Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
March 19, 2021
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 November 1, 2020 through January 31, 2021, at the intake stage, Regulation Counsel entered into four diversion agreements involving four 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 OARC attorneys. 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
- 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 November 1, 2020 through January 31, 2021 generally involved the following:
- lack of competence, implicating Colo. RPC 1.1;
- neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4;
- declining or terminating representation, implicating Colo. RPC 1.16;
- failure to comply with a court order or the rules of a tribunal, implicating Colo. RPC 3.4(c);
- a lawyer’s responsibility for another lawyer’s violation of the rules of professional conduct where the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved, 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, 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.
Below are summaries of some of the diversion agreements that Regulation Counsel determined appropriate for specific types of misconduct from November 1, 2020 through January 31, 2021. 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
A client consulted with respondent in 2018 regarding his desire to divorce his wife and secure custody of his minor children, as well as an ongoing criminal investigation of his wife. Respondent provided the client with legal advice about these matters, and the client recalls that respondent also gave him legal advice about how to obtain a civil protection order against his wife. Respondent maintained no notes, no client file, no fee agreement, and no other documents that would allow him to ascertain the scope of the work respondent performed for the client. In 2019, the client’s wife engaged respondent to represent her in both a criminal case involving an alleged violation of the client’s civil protective order and a related civil permanent protection order case filed against her by the client. After the client sought to disqualify respondent from further representation of his wife in the civil case, respondent withdrew from the criminal matter but continued to represent the client’s wife in the civil case.
Rules Implicated: Colo. RPC 1.1, 1.5(b), 1.9, and 1.16A.
Diversion Agreement: One-year diversion agreement requiring respondent to attend ethics school, complete CLE credits related to conflicts of interest, complete the Colorado lawyer’s self-assessment program, and pay costs.
Neglect of a Matter and/or Failure to Communicate
Respondent engaged in conduct that disregarded court orders, including related to the court’s case management order, discovery, motions, and mediation. Respondent’s conduct contributed to a delay in the proceedings.
Rules Implicated: Colo. RPC 1.3, 3.4(c), and 8.4(d).
Diversion Agreement: One-year diversion agreement requiring respondent to complete the Colorado lawyer’s self-assessment program with peer review, complete four CLE hours (to include one ethics credit) at a litigation-related program approved by OARC, and pay costs.
Respondent owns a criminal defense law firm. A client terminated respondent’s representation, and respondent mishandled the transition by failing to timely provide a full accounting to the client as requested and failing to return the client’s personal property for more than eight months after terminating the representation. Respondent also failed to adequately supervise associates and staff to ensure that they adequately communicated with clients and noted those communications, that earned fees were removed from the trust account in a timely fashion, and that consistent policies regarding application of fees were in place. A fee dispute also arose regarding whether a benchmark in the flat fee agreement had been achieved, resulting in a condition requiring fee arbitration.
Rules Implicated: Colo. RPC 1.4(a)(4), 1.16(d), and 5.1(a).
Diversion Agreement: One-year diversion agreement requiring respondent to attend trust account school with respondent’s office manager, complete ethics school, complete the Colorado lawyer’s self-assessment program, participate in fee arbitration through the CBA (and comply with any arbitration award), and pay costs.
In one client matter, respondent split the fee with another lawyer without obtaining the client’s informed consent in writing. Respondent also failed to respond to the client’s request for an accounting for about six months (and after the client complained to OARC).
In another client matter, respondent failed to send the client invoices until about 10 months after the representation ended.
Rules Implicated: Colo. RPC 1.4(a)(3), 1.15A(b), and 1.5(d).
Diversion Agreement: One-year diversion agreement requiring respondent to attend ethics school and pay costs.
Respondent pleaded guilty to operating a vehicle while under the influence of alcohol with a blood alcohol level of 0.16 at the time of arrest. This was respondent’s first alcohol-related offense. Respondent received a deferred sentence that included 12 months of unsupervised probation, 48 hours of useful community service, Level II education, 52 hours of therapy, monitored sobriety for six months, fines, and court costs. Respondent timely reported the conviction and has complied with the terms and conditions of the criminal sentence. At OARC’s request, respondent underwent an independent evaluation by a mental health professional, who concluded that respondent does not have a substance abuse disorder requiring monitoring or intervention other than the terms and conditions dispensed in the criminal case.
Rules Implicated: Colo. RPC 8.4(b).
Diversion Agreement: One-year diversion agreement requiring respondent to remain in compliance with the terms of the criminal sentence, attend ethics school, have no further violations, and pay costs.
Respondent pleaded guilty to operating a vehicle while ability impaired by alcohol and reckless endangerment. This was respondent’s first alcohol-related criminal offense. Respondent refused breath and chemical testing at the time of the arrest but underwent a subsequent evaluation by a mental health professional, who concluded that respondent does not have a substance abuse disorder requiring monitoring or intervention. Respondent has complied with the terms and conditions of the criminal sentence and timely reported the conviction to OARC.
Rules Implicated: Colo. RPC 8.4(b).
Diversion Agreement: One-year diversion agreement requiring respondent to remain in compliance with the terms of the criminal sentence, attend ethics school, and pay costs.
Respondent made threatening comments to one or more employees at a government agency call center in response to respondent or respondent’s family receiving notifications of violations from the municipality that respondent believed were erroneous.
Rules Implicated: Colo. RPC 8.4(b), (d), and (h).
Diversion Agreement: One-year diversion agreement requiring respondent to attend ethics school; participate in the Colorado Lawyers Helping Lawyers Program; attend an OARC-approved anger management course; send an OARC-approved letter of apology; meet with an approved psychologist, comply with the psychologist’s recommendations, and certify that the meeting occurred; and pay costs.