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

July 2010       Vol. 39, No. 7       Page  147
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 quarterly 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 January 28, 2010 through May 3, 2010, at the intake stage:

• Regulation Counsel entered into sixteen Diversion Agreements involving sixteen requests for investigation

• the ARC entered into seven Diversion Agreements involving eight requests for investigation

• no Diversion Agreements were submitted to the PDJ for approval

• the ARC issued one private admonition involving one request 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; 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 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, 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 from January 28, 2010 to May 3, 2010 generally involve the following:

• the scope of representation and allocation of authority between client and lawyer, 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

• fee issues, implicating Colo. RPC 1.5

• confidentiality issues, implicating Colo. RPC 1.6

• conflict of interest, implicating Colo. RPC 1.7

• trust account issues, implicating Colo. RPC 1.15

• truthfulness in statements to others and respect for rights of third persons, implicating Colo. RPC 4.1 and 4.4

• failure to supervise non-lawyer staff, implicating Colo. RPC 5.3

• assisting another in the unauthorized practice of law/multijurisdictional practice of law, implicating Colo. RPC 5.5

• 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 from January 28, 2010 to May 3, 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.

Scope of Representation and Confidentiality

> A client was referred to respondent for representation in a criminal case. After client hired respondent and paid the retainer, respondent continued to discuss clients case and issues relevant to that case with the person who referred client to respondent.

Respondent asserts that client authorized this communication about the case with the other person. Client denies that any authorization was given for respondent to talk to this person, but concedes that authorization for was given for respondent to talk about the case with his ex-wife. Respondent’s file contains a written authorization for respondent to talk about the case with client’s ex-wife. Respondent did not obtain a written authorization from client to talk to the other person.

Respondent investigated the case by talking to the alleged victim, as well as to others, to advise client and to try to negotiate the dismissal of any criminal charges or to negotiate a favorable plea agreement for client. Respondent also engaged in e-mail discussions with the prosecutors handling the case to negotiate the dismissal of the charges or to obtain a favorable plea agreement. In these e-mails, respondent made the following and other statements to the prosecutors: client made an "obvious confession" to the police; client was "very controlling"; the alleged victim in the case was "very sweet"; and client was "much less sympathetic than [was] initial[ly] believed."

Respondent and client were unable to agree on the issues in the case, and client elected to hire a different lawyer. Respondent refunded half of the initial retainer to client, even though respondent believed the work had been performed and the entire retainer amount had been earned.

When client reviewed the file materials and learned of respondent’s communication with and statements to the person referring him to respondent, as well as to the prosecutors handling his case, client contacted the OARC. Respondent refunded the remaining portion of the fee to client.

Rules Implicated: Colo. RPC 1.2 and 1.6.

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.

Diligence and/or Failure to Communicate

> Respondent represented a client in a divorce case. The divorce was final in December 2008, except for the distribution of a 401(k) investment account.

In early 2009, an expert was retained to prepare the Qualified Domestic Relations Order (QDRO) papers to segregate client’s interest in the 401(k) account that was awarded by the court. The expert prepared the necessary paperwork for the QDRO, and provided that paperwork to respondent in May 2009. Respondent was slow to answer client’s questions and inquiries about the QDRO and its completion. In September 2009, client conferred with another lawyer, and the lawyer called respondent and encouraged respondent to take action to file the paperwork to complete the QDRO issue.

In mid-October 2009, respondent submitted the QDRO paperwork to the court for approval. The court approved and signed the papers in late October 2009. The court returned the papers to respondent for filing with the 401(k) plan administrator.

In November 2009, client’s second lawyer called respondent and inquired whether the court approved the QDRO papers. Respondent told the lawyer that the court had not signed the papers.

Beginning in December 2009, client’s second lawyer wrote to respondent and inquired why the QDRO matter had not been completed. Respondent did not respond to this letter.

Again in December 2009, client’s second lawyer wrote to respondent and explained that client was asking him to intervene to get the matter completed. Respondent did not respond to this letter. The second lawyer took action in January and February 2010 to file the QDRO papers with the 401(k) plan administrator, because respondent failed to do so for client.

Respondent’s client incurred attorney fees from the second lawyer to complete the QDRO task. These fees were incurred due to respondent’s lack of diligence and failure to communicate with client.

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; reimburse client for the second lawyer’s fee; undergo a law office audit; and pay all costs associated with the two-year Diversion Agreement.

Fee/Trust Account Matters

> Respondents retainer agreement provided that a portion of his fee was nonrefundable even if the case did not go to trial. In addition, during respondents representation, he did not keep the records required by Rule 1.15(g). Other than the bank statements and items from his trust account, respondent did not keep records of his receipt of funds from client or his transfer of funds from his trust account to his operating account. Respondent did not keep track of his time, other than possibly on handwritten notes, copies of which he did not preserve. Several months after client requested it, respondent provided an accounting, but without sufficient detail to be useful. Respondent’s billing statements to client also were vague and general in nature.

Rules Implicated: Colo. RPC 1.5 and 1.15.

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

Conflict of Interest

> In May 2007, respondent undertook representation of a client in a divorce case. Respondent accepted payments from clients grandmother for the work provided to client in that case. The issue concerned custody and parenting time for clients children, who were also the grandmother’s great-grandchildren.

In April 2008, client’s grandmother wrote to respondent and notified him that she would not be responsible for paying any more bills related to the divorce case. In February 2009, the grandmother contacted respondent and explained that her great-grandchildren were living with her. She requested that respondent assist her in drafting legal documents to modify the custody and parenting time orders in the divorce case to allow her to have temporary physical custody of her great-grandchildren.

Respondent advised the grandmother that the court might not allow the modification to the legal documents in the divorce case because there was no provision for child support to be paid by either parent. Additionally, respondent advised that he could assist the grandmother only if his former client in the divorce case agreed to the modification.

Respondent did not obtain any signed waiver from his client in the divorce case, and did not provide his client or the client’s grandmother with an informed consent document in writing explaining the potential conflicts. Respondent drafted a Stipulation to Modify Parenting Plan (Stipulation), which was signed by both parties to the divorce, and filed it with the court. The court rejected the Stipulation, because the client’s grandmother was not a party to the case.

Respondent counseled the client’s grandmother that she should pursue a guardianship of her great-grandchildren. Respondent drafted a Verified Petition for Appointment of Guardian for Minor in favor of the client’s grandmother. Neither parent would consent or agree to the guardianship in favor of the grandmother.

In August 2009, respondent filed a motion to withdraw as the attorney for his client in the divorce case. In September 2009, respondent filed a motion to intervene on behalf of his former client’s grandmother. In early November 2009, the court granted the grandmother’s motion to intervene. Respondent filed documents with the court, seeking to obtain a guardianship or some other custody and parenting time for his former client’s grandmother. Respondent’s former client filed an objection to the action taken by respondent, and filed a motion to disqualify respondent, because he was now representing the former client’s grandmother against him.

The court denied any guardianship in favor of the former client’s grandmother. Respondent received $2,200 from the grandmother as compensation for work performed after February 2009 on her behalf. In March 2010, respondent refunded the $2,200 to the grandmother.

Rule Implicated: Colo. RPC 1.7(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; attend a continuing legal education course in family law; and pay all costs associated with the one-year Diversion Agreement.

Truthfulness in Statements to Others

> Respondent represented a client in a criminal case. The case involved allegations of sexual assault on a child. Respondent undertook that representation after the advisement took place and after a mandatory protection order was issued against her client. After she was retained by the client, respondent’s client and others (including his wife and a friend) reported that at an earlier hearing in the criminal case, the court issued a gag order preventing all parties and lawyers to the case from discussing the case in any way. Respondent did not verify whether a gag order had been issued.

After a hearing in the case in September 2009, respondent’s client reported to her that the father of the alleged victim in the case was talking to a photographer with a local news station. Respondent confronted the father of the alleged victim in the case and the photographer in the hallway of the courthouse, and asserted that they were violating a gag order imposed in the criminal case. Respondent reports that the father of the alleged victim became angry and confrontational during this exchange.

From a distance, respondent’s boyfriend witnessed the exchange between respondent and the photographer and the father of the alleged victim. Boyfriend intervened on respondent’s behalf. During the incident, respondent’s boyfriend challenged the father of the alleged victim to step outside to resolve the dispute and called him a pejorative name.

Respondent failed to confirm the fact that a gag order existed in the case before accusing the alleged victim’s father of violating the court order. In fact, no such gag order was ever issued in the criminal case.

Rules Implicated: Colo. RPC 4.1, 4.4, 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.

Failure to Supervise Non-Lawyer Staff, Unauthorized Practice of Law, and Multijurisdictional Practice of Law

> Respondent hired a paralegal to work on bankruptcy cases originally filed by another attorney who was closing his bankruptcy practice. Respondent and another attorney working with him met with the paralegal to interview her. They checked her employment references and eventually offered a contract position with respondent’s firm. The paralegal’s employment agreement specified that respondent was to meet with all future clients and speak with them prior to any offer of representation. The paralegal would prepare the bankruptcy petition, respondent would review the petition, the paralegal would file the approved petition, and respondent or the other attorney working with him would handle all court appearances. The paralegal was to do her work from her home, but arrange all meetings with clients and respondent at respondent’s office.

Despite their agreement, the paralegal met with and presented respondent’s fee agreement to approximately ten clients without respondent’s knowledge. On learning of the paralegal’s conduct, which constitutes the unauthorized practice of law, respondent did not fire the paralegal immediately but gave her a second chance to reform her conduct. The paralegal did not reform her conduct, and on respondent’s discovery of the paralegal’s ongoing efforts to sign up new clients without respondent’s knowledge and involvement, he terminated the paralegal’s employment.

Rules Implicated: Colo. RPC 5.3 and 5.5(a)(3).

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 is an attorney licensed in another state, but is not licensed in Colorado. Respondent has been domiciled in Colorado for several years. During the time she has lived here, respondent provided legal services in Colorado for a corporate client. Respondent did not apply to the Colorado Supreme Court for single-client counsel certification, as permitted by C.R.C.P. 222. When her failure to register was drawn to her attention, she resigned as corporate counsel.

Rule Implicated: Colo. RPC 5.5(a).

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.

Criminal Conduct

> Police officers responded to a report of a single car rollover accident where respondent had run into a curb and struck a street lamp. Respondent had to be extracted from the car. He was driving on a restricted groundskeeping access road. Respondent was transported to the hospital. His blood alcohol content (BAC) was .261 percent.

Respondent was convicted of driving under the influence (DUI). He was sentenced to fifteen months of probation with the following conditions: twelve months of monitored sobriety; Level II education; fifty-two hours of therapy; no drinking; victim impact panel; payment of fees and costs of $1,282; 180 days in jail (150 days suspended); and electronic home monitoring for thirty days.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; participate in breath tests three times weekly for two years; comply with all terms of the court sentence; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In October 2009, respondent was involved in a hit-and-run accident. The investigating officer determined that a vehicle made impact with two parked, unattended vehicles and drove off. The vehicle that drove off left marks in the street that appeared to be from a vehicle operating on a rim without a tire. The officer followed the marks in the road, which led him to a vehicle registered to respondent. Respondent was with his vehicle, and admitted to the officer that he struck several vehicles and that he had been drinking before the accident. Respondent refused to perform field sobriety tests and refused to provide a breath or blood sample for testing.

In January 2010, respondent pled guilty to driving while ability impaired (DWAI). On that date, he was convicted of that offense and sentenced to serve one year of probation and other conditions.

In late January 2010, respondent reported the conviction to the OARC, pursuant to the requirement contained in C.R.C.P. 251.20(b). 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. That evaluation determined that respondent did not meet the criteria for a diagnosis of alcohol abuse or alcohol dependence.

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 court sentence; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In February 2009, respondent was arrested and charged with violation of CRS §§ 42-4-1301(1)(a) (DUI) and -1101(1)(a) (speeding). Respondent refused to submit to a chemical test to determine his blood alcohol level at the time of driving.

In September 2009, respondent was convicted, by way of a plea, of violation of CRS § 42-4-1301(1)(b) (DWAI second). Respondent was sentenced to two years of probation; forty-eight hours of useful public service; sixty-eight hours of Level II alcohol therapy; fifteen days of electronic home monitoring; 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 terms of the county court sentence; abstain from alcohol; participate in random breathalyzer testing; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In October 2008, respondent was arrested and charged with violation of CRS § 42-4-1301(1)(a) (DUI). According to the arresting officer, respondent unsatisfactorily performed the voluntary roadside maneuvers. Respondent refused to submit to a chemical test to determine his blood alcohol level at the time of driving.

In July 2009, respondent was convicted, after a plea of guilty, of violation of CRS § 42-4-1301(1)(b) (DWAI). Respondent was sentenced to one year of supervised probation and ordered to completed Level II education, attend a Mothers Against Drunk Driving (MADD) impact panel presentation, perform thirty-five hours of useful public service, and pay 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 the terms of probation; abstain from alcohol use; comply with all the terms and conditions of the criminal court case; attend Ethics School; and pay all costs associated with the one-year Diversion Agreement.

__________________

> In August 2009, respondent was cited for disorderly house, in violation of a city ordinance. The disorderly house citation was issued because respondent and others had been drinking and were causing a disturbance at a residence owned by respondents parents and primarily inhabited by respondent and his brother.

In February 2010, respondent entered into a stipulation for deferred judgment to resolve the disorderly house citation. The stipulation includes a condition that respondent not have any alcohol-related or criminal convictions for the one-year period of deferment, and that respondent attend the daily outpatient treatment classes provided by the Department of Veterans Affairs at respondent’s own expense, unless otherwise covered through benefits that respondent qualified for as a veteran.

The court approved the stipulation for deferred judgment in February 2010. A deferred judgment amounts to a conviction pursuant to C.R.C.P. 251.20(h). Respondent self-reported the conviction to the OARC in February 2010.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall abstain from alcohol use; undergo random breathalyzer testing; attend a treatment or support program; comply with all the terms and conditions of the court case; attend Ethics School; and pay all costs associated with the one-year Diversion Agreement.

__________________

> In October 2009, respondent and her boyfriend got into an argument while both were drinking. Respondent made remarks about her boyfriends sister that caused him to get angry and to lock respondent out of their apartment. When the boyfriend finally opened the door, respondent slapped his cheek and kicked his leg as she walked into the apartment. He called 911. Respondent was arrested for third-degree assault–domestic violence. The boyfriend regretted his action and wrote a letter to the district attorney, asking that the charges be dropped.

Respondent entered into a one-year, unsupervised deferred judgment for misdemeanor harassment (a Class 3 misdemeanor), with thirty-six sessions of domestic violence treatment, fines and fees, a donation to the domestic violence fund, twenty-four hours of community service, and no excessive alcohol use. Respondent reported her deferred judgment to the OARC.

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.

__________________

> In March 2009, respondent was arrested and charged with violations of CRS §§ 42-4-1301(1)(a) (DUI); -1402(1) (careless driving); and -1602(1) (failure to give information after an accident). The police report indicates that respondent was advised of the Colorado express consent law. The police report also indicates that respondent refused to submit to a chemical test to determine his blood alcohol level at the time of driving.

Respondent has taken the position that he did not refuse the test, but was denied the chemical test by the arresting officer. Accordingly, there is no blood alcohol test result. In August 2009, respondent entered into a one-year deferred judgment to the charge of violating CRS § 42-4-1401(1)(b) (DWAI).

Rule Implicated: Colo. RPC 8.4(b).

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

__________________

> Respondent was contacted as a result of a 911 call reporting a possible drunk driver. He ultimately was arrested for DUI (alcohol). Respondent consented to having his blood drawn, which resulted in a BAC of .201. Respondent pled guilty to DUI. He was sentenced to eighteen months of probation; ten days in jail; Level II alcohol education; sixty-eight hours of alcohol therapy; monitored sobriety; attendance at a MADD victim impact panel; no alcohol or drug use; and fifty-two 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 comply with all the terms and conditions of the court case; attend Ethics School; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In July 2009, respondent was involved in an incident wherein he and another driver confronted each other after an exchange of words and hand gestures on I-25. The complaining witness alleged that respondent assaulted him and that the complaining witness did nothing to incite or provoke the assault. Respondent contended that the complaining witness initiated the physical contact and that he used physical force to escort the complaining witness back to his vehicle. Three witnesses came forward and reported that they observed the incident between the complaining witness and respondent. Each witness reported that the respondent was the aggressor.

On the night of the incident, respondent was issued a citation for assault and disturbing the peace. The citation was sent to the county court diversion program. As part of the diversion program, respondent is required to participate in and complete counseling and anger management classes.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall comply with all terms and conditions of the court case; attend Ethics School; provide monthly progress reports; and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent was cited on May 23, 2008 for DUI, DUI per se, DWAI, careless driving, and turning without signaling. Respondent was arrested around 4:40 p.m., after an anonymous report stated she was driving in and out of a construction zone and hitting construction barrels. Respondent then was observed making a right-hand turn, not using her turn signal, making an exceptionally wide turn almost onto the left shoulder, and then hitting a curb. The respondent’s breath alcohol content was .255.

Respondent pled guilty to careless driving and DWAI. Two months later, she was sentenced to one-year unsupervised probation; Level II Education; costs; in-home detention; and fifty-two hours of therapy.

Respondent voluntarily submitted to fifteen months of breathalyzer tests, all of which were negative. Respondent was evaluated at the request of OARC. The evaluator determined that future monitoring was unnecessary.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend an Alcoholics Anonymous or other equivalent recovery program; meet at least three times per week for the duration of the Diversion Agreement; abstain from the use of alcohol; attend Ethics School; 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) and -1101(2)(a) (speeding). Pursuant to the Colorado expressed consent law, respondent submitted to a chemical test to determine his BAC at the time of driving. Respondent submitted to a blood test, with the result indicating a BAC of .218.

In December 2009, respondent was convicted of violation of CRS § 42-4-1301(1)(a) (DUI). Respondent was sentenced to twelve months of supervised probation; eighty hours of useful public service; 365 days in jail (343 days suspended), two days of jail time served, and twenty days in-house detention; Level II education and therapy; no alcohol consumption during the term of probation; monitored sobriety; preparing a victim impact statement; 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 terms of the court sentence; attend Ethics School; and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was a party to two altercations with a girlfriend. In the first, the girlfriend complained that respondent injured her. In the second, neither party touched the other, but they shouted at one another. Respondent pled guilty to attempted third-degree assault in the criminal case relating to the first altercation, and attempted violation of a civil restraining order in the second matter. Respondent was sentenced to one-year of probation. Alcohol was involved in each incident. At the request of OARC, respondent underwent an evaluation. The evaluation determined no monitoring conditions were necessary.

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 three-year diversion agreement.

Conduct Prejudicial to the Administration of Justice

> Respondent ordered transcripts from a court-reporting agency between October and December 2008. The reporting agency prepared the transcripts and delivered them to respondent with invoices. Respondent and/or his client failed to pay the invoices.

In March 2009, the reporting agency contacted respondent and inquired about the unpaid invoices. Respondent entered into an agreement to pay the total amount of the invoices over a period of seven months. That agreement included a specific installment payment agreement that was to be paid in seven installments. Additionally, the agreement stated that a late fee would be added to any installment that was not paid by the appropriate deadline.

Respondent made the initial installment payment, but failed to pay the remaining six monthly payments. The outstanding amount owed to the credit reporting agency (including late fees) is $3,594.40.

Rule Implicated: Colo. RPC 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent shall attend Ethics School; repay the complainant monthly until the debt is paid in full; and pay all costs associated with the two-year diversion agreement.

__________________

> In April 2009, respondent attended the deposition of his client. At the end of the deposition, respondent conferred with his client to determine whether to order a copy of the transcript of the deposition. Respondent ordered a copy of the transcript from the court reporter.

The court-reporting agency prepared the transcript and delivered it on April 22, 2009 to respondent with an invoice for payment. Respondent did not return the transcript, and did not dispute the invoice.

Respondent failed to pay the invoice. Reminder invoices were sent to respondent on a monthly basis beginning in May 2009.

In September 2009, respondent told the court-reporting agency that his client terminated him and that he considered the debt associated with the transcript to be the responsibility of his client. Respondent asserts that although he ordered the transcript, this was done at the direction of his client. Respondent believes his client is responsible for any cost associated with preparation of the transcript.

Rule Implicated: Colo. RPC 8.4(d).

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

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