Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

December 18, 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 PDJ must approve the agreement.

From August 1, 2020 through October 31, 2020, at the intake stage, Regulation Counsel entered into six diversion agreements involving six separate requests for investigation. ARC approved four diversion agreements involving five 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,, and 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. Further, 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 August 1, 2020 through October 31, 2020 generally involved the following:

fee issues, implicating Colo. RPC 1.5; 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 August 1, 2020 through October 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.

Fee Issues

Respondent entered a flat fee arrangement with a client in a criminal case. The agreement provided that a nonrefundable engagement fee of one-third of the flat fee was earned immediately as an engagement retainer fee and a that a fee of one-third of the fee was earned upon appearance at the first court date (which occurred five days into the representation). This agreement constituted an unreasonable fee and an unreasonable restriction on the client’s ability to terminate the representation. Respondent later refunded a substantial portion of the money the client had paid.

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

Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of ethics school and trust account school, a practice audit, completion of the Colorado Lawyer Self-Assessment, and payment of costs.

***

Respondent represented the client business for several years and entered into several retainer agreements with the client business. To ensure respondent was compensated for work performed, respondent entered into an agreement that provided: “Given this, the Client and the Firm agree that, in the event this Agreement is terminated, the Client will pay the Firm one half (1/2) of the remainder of the total flat fee contemplated by this Agreement, along with any amounts due and owing prior to the date of any termination hereof.” The agreement further provided: “The Client shall be obligated to pay the Firm compensation (continued monthly installment payments) for the period of ninety days, as set forth herein.” By including these provisions, respondent entered into an agreement for an unreasonable fee. The fee dispute was ultimately resolved with client paying an amount that was substantially less than what would have been contemplated under these provisions.

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

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

***

Criminal Act

Respondent pleaded guilty to operating a vehicle while under the influence of alcohol after refusing testing. This was respondent’s third alcohol-related conviction. An independent medical evaluation (IME) revealed that respondent did not meet the criteria for diagnosis with any alcohol use disorder.