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

July 2013       Vol. 42, No. 7       Page  147
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, 2013 through April 30, 2013, at the intake stage, Regulation Counsel entered into three Diversion Agreements involving three requests for investigation. ARC approved eleven Diversion Agreements involving thirteen requests for investigation during this time frame. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued two private admonitions involving three matters. The PDJ did not approve any 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 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, 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
  • 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, 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 February 1, 2013 through April 30, 2013 generally involve the following:

  • a lawyer shall 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
  • an attorney’s neglect of a matter and/or failure to communicate implicating Colo. RPC 1.3 and Colo. RPC 1.4
  • confidentiality issues implicating Colo. RPC 1.6
  • truthfulness in statements to others and respect for rights of third persons implicating Colo. RPC 4.1 and 4.4
  • 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 February 1, 2013 through April 30, 2013. 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.

Neglect/Communication

> Respondent neglected a client matter, failed to set a hearing within the time allowed, and failed to communicate with the client about the status of the matter.

Rules Implicated: Colo. RPC 1.1, 1.3, and 1.4(a)(3)

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

____________________

> Respondent represented husband and wife as defendants in an easement matter relating to their marital home. Husband and wife sought dissolution of their marriage and respondent continued to represent both of them in the easement matter after informing them of potential conflicts and obtaining their informed consent. The dissolution decree was entered, and husband was awarded the marital home but continued to be on the title of the property. Respondent engaged in settlement negotiations with opposing counsel and husband, but did not include wife in negotiations. Respondent failed to communicate with his client and tell her the easement matter had settled.

Rule Implicated: Colo. RPC 1.4(a) and (b)

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.

____________________

> Respondent failed to notify his client of a temporary orders hearing date in a dissolution matter and failed to attend the hearing, which resulted in orders being entered without the client present. Respondent filed a motion with the court citing excusable neglect, based on failure to receive the electronically filed notice of hearing, because it was redirected into his computers spam folder. However, finding that this had occurred on a previous casealthough no hearing was missed in that instanceand finding that respondent had constructive notice that the hearing would be set, the court denied the motion. Respondents misconduct potentially caused his client harm.

Rules Implicated: Colo. RPC 1.3, 1.4, and 8.4(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.

____________________

> Respondent was hired to represent the client in a criminal case. Other than filing a special entry of appearance and request for discovery, respondent did not take any action for the client, and did not file any papers with the court. Respondent asserted he was not aware that the client retained him to take action in the criminal case. He also asserted that there was a miscommunication or misunderstanding between him and his office assistant regarding this client.

Rules Implicated: Colo. RPC 1.3 and 1.4

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

____________________

> This Diversion Agreement deals with respondents conduct in two matters involving the same client. In the first matter, respondent represented a client in a dissolution of marriage action. After a two-day permanent orders hearing, respondent was ordered by the court to draft and submit final orders within fifteen days. Respondent did not submit the final orders to the court within the time frame allotted by the court and did not notify the client of this failure to meet the deadline. Later, respondent agreed with opposing counsel to adopt the transcript of the permanent orders hearing as the final order of the court without properly consulting the client. Respondent failed to exercise reasonable diligence in preparation of the permanent orders, failed to communicate the status of the proposed permanent orders with the client, and failed to consult with the client about adopting the transcript of the permanent orders hearing as the final order in the case.

In the second matter, respondent represented the same client in a post-decree motion to modify child support regarding her former spouse. During the course of the representation, respondent failed to exercise reasonable diligence in reviewing the former spouse’s disclosures, noticing just before the hearing that the former spouse failed to disclose certain relevant documents. Respondent failed to consider the client’s concerns about the client’s availability to attend a hearing and set the hearing on the motion without properly communicating the date of the hearing to the client until nine days before the hearing. Respondent also failed to adequately prepare for the hearing on the motion to modify child support; however, the parties settled the matter a day before the hearing. Respondent failed to exercise reasonable diligence in reviewing the former spouse’s disclosures, failed to exercise reasonable diligence in preparation for the hearing, and failed to adequately communicate with the client about the date of the hearing.

Rules Implicated: Colo. RPC 1.3(a) and 1.4(a)

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

____________________

Scope of Representation and Confidentiality

> Respondent rented three storage units. One of the units went to auction. Respondent mistaken believed there were no client files in the auctioned unit. After the auction, and unbeknownst to respondent, the client files were placed in public dumpsters. The client files contained personal information of the clients and opposing parties, such as addresses, phone numbers, and social security numbers.

A person who lived in the neighborhood where the dumpsters were located found the boxes with the client files. The police and news organizations were notified, and the police took possession of the files. 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

> Over a seven-month period, respondent wrote three checks from her COLTAF account, which caused the account to go into negative balance. At the time of the overdrafts, respondent maintained two COLTAF accounts, each at a different bank. Respondent failed to keep adequate records to maintain an accurate accounting of the accounts and mistakenly wrote the three checks from the wrong COLTAF account, thus causing the negative balances. Respondent admitted vio lating the Rules and changed her accounting software program, hired a paralegal with accounting experience to assist her with her record keeping, and employed an accountant to periodically review her accounts.

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

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Ethics School and Trust Account School, participate in a financial audit and monitoring, have no further rule violations, and pay all costs of the disciplinary proceedings.

____________________

> Respondent had overdrawn his COLTAF account. On receipt of notice of the overdraft, respondent conducted subsequent investigation and discovered he had made duplicate payments to his operating account on several matters. When the errors were discovered, respondent repaid all funds to the COLTAF account.

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

Diversion Agreement: As part of the conditions of the three-year Diversion Agreement, respondent must attend Ethics School and Trust Account School, participate in a financial audit and monitoring, have no further rule violations, and pay all costs of the disciplinary proceedings.

____________________

Conduct Prejudicial to Administration of Justice

> Respondent represented clients in a litigation matter. During the litigation, respondent made allegations of misconduct by the judge presiding over the matter, which were found to be frivolous and groundless. Respondent continued to make the allegations in various documents filed with the district court, as well as in documents filed with both the Colorado Court of Appeals and the Colorado Supreme Court, despite orders from those courts finding that respondent and his clients had no evidence to support their allegations.

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

_____________________

> Respondent failed to appear for hearings on three occasions in two matters pending before the court. On each occasion, respondent failed to notify the court he would not be appearing, although in one instance he appeared by telephone when reached by the court clerk. Respondent was unaware that the Rules required his presence in court when his client was present. Respondent stated that these failures to appear were due to calendaring issues, which he has since taken steps to rectify.

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

____________________

Criminal Conduct

> Respondent was stopped for driving without headlights. The state trooper believed that respondent might have been under the influence of alcohol. Respondent entered a guilty plea to 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 comply with the terms of his criminal probation, have no further rule violations, and pay all costs of the disciplinary proceedings.

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