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Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

November 1, 2024, through January 31, 2025

February 28, 2025

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 November 1, 2024, through January 31, 2025, at the intake stage, Regulation Counsel entered into 9 diversion agreements involving 12 separate requests for investigation. LRC approved 3 diversion agreements involving 3 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, 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 November 1, 2024, through January 31, 2025, 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);
  • committing a criminal act, implicating Colo. RPC 8.4(b);
  • conduct prejudicial to the administration of justice, implicating Colo. RPC 8.4(d); 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 November 1, 2024, through January 31, 2025. 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

▶ Despite receiving multiple extensions of time to do so, respondent failed to timely file two of respondent’s client’s supplemental petitions for post-conviction relief; failed to reasonably communicate with these clients about the status of their matters; failed to timely advise one of the clients of the denial of their petition; and failed to timely advise that same client of their appellate rights and remedies before the appeal deadline passed.

Rules Implicated: Colo. RPC 1.3 and 1.4(a)(3) and (4).

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

▶ A client hired respondent to represent her in a boundary line dispute. A civil action was filed, the matter was resolved by agreement in mediation, and the parties signed a written settlement agreement. The court was informed that a settlement had been reached, and the trial was vacated. Several months after settlement was reached, respondent sought to withdraw. At the time of the withdrawal, the settlement agreement was not lodged with the court, its terms and conditions had not been entered as court orders, and the opposing party had not fully performed the terms of the agreement. Respondent and the client had a dispute over respondent’s bill for legal services. Pursuant to their fee agreement, the parties submitted their fee dispute to binding arbitration by the CBA Fee Arbitration Committee. Respondent signed an agreement to arbitrate, agreeing to be bound by the committee’s rules, which specifically provide that “[a]ttorney fees, expert fees, and costs incurred in preparation for, or participation in, the hearing are not included and shall be waived.” After receiving an award of fees through arbitration related to the underlying civil case, respondent’s law firm filed a separate collection suit against the client seeking to recover fees, expert fees, and costs associated with the arbitration proceedings. Respondent’s law firm obtained a judgment against the former client for these fees and costs and began taking steps to collect the judgment. After this investigation was commenced, respondent voluntarily set aside the civil judgement for the collection fees and costs.

Rules Implicated: Colo. RPC 1.3, 1.16(d), 3.1, and 8.4(d).

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

▶ Respondent represented a client in a post-decree domestic relations matter. Respondent delayed more than two years in complying with a court order to submit an affidavit of attorney fees and costs that were to be awarded to respondent’s client; delayed nine months in crediting the client with funds held in respondent’s trust account on the client’s behalf; delayed more than year in filing a motion to withdraw after being directed by respondent’s client to do so; and failed to reasonably communicate with this client concerning the status of the legal matter for almost one year.

Rules Implicated: Colo. RPC 1.3, 1.4(a), 1.16(a)(3), and 3.4(c).

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

▶ Respondent agreed to represent a husband and a wife during their amicable legal separation. Respondent failed to communicate and/or complete legal services and delayed refunding fees to the clients.

Rules Implicated: Colo. RPC 1.3, l.4(a)(3) and (4), l.5(f), l.7(b)(3), and l.15A(b).

Diversion Agreement: Two-year diversion agreement with conditions, including a practice audit, attendance at ethics school, continued mental health therapy, and payment of costs.

Fee Issues

▶ Respondent entered into a flat-fee agreement with a client for representation in a criminal case. Respondent contended that the entirety of the fee was earned under the benchmarks in respondent’s flat-fee agreement within approximately two months after representation began. The client disagreed. The client terminated respondent approximately 11.5 months after the representation began. Thereafter, pursuant to an agreement reached between respondent and the client, respondent returned approximately half of the fee to the client.

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

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, review of the fee agreement by an attorney approved by the Office of Attorney Regulation Counsel, and payment of costs.

▶ Respondent executed a fee-sharing agreement with co-counsel for representation of a client in a civil dispute. The client had a contingency fee agreement with co-counsel that permitted the attorneys to recover 40% of any award at trial or via settlement. After lengthy court proceedings, respondent and the client extended a settlement offer to the opposing party, which was accepted. After the offer was extended, respondent drafted a new contingency fee agreement under which respondent would recover 80% of the settlement proceeds. The client refused to sign it. Respondent then asked the client to split the settlement proceeds 50/50. The client declined. Respondent filed a motion and an attorney’s lien in the district court requesting an award of 50% to 80% of the settlement proceeds. The court denied the motion.

Rules Implicated: Colo. RPC 1.5(a), 1.5(c)(1), and 1.7(a)(2).

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

▶ A client hired respondent’s law firm to represent her in a boundary line dispute with a neighbor. The parties’ written fee agreement did not contain a provision allowing the law firm to charge interest on unpaid balances. During the course of the litigation, the law firm repeatedly invoiced the client for interest on unpaid balances. Additionally, the law firm billed the client for some of its staff time associated with responding to this disciplinary investigation. After the client requested a disciplinary investigation against one of the law firm’s attorneys, the law firm deducted these charges from the client’s account. The client disputed a portion of the law firm’s bill for legal services. Pursuant to their fee agreement, the parties submitted their fee dispute to binding arbitration by the CBA Fee Arbitration Committee and agreed to be bound by the committee’s rules. Article II of these rules specifically provides that “[a]ttorney fees, expert fees, and costs incurred in preparation for, or participation in, the hearing are not included and shall be waived.” After receiving an award of fees through arbitration related to the underlying civil case, respondent’s law firm filed a separate collection suit against the client seeking to recover their fees, expert fees, and costs associated with the arbitration proceedings. Respondent’s law firm obtained a judgment against the former client for these fees and costs and began taking steps to collect the judgment. After this investigation was commenced, respondent voluntarily set aside the civil judgement for collection fees and costs.

Rules Implicated: Colo. RPC 1.5(a), 3.1, and 8.4(d).

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

▶ Respondent represented a client for estate planning. Respondent and the client entered into a flat-fee agreement. Respondent’s fee agreement stated that the arrangement would convert to hourly billing if the signing ceremony did not take place within 90 days of the date the completed documents were mailed to the client. The client’s condition changed, necessitating respondent’s travel to the client’s home for the signing ceremony. Respondent converted to hourly billing when respondent determined the need to travel to the client’s residence, even though it had been less than 90 days since the finalized documents were mailed to the client. In a different matter, respondent was retained for estate planning. The fee agreement contained a provision that if a client was issued a refund check that the client failed to negotiate within six months of issuance, then respondent’s firm would remit the funds to the Colorado Attorney General and charge a one-time administrative fee of $250 to the client. The client was also charged a telephone/email/copies usage fee for four months of the representation, but the invoices and the fee agreement failed to describe how this fee was calculated and when it was applied.

Rules Implicated: Colo. RPC 1.5(b)(2) and 1.15B(k).

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

Confidentiality of Information

▶ Respondent disposed of numerous closed case files containing sensitive personal, medical, and financial information about clients in a recycling bin in a public alleyway. The dumpster was not locked before or after respondent placed the files in the bin. Respondent did not have the files shredded before placing them in the recycling bin. Staff from a business near the recycling bin discovered the files, and several days passed between when respondent placed the files in the recycling bin and a waste management company collected items from the bin for disposal.

Rules Implicated: Colo. RPC 1.6(c) and 1.9(c)(2).

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

Failure to Comply With a Court Order or the Rules of a Tribunal

▶ Respondent fell out of compliance with child support and spousal maintenance obligations. Respondent’s failure to comply with court orders was significantly mitigated by a house fire, a motor vehicle accident where respondent suffered significant injury, respondent’s prompt efforts to pay the outstanding balance using retirement funds, and respondent’s efforts to prepay the remaining support obligations.

Rules Implicated: Colo. RPC 3.4(c).

Diversion Agreement: Three-year diversion agreement with conditions, including compliance with the terms and conditions of respondent’s domestic relations matter, successful completion of ethics school, and payment of costs.

Criminal Act

▶ While camping, respondent was arrested after driving off the road into a ditch and hitting a power line and deploying the airbag. Respondent submitted to two breath tests, which had results of 0.228 and 0.234 BAC. Two days later, respondent pleaded guilty to driving under the influence and was sentenced to one year of unsupervised probation. This was respondent’s first alcohol-related conviction. Respondent voluntarily completed an independent medical examination and was diagnosed with severe substance use disorder.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Three-year diversion agreement with intensive treatment, individual therapy, peer group attendance, alcohol monitoring, marijuana monitoring, attendance at ethics school, and payment of costs.

▶ While driving home after a concert, respondent was in a one-vehicle accident. Respondent called 911 to report the accident. When officers arrived on scene, they observed respondent had blood-shot and watery eyes and smelled of alcohol. Officers asked respondent to participate in voluntary roadside testing. Respondent did not complete the testing in a manner consistent with a sober person. Respondent refused blood or breath testing. Respondent pleaded guilty to one count of driving while ability impaired and received an 18-month deferred sentence. This was respondent’s first alcohol-related conviction. Respondent failed to timely report the conviction to the Office of Attorney Regulation Counsel.

Rules Implicated: Colo. RPC 3.4(c) and 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, contact with the Colorado Lawyer’s Assistance Program, and payment of costs.

Private Admonition Summaries

▶ Respondent made false statements during a marriage dissolution proceeding about the actions of the opposing party in an affidavit for attorney fees submitted in support of a motion by successor counsel. Respondent made false statements with at least a reckless state of mind, and the statements were later contradicted by respondent’s client.

Rules Implicated: Colo. RPC 8.4(c).

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.

 

 

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