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

The Colorado Lawyer
July 2011
Vol. 40, No. 7 [Page  135]

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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 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 February 2, 2011, through April 28, 2011, at the intake stage:

  • Regulation Counsel entered into twelve Diversion Agreements involving twelve requests for investigation
  • ARC approved eight Diversion Agreements involving eight requests for investigation
  • there were no Diversion Agreements submitted to the PDJ for approval
  • ARC issued one private admonition involving two matters
  • the PDJ approved one private admonition.

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, often 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 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 February 2, 2011, through April 29, 2011, generally involve the following:

  • providing competent representation to a client; implicating Colo. RPC 1.1
  • an attorney’s neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4
  • fee issues, implicating Colo. RPC 1.5
  • conflict of interest with current clients, implicating Colo. RPC 1.8
  • trust account issues, implicating Colo. RPC 1.15
  • declining or terminating representation, implicating Colo. RPC 1.16
  • communication with person represented by counsel, implicating Colo. RPC 4.2
  • responsibilities of supervisory lawyer, implicating Colo. RPC 5.1
  • failure to supervise associates and/or staff, implicating Colo. RPC 5.3
  • violating or attempting to violate the Colo. RPC, knowingly assisting or inducing another to do so, or doing so through the acts of another, implicating Colo. RPC 8.4
  • 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.

__________________

Samples of Diversion Agreements

Below are some Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct from February 2, 2011, through April 29, 2011. Each 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 worked as an associate at a firm that was hired to represent grandmother with a dependency and neglect (D&N) proceeding involving her grandchild. Grandmother’s daughter was represented by counsel in the D&N proceeding.

Respondent drafted a petition for allocation of parental responsibility and a draft parenting agreement to be filed in a new domestic matter. A partner in the firm had instructed respondent to do so. The allocation of parental responsibility petition listed the D&N proceeding as another proceeding regarding the grandchild. The parenting agreement provided that daughter agreed to relinquish her parenting rights to grandmother, respondent’s client.

Respondent provided the agreement and draft petition to grandmother. He requested that she read them carefully. He indicated that if no changes needed to be made, grandmother and her daughter should sign the documents and he would file them. Grandmother represented to the firm that grandmother and daughter had previously communicated directly regarding the custody of the child; thus, grandmother preferred to directly present the agreement to her daughter. Respondent was aware that daughter was represented by counsel in the D&N proceeding, but respondent did not contact daughter’s counsel. At no time did respondent or the partner in the firm attempt to communicate with daughter’s lawyer in the D&N matter.

Grandmother obtained daughter’s signature on the agreement and provided it to respondent. Respondent filed the agreement with the court.

Pursuant to Colorado Rule of Juvenile Procedure 4.4, any matters pertaining to the custody of the child should have been filed in the D&N proceeding. Daughter’s lawyer learned of the agreement and the domestic proceeding at a subsequent hearing in the D&N case and objected. Partner at the firm entered his firm’s appearance in the D&N matter. He filed a motion asking the court to adopt the parenting agreement as a court order. He attached the signed parenting agreement to the motion. The court determined that the petition would be decided in the D&N proceeding. The firm agreed to dismiss the separate domestic proceeding. A permanency plan hearing was scheduled in the D&N proceeding. Grandmother terminated respondent’s firm and requested a full refund of her money.

Rules Implicated: Colo. RPC 1.1, 4.2, and 8.4(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, complete six hours of CLE for juvenile law, and pay all costs associated with the two-year Diversion Agreement.

Diligence and/or Failure to Communicate

> Respondent represented a debtor in a Chapter 13 bankruptcy proceeding. Respondent filed a Plan and an Amended Plan. Respondent had difficulty communicating with debtor. Debtor failed to make payments due under the Plan and failed to appear for the creditors' meeting. The trustee moved to dismiss. A hearing on the motion to dismiss and approval of the Amended Plan was set in open court with respondent present. Both respondent and his client failed to appear for the hearing. The bankruptcy court dismissed the case.

Rules Implicated: Colo. RPC 1.3 and 1.4(a)(3).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, participate in a practice audit, pay restitution to the client, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent represented a client in a D&N case. Before a hearing, the Department of Human Services (DHS) filed a report with the court indicating that the client was not in compliance with parts of the treatment plan. At the hearing, respondent told the DHS worker that he had not received the DHS report. The DHS worker had an extra copy of the DHS report and asked respondent if he would like to read it. Respondent told her he did not want to read it. Before the hearing, respondent never met with the client to review the report and never met with the client to discuss inaccuracies in the report. At the hearing, the client disagreed with parts of the report. After the hearing, the court ordered respondent to meet with the client and provide the court a written statement as to what was not accurate in the DHS report. Respondent never met with the client about the inaccuracies in the DHS report and never submitted any corrections to the court regarding the DHS report.

Rules Implicated: Colo. RPC 1.3 and 1.4(a)(3).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must complete four hours of CLE directly related to D&N cases and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent and co-counsel represented a client in a personal injury case related to injuries suffered by the client due to exposure to asbestos. Respondent made a claim against the asbestos trust. Respondent's co-counsel was suspended from the practice of law and respondent undertook the representation of the client on his own. Subsequently, respondent opened his own office and moved to a new location. Respondent failed to notify the client of these changes and failed to notify the asbestos trust of these changes. As a result, the client did not timely receive the settlement funds from the asbestos trust.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(3), 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 two-year Diversion Agreement.

__________________

> Respondent was paid a fee to handle a matter for complainants. Despite numerous calls from complainants over a period of three months, respondent never responded.

Rules Implicated: Colo. RPC 1.3; 1.4(a)(3), (a)(4), and(b); and 1.5(d)(3).

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.

Fee/Trust Account Matters

> Respondent overdrew his COLTAF account when he issued funds too soon after the related deposit, which caused an overdraft when the deposit was reversed by the bank. Respondent paid personal bills out of his COLTAF account and did not consistently maintain a general ledger to keep track of the running balance of the COLTAF account. Respondent did not consistently maintain client ledgers.

Rules Implicated: Colo. RPC 1.15(d)(1) and (2), (j)(1) and (2), and 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 two-year Diversion Agreement.

__________________

> Respondent overdrew his COLTAF account when he failed to reconcile his account, failed to maintain the appropriate receipt and disbursement records of all deposits and withdrawals from the account, and failed to maintain a general operating account. Respondent left earned fees in the COLTAF account to pay personal bills because he did not maintain a general operating account. Respondent repaid the money to his COLTAF account once the error was discovered.

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

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

__________________

> Respondent is the manager of a high-volume bankruptcy practice. In a small number of cases, clients complained that their bankruptcies were not being handled expeditiously. Those clients terminated the firm. The firm's fee agreement did not authorize the firm to retain all fees that the firm withheld from the clients. The firm then attempted to settle the claims, and in some cases did so by including prospective limitations on the firm's lawyers' liability without advising the former clients in writing of the desirability of seeking the advice of independent legal counsel.

Rules Implicated: Colo. RPC 1.5(b) and (f) and 1.8(h).

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

__________________

> Respondent represented a client in two criminal cases. Respondent's fee agreements with the client did not contain any earmarks, guideposts, tasks, or events that defined when respondent earned and would therefore pay himself his initial flat fee.

Respondent received cash from and on behalf of the client. Respondent did not put the cash he received into a COLTAF account or other client trust account; instead, he kept it in his office safe. At various times, respondent removed money from his office safe to pay himself at what he asserted was an estimate of the amount he earned at his hourly rate. Respondent did not provide the client with a billing statement or accounting or otherwise inform the client that he had transferred these funds to himself.

After the client terminated respondent, respondent did not provide him with a billing or other written accounting of the money he received from the client or on his behalf, until he provided the accounting with his response to the request for investigation approximately three months later. Respondent sent the client’s wife a refund check almost four months after being terminated. Respondent also missed two court hearings.

Rules Implicated: Colo. RPC 1.3, 1.4(a), and 1.15(a) and (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.

__________________

> Respondent represented a client in a divorce proceeding. During the divorce, the client's home was sold. Pursuant to the divorce settlement, the client was to receive a portion of the equity in the home. In December 2009, respondent received a check from opposing counsel for the equity the client was to receive from the sale of his home. Respondent deposited these funds into her COLTAF account.

In January 2010, respondent prepared an invoice to the client: (1) accounting for the money she received in retainers and the money she received from opposing counsel for the equity in the client’s home; (2) detailing her fees and costs; and (3) providing the amount of the refund owed by respondent to the client. However, respondent did not give the client the refund at that time.

In January 2011, the client filed a written request for investigation. Thereafter, respondent paid the client the money he was owed. Respondent and the client disagree about the reason for the delay.

Rule Implicated: Colo. RPC 1.15(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.

Failure to Supervise Associates and/or Staff

> Respondent worked for a collection company, providing legal advice. Respondent drafted and approved correspondence sent to debtors on behalf of the collection company. In 2009, respondent pursued a career not in law. Consequently, he was less involved with the collection company and less frequently at the office. Unbeknownst to respondent, the collection company altered the attorney letters he had approved. In two matters, correspondence including language that threatened legal action was sent to debtors. Respondent had not approved the letters. When the debtors contacted the collection company and corresponded by e-mail with the company, the debtors believed they were communicating with respondent when they were not. When he learned of the unauthorized communications, respondent ceased his association with the collection company.

Rule Implicated: Colo. RPC 5.3(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 August 2009, respondent was arrested for driving under the influence (DUI). There was no breath test result because respondent refused to take a test unless his personal doctor could perform the blood draw.

In April 2010, respondent entered a guilty plea to driving while ability impaired (DWAI) and was given a sentence of nine to twelve months’ probation with the following conditions: fees and costs of $675, alcohol education, and one Mothers Against Drunk Driving (MADD) panel. This conviction was respondent’s first 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, comply with all terms of the court sentence, participate in treatment or a support program and submit monthly reports, abstain from the use of alcohol or any other mood-altering substance, have full-screen random urinalysis testing once a month for two years, participate in MEMS 3000 alcohol testing for two years, and pay all costs associated with the three-year Diversion Agreement.

__________________

> In April 2010, in Arizona, respondent was arrested and charged with various violations of the Arizona Revised Statutes, including ARS § 28-1381A1, DUI, and ARS § 28-1382A, driving or actual physical control while under the extreme influence of intoxicating liquor. Pursuant to respondent's arrest, he submitted to a chemical test to determine his blood alcohol content (BAC) at the time of driving. The resulting BAC was .155%.

In October 2010, after pleading guilty, respondent was convicted of violating ARS § 28-1381A1, DUI of intoxicating liquors. This is respondent’s second alcohol-related conviction.

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, comply with all terms of the court sentence, participate in MEMS 3000 alcohol testing, attend individual therapy once a month for six months, and pay all costs associated with the three-year Diversion Agreement.

__________________

> In May 2010, respondent was arrested and charged with violation of CRS § 42-4-1301(1)(a) (DUI of alcohol) and CRS § 42-4-1007(1)(a) (lane usage violation). Pursuant to the Colorado Express Consent Law, respondent submitted to a chemical test to verify respondent's BAC at the time of driving. The resulting BAC was .215% (.196% on retesting).

In September 2010, respondent, by a plea of guilty, was convicted of violating CRS § 42-4-1301(1)(b) (DWAI). Respondent has no prior alcohol-related convictions.

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 random urinalysis six times a month for nine months, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent was arrested in October 2010 for DUI and parking where prohibited. Her BAC test result was .134%. In January 2011, she entered a guilty plea to DWAI. She was sentenced to two years' probation, thirty-one days in jail (suspended), twenty-four hours of useful public service, service on a MADD panel, alcohol evaluation and treatment if recommended, and $850 in fees and costs. This conviction was respondent's first 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, comply with all terms of the court sentence, participate in a treatment or support program with monthly progress reports to the OARC, and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was stopped for driving the wrong way on a one-way street. He was arrested for careless driving and DUI. He pleaded guilty to DUI and was sentenced to six months' probation, 365 days in jail (suspended), Level II education and therapy, court fees and costs, 48 hours of useful public service, service on a victim impact panel, and to undergo an alcohol evaluation with treatment if recommended by the evaluator.

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, participate in one-year monitoring for alcohol use, and pay all costs associated with the two-year Diversion Agreement.

Conduct Involving Dishonesty,
Fraud, Deceit, or Misrepresentation

> The complaining witness in this matter served as an expert witness for respondent. The expert was involved in two unrelated matters. The expert provided fee schedules to respondent in January 2006 and supplied expert reports to respondent in February 2006 and November 2007. Invoices for the expert's professional services were provided to respondent on the same days as the expert reports. The invoices were in the amounts of $3,000 and $4,000.

The complaining witness sent follow-up invoices to respondent in January 2008 and July 2008. In addition to the invoices provided to respondent, from mid-2008 through November 2010, the complaining witness or agents of the complaining witness, including legal counsel, made attempts through telephone calls, e-mail communications, and certified U.S. mail (dated August 2010) to obtain payments. Respondent did not respond to the complaining witness’s certified mail. Respondent did not make any payments to the complaining witness until February 2011 (at which time payment in full plus interest on one of the invoices was sent to the complaining witness by respondent). Additional arrangements to satisfy the remaining invoice have been made by respondent.

Rule Implicated: Colo. RPC 8.4(d).

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

__________________

> Respondent, a prosecutor, was handling a misdemeanor docket in late February 2011. While respondent was meeting with people summoned to court that day, the presiding judge called for respondent to come into the courtroom about two cases pertaining to a defendant who was in court. The judge felt that respondent did not come into the courtroom in a timely manner, and admonished respondent in open court that his behavior was unacceptable. Respondent took exception to being chastised . . . on the record, and advised the judge that if he ever [did] that again respondent would file a complaint against the judge.

Several days later, respondent sent an e-mail to the judge in an effort to apologize for his conduct. In the e-mail, respondent pointed out to the judge that the court’s admonishment on the record "undermine[d his] authority and effectiveness as [a] licensed attorney[], prosecutor[] and officer[] of the court." Respondent suggested that a more appropriate way to deal with such matters would be during an in-chambers discussion.

Rule Implicated: Colo. RPC 8.4(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 failed to provide adequate supervision of an attorney employed by him and failed to withdraw his firm after the attorney abandoned clients to their detriment. In a separate matter, respondent failed to provide a written statement for the basis of the fee, failed to supervise the attorney he employed and assigned to handle the case, and failed to keep the clients reasonably informed about the status of their matter or to promptly respond to their reasonable requests for information.

Rules Implicated: Colo. RPC 1.4(a)(3) and (4), 1.5(b), 1.16(d), and 5.1(a).

Diversion Agreement: Respondent must repay the client and pay all costs associated with the private admonition.

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