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Vol. 39, No. 4 [Page 109]
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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 12, 2009 through January 27, 2010, at the intake stage:
Regulation Counsel entered into three Diversion Agreements involving three requests for investigation
the ARC entered into five Diversion Agreements involving seven requests for investigation
no Diversion Agreements were submitted to the PDJ for approval
the ARC issued five private admonitions involving five requests for investigation
the 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 he or she 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
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
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 12, 2009 through January 27, 2010 generally involved the following:
an attorney’s neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4
declining or terminating representation, implicating Colo. RPC 1.16
meritorious claims and contentions, implicating Colo. RPC 3.1
committing a criminal act, implicating Colo. RPC 8.4(b)
conduct involving dishonesty, fraud, deceit, or misrepresentation, implicating Colo. RPC 8.4(c).
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.
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 12, 2009 through January 27, 2010. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct implicated, and the corresponding conditions of the Diversion Agreement.
Diligence and/or Failure to Communicate
> Respondent did not timely prepare permanent orders and made incorrect statements in two pleadings he filed with the court.
Rule Implicated: Colo. RPC 1.3.
Diversion Agreement: Respondent shall attend Ethics School and pay all costs associated with the one-year Diversion Agreement.
> Respondent represented a client in a county court dispute. During the trial, respondent appeared to not follow what the witnesses and judge were saying. The judge, the client, and the opposing party confirmed that respondent seemed to have considerable difficulty hearing the judge and witnesses. Respondent had not taken steps to address any hearing impairment prior to this trial and during representation of the client in the trial. Respondent did not advise his client beforehand that the hearing impairment might limit respondent’s ability to represent the client in trial.
Additionally, in September 2008, respondent was charged with driving under the influence (DUI) and a traffic violation. In January 2009, respondent pled guilty to driving while ability impaired (DWAI). This was respondent’s first alcohol-related offense.
Rules Implicated: Colo. RPC 1.4, 1.16(a), and 8.4(b).
Diversion Agreement: Respondent shall comply with the conditions in the DWAI court case; continue to use the hearing aids obtained subsequent to the client’s trial (or any newer hearing aids recommended) and/or request special accommodations equipment provided by the courts for hearing-impaired individuals for any future appearances before any court; attend Ethics School; and pay all costs associated with the one-year Diversion Agreement.
> In April 2006, respondent was arrested and charged with failing to drive in a single lane of traffic, as well as DUI (alcohol). Respondent’s blood alcohol concentration (BAC) was measured to be .132 after his arrest.
In August 2006, respondent was arrested for failure to use turn signals and DUI (alcohol). Respondent’s BAC was measured to be .135 after his arrest.
In January 2007, respondent pled guilty to an amended charge of DWAI (first offense) for the August 2006 arrest and pled guilty to an amended charge of DWAI (second offense) for the April 2006 arrest. In April 2007, respondent was sentenced in the second matter, which included twenty days of in-home detention.
Respondent failed to report these convictions to the OARC, pursuant to the requirement contained in C.R.C.P. 251.20(b). The OARC learned of these convictions from a hearing officer.
At the request of the OARC, respondent submitted to an independent medical evaluation to determine whether he met the criteria for a diagnosis of alcohol/substance abuse or dependence. The evaluation determined that respondent met the criteria for a diagnosis of alcohol abuse (moderate) in early partial remission.
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: Respondent shall attend Ethics School, participate in the MEMS 3000 alcohol monitoring system for two years, comply with all terms of the county court sentence, abstain from alcohol use, 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); CRS § 42-4-1301(2)(a) (DUI per se); CRS § 42-4-206 (defective license plate); and CRS § 42-4-208 (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 was 0.137.
In March 2009, respondent pled guilty to violating CRS § 42-4-1301(1)(b) (DWAI).
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: Respondent shall participate in a monitored sobriety program, continue participating in a monitored Antabuse program, and undergo random breathalyzers four times per week for the duration of the three-year Diversion Agreement.
> In December 2008, a vehicle driven by respondent was observed by a police officer to be weaving and speeding. After stopping the vehicle, the officer observed that respondent smelled of alcohol and his speech was slurred and slow. Respondent declined to perform field sobriety tests and was arrested for suspicion of DUI (alcohol). Respondent refused to submit to testing to determine his BAC.
In September 2009, respondent pled guilty to DWAI. In November 2009, respondent was sentenced in that case. He was placed on probation for twenty-four months, and was ordered to abstain from the use of alcohol while on probation, to submit to testing to monitor his sobriety, to perform thirty days of in-home detention, and to comply with other conditions imposed at the time of sentencing.
At the request of the OARC, respondent submitted to an independent medical evaluation in February 2009 to determine whether he met the criteria for a diagnosis of alcohol/substance abuse or dependence. The evaluation determined that respondent met the criteria for a diagnosis of alcohol abuse, in early remission.
The evaluation recommended that respondent attend and successfully complete an Intensive Outpatient Treatment Program. Respondent successfully completed the outpatient treatment program in June 2009.
Additionally, respondent has complied with a regimen of monitored antabuse to ensure sobriety since early January 2009. He also has provided weekly monitoring reports to demonstrate compliance with monitored sobriety from February 2009 to the present.
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: Respondent shall comply with all terms of the criminal court sentence, abstain from alcohol, have random urinalysis tests once a month for one year, participate in the MEMS 3000 alcohol monitoring system after completion of the court-ordered monitored sobriety, attend Alcoholics Anonymous (AA) meetings three times a week for three years, and pay all costs associated with the three-year Diversion Agreement.
> In December 2008, respondent was arrested for DUI. After failing the roadside maneuvers, respondent refused a portable breath test. A blood test revealed a BAC of .216. In May 2009, respondent was sentenced to fines and costs, probation, alcohol abstinence, alcohol supervision for two years, and one year of jail time with all but ten days suspended. Respondent also was ordered to abstain from the use of alcohol during probation or treatment, whichever is longer. This is respondent’s second alcohol-related offense.
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: Respondent shall comply with all the conditions of the county court sentence; verify participation in a structured outpatient program for a minimum of one year; attend AA meetings at least three times per week; undergo random breathalyzer tests four times per week for the first year of the agreement and a minimum of two times per week during the second year of the agreement, or may choose to participate in the MEMS 3000 alcohol monitoring system in lieu of the breathalyzers; undergo one full-screen urinalysis per month; attend Ethics School; and pay all costs associated with the two-year Diversion Agreement.
> In July 2008, respondent struck a vehicle that was pulling into traffic. There were no injuries. Respondent’s BAC was .216. Respondent was cited by the police department for DUI, driving a motor vehicle without proof of insurance, driving a motor vehicle with a BAC of .08, and careless driving.
In February 2009, respondent pled guilty to DUI and was sentenced to monitored sobriety for one year, Level II education, and fifty-two hours of group therapy.
Rule Implicated: Colo. RPC 8.4(b).
Diversion Agreement: Respondent shall continue with monitored sobriety and treatment, attend AA, submit to a hair follicle test once every three months for one year, comply with the terms and conditions in the DUI case, attend Ethics School, and pay all costs associated with the three-year Diversion Agreement.
Conduct Involving Dishonesty,
Fraud, Deceit, or Misrepresentation
> Respondent made an incorrect statement in a motion he filed in federal district court. Respondent’s statement was negligent or reckless, but not knowing.
Rule Implicated: Colo. RPC 8.4(c).
Diversion Agreement: Respondent shall undergo a law office audit, participate in a practice monitoring program, enter into an agreement with his client regarding funds currently in a federal court registry or file a state court action regarding those funds, attend Ethics School, and pay all costs associated with the eighteen-month Diversion Agreement.
> Respondent filed a frivolous appeal. Each of respondent’s arguments suffered from a critical lack in the evidence or the law or both. With respect to one of the propositions respondent advanced, he had cited no legal authority. Because respondent failed to raise good-faith arguments, his appeal was deemed frivolous.
Admonishment: Respondent was admonished for violating Colo. RPC 1.3.
> Respondent’s law practice consisted primarily of representing real estate developers. In 2004, respondent participated as a lender to a limited liability company that was in the real estate development business. Respondent sought a guarantee from an individual whom respondent had personally represented. The guarantor believed respondent was his attorney. Respondent was negligent in his failure to determine that an attorney-client relationship existed between himself and the guarantor.
The limited liability company defaulted on the loan and respondent sued the guarantors, including his client. The guarantor/client counterclaimed and received a setoff based on the pre-existing attorney-client relationship.
Admonishment: Respondent was admonished for violating Colo. RPC 1.8(a).
> In connection with two clients who were charged with municipal ordinance violations, respondent failed to reasonably communicate with the clients and failed to diligently represent the clients. Specifically, respondent failed to investigate certain evidence that the clients believed would prove their innocence, and failed to appear on behalf of his clients for a pretrial conference. In addition, respondent failed to cooperate with the OARC in connection with its investigation of the clients’ complaints.
Admonishment: Respondent was admonished for violating Colo. RPC 1.3, 1.4(a)(3), and 8.1(b).
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