Search



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

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

The Colorado Lawyer
July 2014
Vol. 43, No. 7 [Page  131]

© 2014 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 February 1, 2014 through April 30, 2014, at the intake stage, Regulation Counsel entered into fifteen Diversion Agreements involving seventeen requests for investigation. ARC approved nine Diversion Agreements involving nine requests for investigation during this period. 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 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 the 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 February 1, 2014 through April 30, 2014 generally involved the following:

  • 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
  • fee issues, implicating Colo. RPC 1.5
  • confidentiality of information, implicating Colo. RPC 1.6
  • conflict of interest, implicating Colo. RPC 1.7
  • duties to former clients, implicating Colo. RPC 1.9
  • communication with person represented by counsel, implicating Colo. RPC 4.2
  • 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 February 1, 2014 through April 30, 2014. 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 the personal representative of an estate. Respondent delayed in completing the work necessary to close the estate due to significant personal and emotional issues. Respondent has now completed the work necessary to close the estate.

Rule Implicated: Colo. RPC 1.3.

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, participate in the Colorado Lawyers Assistance Program, and pay all costs of the disciplinary proceedings.

____________________

> Respondent represented two sisters with respect to the estate of their deceased mother without initially providing them any written advisements about potential conflicts of interest that could arise from her representation of both of them. After one sister terminated respondent, and after respondent provided an advisement about potential conflicts of interest and obtained consent from the sister who terminated her, respondent continued to represent the other sister. However, she did not timely file a motion to withdraw with respect to the sister who terminated her, and she later filed a motion to compel against her former client.

Rules Implicated: Colo. RPC 1.3, 1.7, and 1.9.

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

Fees/Trust Account Issues

> Respondent withdrew $200 from his COLTAF account, causing the account to go into the negative. Respondent maintained his personal checking account and his COLTAF account at the same bank. Respondent stated that he mistakenly withdrew the $200 from the COLTAF account instead of his personal checking account. A month earlier, respondent withdrew $500 from his COLTAF account, causing the account to go into the negative. Respondent stated that he withdrew the $500 as earned fees, but had done so before the check for $500 had cleared.

Rule Implicated: Colo. RPC 1.15.

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

____________________

> Respondent was hired to prepare a patent application. After the legal work was mostly complete, the client paid respondent a retainer, which exceeded the agreed flat fee and filing fees. Although respondent had done most of the legal work to earn his flat fee, he had not yet incurred the filing fee. Even so, respondent placed the entire retainer into his operating account, and failed to place the unearned amount into his trust account. Shortly after depositing the money, respondent completed the application, thereby earning the entire fee. Also, the filing fee was paid from the operating account, and the excess paid by the client was refunded.

After respondent filed the patent application, the client was unable to contact respondent for several months. Respondent also failed to give the client an accounting even after the client had requested one. Respondent’s personal and emotional issues caused him to neglect communicating with his client.

Rules Implicated: Colo. RPC 1.4(a)(4) and 1.15.

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

____________________

> The client hired respondent and signed a fee agreement stating that respondent would send semi-monthly invoices to the client. Respondent did not place the clients retainer in his trust account. Rather, respondent deposited the retainer directly into his operating account, because he believed he would earn the entire retainer very quicklywithin the first day or two of representation. Respondent was experiencing problems with his billing software, and respondents work descriptions and time entries were saved in segmented areason his iPad, a computer, and his server.

Respondent failed to send the client semi-monthly invoices, as promised in his fee agreement, and did not earn the entire retainer until seven days after depositing the retainer in his operating account. Respondent did not provide the client an accounting.

Rules Implicated: Colo. RPC 1.4(a)(4) and 1.15(a) and (c).

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

____________________

> Respondent represented a client in a personal injury matter. Although her client had signed a lien with a medical provider, respondent asserted that she was unaware that such a lien existed, that she never saw the lien, and that her client affirmatively asserted no such lien existed. The evidence in the matter demonstrated that respondent should have known about the lien. When a settlement was reached, respondent distributed proceeds to her client without retaining funds to satisfy the lien.

Rules Implicated: Colo. RPC 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 worked at a law firm that represented a person whose dog had been shot by a police officer. After leaving the law firm, respondent blogged about the shooting, and about the fact that the civil case was being handled by the former law firm. He did not have the clients permission to distribute such information.

Rules Implicated: Colo. RPC 1.6 and 1.9(c)(2).

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

Communication With Parties Represented By Counsel

> Opposing counsel notified respondent she was representing the opposing side of a dispute. Thereafter, respondent contacted the opposing counsels client directly.

Rules Implicated: Colo. RPC 4.2.

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

Criminal Conduct

> Respondent was pulled over after driving on the wrong side of the road. He did not consent to voluntary roadside maneuvers and was placed in custody. He subsequently refused chemical testing. Respondent pleaded guilty to Driving While Ability Impaired (DWAI). He was sentenced to two years probation, with conditions including monitored sobriety.

Respondent underwent an alcohol evaluation. The doctor diagnosed respondent with moderate alcohol use disorder, in early remission. He made recommendations, including monitored sobriety. This was respondent’s second alcohol-related conviction.

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

Diversion Agreement: As part of the conditions of a two-year diversion agreement, respondent must attend Ethics School, attend AA or other equivalent recovery program, meet with the Colorado Lawyer Assistance Program at least one time, abstain from alcohol, submit to monitored sobriety through random EtG screens for eighteen months, comply with the court sentence, and pay all costs.

____________________

> Respondent was observed driving erratically and was stopped by an Adams County deputy sheriff. Respondent was unable to adequately perform roadside maneuvers and, after refusing testing, was arrested and taken to detox. Approximately an hour after the arrest, respondents blood alcohol level was .085. Respondent pleaded guilty to DWAI and was sentenced to twelve months probation, court costs and fines, twenty-four hours useful public service, and 180 days in jail, suspended. Respondent was evaluated at the request of OARC. It was determined that this was an isolated incident and respondent would not benefit from monitored sobriety. This was respondents first alcohol-related offense.

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

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

____________________

> In February 2013, respondent was stopped by a police officer for driving a vehicle with an inoperable headlight and a windshield obstructed by snow. After the officer noticed signs of impairment, respondent was administered a blood test, which showed respondents blood alcohol content at .168. Respondent pleaded guilty to DWAI in October 2013. This was respondents first alcohol-related offense. Respondent was evaluated and did not meet the diagnostic criteria for substance abuse or dependence disorder.

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

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

____________________

> A magistrate found respondent in contempt of court after the court clerk reported odor of alcohol on respondents breath while in court as counsel. Respondents voluntary submission to a breathalyzer revealed a blood alcohol level of .092. After this incident, respondent participated in a residential treatment program for alcoholism. The program made a recommendation for respondent to maintain sobriety.

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

Diversion Agreement: As part of the conditions of a three-year Diversion agreement, respondent must attend Ethics School; abstain from alcohol and non-prescription drugs; participate in a monitored sobriety program; undergo MEMS 3000 monitoring for eighteen months, followed by urinalysis three times a month for one year; participate in individual and group therapy, releases, and reports; and pay all costs of the disciplinary proceedings.

____________________

> This intake Diversion Agreement resolves two matters involving respondent. In the first matter, respondent was stopped for driving 9 miles over the speed limit. The officer suspected respondent was driving while impaired and asked respondent to perform roadside maneuvers, which he was unable to successfully complete. Respondent refused both blood and alcohol testing. In September 2013, respondent pleaded guilty to DWAI. Respondent was sentenced to one year of probation, twenty-four hours useful public service, twenty days in jail (suspended), and payment of fees and costs associated with the disciplinary proceedings.

In the second matter, respondent was retained to represent a client regarding post-decree issues relating to her desire to relocate with her child. Respondent did not prepare a fee agreement for the representation, nor did respondent deposit the $1,500 retainer into a trust account, although it was earned shortly after commencing representation.

Rules Implicated: Colo. RPC 8.4(b) and 251.5(b), 1.5(b), and 1.15(a).

Diversion Agreement: As part of the conditions of a one-year Diversion Agreement, respondent must attend Ethics School and Trust Account School; undergo weekly EtG testing for the first six months of the agreement; comply with all terms recommended by the independent medical examiner, including completion of Level II alcohol education classes and attendance at weekly therapy sessions with an individual provider for twelve to fifteen sessions; and pay all costs of the disciplinary proceedings.

____________________

> In July 2013, respondent self-reported a July 2013 conviction of third-degree assault, in violation of CRS § 18-3-204(1)(a), a misdemeanor (M1). The conviction arose from an incident in the early morning hours of January 2013, when respondent, who had been at a bachelor party drinking most of the day, went to a local bar and engaged in a physical altercation. Respondent swung and struck an individual with an empty pint glass. His sentence required eighteen months’ supervised probation and sixteen days in jail, writing an apology letter to the victim, participation in alcohol evaluation with compliance of any treatment terms or conditions made pursuant to that evaluation, and payment of various fines and costs. Respondent underwent an alcohol evaluation. The independent evaluator found that respondent did not fit the criteria for substance abuse or dependence and did not need treatment at the time.

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

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

____________________

> Respondent was arrested in July 2012 after a patrol officer observed her sitting in a car that was parked the wrong way on a one-way street. Respondent was unable to successfully complete one of three roadside sobriety tests administered and was taken into custody. Respondent later was administered a blood test. The lab results showed respondents blood alcohol content at .149. Although respondent challenged the lab results, and her first trial resulted in a mistrial, respondent ultimately pleaded guilty to DWAI in December 2013.

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

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

____________________

> Respondent entered a plea of guilty to Driving Under the Influence of Alcohol. This was respondents third alcohol conviction and fifth alcohol-related arrest. Respondent timely reported his conviction to OARC and underwent a psychological/substance abuse evaluation.

Rule Implicated: Colo. RPC 8.4(b).

Diversion Agreement: As part of the conditions of a three-year Diversion Agreement, respondent must attend Ethics School, abstain from and be monitored for alcohol use, attend a recovery program and peer support meetings, continue with individual mental health treatment, comply with the terms and conditions of the court sentence, 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.


Back