Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
June 2, 2022
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, 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 February 1, 2022, through April 30, 2022, at the intake stage, Regulation Counsel entered into 12 diversion agreements involving 12 separate requests for investigation; LRC approved seven diversion agreements involving 12 separate requests for investigation; and there were no diversion agreements submitted to the PDJ for approval. Below are summaries of some of these diversion agreements.
Neglect of a Legal Matter
»» Respondent represented wife in a domestic relations case. During a hearing, respondent began to cross-examine the opposing party, husband, about a piece of disputed property. It was then revealed that respondent represented husband in a prior criminal matter. The court stopped the proceeding. Husband was represented by other counsel in the domestic relations case, and they ultimately reached an agreement that respondent could continue representing wife to allow the domestic relations case to be finalized.
Rules Implicated: Colo. RPC 1.3, 1.9(c), and 8.4(d).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, completion of the Colorado lawyer’s self-assessment program, and payment of costs.
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»» Respondent agreed to file an appeal on behalf of a client in an employment matter but failed to timely do so.
Rules Implicated: Colo. RPC 1.3.
Diversion Agreement: Two-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
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»» Respondent was appointed to represent defendant on his Crim. P. 35(c) petition. Respondent failed to communicate with the client over a period of 11 months and did not act with reasonable diligence or promptness in researching or writing the client’s Crim. P. 35(c) petition.
Rules Implicated: Colo. RPC 1.3 and 1.4(a)(4).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
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»» In November 2018, the client retained respondent to represent her on a contingent fee basis to recover damages for injuries she sustained in an automobile accident that occurred on October 12, 2018. Respondent and the client struggled to communicate by phone over the course of two months, during which time respondent attempted to reach the client 16 times without a return call. In late 2019, instead of withdrawing from representation or attempting to reach the client by mail or other means, respondent “decided to let the situation rest and determined that [respondent] would let a period of time elapse to see if the client would contact respondent.” Respondent did not attempt to communicate with the client for another seven months, by which time less than three months remained on the statute of limitations for the client’s claims. According to respondent’s quantum merit accounting provided as part of the investigation, respondent also performed no work on the client’s matter during this time frame. Not until they spoke two years later (less than two months before the expiration of the applicable statute of limitations) did respondent ask the client for an update on her condition and any treatment she had received since their first meeting almost three years before, including a list of medical providers and medical records from those facilities. Respondent then terminated representation of the client.
Rules Implicated: Colo. RPC 1.3 and 1.4(a)(2) and (3).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, completion of the Colorado lawyer’s self-assessment program, and payment of costs.
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Failure to Communicate
»» Respondent assisted the client, a closely held corporation, in the process of a buy-out. During the course of the negotiations, respondent discussed a potential outstanding ownership interest in the company with a third party who allegedly held an ownership interest in the company. The discussion alerted the third party to the sale. Respondent failed to communicate to the clients that respondent was contacting the third party and failed to advise them of the potential consequences of the contact.
Rules Implicated: Colo. RPC 1.4(a).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
Fees Issue
»» Respondent was retained to represent the client in a criminal matter. Respondent initially charged a $10,000 “legal fee.” The fee agreement stated in bold: Client is charged a legal fee of $10,000 for representation in the case. The fee agreement then stated (not in bold) that the agreement did not include a trial or contested hearing. The fee agreement stated that “additional fees shall become immediately due upon setting the case for contested hearing or trial.” The agreement did not state what the separate trial fee would be. The fee agreement did not have specific benchmarks indicating what amount would be earned upon completion of specified tasks. The fee agreement stated that no refund of the retainer fee would be made once the requested representation was commenced. The case did not proceed to trial. The client requested a refund of the trial fee based on the client’s belief that the client would receive a refund of the trial fee if the matter did not proceed to trial. Respondent indicated that respondent earned the entirety of the fees paid.
Rules Implicated: Colo. RPC 1.5(b), (f), (g), and (h).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
Conflict of Interest
»» Respondent represented two separate entities in a loan transaction. The loan was considered a potential violation of federal securities law. Respondent did not explain the conflict of interest to either client or obtain written informed consent to the representation from each client.
Rules Implicated: Colo. RPC 1.7(a) and 1.13.
Diversion Agreement: One-year diversion with conditions, including successful completion of ethics school, continuing legal education, and payment of costs.
Trust Account Issues
»» Respondent represented a client in a personal injury matter. Respondent failed to maintain an original copy of the fee agreement. Respondent also disbursed the entire settlement proceeds to the client, even though there was an existing Medicare lien on a portion of the settlement proceeds.
Rules Implicated: Colo. RPC 1.15A(b) and (c), and 1.15D(a)(3).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
Failure to Comply with a Court Order or the Rules of a Tribunal
»» While serving as a government attorney dealing with felony matters, respondent failed to abide by a protection order issued in a case and publicly disclosed the names, last known address, and telephone numbers of two confidential sources related to a case respondent was prosecuting. This disclosure was not discovered until months after it occurred and caused no actual injury or harm to the witnesses. In another matter, respondent failed to comply with a court order directing respondent to produce information to defense counsel within three days of the order. At the time these violations occurred, respondent was dealing with several health issues. Respondent retired from the position as a government attorney shortly after these violations.
Rules Implicated: Colo. RPC 3.4(c) and 8.4(d).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, practice monitor, and payment of costs.
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»» Respondent was appointed child and family investigator in a domestic relations case. Respondent did not timely file the CFI report or ask for additional time to complete the report. Ultimately, the court determined that respondent violated three standards of Chief Justice Directive 04-08.
Rules Implicated: Colo. RPC 3.4(c) and 8.4(d).
Diversion Agreement: One-year diversion agreement with conditions, including completion of three credits of a CFI-specific continuing legal education course and payment of costs.
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»» Respondent represented a client in litigation. The parties reached a settlement in principle. As a term of the settlement, opposing counsel requested that respondent draft pleadings to dismiss the litigation. Respondent did not obtain opposing counsel’s authorization to file settlement documents before filing them. After objection by opposing counsel, the court conducted a status conference to address the settlement issue.
Rules Implicated: Colo. RPC 3.4(c) and 8.4(d).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
Assisting Another in the Unauthorized Practice of Law/ Multijurisdictional Practice of Law
»» Respondent is admitted to practice law and in good standing in two jurisdictions outside of Colorado. Respondent signed an employment agreement and began work at a government agency before being authorized to practice law in Colorado. Respondent did not seek authorization to practice in Colorado until approximately nine months after respondent began employment.
Rules Implicated: Colo. RPC 5.5(a).
Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.
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»» Respondent is an out-of-state attorney who is not admitted to practice law in Colorado. Respondent appeared at in initial phone conference in Denver County Court and filed an Answer for the client without first being admitted to Colorado pro hac vice. Respondent noted on the Answer that respondent was not yet admitted pro hac vice. Due to a miscommunication with local counsel, respondent’s application for admission pro hac vice was not filed before respondent’s next appearance in court with local counsel.
Rules Implicated: Colo. RPC 5.5(a) and 8.4(d).
Diversion Agreement: One-year diversion agreement with conditions, including continuing legal education and payment of costs.
Criminal Act
»» Respondent was convicted of driving while ability impaired. This was respondent’s second alcohol-related driving offense. The first was in 2010.
Rules Implicated: Colo. RPC 8.4(b).
Diversion Agreement: Three-year diversion agreement with conditions, including monitored sobriety and payment of costs.
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»» Respondent pleaded guilty to driving under the influence of alcohol after being stopped for speeding in September 2021. A chemical blood test administered shortly after the traffic stop revealed respondent had a blood alcohol level of 0.125 g/210L. This was respondent’s first alcohol-related conviction. Respondent timely reported the conviction to the OARC. Respondent voluntarily completed an independent medical examination with a licensed psychiatrist, who did not diagnose respondent with an alcohol or other 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 respondent’s criminal sentence, successful completion of ethics school, and payment of costs.
***
»» Respondent was involved in a single-vehicle rollover accident. Respondent was not injured and there was no property damage aside from the damage to respondent’s car. When speaking with respondent, the deputy detected the odor of alcohol. Respondent chose to participate in a breath test. Respondent’s breath alcohol level was .094% g/210 L. Respondent pleaded guilty to driving while ability impaired. Respondent was sentenced to a one-year alcohol monitored probation with conditions, including abstention from the use of alcohol for one year. This was respondent’s second alcohol or drug-related conviction. The first occurred in 2008, when respondent was a minor.
Rules Implicated: Colo. RPC 8.4(b).
Diversion Agreement: One-year diversion agreement with conditions, including compliance with the terms and conditions of respondent’s criminal sentence, abstention from the use of alcohol or any other mood-altering substance unless such substance is prescribed by a duly licensed Colorado physician, successful completion of ethics school, and payment of costs.
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»» Respondent was arrested on suspicion of driving under the influence of alcohol following a single-vehicle motorcycle crash in which respondent suffered serious injuries. Respondent refused blood or breath testing for alcohol but was later tested at .206 blood alcohol concentration (BAC) while receiving medical treatment at a hospital. 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 did not timely report the conviction.
Rules Implicated: Colo. RPC 8.4(b).
Diversion Agreement: Two-year diversion agreement with conditions, including compliance with the terms of respondent’s criminal sentence, alcohol treatment and monitoring, participation in a peer support group, successful completion of ethics school, and payment of costs.
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»» An officer arrived to a motorist assist. Respondent informed the officer that respondent was trying to hitchhike because respondent’s car ran out of gas. The officer observed indicia of impairment. Respondent refused roadside maneuvers and also refused chemical testing. Respondent pleaded guilty to an amended charge of driving while ability impaired with two plus priors. Respondent is under a supervised two-year probation. This was respondent’s fifth alcohol-related conviction. Respondent completed an independent medical examination. The provider opined respondent clearly fulfills the conditions for a diagnosis of “Chronic Alcohol Dependence, daily plus binge pattern, severe, with secondary marijuana use, currently under newly enforced abstinence court requirements.”
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, participation in a peer support group, monitored sobriety, successful completion of ethics school, and payment of costs.
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»» Respondent was arrested for driving under the influence after being pulled over for a traffic violation. Respondent refused to submit to a breathalyzer test. Respondent later pleaded guilty to reckless driving and was sentenced to alcohol education and counseling and other conditions. Respondent timely self-reported the conviction but failed to report a previous alcohol conviction.
Rules Implicated: Colo. RPC 8.4(b).
Diversion Agreement: One-year diversion agreement with conditions, including compliance with the terms of respondent’s criminal sentence, successful completion of ethics school, a meeting with Colorado Lawyer Assistance Program, and payment of costs.
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»» In 2021, respondent rode a bicycle to a friend’s house for a poker game, where respondent planned to drink alcohol. On the way home, something happened with respondent’s bicycle and respondent crashed; respondent then walked the rest of the way home. Once home, respondent decided to drive the three blocks back to where respondent left the bicycle and retrieve it. While driving and looking for the bicycle, respondent hit a parked car. Around midnight, a sheriff’s deputy responded to the scene of the accident. When speaking with respondent, the deputy noticed that respondent had glassy eyes and slurred speech. Respondent submitted to voluntary roadside maneuvers, which the deputy found respondent was unable to complete as a sober person would. He arrested respondent for driving under the influence and other charges related to the accident. Respondent voluntarily submitted to a breath test at the Douglas County Jail, which produced a result of 0.119 grams of ethyl alcohol per 210 liters of breath. Respondent pleaded guilty to driving while ability impaired. Respondent was sentenced to 180 days in jail, suspended upon successful completion of 12 months supervised probation; compliance with an alcohol evaluation and any recommended treatment; abstinence from alcohol; monitored sobriety; 24 hours of useful public service; attendance at a victim impact panel; and payment of costs. This was respondent’s first alcohol-related conviction. Respondent timely self-reported the conviction to the OARC. Respondent also voluntarily completed an independent medical examination; the examiner 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 of respondent’s sentence, 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 February 1, 2022, through April 30, 2022, at the intake stage, LRC issued four private admonitions involving four matters. The PDJ did not approve any private admonitions during this time frame. Below are summaries of some of these admonitions.
»» Respondent negligently converted a client’s retainer by depositing the retainer funds into respondent’s operating account, rather than a trust account, for a short time before completing enough work on the case to earn the funds. Respondent failed to sufficiently communicate to the client how the flat fee would be earned. Respondent suggested that the client withdraw the complaint to the OARC in the course of negotiating settlement of overdue attorney fees payments.
Rules Implicated: Colo. RPC 1.5(b) and (h), 1.15A(a), and 8.4(d).
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»» While serving as general counsel for the company, respondent negligently engaged in a conflict of interest by privately discussing an employment matter with one of the company’s employees.
Rules Implicated: Colo. RPC 1.7(a)(2).
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»» Frustrated with the Colorado Courts E-Filing system, respondent contacted technical support a number of times and made vague threats of violence while expressing anger to technical support staff.
Rules Implicated: Colo. RPC 8.4(b) and (d).
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»» Respondent was convicted of driving while ability impaired and driving with an open container of alcohol as a first offense. Respondent completed the criminal probation, including all the education and public service requirements of the sentence.
Rules Implicated: Colo. RPC 8.4(b).
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