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

The Colorado Lawyer
April 2012
Vol. 41, No. 4 [Page  111]

© 2012 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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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 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 October 30, 2011 through February 1, 2012, at the intake stage:

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

• the ARC approved ten Diversion Agreements involving eleven requests for investigation

• no Diversion Agreements were submitted to the PDJ for approval

• the ARC issued seven private admonitions involving eleven matters

• the PDJ approved no 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, 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 October 30, 2011 through February 1, 2012 generally involved the following:

• a lawyer shall provide competent representation to a client, implicating Colo. RPC 1.1

• 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 Colo. RPC 1.4

• fee issues, implicating Colo. RPC 1.5

• conflict of interest issues, implicating Colo. RPC 1.7

• trust account issues, implicating Colo. RPC 1.15

• issues involving declining or terminating representation, implicating Colo. RPC 1.16

• issues concerning meritorious claims and contentions, implicating Colo. RPC 3.1

• candor to the tribunal issues, implicating Colo. RPC 3.3

• issues involving respect for rights of third persons, implicating Colo. RPC 4.4

• issues involving failure to supervise associates and/or staff, implicating Colo. RPC 5.3

• committing a criminal act, 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, 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 some Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct during October 30, 2011 through February 1, 2012. 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 failed to diligently represent two clients in post-conviction matters. In one matter, respondent failed to competently and diligently represent his client in a post-conviction C.R.Crim.P. 35(c) hearing by failing to retain an expert witness to testify at the hearing. Respondent admitted being "per se ineffective" for failing to have an expert witness ready for the 35(c) hearing. Respondent also told the court that he would self-report the admitted incompetence to OARC; however, he failed to do so.

In the other matter, respondent failed to communicate with a client and failed to act with reasonable diligence and promptness in representing that client in post-conviction C.R.Crim.P. 35(b) and (c) matters. In the 35(b) matter, respondent filed the client’s motion forty-two days past the deadline. The court denied the 35(b) motion because it lacked merit and was untimely filed. Respondent never filed the 35(c) motion; instead, he withdrew from the client’s case after the 35(b) motion was denied. Respondent returned all of the client’s retainer funds.

Rules Implicated: Colo. RPC 1.1, 1.3, 1.4(a), and 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must complete Ethics School, undergo an independent medical examination, pay costs, and have no other violations during the two-year diversion period.

__________________

> Respondent was retained by the client to assist in an immigration matter. Respondent provided incompetent advice relating to his client’s ability to travel outside the United States with an application for adjustment of status pending. Respondent’s advice specifically related to his belief that the client could obtain fingerprints (biometrics) for the Advance Parole travel document while outside the United States. Respondent was not aware at the time this advice was provided that it was not possible for an applicant for adjustment of status to have biometrics taken at a U.S. Consulate outside the country for purposes of an Advance Parole application. Respondent’s advice resulted in his client abandoning the application for adjustment of status and being required to hire substitute counsel to resolve the situation so the client could re-enter the United States and resume processing of the application.

Rule Implicated: Colo. RPC 1.1.

Diversion Agreement: Within one calendar year from signing this Diversion Agreement, respondent must attend Ethics School and complete eight CLE credit hours specifically focused on family-based adjustment of status in immigration matters. Before the conclusion of this Diversion Agreement, respondent must certify that he has taken and successfully completed the required CLE course(s) and paid costs. Respondent must have no other violations during the one-year diversion period.

Diligence and/or Failure to Communicate

> During the course of representing a client, respondent failed to respond to a motion to enforce a settlement agreement and failed to respond to a motion for attorney fees. The court granted the motions against respondent’s client. Respondent advised co-counsel and the client that he had missed these deadlines. As confirmed by his psychiatrist, respondent suffers from anxiety and depression and was in the process of changing medication at the time of the misconduct. He also was experiencing other personal problems.

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

Diversion Agreement: Respondent must attend Ethics School, comply with the recommendations of the psychiatrist, pay costs, and have no other violations during the two-year diversion period.

__________________

> Respondent failed to diligently represent his client in a dissolution of marriage matter by failing to timely interview and endorse an expert witness regarding the value of the marital business. Respondent also failed to call an expert witness to testify at the final orders hearing regarding the valuation of the marital business, which was a primary issue in the dissolution of marriage case.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: Respondent must attend Ethics School, complete three hours of CLE training, pay costs, and have no other violations during the one-year diversion period.

__________________

> Respondent was appointed to represent a client in a post-conviction 35(c) matter after previous appointed counsel withdrew from the representation due to a "disagreement as to the future course of litigation." The court appointed respondent to investigate the matter and file a 35(c) motion with regard to the client’s first-degree murder conviction. Over nine years, respondent wrote to the client seven times and met with him once. Respondent billed twenty-six hours for the work completed on the client’s case but never filed the 35(c) motion. Respondent was not diligent in communicating to the client that the 35(c) motion lacked merit and that respondent would not be filing a 35(c) motion.

Rules Implicated: Colo. RPC 1.3 and 1.4(a)(3) and (4).

Diversion Agreement: During the one-year diversion period, respondent must attend Ethics School, complete six hours of CLE training in the area of criminal defense, pay costs, and have no other violations.

__________________

> In May 2009, respondent and his client entered into a written fee agreement for a Chapter 7 bankruptcy proceeding. The agreement provided for a flat fee and had guideposts describing when the flat fee was considered earned. However, the fee agreement also provided that, at respondent’s discretion, the flat fee could be converted to an hourly fee.

In August 2009, the client had a meeting with respondent and paid her remaining balance. In September, October, and November 2009, the client contacted respondent about the case status. In December 2009, the client advised respondent by e-mail that she wanted to meet so they could file her bankruptcy petition and schedule a court date in 2010. They scheduled a meeting for December 2009. Sometime before this meeting, respondent advised the client that she would have to file for Chapter 13 bankruptcy. The client decided to pursue debt settlement rather than file for Chapter 13 bankruptcy protection. She decided not to use respondent to work on her debt settlement.

Rules Implicated: Colo. RPC 1.3 and 1.4.

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School. He also must remove the provision in his fee agreements providing that flat fees may be converted to hourly fees at his discretion, have no further rule violations, and pay all costs associated with the diversion proceedings.

Fee/Trust Account Matters

> Respondent represented a client regarding modification of a parenting provision. In June 2010, respondent and the client entered into a fee agreement providing for a flat fee if no litigation was needed. The fee agreement did not provide any earmarks, guideposts, tasks, or events that defined when respondent would earn the flat fee. In June 2010, the client paid respondent $500 by check. Respondent placed these funds into the office account.

In February 2011, the client sent a letter to respondent requesting a refund of her $500 retainer. In February 2011, respondent’s business manager sent the client a letter indicating that the retainer was nonrefundable. The business manager informed the client that no refund was in order. Respondent reviewed this letter before the business manager sent it. Respondent eventually provided the client with a refund of her retainer.

Rules Implicated: Colo. RPC 1.5(f) and (g), and 1.15(a).

Diversion Agreement: Respondent must attend Ethics School and Trust Account School, have no further rule violations, and pay all costs associated with the one-year Diversion Agreement.

__________________

> In May 2011, a secretary from respondent’s firm gave a client a fee agreement to sign with respect to respondent’s firm representing the client in a Chapter 7 bankruptcy. The fee agreement contained a termination provision advising the client how he would be charged if he terminated the firm. Otherwise, the fee agreement did not contain any earmarks, events, and/or tasks that defined when respondent’s firm earned and therefore would pay itself the flat fee.

Also in May 2011, a secretary from respondent’s firm collected a $1,000 retainer from the client. Respondent did not place this money into a COLTAF Trust Account. The client terminated respondent in May 2011 and demanded a refund of his $1,000 retainer. In July 2011, the client received a call from respondent’s office manager, who stated the firm would send him a refund check in the amount of $473.75. After the client spoke with respondent later that day, respondent agreed to refund all but $300. In July 2011, the client received a $700 refund check and a fee itemization.

Rule Implicated: Colo. RPC 1.15(a).

Diversion Agreement: Respondent must attend Ethics School, have no further rule violations, and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent failed to provide the basis or rate of fee in writing to the clients in a civil litigation matter. Respondent also failed to adequately communicate with the clients.

Rules Implicated: Colo. RPC 1.5(b) and 1.4(a).

Diversion Agreement: Respondent must attend Ethics School and Trust Account School, pay costs, and have no other violations during the one-year diversion period.

__________________

> Respondent represented a client in a lawsuit against a car dealership. Respondent charged a $5,000 retainer. During the representation, respondent attempted to negotiate a settlement between her client and the dealership. No settlement was reached and respondent filed suit against the dealership.

Thereafter, the client agreed to settle for the dealership’s offer of $1,000. Respondent prepared settlement documents. Before the settlement was finalized, the client advised respondent that he no longer wanted to settle. Respondent sent the client a letter explaining that the settlement paperwork was ready. The letter stated that the client had two options—settle or decline the settlement—and that if he chose to decline the settlement and to continue with litigation, respondent would withdraw from the matter.

According to respondent, the client did not advise which alternative he wanted and she continued to litigate the matter against the dealership. The client claimed he sent a letter to respondent terminating the attorney–client relationship. Respondent contended that the client’s letter was not received until the request for investigation was sent. Nevertheless, once the request for investigation was sent to respondent, respondent did not immediately move to withdraw.

During the latter part of the representation, respondent had health issues and was hospitalized. Once she was released from the hospital, she moved to withdraw. Subsequent counsel settled the suit for the original amount the dealership offered to respondent. During the representation, she failed to maintain the requisite balance of the client’s funds in the trust account.

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

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must refund $2,500 to the client, attend Trust Account School, contact a financial monitor, pay costs within sixty days, and have no other violations during the one-year diversion period.

Conflict of Interest

> Respondent became the personal representative of his client’s estate. Respondent later served as the attorney for the estate, playing a dual role as personal representative and counsel for the estate. Respondent’s representation of the estate created a conflict of interest in that respondent had a financial interest in one of the properties that was to be distributed as part of the estate.

Rules Implicated: Colo. RPC 1.7(a) and 8.4(d).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School, complete six credit hours of CLE training specific to trust and estate law, pay costs, and have no other violations during the one-year diversion period.

__________________

> Respondent conducted real estate transactions in which he acted as a business associate and as an attorney. In the course of some of the transactions, he performed legal work such as forming a limited liability company for the borrower to which the lender would then lend. He also represented the lender in a deal to loan money to a litigation client of respondent.

Rule Implicated: Colo. RPC 1.7(a)(2).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and Trust Account School and pay all costs associated with the diversion proceedings.

__________________

> Respondent executed a will for a firm client, naming himself as personal representative. During the course of the probate proceeding, respondent billed his standard attorney billing rate for work performed as personal representative. He billed the deceased client’s account for the attorney fees and wrote checks from the estate to the firm and to himself personally. Respondent did not obtain the probate court’s approval of the fees.

Rules Implicated: Colo. RPC 1.7(a)(2) and 1.5(a).

Diversion Agreement: As part of the conditions of the Diversion Agreement, respondent must attend Ethics School and Trust Account School, complete eight credit hours of probate-related CLE training, and pay all costs associated with the diversion proceedings.

Criminal Conduct

> Respondent pleaded guilty to driving while ability impaired (DWAI). Respondent’s breathalyzer test registered .0845%. The underlying incident did not involve an accident or injury. Respondent had a non-moving alcohol-related conviction in 1998.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, comply with conditions imposed in the criminal matter, have no further discipline, and pay all costs associated with the diversion proceedings.

__________________

> Respondent was arrested for driving under the influence of alcohol (DUI), speeding, and failing to use a turn signal. Blood test results indicated that respondent had a blood alcohol concentration (BAC) of 0.15%. This was respondent’s first alcohol-related offense. Respondent pleaded guilty to DWAI and was sentenced to 180 days in the county jail, all suspended. Other sentencing conditions included participation in a victim impact panel; twelve months’ probation; twenty-four hours of useful public service; twenty-one weeks of Track A therapy; and twelve weeks of Level II Education.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, provide monthly reports for a support program, and pay all costs associated with the diversion proceedings.

__________________

> In June 2011, respondent was involved in a one-vehicle accident. Respondent’s BAC was measured to be .186%. In August 2011, respondent pleaded guilty to DUI. The court accepted his plea and ordered respondent to serve a term of in-home detention on electronic monitoring. Other sentencing conditions included a fifteen-month period of supervised probation. Respondent’s independent medical evaluation diagnosed respondent to be suffering from alcohol abuse in early sustained remission. The evaluator did not make any recommendations for respondent to submit to a regimen of monitored abstinence.

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

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

__________________

> In April 2011, respondent was stopped for swerving into the oncoming lane of traffic. The state trooper determined that respondent was under the influence of alcohol. Respondent was arrested and charged with DUI and failing to maintain the lane of travel. Respondent’s BAC was measured at .157%. Respondent reported his arrest to the OARC in April 2011. In August 2011, respondent appeared in court and pleaded guilty to DUI and failure to maintain lane of travel. The court deferred judgment and sentence on the DUI charge for a period of three years. Respondent reported the outcome of the case and the deferred judgment and sentence to the OARC, and was cooperative in providing information about the case.

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

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

__________________

> Respondent was arrested and charged with violations of CRS §§ 42-4-1301(1)(b) and -1307(4)(b) (DWAI 0.20+); CRS § 42-4-1301(1)(a) (DUI); CRS § 42-4-1301(2)(a) (DUI per se); and CRS § 42-4-1007(1)(a) (lane usage violation). Respondent had a BAC of 0.248%. Respondent was convicted of violations of CRS § 42-4-1301(1)(b) (DWAI).

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

Diversion Agreement: As part of the conditions of the three-year Diversion Agreement, this diversion amends a previous diversion, with all terms and conditions still in effect. Also, respondent must comply with all terms of the court sentence, have no formal complaints or petitions for immediate suspension, abstain from alcohol, and pay all costs associated with the diversion proceedings.

__________________

> Respondent was arrested and charged with violation of CRS § 42-4-1301(1)(a) (DUI); CRS § 42-4-1305 (open container in vehicle); and CRS § 42-3-202(1)(B) (motor vehicle tags improperly displayed). Additionally, respondent was charged with violation of CRS § 42-4-1301(2)(a) (DUI per se). Respondent’s BAC was 0.175%.

Respondent pleaded guilty and was convicted of violating CRS § 42-4-1301(1)(a) (DUI). Respondent was sentenced to two years’ probation, forty-eight hours of useful public service, monitored sobriety, and various fines and costs. Probation terms included both alcohol education and therapy.

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

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Ethics School, comply with all terms of the court sentence, abstain from alcohol, attend a monitored sobriety program, take a breathalyzer test three times a week for one year, submit all releases and reports to the OARC, and pay all costs associated with the diversion proceedings.

__________________

> Respondent was arrested and charged with violation of CRS § 42-4-1301(1)(a) (DUI); CRS § 42-4-1301(2)(a) (DUI per se); and CRS § 42-4-702 (failure to yield right-of-way/left turn). Respondent submitted to a chemical test to determine his BAC at the time of driving. The result of the test indicated a BAC of 0.121%.

Respondent pleaded guilty and was convicted of violation of CRS § 42-4-1301(1) (DWAI). Respondent was sentenced to forty days’ in-home detention, twenty-four months’ supervised probation, monitored sobriety, participation in a victim impact panel, alcohol education and therapy, useful public service, and various fines and costs. 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 two-year Diversion Agreement, respondent must attend Ethics School; comply with all terms of the court sentence; abstain from alcohol; attend six months’ individual therapy; undergo MEMS 3000 (monitored random breathalyzer) testing for one year; submit all releases and reports to the OARC; and pay all costs associated with the diversion proceedings.

__________________

> In October 2011, respondent was charged with violations of harassment–stalking, CRS § 18-9-111(1)(e) and (h). The summons/charges were based on a series of telephone calls made by respondent to a state agency. Respondent contacted the agency to voice his displeasure and complaint about the agency’s handling of a particular situation. During the telephone calls, respondent was verbally abusive and threatening, using lewd and vulgar language to employees. Respondent entered a plea of guilty to CRS § 18-9-111(1)(h). Respondent’s plea was pursuant to a twelve-month deferred judgment and sentence. The terms and conditions of the deferred judgment and sentence require respondent to undergo anger management treatment, complete seventy hours of useful public service, and pay various fines and costs.

Rules Implicated: Colo. RPC 8.4(b) and (h).

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, comply with all terms of the court sentence, attend counseling, submit all releases and reports to the OARC, and pay all costs associated with the diversion proceedings.

Private Admonitions

> Respondent represented a client in the 1990s and obtained a judgment for costs on behalf of the client. Approximately eighteen years later, respondent contacted the client about reviving the judgment before the twenty-year expiration date. The client’s new counsel expressly instructed respondent that he had no authority to act on behalf of the client; nevertheless, respondent filed a motion to revive the judgment. Respondent also attempted to collect from the client fees he believed were due and owing, after nearly twenty years without any communication or notice to the client that respondent still considered a balance to be due. Finally, respondent refused to provide the client’s file to the client or its new counsel without charging the client for it.

Rules Violated: Colo. RPC 1.2(a), 1.5(a), and 1.16(d).

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

__________________

> Respondent represented a client in a domestic relations matter. Respondent instructed his client not to appear at an advisement. When the court questioned the client’s failure to appear, respondent told the court his client had work obligations and did not disclose his instructions to the client. Respondent allowed the court to operate under an understanding that the client had simply chosen not to appear.

Rule Violated: Colo. RPC 3.3(a)(1).

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

__________________

> Respondent represented a client in a domestic relations matter. Respondent repeatedly referred to the opposing party as "mentally retarded." Respondent had no actual evidence that the opposing party suffered from any mental disability. Respondent also filed frivolous motions with the court, including a request that one of the parties in the case act as the mediator. Respondent’s conduct caused prejudice to the administration of justice and a waste of judicial resources.

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

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

__________________

> During the course of representing a criminal defendant, respondent issued subpoenas for phone records to the alleged victim’s father. Respondent failed to comply with Crim.P. 17(c) by failing to set the return date for subpoenas with the court, advising the subpoenaed parties that documents could be returned directly to respondent, and failing to promptly serve the subpoenas on the district attorney. Documents were produced to respondent pursuant to the subpoenas. The criminal court found that respondent failed to comply with Crim.P. 17(c) and required that the records that had been produced be destroyed and the outstanding subpoena be quashed.

Rules Violated: Colo. RPC 4.4(a), 5.3(b), and 8.4(d).

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

__________________

> The OARC received five bank notices that respondent had drawn checks on his trust account without sufficient funds to pay. Investigation of the notices established that in four of the five instances, bookkeeping errors led to the issuance of the insufficient funds checks. Investigation determined that respondent routinely deposited earned fees into his trust account; in one client matter, respondent negligently withdrew funds from trust before they were earned.

Rule Violated: Colo. RPC 1.15(a).

Diversion Agreement: Respondent must attend Trust Account School and submit to a financial audit.

__________________

> The ARC privately admonished respondent for bringing a frivolous appeal in his client’s matter. Specifically, respondent appealed the trial court’s order enforcing an oral settlement entered into by the parties on the record at an earlier hearing. The court of appeals found that respondent’s appeal was frivolous, and entered an award for attorney fees against respondent because the parties had already settled the matter.

Rule Violated: Colo. RPC 3.1.

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

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