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

The Colorado Lawyer
July 2012
Vol. 41, No. 7 [Page  139]

© 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.


Diversion and Private Admonition Summaries

Diversion is an alternative to discipline (see CRCP 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 (OARC). Thereafter, ARC or some other entity must approve the agreement.

From February 1, 2012 through April 30, 2012, at the intake stage, Regulation Counsel entered into seven Diversion Agreements involving eight requests for investigation. ARC approved eight Diversion Agreements involving eleven requests for investigation during this time frame. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued no private admonitions. The PDJ did not approve any private admonitions during this time frame.

Determining if 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 under the rule (see CRCP 251.13(b)). Other factors may preclude Regulation Counsel from agreeing to diversion (see CRCP 251.13(b)).

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, 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 that are conducted by attorneys from OARC. 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 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 CRCP 251.33(d). If Regulation Counsel has reason to believe that the attorney has breached the Diversion Agreement, Regulation Counsel must follow the steps provided in CRCP 251.13 before an agreement can be revoked.

Types of Misconduct

The types of misconduct resulting in diversion during February 1, 2012 through April 30, 2012 generally involve the following:

  • providing competent representation to a client, implicating Colo. RPC 1.1
  • neglecting a matter and/or failure to communicate, implicating Colo. RPC 1.3 and Colo. RPC 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
  • conflict of interest, implicating Colo. RPC 1.7
  • complying with court orders, implicating Colo. RPC 3.4(c)
  • conduct intended to disrupt a tribunal, implicating Colo. RPC 3.5
  • threatening prosecution, implicating Colo. RPC 4.5
  • responsibilities regarding nonlawyer assistants, implicating Colo. RPC 5.3 and 7.1(a)
  • committing a criminal act, implicating Colo. RPC 8.4
  • violating the criminal laws of any state, implicating Colo. RPC 251.5(b).

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.

Diversion Agreements

Below are some Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct during February 1, 2012 through April 30, 2012. 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 charged his client for filing an I-485 petition, knowing the client could not adjust his status while remaining in the United States. Additionally, respondent gave incorrect legal advice to the client.

Rules Implicated: Colo. RPC 1.1 and 1.5.

Diversion Agreement: Respondent must attend Ethics School, refund $2,050 in fees and costs to the client within thirty days from the date the agreement was signed by both parties, attend a minimum of eight hours of family-specific immigration CLE within one year of the date of the agreement, and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent failed to pay an expert after services were rendered complete. Respondent also missed court dates and client depositions and behaved erratically with his practice. Respondent also caused repeated delays in a court action. Fees were assessed against him for repeated failures to appear or to appear on time.

Rules Implicated: Colo. RPC 1.3, 1.16(a)(2), 3.5(d), and 8.4(d).

Diversion Agreement: Among ordered diversion, respondent must attend Ethics School and pay all costs associated with the three-year Diversion Agreement.

__________________

> Respondent was retained to assist with a foreign garnishment in November 2010. Respondent failed to communicate with the client and act diligently on the clients behalf. The client requested a refund; respondent eventually complied. Respondent suffered from severe back pain and was unable to keep up with work. Respondent appeared late or continued a matter at least six times, and was required to pay attorney fees.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(3) and (4), 1.5(f), 1.16(a)(2), 3.4(c), and 8.4(d).

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

Diligence and/or Failure to Communicate

> Respondent represented a client in a dispute with the clients insurance company. The clients case was dismissed after the trial court granted a motion for summary judgment in favor of the insurance company. Respondent successfully appealed the trial court’s order granting summary judgment. However, during the course of the appeal, respondent failed to bill his client for his professional services on a regular basis and failed to communicate with his client about the work and time he was spending on the client’s case. In fact, respondent failed to bill his client for nearly eighteen months. During that time, respondent completed a substantial amount of legal work on the appeal. Respondent failed to communicate the amount of work, the fees, and the costs he incurred in litigating the client’s case over a substantial period. Respondent’s lack of communication failed to keep his client reasonably informed about the financial status of his matter.

Rule Implicated: Colo. RPC 1.4(a)(3).

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

Fee/Trust Account Matters

> In one matter, Respondent failed to timely obtain discovery in a criminal case, causing unreasonable delay in the case. In another matter, respondent was paid a fee to handle a bankruptcy matter. Although respondent worked on the case, respondent did not file the bankruptcy petition or refund the fees. Respondent’s fee agreement also improperly referred to the fee paid as an engagement fee and a nonrefundable fee, and failed to state milestones to reflect when specific fees were earned.

Rules Implicated: Colo. RPC 1.5(a) and (g) and 8.4(d).

Diversion Agreement: Respondent must attend Ethics School, have a practice monitor, refund money in the bankruptcy case, and pay all costs associated with the two-year Diversion Agreement.

__________________

> Respondent deposited sums of money into his COLTAF account and then immediately withdrew the sums. Review of respondents client fee statements established that respondent had not properly identified the sums paid by the client as engagement retainers, although that was respondent’s intent. Further, respondent failed to maintain client ledgers and financial records required by Colo. RPC 1.15(j), rendering it impossible for OARC to properly analyze the activity in respondent’s professional bank accounts.

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

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

Conflict of Interest

> 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 lend. He also represented the lender in a deal by which the lender would lend money to a litigation client of respondent.

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

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

Complying with Court Orders

> Respondent failed to pay child support as required by court order. Respondent has made good-faith efforts to pay off the arrearage, but has experienced a drastic loss in income as a result of being laid off from his employment.

Rules Implicated: Colo. RPC 3.4(c).

Diversion Agreement: Respondent must attend Ethics School, pay off the child support arrearage according to a schedule set forth in the agreement, and pay all costs associated with the two-year Diversion Agreement.

Conduct Intended to Disrupt a Tribunal

> After experiencing difficulty during a telephone administrative hearing and being disconnected from the call, respondent became enraged, used threatening language toward the hearing officer, and disrupted the flow of the administrative hearing office.

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

Diversion Agreement: Respondent must attend Ethics School, submit to required independent medical evaluation and follow recommendations thereof, and pay all costs associated with the one-year Diversion Agreement.

Threatening Prosecution

> Respondent represented a client in a business dispute. Respondent threatened the opposing party to the dispute by sending her an e-mail notifying her that if she continued to ignore respondent, the client would seek administrative or criminal remedies.

Rule Implicated: Colo. RPC 4.5.

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

Correspondence From Nonlawyers on Behalf of Firm

> Respondent sent a solicitation letter to a number of individuals, advising them that their bankruptcy petition had been dismissed, when it had not. Respondent claimed his staff mistakenly sent the solicitation letter to these individuals, and that he sent a corrective letter to them. In his solicitation letter, respondent also made statements that are inaccurate or cannot be factually substantiated.

Rules Implicated: Colo. RPC 5.3 and 7.1(a).

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

Criminal Conduct

> On or about 2006, respondent was convicted in Douglas County Court of harassment by telephone, pursuant to CRS § 18-9-111(1)(e). Respondent received and completed a one-year deferred sentence. Respondent failed to timely notify OARC of the conviction.

Rules Implicated: Colo. RPC 8.4(b) and CRCP 251.20 and 251.5(b).

Diversion Agreement: Respondent must attend Ethics School, submit to required independent medical evaluation (IME), and pay all costs associated with the one-year Diversion Agreement.

__________________

> Respondent pleaded guilty to harassment, a Class 2 misdemeanor, following an encounter with a prospective client in the clients apartment. Respondent received a deferred sentence pending successful completion of a two-year period of probation.

Rules Implicated: Colo. RPC 8.4(b) and CRCP 251.5(b).

Diversion Agreement: Respondent must attend Ethics School, comply with criminal probation, and pay all costs associated with the two-year Diversion Agreement. In addition, respondent agreed to an IME, focusing on boundary issues, and agreed to comply with all terms or conditions required by the evaluator.

__________________

> On or about July 2011, after to being pulled over for failing to stop at a stop sign, respondent was arrested and charged with driving while intoxicated and refusal to submit to a chemical test. On or about October 2011, respondent pleaded guilty and was convicted of driving under the influence–first offense.

Rules Implicated: Colo. RPC 8.4(b) and CRCP 251.5(b).

Diversion Agreement: Respondent must attend Ethics School, comply with all terms of the court sentence, attend twelve Alcoholics Anonymous meetings, comply with counselor recommendations, abstain from alcohol consumption, submit monthly reports, and pay all costs associated with the one-year Diversion Agreement.

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