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TCL > April 2011 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

April 2011       Vol. 40, No. 4       Page  101
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 October 30, 2010 through February 1, 2011, at the intake stage:

  • Regulation Counsel entered into twelve Diversion Agreements involving twelve requests for investigation
  • the ARC approved eight Diversion Agreements involving eight requests for investigation
  • no Diversion Agreements were submitted to the PDJ for approval
  • the ARC issued one private admonition involving two matters
  • 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) the likelihood that the attorney will harm the public during the period of participation;
2) whether Regulation Counsel can adequately supervise the conditions of diversion; and
3) whether 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, generally the matter 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. 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 October 30, 2010 through February 1, 2011 generally involved the following:

  • a lawyer must provide competent representation to a client, implicating Colo. RPC 1.1
  • a lawyer must act with reasonable diligence and promptness in representing a client, implicating Colo. RPC 1.3
  • fee issues, implicating Colo. RPC 1.5
  • conflict of interest, implicating Colo. RPC 1.7
  • conflict of interest, implicating Colo. RPC 1.8
  • trust account issues, implicating Colo. RPC 1.15
  • declining or terminating representation, implicating Colo. RPC 1.16
  • impartiality and decorum of the tribunal, implicating Colo. RPC 3.5
  • respect for rights of third persons, implicating Colo. RPC 4.4
  • threatening prosecuting, implicating Colo. RPC 4.5
  • committing a criminal act, implicating Colo. RPC 8.4
  • engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, implicating Colo. RPC 8.4
  • conduct prejudicial to the administration of justice, implicating Colo. RPC 8.4.

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 counseling, if necessary, 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 occurring from October 30, 2010 through February 1, 2011. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct implicated, and the corresponding conditions of the Diversion Agreement.

Competence

> Respondent represented a client in a federal criminal trial. Following his client's conviction and sentencing, respondent submitted an affidavit to the court asserting that he had been ineffective as counsel because he was wholly unfamiliar with the provisions of the federal Speedy Trial Act. In a subsequent affidavit and in hearing testimony, respondent reiterated his lack of knowledge of the Speedy Trial Act, despite his years of practice in criminal courts.

Rule Implicated: Colo. RPC 1.1.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, attend the Federal Practice Series continuing legal education (CLE) course presented by the Office of the Federal Public Defender, and pay all costs associated with the one-year Diversion Agreement.

Diligence and/or Failure to Communicate

> Respondent represented a criminal defendant charged with the following crimes: attempt to commit murder in the first degree; conspiracy to commit murder in the first degree; criminal mischief; contributing to the delinquency of a minor; menacing; possession of a weapon by a previous offender (felony burglary, arson, force, or deadly weapon conviction); and illegal discharge of a firearm into a motor vehicle. Respondent had attempted to subpoena witnesses for the trial, but was unable to locate the witnesses. Respondent also had requested copies of CDs that contained recorded phone calls she wished to review before the trial. The CDs were not provided to respondent until one week before the trial.

During the course of the trial, defendant advised the court that he wanted to fire respondent because she had not subpoenaed his witnesses and had not reviewed the CDs. Respondent advised the court that she needed a continuance because she had not had sufficient time to review the CDs. The court denied the continuance, but took a recess to permit respondent time to locate the witnesses she had not subpoenaed. Respondent was unable to locate the witnesses.

Respondent’s client was convicted of conspiracy to commit murder in the first degree, menacing, and possession of a weapon by a previous offender. Defendant was found not guilty of criminal attempt to commit murder in the first degree, contributing to the delinquency of a minor, criminal mischief, and illegal discharge of a firearm into an automobile.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, attend ten hours of CLE for criminal law, work with a practice mentor, and pay all costs associated with the two-year Diversion Agreement.

Fee/Trust Account Matters

> In 2009, respondent was hired to represent a client in two criminal proceedings. Respondent first was hired to review the client's prior conviction. He charged $1,500 as a flat fee for this work. Respondent did not deposit any portion of the flat fee into his trust account; instead, he deposited the funds immediately into his operating account. There was no written fee agreement. Respondent completed this legal matter, therefore earning the $1,500.

Respondent then was hired by the same client regarding new criminal charges. Respondent charged $3,500 to bring the case to disposition or trial. Respondent received the $3,500 prior to disposition of the case, but he did not deposit any portion of those funds into his trust account, instead depositing the funds immediately into his operating account. There was no written fee agreement with regard to this second matter. Respondent represented his client through disposition of the second case, therefore earning the $3,500. Respondent normally uses written fee agreements, but he did not do so with regard to this client.

Rules Implicated: Colo. RPC 1.5 and 1.15(a) and (j).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and Trust Account School, submit to financial monitoring, and pay all costs associated with the three-year Diversion Agreement.

__________________

> Respondent represented a client in pursuing personal injuries sustained in a work-related accident. The client had separate counsel representing him on the workers' compensation component of the injuries. The fee arrangement between respondent and the client called for respondent to be paid a contingent fee. Respondent worked on the case for approximately one year, from July 2009 through June 2010.

In June 2010, the client terminated respondent and hired the workers’ compensation attorney to represent him on all aspects of the case. The workers’ compensation attorney contacted respondent and requested the file.

Respondent sought assurance from the other attorney that he would be paid for the services he provided to the client. Specifically, respondent sought a written confirmation that the other attorney and the client would agree to compensate respondent for his services when the case was resolved.

The other attorney asked respondent for clarification of the amount of fees that he was claiming, and declined to provide the written confirmation or assurance respondent requested. Respondent threatened to contact the OARC (and threatened to sue his former client, the attorney, and others) if the other attorney did not provide him with written confirmation or assurance that respondent would be paid. Respondent has been unable to locate or produce a contingent fee agreement signed by the client.

Rules Implicated: Colo. RPC 1.5(c) and 4.5(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent overdrew his COLTAF account. Respondent failed to reconcile his trust account on a regular basis and did not adequately maintain general and client ledgers. Respondent paid the money back to his COLTAF account once the error was discovered.

Rules Implicated: Colo. RPC 1.15(i)(6) and (j)(1) and (2).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Trust Account School and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent overdrew his COLTAF account. Respondent failed to deposit funds reasonably sufficient to pay anticipated service charges into his trust account and failed to reconcile his account. Respondent failed to maintain the appropriate receipts and disbursement records of all deposits and withdrawals from the trust account. Respondent did not maintain an appropriate record-keeping system identifying each person or entity for whom the lawyer held money or property in trust.

Respondent’s flat-fee agreements failed to identify when fees were earned. The agreements also penalized the client if either party terminated representation before the end of a case or matter. Respondent paid the money back to his COLTAF account once the error was discovered.

Rules Implicated: Colo. RPC 1.15(g), (i)(6), and (j)(1) and (2), and Colo. RPC 1.5(g).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Trust Account School and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was retained by a client in January 2010 for assistance in a child custody and dependency and neglect proceeding. The client paid respondent a retainer of $4,000 in January 2009. There was no written fee agreement. Respondent appears to have deposited the retainer in his trust account. The client terminated respondent’s services in April 2009. Respondent did not refund the unearned portion of the client’s retainer until August 2009.

Respondent did not maintain contemporaneous records of the client’s trust account activity. Respondent transferred the unearned portion of the retainer from his trust account into his operating account, and respondent issued the refund directly from his operating account within several days of the transfer, thereby failing to follow proper procedure with regard to refunding unearned fees.

Rules Implicated: Colo. RPC 1.15(a) and 1.16(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

Conflict of Interest

> In early 2009, respondent was hired with regard to the administration of an estate. Respondent believed she was hired to represent the estate in a probate proceeding and the administration of a trust. The fee agreement, however, was signed by the personal representative/trustee, individually. There was no designation that the personal representative/trustee was signing on behalf of the estate or that respondent represented the estate and not the personal representative. In fact, the evidence indicates that respondent represented the individual.

In mid-2009, the sibling beneficiaries decided to remove the personal representative/trustee from her role. Respondent prepared a "Removal and Appointment of Trustee" at the siblings’ request, appointing one of the siblings to be the new trustee. There was a conflict of interest between the personal representative/trustee and her siblings and respondent’s taking action to remove the personal representative/trustee was adverse to her client’s interests.

Rule Implicated: Colo. RPC 1.7(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, attend a minimum of six hours of CLE courses specific to trust and estate law, and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent represented three plaintiffs in a lawsuit. Defendant filed counterclaims against the three plaintiffs. The court disqualified respondent from representing any of the plaintiffs in the lawsuit, finding that he had a conflict of interest, in violation of Rule 1.7 of the Colorado Rules of Professional Conduct. The court determined that respondent was unable to meet the duty of loyalty he owed independently to each of the three plaintiffs because of the inherent conflicts of interest among the three plaintiffs.

Rule Implicated: Colo. RPC 1.7(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and pay all costs associated with the two-year Diversion Agreement.

Impartiality and Decorum of the Tribunal

> Respondent represented a parent in a dissolution matter. Respondent acted disrespectfully toward the court during a review hearing in that matter by interrupting the court and loudly arguing with the court about an issue already ruled on.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must continue treatment with his psychologist, obtain a medical evaluation from his general practitioner, and pay all costs associated with the two-year Diversion Agreement.

Respect for Rights of Third Persons

> Respondent represented a client in a real estate matter. The client's landlord sought to evict the client from leased property. Respondent contacted the landlord, who also is a lawyer, and discussed a resolution of the matter with the landlord. Respondent believed that an agreement was reached to settle the matter. The landlord did not agree, and took action to complete the eviction. Respondent did not enter his appearance in the court proceedings, and did not participate in the hearing when the court granted the eviction and issued a writ of restitution.

Shortly after the eviction proceeding, respondent called the landlord and left a voicemail message expressing his belief that an agreement had been reached and that the landlord lied to the court at the eviction hearing. Respondent’s voicemail was filled with profanity. In the voicemail message and in e-mails sent to the landlord, respondent threatened to contact the OARC if the landlord did not return his call by a specific time. This threat was communicated by respondent three times, twice by telephone and once in an e-mail.

Rules Implicated: Colo. RPC 4.4(a) and 4.5(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

Criminal Conduct

> In October 2010, respondent pleaded guilty to second-degree criminal trespass, a class 3 misdemeanor, in violation of CRS § 18-4-503(1)(a). Respondent received a one-year deferred sentence and was ordered to satisfy several conditions as a part of that deferred sentence.

Rules Implicated: Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

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

__________________

> In January 2010, respondent struck a parked car while driving. After his arrest, respondent's blood alcohol concentration (BAC) was measured at more than .300. In April 2010, respondent pleaded guilty to driving under the influence (DUI) in county court. In June 2010, he was sentenced to serve thirty days of in-home detention with electronic monitoring and to complete fifteen months of supervised probation. Additionally, the court ordered a regimen of monitored sobriety while respondent was on probation.

Rules Implicated: Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, abstain from alcohol, submit to random urinalysis testing two times a month, comply with all terms of the court sentence, and pay all costs associated with the two-year Diversion Agreement.

__________________

> In January 2010, respondent was arrested and charged with lane usage violation, child abuse, driving under restraint, and DUI. Respondent refused to submit to a chemical test to determine her BAC at the time of driving, pursuant to the Colorado Express Consent law. In July 2010, respondent was convicted in county court of driving while ability impaired (DWAI). On that same day, she entered into a one-year deferred judgment and sentence for reckless endangerment.

Rules Implicated: Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, comply with all terms of the court sentence, abstain from alcohol use, participate in the MEMS 3000 alcohol-monitoring system, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent was involved in a minor altercation with the opposing party in a disputed civil lawsuit. On the day of the altercation, respondent and the opposing party attended a pre-trial conference during which they made attempts to settle the lawsuit. When the case could not be settled, the parties went to the court clerk’s window to set the matter for trial. As the parties were setting the matter for trial, an argument ensued concerning plaintiff’s name. At that time, respondent pushed and grabbed the opposing party and said, "Let’s take it outside." The court clerk contacted the sheriff for assistance and, in the interim, a judge separated the two parties.

Criminal charges were brought against respondent for misdemeanor harassment, but those charges were later dismissed by the prosecuting attorney. Respondent has no prior public discipline.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent pleaded guilty to DUI in August 2009. Respondent received a one-year deferred sentence with the following requirements: Level II alcohol education; fifty-two hours of therapy; twenty-four hours of education; no alcohol or illegal drugs; random breath and urine analyses; twenty days of in-home detention with community corrections; and fifty hours of public service.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; abstain from alcohol or any other mood-altering substance unless such substance is prescribed by a licensed Colorado physician; participate in therapy on an as-needed basis; participate for two years in monitored sobriety through EtG testing; and pay all costs associated with the two-year Diversion Agreement.

__________________

> In February 2009, respondent was arrested and charged with DUI; driving a motor vehicle with a BAC of 0.08; driving the wrong way on one-way roadways and rotary traffic islands; and careless driving. Pursuant to the Colorado Express Consent law, respondent submitted to a chemical test to determine his BAC at the time of driving. The result of the chemical test was .179.

In February 2010, respondent was convicted in county court of violating CRS § 42-4-1301 (driving under the influence with a prior DUI conviction). This was respondent’s second alcohol-related offense.

Rules Implicated: Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; participate in the MEMS 3000 alcohol-monitoring system; abstain from alcohol or any other mood-altering substance unless such substance is prescribed by a licensed Colorado physician; comply with all terms of the court sentence; and pay all costs associated with the three-year Diversion Agreement.

__________________

> In June 2009, the police responded to a hit-and-run accident. Two vehicles were damaged on one side of each vehicle. Respondent was attempting to hide when officers contacted him. Respondent admitted that he had been drinking and that he hit the two vehicles. He says he left because he was scared but decided to pull over and call his wife.

Respondent had a loaded .44 caliber magnum revolver in his car behind the driver’s seat. He was arrested for DUI, leaving the scene of an accident, careless driving, and prohibited use of a weapon (drunk with a gun). Breath test results showed that respondent had a BAC of .195.

In February 2010, respondent entered a guilty plea to DUI and was sentenced to two years’ probation with conditions. This is respondent’s second alcohol-related offense. Respondent’s first DUI conviction was in 1997, at which time his BAC was .10.

Rules Implicated: Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School; participate in the MEMS 3000 alcohol-monitoring system for two years; abstain from alcohol or any other mood-altering substance unless such substance is prescribed by a licensed Colorado physician; attend and verify with monthly reports participation in any treatment or support program recommended by the probation department; submit to random urinalysis testing twice a month for two years; comply with all terms of the court sentence; and pay all costs associated with the three-year Diversion Agreement.

__________________

> Respondent was pulled over by police in April 2010 after an officer observed him driving erratically. Respondent's blood was drawn and tested twice; his BAC was .156. Respondent was charged with DUI. In July 2010, respondent pleaded guilty to DWAI.

This is respondent’s first alcohol-related driving offense. Respondent was sentenced to a twelve-month period of probation, thirty-two hours of community service, alcohol evaluation and treatment if needed, attendance at a Mothers Against Drunk Driving Panel, and payment of fines.

Rules Implicated: Colo. RPC 8.4(d) and C.R.C.P. 251.5(b).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and pay all costs associated with the two-year Diversion Agreement.

Conduct Involving Dishonesty,
Fraud, Deceit, or Misrepresentation

> Respondent was retained by a person acting on behalf of a company to represent the company in an action involving preparation and filing of a statement of lien against property. In preparing both the Statement of Lien and the Notice of Intent to File Lien Statement, respondent signed the person’s name at her request, following her review of the documents. Respondent notarized the signature, although he was aware that the person had not signed the lien documentation. Respondent thus violated his oath as a notary public pursuant to CRS § 12-55-116.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

Private Admonition

> Respondent represented clients and entities they owned. Respondent subsequently acquired an interest in a limited liability company (LLC) in which the clients had an interest in and for which respondent had provided legal services. Respondent did not give the disclosures required by Colo. RPC 1.8(a) prior to entering into the agreement to acquire an interest in the LLC.

Rule Implicated: Colo. RPC 1.8(a).

Diversion Agreement: As part of the conditions of the private admonition, respondent must attend Ethics School and pay all costs associated with the private admonition.

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