Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

July 31, 2020

Diversion is an alternative to discipline (see CRCP 251.13). Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel (Regulation Counsel), the Attorney Regulation Committee (ARC), 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, ARC or the Presiding Disciplinary Judge must approve the agreement.

From May 1, 2020 through July 31, 2020, at the intake stage, Regulation Counsel entered into seven diversion agreements involving seven separate requests for investigation. ARC approved seven diversion agreements involving seven separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval.

Determining if Diversion is Appropriate

Regulation Counsel reviews the following factors to determine whether diversion is appropriate:

the likelihood that the attorney will harm the public during the period of participation;
whether Regulation Counsel can adequately supervise the conditions of diversion; and
the likelihood of the attorney benefiting 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 (see CRCP 251.13(b)). Other factors may preclude Regulation Counsel from agreeing to diversion (see CRCP 251.13(b)).

Purpose of the Diversion Agreement

The purpose of a diversion agreement is to educate and rehabilitate the attorney so that he or she does not engage in such misconduct in the future. Furthermore, the diversion agreement may 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, one of the conditions of diversion may be a law office management audit and/or practice monitor. The time period for a diversion agreement generally is no less than one year and no 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 attorneys from OARC. An attorney may also be required to fulfill any of the following conditions:

law office audit
practice monitor
practice mentor
financial audit
online Colorado lawyer’s self-assessment program
restitution
payment of costs
mental health evaluation and treatment
attend continuing legal education (CLE) courses
any other conditions that would be determined appropriate for the type of misconduct.

Note: The terms of a diversion agreement may not be detailed in this summary if the terms are generally included within diversion agreements.

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.

Types of Misconduct

The types of misconduct resulting in diversion during May 1, 2020 through July 31, 2020 generally involved the following:

lack of competence, implicating Colo. RPC 1.1;
lack of diligence, implicating Colo. RPC 1.3;
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;
declining or terminating representation, implicating Colo. RPC 1.16; and
committing a criminal act, implicating Colo. RPC 8.4(b).

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, counseling to address the underlying problems of depression, alcoholism, or other mental health issues that may be affecting the attorney’s ability to practice law.

Diversion Agreements

Below are summaries of some of the diversion agreements that Regulation Counsel determined appropriate for specific types of misconduct from May 1, 2020 through July 31, 2020. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct implicated, and the corresponding conditions of the diversion agreement.

Lack of Competence

> Respondent agreed to file taxes for a client with only one year of experience in doing so. Respondent misunderstood precisely how respondent’s tax-filing software functioned, which led to missed filing dates, and did not follow up promptly on the missed deadline when respondent learned of it.

Rules Implicated: Colo. RPC 1.1 and 1.3.

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

Diligence

> Respondent represented a client in a DUI and related DMV matter. Respondent’s fee agreement included a minimum fee clause but did not actually treat retainers as minimum fees. In appealing a Department of Revenue decision, respondent failed to respond in writing to an order to show cause, causing the appeal to be dismissed.

Rules Implicated: Colo. RPC 1.3.

Diversion Agreement: One-year diversion with conditions including ethics school, participation in the lawyer’s self-assessment program, and payment of costs.

> In August 2019, a client retained respondent to represent her in obtaining a divorce from her husband. Respondent filed a petition to that effect in September 2019. Respondent attended the initial status conference with the client in December 2019 and worked on the client’s financial disclosures.

In January 2020, respondent received a delay prevention order from the court, directing respondent to complete the client’s financial disclosures and file other documents in late February 2020. While respondent spoke to the client by telephone in January 2020, it appears that respondent had no further communication with her until May 2020, after respondent received the client’s request for investigation.

Beginning in February 2020, respondent began suffering from depression. Respondent’s initial prescription was not effective and increased some of respondent’s symptoms. In February 2020, the court dismissed the client’s divorce case due to respondent’s failure to file the necessary documents with the court. Respondent did not inform the client of the dismissal at the time due to respondent’s frustration and shame about not being able to complete the tasks required to prevent the dismissal.

Respondent later consulted with a psychiatrist about the depressive symptoms and was prescribed an antidepressant medication, which has mitigated the symptoms. The client agreed to allow respondent to complete her divorce matter, which was finalized in July 2020.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(3) and (4), and 1.16(a).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, continued consultation with a psychiatrist and compliance with any medical recommendations, and payment of costs.

> In representing a client in a domestic matter, respondent failed to communicate with the client, including in response to the client’s reasonable requests for information about the case. Respondent did not review court filings and orders carefully or in a timely manner, gave incorrect or insufficient information to the client about the case and did not provide copies of important court filings to the client, and failed to notify the client that the court had reserved ruling on an attorney fee request pending the client’s response. The client did not file a response and the court awarded attorney fees to the opposing party.

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

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, completion of the lawyer’s self-assessment program with peer review, and payment of costs.

> Respondent was engaged pursuant to a flat fee contract to pursue a Chapter 7 bankruptcy filing. The client provided some, but not all, of the financial information necessary to accomplish the bankruptcy filing to respondent. There was no communication between the parties for the next six months, until the client reached out to respondent to check on the status of his case. At that time, respondent’s office advised the client that no petition had been filed on his behalf and that the client needed to submit updated and additional financial information. The client provided some of the additional requested information to respondent electronically, but respondent could not access these files. Respondent did not timely advise the client that respondent could not access the information the client had provided. Respondent never filed the bankruptcy petition and the client eventually requested a full refund of the fees he had paid. Respondent’s office failed to provide the client a refund and stopped communicating with the client. After this investigation was commenced, respondent refunded the client a portion of the flat fee that was not yet earned pursuant to the terms of the parties’ fee agreement.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.5, 1.15A(b), and 1.16(d).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, completion of the lawyer’s self-assessment program, and payment of costs.

> Respondent represented a client in a domestic matter but treated the entire retainer as earned upon receipt, did not draft a motion or provide it to the client as promised, failed to provide information (including an accounting) promptly upon the client’s request, and failed to refund funds to the client until the client filed a complaint.

Rules Implicated: Colo. RPC 1.3; 1.4; 1.5(a), (b), and (h); and 1.16(d).

Diversion Agreement: Two-year diversion agreement with conditions, including ethics school, trust account school, completion of the lawyer’s self-assessment program, peer review of the self-assessment, and payment of costs.

> Respondent took on a case from previous counsel without doing sufficient research to determine if the claims brought were legally feasible. Respondent did not do the research for a significant amount of time, and when respondent finally did so, respondent did not communicate adequately with the client regarding the outcome of the research.

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

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, completion of the lawyer’s self-assessment program, completion of a practice audit, and payment of costs.

Neglect of a Matter and/or Failure to Communicate

> Respondent made numerous accounting errors in creating a contingent fee settlement sheet at the conclusion of a civil litigation matter. The settlement funds were disbursed based on the erroneous information. The accounting errors came to light 11 months later, and a dispute arose over whether additional settlement funds were owed to the client. The misconduct related to the lack of adequate communication during the fee dispute and the arguments regarding whether respondent had earned the disputed fees. The parties eventually resolved the financial disputes through mediation.

Rules Implicated: Colo. RPC 1.4(a)(4), 1.5(f), and 1.15A(b).

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

Criminal Act

> An officer initiated a traffic stop after he observed respondent swerving. After performing voluntary roadside maneuvers, the two officers on the scene determined respondent showed signs of being intoxicated. While at the detox center, respondent was given the opportunity to blow in one of the PBT devices, revealing a possible blood alcohol content (BAC) of .116%. Respondent refused further testing. Respondent pleaded guilty to an amended charge of driving while ability impaired (first offense) in violation of CRS § 42-4-1301(1)(b). This was respondent’s first alcohol-related conviction.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: One-year diversion agreement with conditions, including compliance with the terms of respondent’s criminal sentence, ethics school, no further violations, and payment of costs.

> Respondent pleaded guilty to unlawful possession of a controlled substance, CRS § 18-18-403.5(1), (2)(a), for possession of less than one ounce of cocaine. The court imposed a deferred judgment and sentence of six months of supervised probation and payment of fines and costs. Respondent purchased, but had not used, the cocaine at a concert. Significant factors in mitigation, including respondent’s voluntary submission to an independent medical exam that opined respondent had no substance abuse disorders, warranted a downward deviation from the presumptive sanction of suspension.

Rules Implicated: Colo. RPC 8.4(b).

> Respondent was involved in an injury car accident that was the other driver’s fault. Following standard field sobriety tests, respondent was placed under arrest for driving under the influence of alcohol. Respondent’s breath test results indicated that respondent had a .024 BAC. The officer noted that the result of the test was not consistent with the level of impairment he observed during the sobriety tests. Due to respondent’s taking medication for an ongoing medical issue, the officer asked respondent if he would consent to doing a blood draw. The results of the blood test showed respondent had 5.6 ng/ML of THC in his blood. Respondent pleaded guilty to an amended charge of driving while ability impaired in violation of CRS § 42-4-1301(1)(b). Respondent received a one-year deferred judgment and sentence with supervised probation. The court did not order monitored sobriety.

Rules Implicated: Colo. RPC 8.4(b).

> Respondent was involved in an auto accident after leaving a restaurant where respondent had been drinking with a friend. A responding police officer suspected that respondent was under the influence, so he administered voluntary roadside maneuvers, which respondent was unable to complete to the standard of a sober person. Respondent voluntarily submitted to a breath test at the police station, which produced a result of 0.211 BAC.

Respondent pleaded guilty to driving under the influence (with one prior) and was sentenced to 365 days in jail, which was suspended pending successful completion of two years of supervised probation; 10 days of work release; submission to an alcohol evaluation followed by successful completion and payment of any treatment recommended, subject to hearing; abstinence from alcohol; level II education and Track D therapy (enhanced treatment per probation); attendance at a victim impact panel; submission to a mental health evaluation and treatment; 60 hours useful public service; and payment of a fine and costs.

Respondent timely self-reported the conviction to the OARC. This was respondent’s second alcohol-related offense. Respondent also voluntarily completed an independent medical examination, which concluded that respondent has an alcohol use disorder.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Three-year diversion agreement with conditions, including compliance with the terms of respondent’s criminal sentence, alcohol monitoring, continued attendance at Alcoholics Anonymous or comparable peer support group meetings, and payment of costs.

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