Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
February 1, 2025, through April 30, 2025
June 1, 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 February 1, 2025, through April 30, 2025, at the intake stage, Regulation Counsel entered into seven diversion agreements involving seven separate requests for investigation. LRC approved three diversion agreements involving four separate requests for investigation during this time frame. There was one diversion agreement submitted to the PDJ for approval. LRC issued two 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
- 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, 2025, through April 30, 2025, generally involved the following:
- lack of diligence, implicating Colo. RPC 1.3;
- neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4;
- fee issues, implicating Colo. RPC 1.5;
- 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;
- failing to expedite litigation consistent with the interests of the client, implicating Colo. RPC 3.2;
- 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, 2025, through April 30, 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
▶ Respondent represented clients as plaintiffs in Boulder County District Court. During the representation, respondent became ill. Respondent did not file a motion to withdraw with the court. Defendants filed a motion to dismiss certain claims on the grounds of the economic loss rule. Respondent previously discussed concerns about a motion to dismiss on those grounds with the clients and did not file a response to the motion to dismiss. Respondent did not send confirmation to the clients that the claims had been dismissed in response to the motion. Respondent failed to respond to the delay reduction order filed by the court. The remaining claims were dismissed without prejudice. Respondent cooperated with transferring the case to subsequent counsel.
Rules Implicated: Colo. RPC 1.3, 1.4, 3.2, 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 domestic relations matter. The matter proceeded to hearing, and the court expected to issue a written order. The court failed to issue an order over two years. While respondent occasionally followed up with the clerk and with the client, significant periods of time passed with no follow-up. During some of those time periods, respondent failed to respond to requests for updates from the client, reasoning that respondent had no updates to give. Ultimately, respondent moved the court for entry of an order, and the court accordingly entered an order retroactively altering the child support payments. During a significant portion of the representation, respondent failed to timely issue invoices due to a software error and left earned funds in trust. Respondent voluntarily attended trust account school and completed the Colorado Lawyer Self-Assessment.
Rules Implicated: Colo. RPC 1.3, 1.4(a), 1.4(b), and 1.15A(b).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
▶ Respondent failed to keep a client reasonably informed about the status of his appellate case, failed to respond to communications from the client, and failed to provide a copy of the pleadings to the client.
In a separate appellate representation, respondent failed to schedule a meeting with the client. Respondent failed to respond to the client’s communications and failed to keep the client reasonably informed about the status of the case.
Rules Implicated: Colo. RPC 1.4(a)(3) and 1.4(a)(4).
Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of ethics school, practice monitoring, continued mental health treatment, and payment of costs.
Conflict of Interest
▶ Respondent represented a client in a domestic relations matter. The client’s ex-spouse discovered a set of text messages between respondent and the client that were friendly, bordering on flirtatious, though respondent and the client never had a physical relationship. The text messages gave rise to a motion to disqualify respondent, and respondent ultimately withdrew.
Rules Implicated: Colo. RPC 1.7(a)(2).
Diversion Agreement: One-year diversion agreement with conditions, including attendance at ethics school and payment of costs.
Criminal Act
▶ Respondent was arrested for driving under the influence after a traffic stop. Respondent submitted to a breath test that resulted in a blood alcohol content (BAC) of 0.168. Respondent pleaded guilty to driving while ability impaired and improper mountain driving. This was respondent’s first alcohol-related conviction.
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.
▶ Respondent entered a deferred judgment for driving under the influence. Respondent had been drinking at a bar with friends and was pulled over after speeding at 85–87 mph. Respondent had a BAC of 0.149. This was respondent’s third alcohol-related conviction. Respondent voluntarily completed an independent medical examination. The provider did not diagnose respondent with an 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 in a car accident. Respondent did not satisfactorily complete standardized field sobriety tests. Respondent submitted to a blood test. Respondent’s blood alcohol level was .277 g/100 mL. Respondent pleaded guilty to driving under the influence with one prior. Respondent was sentenced to three years of supervised probation with conditions. Respondent voluntarily completed an independent medical examination. The provider diagnosed respondent with alcohol use disorder, moderate, in early remission, in controlled environment. This was respondent’s third alcohol-related driving conviction. (The court only considered one of respondent’s prior offenses in sentencing, as one conviction was expunged.)
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, treatment with a mental health professional, attendance at AA or equivalent recovery program, monitored sobriety, abstinence from alcohol and other mood-altering substances, successful completion of ethics school, and payment of costs.
▶ Respondent pleaded guilty to driving while ability impaired by alcohol in 2024. A chemical blood test administered shortly after the traffic stop revealed that respondent had a blood alcohol level of 0.127g/210L. This was respondent’s first alcohol-related conviction. Respondent timely reported the conviction to the Office of Attorney Regulation.
Rules Implicated: Colo. RPC 8.4(b)
Diversion Agreement: One-year diversion with conditions, including compliance with the terms and conditions of the criminal sentence, successful completion of ethics school, and payment of costs.
Conduct Prejudicial to the Administration of Justice
▶ Respondent represented a client in her divorce. Respondent recorded a notice of lis pendens on the marital property with the clerk and recorder’s office. The notice was related to the outstanding balance that respondent claimed the client owed for the attorney fees. The client asserts that the notice of lis pendens detrimentally affected the sale of the marital property—namely, that a sale did not go through and a buyer terminated the contract due to the notice. Each party also had to pay money to the buyer. After receiving the order reducing attorney’s lien to judgment, respondent filed a request to release lis pendens with the court. Upon receiving the order releasing the lis pendens, respondent filed it with the clerk and recorder’s office.
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 criminal defendant serving a prison sentence in an ineffective assistance of counsel post-conviction Crim. P. 35(c) motion. Respondent’s flat-fee agreement did not include benchmarks describing to the client how and when the retainer would be earned. Upon respondent’s termination, the client requested a full accounting of his retainer. Respondent provided the full accounting approximately four months after it was requested, thereby failing to provide full accounting promptly.
Rules Implicated: Colo. RPC 1.5(h) and 1.15(A)(b).