Search



Not a CBA Member? Join Now!
Find A Lawyer Directory
STRATUM
Find A Lawyer Directory

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

The Colorado Lawyer
October 2013
Vol. 42, No. 10 [Page  111]

© 2013 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

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, 2013 through July 31, 2013, at the intake stage, Regulation Counsel entered into four Diversion Agreements involving four requests for investigation. ARC approved six Diversion Agreements involving seven requests for investigation. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued one private admonition involving one matter. 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 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, 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 from May 1, 2013 through July 31, 2013 generally involved the following:

  • 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 1.4
  • fee issues, implicating Colo. RPC 1.5
  • conflict of interest with current clients, implicating Colo. RPC 1.8
  • failing to comply with a court order, implicating Colo. RPC 3.4
  • 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.

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 that took place from May 1, 2013 through July 31, 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 represented a client in divorce proceedings. Respondent failed to timely respond to discovery requests, and failed to comply with court orders compelling responses to discovery requests. The magistrate judge sanctioned respondents client by disallowing certain evidence and assessing fees and costs against the client.

Rules Implicated: Colo. RPC 1.1, 1.3, and 3.4

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must submit to practice monitoring with a law firm audit and pay all costs of the disciplinary proceedings.

____________________

> Respondent represented a group of clients on an hourly basis. When the basis of the fee agreement changed, respondent failed to amend the engagement letter or prepare a new engagement letter to reflect the changes in the terms of representation and fee structure. Respondent also failed to advise the clients of potential conflicts that could arise out of the new fee agreement. At the conclusion of the clients case, respondent failed to promptly respond to the clients requests for information regarding a court order. In a separate matter, respondent appeared for a hearing while administratively suspended for failing to pay the annual attorney registration fee.

Rules Implicated: Colo. RPC 1.4, 1.5, and 5.5(a)(2).

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

____________________

> Respondent was hired by complainant to assist in connection with an ongoing personal injury lawsuit. The parties agreed on a flat-fee payment for respondents services. Respondent deposited complainants check directly into his business operating account without having provided complainant a billing statement, accounting, or other document severing complainants interest in these funds, in violation of Colo. RPC 1.15(c). Respondent also violated Colo. RPC 1.4 by failing to keep the complainant reasonably informed about the status of the matters he was handling on her behalf.

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

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

____________________

> Respondent represented clients in litigation. In a contract for legal services, respondent drafted a promissory note and deed of trust to secure his fees, but failed to advise his clients in writing of the desirability of seeking the advice of independent legal counsel on the transaction. Respondent filed a notice of trial, but neglected to file a notice of the pretrial date, and the court dismissed the case without prejudice. Respondent was delinquent in filing some expert witness disclosures and reports. Respondent failed to place all the funds received from the clients in a separate trust account.

Rules Implicated: Colo. RPC 1.3, 1.5(a), 1.8(a)(2), and 1.15(a).

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

Fee/Trust Account Matters

> Respondent entered into a fee agreement with two clients on or around May 2012. The fee agreement impermissibly indicated the fee paid was nonrefundable and contained unreasonable fee provisions. The fee agreement also contained an impermissible administrative fee provision.

Rules Implicated: Colo. RPC 1.5(a), (f), and (g) and 251.5(b).

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

____________________

> Respondent was retained to represent a client in a Chapter 13 bankruptcy proceeding. Respondent and the client entered into a written fee agreement. The fee agreement provided for a flat fee. However, it also contained a provision that provided that if respondent were terminated, he could bill the client at an hourly rate, and that the total charges may exceed the agreed flat fee.

Respondent did not place the funds into a trust account; he placed them in a lockbox in respondent’s office. Respondent believed these funds were "more than billed for" before he left for the day. However, the fee agreement did not contain any designations of when respondent earned the flat fee and when he would pay himself any portion(s) of it.

The client decided not to file for bankruptcy protection and requested a refund. Respondent did not agree to a refund. Instead, he sent the client a bill. The bill itemized work performed at respondent’s hourly rate, with total charges that exceeded the amount of the flat fee. Respondent did not seek to collect any amounts charged above the flat fee that was paid.

Rules Implicated: Colo. RPC 1.5(a), (f), and (g).

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Trust Account School and Ethics School, either provide the client a refund or submit the fee dispute to arbitration with the CBA Fee Arbitration Committee, have no further discipline, and pay all costs of the disciplinary proceedings.

Criminal Conduct

> Respondent was convicted of driving while ability impaired (DWAI) in 2007 but failed to report the conviction to the OARC. At the time, respondent was not practicing law and respondents license was on inactive status. In November 2012, respondent was arrested for driving under the influence of alcohol (DUI), having a high blood alcohol concentration (BAC). Shortly thereafter, she participated in a six-week intensive outpatient treatment program for chemical dependency. Respondent reported both incidents to OARC at the beginning of 2013, before pleading guilty to the DUI on or about March 2013. OARC requested an evaluation and found no evidence that alcohol abuse affected respondents practice of law. Respondent appeared highly committed to sobriety and regularly attending Alcoholics Anonymous meetings, in addition to individual therapy.

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

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

____________________

> Respondent was charged with harassment, a municipal code violation. After a trial by the court, respondent was found guilty and the court imposed a fine. The charge stemmed from an incident where respondent made verbal threats and became verbally abusive to a bail bondsman and a police officer during multiple telephone conversations. At the time, respondent was dealing with longstanding personal, financial, and emotional problems.

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 and pay all costs of the disciplinary proceedings.

____________________

> Respondent failed to stop for a red light and turned where prohibited by signs reading No Turn on Red. According to Denver Police, when contact was made, respondent was observed with mumbling speech; bloodshot, watery eyes; and a moderate odor of an alcoholic beverage on her breath. Respondent refused all standard field sobriety testing and was placed in custody.

Respondent chose a breath test. Her BAC was .117. Respondent pleaded guilty to DWAI and was sentenced to two years of probation with conditions. This was respondent’s second alcohol-related offense. The first offense was in 2002.

Respondent underwent an alcohol evaluation. The evaluator found that respondent did not meet the DSM IV-TR diagnostic criteria for Alcohol Abuse or Alcohol Dependence.

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

____________________

> Respondent was arrested and convicted for DUI. Respondent was stopped by a police officer after he observed her car weaving and noticed that its taillights were not working. A breath test resulted in a fairly high BAC. Respondent was evaluated, and the evaluator determined that she did not meet the diagnostic criteria for substance abuse or substance dependence.

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

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

____________________

> Respondent pleaded guilty to DWAI (alcohol) with a BAC of .100, and was sentenced to thirty days home detention and twenty-four months of supervised probation. This was respondents second alcohol-related offense. In 1996, respondent was convicted of vehicular assault and two counts of DUI, resulting in a public censure. An independent medical examination was performed, and it was determined that respondent did not meet the diagnostic criteria for either alcohol abuse or 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, comply with the terms of his criminal probation, submit to monitoring for alcohol abstinence for two years, complete a short course of psychotherapeutic intervention within one year, have no further rule violations, and pay all costs of the disciplinary proceedings.

____________________

> Respondent was involved in a minor two-car accident that resulted in no injuries. Respondent pleaded guilty to DWAI and driving a defective vehicle. Respondent received a one-year deferred judgment plus conditions. Respondent self-reported this criminal conviction to the OARC.

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

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics school, comply with the terms of his criminal probation, have no further rule violations, and pay all costs of the disciplinary proceedings.

© 2013 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2013.


Back