|The Colorado Lawyer|
Vol. 30, No. 4 [Page 95]
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From the Courts
Matters Resulting in Diversion
Colorado Supreme Court Office of Regulation Counsel
Colorado Supreme Court
Office of Regulation Counsel
Editor’s Note: Articles describing diversion agreements as part of the Attorney Regulation System are published on a quarterly basis. These articles are contributed by the Colorado Supreme Court Office of Regulation Counsel.
Background Information Regarding Diversion
Diversion is an alternative to discipline. See C.R.C.P. 251.13. 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. Thereafter, ARC or some other entity must approve the agreement.
From November 17, 2000, through February 20, 2001, at the intake stage, Regulation Counsel entered into 13 Diversion Agreements. From November 18, 2000, through January 13, 2001, ARC approved 17 Diversion Agreements involving 24 separate requests for investigation. The PDJ approved zero Diversion Agreements during this time frame.
Regulation Counsel reviews the following factors to determine if diversion is appropriate: (1) there is little likelihood that the attorney will harm the public during the period of participation; (2) Regulation Counsel can adequately supervise the conditions of diversion; and (3) the attorney is likely to benefit by participation in the program.
Regulation Counsel will consider diversion only if the presumptive range of discipline in the particular matter is likely to result in a public censure or less. However, if the attorney has been publicly disciplined in the last three years, the matter generally will not be diverted under the rule. See C.R.C.P. 251.13(b). Other factors Regulation Counsel considers that may preclude Regulation Counsel from agreeing to diversion are set forth in the C.R.C.P. 251.13(b). For example, if the misconduct involves dishonesty, misrepresentations, domestic violence, or is a pattern of misconduct, the presumption is against diversion.
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. It also is hoped that a diversion agreement will address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reasons for such conduct were the result of 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 is generally no less than one year or greater than two years.
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 that is conducted by attorneys from the Office of Attorney Regulation Counsel. An attorney also may be required to fulfill any of the following conditions: law office audit; practice monitor; financial audit; restitution; payment of costs; mental health evaluation and treatment; attend CLE courses; and any other conditions that may be appropriate for the particular type of misconduct.
After the attorney successfully completes the requirements of the diversion agreement, Regulation Counsel will close its file, and the matter will be expunged pursuant to C.R.C.P. 251.33(d). If Regulation Counsel has reason to believe that the attorney has breached the Diversion Agreement, then 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 for the time period described above generally involve the following: an attorney’s neglect of a matter and/or failure to communicate, in violation of Colo. RPC 1.3 and Colo. RPC 1.4, where the client is not harmed or restitution is paid to redress the harm; conflicts of interest, in violation of Colo. RPC 1.7(b) or Colo. RPC 1.9; violation of a criminal statute, in violation of Colo. RPC 8.4(b); and threatening criminal or administrative action to gain an advantage in a civil case against the opposing party or attorney, in violation of Colo. RPC 4.5.
Diversion agreements also have addressed misconduct such as unprofessional conduct, communicating with represented parties, failing to maintain accounting records, and conduct that was prejudicial to the administration of justice.
Many cases resulted from personal problems the attorney was experiencing at the time of the misconduct. In these situations, the diversion agreements 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.
Random Samples of Diversion Agreements
Conflict of Interest
—The respondent represented a client in obtaining a patent and also provided technical/engineering services in connection with the client’s invention. Subsequently, the respondent was involved in discussions with another entity as counsel for the client concerning a consulting agreement between the client and the third party. At the same time, the respondent was discussing with the third party the possibility of the respondent doing legal work for the third party. The respondent did not disclose to the client that he was discussing potential legal employment with the third party while negotiating with the third party on behalf of the client. The rule implicated is Colo. RPC 1.7(b).
—The respondent met with a prospective client regarding his then-pending domestic matter. The respondent and the prospective client consulted for approximately an hour to an hour and a half, during which time they discussed various aspects of the case. The prospective client paid the respondent $150 for their consultation. Ultimately, the respondent and the prospective client decided against having the respondent take over representation of the matter. The prospective client obtained other counsel. The court entered a final decree dissolving the prospective client’s marriage but reserved permanent orders until a later date. After the entry of permanent orders, the parties continued to have disputes about the final decree and orders. The respondent entered her appearance to represent the prospective client’s ex-wife pro bono on post-decree issues in the case. When the prospective client brought the conflict issue to the respondent’s attention, the respondent withdrew as counsel for the ex-wife. It is the respondent’s position that her failure to recognize the conflict was an unintentional error resulting from inadequate conflict-check procedures which have since been corrected. The rule implicated is Colo. RPC 1.9.
—The respondent was reported by another driver as driving erratically through a residential area. A sheriff’s officer located and stopped the respondent. When the respondent failed to perform roadside maneuvers satisfactorily, the officer arrested him on suspicion of driving under the influence of drugs or alcohol. Thereafter, the respondent refused to submit to any type of drug or alcohol testing. The respondent was subsequently charged with driving while under the influence, driving with an expired license plate, and careless driving. However, the respondent did perform a Portable Breath Test during the booking process, with a result of .079. The respondent pled guilty to driving while under the influence and reckless driving. This is the respondent’s second alcohol-related conviction. The respondent previously was convicted of driving while ability impaired. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
—The respondent visited an inmate at a county detention center on several different occasions. These visits, when logged in by the county detention center staff, were listed as professional visits. During the above-mentioned visits, the respondent gave certain items to the inmate that were not allowed to be in the inmate’s possession while incarcerated at the county detention center. These items consisted of food items, polaroid pictures, fingernail clippers, tweezers, corn remover, and Rite-Aid clotrimazole cream. The rules implicated are Colo. RPC 8.4(b), Colo. RPC 8.4(c), Colo. RPC 8.4(g), and Colo. RPC 8.4(h).
—The respondent represented a client in a U.S. District Court case. A court reporting firm provided transcripts from depositions in the court case to the respondent as he requested on his client’s direction. The client refused to pay the court reporter’s bills. Thereafter, the court reporting firm contacted the respondent regarding unpaid invoices for the deposition transcript work. Approximately one year later, the court reporting firm filed a grievance against the respondent and was referred to the Interprofessional Committee of the Colorado Bar Association. After intervention by the Interprofessional Committee, the respondent agreed to make regular payments on the outstanding balance. The respondent made four payments, but subsequently stopped paying the court reporting firm. The respondent informed the court reporting firm that he was pursuing a collection action against his client. The court reporting firm continued to contact the respondent. The respondent verbally agreed to resume payments to the court reporting firm regarding his unpaid account on his client’s matter. Shortly thereafter, the respondent began making payments to the court reporting firm. Respondent subsequently contacted the court reporting firm on several occasions, updated them on the collection against the client, and requested they file a lien. The respondent presently is pursuing collection against his client. To date, the court reporting firm is owed a substantial amount of money for its work on the depositions. The rules implicated are Colo. RPC 8.4(c) and Colo. RPC 8.4(g).
—The respondent engaged a process server to serve process in numerous cases in 1997 and 1998. The process server performed services for the respondent and submitted invoices for payment. In May 2000, the process server attempted to collect the debt. In June 2000, the respondent sent correspondence to the process server to the effect that he would check into the matter to resolve the debt. Subsequently, several months passed and the debt went unresolved. As part of the diversion agreement, the respondent is to pay the debt to the process server. The rule implicated is Colo. RPC 8.4(d).
—The respondent represented a client in a collection dispute with a credit company. The respondent wrote to the credit company about the client’s position on the disputed matter and threatened to file criminal charges. The rule implicated is Colo. RPC 4.5.
Diligence and/or Failure to Communicate
—The respondent discussed a Social Security disability action with a client. The client signed a contingency fee agreement wherein respondent agreed to represent her in the prosecution of the client’s Social Security disability claim. Before the execution of said fee agreement, the client provided documents and information to the respondent regarding her Social Security disability claim, including information that the client had requested a hearing before an Administrative Law Judge ("ALJ") by a certain deadline. The respondent failed to file the appropriate papers requesting a hearing by that deadline. Subsequently, the respondent filed papers requesting that the client be granted a hearing, but these requests were denied by the ALJ. The rule implicated is Colo. RPC 1.3.
—The respondent represented a client in collecting a debt from an employer for whom the client did contract work. The client paid the respondent a flat fee for his services. The respondent filed numerous notices to set the client’s case for trial, but failed to follow through and actually set the matter for trial. Consequently, the court issued a notice of pending involuntary dismissal. Additionally, the respondent failed to properly communicate with the client and advise her of the status of her case over the course of the representation. Finally, the client had difficulty obtaining her file from the respondent after terminating the representation. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), and Colo. RPC 1.16(d).
—The respondent represented a client in relation to a wrongful death case involving the client’s mother. The respondent handled negotiations for settlement with one tortfeasor and was supposed to engage in arbitration regarding the second tortfeasor. After initial communications with the counsel for the second tortfeasor, the respondent failed to communicate with the client or with opposing counsel. Opposing counsel later alleged that the case had been abandoned, such that the statute of limitations had run. Subsequent counsel engaged in arbitration to determine whether the statute of limitations had run, and that proceeding concluded in favor of the client. The respondent paid attorney fees and costs related to the issue of abandonment in that arbitration, and also refunded a portion of the attorney fees received in relation to settlement with the initial tortfeasor. Ultimately, the client did not suffer any financial harm. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.5(c).
—The respondent failed to appear at immigration hearings on behalf of his clients and failed to communicate with his clients. The clients did not suffer any legal harm as a result. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
—The respondent represented a client in a dissolution matter and in subsequent parenting time and child support disputes. Client asked the respondent to prepare documents necessary to accomplish a stepparent adoption. The respondent failed to pursue the client’s legal matter diligently. In the second matter, the respondent filed a lawsuit on behalf of the client which he failed to pursue diligently and was ultimately dismissed for lack of prosecution. During this period of time, the respondent was suffering from serious mental and physical problems. The respondent must comply with the following conditions of the diversion agreement: (1) Respondent must go on inactive status and notify Attorney Regulation Counsel immediately if he chooses to go active and practice law during the two year period of the diversion agreement; (2) Respondent must submit to an independent medical exam if he chooses to practice law; (3) Respondent must hire a practice monitor if he practices law; (4) Ethics school within one year; (5) No other misconduct for a period of two years; and (6) Payment of costs within thirty days. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
—The respondent neglected three client matters and failed to communicate with his clients during his representation of them. In the first matter, the client wanted him to file a motion to modify child support. The client did not cooperate in getting the information that the respondent requested to him on a timely basis. The client contributed to the delay. There was no harm as a result of the delay. In the second matter, the client complained of serious delay in his child support modification matter. Some of the delay was due to the fact that the client wanted to vacate a hearing date so the parties could attempt to negotiate a settlement. In the third matter, the respondent did not receive telephone messages from the client or return those messages on a timely basis. The respondent was using a telephone service which did not provide adequate service. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
—The respondent was hired by a client to represent him in a divorce. The respondent represented the client through his divorce, and negotiated a lump sum payment from the client’s retirement fund to the client’s ex-wife as a term of the divorce settlement. After signing the settlement agreement, the client’s employer notified him that such payment from his retirement fund could not be made. The client attempted to discuss this issue with the respondent, but was told that the respondent was no longer practicing law. The respondent stopped practicing law because of a physical illness. No arrangements for another attorney to assume her cases were made and no substitution of counsel or motions to withdraw were filed with the courts. Further the respondent failed to provide any notice and/or explanation to the client of what happened and how he could preserve his rights and interests. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4(a), and Colo. RPC 1.16(d).
—The respondent was hired by the client to assist the client with child support issues, specifically the termination of child support, and clarification of past due child support obligations for the state of New York. The respondent did not file the Verified Motion to Terminate Child Support pursuant to CRS 14-10-115 until months later. The rule implicated is Colo. RPC 1.3.
—The respondent represented a debtor in a Chapter 13 bankruptcy. The debtor fell behind in plan payments, and the trustee moved to dismiss. Thereafter, an arrangement was made to cure the payment arrearage. The respondent and the debtor client had difficulty in finalizing a modified plan by the date agreed to with the Chapter 13 trustee. The respondent did not communicate this to the trustee and did not move for an extension of time. The case was thereafter dismissed, and subsequent motions to reconsider the dismissal order were denied because it was undisputed that the debtor had failed to make any payment toward the plan for a number of months. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4(a).
—The respondent represented a client in a dissolution of marriage case. The decree, which incorporated the separation agreement, was entered by the court. Pursuant to the separation agreement, the opposing party was to receive a stock option, portions of a 401K plan, an individual retirement account, mutual funds, and an employee stock ownership program. Pursuant to the court order, the respondent was to prepare the appropriate documents to effectuate the division of the above-mentioned property or assets. The court order further required the necessary documents to be prepared and executed within thirty days of the date of the separation agreement. The respondent did not prepare the necessary transfer documents concerning the 401K plan and stock ownership program until approximately four months later. Further, the documents necessary for the transfer of the individual retirement account were not prepared until approximately seven months later. The rules implicated are Colo. RPC 1.3 and Colo. RPC 8.4(d).
—The respondent was hired in July to represent a client in a workers’ compensation case. The client had filed the workers’ compensation claim prior to hiring the respondent. As of December, the respondent had not yet requested a hearing concerning the denial of the client’s workers’ compensation claim and issues in that case. The rule implicated is Colo. RPC 1.3.
—The respondent was engaged to represent a client in a criminal case. The respondent properly advised the client of the statutory maximum penalties for all charged offenses at the outset of the representation. Subsequently, the respondent negotiated a plea agreement that the client accepted. At the time of sentencing, the judge imposed a sentence that exceeded the statutory maximum penalty for the offense to which the client pled guilty. Thereafter, the respondent sent correspondence to the client explaining the sentence. Said correspondence failed to explain the illegal sentence to the client, and failed to advise him of the options available to him to correct the illegal sentence, as well as the potential consequences of exercising any of those options. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.4(b).
—The firm with whom the respondent was employed filed a motion to restrict parenting time and appoint a legal representative. The motion requested a hearing within seven days pursuant to statute. The motion was filed with the court on November 15, 1999. Subsequent to the filing of the motion, the respondent attempted to set the matter via telephone with the court within the seven days. The court scheduled the hearing for January 31, 2000. The setting date was November 30, 1999, and the notice of hearing was mailed to the respondent, by the court, on December 2, 1999. At the hearing, the respondent’s expert witness was not allowed to testify. The basis of the court ruling was that the respondent had not filed or provided the expert report or summary of the expert’s opinion or testimony to the opposing party as required by C.R.Civ.P. 26.2. At the hearing, the respondent attempted to admit into evidence a report concerning the observations and evaluation of the minor child. The respondent had attached the report as an exhibit to the verified motion, and had intended to offer the report through the expert who relied on the report. In the absence of the expert, the respondent did not have someone present from the center at the hearing to authenticate the document. The court did not admit the document into evidence. The rule implicated is Colo. RPC 1.1.
—The respondent was hired by a client to represent her in a no-fault divorce action. The client informed the respondent that her husband was in jail, and that papers related to the divorce would have to be served on her husband in jail. The respondent forwarded paperwork to the client for review and signature. The client signed the papers and returned them to the respondent. Thereafter, it took the respondent approximately six months to convey the documents to the client’s husband for review and signature. The respondent received the papers back from the client’s husband and subsequently filed the divorce papers with the court. Approximately one month later, the respondent advised the client that the divorce action would have to go to court for approval by a district court judge. About five months thereafter, despite never communicating directly with the client’s husband, the respondent advised the client that he had concerns about whether the inclusion of a waiver of child custody in the uncontested divorce petition and separation agreement he drafted (which was signed by both parties to the divorce) amounted to a conflict of interest wherein the respondent represented both parties. The separation agreement included a provision wherein both parties were advised that they could seek legal counsel to review the terms and conditions of the separation agreement. Despite the fact that court dates had been set for presentation of the divorce matter to a judge, the respondent advised the court clerk that he wished to withdraw the paperwork previously filed, and vacated those court dates due to his concerns about not being able to demonstrate service of process upon the client’s husband. At no time did the respondent engage a process server to serve divorce paperwork upon the client’s husband. The respondent advised the client that the divorce paperwork filed with the court would have to be withdrawn, and that he would then file a contested petition for divorce using similar information to that which was included in the previous petition. Although the respondent accepted retainer monies from the client to handle her case, he never placed any of this money into an attorney trust account, and did not have a trust account in which to deposit client funds. The respondent did not convert any funds. The conditions included establishment of a trust account in accordance with C.R.C.P. 1.15(f), the CBA "Hanging Your Shingle" CLE, return the client’s file, and refund the retainer. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.3, Colo. RPC 1.4(b), and Colo. RPC 1.15(f).
Commingling/Trust Account/Accounting Records Issues
—The Office of Attorney Regulation Counsel investigated reports of non-sufficient funds drawn on the respondent’s trust account. The technical conversion appears to be related to the respondent’s negligent handling of the account. The rule implicated is Colo. RPC 1.15.
—The respondent had been appointed as advisory counsel for an inmate who wished to proceed pro se on a possession and manufacturing of contraband (alcohol) while in prison. While acting as advisory counsel, the respondent received a request from the inmate’s mother to represent her son. The respondent stated that he would represent her son for $1,500. The respondent did not disclose to the mother that her son would be entitled to representation paid by the state under the Alternative Defense Counsel Fund. The respondent then went to meet the inmate. The respondent billed the mother travel time to the penitentiary at his full hourly rate of $150 per hour. According to the district judge in this case, a trip to the penitentiary to visit a client (even under such limited circumstances) would have been allowed under state personnel rules (but travel time would be limited to $40 per hour). After the visit, the respondent decided not to represent the son and notified the mother that he would send the retainer back. The mother requested that the respondent keep her abreast of what happened with her son’s case. Prior to and after trial, the respondent engaged in telephone conversations with the mother to update her on her son’s case. The respondent charged the mother his normal hourly rate for these phone calls. The respondent subsequently refunded the mother $900 and kept $600 for the trip to the penitentiary and for his telephone calls. The respondent failed to provide the mother with a breakdown of these charges. When the respondent submitted his Colorado Judicial Department requests for payment of fees, his itemized billing listed but did not charge for the January 13 trip to the penitentiary, nor did it charge for any of the phone calls to the mother. Thus there was no double billing in this case. The respondent has subsequently refunded the $600 that he previously had kept. The rules implicated are Colo. RPC 1.5 and Colo. RPC 1.15(b).
Fairness to Opposing Party and Counsel
—Prior to being licensed to practice law in Colorado, the respondent pled guilty to a charge of harassment (a third-degree misdemeanor) as a result of a domestic incident with his wife. His wife pled guilty to third-degree assault (a first-degree misdemeanor) as a result of the same incident. After he was licensed to practice in Colorado, the respondent pled guilty to violating a restraining order issued in connection with the original domestic dispute. The respondent violated the order by entering the marital residence at a time when his wife was not present and he knew his wife would not be present. Pursuant to the respondent’s plea to the charge of violating a restraining order, the respondent was placed on probation for two years, was ordered to perform forty-eight hours of community service, was ordered to have no contact with his now former spouse, and was ordered to continue with individual therapy with his counselor. At the time the diversion agreement was approved, the respondent was in compliance with all conditions of his probation. The rules implicated are Colo. RPC 3.4(c) and Colo. RPC 8.4(h).
Communication with Person Represented by Counsel
—The respondent and her firm represent four individuals regarding claims of alleged race discrimination by their former employer. The former employer is represented by another law firm. The respondent’s clients filed claims with the EEOC. The firm representing the former employer filed responses as counsel of record to each of the four EEOC complaints. The respondent sent a letter to the EEOC in reply to the response on behalf of the former employer. The respondent then sent a demand/settlement letter regarding her clients’ claims and position directly to the president of the former employer. The respondent maintains that her direct contact with the former employer was an inadvertent error that occurred as the result of an office procedure that has been corrected. The rule implicated is Colo. RPC 4.2.
Conduct Exhibiting Bias
—The respondent represented a client in a parenting time dispute with the client’s former husband. A forthwith hearing was held on the former husband’s motion for modification of parenting time. The magistrate ordered the parties’ child returned to respondent’s client and instructed the attorneys to make arrangements for the exchange. After the court recessed, the parties, their families, and their counsel remained in the courtroom to discuss exchange arrangements but had difficulty coming to an agreement. The discussions became heated and emotional. At one point, the respondent spoke to the attorney for the former husband and stated, "My client is not going to that faggot’s house to pick up that child." The former husband’s brother became upset and began to confront the respondent about his statement. The magistrate overheard the altercation, returned to the courtroom and contacted security. No physical contact occurred. The parties, their families, and their counsel separated before security arrived. The rule implicated is Colo. RPC 1.2(f).
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