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Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

September 15, 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 May 1, 2023, through July 31, 2023, at the intake stage, Regulation Counsel entered into 6 diversion agreements involving 6 separate requests for investigation. LRC approved 8 diversion agreements involving 9 separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval.

The types of misconduct resulting in diversion during May 1, 2023, through July 31, 2023, involved the following:

  • neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and Colo. RPC 1.4
  • fees issue, implicating Colo. RPC 1.5
  • conflict of interest, implicating Colo. RPC 1.7
  • conflict of interest with current clients, implicating Colo. RPC 1.8
  • duties to former clients, implicating Colo. RPC 1.9
  • special conflicts of interest for former and current government officers and employees, implicating Colo. RPC 1.11
  • trust account issues, implicating Colo. RPC 1.15A through 1.15E
  • declining or terminating representation, implicating Colo. RPC 1.16
  • dealing with unrepresented persons, implicating Colo. RPC 4.3
  • committing a criminal act, implicating Colo. RPC 8.4(b) and CRCP 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, testing and counseling to address underlying problems of depression, alcoholism, or other mental health issues that may be affecting the attorney’s ability to practice law.

Neglect of a Legal Matter

»» Respondent was appointed by a court to represent the mother in a dependency and neglect proceeding. While respondent was dealing with significant personal health problems and other personal family issues, respondent failed to respond to a motion for allocation of parental responsibility filed on behalf of the father of the same children. As a result, the father’s motion was granted by a magistrate judge without opposition to the detriment of respondent’s client. Respondent also failed to timely file a petition for review of the magistrate’s decision. Respondent’s subsequent efforts to obtain an extension of time to appeal or for other relief from the order were unsuccessful.

Rules Implicated: Colo. RPC 1.3.

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

»» Respondent was a new lawyer who worked at a small law firm. Respondent failed to timely enter work and time that respondent worked on cases, leaving time entry for the end of the month. Respondent failed to diligently enter time and failed to diligently maintain work product. Respondent thereby did not ensure that all clients’ interests were protected when respondent’s role on the cases ended.

Rules Implicated: Colo. RPC 1.3 and 1.16(d).

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

Trust Account Issues

»» Respondent took over representation of a client in a personal injury matter from a lawyer with another firm. When the case settled, respondent negligently relied on information from the client regarding the status of payment to a medical provider who had asserted a lien against the settlement proceeds and disbursed all proceeds without paying the dentist. Subsequently, respondent used personal funds to satisfy the lien.

Rules Implicated: Colo. RPC 1.15A(c).

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

»» Respondent believed it was appropriate to place advanced fee payments into the operating account if the fees were earned either at the time they were paid or shortly thereafter. Respondent followed this practice because the founder of respondent’s firm established it. Respondent also did not comply with a successor counsel’s request to deliver a client file for more than six months in an active case. Respondent kept the file to assert an attorney’s lien.

Rules Implicated: Colo. RPC 1.15A(a) and 1.16(d).

Diversion Agreement: Two-year diversion with conditions, including ethics school, trust account school, quarterly certification to the OARC that the attorney is using the firm’s timekeeping and bookkeeping software appropriately to manage funds, and payment of costs.

Dealing With Unrepresented Persons

»» Respondent represented a company that was managing a marijuana grow operation for a grower. The managing company wanted to move forward with a storage solution on the grower’s property, and respondent served as the point of contact for communications with the county. In the process, respondent gave legal advice to the grower even though there was a reasonable possibility respondent’s client’s interests could come into conflict with the grower’s interests.

Rules Implicated: Colo. RPC 4.3.

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

Criminal Act

»» Respondent was arrested on suspicion of DUI after respondent made an illegal U-turn and failed voluntary roadside maneuvers. Respondent submitted to a breath test, which resulted in a .163 BAC. Respondent later pleaded guilty to DWAI and was sentenced to five days in jail, suspended upon completion of a 12-month probation, with other conditions, including alcohol/substance abuse evaluation, substance abuse monitoring at the discretion of probation, a MADD panel, and fees/costs. Respondent self-reported the conviction a few days after the deadline for reporting.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Eighteen-month diversion 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, successful completion of ethics school, contact with COLAP, and payment of costs.

»» Respondent was arrested on suspicion of DUI after being pulled over for a traffic violation. Respondent failed voluntary roadside maneuvers and refused to submit to a blood test. Respondent later pleaded guilty to driving under the influence and was sentenced to one year of supervised probation, 24 hours of public service, substance abuse evaluation, a MADD impact panel, and no consumption of alcohol. 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 compliance with the terms of respondent’s criminal sentence, successful completion of ethics school, and payment of costs.

»» Respondent was arrested while vacationing outside Colorado for DWI (operating a motor vehicle under the influence of alcohol) after respondent was stopped by patrol officers for failing to have registration tabs on the boat respondent was driving. Respondent was taken to jail, where respondent underwent a breathalyzer test which registered BAC at .21. Respondent pleaded guilty to DWI and was sentenced to 90 days in jail (80 days stayed for two years), two years supervised probation, substance abuse evaluation, a MADD impact panel, and fines/costs.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: One-year diversion with conditions, including compliance with the terms of respondent’s criminal sentence, successful completion of ethics school, contact with COLAP, and payment of costs.

»» Respondent was involved in a single-car rollover crash. The responding police officer suspected respondent was under the influence of alcohol. Respondent refused roadside sobriety testing and declined blood or breath alcohol testing. Respondent later pleaded guilty to driving under the influence of alcohol.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: One-year diversion with conditions, including compliance with the terms of respondent’s criminal disposition, reporting results of sobriety monitoring through respondent’s criminal case, successful completion of ethics school, and payment of costs.

Private Admonition Summaries

Pursuant to the ABA Standards for Imposing lawyer Sanctions (ABA Standards), private admonition is the least serious of the formal disciplinary sanctions. Pursuant to ABA Standards § 2.6, private admonition “is a form of non-public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer’s right to practice.”

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, 2023, through July 31, 2023, at the intake stage, LRC issued 8 private admonitions involving 11 matters. The PDJ approved no private admonitions during this time frame.

The types of misconduct resulting in private admonition during May 1, 2023, through July 31, 2023, generally involved the following:

  • scope of representation, implicating Colo. RPC 1.2
  • neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and Colo. RPC 1.4
  • fees issue, implicating Colo. RPC 1.5
  • trust account issues, implicating Colo. RPC 1.15A through 1.15E
  • client conflict, implicating Colo. RPC 1.8
  • supervision of nonlawyer assistants, implicating Colo. RPC 5.3
  • committing a criminal act, implicating Colo. RPC 8.4(b)
  • conduct prejudicial to administration of justice, implicating Colo. RPC 8.4.

»» Respondent resolved a deceased client’s personal injury claim at an amount that the client had not authorized before passing away. Respondent accepted a settlement check in the unauthorized amount but later returned the settlement funds when instructed to do so by the insurance company.

Rules Implicated: Colo. RPC 1.2(a).

»» Respondent represented a client in conjunction with a set of patent applications. Respondent failed to include benchmarks in the fee agreement and failed to file a supplemental document with one of the applications as promised. Respondent deposited fees into respondent’s operating account before they were earned, though they were earned shortly after the deposit. Respondent attempted to limit the client’s ability to file an ethics or malpractice claim in a draft settlement agreement, but the client declined to enter into the proposed agreement.

Rules Implicated: Colo. RPC 1.3, 1.5(h), 1.15A(a), 1.8(h)(1), 8.4(a), and 8.4(d).

»» Respondent agreed to take over several immigration clients for a fellow attorney who was about to begin a disciplinary suspension. Respondent thereafter hired the suspended attorney to work as a paralegal in respondent’s office. Although the suspended attorney told respondent his former client had consented to respondent’s representation, the client actually did not consent and was surprised to learn at his hearing that respondent would be representing the client. Respondent failed to provide the client with the basis or rate of respondent’s fee and thereafter failed to communicate with the client about the work permit, because respondent believed the suspended lawyer (now paralegal) had completed the work permit. Respondent failed to keep an accounting of payments from the client.

Rules Implicated: Colo. RPC 1.4(a), 1.5(b), 1.15D, and 5.3.

»» Respondent entered into a flat-fee agreement to represent a client in a criminal matter. Though the agreement was a flat-fee agreement, it did not contain all of the provisions required by Colo. RPC 1.5(h) and, specifically, did not contain any benchmarks outlining when client funds were earned. During the representation, respondent deposited client funds into respondent’s operating account instead of a client trust account. Respondent transferred these funds to respondent’s personal account before the matter was concluded.

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

»» Respondent represented a criminal defendant after respondent was hired by the defendant’s father. Respondent never presented the defendant with a fee agreement, nor did respondent receive the defendant’s informed consent for his father’s payment for the representation.

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

»» Respondent represented a client in immigration proceedings. Respondent treated $750 of his fees as earned, though respondent never completed the related work. Respondent also failed to diligently represent the client, allowing the matter to languish for over a year.

Rules Implicated: Colo. RPC 1.15A and 1.3.

»» Several decades ago, respondent instituted a practice of placing advance, unearned client funds into the firm’s operating account, which became a firmwide practice. Respondent was not aware that the Colorado Rules of Professional Conduct do not permit advance fees to be handled this way. Respondent and respondent’s firm changed the practice once learning it was inappropriate.

Rules Implicated: Colo. RPC 1.15A.

»» Respondent had management responsibilities at a law firm. Respondent allowed the firm to place advance, unearned client funds into the firm’s operating account. Respondent was unaware that the practice was impermissible and noted often that respondent’s fees were partially earned at or near the time of payment based on respondent’s management of cases. Respondent and respondent’s firm changed the practice once learning it was inappropriate.

Rules Implicated: Colo. RPC 1.15A.

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