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Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

June 17, 2024

Summaries of diversion agreements and private admonitions are published on a quarterly basis. They are supplied by the Colorado Supreme Court Office of Attorney Regulation Counsel.

Diversion and Private Admonition Summaries

Diversion is an alternative to discipline. See CRCP 242.17. Pursuant to the rule 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.

From February 1, 2024, through April 30, 2024, at the intake stage, Regulation Counsel entered into eight diversion agreements involving eight separate requests for investigation. LRC approved 10 diversion agreements involving 12 separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval. LRC issued one private admonition during this time frame. The PDJ approved no private admonitions during this time frame.

Determining Whether Diversion Is Appropriate

Regulation Counsel reviews the following factors to determine if diversion is appropriate: (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.

Generally, 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 will not be diverted under the rule. CRCP 242.17(b)(6). Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion. See CRCP 242.17(b).

Purpose of the Diversion Agreement

The purpose of a diversion agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. Furthermore, the diversion agreement 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. The time period for a diversion agreement is generally no less than one year nor 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 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 Tool (online self-assessment)
  • restitution
  • payment of costs
  • mental health evaluation and treatment
  • substance abuse testing
  • attendance at continuing legal education (CLE) courses
  • any other conditions that would be determined appropriate for the type of misconduct.

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 242.43(d). If Regulation Counsel has reason to believe that the attorney has breached the diversion agreement, then Regulation Counsel must follow the steps provided in CRCP 242.17 before an agreement can be revoked.

Types of Misconduct

The types of misconduct resulting in diversion from February 1, 2024, through April 30, 2024, generally involved the following:

  • lack of competence, implicating Colo. RPC 1.1;
  • scope of representation, implicating Colo. RPC 1.2
  • neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4;
  • fees issues, implicating Colo. RPC 1.5;
  • confidentiality of information, implicating Colo. RPC 1.6;
  • conflict of interest, implicating Colo. RPC 1.7;
  • trust account issues, implicating Colo. RPC 1.15A through 1.15E;
  • bringing a meritorious claim and contention, implicating Colo. RPC 3.1;
  • failure to comply with a court order or the rules of a tribunal, implicating Colo. RPC 3.4(c);
  • communications with a person represented by counsel, implicating Colo. RPC 4.2;
  • a lawyer’s responsibility for another lawyer’s violation of the Colorado Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved, implicating Colo. RPC 5.1;
  • assisting another in the unauthorized practice of law/multijurisdictional practice of law, implicating Colo. RPC 5.5;
  • committing a criminal act, implicating Colo. RPC 8.4(b); and
  • conduct prejudicial to the administration of justice, implicating Colo. RPC 8.4(d).

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.

Diversion Summaries

Below are summaries of some of the Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct from February 1, 2024, through April 30, 2024. The sample gives a general description of the misconduct, the Colorado Rules of Professional Conduct implicated, and the corresponding conditions of the diversion agreement.

Lack of Competence 

>> Respondent was representing a plaintiff in a civil case for injuries allegedly resulting from mold exposure in a residential tenancy. Because respondent failed to provide a timely and complete statement of the expert’s opinions and the basis and reasons therefore, the trial court precluded from the trial all testimony from the plaintiff’s treating physician. The plaintiff lost at trial and appealed certain of the trial court’s rulings. The decision to exclude this evidence was upheld on appeal. The trial court awarded substantial monetary sanctions in favor of the defense and against respondent and client, finding that certain aspects of the plaintiff’s case had been frivolous and groundless. Respondent unsuccessfully appealed this award of sanctions.

Rules Implicated: Colo. RPC 1.1, 1.3, and 8.4(d).

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

>> Respondent contacted a protected person (“A”) by text message in violation of a civil protection order that prevented any contact of A by J (respondent’s friend) and/or any third party acting on their behalf. In a text message sent to A from respondent’s cell phone, respondent claimed to be an attorney representing J. J denies that respondent was ever J’s attorney. Respondent was aware of, but did not review, the protective order prior to allowing the text message to be sent from respondent’s telephone. In the text message sent to A from respondent’s phone, respondent provided A with erroneous information about the terms and conditions of the protective order. Respondent did not respond to a text message from A asking for respondent’s name and attorney registration number and did not respond to a follow-up message from the attorney representing A’s legal guardian.

Rules Implicated: Colo. RPC 1.1, 3.4(c), 4.2, and 8.4(c).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, completion of three approved continuing legal education credits, and payment of costs.

Scope of Representation

>> An employee was injured on the job, and his employer contested that the job-related accident caused certain of the injuries for which the employee was seeking compensation. The employee engaged respondent’s firm to represent him in his workers’ compensation claim. The employee wished to contest the employer’s initial final admission of liability (FAL), and an independent medical evaluation was obtained with respondent’s assistance. After that evaluation was completed, the employer then issued another FAL with an impairment rating related solely to injuries caused to the employee’s ankle. Because the employee also wanted compensation for back injuries, he requested that respondent seek a hearing before the administrative law judge (ALJ). Respondent disagreed with this approach and filed a notice to withdraw. The respondent attached to that motion various unredacted, confidential email communications exchanged between respondent and the employee related to the case and made disparaging comments about the employee in the motion. While the motion to withdraw was pending, the deadline for filing an objection to the impairment rating expired with no objection having been lodged by respondent. The ALJ declined to allow the respondent to withdraw due to deficiencies in the withdrawal pleading. Respondent filed a second motion to withdraw, again attaching unredacted, confidential email communications exchanged between respondent and the employee related to the case and again made disparaging comments about the employee in the motion. While that second motion was pending, another FAL was issued by the employer. Neither the respondent nor the employee filed a timely contest of that FAL. Respondent was eventually permitted to withdraw. The employee sought a hearing to contest the FAL. The employer sought dismissal due to the employee’s failure to timely contest it. Although the employee argued that any such failure was attributable to the respondent, the ALJ granted the employer’s motion to dismiss, foreclosing the employee’s recovery for his work-related back injuries.

Rules Implicated: Colo. RPC 1.2, 1.3, 1.4, and 1.6.

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

Neglect of a Matter and/or Failure to Communicate

>> Respondent was engaged to defend a limited liability company in a civil lawsuit. After the client lost at trial, respondent agreed to appeal the adverse trial court decision to the Colorado Court of Appeals. Respondent personally lodged a notice of appeal in the trial court within the permitted time frame for appeal. Due to inadvertence, the respondent failed to timely file the notice of appeal in the court of appeals. When respondent realized this error, respondent filed the notice with the court of appeals, but that filing was beyond the permitted deadline. Respondent failed to advise the client of the missed filing deadline in the appellate court. The court of appeals issued a show cause order for dismissal on the grounds that the appeal was untimely. Without advising the client of the issuance of this order, respondent filed a response arguing that this filing of the notice of appeal in the trial court was the substantial equivalent of what was legally required. The court of appeals disagreed and dismissed the appeal as untimely, which resulted in the client losing appellate rights in the underlying matter. While the show cause order was pending, and in response to the client’s request for a status update, respondent failed to advise the client about the delinquent filing with the court of appeals and the issuance of the show cause order. Following the dismissal of the appeal, respondent sent the client a bill for services rendered, including more than $1,000 in fees related to the dismissed appeal. Respondent has since agreed not to collect any such fees from the client.

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

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

>> Respondent was hired to assist a client with filing motions to modify parenting time and decision-making in the client’s domestic relations case. Respondent drafted a proposal for modifications and sent it to opposing counsel. After two weeks without a response from opposing counsel, respondent indicated to the client that respondent intended to file the motions that evening. Respondent did not file the motions for approximately six months. The client repeatedly asked about mediation before the motions were filed. Respondent failed to clarify that no mediation order had been entered because the motions were not filed. After a hearing on the motions, the court awarded attorney fees and costs to the opposing party, finding that the motions lacked substantial justification and involved groundless claims. Respondent generated two invoices over the 18 months respondent represented the client. When respondent was asked to withdraw, respondent failed to file the requisite notice of withdrawal with the court in a timely manner.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(2), (3) and (4), 1.15C(c), 1.16(c), and 3.1.

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

>> In three cases, respondent failed to timely provide disclosures and/or failed to ensure that respondent’s staff timely provided discovery to the other party.

Rules Implicated: Colo. RPC 1.3.

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

>> Respondent represented a client in a civil action while one of respondent’s colleagues represented the client in a related criminal action. Respondent failed to timely send the client invoices. When the client fell behind on payments, respondent proposed, with the assistance of ethics counsel, converting the client’s hourly fee in the civil matter to a nonrefundable contingency fee. Under respondent’s direction, the firm also transferred a portion of the flat criminal fee to the firm’s operating account before it was earned, though it was eventually earned.

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

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

>> A client hired respondent’s firm to represent her in a domestic relations matter pursuant to a written fee agreement that required, inter alia, the payment of a fixed monthly “subscription” fee each month, in advance, during the course of the representation. These advanced monthly fees were not held in trust by respondent. This fee agreement allowed the collection of the fixed monthly fee in months during which little or no work was performed. The fee agreement provided that fees were nonrefundable and earned upon receipt. The fee agreement also expressly limited clients’ communication to “brief and infrequent” contact with their attorney. Respondent’s firm did not timely provide a requested accounting to the client’s representative.

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

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, certification that respondent’s fee agreements have been reviewed by OARC-approved ethics counsel, and payment of costs.

Imputation of Conflicts of Interest

>> Respondent represented the petitioner in a domestic relations case. At that time, an intervenor in the case was represented by another attorney. Respondent, who was related to the intervenor, was also represented by counsel. During the pendency of the case, respondent left the firm and accepted employment by the firm representing the intervenor. Prior to respondent’s new employment, the firm representing the intervenor withdrew from the representation. Respondent continued representing the petitioner at the new firm even though the firm had previously represented the intervenor in the exact same case. The firm did not notify the intervenor, its former client, that the firm was now representing petitioner in the case or obtain written informed consent to the conflict of interest in the representation of petitioner.

Rules Implicated: Colo. RPC 1.10(a).

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 the local government in dependency and neglect proceedings. The local court system had issued a civility order applicable to all counsel in proceedings in that jurisdiction. The civility order prohibited aggressive tactics, personal attacks, statements meant to disparage another person, harassment, and threats to intimidate another person or entity. While acting in an official capacity, respondent sent an aggressive email to an attorney representing a party in the case. The email referred to a party and the attorney in a disparaging and disrespectful manner in violation of the civility order. Respondent also sent emails to other attorneys disparaging the attorneys and their clients in other matters. Respondent also disparaged a party in a court proceeding.

Rules Implicated: Colo. RPC 3.4(c).

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

>> Respondent represented the local government in dependency and neglect proceedings. The local court system had issued a civility order applicable to all counsel in proceedings in that jurisdiction. The civility order prohibited aggressive tactics, personal attacks, statements meant to disparage another person, harassment, and threats to intimidate another person or entity. While acting in an official capacity, respondent was found to be overwhelmed with a desire to thwart the opposing party to the detriment of the parties in the case. Respondent also accused the other party of conduct violating of the civility order.

Rules Implicated: Colo. RPC 3.4(c).

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

>> The local court system had issued a civility order applicable to all counsel in proceedings in that jurisdiction. The civility order prohibited aggressive tactics, personal attacks, statements meant to disparage another person, harassment, and threats to intimidate another person or entity. While acting in a representative capacity, respondent made a derogatory statement against an attorney in the proceeding that violated the civility order. In another proceeding, respondent was admonished for making derogatory comments about case workers in a court proceeding.

Rules Implicated: Colo. RPC 3.4(c).

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

Criminal Act

>> Respondent drank vodka before driving to work and had also drunk heavily the night prior. Another employee who spoke with respondent after respondent arrived at work believed respondent was under the influence and called the police. Officers responded to respondent’s office and administered field sobriety tests, after which they arrested respondent for driving under the influence. Respondent submitted to a blood test, which revealed a blood alcohol level of 0.163 g/100 mL. Respondent’s employment was terminated as a result of respondent’s arrest. Respondent pleaded guilty to driving while ability impaired and was sentenced to 180 days in jail, all of which was suspended; two years of probation; alcohol education and therapy as determined by an alcohol evaluation (later determined to be Level II education and Track B enhanced therapy); attendance at a victim impact panel; 24 hours of community service; monitored sobriety via random urine drug screens; and payment of fines and costs. This was respondent’s first alcohol-related conviction. Respondent acknowledges having a problem with alcohol. Respondent had been trying to get sober for several months prior to the arrest but suffered multiple relapses. Respondent continues to see a therapist who is a certified addiction specialist and to attend recovery meetings. Respondent also voluntarily completed an independent medical examination pursuant to which respondent was diagnosed with alcohol use disorder in early remission in a controlled environment, as well as major depression, recurrent, moderate, in partial remission and generalized anxiety disorder.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Three-year diversion agreement with conditions, including compliance with the terms of the criminal sentence, alcohol monitoring, continued therapy and attendance at peer support group meetings, attendance at ethics school, and payment of costs.

>> The vehicle respondent was driving was stopped for weaving. Respondent failed roadside maneuvers and refused chemical testing. Respondent was arrested and charged with, inter alia, driving under the influence of alcohol. Respondent pleaded guilty to a deferred judgment of driving while ability impaired by alcohol. As part of the sentence, respondent was required to complete Level II education, perform 24 hours of useful community service, and abstain from alcohol throughout the duration of the 12-month probation. This was respondent’s first alcohol-related conviction. Respondent voluntarily completed an independent medical examination with a licensed psychologist who did not diagnose respondent with any alcohol or substance use disorder.

Rules Implicated: Colo. RPC 8.4(b).

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

>> Respondent was pulled over for a failure to come to a complete stop, a non-functioning taillight, expired license plates, and weaving. Respondent was arrested for suspicion of driving under the influence and refused a blood or breath test. Respondent pleaded guilty to expired license plates and to a deferred judgment to driving under the influence and was sentenced to unsupervised probation. Respondent did not meet the criteria for a substance use disorder, and evidence reflected that respondent’s drinking was caused, in part, by an underlying mental health disorder.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of ethics school and compliance with the terms of the related criminal probation.

Conduct Prejudicial to the Administration of Justice

>> The firm at which respondent is employed was hired to represent a business client in litigation with its insurance company. While serving as co-counsel with a senior attorney at respondent’s firm in this matter, respondent was negligent in performing a conflicts check regarding an appraiser selected by the firm’s client to provide an independent estimate of damages as required by a court order. After judgment entered in favor of respondent’s client, the conflict of interest came to light. After further litigation and a hearing, the court dismissed the matter based on a finding that the appraiser was not an independent appraiser as ordered, and sanctioned respondent and co-counsel on the case, even though respondent was not lead counsel.

Rules Implicated: Colo. RPC 8.4(d).

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

Private Admonition Summaries

>> Respondent represented a client for several years in multiple unrelated legal matters. In one matter, respondent failed to record settlement payments in a client ledger or deposit the funds into his COLTAF account. Respondent also utilized the COLTAF account to hold and disburse personal funds for six months.

Rules Implicated: Colo. RPC 1.15A(a), I.15B(h), and 1.15D.

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