Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

Second Quarter

June 29, 2023

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
Colorado Lawyer Self-Assessment Program (online self-assessment)
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 February 1, 2023, through April 30, 2023, at the intake stage, Regulation Counsel entered into 12 diversion agreements involving 12 separate requests for investigation. LRC approved four diversion agreements involving four separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval.

Lack of Competence

»» A client hired respondent to represent her in a criminal DUI case and related administrative license revocation proceedings. Respondent was successful in getting the criminal charges reduced to a traffic infraction by arguing that the arresting officer had insufficient legal basis to demand that the client submit to a chemical blood test. A plea was entered in the criminal case the week before the client’s scheduled administrative hearing. As the parties prepared for the administrative hearing, respondent repeatedly told the client that respondent intended to impeach the officer with inconsistencies between the written report and what was shown on the various body camera videos. Before the hearing, respondent emailed the client a list of officer’s inconsistencies and citations to specific locations on the body camera footage showing that the client had repeatedly requested the arresting officer administer a breath test. Respondent also advised the client that, in support of their position at the administrative hearing, respondent was going to show the hearing officer that the district attorney had dismissed the criminal DUI case. Prior to the administrative hearing, respondent did not submit any exhibits, including the body camera footage or the paperwork showing the dismissal of the client’s DUI charge. On multiple occasions at the outset of the administrative hearing, the hearing officer asked respondent if there were any exhibits to tender. Each time, respondent said no. After the arresting officer testified, respondent attempted to impeach her by referring to the body camera evidence. The hearing officer repeatedly admonished respondent that respondent needed to stop referencing the body camera footage because it was not in evidence. Respondent advised the hearing officer that the DUI charge against respondent’s client had been dismissed, but the hearing officer noted in her final decision that the respondent had failed to produce any admissible evidence in support of this assertion. Respondent produced no evidence at the administrative hearing that the client had repeatedly requested the arresting officer administer a breath test. The client’s driving privileges were revoked following the administrative hearing based upon a finding that she had refused chemical testing at the time of her arrest. After the client complained to the respondent’s law firm about respondent’s handling of the administrative hearing, the law firm offered the client a partial refund of fees in exchange for a waiver of her malpractice claims without advising the client to seek independent legal advice about this proposed transaction.

Rules Implicated: Colo. RPC 1.1, 1.2(a), 1.3, 1.4(a)(2), and 1.8(h)(2).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, a practice mentor, and payment of costs.

Neglect of a Legal Matter

»» A potential client contacted respondent for assistance with an employment matter. The parties communicated via telephone and email about the client’s concerns, and respondent gave the client legal advice about steps he should be taking to protect his interests. Respondent never discussed fees with the client, nor did respondent provide the client with any writing setting forth the scope of the representation, the basis and rate of respondent’s fees, or the expenses for which the client might be responsible. Respondent thereafter stopped communicating with the client and did not respond to the client’s repeated calls, emails, or other attempts to communicate with respondent about the legal matter. Respondent mistakenly believed that respondent had written to the client advising him that respondent would not be able to provide further assistance.

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

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, completion of the online self-assessment with peer review, and payment of costs.

»» Respondent represented a plaintiff in a personal injury matter. Respondent failed to comply with court deadlines and orders, causing the case to be dismissed without prejudice. After the case was reopened, respondent continued to fail to comply with pretrial deadlines, resulting in the trial date being vacated and further delays in the case.

Rules Implicated: Colo. RPC 1.3, 3.2, 3.4(c), and 8.4(d).

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

»» Respondent did not disburse earned fees held in trust to respondent’s operating account for nine months after earning the fees. Respondent also placed funds paid by a client for a yet-to-be-incurred filing fee cost immediately in respondent’s operating account. Meanwhile, respondent used a flat fee agreement that did not contain a method for calculating fees if either respondent or clients terminated the representation before completion of certain tasks or occurrence of certain events. While representing clients in a bankruptcy matter, respondent filed a petition without a necessary form. This led to the petition’s dismissal. Respondent quickly filed a second petition with the proper documentation.

Rules Implicated: Colo. RPC 1.3, 1.5(h), and 1.15A(a).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, successful completion of trust account school, completion of the online self-assessment with peer review, and payment of costs.

»» Respondent agreed to represent a client in a workers’ compensation case. Subsequently, respondent began to suffer severe mental health issues and was evicted from respondent’s home. Respondent stopped responding to the client and did not file a petition for the hearing in the client’s matter. Accordingly, respondent did not receive the order to show cause from the court asking why the client’s case should not be closed due to inactivity. The client’s matter was closed by the court after receiving no response. Respondent also did not timely return the client’s file after the client requested it.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(4), and 1.16(d).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, mental health treatment or counseling, completion of the online self-assessment with peer review on a yearly basis, and payment of costs.

»» Respondent was licensed to practice law in Colorado and Kansas. In September 2019, respondent agreed to informally review the file of a Kansas Department of Corrections inmate who was a family member of respondent’s friend. After receiving the file at the end of 2019, respondent looked quickly through it and put it aside. He intended to review the file later, but he never did. Respondent was contacted in December of 2020 by the friend asking for return of the file. Respondent did not return the file until August 2021, despite multiple requests. During this same time period, respondent’s Kansas law license was administratively suspended due to a lapse in Kansas CLE requirements, but respondent’s website continued to advertise that respondent was licensed in Colorado and Kansas.

Rules Implicated: Kansas Rules of Professional Conduct 1.3, 1.4, 1.16, and 7.1.

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

Failure to Communicate

»» Respondent’s firm entered into a fee agreement to represent a client in connection with a civil case filed in federal district court. Respondent’s firm agreed to represent the client on a pro bono basis. Respondent’s firm’s fee agreement did not inform the client that any settlement funds received would be placed into the firm’s COLTAF trust account and that any interest on such funds would be paid to COLTAF. Eventually, another attorney became co-counsel to respondent and also agreed to represent the client on a pro bono basis. Respondent asserts the client informed co-counsel and respondent multiple times that if the case settled for over a certain amount, the client wanted respondent and co-counsel to keep any amount over that for their fees and costs. However, respondent did not confirm the client’s agreement to this arrangement in writing. Respondent also did not communicate in writing to the client the change in the basis or rate of his fees and expenses. The case settled over the amount respondent asserts respondent and the client discussed. Thus, respondent paid for costs associated with the litigation and respondent’s co-counsel for legal services she provided.

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

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

»» Respondent did not communicate reasonably with the client, including, without limitation, failing to provide clear information to the client regarding the scope of the representation and failing to respond promptly to the client’s reasonable requests for information about the subject matter of the representation. Respondent billed fees on an hourly basis, despite providing a form of a flat fee agreement to the client. Respondent’s flat fee agreement on one matter did not provide benchmarks for earning funds paid as a retainer, limited the client’s right to dispute the bill, and required the client to pay a fee to receive a copy of the client file. Respondent commingled funds when a portion of the retainer paid by the client was confiscated by the financial institution that processed the retainer payment to settle a debt owed by respondent. Respondent did not transfer funds to respondent’s COLTAF account to make up for the amount confiscated by the financial institution. Respondent negotiated settlement terms to resolve a dispute with the client that would have limited the client’s right to report respondent’s conduct to the OARC.

Rules Implicated: Colo. RPC 1.4(a), 1.4(b), 1.5(a), 1.5(b), 1.5(h), 1.15A(a), and 8.4(d).

Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of ethics school, successful completion of trust account school, completion of the online self-assessment with peer review, compliance with a law practice audit and the auditor’s recommendations for monitoring, and payment of costs.

Fees Issue

»» Respondent initially represented a client in 2012 during an investigation of allegations that the client sexually assaulted a child. When charges were ultimately filed in April 2020, the client again retained respondent to represent him. Respondent agreed to represent the client for a flat fee of $25,000, but respondent failed to memorialize that arrangement in writing, including identifying any benchmarks for when respondent would earn portions of the fee. The client’s family made payments to respondent over time totaling $18,000. However, respondent failed to deposit any of the payments into respondent’s trust account, relying only on respondent’s belief that the funds had already been earned by the time of payment to place them in respondent’s operating account instead. Respondent was unable to provide an accounting of the funds respondent received on the client’s behalf or the work performed on the case.

Rules Implicated: Colo. RPC 1.5(f), 1.5(h), 1.15A(a), and 1.15D.

Conflict of Interest

»» Respondent represented mother in a dissolution of marriage action. Custody of mother’s minor son was at issue in that case. Respondent never withdrew from that representation. Mother had simultaneously been charged with domestic violence against the opposing party in the dissolution case. These criminal charges against mother were ultimately dismissed. Subsequently, respondent was engaged to assist mother and her son in an allocation of parent responsibilities (APR) case involving a child that her son had fathered. Mother subjectively and reasonably believed that respondent was representing both her and her son in that action. Mother was appointed the son’s next friend in the APR case. Mother later engaged respondent to seal the records related to her two dismissed criminal domestic violence cases. Both mother and respondent agreed that this was being done in furtherance of the pending APR matter. Respondent successfully sealed these records. No written, informed consent given by either mother or her son to the joint representation in the custody matter or for the subsequent representation of mother in efforts to seal her criminal records. A disagreement arose between respondent and mother about the handling of the APR matter. Mother terminated respondent and directed respondent to discontinue communications with her son. Respondent indicates that her son did not wish to terminate respondent. Respondent then motioned the court to withdraw from representation of both mother and her son, citing a conflict of interest between the clients. Respondent also motioned the court for the appointment of a guardian ad litem (GAL) for the son, citing “safety concerns” about mother. Respondent did not serve that motion on mother. Respondent was allowed to withdraw. Respondent’s withdrawal from representation culminated in the parties’ failure to finalize a previously negotiated stipulation regarding temporary parenting time, the continuance of a scheduled temporary orders hearing, and the need for the appointment of a GAL for the son at the state’s expense.

Rules Implicated: Colo. RPC 1.7(a)(2), 1.7(b)(4), 1.9(h), and 8.4(d).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, completion of three CLE credits in conflicts of interest, and payment of costs.

Bringing a Meritorious Claim and Contention

»» Respondent filed, pro se, a petition for the issuance of a permanent protective order against respondent’s spouse’s former husband. A hearing was held on that petition in 2022. At that hearing, respondent questioned the former husband under oath about various topics the judge found to be irrelevant to the proceedings. Respondent offered no further evidence or testimony and then orally motioned the court to dismiss the petition. The judge found that respondent’s petition lacked any factual basis, was not brought in good faith, and was filed solely to harass the former husband.

Rules Implicated: Colo. RPC 3.1 and 8.4(d).

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

Failure to Comply With a Court Order or the Rules of a Tribunal

»» Respondent represented a party in a personal injury matter. Respondent substantially failed to comply with court deadlines and orders, causing the case to be dismissed without prejudice. After the case was reopened, respondent continued to fail to comply with pretrial deadlines, resulting in the trial date being vacated and further delays in the case.

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

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

Communications With a Person Represented by Counsel

»» Respondent represented a landlord in the prosecution of a forcible entry and detainer case. After a complaint was filed and served, the defendant engaged an attorney who entered his appearance in the case and filed an answer on the defendant’s behalf. Both the entry of appearance and answer were served on respondent through the court’s electronic filing and notification system. Neither respondent nor respondent’s legal staff opened the electronically served documents. After those documents were filed with the court and served on respondent, respondent filed a motion for default judgment erroneously averring that the defendant had failed to respond to the complaint. This motion was served directly on the defendant, rather than on defendant’s counsel. The court reviewed and denied that motion.

Rules Implicated: Colo. RPC 4.2 and 5.3.

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

Criminal Act

»» Respondent drove from Denver to respondent’s children’s school to pick them up. Some staff members who observed respondent believed respondent might be under the influence of alcohol. The police were called, and when officers questioned respondent, respondent denied having consumed any alcohol prior to arriving at the school and said respondent was having a panic attack. Respondent refused to submit to alcohol testing and was taken into custody on suspicion of DUI. Respondent pleaded guilty to driving while ability impaired (DWAI) and was sentenced to five days in jail, suspended pending successful completion of 12 months of probation with conditions, including substance abuse evaluation/treatment, 24 hours of useful public service, monitored sobriety, attendance at a MADD victim impact panel, no alcohol, no drugs without a prescription, and fines and costs. This was respondent’s first alcohol-related conviction. Respondent voluntarily completed an independent medical examination and was diagnosed with chronic alcohol dependence, an anxiety disorder with episodic panic attacks, and depression associated with anxiety.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Three-year diversion agreement with conditions, including continued compliance with the terms of respondent’s criminal sentence, successful completion of ethics school, alcohol monitoring, continued therapy and medication management, attendance at a self-help group, and payment of costs.

»» A person reported respondent to the sheriff’s office for appearing to be under the influence. An officer arrived and found respondent in respondent’s car. Respondent’s breathalyzer registered .314 g/210L. Respondent pleaded guilty to DUI. Respondent was sentenced to 18 months of supervised probation. This was respondent’s first alcohol-related conviction. Respondent completed an independent medical examination and was diagnosed with a severe substance use disorder.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Three-year diversion agreement with conditions, including compliance with the terms and conditions of respondent’s criminal sentence, ongoing counseling, attendance at AA or an equivalent recovery program, abstinence from the use of alcohol or any other mood-altering substance unless such substance is prescribed by a duly licensed Colorado physician, monitored sobriety, monthly certification of compliance with terms of intake diversion agreement, a meeting with the Colorado Lawyer’s Assistance Program (COLAP), successful completion of ethics school, and payment of costs.

»» In 2022, respondent met work colleagues for beers at a bar. On the way home, respondent stopped at a liquor store, purchased a pint of vodka, and drank from it during the drive. Another driver on the interstate called law enforcement with concerns about respondent’s driving. After locating and observing respondent’s vehicle, a sheriff’s deputy pulled the car over. Respondent submitted to field sobriety testing, but according to the responding deputy, respondent did not complete the tests as a sober person would. Respondent was arrested for DUI. Testing revealed respondent’s blood alcohol level to be 0.196. Respondent pleaded guilty to DWAI. Respondent was sentenced to two days in jail and a $200 fine, both suspended pending successful completion of 12 months’ probation; completion of a substance abuse evaluation and any recommended treatment; 24 hours of useful public service; monitored sobriety; completion of a victim impact panel; no possession of alcohol or controlled substances without a valid prescription; and costs. This is respondent’s first alcohol-related conviction since respondent was licensed to practice law. Respondent voluntarily completed an independent medical examination. The provider diagnosed respondent with a moderate alcohol use disorder.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Two-year diversion agreement with conditions, including continued compliance with the terms of the sentence in respondent’s criminal case, successful completion of ethics school, alcohol monitoring, and payment of costs.

»» Respondent was arrested on suspicion of DUI after respondent was contacted by police and failed voluntary roadside maneuvers. Respondent refused blood and breath testing. Respondent later pleaded guilty to DUI. Respondent was sentenced to one year of an inmate/outmate program with work release, three years of supervised probation with monitored sobriety, 48 hours of community service, and fines and costs. This was respondent’s second subsequent alcohol-related offense.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Three-year diversion agreement with conditions, including compliance with the terms of respondent’s criminal sentence, 30 months of monitored sobriety followed by six months of certified abstinence, individual and group therapy as recommended, successful completion of ethics school, a meeting with COLAP, no further violations, and payment of costs.

»» On two occasions, respondent used ethnic slurs during conversations with another attorney inside a courthouse. Respondent has been diagnosed with autism spectrum disorder, which impacted respondent’s appreciation of the impact of respondent’s statements concerning others. Respondent is addressing this issue through ongoing treatment.

Rules Implicated: Colo. RPC 8.4(g).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school; completion of two CLE credits in equity, diversity, and inclusion; continued counseling/treatment as recommended by the treating mental health provider; 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 February 1, 2023, through April 30, 2023, at the intake stage, LRC issued three private admonitions involving four matters. The PDJ approved one private admonition during this time frame.

»» Respondent engaged in negligent conduct regarding fees and recordkeeping/file maintenance in the representation of a criminal defendant. Respondent charged an unreasonable fee to represent a client and treated fees as earned before conferring a benefit upon the client. Respondent did not properly keep separate money that did not belong to respondent until it was earned. Respondent also did not comply with the requirements of a flat fee agreement under Colo. RPC 1.5(h). Further, respondent did not provide an accounting upon request from the client. Nor did respondent keep file materials and/or financial records, as required in the rules, or fully comply with responsibilities related to communication with the client at the end of the representation.

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

»» Respondent consumed alcohol at breakfast and lunch while driving on a trip outside Colorado. Later in the day, respondent stopped to get gas and eat dinner at a restaurant. After receiving a report from other motorists, Highway Patrol apprehended respondent as respondent was exiting the restaurant. Respondent failed roadside sobriety tests and refused to provide a BAC. Highway Patrol confiscated respondent’s license. Respondent pleaded guilty to driving under the influence of alcohol or drugs, and the local court issued a suspended sentence with conditions. Respondent did not fully comply with all terms of the suspended sentence by a certain date.

Rules Implicated: Colo. RPC 3.4(c) and 8.4(b).

»» In communications to investors, respondent misrepresented the amount of money respondent’s company had raised. While some funds had been committed to the venture, others took the form of unenforceable “pledges” that did not materialize.

Rules Implicated: Colo. RPC 8.4(c).

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