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TCL > January 2013 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

The Colorado Lawyer
January 2013
Vol. 42, No. 1 [Page  107]

© 2013 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 August 1, 2012 through October 31, 2012, at the intake stage, Regulation Counsel entered into seven Diversion Agreements involving seven requests for investigation. ARC approved nine Diversion Agreements involving ten requests for investigation during this time frame. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued four private admonitions involving three matters. The PDJ approved one private admonition during this time frame.

Determining if Diversion is Appropriate

Regulation Counsel reviews the followaing 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 August 1, 2012 through October 31, 2012 generally involved the following:

  • a lawyer’s failure to provide competent representation to a client, implicating Colo. RPC 1.1
  • trust account issues, implicating Colo. RPC 1.15
  • declining or terminating representation, implicating Colo. RPC 1.16
  • 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 Colo. RPC 1.4
  • fee issues, implicating Colo. RPC 1.5
  • confidentiality issues, implicating Colo. RPC 1.6
  • failure to comply with requests for information from disciplinary counsel, implicating Colo. RPC 8.1
  • 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 August 1, 2012 through October 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

> During a removal proceeding, respondent failed to provide updated information to the immigration court regarding a change in his clients circumstances. Respondent also failed to seek a continuance of the removal based on the changed circumstances.

Rules Implicated: Colo. RPC 1.1 and 1.3.

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School and Trust Account School, complete ten hours of continuing legal education in the subject-area of immigration law, and pay all costs of the disciplinary proceedings.

__________________

> Respondent represented the wife in a dissolution of marriage action. The court ordered respondent to reduce permanent orders to writing by a certain date. Respondent did not do so.

Subsequently, the court ordered respondent to e-file the orders within fourteen days or to appear in court on a certain date to show cause why the filing was not complete. Respondent did not file the written orders within fourteen days, nor did respondent appear in court on the date ordered by the court. Three days after respondent was to appear in court, respondent filed a response with the court and the proposed permanent orders. Subsequently, after making some changes requested by opposing counsel, the proposed permanent orders were filed as stipulated permanent orders.

Thereafter, the court issued a Minute Order requiring respondent to file a proposed support order within seven days. Respondent did not do so. Thus, the court ordered respondent to e-file such order within fourteen days, or to appear in court on a certain date to show cause why the filing was not complete. Respondent filed the proposed support order the next day.

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.

__________________

> This Diversion Agreement deals with respondents conduct in three separate matters. In the first matter, respondent failed to review his clients original signature on the bankruptcy petition before filing the petition. After filing the petition and then learning that the client no longer wished to file for bankruptcy protection, respondent took immediate action to withdraw the petition from the court, which was allowed by the court. Respondent also agreed to notify the three credit bureaus regarding respondent’s mistake in filing the client’s bankruptcy petition.

In the second matter, respondent engaged in advertising practices that could have been confusing for his client. Specifically, respondent advertised bankruptcy filings for $499 and also offered one free bankruptcy filing per month. In reviewing respondent’s fee disclosures on his bankruptcy petitions, all of the disclosures reflect amounts higher than $499. A review of respondent’s previous advertisement shows that he offered several bankruptcy-related levels of services, starting at $499. None of respondent’s clients ever purchased only the $499 service because they needed additional legal assistance, which is why his fee disclosures do not reflect a $499 fee. Respondent discontinued the $499 offer and no longer advertises this option because of the possible confusion it had with clients. Respondent also discontinued the one free bankruptcy filing per month offer in an effort to eliminate any appearance of impropriety with the bankruptcy court.

In the third matter, respondent entered into a flat-fee agreement for $800 to complete his client’s Chapter 7 bankruptcy petition. Respondent’s written basis for his fee did not contain earmarks or guideposts stating when respondent earned the flat fee. Respondent withdrew about half of the flat fee from his COLTAF account as payment for the initial attorney meeting, for pulling the client’s credit report, and for administrative fees. Respondent’s withdrawal was not in accordance with respondent’s flat-fee agreement.

Respondent’s client later decided not to file for bankruptcy protection and requested a refund of any unearned funds. Initially, respondent told the client that he had earned all of the funds. Later, after recognizing the defects in his written basis for his fee, respondent refunded to his client all benchmarks for earning his fees.

In response to all three matters, the bankruptcy court completed a full audit of all of respondent’s cases and has put respondent on a supervision plan to ensure respondent’s proper compliance with the local bankruptcy rules and procedures.

Rules Implicated: Colo. RPC 1.3; 1.4(a)(3); 1.5(f); and 7.1.

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Ethics School and Trust Account School, comply with the bankruptcy court’s supervision plan, and pay all costs of the disciplinary proceedings.

__________________

> Respondent represented a client in a civil protection order case. Respondent issued two subpoenas to the opposing partys employer. The two subpoenas advised the employer that if the requested documents were produced before the close of business on the date set for the records deposition, the employer would not and/or may not need to appear. In each instance, the employer gave respondent the documents before the date of the records deposition. The documents included the opposing party’s personnel file.

Because this was a county court case, the court found that respondent’s client did not have the authority to conduct any type of deposition in the absence of a court order as required by Rule 316(c). The court ordered respondent to return the opposing party’s personnel file and all information received from the opposing party’s employer. However, the court also authorized respondent to take a deposition of the employer on a narrow issue. The documents produced at the subsequent deposition did not include all of the documents the employer had previously produced pursuant to the first two subpoenas.

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

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

Scope of Representation and Confidentiality

> Respondent represented a client on a foreclosure matter. When the client terminated respondents services and asked respondent to withdraw from her case, respondent did not withdraw for several months. Despite refusing to withdraw from her case, respondent refused to communicate with the client directly. Before respondent withdrew from representation, he sent communications to others that the client asserts contained confidential information and that she did not authorize respondent to send.

Rules Implicated: Colo. RPC 1.2; 1.4; 1.6; and 1.16(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.

Trust Account Issues

> Respondents COLTAF account had a balance of $920.79. When a $1,000 check was presented for payment to respondents COLTAF account, the amount over-drafted his COLTAF account by $79.21. The bank paid the check for $1,000 and charged respondent a $34 insufficient fund fee. The bank then notified the OARC that respondent’s COLTAF account had insufficient funds. Respondent deposited personal funds to make up for the negative balance in his COLTAF account.

The investigation in this case revealed several bookkeeping errors in respondent’s COLTAF account since July 2011. The overdraft in respondent’s COLTAF account was due to respondent’s failure to maintain his account in accordance with Colo. RPC 1.15. Specifically, respondent failed to reconcile his COLTAF account on a quarterly basis and failed to maintain adequate general ledgers and client ledgers.

In response to this investigation, respondent completed an internal review of his bookkeeping records, attended a CLE course on trust account management, and hired a bookkeeper. Although respondent acted quickly to take corrective action with his COLTAF account, respondent initially delayed responding to OARC and provided OARC incomplete records.

Rules Implicated: Colo. RPC 1.15(i)(6) and (j)(2), and 8.1(b).

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

Criminal Conduct

> Respondent was convicted of driving under the influence of alcohol (DUI) with a bloodalcohol content (BAC) higher than .20. This was respondents first alcohol-related offense. An independent medical examination indicated that respondent does not suffer from an addiction to alcohol and that this was an isolated incident. Respondent suffers from other mental health issues for which she is currently seeking treatment. There is no indication these issues affect respondent’s practice.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must comply with the requirements of her criminal probation, continue mental health treatment, participate in alcohol monitoring, attend Ethics School, and pay all costs of the disciplinary proceedings.

__________________

> Respondent was arrested in December 2011 after a patrol officer observed respondents vehicle swerving, changing lanes without a signal, and failing to stop for a marked stoplight. When contacting respondent, the officer detected signs of intoxication. Respondent was unable to perform roadside tests adequately, after initially declining to take them. Respondent was placed in custody and initially elected to take a breath test. After being transported to the Justice Center, respondent requested a blood test, indicating that previously she not been offered that option. Due to the confusion over testing, respondent’s BAC was not tested. On April 13, 2012, respondent pleaded guilty to Driving While Ability Impaired (DWAI). Respondent was sentenced to twelve months’ supervised probation (no further violations); attendance at a victim-impact panel; treatment as recommended by her parole officer; and twenty-four hours of community service. Respondent also was required to pay fees and costs of the disciplinary proceedings. Because respondent currently is residing in Pennsylvania, court records indicate she may complete her requirements in that state.

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, have no further disciplinary violations, and pay all costs of the disciplinary proceedings.

__________________

> Respondent was arrested at a restaurant when the managers alleged he failed to pay his bill. When police reported to the restaurant, respondent was found to be extremely intoxicated. Respondent subsequently was convicted of misdemeanor theft for failing to pay a restaurant bill. Respondent has a history of alcohol and drug addiction, and the incident at the restaurant was indicative of a relapse for which respondent has now sought intensive treatment. There is no indication that respondent’s addiction has affected his practice.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the three-year Diversion Agreement, respondent must attend Ethics School, continue with individual and group therapy, participate in weekly alcohol and drug monitoring, and pay all costs of the disciplinary proceedings.

__________________

> Respondent was cited for disturbing the peace and misdemeanor assault. Respondent pleaded guilty to disturbing the peace. Respondents counsel reported respondents criminal conviction to 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 comply with all court orders, attend Ethics School, have no further disciplinary violations, and pay all costs of the disciplinary proceedings.

__________________

> Respondent was arrested and charged with violation of CRS §42-4-1301(1)(A) (DUI) and CRS § 42-4-208 (defective vehicle). Pursuant to the Colorado express consent law, respondent submitted to a chemical test (blood test) to determine his BAC at the time of driving. Respondent was convicted of violation of CRS § 42-4-1301(1)(b) (DWAI).

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 sentence, 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 the BAC at the time of driving. Respondent was convicted, via a deferred sentence order, of violation of DWAI.

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, abstain from alcohol, submit a monthly report, comply with the court sentence, and pay all costs of the disciplinary proceedings.

__________________

> Respondent was in a multi-car accident. Respondent did not pass roadside maneuvers and was placed in custody for DUI. After being advised of the Colorado express law, respondent refused testing.

Respondent pleaded guilty to DUI. She was ordered to complete a two-year probation, with forty-five days of jail suspended and conditions, including undergoing monitored sobriety.

Respondent underwent two alcohol evaluations—one in the criminal case and another independent evaluation. The independent evaluator opined that respondent does not currently suffer from a substance-use disorder, alcohol-dependence, or alcohol abuse. This was respondent’s first alcohol-related arrest or conviction.

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

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Ethics School, comply with the terms and conditions of the criminal sentence, have at least one meeting with the Colorado Lawyer Assistance Program director, have no further discipline, and pay all costs of the disciplinary proceedings.

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