Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
December 28, 2021
Diversion is an alternative to discipline. Pursuant to CRCP 251.13 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.
Determining if Diversion is Appropriate
Diversion is appropriate where (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. 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. Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion.
Diversion agreements strive to educate and rehabilitate attorneys so that they don’t engage in such misconduct in the future. They 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 and/or practice monitor.
Diversion Agreement Conditions
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 Self-Assessment Program
- restitution
- payment of costs
- mental health evaluation and treatment
- continuing legal education (CLE) courses
- any other conditions that would be determined appropriate for the type of misconduct.
Diversion agreements generally span from one to three years. 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.
Diversion Summaries
From August 1, 2021, through October 31, 2021, at the intake stage, Regulation Counsel entered into seven diversion agreements involving seven separate requests for investigation, and LRC approved four diversion agreements involving five separate requests for investigation. There was one diversion agreement submitted to the PDJ for approval. Below are summaries of some of these diversion agreements.
Neglect of a Legal Matter
» Respondent represented a client in two quiet title matters but failed to adequately communicate to the client the status of the matters and did not diligently prosecute the matters.
Rules Implicated: Colo. RPC 1.3 and 1.4(a).
Diversion Agreement: One-year diversion agreement with conditions, including compliance with a practice audit, successful completion of ethics school, and payment of costs.
» Respondent represented a client in a criminal case. He negligently provided discovery to the client contrary to a protective order entered before respondent’s appearance in the case. Respondent demonstrated a lack of diligence in reviewing the file for prior orders.
Rules Implicated: Colo. RPC 1.3 and 8.4(d).
Diversion Agreement: One-year diversion agreement with conditions, including compliance with a practice audit, successful completion of ethics school, and payment of costs.
Fee Issues
» Respondent represented a client in two matters. He executed separate flat fee agreements and received retainer funds for each matter. Respondent failed to meet a benchmark representing 25% of the full fee in one of the matters but claimed all retainer funds as earned and did not return any unearned funds to the client. Despite claiming all retainer funds as earned, respondent retained all funds from both retainers in his COLTAF account for eight months after terminating the representation, thus commingling his personal property with property he held on behalf of clients.
Rules Implicated: Colo. RPC 1.5(b) and 1.15A(a).
Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of ethics school and trust account school, completion of the Colorado Lawyer Self-Assessment Program with peer review, participation in fee arbitration, and payment of costs.
Confidentiality of Information
» Respondent represented a client in a criminal matter pursuant to a written fee agreement. The client’s parent guaranteed the payment of respondent’s fees and authorized respondent to charge the parent’s credit card for various services. The client terminated respondent before the resolution of the criminal matter. Following respondent’s termination, the parent contested certain charges that respondent had made to the parent’s credit card. In defense of the charges, respondent provided confidential client information to the client’s parent and the parent’s credit card company, including un-redacted billing invoices; correspondence between the client, co-counsel and the respondent concerning respondent’s representation and trial strategy; and protected pleadings from the client’s criminal matter that were not publicly available.
Rules Implicated: Colo. RPC 1.6 and 1.8(f)(3).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
Trust Account Issues
» Respondent was successor counsel for a personal injury matter that settled. Prior counsel asserted an attorney’s lien and requested information related to the settlement. Respondent unilaterally sent prior counsel a check for attorney fees without disclosing the settlement amount or respondent’s attorney fees. Respondent did not provide the requested information to prior counsel or file an interpleader until after this matter commenced, approximately 10 months after prior counsel’s first request. The disputed funds remained in respondent’s trust account.
Rules Implicated: Colo. RPC 1.15A(b) and 1.15A(c).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
» Respondent’s bookkeeping practices resulted in multiple overdrafts on respondent’s trust account. Respondent also negligently disbursed from the trust account funds that should have been held for a third-party provider. Shortly thereafter, however, respondent was able to disburse the funds to the third party. Finally, respondent allowed earned funds to remain in the trust account for an extended period and gradually disbursed earned funds from the account over time. At the time of the misconduct, respondent was dealing with mental health issues.
Rules Implicated: Colo. RPC 1.15A(a), 1.15C(c), and 5.3(a).
Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of trust account school, compliance with a financial audit conducted by an attorney or OARC-approved certified public accountant, continued participation in treatment with a mental health treatment provider and quarterly certifications to OARC, and payment of costs.
Communications with a Person Represented by Counsel
» Respondent directed the client’s friend to contact the opposing party to discuss scheduling issues in a domestic relations case, despite knowing the opposing party was represented by counsel.
Rules Implicated: Colo. RPC 4.2.
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
Criminal Act
» Respondent was arrested on suspicion of driving under the influence of alcohol after being observed driving a vehicle with considerable damage in a hotel parking lot. Respondent refused blood or breath testing for alcohol. Respondent was charged with driving under the influence and later pleaded guilty to driving while ability impaired. This was respondent’s second alcohol-related driving offense. Respondent timely reported the conviction.
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, successful completion of ethics school, and payment of costs.
» A police officer was dispatched to respondent’s home on a welfare check. According to the call notes, a contractor at the residence reported there was a young child living in a “hoarders” house. Following the officer’s walk through of the house, he informed respondent he was concerned for respondent and the minor child’s health and well-being based on the living conditions of the house. Respondent pleaded guilty to child abuse—knowingly/reckless—no injury, in violation of CRS § 18-6-401(1), (7)(b)(I), a class 2 misdemeanor. Respondent received a 12-month deferred sentence with conditions, including a mental health evaluation at the discretion of probation, a parenting class, compliance with the Department of Health and Human Services, and no new violations.
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 during the term of the agreement or as recommended by the mental health professional, ethics school, meeting with a staff member at the Colorado Lawyer’s Assistance Program (COLAP), and payment of costs.
» Respondent was stopped for displaying expired tags. The officer observed respondent’s eyes to be bloodshot and watery and smelled the strong odor of an unknown alcoholic beverage coming from respondent’s vehicle. Respondent did not complete voluntary roadside maneuvers as a sober person would. Respondent elected to submit to a breath test. Respondent’s breath alcohol content was .153 grams of alcohol per 210 liters of breath. Respondent pleaded guilty to driving while ability impaired and was sentenced to 12 months of probation. 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 and conditions of the criminal sentence, treatment with a mental health professional during the term of the agreement or as recommended by the mental health professional, successful completion of ethics school, and payment of costs.
Private Admonition Summaries
Private admonition is the least serious of the formal disciplinary sanctions and is only appropriate for cases of minor misconduct where there was little or no injury to a client, the public, the legal system, or the profession, and where there is little to no likelihood of repetition. From August 1, 2021, through October 31, 2021, at the intake stage, LRC issued four private admonitions involving four matters. The PDJ did not approve any private admonitions during this time frame.
» Respondent was hired by a client to assist with the client’s return to work and/or potential claims against the client’s employer. The client paid respondent a $10,000 retainer. Respondent failed to bill the client for over a year and failed to otherwise inform the client how or when the client’s funds were earned for all of one year, in violation of Colo. RPC 1.4(a)(3). When the client asked for a refund, respondent did not provide an accounting or explain how or when funds were earned. Later, after the client specifically requested an accounting, respondent failed to provide an accounting for eight months, in violation of Colo. RPC 1.15A(b). Respondent also violated Colo. RPC 1.4(a)(4) by failing to respond to the client’s emails and phone messages over a four-month period.
Rules Implicated: Colo. RPC 1.4(a)(3), 1.15A(b), and 1.4(a)(4).
» Respondent failed to obtain informed consent from a client when respondent accepted payment from a third-party. Respondent also failed to explain a criminal matter to a non-English-speaking client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rules Implicated: Colo. RPC 1.8(f) and 1.4(b).
» Respondent committed a criminal act—reckless endangerment in violation of the City of Lakewood Municipal Code—that adversely reflected on respondent’s fitness to practice law. Respondent also failed to report the conviction to the Office of Attorney Regulation Counsel.
Rules Implicated: Colo. RPC 8.4(b).
» Despite knowing that the anchor tenant was insolvent, respondent misrepresented to the purchaser of a commercial building that respondent had no knowledge of any default under the building’s leases, nor had knowledge of circumstances that would, with the passage of time, ripen into a default. Respondent also comingled earned fees in the COLTAF fund with client funds.
Rules Implicated: Colo. RPC 8.4(c) and 1.15A(a).