Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

June 21, 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 February 1, 2021, through April 30, 2021, at the intake stage, Regulation Counsel entered into four diversion agreements involving four separate requests for investigation. ARC approved four diversion agreements involving six 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:

1. the likelihood that the attorney will harm the public during the period of participation;
2. whether Regulation Counsel can adequately supervise the conditions of diversion; and
3. 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
• 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 February 1, 2021, through April 30, 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;
• fees issues, implicating Colo. RPC 1.5;
• trust account issues, implicating Colo. RPC 1.15A through 1.15E;
• declining or terminating representation, implicating Colo. RPC 1.16;
• failing to comply with a court order or the rules of a tribunal, implicating Colo. RPC 3.4(c);
• failing to respect the rights of a third person, implicating Colo. RPC 4.4;
• 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.

Diversion Agreements

Below are summaries of some of the diversion agreements that Regulation Counsel determined appropriate for specific types of misconduct from February 1, 2021, through April 30, 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

> While representing a husband in a dissolution of marriage action, respondent sent a subpoena duces tecum and various attachments to wife’s employer seeking specific employment records of hers. This was delivered to the employer via a generic company email address. The information sent via email to wife’s employer contained personal information related to the parties’ dissolution action and made reference to an incorrect case venue. Upon receipt, wife’s employer directed respondent to resubmit the subpoena to an appropriate individual who had authority to receive and respond to the subpoena, but respondent failed to follow these directives and resubmitted the same information a second time to the same erroneous email address. The subpoena duces tecum was never submitted to wife’s employer in conformity with the applicable civil rules.

Rules Implicated: Colo. RPC 1.1 and 4.4.

Diversion Agreement: One-year diversion agreement with conditions, including completion of ethics school, completion of CLE credits related to civil procedure (including education about the requirements of CRCP 45), completion of the Colorado lawyer’s self-assessment program, and payment of costs.

> Respondent consumed a combination of alcohol and prescription medication while appearing for a deposition via Zoom. Respondent was one of several attorneys involved in the deposition in a civil action, along with the deponent and a court reporter. Respondent eventually passed out during the deposition and remained on screen while visibly in that state. The deposition could not be completed on that date, as respondent had been scheduled to examine the deponent later that day. Respondent’s employment was subsequently terminated.

Rules Implicated: Colo. RPC 1.1, 1.3, and 8.4(d).

Diversion Agreement: Three-year diversion with conditions, including completion of ethics school; monitored sobriety; continued participation in specified recovery activities for alcohol addiction; monitored personal therapy related to alcohol relapse prevention, depression, and anxiety; and payment of costs.

Neglect of a Matter and/or Failure to Communicate

> Respondent was hired on a flat-fee basis to assist a client in defending against an alleged violation of a civil permanent protection order. Respondent secured the dismissal of these charges against this client. Respondent took no steps to withdraw from the case. At that time, respondent advised the client that respondent would consider the client’s request to provide additional legal services to the client in a related civil matter. Despite the client’s subsequent attempted efforts to contact respondent about the related civil case, two months passed without further response. The client then posted a negative review of respondent online, complaining about the lack of responsiveness. In response, respondent sent a series of emotionally charged, offensive, and unprofessional emails to the client and advised the client that respondent would no longer be representing him. Respondent still took no steps to withdraw from the client’s case. The client then filed a pro se motion to vacate the civil protective order. Unbeknownst to the client, the court denied that motion. The court file reflects that respondent was given notice through the court’s electronic filing system of the order of denial. Although respondent received notice from the court, respondent did not open or review the order and took no steps to forward that order to the client or otherwise provide notice to the client of the court’s action. When the client learned from the court clerk of the issuance of the order of denial, he emailed respondent requesting contact. Respondent received the client’s email but did not respond to it. The client filed a motion asking the court to remove respondent as the client’s counsel and to grant additional time to file an appeal of the denial of the motion to vacate due to respondent’s failure to ever provide notice of the order’s issuance.

Rules Implicated: Colo. RPC 1.3, 1.4, and 1.16(c) and (d).

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

> Respondent took over an estate matter for a colleague who had retired. Respondent failed to provide the client with a statement regarding the basis or rate of respondent’s fee in writing. Respondent later failed to file a response to the court’s “Notice and Order Closing Estate After Three Years or More,” even though the estate was not yet settled. Respondent received a check from the estate house sale but placed it in the estate file rather than giving the funds to the estate’s personal representative. Respondent also was not diligent or prompt in communicating information to the client.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(3), 1.5(b), and 1.15A(b).

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

Fee Issues

> Respondent deposited a very small payment toward costs into the operating account before the costs had been incurred. Respondent mistakenly believed the costs would be incurred immediately.

Rules Implicated: Colo. RPC 1.5(f) and 1.15A(a).

Diversion Agreement: One-year diversion with conditions, including completion of trust account school and payment of costs.

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

> In representing a client in a domestic matter, respondent was ordered to complete a professionalism course by a date certain and to file with the court certification that respondent had completed the course. Respondent failed to do so by the court-ordered deadline. Respondent neither requested a deadline extension nor filed a document before the deadline explaining respondent’s failure to complete the course by the deadline.

Rules Implicated: Colo. RPC 3.4(c).

Diversion Agreement: One-year diversion with conditions, including completion of ethics school, completion of a specific CLE program, a meeting with COLAP, and payment of costs.

Criminal Act

> Respondent was stopped by a police officer on suspicion of driving under the influence. After voluntarily submitting to roadside sobriety testing, respondent was arrested for driving under the influence of alcohol. Respondent’s breath alcohol content was 0.154. Respondent later pleaded guilty to driving while ability impaired. Respondent timely self-reported the conviction. This was respondent’s third alcohol-related offense. Respondent’s prior alcohol-related offenses were significantly remote in time.

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 treatment and monitoring, compliance with recommendations in the independent medical evaluation, completion of ethics school, and payment of costs.

> Respondent was convicted of a second DUI. Around the same time, respondent negligently filled out an application to work for a government agency form incorrectly regarding a pending disciplinary investigation. Respondent was under significant emotional distress at the time of the misconduct.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: Two-year diversion with conditions, including alcohol monitoring, attendance at therapy/addiction counseling, and payment of costs.