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TCL > January 2012 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

January 2012       Vol. 41, No. 1       Page  121
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 Counsel.


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, the ARC or some other entity must approve the agreement.

From July 30, 2011 through October 31, 2011, at the intake stage:

  • Regulation Counsel entered into nine Diversion Agreements involving nine requests for investigation
  • the ARC approved five Diversion Agreements involving ten requests for investigation
  • one Diversion Agreements was submitted to the PDJ for approval
  • the ARC issued one private admonition
  • the PDJ approved two private admonitions involving three matters.

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, 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

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 during July 30, 2011 through October 31, 2011 generally involve the following:

  • failure to provide competent representation to a client, implicating Colo. RPC 1.1
  • neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4
  • fee issues, implicating Colo. RPC 1.5
  • trust account issues, implicating Colo. RPC 1.15
  • declining or terminating representation, implicating Colo. RPC 1.16
  • meritorious claims and contentions, implicating Colo. RPC 3.1
  • complying with court orders, implicating Colo. RPC 3.4(c)
  • respect for rights of third person, implicating Colo. RPC 4.4
  • committing a criminal act, implicating Colo. RPC 8.4
  • violation of the criminal laws of any state, implicating Colo. RPC 251.5(b)
  • violation of the disciplinary rules or an order of discipline or disability, implicating Colo. RPC 251.5(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.

Notes

1. See C.R.C.P. 251.13.

2. See C.R.C.P. 251.13(b).

3. See id.

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Random Samples of Diversion Agreements

Below are some Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct during July 30, 2011 through October 31, 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 performed a contract review for a small business specializing in employment placement. Respondent advised one of the principals from the business that he did not see a problem with respect to a fee provision in the small businesss contract. Respondent provided his analysis of the contract via e-mail. The advice was not accurate, because the fee provision in the client’s contract was prohibited by law. Later, the principals of the business were arrested and criminally charged, in part, based on the inclusion of the fee provision in their contract. When criminal defense counsel contacted respondent regarding his contract review, respondent provided an analysis of the contract that was different from what he previously had e-mailed to the principals. The review he provided defense counsel did not include his assessment of the fee provision. Defense counsel asked respondent to explain the discrepancy in the contract review that was e-mailed to the client and the one he provided to defense counsel. Respondent explained that following the first contract review, he did more research, met with one of the principals again, and revised his analysis of the contract. This information was not documented in the file. The criminal charges against the principals regarding the fee provision were dismissed; they pleaded guilty to theft.

Rules Implicated: Colo. RPC 1.1 and 1.3.

Diversion Agreement: Respondent must attend Ethics School; complete eight hours of continuing legal education (CLE) regarding contract review; document communications with the client; maintain client files and risk management or malpractice prevention; have no other violations; and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent entered into an ongoing litigation on behalf of a plaintiff. The court concluded that respondent made groundless and frivolous claims. Respondent continued to advance the same theory, which resulted in an award of fees and costs to the opposing party and against respondent. Following the court’s order awarding costs and fees, respondent filed a motion to disqualify the judge, alleging misconduct by the court. The judge recused himself, but stated that respondent’s allegations in his affidavit were not substantiated in the record or under the law.

Rules Implicated: Colo. RPC 1.1, 3.1, and 8.4(d).

Diversion Agreement: Respondent must attend Ethics School, have a practice mentor, and pay all costs associated with the two-year Diversion Agreement.

Diligence and/or Failure to Communicate

> Respondents client retained him to represent her in a divorce. The client gave respondent a retainer check in the amount of $750. Respondent asserted he cashed the check and placed the funds in an envelope in a locked box in his desk. A few months later, the client contacted respondent by e-mail inquiring about the status of her matter. Respondent did not respond to the e-mail.

The client contacted new counsel, who sent respondent a letter via certified and regular mail. The letter noted respondent had not filed a dissolution proceeding on behalf of the client and that the client had attempted to contact respondent numerous times. The letter demanded that respondent immediately return the client’s retainer. The certified mail was returned, but the letter sent via regular mail was not returned; respondent asserted he did not receive it. After the new counsel filed a written request for investigation with the OARC, respondent provided the client with a full refund.

Rules Implicated: Colo. RPC 1.3, 1.4(a), 1.15(a) and (d)(1), and 1.16(d).

Diversion Agreement: Respondent must attend Ethics School, attend Trust Account School, and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was retained to assist a client in filing a bankruptcy petition. Respondent obtained the necessary information but did not file the petition. The client complained that respondent failed to promptly file his bankruptcy petition and failed to communicate with him regarding the bankruptcy petition and his fees. Respondent also received a driving under the influence (DUI) conviction. Additionally, the OARC was notified when respondent’s trust account (COLTAF) was overdrawn.

Rules Implicated: Colo. RPC 1.3; 1.4(a); 1.15(a), (d)(1) and (2), (f), (i)(3) and (6), and (j)(1) and (2); and 8.4(b).

Diversion Agreement: Respondent must attend Ethics School, attend Trust Account School, complete a financial audit, follow the recommended monitoring conditions, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent represented a client in an allocation of parental responsibilities proceeding. Respondent agreed to prepare and file a motion for contempt after the mother of the minor child allegedly violated the parties informal parenting plan. Respondent had minimal communications with the client for two months, and during this period did not substantively respond to the client’s e-mails inquiring about a contempt order. Respondent eventually prepared and the client signed a motion for contempt; however, respondent never filed it.

Additionally, the client’s pay had decreased and he wanted respondent to file a motion to modify his child support. Respondent never filed the motion to modify. Respondent asserted she did not receive the client’s signature on the motion to modify that she had prepared and e-mailed to him; however, she did not follow up with the client after he expressed to her via e-mail that he still believed additional corrections needed to be made. Respondent eventually updated the motion to modify and sent a final version to the client for his signature; however, at that point, the client decided he did not want to proceed on the motion.

Rules Implicated: Colo. RPC 1.3 and 1.4.

Diversion Agreement: Respondent must participate in a practice monitoring program, including writing off and not seeking to collect any amounts owed by the client to her for work related to the motion for contempt or the motion to modify. Additionally, respondent must have no further rule violations and must pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent represented a client in a bankruptcy matter. Respondent was involved with the loan modification, even though the fee agreement stated that work on a loan modification was not included in the fee and respondent stated that he did not negotiate the loan modification agreement. Respondent told his client he disagreed with him about the fact that if the loan modification was not received by the lender by the due date, the agreement would be null and void.

Respondent attempted to determine where to send the three checks he had in his possession. Respondent also called the bank regarding the foreclosure action to notify them of the loan modification. According to the client, he and respondent agreed that respondent would finish the process (referring to the loan modification). According to the client, respondent told him that he found checks in his client’s file for payment amounts that were not sent in. Respondent drafted the Response to Rule 120 Motion for Order Authorizing Sale, but failed to comply with C.R.C.P. 11(b).

Rules Implicated: Colo. RPC 1.3 and 3.4(c).

Diversion Agreement: Respondent must attend Ethics School and pay all costs associated with the one-year Diversion Agreement.

Fee/Trust Account Matters

> In the past two or three years, respondents firm has been getting more payments by credit card both for trust deposits or replenishments and for earned fees and costs. All credit card transactions are paid into respondents office account. Respondent asserted his usual practice was immediately to transfer the gross amount of the trust payment paid by the client from the firm’s office account to its COLTAF account.

On or about July 14, 2011, respondent’s firm’s COLTAF account was overdrawn by $2,819.45. Respondent immediately authorized the bank account representative to transfer $3,000 from the firm’s office account to its COLTAF account to cover the overdraft.

On further investigation, respondent discovered that his COLTAF account should have a balance of $26,287.71 to properly secure funds for every client who had trust balances. Respondent immediately deposited sufficient funds into the firm’s COLTAF account to cover the deficiency. Respondent stated he has new procedures in place to ensure his handling of client funds and the use of his COLTAF account are in accordance with the Rules of Professional Conduct.

Rule Implicated: Colo. RPC 1.15(a).

Diversion Agreement: Respondent must attend Ethics School, attend Trust Account School, and pay all costs associated with the one-year Diversion Agreement.

Criminal Conduct

> Respondent pleaded guilty to DUI in September 2010. Respondents sentence included: 100 days in jail; eighty days suspension from the practice of law; twenty days of electronic home monitoring; forty-eight hours of public service; drug and alcohol evaluation from a certified evaluator; no consumption of alcohol for six months; attendance at a victim impact panel; and completion of the Day Reporting Program for six months, which included twice daily monitored sobriety testing. Pursuant to the alcohol evaluation with probation, respondent was required to: complete Level II education; remain abstinent from alcohol; participate in monitored random breathalyzers (MEMS testing), random urine analyses (UAs), and treatment with treatment provider; and complete the Day Reporting Program, as required in the original sentence. Respondent successfully completed the Day Reporting Program in January 2011. Thereafter, respondent underwent breathalyzer testing from January 2011 to May 2011, which ended based on the treatment provider’s recommendation. Respondent completed all of the conditions by September 2011.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Respondent must attend Ethics School and pay all costs associated with the eighteen-month Diversion Agreement.

__________________

> In January 2011, pursuant to a Report Every Drunk Driver Immediately report, respondent was pulled over by a police officer. Respondent subsequently was arrested and charged with violation of CRS § 42-4-1301(1)(a) (DUI) and CRS § 42-4-1301(2)(a) (DUI per se). Pursuant to the Colorado Express Consent law, respondent submitted to a chemical test to determine her blood alcohol content (BAC) at the time of driving. The result of the test indicated a BAC of 0.201%.

In county court in April 2011, respondent pleaded guilty and was convicted of violation of CRS § 42-4-1301(1)(b) (driving while ability impaired (DWAI)). Respondent was sentenced to one year of supervised probation, twenty-four hours of useful public service, no use of alcohol during the probation period, and various fines and costs.

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

Diversion Agreement: Respondent must attend Ethics School, comply with all terms of the court sentence, submit to UAs three times a week for one year, and pay all costs associated with the two-year diversion agreement.

__________________

> Respondent was seen driving a car westbound in the eastbound lane. He agreed to perform the voluntary roadside maneuvers, and failed. Respondents BAC was 0.152%. Respondent entered a guilty plea to DWAI. This is respondents first alcohol-related offense. Respondent was sentenced to: one year of probation; forty-five days in jail (suspended); twenty-four hours of community service; an alcohol evaluation and treatment; attendance at a victim impact panel; and $824.50 in fines and costs.

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

Diversion Agreement: Respondent must attend Ethics School; comply with all terms of the court sentence; attend and verify participation in any treatment or support program recommended by the probation department and provide monthly progress reports; and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent was arrested after a patrol officer observed respondent driving the wrong way on a one-way street. When contacted by the officer, respondent refused to perform roadside maneuvers and was placed in custody. Respondent later was administered a breathalyzer test, which registered .135%. Respondent pleaded guilty to DWAI. Respondent has fully complied with all conditions imposed by the court.

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

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 September 2010, respondent was arrested and charged with violations of CRS § 42-4-1301 (DUI); CRS § 42-4-1007 (failure to drive in a single lane); and CRS § 42-4-1402 (careless driving). Respondent refused to submit to a chemical test to determine his BAC at the time of driving.

In December 2010, respondent was convicted, via a plea agreement, for violation of CRS § 42-4-1301(1)(b) (DWAI) and CRS § 42-4-1007(1)(a) (failure to drive in a single lane). Respondent immediately was sentenced to supervised probation for twelve months. Respondent also was ordered to attend a victim impact panel and complete a Level II alcohol education course, as well as twenty-four hours of useful public service, and was ordered to pay various fines and costs.

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

Diversion Agreement: Respondent must attend Ethics School, comply with all terms of the court sentence, attend a monitored sobriety program, undergo MEMS testing, abstain from alcohol use, and pay all costs associated with the one-year Diversion Agreement.

__________________

> In October 2010, respondent was arrested and charged with petty theft, disturbing the peace, and obstructing a peace officer. In January 2011, respondent appeared in court and pleaded guilty to disturbing the peace and obstructing a peace officer. The court deferred judgment and sentence on those charges until January 2012.

Respondent was unaware she had a duty to report the deferred judgment and sentence to the OARC. When respondent learned she had a duty to report the deferred judgment and sentence, she immediately notified the OARC. Pursuant to C.R.C.P. 251.13(C), the purpose of this Diversion Agreement is to educate respondent and to ensure that this type of conduct does not occur in the future.

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

Diversion Agreement: Respondent must comply with court sentence of a one-year Diversion Agreement.

__________________

> Respondent pleaded guilty to DWAI. The result of respondents breathalyzer test was .127%. The underlying incident did not involve an accident or injury. This was respondents first alcohol-related offense.

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

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

__________________

> Respondent broke two eggs over his significant others head. Respondent pleaded guilty to one count of harassment filed in municipal court. Respondent received a deferred judgment that included alcohol counseling and monitoring.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Respondent must attend Ethics School; submit to alcohol monitoring; receive monitored antabuse treatment and continued counseling; comply with all conditions of the criminal sentence and all terms of the court sentence; and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent pleaded guilty to DWAI. The result of respondents breathalyzer test was .127%. The underlying incident did not involve an accident or injury. This was respondents first alcohol-related offense.

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

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

__________________

> Respondent was sanctioned under C.R.C.P. 11 for misstating damages in pleadings and, despite knowing of the correct amount, not correcting the figures. Respondent was threatening to unrepresented parties and uttered obscenities in court. Respondent also sent offensive messages to opposing counsel.

Rules Implicated: Colo. RPC 8.4(d) and (g) and 4.4(a).

Diversion Agreement: Respondent must attend Ethics School and twelve hours of litigation-related CLEs, including one CLE related to discovery practices and one related to motions practice; undergo an independent medical examination and comply with treatment recommendations; use a practice mentor; and pay all costs associated with the two-year Diversion Agreement.

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