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Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

December 10, 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 August 1, 2024, through October 31, 2024, at the intake stage, Regulation Counsel entered into eight diversion agreements involving eight separate requests for investigation. LRC approved eight diversion agreements involving eight separate requests for investigation during this time frame. There was one diversion agreement submitted to the PDJ for approval. LRC issued four private admonitions 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, practice monitor, or both. 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 August 1, 2024, through October 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;
  • duties to former clients, implicating Colo. RPC 1.9;
  • 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);
  • communications with a person represented by counsel, implicating Colo. RPC 4.2;
  • ordering another lawyer to perform conduct that violates the rules of professional conduct, or knowingly ratifying the misconduct, implicating Colo. RPC 5.1;
  • 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 August 1, 2024, through October 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

>> Respondent was appointed as alternate defense counsel for an incarcerated prisoner in connection with an appeal that was pending before the Colorado Court of Appeals. Respondent sought and obtained three extensions of time to file the client’s opening brief, totaling more than 14 months. During the representation, respondent spoke once to the client by telephone and had one in-person meeting with him. Respondent did not respond to the client’s letters or requests for telephone calls; did not provide the client with copies of the pleadings and orders filed in this case or otherwise communicate with the client concerning the status of the legal matter; and did not communicate with the client about the entry of appearance of another attorney or respondent’s decision to allow that attorney to author the client’s appellate brief. This lack of communication resulted in the client attempting to make pro se filings and repeatedly writing directly to the court seeking information about his appeal.

Rules Implicated: Colo. RPC 1.3, 1.4(a), and 8.4(d).

Diversion Agreement: One-year diversion agreement with conditions, including attendance at ethics school, completion and peer-review of the Colorado Lawyer Self-Assessment Tool, review of Colorado Formal Ethics Opinion 146, and payment of costs.

 

>> Respondent was hired for a civil matter. Respondent communicated the rate and basis of the fee for the representation verbally but not in writing. The client paid a retainer. Respondent deposited the money directly into respondent’s operating account rather than the trust account. The available information reflected that most of the fee was ultimately earned. After the representation was terminated, respondent sent a check for the remaining retainer balance, but it was not initially received by the client. Respondent sent one billing statement during the four-month representation.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.5(b), 1.15A(a) and (b), and 1.15D.

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

 

>> Two siblings came to respondent’s firm in February 2021 seeking advice about their mother’s trust and placing her in a nursing home. Respondent recommended that the siblings seek guardianship of their mother and agreed to represent them in that process and in the process of removing the then-current trustee and becoming appointed co-trustees of their mother’s trust. Respondent did not provide the siblings with a written statement of the basis or rate of respondent’s fee, as required by Colo. RPC 1.5(b). Although the firm had previously provided legal advice to one of the siblings, it had not previously represented the other.

Respondent did not provide the siblings with an invoice until 17 months after the representation began. Respondent acknowledges this oversight but says respondent’s lack of familiarity with a new billing system contributed to the delay, as did respondent’s intention to delay billing until completion of much of the work in the matter. In addition, respondent states that the longtime employee who handled billing and probate matters at respondent’s then-firm passed away during that time, contributing to the firm’s failure to notify the siblings of the due date for their annual guardianship report that year. Respondent left the firm on a short time later but did not communicate the departure to the siblings.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(3), and 1.5(b).

Diversion Agreement: One-year diversion agreement with conditions, including attendance at ethics school, completion of the Colorado Lawyer Self-Assessment Tool, and payment of costs.

 

>> Respondent represented a client in a limited capacity in an employment matter and failed to confirm that the client made important edits to the facts in a complaint. Though respondent handled the matter pro bono, respondent failed to provide the client with a written statement regarding how respondent would handle costs. Though an accounting oversight, respondent technically converted $25 in costs when respondent failed to refund the unused $25 to the client at the conclusion of the representation.

Rules Implicated: Colo. RPC 1.3, 1.5(b)(1), 1.15A(a), 1.16(d).

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

 

>> A client hired respondent for adjustment of immigration status. The client’s I-360 petition should have been mailed by a date certain, but for unknown reasons, it was not mailed. Respondent did not discover the error until after the client’s 21st birthday. Respondent then filed a Motion to Dismiss Removal Proceedings based on prosecutorial discretion. This was granted, and the client is no longer subject to deportation.

Rules Implicated: Colo. RPC 1.3.

Diversion Agreement: One-year diversion agreement with conditions, including attendance at ethics school, completion of the Colorado Lawyer Self-Assessment Tool, and payment of costs.

 

>> Respondent represented a defendant in a criminal proceeding. Respondent agreed to represent the client at no cost but failed to communicate anything about the arrangement in writing. During the representation, respondent received some payments from the client. Respondent described the payments as gifts and claimed they totaled around $800. The client contested respondent’s version of events and claimed to have paid $3,000 for representation. Respondent later withdrew from the case and found substitute counsel for the client, but the lack of documentation regarding the fee arrangement or amounts paid by the client impacted the transition to new counsel.

Rules Implicated: Colo. RPC 1.4(a)(3), 1.5(b), and 1.16(d).

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

 

>> Respondent did not submit a pre-hearing statement on behalf of a client in a matter before the Office of Administrative Courts. Respondent also did not forward to a client discovery requests served by the opposing party for three months after they were first served on respondent, or otherwise inform the client of the discovery requests. Respondent also never sent the client an invoice related to fees incurred in the matter, which were billed at an hourly rate, although respondent represented the client for many years.

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

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

Fee Issues

>> Respondent was hired for a criminal matter and entered into a fee agreement with the client. The client paid the full retainer amount in two installment payments within days of each other. Respondent deposited the money directly into respondent’s operating account rather than the trust account. The available information reflected that the fee was ultimately earned, but respondent did not maintain required bank records related to the fees paid. In addition, respondent did not respond to the client’s request for an accounting.

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

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

 

>> Respondent’s firm represented a client in a domestic relations matter on an hourly-fee basis under the terms of a written fee agreement. During the representation, disputes arose regarding the amount the client had paid the firm, the remaining balance owed for the ongoing representation, and case strategy issues. The firm ultimately withdrew from representation before the case was concluded with the fee dispute unresolved. The client demanded the return of the client file, and the firm neither affirmatively asserted a valid retaining lien nor responded to the demand. Respondent subsequently filed suit against the client and sought to collect the balance of fees plus interest, a “collection fee” equal to one-third of the balance due as provided under the terms of the fee agreement, plus actual attorney fees and costs incurred on top of the one-third collection fee. The court refused to allow respondent to collect the collection fee in addition to the reasonable attorney fees and costs actually incurred.

Rules Implicated: Colo. RPC 1.5(f) and 1.16(d).

Diversion Agreement: One-year diversion agreement with conditions, including attendance at ethics school, completion and peer review of the Colorado Lawyer Self-Assessment Tool, review of fee agreement forms by OARC-approved ethics counsel, and payment of costs.

 

>> Respondent’s firm entered into a fee agreement with the client’s mother to represent the client regarding charges of felony menacing. The fee agreement contemplated representation in two phases: pretrial and trial. It contained only one benchmark for pretrial representation, which would cover “all representation prior to the filing of charges”: the entire $10,000 would be earned after the initial consultation and the filing of an Entry of Appearance, Discovery Request, and Jury Demand. For trial representation, the fee was to be calculated at $5,000 per day of trial. However, the agreement stated that said fee “is earned primarily for the work of trial preparation and not for actually conducting the trial” (emphasis in original). The paragraph addressing the fee for trial representation also included the language, “Once the trial fee is paid there will be no refunds of the trial fee under any circumstances.” Regarding flat-fee benchmarks, comment [15] to Colo. RPC 1.5 states that “the fees attributed to each event should reflect a reasonable estimate of the proportionate value of the legal services the lawyer provides in completing each designated event to the anticipated legal services to be provided on the entire matter.”

When the mother made the flat-fee payment of $10,000, it was deposited into the firm’s operating account rather than its trust account. Respondent asserts this was due to an error by a staff member who sent the incorrect link for payment to the mother. The document respondent provided to the mother as an accounting did not sufficiently indicate how her funds were earned or otherwise expended for costs.

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

Diversion Agreement: One-year diversion agreement with conditions, including attendance at ethics school, certification that respondent’s flat-fee agreement has been reviewed by OARC-approved ethics counsel, and payment of costs.

 

>> Between August 2023 and May 2024, respondent had a professional and personal relationship with an esthetician. During that relationship, the esthetician began having issues with her employer and discussed them with respondent. The esthetician’s employment was terminated in February 2024.

In April 2024, the client started her own business. Shortly thereafter, she received a cease-and-desist letter from the employer. Although respondent did not enter into a formal attorney-client relationship with the client, respondent provided her with legal advice, including advising her about whether she could contact her former employer’s clients and solicit their business based on respondent’s review of the employer’s employee handbook, telling her that her employer’s cease-and-desist letter had “zero merit,” and offering to send the employer a cease-and-desist letter on the client’s behalf. Initially, respondent did not request compensation from the client for that advice.

In May 2024, the relationship between respondent and the client deteriorated when the client was late for an appointment with respondent and, according to respondent, did not honor her stated discount. Respondent emailed an invoice for $1,251.25 to the client on respondent’s law firm letterhead and texted her that respondent expected to get paid for the legal services provided.

Respondent decided to invoice the client after the difficult appointment with her and after experiencing some personal stressful issues regarding respondent’s mother’s health. Respondent also contends that respondent called the client the day after sending the text and left her a message telling her to disregard the invoice. But the client denies receiving any such message, and neither her personal nor business phone records reflect a call from respondent’s area code. As a result of receiving respondent’s May 2024 text and the invoice, the client hired counsel to represent her regarding respondent’s invoice. Through counsel, the client informed respondent she would not pay the invoice pending this investigation, and respondent has not sought payment.

Rules Implicated: Colo. RPC 1.5(b), 1.6(a), 1.9(c), and 8.4(a).

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

 

>> Respondent and client entered into a hybrid flat-fee and contingency agreement. The fee agreement provided that the client would pay $2,500 upon entry into the agreement; $2,500 at the time of filing a motion to dismiss requiring a response, or the scheduling conference, or the date discovery began; $2,500 upon the filing of a motion for summary judgment; and $2,500 40 days before trial, regardless of whether the case went to trial. Respondent inappropriately labeled the $2,500 fees as engagement retainers. In addition, the fee agreement stated that respondent would recover a contingent fee of the greater sum of either 40% of recovery or $250 per hour. Respondent treated the initial $2,500 as earned upon receipt and deposited the funds into respondent’s personal accounts. When the client terminated representation, respondent failed to refund the $500 cost deposit in a timely manner.

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

Diversion Agreement: One-year diversion agreement with conditions, including attendance at ethics school, certification that the client’s cost retainer has been refunded, certification that respondent’s fee agreements have been reviewed by OARC-approved ethics counsel, and payment of costs.

 

>> Respondent entered into a flat-fee agreement with the clients. The agreement lacked benchmarks for when attorney fees would be earned during the representation and did not have a way to calculate the fees should representation terminate early. Respondent also shared confidential information related to the clients’ bankruptcy proceedings with third parties who had been victims of fraud by respondent’s former clients. While respondent discovered that the clients had used respondent’s services to further fraud on these third parties, the information shared went beyond what may have been reasonably necessary to prevent, mitigate, or rectify substantial injury to the financial interests or property of others that was reasonably certain to result from the clients’ commission of a crime or fraud.

Rules Implicated: Colo. RPC 1.5(h) and 1.9(c)(2).

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

Communications With a Person Represented by Counsel

>> Respondent represented a client in a criminal matter. The client’s co-defendant emailed respondent and asked to speak with respondent about the underlying case. Respondent took no action to verify whether the co-defendant was represented, though the co-defendant referenced the co-defendant’s counsel in the email. Respondent conducted a recorded telephone interview of the co-defendant, but respondent did not seek permission from the co-defendant’s counsel to interview the co-defendant. Respondent asserts that respondent did not use the recorded interview as part of the client’s defense.

Rules Implicated: Colo. RPC 4.2.

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

Directing Another Lawyer to Perform Conduct That Violates the Rules of Professional Conduct, or Knowingly Ratifying the Misconduct

>> Respondent supervised a small team of attorneys, paralegals, and legal assistants within a law firm. A client retained respondent’s firm, and respondent entered an appearance in the case and worked with the client directly before reassigning the case to an associate attorney. The case was reassigned within the firm again, causing the client to be confused about who was going to represent him at the upcoming trial. The associate attorney failed to diligently represent the client during post-trial settlement negotiations and also failed to respond to a motion for attorney fees within the deadline established by the court. Respondent was aware of the settlement negotiations and the order outlining the deadlines missed by the associate.

Rules Implicated: Colo. RPC 5.1.

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

Criminal Act

>> Respondent drove a car with respondent’s young children in the back while under the influence of alcohol. Respondent was involved in a traffic accident, but no one was hurt. Respondent refused chemical testing. Respondent pleaded guilty to driving under the influence and received a deferred judgment and sentence to one count of child abuse. Respondent completed all requirements on probation, self-enrolled in treatment, completed an independent medical examination, and participated in various sobriety groups.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Two-year and six-month diversion agreement with conditions, including attendance at ethics school, monitored sobriety, continued participation in recovery activities for alcohol addiction (including monthly certifications), and payment of costs.

Conduct Prejudicial to the Administration of Justice

>> Despite chief justice directives prohibiting the use of recording court proceedings, respondent took a photograph of a juvenile defendant during a WebEx court proceeding where the juvenile was being sentenced for an alcohol-related driving offense. Respondent then sent that picture to respondent’s teenage child to warn the child about the dangers of drinking and driving. The photograph was distributed around the teenager’s school, causing embarrassment for the juvenile defendant.

Rules Implicated: Colo. RPC 8.4(d).

Diversion Agreement: Two-year diversion agreement with conditions, including attendance at ethics school, continuing mental health counseling, and payment of costs.

Private Admonition Summaries

>> Respondent was a newer associate with a larger law firm. Respondent was assigned to work on a case previously handled by another attorney at the firm only three weeks before the case was set for trial. After the trial concluded and before a verdict was rendered, opposing counsel communicated with respondent over email with offers to settle. Respondent acknowledged receipt of the settlement proposal but did not propose a counteroffer and did not respond to subsequent emails from opposing counsel inquiring about the status of settlement. The court issued a verdict that was overwhelmingly unfavorable to respondent’s client. The court also established a timeline for opposing counsel to request attorney fees and ordered that a response was due within 14 days. Respondent missed the deadline to respond to opposing counsel’s motion for attorney fees because respondent negligently believed the court had allowed 21 days to respond.

Rules Implicated: Colo. RPC 1.3 and 1.4.

 

>> Law enforcement officers found respondent in respondent’s vehicle in a ditch. Respondent was subsequently charged and entered a guilty plea to an alcohol-related driving offense. Respondent did not report the conviction to OARC because respondent was mistaken about the obligation to do so. At the time of resolution, respondent was not in a position to participate in alcohol monitoring.

Rules Implicated: Colo. RPC 8.4(b).

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