Vol. 29, No. 10
From the Courts
Matters Resulting in Diversion
Colorado Supreme Court Office of Regulation Counsel
Editor’s Note: Articles describing diversion agreements as part of the Attorney Regulation System are published on a quarterly basis. These articles are contributed by the Colorado Supreme Court Office of Regulation Counsel.
Background Information Regarding Diversion
Diversion is an alternative to discipline. See C.R.C.P. 251.13. 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. Thereafter, ARC or some other entity must approve the agreement.
From May 16, 2000, through August 15, 2000, at the intake stage, Regulation Counsel entered into 11 Diversion Agreements. From May 16 through August 12, 2000, ARC approved 18 Diversion Agreements involving 27 separate requests for investigation. The PDJ approved one Diversion Agreement during this time frame.
Regulation Counsel reviews the following factors to determine if 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 under the rule. See C.R.C.P. 251.13(b). Other factors Regulation Counsel considers that may preclude Regulation Counsel from agreeing to diversion are set forth in the C.R.C.P. 251.13(b). For example, if the misconduct involves dishonesty, misrepresentations, domestic violence, or is a pattern of misconduct, the presumption is against diversion.
The purpose of a diversion agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. It is also hoped that a diversion agreement will address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reasons for such conduct were the result of 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 is generally no less than one year or greater than two years.
Types of Misconduct
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 that is organized and taught by attorneys from the Office of Attorney Regulation Counsel. An 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; attend CLE courses; and any other conditions that may be appropriate for the particular type of misconduct.
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 that the attorney has breached the Diversion Agreement, then Regulation Counsel must follow the steps provided in C.R.C.P 251.13 before an agreement can be revoked.
The types of misconduct resulting in diversion for the time period described above, generally involve the following: an attorney’s neglect of a matter and/or failure to communicate, in violation of Colo. RPC 1.3 and Colo. RPC 1.4, where the client is not harmed or restitution is paid to redress the harm; conflicts of interest, in violation of Colo. RPC 1.7(b); violating a court order, in violation of Colo. RPC 3.4; and threatening criminal or administrative action to gain an advantage in a civil case against the opposing party or attorney, in violation of Colo. RPC 4.5.
Diversion agreements have also addressed misconduct such as unprofessional conduct, communicating with represented parties, failing to maintain accounting records, and conduct that was prejudicial to the administration of justice.
Many cases resulted from personal problems the attorney was experiencing at the time of the misconduct. In these situations, the diversion agreements 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.
Random Samples of Diversion Agreements
Conflict of Interest
— The respondent represented investors in a partnership. He obtained settlement agreements eliminating their liability for funds due under promissory notes made payable to the partnership. The respondent earlier had solicited business from the promoters who were the other parties to the settlement agreement. The respondent did not tell his clients that he had attempted to represent the promoters, nor did he disclose the likelihood that his representation of the investors might be adversely affected by his relationship with the promoters. There was no evidence that any actual harm occurred to the respondent’s clients. The rule implicated is Colo. RPC 1.7(b).
— The respondent was appointed as advisory counsel for a criminal defendant. The respondent previously represented a witness who was a fact witness against the defendant. The earlier representation involved the same fact situation as the current charges against the defendant. The earlier representation is completed and the respondent did not identify the conflict of interest, nor did he comply with applicable case law in addressing the pertinent issues with the trial court. The rule implicated is Colo. RPC 1.7(b).
— The respondent, with his client, appeared at a scheduled court appearance. The respondent smelled of alcohol and his speech was slurred. The respondent’s client entered into a favorable plea bargain with the respondent’s assistance. The respondent admitted that he consumed alcohol with his client just prior to the court appearance. The respondent was required to attend Alcoholics Anonymous ("AA") meetings or an equivalent peer support group, and be evaluated by Colorado Lawyers Health Program. The rule implicated is Colo. RPC 8.4(h).
— The respondent withdrew from representing a client who had not paid her as required by the express terms of a written fee agreement she entered into with the client. In efforts to collect the fees owed, the respondent surreptitiously tape recorded a conversation with the client. The rule implicated is Colo. RPC 8.4(c)
— The respondent operated a motor vehicle on a public road while under the influence of alcohol. The respondent’s motor vehicle collided with a motor vehicle stopped at a red light. The collision involved sufficient force to cause the three cars in front of the respondent’s vehicle to collide. The respondent immediately left the scene of the accident in his motor vehicle which was badly damaged. The respondent was apprehended a short distance from the site of the accident. The respondent cooperated with the authorities as soon as he was apprehended. A breath alcohol test indicated that the respondent had a breath alcohol content of .213. The respondent pled guilty to the charges of driving while ability impaired and failure to drive in a single lane. Alcohol treatment was ordered as a condition of his sentence. The rules implicated are C.R.C.P. 251.5(b) and Colo. RPC 8.4(b).
— The respondent sent a letter to his clients that included language exhibiting bias. The rule implicated is Colo. RPC 1.2(f).
— The respondent was charged with domestic violence and pled guilty to the charge in municipal court. Each person involved in the domestic violence incident suffered very minor physical harm. The respondent was sentenced to a deferred judgment, domestic violence class, and community service. At the request of Attorney Regulation Counsel, the respondent submitted to an independent psychological evaluation. Pursuant to said agreement, the respondent agreed to attend ethics school, participate in individual psychotherapy, and comply with all of the conditions of the deferred judgment. The rule implicated is Colo. RPC 8.4(b).
— The respondent was convicted of driving under the influence and driving under restraint. No injury or property damage resulted from the respondent’s conduct. Pursuant to the agreement, the respondent must comply with all conditions imposed by the court in the DUI case, successfully complete the multi-offenders treatment program, submit to an independent medical exam, attend AA when the program through the Court case is completed, and not drink alcohol or drive while under restraint for the duration of this three-year diversion agreement. The rule implicated is Colo. RPC 8.4(h).
Failure to Communicate
— The respondent represented an organization of home owners and two of its individual members in a covenant enforcement matter. The statute of limitations for the enforcement of the covenant had already expired before the respondent was retained. The respondent filed suit on behalf of his clients knowing that the statute of limitations for the claim had expired. The respondent would have to argue that the statute of limitations was tolled. The respondent failed to notify the individual clients that a motion to dismiss had been filed by the defendants, nor did he inquire whether they had any information that could be helpful in responding to the motion. When the claims were dismissed by the court due to the expiration of the statute of limitations, the respondent did not discuss with his clients the possibility of seeking reconsideration or their appellate rights. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 1.4(b).
— The respondent was representing herself in a contract dispute with a nursery. The respondent wrote to the director of the nursery stating: "Also, because of my personal friendship with the Small Claims Magistrate, this case will be tried—at my scheduling convenience—in the more formal, more public forum of county court. I will not hesitate to invite the media. . . . Also, keep in mind that if you elect to go to court, I will send copies of this letter to the Colorado Association for the Education of Young Children, the National Association for Education of Young Children, the Better Business Bureau, the Economic Fraud Division of the Office of the District Attorney, representatives of all regional media and anyone else to whom I think it may be of interest." The rules implicated are Colo. RPC 8.4(e) and Colo. RPC 4.5.
— The respondent was appointed to represent a client in a post-conviction matter. The respondent reviewed the court file and the transcripts in the case, but did not do further research or review documents or other files until seven months later. The rule implicated is Colo. RPC 1.3.
— The respondent was hired to represent a client in a dissolution of marriage matter. The respondent was served with discovery requests. The respondent did not forward the discovery requests to his client until two months later. The client returned her responses to the respondent with the expectation that the respondent would prepare them and forward them to opposing counsel. The respondent did not provide his client’s discovery responses to opposing counsel until four months later. The rule implicated is Colo. RPC 1.3.
— The respondent was hired to represent a client in a dissolution of marriage matter. A Qualified Domestic Relations Order ("QDRO") was required in order to transfer property. The respondent’s client gave him the necessary information to prepare the QDRO. The respondent did not contact his client for several months. When the client did contact the respondent, the client was advised by the respondent that the QDRO had not been prepared. The rule implicated is Colo. RPC 1.3.
— The respondent was hired to represent a client in a post-dissolution matter. The post-dissolution matter dealt specifically with child support arrearages and modifications to the agreement. The respondent did not start negotiations with opposing counsel until two months later. The respondent informed the client when the matter had been resolved. The client then requested that the respondent provide him with an accounting and documentation regarding the resolution of the dispute. The respondent had not provided the information three months after the request for accounting and documentation of the resolution had been requested. The rule implicated is Colo. RPC 1.3.
— The respondent represented a client in a dissolution of marriage matter. Pursuant to the permanent orders, the respondent’s client was to receive portions of a 401(K) Plan and a Defined Benefits Pension Plan in the name of the opposing party. The respondent was to prepare the QDRO to effectuate the division of the two accounts. The respondent did not prepare the first QDRO until ten months later, and the respondent did not prepare the second QDRO and send it to opposing counsel until three months after the first Qualified Domestic Relations Order was prepared. The rule implicated is Colo. RPC 1.3.
— The respondent was retained in an immigration matter. The respondent’s client provided a copy of the removal hearing. The respondent failed to calendar the date of the hearing. Four days before the hearing, the client tried to contact the respondent. The respondent was out of town during this period and did not check her messages until she returned to the office the day after the scheduled hearing date. Neither the respondent nor his client appeared at the scheduled removal hearing date. Two days after the scheduled hearing date, the respondent filed a motion requesting that his client’s case be reopened, but the court denied the respondent’s motion. The respondent’s client has retained new counsel who is attempting to reopen the case. The respondent paid $700 of the fees incurred by his former client’s new counsel. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.3, and Colo. RPC 1.4.
Commingling/Trust Account/Accounting Records Issues
— The respondent was retained on post-dissolution issues. The respondent sent the client a final statement that indicated the respondent was unaware of the amounts the client had previously paid to the respondent because he was unable to tell from his own records what the client had paid. Thereafter, the respondent sent his client a letter stating that it would be necessary for the client to provide to the respondent copies of the canceled checks reflecting the amounts paid by the client. The rule implicated is Colo. RPC 1.15.
— The respondent was retained to investigate a possible medical malpractice action, and accepted a $650 cost deposit from the client. The respondent and the client also signed a contingent fee agreement. The respondent improperly placed the deposit into his operating account instead of his trust account. After a substantial period of time passed, the respondent determined that he could not represent the client in the medical malpractice action. The respondent mailed a letter to his client stating that someone from his office would be in touch with him to "discuss the possibility of refunding a portion or all of the retainer you gave to us." No one from the respondent’s office contacted the client regarding a refund of the retainer, and the unspent portion of the retainer was returned to the client only after intervention by the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 1.15(a) and Colo. RPC 1.15(b).
— The respondent represented a client in a personal injury action. Prior to settling the matter, the respondent received bills and a statement of lien from a physical therapist who had provided services to the client. Thereafter, the respondent settled the personal injury action. The respondent believed that the physical therapist’s billings were excessive and, consequently, he distributed the funds to his client and himself pursuant to the terms of the contingent fee agreement he had entered into with the client. The physical therapist filed suit against the respondent. The matter was settled and funds were paid by the respondent to the physical therapist to compensate her for the respondent’s failure to escrow and pay over the funds due to the therapist under the terms of her lien. The rules implicated are Colo. RPC 1.15(a) and Colo. RPC 1.15(b).
— The respondent retained funds in his trust account for a period of nine months after a construction project to be performed by the opposing party, was completed. The funds were to insure that the opposing party accomplished the project properly. Despite demand, the respondent failed to return the funds to the opposing party. The respondent refunded the funds and agreed to pay interest. The rule implicated is Colo. RPC 1.15(c).
Communication with Person Represented by Counsel
— The respondent represented the wife in a dissolution of marriage matter. During the pendency of the case, the wife was killed in an automobile accident, and the respondent undertook representation of her estate. The husband, who was represented, and his stepson, the respondent’s client, agreed that the husband would sign a renunciation agreement in exchange for certain assets of the marriage. The respondent then obtained the signature of the husband and had an ex parte communication with him. In addition, the respondent sent a fax addressed to the husband’s attorney and the husband. The respondent sent a letter to the husband with a copy to his attorney. The rule implicated is Colo. RPC 4.2.
— The respondent was contacted by a client to assist him in filing a motion for a bond reduction in a criminal case. At the time the client contacted the respondent, the client was represented by the Public Defender’s Office. The respondent accepted payment and agreed to enter a limited appearance on behalf of the client. The respondent filed motion to reduce the bond on behalf of the client. The respondent did not discuss this matter with the public defender. At the bond reduction hearing, the respondent was informed by the court and the public defender that a limited appearance was not allowed. The respondent did not go forward with his representation of the client. The motion was argued by the Public Defender’s Office. The rules implicated are Colo. RPC 4.2, Colo. RPC 8.4(d), and Colo. RPC 8.4(g).
Failure to Comply with Court Orders and Rules
— The respondent was a party in a dissolution of marriage matter. The permanent orders obligated the respondent to pay child support and maintenance. The maintenance and child support were not always timely paid or the full amounts paid. The respondent was also ordered to pay certain funds to his ex-wife in relation to the property settlement that was not paid until a request for investigation was filed by the respondent’s ex-wife. The rule implicated is Colo. RPC 3.4(c).
— In the respondent’s own dissolution of marriage action, the respondent failed to timely respond to discovery requests and failed to preserve financial documents requested. The other party had to expend monies for fees and costs to get the documents, some of which could not be replaced. The respondent’s conduct was mitigated by health problems he was experiencing. The rules implicated were Colo. RPC 3.4(d) and Colo. RPC 8.4(h).
— The respondent was hired to review and revise a will. The respondent was paid $350 at the time he was hired. There was no activity on the matter until seven months later when the respondent told his client that she would have her will within a few weeks, and if he did not have the will ready he would refund her money. After being contacted by the Office of Attorney Regulation Counsel, the respondent called his client and asked her how she wished to proceed. It was agreed that the respondent would have the will to his client within two months. The respondent personally delivered the will to his client, and advised her that he would make any requested changes and provide her with a power of attorney at no additional cost. The rule implicated is Colo. RPC 1.3.
Conduct Prejudicial to the Administration of Justice
— The respondent retained a forensic psychiatrist to provide opinions concerning one of his clients. The expert witness was retained and the services were provided. The respondent received a statement or invoice from the expert one month after the services were performed. Nine months later the expert witness’s invoice still had not been paid by the respondent. The rule implicated is Colo. RPC 8.4(d).
— The respondent was a criminal defense attorney appointed to represent a defendant in a criminal matter. After his client’s trial, but before the sentencing, the respondent filed an appropriate document in the criminal case that the respondent intended to serve as a motion to withdraw from further representation of the client; however, the document contained inappropriate statements concerning his client’s veracity and guilt, and the veracity and guilt of criminal defendants in general. The rules implicated are Colo. RPC 1.7(b), Colo. RPC 1.16(d), and Colo. 8.4(d).
— The respondent made false statements on an application to acquire information from a data bank. No harm resulted from the respondent’s conduct. The rules implicated are Colo. RPC 8.4(c) and Colo. RPC 4.1(a).
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