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Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

First Quarter

March 31, 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 November 1, 2022, through January 31, 2023, at the intake stage, Regulation Counsel entered into nine diversion agreements involving 11 separate requests for investigation. LRC approved two diversion agreements involving three separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval.

Neglect of a Legal Matter

»» A client retained respondent’s firm to represent him in a domestic relations case. In fall 2021, an attorney at the firm filed a motion to modify parenting time on the client’s behalf. Respondent took over the client’s representation on behalf of the firm in March 2022. In March 2022, respondent and the client attended a status conference in the case, during which the court ordered the parties to mediate within 63 days—by May 12, 2022—and report back to the court within 14 days after—by May 26, 2022. Respondent did not attempt to schedule mediation with opposing counsel until May 17, 2022—five days after the court’s deadline to mediate. Further, the May 26 deadline for reporting back to the court passed without respondent filing an update with or requesting an extension of time from the court. Having not heard from respondent, on June 2, 2022, the court closed the client’s case and deemed his motion to modify abandoned and denied. Respondent did not inform the client of this development. However, respondent did continue efforts to schedule mediation with opposing counsel throughout this time frame and into July 2022. After terminating respondent’s representation in August 2022, the client filed a motion to reinstate the case pro se, which the court granted.

Rules Implicated: Colo. RPC 1.3 and 1.4(a)(3).

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

Failure to Communicate

»» Respondent’s firm was hired for a civil case. Another attorney in the firm was primary counsel, but respondent was involved in the case. At the onset of the representation, there was a draft engagement letter that was never finalized or signed. The client indicated that they did not receive the letter. During the course of the representation, respondent’s firm increased fees for attorneys, paralegals, and staff, but the client was not notified of any fee increases until the client received the bill. There were multiple time entries for work respondent indicated was provided but that the client disputed. Respondent did not communicate with the client about respondent’s role in the matter.

Rules Implicated: Colo. RPC 1.4(a)(2) and (3), and 1.5(a).

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

»» Respondent represented two clients in unrelated matters between 2020 and 2022. Respondent’s hourly fee agreements contained incorrect information about the legal necessity for a written fee agreement and an improper limitation on the client’s right to object to fees billed by respondent’s firm. Respondent did not provide the written basis or rate of fees for the attorney who completed much of the work on one matter. Respondent’s fee agreement stated that the firm would provide monthly invoices, but respondent did not do so for the first 19 months of the representation. Respondent’s contingent fee agreement did not contain provisions required under Colo. RPC 1.5(c). Respondent commingled personal and trust funds in the firm’s COLTAF account. Respondent did not perform any reconciliation of client trust funds for two years.

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

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

»» Respondent did not provide the client with a written copy of a flat fee agreement for more than a month following commencement of the representation, and only after completing substantial work on the case. The flat fee agreement did not have a way to calculate fees should the representation terminate before certain tasks were completed. After presenting the client with the flat fee agreement, respondent amended the agreement to include language specifying how the fee would be earned if the representation was terminated. The amended fee agreement did not state that the attorney fees could not exceed the total flat fee. Meanwhile, respondent placed the client’s retainer in trust six months after receiving it and after earning the retainer in full. Respondent moved the funds to a business account the day after placing them in trust.

Rules Implicated: Colo. RPC 1.4(a), 1.5(g), 1.5(h)(1), 1.5(h)(1)(iv), and 1.15A(a).

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

»» In representing clients in multiple matters, respondent did not provide an invoice for a year, during which time significant attorney fees accrued. Within these fees, respondent also billed amounts that were unreasonable under the circumstances of the case.

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

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

Fees Issues

»» Respondent was retained by the client in 2015 for representation in a workers’ compensation matter. The client signed a contingency fee agreement that provided that respondent would be paid 20% from the “gross amount collected.” The agreement further provided that a new agreement would be negotiated if permanent total disability benefits were obtained. In 2019, the client agreed to a settlement of the claim that included a lump sum payment of $60,000, plus monthly payments in diminishing amounts, but that extended through the lifetime of the client. Respondent negotiated a settlement of respondent’s future contingency fees through a lump sum payment of $50,000 to be received from the $60,000 payment. Respondent did not advise the client in writing of the desirability of seeking the advice of independent counsel or otherwise provide such a reasonable opportunity. In June 2022, respondent recycled the client’s physical file and failed to maintain a copy of the signed contingency fee agreement.

Rules Implicated: Colo. RPC 1.5(c)(3) and 1.8(a).

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

Confidentiality of Information

»» Respondent was retained to represent the client in a domestic relations matter. Respondent filed a motion to withdraw. Respondent and the client filed several pleadings related to the motion to withdraw. In those pleadings, respondent included confidential client information.

Rules Implicated: Colo. RPC 1.6(a) and 1.16(d).

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

Criminal Act

»» Respondent was involved in a multi-vehicle accident. Laboratory blood test results for respondent indicated the presence of both ethanol at .155 g/mL BAC and alprazolam at a level of 17 ng/ml in respondent’s blood at the time of the blood draw. Respondent pleaded guilty to driving under the influence. Respondent was sentenced to 12 months of supervised probation. The court issued an order granting respondent’s motion for termination of early probation. This was respondent’s first alcohol-related conviction. Respondent completed an independent medical exam. The provider concluded it was impossible to determine if respondent has a substance use disorder. However, the provider recommended respondent be monitored for alcohol and benzodiazepines for a period of 12 months following the termination of probation.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Eighteen-month diversion agreement with conditions, including monitored sobriety, abstinence from the use of alcohol or any other mood-altering substance unless such substance was prescribed by a duly licensed Colorado physician, ethics school, 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 driving under the influence. Respondent was sentenced to 18 months of supervised probation. This was respondent’s first alcohol-related conviction. Respondent completed an independent medical examination. The provider diagnosed respondent 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 the criminal sentence, ongoing counseling, attendance at Alcoholics Anonymous or an equivalent recovery program, abstinence from the use of alcohol or any other mood-altering substance unless such substance was prescribed by a duly licensed Colorado physician, monitored sobriety, compliance with the terms of the intake diversion agreement, participation in the Colorado Lawyer’s Assistance Program (COLAP), ethics school, and payment of costs.

»» Respondent was arrested for driving while intoxicated after being pulled over for a traffic violation outside of Colorado. Respondent refused to submit to roadside sobriety tests. Respondent later pleaded guilty to driving while intoxicated and was sentenced to one year of probation, alcohol education, and other conditions. Respondent self-reported the conviction a few days beyond the deadline to report.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: One-year diversion with conditions, including ethics school, compliance with all terms and conditions in the underlying criminal matter, 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 November 1, 2022, through January 31, 2023, at the intake stage, LRC issued three private admonitions involving three matters. The PDJ approved one private admonition during this time frame.

»» Respondent failed to perform work on a client’s Rule 35(c) petition in a criminal case for several years after being appointed as alternate defense counsel. The client ultimately consented to respondent’s withdrawal from the case and retained new counsel. No actual harm resulted to the client, as the client had already been released from prison and parole at the time respondent was appointed, and the client was able to pursue his claims with the help of new counsel. Respondent experienced a number of personal and health-related issues during the representation that contributed to the neglect of the case.

Rules Implicated: Colo. RPC 1.3.

»» Respondent engaged in negligent conduct regarding fees and record-keeping/file maintenance in the representation of a criminal defendant. Respondent charged an unreasonable fee to represent the 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 the client’s request. Respondent also did not keep file materials and/or financial records, as required in the rules, and did not 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 learned that documents the client produced in discovery were backdated and created for the purpose of litigation when they purported to be contemporaneous records. Respondent failed to alert opposing counsel to the issue, trusting instead that respondent would figure out the issue on respondent’s own, which respondent did.

Rules Implicated: Colo. RPC 4.1(b).

»» Respondent, a criminal defense attorney, arranged for the transport of an inmate, who was also a victim in another criminal case, to be delayed so that he would be available as a witness for respondent’s trial. Respondent also met with the inmate/victim to discuss his transportation and sentence when he was still represented by counsel. Harm was minimal, as the inmate/victim was ultimately transported as scheduled.

Rules Implicated: Colo. RPC 8.4(d).

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