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

October 2012       Vol. 41, No. 10       Page  119
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 May 1, 2012 through July 31, 2012, at the intake stage, Regulation Counsel entered into six Diversion Agreements involving six requests for investigation. ARC approved ten Diversion Agreements involving eleven requests for investigation. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued three private admonitions involving three matters. The PDJ did not issue 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; the training is 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
  • continuing legal education (CLE) training
  • 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.

Type of Misconduct

The misconduct resulting in diversion during May 1, 2012 through July 31, 2012 generally involved the following:

  • a lawyer’s failure to provide competent representation to a client, implicating Colo. RPC 1.1
  • issues involving the 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 1.4
  • fee issues, implicating Colo. RPC 1.5
  • trust account issues, implicating Colo. RPC 1.15
  • conflict of interest, implicating Colo. RPC 1.7
  • making meritorious claims and contentions, implicating Colo. RPC 3.1
  • lack of candor to the tribunal, implicating Colo. RPC 3.3
  • noncompliance with court orders, implicating Colo. RPC 3.4(c)
  • lack of truthfulness in statements to others and respect for rights of third persons, implicating Colo. RPC 4.1
  • assisting another in the unauthorized practice of law/multijurisdictional practice of law, implicating Colo. RPC 5.5
  • committing a criminal act, implicating Colo. RPC 8.4
  • violation of 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 May 1, 2012 through July 31, 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 took over the representation of a party in connection with an interpleader action filed in district court. Respondent never spoke with the client, who had disappeared. Respondent decided on his own to waive his clients claim to certain funds and represented his client in connection with a counterclaim about which his client was unaware.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School and pay all costs of the disciplinary proceedings.

__________________

> Respondent represented a client in connection with charges of driving under restraint and misdemeanor assault arising from a domestic violence incident. Although respondent believed that his client would accept a plea, he let the disposition deadline pass without contacting the deputy district attorney concerning the disposition. Instead, respondent confirmed a trial date. Respondent also failed to pick up some additional discovery in the matter. Respondent appeared late for trial and was not ready to proceed, because he intended to accept the plea offer. However, because the disposition deadline had passed, there was no offer on the table for respondent’s client to accept. Nevertheless, the prosecutor did amend his offer and settlement resulted.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School and pay all costs of the disciplinary proceedings.

Scope of Representation and Confidentiality

> Respondent filed a Notice of Opposition to Closing Administration in an estate case. In the document, respondent stated that he represented four clients. Respondent filed the document relying on information he had received from only two of the clients. Those two clients were the only people who signed the fee agreement. Respondent neglected to obtain direct information or authorization from the other two clients he purported to represent. Respondent learned from the opposing party that the two people he purported to represent never authorized respondent to take any action on their behalf. Respondent neglected to clarify his role and who he was authorized to represent in a timely manner. Several months later, respondent filed a Second Notice of Opposition to Closing Administration, and clarified that he did not represent the two people who did not sign the fee agreement, because he learned they did not share the same goals and objectives of the clients who met with him, and they were not interested in being parties to the case.

Rules Implicated: Colo. RPC 1.2(a) and 3.3(a)(1).

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School and pay all costs of the disciplinary proceedings.

Diligence and/or Failure to Communicate

> Respondent was local counsel in a case pending before the Colorado Court of Appeals. Respondent was served by LexisNexis® File & Serve with a notice informing her of the date set for oral argument. Respondent did not appear on that date.

In a phone conversation initiated by a court representative, respondent indicated she had not received notice of the setting. Respondent also indicated in a pleading filed with the court of appeals that day that she did not receive notice of the order setting the oral argument until that afternoon.

A person at respondent’s firm opened the electronic notice of oral argument for the first time shortly following the court representative’s phone call. Respondent stated that, in her conversation with the court representative and with respect to the statement she made in the pleading, she was referring to actual notice.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, have no further rule violations, and pay all costs of the disciplinary proceedings.

__________________

> Respondent failed to timely withdraw, failed to adequately communicate with his client, and failed to provide a prompt accounting of retainer funds held on behalf of the client.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.5, and 1.15(c).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Ethics School and Trust Account School, obtain a practice monitor, submit to binding fee arbitration, and pay all costs of the disciplinary proceedings.

__________________

> Respondent failed to adequately investigate claims before initiating a civil complaint on behalf of that party. Respondent failed to withdraw in a timely manner after losing contact with his clients, which prejudiced the pending legal proceedings.

Rules Implicated: Colo. RPC 1.3, 3.1, 3.2, and 4.1.

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, have a practice monitor for civil matters, and pay all costs of the disciplinary proceedings.

Conflict of Interest

> Respondent represented a client who was the beneficiary of a trust. During the course of the representation, while the client was incarcerated and being evaluated for competency, respondent executed a power of attorney for the client authorizing respondent to request distributions from the trust. Respondent then obtained his client’s signature on a distribution request for several payments from the trust, including payment of respondent’s legal fees.

As the client’s attorney-in-fact, respondent also filed pleadings in a guardianship proceeding in another state. The court in the guardianship proceeding made a finding that respondent’s filings constituted the unauthorized practice of law in that state.

Rules Implicated: Colo. RPC 1.7(a)(2) and 5.5(a)(2).

Diversion Agreement: As part of the condition of the two-year Diversion Agreement, respondent must submit to two years of law practice mentoring with a mentor approved by the OARC, attend Ethics School, and pay all costs of the disciplinary proceedings.

Meritorious Claims and Contentions

> Respondent represented a client on an appeal to the Colorado Court of Appeals. The appeal was frivolous as filed and as argued. First, the appeal was not taken in the name of the real party of interest. Second, the appeal failed to set forth a coherent assertion of errors supported by legal authority, cited case law that did not apply, and was contrary to the law of the jurisdiction. Also, the court of appeals determined that respondent misstated the record concerning the trial judge’s intent when he entered an order that was contrary to the interest of respondent’s client.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School and pay all costs of the disciplinary proceedings.

Complying With Court Orders

> In April 2011, respondent reported to the OARC that he was delinquent in his child support obligations. In February 2012, respondent and the Colorado Department of Social Services (Department) agreed to a payment plan under which respondent would pay his current child support obligations and make payments toward arrearages.

Rules Implicated: Colo. RPC 3.4(c) and 8.4(d).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must comply with all court orders in his domestic relations case, remain current on the payment plan with the Department, attend Ethics School, and pay all costs of the disciplinary proceedings.

__________________

> Respondent represented himself in a dissolution of marriage action. During the course of the case, and on multiple occasions, respondent made agreements with his ex-wife regarding his financial obligations. On each occasion, respondent and his ex-wife submitted their agreements to the court and the court adopted their agreements as the order of the court. Respondent then failed to comply with the agreements. After respondent’s ex-wife filed the instant request for investigation, respondent negotiated a full settlement of his financial obligations with his ex-wife, which was adopted by the court. Respondent is now in compliance with his financial obligations in the dissolution case and with the court’s order; however, respondent’s repeated failure to comply with the court’s order regarding his financial obligations over the course of several years implicates noncompliance with the Colorado Rules of Professional Conduct.

Rule Implicated: Colo. RPC 3.4(c).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend seven hours of continuing legal education in the area of family law and pay all costs of the disciplinary proceedings.

Criminal Conduct

> In September 2009, police responded to a one-vehicle accident in which respondent was the driver. Respondent was charged with driving under the influence (DUI), DUI per se, failure to display proof of insurance, careless driving, and possession of a schedule 2 controlled substance.

In January 2011, respondent pleaded guilty to DUI. This was respondent’s second alcohol-related conviction.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the three-year Diversion Agreement, respondent must participate in the MEMS 3000 alcohol-monitoring system for one year; abstain from alcohol or any other mood-altering substance, unless such substance is prescribed by a licensed Colorado physician; attend and verify with quarterly reports participation in a recovery program and peer support meetings; submit to random urinalysis testing at least twice a month for two years; comply with all terms of the court sentence; attend Ethics School; and pay all costs of the disciplinary proceedings.

__________________

> Respondent was observed by a Denver County police officer at 2:00 a.m. on June 2011 driving without tail lights and straddling lanes. When stopped by the police officer, respondent indicated signs of intoxication. Respondent failed roadside testing and refused a portable breath test. Respondent was placed in custody and later requested a breath test. When he was transported to the justice center, respondent failed to comply with the testing requirements and therefore was noted as a failure to test. Respondent was convicted by a jury in February 2012 of DUI–alcohol. This is respondent’s first alcohol-related offense.

Rule Implicated: Colo. RPC 8.4(b).

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

__________________

> In November 2006, respondent was arrested and charged with DUIalcohol. In February 2007, respondents lawyer appeared in court and in absentia respondent entered a guilty plea to the charge. The court accepted the plea, and respondent was sentenced to satisfy numerous conditions during a period of probation. Respondent was required to undergo an evaluation to determine whether any recommendations for alcohol treatment or education were appropriate. The evaluator determined that respondent did not meet the criteria established in the DSM-IV for substance abuse or substance dependence, and that further treatment and education were not necessary. When respondent learned that he had a duty to report the conviction because it was an alcohol-related traffic offense, he immediately notified the OARC.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School and pay all costs of the disciplinary proceedings.

__________________

> Respondent was arrested and charged with violations of DUI, DUI per se, and lane change or usage violation. Pursuant to the Colorado Express Consent law, respondent submitted to a chemical test to determine his blood alcohol content at the time of driving. Respondent was convicted, via a deferred sentence order, of violation of driving while ability impaired.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, comply with the court’s sentence, submit monthly reports, abstain from alcohol, and pay all costs of the disciplinary proceedings.

__________________

> A driver called 911 to report that respondents car was weaving. When the police pulled over respondents car, the officer smelled alcohol and noticed signs of intoxication. Respondent refused to perform roadside sobriety tests. Respondent was arrested for DUI and weaving. Respondent refused any testing for alcohol but was otherwise cooperative with the officer.

Respondent voluntarily admitted to a ninety-day inpatient treatment program. Respondent successfully completed the program.

Respondent pleaded guilty to DUI. The weaving charge was dismissed. The court sentenced respondent to ninety days in jail, with credit given for the treatment program, and two years of supervised probation. The court ordered respondent to abstain from using alcohol and illegal drugs and ordered that the abstinence be monitored. The court also ordered respondent to attend Level II education and therapy, perform community service, and pay standard court costs and fees. This is respondent’s second alcohol-related conviction.

Rules Implicated: Colo. RPC 8.4(b) and CRCP 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, submit monthly reports, abstain from alcohol, submit to monthly urinalysis testing, continue to see a therapist, attend Alcoholics Anonymous meetings or the equivalent, and pay all costs of the disciplinary proceedings.

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