The Colorado Lawyer
Vol. 29, No. 1 [Page 101]
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From the Courts
Matters Resulting in Diversion
Colorado Supreme Court Office of Regulation Counsel
Editor’s Note: Articles describing diversion agreements as part of the Attorney Regulation System will be published on a quarterly basis, starting with this January 2000 issue. These articles will be contributed by the Colorado Supreme Court Office of Regulation Counsel.
When the disciplinary system was revamped and the rules of civil procedure pertaining to attorney discipline were amended in July 1998, the Colorado Supreme Court included a provision for diversion as an alternative to discipline. [See C.R.C.P. 251.13.] Pursuant to the rule, Attorney Regulation Counsel ("Regulation Counsel"), the Attorney Regulation Committee ("ARC"), the Presiding Disciplinary Judge ("PDJ"), hearing board, Appellate Discipline Commission, or Supreme Court may offer diversion as an alternative to discipline, depending on the stage of the proceeding. For example, Regulation Counsel can offer a diversion agreement when the complaint is at the intake level in the Office of Attorney Regulation Counsel. Thereafter, ARC or some other entity must approve the agreement.
From January 1999 through September 1999, at the intake stage, Regulation Counsel entered into 81 diversion agreements. From January 1999 through September 1999, ARC approved 69 diversion agreements. The PDJ approved 23 diversion agreements from January 1999 through September 1999.
Background Information Regarding Diversion Agreements
Before Regulation Counsel decides whether to offer a diversion agreement, Regulation Counsel reviews the following factors to determine if 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 C.R.C.P. 251.13(b).] Other factors Regulation Counsel considers that may preclude Regulation Counsel from agreeing to diversion are set forth in the rule.
The purpose of a diversion agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. It is also hoped that a diversion agreement will address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reasons for such conduct were the result of poor office management, then one of the conditions of diversion may be a law office management audit and/ or practice monitor. The time period for a diversion agreement is generally no less than one year or greater than two years.
The type of misconduct dictates the conditions of the diversion agreement. Generally, the attorney is required to attend Ethics School that is organized and taught by attorneys for the Office of Attorney Regulation Counsel. An attorney also may be required to fulfill any of the following conditions: law office audit; practice monitor; financial audit; restitution; payment of costs; evaluation by the Colorado Lawyer’s Health Program ("CLHP"), including treatment; and any other conditions that may be appropriate for the particular type of misconduct.
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 C.R.C.P. 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 for in C.R.C.P 251.13 before an agreement can be revoked. Fortunately, the overwhelming majority of attorneys who participate in the diversion program are successful.
Types of Misconduct
Although Regulation Counsel receives complaints alleging many different rule violations, the type of misconduct resulting in diversion generally falls into three areas. The first category of misconduct involves the attorney’s neglect of a matter and/or failure to communicate. For example, attorneys have been placed on diversion for failing to communicate with clients for six months, or for failing to serve the defendant for seven months after the attorney was retained, in violation of Colorado Rules of Professional Conduct ("Colo.RPC") 1.3 and 1.4. Usually, the client is not harmed or restitution is paid to redress the harm.
The second category of misconduct results from an attorney threatening criminal or administrative action to gain an advantage in a civil case against the opposing party or attorney, in violation of Colo.RPC 4.5.
A third category of intake diversion agreements is the result of the attorney’s personal conduct. For example, Regulation Counsel has entered into diversion agreements with attorneys convicted of a DUI or DWAI, where no injuries occurred. In these agreements, Regulation Counsel requires that the attorney comply with all court-ordered conditions and, if imposed, any treatment plan. Regulation Counsel also requires, as a condition of diversion, that the attorney be evaluated by CLHP and then comply with its recommendation.
Regulation Counsel has recently seen more violations of the advertising rules. Diversion agreements may address such misconduct as (1) attorneys who advertise they are experienced, when they have been licensed only one year, or (2) attorneys who fail to comply with the requirements of direct mail solicitation. For example, attorneys have been placed on diversion for failing to include on the envelope and at the top and bottom of direct mail solicitation the language "this is an advertisement" or failing to make the statement conspicuous.
Diversion agreements also have addressed such misconduct as conflicts, failing to supervise non-attorneys, failing to timely pay for deposition transcripts and court transcripts, charging an unreasonable fee, and conduct that was prejudicial to the administration of justice because the attorney used profanity and spoke in an intimidating manner in the courtroom. Attorneys also have been placed in diversion because they engaged in the practice of law after they received notice of suspension for CLE non-compliance. Finally, there have been diversion agreements for competency issues, such as an attorney failing to become competent or associate with competent counsel.
The types of misconduct that result in a diversion agreement at the intake level are also the types of misconduct that occur at the investigation/trial level, but the matters require further investigation before Regulation Counsel could determine whether a diversion agreement may be appropriate. Attorney misconduct by neglecting matters and/or failing to communicate form a large number of diversion agreements at the investigative and trial levels. Also, a number of matters involve conflicts of interest because the representation of the client was materially limited by the attorney’s own interests, in violation of Colo.RPC 1.7(b), or where the attorney entered into a business transaction with the clients and failed to comply with the requirements of Colo.RPC 1.8(a). Other diversion agreements result from minor commingling or failing to hold client property separate from the attorney’s own property. These cases do not involve conversion, and do not result in any harm to the clients. For these reasons, the cases are diverted, rather than sent to formal proceedings.
Some of the cases, in particular, failure to communicate and neglect, are often the result of personal problems the attorney is experiencing at the time of the misconduct. In this situation, diversion agreements include a requirement for evaluation by CLHP and, if necessary, counseling to address the underlying problems of depression, alcoholism, or other mental illnesses that may be affecting the attorney’s ability to practice law.
Random Samples of Diversion Agreements
Conflict of Interest
The respondent and his investment partners entered into a joint venture with a corporation to purchase real estate. The respondent had an interest in the real estate adjacent to the joint venture’s real estate. The respondent prepared the legal documents for the formation of the joint venture entity. Since the respondent believed that two of the investment partners had attorneys review the documents on their behalf, he only provided written notice to the third investment partner that he was not providing legal advice.
The respondent did not obtain express written consent from his investment partners for the respondent to represent both sides in the transaction. He disclosed a potential conflict of interest in a sublease, but did not advise the parties to obtain independent counsel.
The respondent agreed to the following: to attend Ethics School; attend thirty hours of CLE dealing with advising businesses, business transactions and/or conflicts of interest in business transactions; pay costs associated with the diversion agreement; and not engage in any conduct that would result in the imposition of any form of discipline or the filing of a complaint during the one-year period after approval of the agreement.
Failure to Communicate
The respondent, who represented a client in a traffic matter, failed to send notices and letters to the client’s correct address. The address used was not the address on the traffic ticket. As a result, default judgment was entered against the client. Eventually, a representative from the respondent’s law firm was able to set aside the default judgment.
The respondent agreed to attend Ethics School, and not engage in any conduct that would result in the imposition of discipline or the filing of a complaint within a one-year period. The respondent also agreed to pay costs.
An attorney, while out socializing, consumed from eight to ten drinks. The attorney then drove his car, at which time he was stopped by the police. A blood alcohol analysis, via a blood test, showed a blood alcohol content ("BAC") of almost .2. The respondent pled guilty to a DWAI and received a ten-month suspended sentence.
The respondent agreed to be evaluated through CLHP, and comply with any recommendations of CLHP. The respondent also agreed to provide quarterly reports of compliance with all court orders and obligations, and attend Ethics School within a year of the agreement. Finally, the respondent agreed not to engage in conduct that may result in the imposition of any form of discipline or the filing of a complaint, and to pay the costs associated with the diversion agreement.
The respondent accepted a medical malpractice case that was not his area of expertise and failed to obtain a certificate from a professional. The medical malpractice claim arose as the result of the death of the complainant’s mother. The complainant also had a personal injury claim. To avoid the certification problems, the respondent did not assert a medical malpractice claim, but alleged that the defendants improperly denied certain medical benefits and also asserted claims against the insurer.
The respondent failed to notify the complainant of an offer of settlement and its consequences if the offer were not accepted. The respondent also had the complainant execute a contingency fee agreement for the malpractice claim, which was deficient in its failure to include an estimate of costs.
The respondent agreed to attend Ethics School within a year of the date of the agreement being approved and, for a period of two years, if the respondent maintained a private practice, to have it monitored by an attorney approved by Regulation Counsel, not engage in any conduct that would result in the imposition of discipline or the filing of a complaint, and to pay the costs associated with the diversion agreement.
The respondent was hired to file a claim alleging sex discrimination. The respondent failed to timely file the EEOC charge, and, therefore, the sex discrimination claim was time-barred. The respondent also was hired to file a bankruptcy claim for a client, but failed to file the bankruptcy papers. The client learned about this failure three years later. However, the respondent’s failure to file the bankruptcy resulted in no harm to the client.
Since the respondent was retiring, he agreed to refer all legal matters to other counsel within forty-five days of the date of the agreement, and to transfer to inactive status. He also agreed to pay costs and not engage in any conduct that would result in the imposition of discipline.
Sexual Misconduct and Neglect
The respondent represented a woman in a post-decree matter involving parenting. The court instructed the respondent to prepare the order, but the respondent failed to do it until approximately five months later. The respondent did not mail the order to his client.
During the representation, the respondent told the client she looked "really good" and asked if she had any nude photos of herself.
The respondent agreed to attend Ethics School within one year of the date of the agreement being approved. The respondent also agreed to a three-year diversion period, appropriate mental health evaluations, and treatments as determined by CLHP. The respondent further agreed not to engage in any conduct that would result in the imposition of discipline or a finding of a reasonable cause by the Attorney Regulation Committee, and to pay the costs associated with the diversion agreement.
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