Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

November 1, 2024

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 May 1, 2024, through July 31, 2024, at the intake stage, Regulation Counsel entered into 4 diversion agreements involving 4 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. LRC issued 4 private admonitions during this time frame. The PDJ approved 1 private admonition 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
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 May 1, 2024, through July 31, 2024, generally involved the following:

neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4;
fee 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;
failure to comply with a court order or the rules of a tribunal, implicating Colo. RPC 3.4(c);
withdrawal of legal representation, implicating Colo. RPC 1.16(d);
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 May 1, 2024, through July 31, 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.

Neglect of a Matter and/or Failure to Communicate

>> In September 2023, respondent was engaged to prepare a premarital agreement on an urgent basis. The document was not completed and finalized until April 2024, some five months following the client’s marriage. Respondent failed to reasonably communicate with the client and opposing counsel during the representation. Respondent acknowledged in April that respondent owed the client a refund of unearned fees, but respondent believed the funds had been returned. However, respondent did not return the unearned fees until December 2024, after this request for investigation was commenced.

Rules Implicated: Colo. RPC 1.3, 1.4(a), 1.15C(c), and 1.16(d).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of trust account school, completion and peer-review of the Colorado Lawyer Self-Assessment Tool, and payment of costs.

>> Respondent represented a client after the client was injured in a car accident. Respondent stopped working on the case and stopped communicating with the client. Respondent also did not fully cooperate in providing the file to the client or subsequent counsel. Respondent had significant personal and emotional issues.

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

Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of ethics school, verification of mental health treatment, and quarterly verifications from respondent’s treatment provider throughout the length of the diversion agreement and costs.

>> On August 3, 2023, respondent was retained to (1) represent the client in a civil protection order case and (2) address the client’s concerns about the county’s failure to enforce its building codes and issue violations regarding same. Although respondent states that respondent provided the client with a copy of respondent’s flat-fee agreement, respondent did not retain a copy of it, and the client denies receiving anything in writing from respondent regarding the basis or rate of respondent’s fee. Also, despite characterizing the fee as a flat fee, respondent calculated the fee on an hourly basis. Respondent did not provide the client with any billing statements or explanation of how respondent earned the client’s funds during the representation.

After the protection order case was resolved in mid-August 2023 and through December 6, 2023, the client reached out to respondent by email and text, but often did not receive a response. Respondent denies receiving the emails but also says respondent was out sick on and off for several weeks and working on and off from home. Respondent contends that respondent attempted to set up a phone call or meeting with the appropriate representative of the county code enforcement division several times without success.

Per respondent’s Case Activity Register, respondent is unable to provide the dates on which the calls were made. The client sent a final text to respondent on December 6, 2023, inquiring if there was any progress in getting a meeting scheduled with the county. Respondent did not respond. Respondent denies receiving the text but says by that date, respondent had already sent the client a final statement and a $3,000 check for a full refund on the county matter after their telephone call on November 8, 2023, because respondent was unable to get anything accomplished for the client. The client did not receive either the final statement or check, and respondent did not keep a copy of the check that was sent.

The client contacted OARC in February 2024 because the client had not heard from respondent since November 2023. Respondent did not discover that the client had not cashed the refund check until respondent received a copy of the request for investigation in March 2024. At that point, respondent issued a stop payment on the original check and issued a second refund check to the client, which has since been cashed.

Rules Implicated: Colo. RPC 1.4 (a)(3), 1.5(b), 1.15C(c), and 1.15D(a)(2) and (3).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, in-person attendance at a program on law practice management approved by OARC, and payment of costs.

>> Respondent was hired to represent a client in the revocation of a felony deferred sentence. The fee agreement was for a flat fee of $1,500 and contained a provision that $200 was earned upon retention. Respondent learned that the underlying basis of the revocation was a new misdemeanor case. Respondent sent a second fee agreement to his client for the misdemeanor case. The client denies receiving the second fee agreement. The second fee agreement was for a flat fee of $2,000 and contained a provision that $200 was earned upon retention. While the second fee agreement contained benchmarks, the included benchmarks added up to $3,000 rather than $2,000. Respondent mistakenly sent the client a thumb drive containing the discovery for a different client’s case. When respondent realized the error, respondent attempted to recover the thumb drive and disclosed to the second client that the discovery had been shared with a different client.

Rules Implicated: Colo. RPC 1.4, 1.5(f), and 1.6(a).

Fee Issues

>> Respondent presented clients with a flat-fee agreement that did not have benchmarks or a method of calculating the respondent’s fee if the representation terminated before the final task described in the fee agreement. Respondent subsequently withdrew from trust certain of the funds paid pursuant to the agreement after some work had been performed in the case but before the final task specified in the agreement had been completed. In addition, and in the same representation, respondent undertook to represent two parties where there was a significant risk that respondent’s representation of one party would be adverse to another party.

Rules Implicated: Colo. RPC 1.5(f), 1.7(a)(2), and 1.15A(a).

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

Conflict of Interest

>> Respondent began representing a spouse in a divorce case where respondent’s firm had represented both spouses and their closely held corporations in the past. Respondent negligently relied on assurances by the attorney primarily responsible for the past representations that the representation of the spouse in the divorce case would not conflict with any prior or current work. In reality, the firm’s attorney-client relationship with the other spouse had not terminated, and respondent’s representation in the divorce matter was conflicted.

Rules Implicated: Colo. RPC 1.7(a)(1).

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

>> Respondent billed a client for the use of an in-house electronic discovery management system without fully disclosing to the client respondent’s ownership interest in the system.

Rules Implicated: Colo. RPC 1.7(a)(2).

Diversion Agreement: Two-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

>> In one judicial district, the chief judge issued a civility order applicable to all counsel appearing in proceedings in that judicial district. In one of respondent’s cases, the court issued an order finding that communication between respondent and other parties had completely broken down to the point of each accusing the other of behavior that, if true, would violate the judicial district’s civility order. In another matter, respondent sent a communication to opposing counsel that constituted personal attacks against him and expressed personal opinions about opposing counsel that denigrated his dignity.

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.

Assisting Another in the Unauthorized Practice of Law/ Multijurisdictional Practice of Law

>> Respondent represented two clients with respect to their ownership interests in two rental properties in 2023. Respondent modified respondent’s license status to “inactive” in February 2024 in anticipation of retirement. After transferring respondent’s license to inactive status, respondent performed additional legal work for these clients and collected legal fees from them. Respondent returned respondent’s license to active status in April 2024 and returned the fees collected for legal work performed while on inactive status.

Rules Implicated: Colo. RPC 5.5(a)(1).

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

Criminal Act

>> Respondent was cited for following a vehicle and, after the vehicle pulled over, telling the driver and passengers that they better watch out. Respondent was cited with harassment and later entered a deferred judgment to harassment.

Rules Implicated: Colo. RPC 8.4(b).

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

Conduct Prejudicial to the Administration of Justice

>> Respondent experienced a panic attack during a break in a court hearing and self-medicated with alcohol. When the hearing resumed, parties and the court recognized signs of alcohol consumption and continued the hearing. Respondent suffers from anxiety and depression and has continued treatment with a mental health professional.

Rules Implicated: Colo. RPC 8.4(d).

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

Private Admonition Summaries

>> Respondent failed to respond to a motion in a civil case and later did not respond to a motion to dismiss one of respondent’s clients’ claims. As the case progressed, respondent did not attend a telephonic case management conference, did not respond to an order seeking a response after the court continued the case management conference, and did not appear at the continued case management conference. Thereafter, respondent responded to an order to show cause and resumed participation in the case. Separately, respondent pleaded guilty to trespass, a petty offense, in an altercation with a neighbor.

Rules Implicated: Colo. RPC 1.3 and 8.4(b).

>> Respondent represented a party in a domestic relations matter. After final orders were issued, respondent failed to respond to communications from opposing counsel regarding distribution of a retirement account and other required payments. Respondent also failed to respond to client communications about financial matters for two and a half weeks. When respondent did speak to the client, respondent provided inaccurate information about the status of the case. After that communication, respondent failed to provide requested information to the client or to correct respondent’s misrepresentation to the client.

Rules Implicated: Colo. RPC 1.4(a)(4) and 8.4(c).

>> Respondent pleaded guilty to driving under the influence of alcohol, a misdemeanor offense, after crashing respondent’s vehicle into the back of another vehicle. Respondent promptly reported the misdemeanor conviction to OARC and successfully completed the terms of respondent’s criminal sentence.

Rules Implicated: Colo. RPC 8.4(b).

>> Respondent self-reported a driving under the influence conviction from out of state. Respondent hit a parked car and then was found slumped over with a bottle of wine in respondent’s lap. Respondent was unable to get out of the car, so no standard field sobriety tests were conducted. A blood test was administered, but no results were provided. Respondent pleaded no contest to driving while intoxicated as a first offense and was sentenced to 30 days in jail (all suspended) and 12 months of probation. Respondent enrolled in in-patient treatment but was not interested in completing an independent medical evaluation through OARC. Respondent was therefore not considered for diversion.

Rules Implicated: Colo. RPC 8.4(b).

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