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TCL > January 2014 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

The Colorado Lawyer
January 2014
Vol. 43, No. 1 [Page  105]

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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, 2013 through October 31, 2013, at the intake stage, Regulation Counsel entered into eight Diversion Agreements involving eight requests for investigation. ARC approved twelve Diversion Agreements involving eighteen requests for investigation during this period. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued two private admonitions. The PDJ did not approve any private admonitions.

Determining Whether 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 benefiting 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 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
  • 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, 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 August 1, 2013 through October 31, 2013 generally involved the following:

  • a client with diminished capacity, implicating Colo. RPC 1.14
  • 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
  • confidentiality issues, implicating Colo. RPC 1.6
  • conflict of interest, implicating Colo. RPC 1.7
  • conflict of interest with current clients, implicating Colo. RPC 1.8
  • conflict of interest issues, implicating Colo. RPC 1.9
  • meritorious claims issues, implicating Colo. RPC 3.1
  • candor toward the tribunal, implicating Colo. RPC 3.3
  • failing to comply with a court order, implicating Colo. RPC 3.4
  • special responsibility of a prosecutor, implicating Colo. RPC 3.8
  • truthfulness in statements to others, implicating Colo. RPC 4.1
  • professional independence of a lawyer, implicating Colo. RPC 5.4
  • 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 during August 1, 2013 through October 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 was retained to represent a client with an estate matter. Respondent failed to effectively communicate with the client and to diligently conclude the case, primarily due to personal and health-related difficulties respondent was experiencing at the time. Ultimately, the clients matter was satisfactorily concluded. Respondent also failed to give the client a written statement reflecting the basis and rate of the fee, and also failed to adequately sever the clients interest in the funds paid. The client paid respondent approximately $1,200.

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

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.

____________________

> Complainant retained respondent in August 2011 to represent him in a lawsuit. In August 2011, complainant and his wife signed a fee agreement with respondent, and later paid $5,000 in two installments. The fee agreement was based on hourly rates for respondent, and his associates and paralegals. According to the fee agreement, detailed and regular billing statements would be provided to complainant. However, complainant did not receive his July 2011 and August 2011 billing statements until April 2012. Respondent subsequently provided complainant the September 2011 through May 2012 billing statements in May 2012. Respondent failed to communicate the status of the complainants account from October 2011 to April 2012.

Rules Implicated: Colo. RPC 1.4(a)(3) and 1.15(c).

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

____________________

> Complainant retained respondent to help close a business. Respondent did not provide a retainer agreement or explain the basis or rate of his fee in writing. Respondent placed a portion of the retainer that was paid by the client into his operating account before he actually earned it. Respondent failed to respond to repeated client requests for documents and failed to return the clients file on termination of his services.

Rules Implicated: Colo. RPC 1.3, 1.4(3) and (4), and 1.15(b).

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

____________________

> Respondent was retained to assist complainant with a civil matter concerning the installation of a defective water heater. Respondent did not provide a retainer agreement or explain the basis or rate of his fee in writing. Respondent failed to respond to repeated client requests for information.

Rules Implicated: Colo. RPC 1.3, 1.4(3) and (4), and 1.5(b).

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

____________________

> Respondent represented a client regarding a dispute between the clients family partnership and a real estate developer. Although the relevant agreement contained a mandatory arbitration provision, respondent agreed to file suit on behalf of his client, because one party initially refused arbitration. After respondent filed the lawsuit, the defendant filed a motion to dismiss based on the mandatory arbitration provision in the relevant agreement. Respondent and the client discussed the motion and decided conceding the motion was the best course of action. Soon thereafter, respondent began experiencing health problems. Respondent failed to tell his client that he had conceded the motion, and that the motion to dismiss had been granted by the court. Respondent failed to communicate with his client for approximately three months due to his significant health issues during that time. Respondent had memory lapses and severe fatigue due to neurological problems and sleep apnea. Respondent should have withdrawn as counsel, given his health problems.

Rules Implicated: Colo. RPC 1.4(a)(3) and 1.16(a)(2).

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

____________________

> Respondent met with two family members to establish a trust for their incapacitated mothers property. Respondent failed to explain clearly that his only client was the mothers legal representative. The client signed an hourly fee agreement. After the mother passed away, the client and other family members requested that respondent complete a different kind of trust. The client and other family members orally agreed to pay respondent a flat fee. Respondent failed to provide the client a written statement communicating the basis or rate of the fee. The client paid respondent for the trust. Respondent placed the fee into his trust account and then failed to provide the client an accounting before or after he moved the fee into his operating account. Respondent substantially completed the trust, but did not provide it to the client for another six months. Respondent then failed to communicate with the client to assist in making the final changes to the trust. Respondents only associate had resigned and respondent was overwhelmed with work from the point of finishing the trust until January 2013. In addition, respondent had significant marital difficulties during 2011 and 2012.

Rules Implicated: Colo. RPC 1.4(a)(3), 1.5(b), and 1.15(c).

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 was employed as in-house counsel from September 2011 through March 2012. In June 2012, respondent represented a client against respondents former employer in a dispute about company policies that were in effect while respondent was in-house counsel. Respondent revealed information he learned during his representation as in-house counsel.

Rules Implicated: Colo. RPC 1.6(a) and 1.9.

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

____________________

> Respondent met with a potential client who respondent knew had previously been deemed incapacitated and was a ward with an appointed guardian. Because the potential client appeared to be coherent and able to understand and communicate competently, respondent agreed to represent the client and asked the client to sign respondents fee agreement. The owner of the clients assisted living facility loaned the client $1,000 to cover respondents retainer fee. Respondent did not specifically advise the client of the potential conflicts that may result when the clients legal fees are paid by a third party. Respondent did not initially attempt to obtain the clients guardianship file, which was public and contained information that the client previously had been deemed incapacitated due to chronic paranoid schizophrenia. Rather than file a request with the court for permission to represent the client, respondent filed an emergency motion on behalf of the client.

Rules Implicated: Colo. RPC 1.6(a), 1.8(f), 1.14, 3.1, 3.3(a)(1), 4.1(a), and 5.4(c).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must obtain a mentor, attend elder law CLE courses and Ethics School, and pay all costs of the disciplinary proceedings.

Conflict of Interest

After his grandmother’s death, respondent engaged in discussions with other family members regarding the redistribution of his grandmother’s estate, for which he was a beneficiary. To memorialize the redistribution, respondent drafted a Private Agreement that increased the monetary distributions to members of his immediate family. The next day, respondent entered into a fee contract with the personal representative for the estate (his sister) to represent her during the probate proceedings. This created a conflict of interest because respondent’s representation of the personal representative was materially limited by his personal interest in enabling the increased distributions to his family under the Private Agreement.

Several months later, the personal representative sought other counsel, and respondent withdrew representation. The personal representative then revoked her consent to the Private Agreement. Shortly thereafter, respondent assisted the personal representative with drafting a Motion to Enforce Private Agreement, but failed to disclose that assistance to the probate court when the document was filed (an issue that respondent later remedied).

Rules Implicated: Colo. RPC 1.7(a)(2) and 3.4(c).

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

Responsibility of a Prosecutor

> Respondent was the prosecutor in a case filed in county court. Respondent conditioned the defendant receiving a better plea offer (thirty days less of in-home detention) on defense counsel withdrawing from the case. Thus, defense counsel orally moved to withdraw so that his client could receive the better offer. The court did not permit defense counsel to withdraw by oral motion.

Rules Implicated: Colo. RPC 3.8(b) and 8.4(d).

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

____________________

Criminal Conduct

On two occasions, respondent ingested a combination of alcohol and controlled substances and experienced psychotic symptoms, including paranoid delusions and hallucinations. The first occasion resulted in respondent’s brief hospitalization at a psychiatric hospital. On both occasions, respondent called the police to report trespassers on his property, but none was found. Neither of the incidents resulted in criminal prosecution.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must submit to continued drug and alcohol monitoring, successfully complete a relapse prevention group program and continuing care program, have no further rule violations, attend Ethics School, and pay all costs of the disciplinary proceedings.

____________________

> Respondent pleaded guilty to driving under the influence of alcohol.

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

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

____________________

> Respondent was convicted of driving while ability impaired (DWAI) with a prior alcohol-related driving offense.

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 comply with the terms of the court sentence, submit therapy reports and an Alcoholics Anonymous attendance log, undergo MEMS 3000 testing, attend Ethics School, and pay all costs of the disciplinary proceedings.

____________________

> Respondent was convicted of DWAI with no prior alcohol-related driving offenses.

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 the court sentence, attend Ethics School, and pay all costs of the disciplinary proceedings.

____________________

> Respondent failed to stop for a red light and was stopped by a trooper. Respondent had a strong odor of alcohol on his breath and bloodshot, watery eyes. Respondent refused voluntary roadside maneuvers and refused testing.

Respondent was placed in custody and put in the rear seat of the patrol vehicle, unbuckled. As respondent was being transported to a detox center, he repeatedly said "let me out." He then started kicking the rear passenger window with his foot. The trooper merged to the right-side shoulder and applied his brakes. Respondent rolled into the partition and stopped kicking the window. As a result of respondent’s kicking, the rear window of the trooper’s vehicle was out of its tracks and sticking out several inches.

Respondent pleaded guilty to DWAI. He was sentenced to eighteen months of supervised probation, with conditions. He also pleaded guilty to criminal mischief under $500 and was placed on a deferred judgment for one year. This was respondent’s first alcohol-related offense.

Respondent underwent an alcohol evaluation. The independent evaluator found that respondent did not fit the criteria for substance abuse or dependence and thus did not require treatment.

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 terms of his criminal sentence, have no further rule violations, and pay all costs of the disciplinary proceedings.

© 2014 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=2014.


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