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Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

Fourth Quarter 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 August 1, 2022, through October 31, 2022, at the intake stage, Regulation Counsel entered into 12 diversion agreements involving 19 separate requests for investigation. LRC approved 3 diversion agreements involving 4 separate requests for investigation during this time frame. Below are summaries of some of these diversion agreements. There were no diversion agreements submitted to the PDJ for approval.

Lack of Competence

»» Respondent was court-appointed to assist a client with his criminal post-conviction proceedings. Respondent sought and was granted an enlargement of time to file an amendment to the client’s pro se Rule 35(c) petition. There was no communication between respondent and this client for more than eight months prior to the expiration of the court-imposed deadline to amend the client’s original petition. Respondent failed to file an amended petition by the court-imposed deadline, and the client’s original pro se petition was denied by the court. Respondent failed to timely communicate the petition’s denial to the client. As a result, the client’s subsequent appeal of the denial of his Rule 36(c) petition was deemed untimely and dismissed by the Colorado Court of Appeals. Respondent was cooperative with the client’s subsequent counsel and provided an affidavit admitting respondent’s error for the client to use in his efforts to seek post-conviction relief through new counsel.

Rules Implicated: Colo. RPC 1.1, 1.3, and 1.4(a).

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

 

»» In 2022, respondent represented a husband in his divorce proceeding. The client’s ex-wife was also represented by counsel in the matter. Pursuant to the terms of the divorce, respondent’s client was required to pay his ex-wife a substantial sum of money. After reaching out to opposing counsel by phone and email regarding disbursement of the funds, respondent began receiving emails purporting to be from opposing counsel, directing respondent to wire the money to a trading bank account in a foreign country. When respondent attempted to reach opposing counsel by telephone and text, respondent received additional emails, allegedly from opposing counsel, indicating that opposing counsel was in a meeting. Opposing counsel’s account was subsequently determined to have been accessed and used by an unknown third party. Someone pretending to be the ex-wife also emailed respondent the necessary information for the wire transfer, although her last name in the email address was misspelled. Respondent had never met or spoken to the ex-wife and, though the email address was missing a letter, the email itself reflected the ex-wife’s properly spelled name. These emails contained multiple typographic errors that could have indicated that the authors’ first language is not English. During this process and prior to discovering the fraud, respondent learned from respondent’s client that his ex-wife had connections to a trader in the foreign country. The person imitating opposing counsel also authorized respondent to speak with the ex-wife by telephone regarding the transfer if needed; however, the person who called respondent and with whom respondent spoke was not the ex-wife. Respondent ultimately initiated the funds transfer. Three days later, respondent learned the transfer request was fraudulent, initiated a wire transfer recall, and reported the incident to the FBI and police authorities in the foreign country. The recall was unsuccessful, and the funds have not been recovered.

Rules Implicated: Colo. RPC 1.1, 1.3, and 1.15A.

Diversion Agreement: One-year diversion agreement with conditions, including a minimum of three hours of CLE in the area of cybersecurity and payment of costs.

 

Neglect of a Legal Matter

»» Respondent failed to act with reasonable diligence in a dissolution of marriage action by failing to communicate with opposing counsel for months, which caused delay in the resolution of the matter. In addition, respondent pleaded guilty to driving under the influence of alcohol after officers found respondent asleep behind the wheel with the engine running following reports of a person driving through a neighborhood on the rim of one of the vehicle’s wheels. Respondent’s sentence included two years of supervised probation; level 2 track D therapy (24 hours of level 2 education and 86 hours of level 2 therapy); 30 days of in home detention; 365 days of jail suspended based on successful completion of probation; 72 hours of community service; attendance at a victim impact panel; monitored abstinence through probation; and payment of fines and costs. It was respondent’s second alcohol-related driving offense but respondent’s first offense since being admitted to the practice of law.

Rules Implicated: Colo. RPC 1.3 and 8.4(b).

Diversion Agreement: Three-year diversion agreement with conditions, including ethics school, monitored abstinence from alcohol and marijuana, online self-assessment, self-certification of compliance with any recommendations made by any health care treatment provider, full compliance with the terms and conditions of probation, and payment of costs.

 

»» A client engaged respondent in fall 2021 pursuant to a written fee agreement to represent him in an employment dispute with his current and prospective employers. Respondent was to prepare written demands on the client’s behalf and engage with these parties in settlement negotiations related to the client’s separation from employment. When respondent had not completed the demand letters by early spring the following year, the relationship was terminated and the client sought a partial refund and a complete copy of his client file, including copies of the draft demand letters. Respondent refused to provide any refund to the client and refused to provide the client with drafts of the demand letters respondent had prepared. Under their fee agreement, respondent was to send the client billing statements at least once per month. Respondent sent the client his first invoice in February 2022. Respondent charged this client $3,815 in attorney fees, improper credit card fees of $120, an improper case closing fee of $150 and improper interest of $2.39. After this request for investigation was filed, respondent refunded these fees and charges to the client. A dispute remains between respondent and this client as to the amount of reasonable attorney fees earned by respondent under the parties’ fee agreement.

Rules Implicated: Colo. RPC 1.3, 1.5(a), 1.5(g), and 1.16(d).

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

 

»» Respondent represented a client in a domestic matter in 2016 and 2017. Respondent did not draft a quit claim deed for the client as required by the court. When respondent’s solo practice closed in 2017, respondent stopped responding to communication from the client. Respondent did not file a notice of withdrawal from the case. Respondent stopped monitoring the client’s matter on the Colorado courts e-filing system, so respondent did not receive the decree issued by the court and did not provide a copy of the decree to the client. Respondent stopped collecting mail from the former office, so respondent did not receive invoices from the arbitrator in the client’s matter and did not provide those invoices to the client. Respondent did not maintain a backup of the client’s file, which was deleted by respondent’s practice management provider following the closure of respondent’s practice in 2017.

Rules Implicated: Colo. RPC 1.3, 1.4(a) and (b), 1.16(d), 1.16A(a), and 3.4(c).

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

 

»» Respondent represented a client for nearly three years in an immigration matter. Respondent received a retainer from the client but did not have a trust account to hold funds belonging to clients. Respondent deposited the client’s retainer in the firm’s operating account. Respondent did not perform quarterly reconciliations of client trust funds. Respondent provided only two invoices to the client during the time of the representation. Respondent ceased communicating with the client without explanation. Respondent relocated offices but did not notify the client, who learned about the relocation only after making a trip to the former office. After the client requested the client file, respondent’s office emailed the client stating that the client was required to pay $500 to receive the file. The email was unclear and appeared to have been written by someone under respondent’s supervision with limited English proficiency. Respondent’s retention of the client’s file may have prejudiced the client’s interests and the client’s ability to pursue the objective of the representation through other counsel.

Rules Implicated: Colo. RPC 1.3, 1.4(a) and (b), 1.5(b) and (f), 1.15A(a), 1.15B(a), 1.15C(c), 1.16(d), and 5.3(a) and (b).

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

 

»» The clients paid respondent $1,790 to file I-765 forms to renew their employment authorization cards. Over the next few months, the clients attempted to call and email respondent multiple times. Eventually, the clients called the US Citizenship and Immigration Services field office, but the representative there could not track any file on their name. After not hearing from respondent, the clients submitted the applications themselves. Thereafter, the clients received an email from respondent stating respondent filed the applications. Thus, the clients ended up with two pending applications. The clients’ child informed respondent she had already submitted the clients’ applications and requested a refund of their money. Respondent has not yet provided a refund to the clients.

Rules Implicated: Colo. RPC 1.3 and 1.4.

Diversion Agreement: One-year diversion agreement with conditions, including
ethics school, a refund of $1,790 to the clients, and payment of costs.

 

Failure to Communicate

»» Two clients hired respondent in January 2022 to assist them with concerns about financial elder abuse by one of the client’s adult children. Each paid respondent a $750 retainer, which respondent placed into respondent’s operating account upon receipt. After reviewing certain documents and speaking with certain members of the elderly client’s family, respondent advised the clients that respondent was going to refer them to another attorney for purposes of litigation. Respondent indicates that the clients were told before engaging respondent that respondent was not a litigator; the clients deny this and state they would not have hired respondent had this been made clear to them. The clients twice requested an accounting and refund of unearned fees. Respondent provided neither. Upon learning of this disciplinary complaint, respondent refunded both clients their full retainers.

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

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

 

»» Respondent assisted six clients with separate immigration matters. In September 2021, respondent began suffering from severe medical conditions that resulted in several hospitalizations and severely impacted respondent’s availability and ability to work for many months. Respondent did not terminate the representations of any of the clients and the clients grew frustrated with delays in the immigration process and issues with communication.

Rules Implicated: Colo. RPC 1.4.

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

Fees Issue

»» Respondent agreed to represent a client in defending against two counts of accessory to murder in the first degree, a class 4 felony, and provided the client with an attorney representation agreement. The agreement contemplated a flat fee but did not contain a conversion clause or a method of calculating the fees respondent would earn, if any, should the representation terminate before completion of the specified tasks or the occurrence of specified events. The agreement also incorrectly described the $16,900 required for respondent’s first phase of representation as an “INITIAL RETAINER” that respondent would “drawn down on . . . to pay attorney fees when earned.” Although respondent maintains respondent earned $16,900 for the first phase of representation of the client, the fee agreement indicates that phase “includes legal work up until and including the first plea offer and sentencing.” The client was not sentenced in the felony case while respondent represented the client. However, respondent refunded all but $4,450 of the $13,450 paid to respondent on the client’s behalf when the client terminated respondent’s representation two months after it had begun.

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

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

Confidentiality of Information

»» Respondent was retained to represent the client in a domestic relations matter. Respondent filed a motion to withdraw. Respondent and the client filed several pleadings related to the motion to withdraw. In those pleadings, respondent included confidential client information.

Rules Implicated: Colo. RPC 1.6(a) and 1.16(d).

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

Trust Account Issues

»» The client paid respondent an up-front flat fee in cash to complete a relatively straightforward immigration filing for a client. Respondent failed to deposit the cash in the trust account. Instead, respondent held the cash in a locked desk drawer until respondent completed the work, and then deposited the money in respondent’s operating account.

Rules Implicated: Colo. RPC 1.15.

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

Criminal Act

»» Respondent was convicted after a bench trial of one count of assault. Respondent was sentenced to one year of informal probation, 10 hours of public service, anger management counseling as scheduled/monitored by probation, and a $25 fine. Respondent timely self-reported the conviction as required by CRCP 242.11.

Rules Implicated: Colo. RPC 8.4(b).

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

 

»» Respondent was arrested in California on suspicion of driving under the influence of alcohol following a traffic stop for speeding. Respondent refused breath testing for alcohol but was later tested at a hospital without objection. Respondent’s blood alcohol content (BAC) was 0.12%. Respondent was charged with driving under the influence and later pleaded nolo contendere to driving while having a 0.08% or higher BAC. Respondent was sentenced to 36 months of unsupervised probation, completion of the DUI first offender program, one day in jail (deemed served), and payment of costs and fines. The court did not require any sobriety monitoring as a condition of the sentence. Respondent voluntarily engaged in counseling, assessment, and treatment. This was respondent’s first alcohol-related driving offense. Respondent timely reported the 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, ethics school, and payment of costs.

 

»» Respondent was stopped for speeding and ultimately charged with DUI. Respondent entered a guilty plea to DWAI (1st offense) and was placed on unsupervised probation with conditions. Respondent did not timely report the conviction to OARC.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: One-year diversion agreement with conditions, including ethics school, compliance with all terms and conditions in the underlying criminal matter, 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, 2022, through October 31, 2022, at the intake stage, LRC issued 3 private admonitions involving 3 matters. Below is a summary of those admonitions. The PDJ did not approve any private admonitions during this time frame.

 

»» Respondent failed to respond to requests for updates from respondent’s client in a domestic relations case. Respondent also failed to timely provide invoices for work completed. When respondent’s client reported respondent to OARC, respondent asked him to withdraw his request for investigation.

Rules Implicated: Colo. RPC 1.4(a)(4) and 8.4(d).

 

»» Respondent was trial counsel for a consumer debt relief firm. Respondent represented a client in a litigation matter but failed to obtain the client’s express consent to make a settlement offer or accept a counteroffer. When the settlement fell through, respondent failed to reasonably communicate with the client for a period of time before resolving the outstanding problems.

Rules Implicated: Colo. RPC 1.2, 1.4(a)(4), and 1.4(b).

 

»» Respondent pleaded guilty to a second DUI in October 2021, having been previously convicted of DUI in 1985. Respondent was contacted by police at respondent’s residence after respondent struck a parked, unoccupied car in the neighborhood and then returned home. Respondent did not consent to a breath test or roadside maneuvers. There was no injury caused by respondent’s driving, and respondent’s insurance covered the damage to the parked car. Respondent was placed on two years of supervised probation which included level II alcohol education and therapy, 48 hours of useful public service, 10 days of electric home monitoring, random drug testing, attendance of a victim impact panel, and compliance with the requirements of an interlock device on respondent’s vehicle.

Rules Implicated: Colo. RPC 8.4(d).

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