3.

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