Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

September 27, 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, 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
Colorado Lawyer Self-Assessment Program (online self-assessment)
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 May 1, 2022, through July 31, 2022, at the intake stage, Regulation Counsel entered into 15 diversion agreements involving 15 separate requests for investigation. LRC approved 8 diversion agreements involving 10 separate requests for investigation during this time frame. One diversion agreement was submitted to the PDJ for approval. Below are summaries of some of these diversion agreements.

Lack of Competence

»» Respondent was retained to represent the client in an immigration matter. Respondent charged the client a total of $5,495 (a $3,500 flat fee plus $1,995 for filing fees and costs). Respondent filed the petition on behalf of the client, but it was rejected because respondent used an incorrect form. The client promptly provided the updated form, but respondent did not file the updated form until the client reached out to respondent a month later. Respondent again filed the incorrect form, which was rejected. Respondent offered a partial refund to include filing fees and a portion of the legal fees. Respondent indicated that respondent earned the remainder of the fees, which the client disputed.

Rules Implicated: Colo. RPC 1.1, 1.3, and 1.5(a), (f), and (h).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, fee arbitration, certified completion of the online self-assessment program, and payment of costs.

»» A client hired a law firm to represent him in a civil claim against his daughter and her husband for various instances of financial exploitation. Respondent was assigned to the case and filed a complaint raising numerous specific claims for relief. Before trial, the defendants in the civil case filed a motion for summary judgment on all issues. Respondent filed a responsive brief objecting to the relief requested and asserting that respondent’s client disputed certain facts upon which the motion relied. However, no supporting affidavit of the plaintiff was submitted by respondent, and no extension of time to make such a submission was requested. The defendants then filed a reply pointing out the lack of supporting sworn testimony from the plaintiff. After receiving this pleading, respondent filed a delinquent affidavit of the plaintiff disputing certain facts alleged by the defendants in their original motion for summary judgment, but did not seek leave of the court to file this affidavit out of time. The defendants motioned to strike the plaintiff’s affidavit. In response, respondent filed a brief explaining why the affidavit was being delinquently filed. The court granted the motion to strike and then granted the defendant’s motion for summary judgment on all claims.

Rules Implicated: Colo. RPC 1.1, 1.3, and 1.4.

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, certified completion of the online self-assessment program, and payment of costs.

Neglect of a Legal Matter

»» A client hired respondent to assist with the probate of her family member’s will. The client signed an hourly fee agreement containing a provision for the submission of fee disputes to arbitration conducted by the CBA Fee Arbitration Committee. The client paid an initial retainer of $3,000, which respondent deposited directly into respondent’s operating account. Respondent filed a petition for formal probate in May 2021. In July 2021, respondent met with the client and was advised that the sale of the family member’s house was imminent. In late July 2021, the broker handling the sale reached out to respondent via email indicating that they needed various documents submitted no later than mid-August to close the sale. The client, her realtor, and the closing agent reached out to respondent numerous times during the first 10 days in August to secure documents necessary to complete the real estate sale. Respondent did not respond to these communications or provide the necessary documents. The next month, the client wrote to respondent requesting an accounting and a refund of unearned fees. Respondent did not respond to that letter, provide the client with any invoice or bill, or take steps to withdraw as counsel in the probate matter. Respondent withdrew from this matter and is set to engage in fee arbitration with the client regarding the client’s assertion that respondent did not earn all of the fees claimed by respondent.

Rules Implicated: Colo. RPC 1.3, 1.4, 1.15A(a) and (b), and 1.16(d)

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

»» Respondent represented a father in child support modification proceedings. The mother in those proceeding was unrepresented for the majority of the case. In connection with those proceedings, respondent’s client was sanctioned by the court and adjudicated to have been “stonewalling” by failing to timely provide required financial disclosures. While the proceedings were ongoing, respondent served mother with a copy of a pleading that differed materially from the version of the same pleading that respondent had filed with the court. Although mother had provided her post office box address to the court and to respondent on repeated occasions requesting that this address be used for service of process, respondent continued to serve her at an erroneous mailing address and ignored her repeated requests for email service. As a result, she was not timely provided with filings in the case.

The court issued an order requiring in advance of court-ordered mediation the exchange of financial information and the filing of a related a certificate of compliance. Respondent failed to file the required certificate of compliance, and the court adjudicated that mother had not received the financial information from respondent’s client that the court had ordered be provided. The court sanctioned respondent’s client financially and required the parties to re-attend mediation after father provided the required financial information. Respondent did not provide mother proof of respondent’s client’s current income before or during the rescheduled mediation. Father’s current earnings information was not provided to mother until after regular business hours the day before the scheduled child support modification hearing. Following a hearing on child support modification, respondent submitted a form of order to the court that contained certain provisions that the court had not ordered and that favored respondent’s client. On March 9, 2022, the court entered an order requiring respondent to file a proposed written child support order. Respondent did not file the proposed form of order until the court issued two additional orders directing respondent to make this submission.

Rules Implicated: Colo. RPC 1.3, 3.1, 3.2, 3.4(c), and 8.4(c) and (d).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, a practice audit and monitoring, three hours of CLE credit, and payment of costs.

»» A client hired respondent in November 2019 to assist him in connection with two court cases involving the allocation of parental responsibilities with respect to his minor daughter. In November 2020, the parties reached an agreement to resolve both cases, and their agreement was placed orally on the record. The judge directed counsel to file a proposed form of written order with the court. Respondent believed that opposing counsel had filed a proposed form of written order in November of 2020. But he had not done so. The client followed up with respondent numerous times in 2021 about his need for a written court order. Respondent did not ensure that a proposed form of order was submitted to the court until May 2022, after an investigation into respondent’s conduct had been commenced by the OARC.

Rules Implicated: Colo. RPC 1.3 and 1.4(a).

Diversion Agreement: One-year diversion agreement with conditions, including certified completion of the online self-assessment program and payment of costs.

»» Respondent failed to act with reasonable diligence in pursuing a change in the designation regarding military retirement survivor benefits for a client consistent with the decree of dissolution entered in the client’s dissolution of marriage action. Respondent did not represent the client in the dissolution action itself and was retained only for this limited purpose. Additionally, respondent failed to keep the client apprised of the status of respondent’s efforts for several years.

Rules Implicated: Colo. RPC 1.3 and 1.4.

Diversion Agreement: One-year diversion agreement with conditions, including certified completion of the online self-assessment program and payment of costs.

»» Respondent negligently disbursed settlement proceeds to a client in a personal injury matter at a time when a third party claimed an interest in those funds. The client was receiving medical treatment on a lien basis, and there were two lienholders. Respondent did not have actual knowledge of the second lien (which was based on an agreement signed by the client with a treatment provider), but respondent should have been more diligent in verifying that all claims and liens against settlement proceeds were accounted for when making disbursements from those proceeds. Respondent also failed to reconcile respondent’s trust account at least quarterly, resulting in a failure to timely note or prevent an overdraft in the account. Ultimately, the shortfall did not result in a bounced check. Respondent also did not maintain all required ledgers for each individual for whom respondent held funds in trust.

Rules Implicated: Colo. RPC 1.3,1.15C(c), and 1.15D.

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

Failure to Communicate

»» A client hired respondent regarding injuries suffered in a rear-end collision. Respondent and the client had a telephone conversation regarding a proposed settlement offer. The client was reluctant to accept the settlement offer. During the conversation, which lasted approximately 40 minutes, respondent attempted to intimidate the client through name-calling, called the client “a baby,” and brought up the client’s problems in personal relationships.

Rules Implicated: Colo. RPC 1.4, 1.7, and 8.4(g).

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

Fees Issue

»» A client learned that Colorado was declining to renew his driver’s license because of a license revocation proceeding in Arizona that had occurred 13 years prior. The client hired the law firm to help him secure an immediate temporary Colorado driver’s license while the client took the steps necessary to clear up the Arizona licensing issue. The client signed a flat fee agreement requiring payment of $1,200. The agreement described the scope of the representation as being for “Colorado license application and/or hearing.” There were no benchmarks in the parties’ fee agreement. The client paid two payments of $600 each in September 2021. Respondent deposited the client’s funds into the operating account upon receipt.

In response to a disciplinary inquiry from the complainant, in January of 2022 respondent placed $1,200 from the firm’s operating account into the firm’s trust account. Contemporaneous to the client’s two payments, respondent’s associate sent an email to the help desk at the Colorado Department of Revenue Division of Motor Vehicles asking it to “evaluate [the client’s] record and determine if he can get a driver’s license in light of Colorado law.” The department conducted a review of the client’s file and wrote to the client denying his eligibility.

At the client’s request, respondent’s associate then requested a hearing on the client’s behalf. Respondent’s associate participated in a telephone call with the client and with a representative of the Arizona Department of Motor Vehicles, but the law firm did not otherwise interact with the Arizona licensing authorities on behalf of the client. Nor did respondent submit a license application to Colorado on the client’s behalf. After resolving the situation in Arizona on his own, the client was himself able to get his Colorado driver’s license renewed. No administrative hearing took place. The client requested an accounting and a partial refund from respondent. Respondent did not provide the requested accounting and refused to issue the client any refund.

Rules Implicated: Colo. RPC 1.5(a), 1.5(h), 1.15A(a) and (b), and 1.16(d).

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

»» Respondent represented a client in an employment law matter. During the representation, respondent increased respondent’s hourly rate for attorney fees and billed the client at the increased rate without notifying the client. Later, respondent mistakenly removed money belonging to the client from respondent’s trust account without an invoice or demonstration that the amount was earned, and without crediting the client for the payment. The error was discovered when brought to respondent’s attention by the client and confirmed through a subsequent reconciliation of respondent’s trust account.

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

Diversion Agreement: One-year diversion agreement with conditions, including fee arbitration, a financial audit, and payment of costs.

»» Respondent failed to supervise a non-attorney assistant who independently collected legal fees from the client without respondent’s knowledge.

Rules Implicated: Colo. RPC 1.5(h) and 5.3.

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

Trust Account Issues

»» In March 2020, a client contacted respondent seeking representation concerning the estates of the client’s father and the father’s wife, both of whom had passed away. The client paid a total of $2,000 for retainers in both matters by credit card, and a fee agreement was sent in May 2020. Respondent erroneously entered only $1,000 as the amount of the retainer in the firm’s Clio system. The credit card payment was deposited into respondent’s operating account. Respondent failed to transfer the funds to the firm’s COLTAF account. Respondent performed work for the client in an invoiced amount of more than $1,000 as of June 1, 2020. Because of the error in the Clio system, respondent incorrectly concluded that all of the retainer had been earned. Upon inquiry and further investigation by OARC, respondent discovered the erroneous accounting entry and refunded the remaining unearned portion in April 2022. Respondent also had facts in mitigation, including the death of a close family member, contracting COVID-19, and losing office staff during the relevant time period.

Rules Implicated: Colo. RPC 1.15A.

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

»» In March 2021, respondent began representing the client, a Texas resident, regarding a criminal case pending in Colorado. The fee agreement contemplated a flat fee, although it also referred to that fee as a “retainer.” The agreement also indicated that if the client terminated the representation before the matter was completed, respondent would charge a $325 hourly rate for legal services. The client terminated respondent’s representation in July 2021. According to respondent’s records, at the hourly rate, respondent earned $5,100.20 of the $6,667.00 the client paid, leaving a balance due to the client of $1,566.80. The client made four separate requests to respondent for an accounting and refund of the retainer balance via text in July, September, and October 2021. Respondent acknowledges receiving these requests and admits the error in failing to provide the client with an accounting and refund until notified of the request for investigation. According to respondent, the client’s file was closed after respondent withdrew, and a family member’s medical issue in October 2021 necessitated that respondent travel multiple times to Texas, causing the lack of a timely response. Respondent did not transfer $100.20 of the client’s funds that he claims to have earned out of respondent’s COLTAF account until April 2022. After receiving a copy of the client’s request for investigation, respondent mailed an accounting and a check for $1,566.80 to the client.

Rules Implicated: Colo. RPC 1.15A(a), 1.15C(c), 1.15D, and 1.16(d).

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

Bringing a Meritorious Claim and Contention

»» Respondent filed a motion to modify parenting time in a domestic relations case. Respondent represented grandparent intervenors. The motion to modify parenting time sought allocation of full parental responsibilities to the intervenors. The intervenors had not previously been awarded parenting time but had court-authorized grandparent visitation. Before this filing, the court had denied a motion concerning parenting time disputes that respondent filed on behalf of the same intervenors because the intervenors lacked standing to enforce parenting time disputes. The motion to modify parenting time did not allege facts or cite authority under which the intervenors might have standing to be awarded parental responsibilities. The court denied the motion. The court found the motion presented no facts establishing intervenors might be entitled to the relief sought under the relevant statute. The court noted its previous finding concerning standing. The court found the motion was not well-grounded in fact or warranted by existing law and violated CRCP 11.

Rules Implicated: Colo. RPC 3.1.

Diversion Agreement: One-year diversion agreement, including ethics school, CLE courses related to domestic relations matters, and payment of costs.

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

»» The court issued a conferral and civility order in a contentious domestic relations case. The order imposed more detailed conferral requirements than those imposed by CRCP 121 § 1-15(8) and prohibited the parties from including unprofessional language (such as reference to wife’s “baby daddy”) in pleadings. Respondent filed a motion for post-trial relief in the case, alleging that wife’s and her counsel’s unprofessional behavior leading up to the permanent orders hearing deprived husband of a fair trial. The court found respondent’s arguments to be baseless and unsupported by the evidence. Respondent failed to include a supporting affidavit to the motion for post-trial relief, as required by CRCP 59(d). Furthermore, respondent renewed use of the term “baby daddy” in the motion, and the court found the allegations to be vitriolic attacks on wife and her counsel. The court sanctioned respondent and the client, jointly and severally, for violating the conferral and civility order and filing a meritless motion for post-trial relief.

Rules Implicated: Colo. RPC 3.4(c).

Diversion Agreement: Three-year diversion agreement with conditions, including three hours of OARC-approved CLE courses on professionalism, practice monitoring, and payment of costs.

»» Respondent self-reported a criminal conviction after respondent entered a guilty plea to disorderly conduct—offensive gesture (class 1 petty offense) as part of a deferred judgment and sentence. Other charges, including those related to violating court orders or conditions, were dismissed as part of the plea agreement.

Rules Implicated: Colo. RPC 3.4(c) and 8.4(d).

Diversion Agreement: One-year diversion agreement, including ethics school, certified completion of the online self-assessment program, and payment of costs.

Criminal Act

»» Respondent pleaded guilty to one count of harassment—strike/shove/kick, CRS § 18-9-111(1)(a), a class 3 misdemeanor. The sentence was deferred for six months. Respondent was assessed fines and costs. In 2022, the court found that respondent had complied with all court-ordered requirements pursuant to the deferred plea agreement and probation period, and it ordered the deferred plea agreement dismissed with prejudice.