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

The Colorado Lawyer
April 2013
Vol. 42, No. 4 [Page  97]

© 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 November 1, 2012 through January 31, 2013, at the intake stage, Regulation Counsel entered into eight Diversion Agreements involving nine requests for investigation. ARC approved five Diversion Agreements involving five requests for investigation during this time frame. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued two private admonitions involving two matters. The PDJ approved one private admonition during this time frame.

Determining if Diversion is Appropriate

Regulation Counsel reviews the following factors to determine whether diversion is appropriate:

  1. the likelihood that the attorney will harm the public during the period of participation;
  2. whether Regulation Counsel can adequately supervise the conditions of diversion; and
  3. the likelihood of the attorney benefitting 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, many times the requirements are similar. Generally, the attorney is required to attend Ethics School and/or Trust Account School, which are conducted by attorneys from OARC. An attorney may also 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
  • attendance at 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, then 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 November 1, 2012 through January 31, 2013 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
  • an attorney’s neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4
  • confidentiality issues, implicating Colo. RPC 1.6
  • conflict of interest, implicating Colo. RPC 1.7
  • 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 November 1, 2012 through January 31, 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 misadvised his client in a driving under the influence (DUI) case. Respondent advised his client that she could plead guilty to the offense and then appeal the trial court's denial of her motion to suppress. Respondent's advice was based on his misunderstanding of the holding in People v. Bachofer, 85 P.3d 615 (Colo.App. 2003). Respondent believed that Bachofer stood for the proposition that a defendant preserves his or her right to appeal rulings on pretrial motions despite entering a plea of guilty. Respondent’s advice to his client was wrong and in contravention with the Rule 11 advisement executed by each of them, and in contravention with the holding in Bachofer. In Bachofer, the court upheld the validity of a conditional guilty plea, reserving a defendant’s right to appeal the trial court’s suppression ruling based on the parties’ agreement to enter into such a conditional plea. The Supreme Court has since decided that conditional pleas are not permissible. See People v. Neuhaus, 2012 CO 65 (Nov. 19, 2012).

When the appellate court dismissed respondent’s client’s appeal of the trial court order, respondent filed a C.R.Crim.P. 35(c) motion with the trial court. Respondent alleged that he advised his client that she could appeal the trial court’s denial of the motion to suppress after pleading guilty to DUI. Respondent persisted in prosecuting the 35(c) motion despite being a direct witness to the facts alleged in the motion and despite the significant risk that his continued representation would be materially limited by his personal interest.

Rules Implicated: Colo. RPC 1.1 and 1.7(a)(2)

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, complete eight hours of CLE credit in criminal law, have no new violations, and pay all costs of the disciplinary proceedings.

__________________

> Respondent was retained to represent his client in renewing a liquor license. Respondent previously had represented the client in obtaining permission for transfer of the liquor license and in a renewal of the same license. Respondent filed the application for renewal after the due date, although he stated such late filing was permissible with payment of a late fee. Respondent personally paid the late fee. The application subsequently was denied due to the city's position that additional steps necessary for transfer and renewal of the license were to have been taken before the filing of the renewal application. Because those steps were not taken, the application would not be considered. Although respondent attempted to resolve the matter after denial, he was unable to do so. Respondent acknowledged that he did not properly communicate with his client regarding the status of the application and did not timely inform the client regarding the denial.

Rules Implicated: Colo. RPC 1.3 and 1.4

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 decided to dispose client files that were more than ten years old. Respondent placed the client files in public recycling bins located in an alley. Approximately half of the files were in trash bags and the remaining files were placed un-bagged in the recycling bins. The client files contained medical documents and personal client information, such as addresses, phone numbers, social security numbers, and client photographs.

A concerned citizen reported this matter to the OARC. Employees of the OARC went to the site and collected, removed, and bagged the client files. Twenty to thirty bags of files were obtained. After being contacted by the OARC, respondent took ownership of the files and had them securely shredded.

Rules Implicated: Colo. RPC 1.6 and 1.16(d)

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.

Trust Account Issues

> Respondent did not maintain a proper general ledger and proper client ledgers, and did not reconcile his trust account quarterly. Respondent's failure to comply with Colo. RPC 1.15, as well as his general lack of understanding of this rule, caused several bookkeeping errors. Respondent has since changed his billing practices and his bookkeeping practices.

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

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Trust Account School, meet with a financial monitor, and pay all costs of the disciplinary proceedings.

Criminal Conduct

> Respondent was stopped by a sheriff's deputy after he made a wrong turn on a one-way street. The deputy smelled a strong odor of alcohol, and noticed respondent had slurred speech, showed signs of impairment on the horizontal gaze nystagmus, and swayed while standing. Respondent also admitted to consumption of alcohol. The Law Enforcement Sworn Report states that respondent refused a portable breath test.

Respondent was arrested and charged with DUI and improper lane usage. Respondent pleaded guilty to DUI and was sentenced to twelve months of supervised probation, with conditions. The improper lane usage charge was dismissed.

Respondent completed an alcohol evaluation. The doctor determined that respondent was in the threshold range between problem drinking and alcohol abuse. He made recommendations that included monitoring. This was respondent’s second alcohol-related offense.

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 comply with the requirements of his criminal probation, attend Ethics School, attend Alcoholics Anonymous (AA) or an equivalent recovery program, meet with the Colorado Lawyer Assistance Program at least one time, abstain from the use of alcohol, be enrolled in MEMS 3000 alcohol monitoring for one year, have no further discipline, and pay all costs of the disciplinary proceedings.

__________________

> Respondent pleaded guilty to Driving While Ability Impaired (DWAI). Respondent's breath alcohol content (BAC) was .125%. The underlying incident did not involve an accident or injury. This was respondent's first alcohol-related offense.

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

__________________

> Within a four-month period, respondent was convicted of two DUIs, with BACs in each case above .200. Respondent has been diagnosed as alcohol dependent and was dealing with several stressful events in his personal and professional life at that time. These were respondent's first alcohol-related offenses. Respondent regularly attends AA meetings, in addition to participating in individual therapy.

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

Diversion Agreement: As part of the conditions of the three-year Diversion Agreement, respondent must comply with the terms of his criminal probation, participate in alcohol monitoring, obtain mental health treatment, attend AA meetings, attend Ethics School, and pay all costs of the disciplinary proceedings.

__________________

> Respondent filed a pro se petition for dissolution of marriage. Respondent and his wife both wanted to dissolve their marriage and believed Colorado was the most appropriate jurisdiction in which to file at the time.

In his petition, in response to the question "Length of Current Residency in Colorado," respondent wrote "31 years," since "9/26/1979." Also on the petition, respondent listed his parents’ address in Colorado as his current address. By signing the petition, respondent affirmed under oath that his responses to questions on the petition were true and correct to the best of his knowledge. However, at the time he filed the petition, respondent had been living and working in the Washington, DC area for four months. Respondent’s wife had been living and working in New York for more than two years at the time the petition was filed.

After not being able to reach a settlement, respondent, who has no experience in domestic relations matters, sought to dismiss the petition for lack of jurisdiction. Respondent’s wife sought attorney fees, arguing that respondent’s petition lacked substantial justification and was groundless. The court entered an order dismissing the petition for lack of jurisdiction, and awarded respondent’s wife attorney fees and costs in the amount of $9,426.53. Respondent paid the full award for attorney fees and costs.

Respondent mistakenly believed that he could file for dissolution of marriage in Colorado because he was born in Colorado, was married in Colorado, and considered Colorado his "home" state.

Rule Implicated: Colo. RPC 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 associated with the diversion proceedings.

__________________

> In November, respondent pleaded guilty to Attempted Fail to Stop or Respond at Command of Police, a class A misdemeanor; Impaired Driving, a class B misdemeanor; and Disorderly Conduct, a class C misdemeanor. This plea stemmed from respondent's arrest in May 2012 in Grand County, Utah following respondent's involvement in a minor automobile accident while trying to park his vehicle, after which he had a physical confrontation with a witness and allegedly failed to stop for or cooperate with police during his arrest. Respondent was administered a blood test pursuant to a warrant and his BAC was .08.

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 the court sentence, and pay all costs associated with the disciplinary proceedings.

__________________

> Respondent was charged with DUIalcohol. A blood test revealed a BAC of .261. Respondent pleaded guilty to the charge and reported the conviction pursuant to the requirement contained in CRCP 251.20(b). An evaluation determined that respondent met the criteria for a diagnosis of alcohol dependence.

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

Diversion Agreement: As part of the conditions of the three-year Diversion Agreement, respondent must attend Ethics School, abstain from alcohol, submit a monthly report, comply with the court sentence, have no formal complaints or petitions for immediate suspension for three years, follow an evaluator’s recommendations, follow aftercare recommendations, submit to random urinalysis testing twice a week for two years, attend AA meetings four times a week, attend Lawyers Helping Lawyers meetings, and pay all costs of the disciplinary proceedings.

__________________

> Respondent was involved in a one-car accident. Respondent pleaded guilty to DWAI.

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

Diversion Agreement: As part of the conditions of the three-year Diversion Agreement, respondent must attend Ethics School, comply with the terms and conditions of the criminal sentence, have no formal complaints or petitions for immediate suspension, submit monthly reports, abstain from drinking, participate in the MEMS 3000 alcohol-monitoring program, and pay all costs of the disciplinary proceedings.

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