Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search
Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

September 30, 2021

Diversion is an alternative to discipline. Pursuant to CRCP 251.13 and depending on the stage of the proceeding, Attorney Regulation Counsel (Regulation Counsel), the Legal Regulation Committee (LRC), 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, LRC or the PDJ must approve the agreement.

Determining if Diversion is Appropriate

Diversion is appropriate where (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. Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion.

Diversion agreements strive to educate and rehabilitate attorneys so that they don’t engage in such misconduct in the future. They may also 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, then one of the conditions of diversion may be a law office management audit and/or practice monitor.

 

Diversion Agreement Conditions

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 conducted by OARC attorneys. An attorney may also be required to fulfill any of the following conditions:

  • law office audit
  • practice monitor
  • practice mentor
  • financial audit
  • online Colorado Lawyer Self-Assessment Program
  • restitution
  • payment of costs
  • mental health evaluation and treatment
  • continuing legal education (CLE) courses
  • any other conditions that would be determined appropriate for the type of misconduct.

Diversion agreements generally span from one to three years. 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 the attorney has breached the diversion agreement, Regulation Counsel must follow the steps provided in CRCP 251.13 before an agreement can be revoked.

 

Diversion Summaries

From May 1, 2021, through July 31, 2021, at the intake stage, Regulation Counsel entered into 14 diversion agreements involving 16 separate requests for investigation, and LRC approved seven diversion agreements involving seven separate requests for investigation during this time frame. Below are summaries of some of these diversion agreements.

 

Lack of Competence

• Respondent was engaged pursuant to a written fee agreement to assist the parents of a person who died after a violent workplace assault. The fee agreement indicates respondent was going to investigate a potential wrongful death claim against the deceased’s employer. However, respondent undertook work in several additional areas, including assisting the clients in the pursuit of a workers’ compensation claim against the deceased’s former employer. Respondent was served with a Notice of Contest related to the deceased’s workers’ compensation claim. Respondent did not challenge the Notice of Contest of benefits, and the clients allege that respondent filed to timely advise them of the issuance of this notice or their associated rights and the deadline by which they needed to contest this decision.

Rules Implicated: Colo. RPC 1.1, 1.2, 1.3, and 1.4.

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, certified completion of the Colorado Lawyer Self-Assessment Program, and payment of costs.

 

Scope of Representation

• Respondent represented a client in an immigration matter but failed to adequately communicate to the client that the retention did not include representation in the client’s pending removal action.

Rules Implicated: Colo. RPC 1.2(c) and 1.4(b).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school and payment of costs.

 

Neglect of a Legal Matter

• Respondent failed to timely produce initial disclosures and respond to written discovery in a civil matter. Respondent also failed to respond to a motion for summary judgment in the same matter, resulting in potential prejudice to the client. Respondent’s misconduct was mitigated by health issues respondent was experiencing at the time.

Rules Implicated: Colo. RPC 1.3.

Diversion Agreement: One-year diversion agreement with conditions, including ethics school and payment of costs.

 

Neglect of a Legal Matter, Failure to Communicate, and/or Fee Issues and/or Termination Issues

• A client hired respondent to assist in retrieving funds from his bank that had been wrongfully removed from his account. The client made three payments to respondent pursuant to the fee agreement, none of which were placed into respondent’s trust account. Respondent erroneously believed that all funds had been earned at the time they were deposited into the operating account. There was a lack of reasonable communication with the client and a lack of diligence in the handling of his legal matter. Respondent initially charged and collected an excessive fee. Respondent also failed to timely respond to the client’s request for an accounting and for return of his client file. After these concerns were brought to respondent’s attention through the investigative process, respondent promptly resolved the client’s legal matter and issued the client a partial refund of fees.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.5(a), 1.15A(a) and (b), and 1.16(d).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, trust account school, certified completion of the Colorado Lawyer Self-Assessment Program, and payment of costs.

 

• Respondent represented a criminal defendant in an appeal of the defendant’s conviction. Respondent filed the opening brief and reply brief, and later sent the client a status update advising that the appeal had not been decided yet. Thereafter, the client was unable to contact respondent by telephone or letter. Respondent failed to inform the client when the appeal was denied, and the client found out about the denial from another source. Respondent also failed to follow through on respondent’s promise to write a letter to the clemency board, although respondent did inform the client beforehand that any such letter was premature until all other legal remedies were exhausted. Respondent’s conduct was mitigated by serious health issues around the time of the client’s appeal.

Rules Implicated: Colo. RPC 1.4(a), 1.4(b), 1.16(a), and 1.16(d).

Diversion Agreement: One-year diversion agreement with conditions, including quarterly certification as to continuing treatment for mental health issues from respondent’s primary treating therapist.

 

• A client engaged respondent to represent her in connection with claims against her employer. Respondent requested, and the client paid, a $2,500 retainer. The client agreed to pay respondent on an hourly basis. At the time respondent was engaged, respondent knew that the client had a deadline of approximately five to six weeks by which to file a civil complaint against her employer. After invoicing the client for one month of hourly service approximately three weeks into the representation, respondent requested an additional $15,000 retainer as a prerequisite to filing a civil lawsuit on the client’s behalf. The client advised respondent that she could not pay the additional retainer and respondent terminated the client’s representation. The client asserted that she was unable to find alternative legal counsel or accomplish the civil filing on her own by the short remaining deadline and thus lost the right to sue her employer for employment discrimination.

Rules Implicated: Colo. RPC 1.4(a), 1.5(b), and 1.16(d).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school and payment of costs.

 

Fee Issues

• Respondent converted a flat fee before earning it but ultimately earned the fee. Respondent also failed to memorialize changes to the fee agreement after respondent’s client was charged with additional crimes and the representation included the defense in those cases.

Rules Implicated: Colo. RPC 1.5(b) and 1.15A(a).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, trust account school, and payment of costs.

 

Fee Issues, Conflict, and Failure to Follow a Court Order

• Respondent was hired to represent a criminal defendant. Respondent did not timely disclose the basis and rate of respondent’s fees in writing to the client. The funds for the client’s initial retainer were provided to respondent by a third party and deposited into respondent’s account after the date on which respondent became aware of a court order issued in connection with the client’s criminal case that specifically precluded the client from receiving funds from that third-party (who was the purported victim of the client’s alleged crime). Respondent failed to obtain the client’s informed consent to respondent’s receipt of payment from the third-party. Respondent’s receipt of these funds after the issuance of the court order exposed the client to possible negative consequences in connection with the pending criminal case.

Rules Implicated: Colo. RPC 1.5(b), 1.8(f), and 3.4(c).

Diversion Agreement: One-year diversion with conditions, including ethics school, trust account school, certified completion of the Colorado Lawyer Self-Assessment Program, and payment of costs.

 

Fee Issues and Failure to Communicate

• Respondent represented the client beginning in the fall of 2017 regarding the client’s immigration removal proceedings. Respondent did not prepare or send the client a written rate or basis of the fee any time during the representation. The client made payments over time. Respondent did not communicate with the client from March 2019 until August 2019 or from May 2020 to August 2020.

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

Diversion Agreement: One-year diversion with conditions, including a practice monitor, ethics school, certified completion of the Colorado Lawyer Self-Assessment Program, and payment of costs.

 

Confidentiality of Information

• Respondent represented the client in a civil lawsuit brought by an inmate. The client signed a fee agreement with respondent’s firm. The signature page of the fee agreement contained the client’s social security number and date of birth. As an exhibit to a motion for award of attorney fees, respondent disclosed to the court and the opposing party the signature page of the fee agreement without redacting the client’s social security number and date of birth.

Rules Implicated: Colo. RPC 1.6.

Diversion Agreement: One-year diversion with conditions, including ethics school, certified completion of the Colorado Lawyer Self-Assessment Program, and payment of costs.

 

Conflict of Interest

• Respondent represented a client who was the victim of a Ponzi scheme involving various investment funds. Respondent failed to enter the identity of all relevant investment funds into respondent’s law firm’s conflict check system, and one of respondent’s colleagues at the firm later represented one of the related investment funds. Respondent’s client ultimately took a position adverse to the investment fund while represented by subsequent counsel.

Rules Implicated: Colo. RPC 1.7(a) and 1.10(a).

Diversion Agreement: One-year diversion with conditions, including ethics school and payment of costs.

 

Conflict of Interest with Current Clients

• Respondent entered into a business transaction with several clients that involved real estate investments. Respondent provided conflict waivers to the clients, but the waivers did not strictly comply with Colo. RPC 1.8(a), which provides that a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Rules Implicated: Colo. RPC 1.8(a).

Diversion Agreement: One-year diversion with conditions, including ethics school and payment of costs.

 

Duties to Former Clients

• Respondent represented a client in the defense of a civil protection order after previously consulting on a substantially related matter with an agent for the party seeking that protection order. Respondent declined to withdraw from this representation after being alerted to a prior representation of the adverse party. After an evidentiary hearing on a motion to disqualify respondent, the court ruled that there was an actual conflict of interest disqualifying respondent and respondent’s law firm from further involvement in the matter.

Rules Implicated: Colo. RPC 1.9(a), 1.18(c), and 8.4(b).

Diversion Agreement: One-year diversion with conditions, including ethics school, three CLE credits on conflicts, peer-reviewed self-assessment, and payment of costs.

 

Trust Account Issues

• Respondent represented a client in a personal injury matter. The case settled with an agreement that the defendant would pay respondent’s client a portion of the settlement proceeds up front and the remainder as monthly payments. The monthly checks were to be made out to respondent, and respondent was to keep a portion of each check in accordance with the contingency fee agreement and forward the remainder to the client. Respondent did not maintain a system to track the incoming funds and did not reconcile respondent’s trust account quarterly as required by Colo. RPC 1.15C(c). As a result, on three occasions respondent failed to forward the client’s portion of the monthly settlement checks. Respondent belatedly paid those funds to the client when the issue was brought to respondent’s attention.

Rules Implicated: Colo. RPC 1.15A(b), 1.15C(c), and 1.15D.

Diversion Agreement: Two-year diversion agreement with conditions, including trust account school, financial monitoring, and payment of costs.

 

Trust Account Issues and Conduct Prejudicial to the Administration of Justice

• Respondent placed personal funds related to disputed child support payments in respondent’s COLTAF account. During a hearing in the domestic relations case, respondent, who was represented by counsel, engaged in disruptive behavior, including what the court believed to be coaching the witness and attempting to continue to instruct the witness. The proceedings had to be paused, and ultimately stopped, because of respondent’s behavior.

Rules Implicated: Colo. RPC 1.15A, 3.4(c), and 8.4(d).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, trust account school, and payment of costs.

 

Duties to Prospective Client

• Complainant alleges she spoke with respondent for approximately 30 minutes about the process of filing a modification of her current parenting time. Approximately five months later, respondent entered his appearance on behalf of the opposing party in the same case for which the complainant contacted him.

Rules Implicated: Colo. RPC 1.18.

Diversion Agreement: One-year diversion with conditions, including ethics school, trust account school, and payment of costs.

 

Criminal Act

• Respondent was arrested on suspicion of driving under the influence after being involved in a single car crash. Respondent refused to submit to a breathalyzer test. Respondent later pleaded guilty to driving while ability impaired and was sentenced to one year in jail, suspended upon completion of probation and with other conditions. Respondent timely self-reported the conviction.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Eighteen-month diversion agreement with conditions, including compliance with the terms of respondent’s criminal sentence, 12 months of monitored sobriety on SOBERLINK, six months of certified abstinence, individual therapy as recommended, ethics school, and payment of costs.

 

• Respondent was stopped by a police officer on suspicion of driving under the influence. Respondent voluntarily submitted to roadside sobriety testing, the result of which the officer believed provided probable cause to arrest respondent for driving under the influence of alcohol. Respondent declined blood or breath alcohol testing, though an unofficial test conducted at the police station showed respondent’s blood alcohol content was 0.0742. Respondent later pleaded guilty to driving under the influence. Respondent timely self-reported the conviction; this was respondent’s first alcohol-related offense.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: One-year diversion agreement with conditions, including compliance with the terms of respondent’s criminal disposition, ethics school, and payment of costs.

 

Private Admonition Summaries

• Private admonition is the least serious of the formal disciplinary sanctions and is only appropriate for cases of minor misconduct where there was little or no injury to a client, the public, the legal system, or the profession, and where there is little to no likelihood of repetition. From May 1, 2021, through July 31, 2021, at the intake stage, LRC issued one private admonition involving one matter.

 

Criminal Act

• Respondent was arrested under suspicion of driving under the influence of alcohol. Respondent refused to give a blood or breath sample. The policing authority then returned with a warrant for a blood draw. Respondent stated that he interpreted a warrant for a blood draw as commanding the arresting officers to obtain a blood sample but not commanding respondent to give one. No blood draw was ever taken. Respondent was charged with contempt of a court order. Respondent ultimately pleaded guilty to one count of contempt of court. The driving under the influence charge was dismissed.

Rules Implicated: Colo. RPC 8.4(b).

 

 

 

Back to the From the Courts Page