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Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

CRCP 251.13

Second Quarter 2020


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 Presiding Disciplinary Judge must approve the agreement.

From February 1, 2020 through April 30, 2020, at the intake stage, Regulation Counsel entered into six diversion agreements involving six separate requests for investigation. ARC approved 12 diversion agreements involving 19 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 (see CRCP 251.13(b)). 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. Furthermore, 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 attorneys from OARC. 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 tool
  • 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 particular 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, then 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, 2020 through April 30, 2020 generally involved the following:

  • scope of representation, implicating Colo. RPC 1.2;
  • lack of diligence, implicating Colo. RPC 1.3;
  • neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and Colo. RPC 1.4;
  • fees issue, implicating Colo. RPC 1.5;
  • conflict of interest, implicating Colo. RPC 1.7;
  • trust account issues, implicating Colo. RPC 1.15A;
  • declining or terminating representation, implicating Colo. RPC 1.16;
  • failure to comply with a court order or the rules of a tribunal, implicating Colo. RPC 3.4(c);
  • supervisory responsibilities regarding non-lawyer assistants, implicating Colo. RPC 5.3;
  • 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, 2020 through April 30, 2020. 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.

Scope of Representation

Respondent entered into a stipulation to dismiss a temporary civil protection order protecting respondent’s client, against the client’s wishes, to avoid charges for violating the order. In the same client matter, respondent neglected to file a response to an affidavit of attorney fees to challenge the reasonableness of the fees awarded against respondent’s client.

Rules Implicated: Colo. RPC 1.2(a), 1.3, and 1.4(a) and (b).

Diversion Agreement: One-year diversion agreement with ethics school, online Colorado lawyer’s self-assessment tool, and payment of costs.

Diligence

Respondent represented a client as personal representative in an ancillary estate proceeding. Respondent failed or refused to respond to the client’s attempted communication throughout 2017 and 2018. Respondent filed a 2017 Colorado Fiduciary Income Tax Return for the client but did not file the return timely. Respondent estimated the estate would be liable for a late filing penalty, and admitted that any such penalty was due to respondent’s lack of diligence and communication with the client on the estate proceeding.

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

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

Respondent mistakenly omitted the treatment and billing records from respondent’s client’s personal injury settlement negotiations, contrary to a valid treatment provider’s lien. By the time the error was discovered, there were no settlement funds remaining to pay the lien. Respondent negotiated a financial settlement with the treatment provider at respondent’s own expense.

Rules Implicated: Colo. RPC 1.3.

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

Respondent represented a client in criminal postconviction proceedings. Respondent failed to act with diligence and failed to properly communicate with the client when respondent missed, for nearly two years, an order denying the client’s Crim. P. 35(a) motion. This conduct was a result of respondent’s serious health problems and multiple hospitalizations. Respondent also failed to provide a written basis of the fee and failed to maintain a client ledger or provide an accounting to the client, but respondent voluntarily refunded the entire retainer paid for services.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(1)–(4), 1.4(b), 1.5(b), and 1.15D.

Diversion Agreement: One-year diversion agreement with ethics school, trust account school, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs.

While representing a client in two domestic relations matters, respondent failed to act with diligence and failed to properly communicate with the client. Respondent also neglected one of the matters and retained the majority of the retainer for two years. Respondent failed to safeguard the retainer by placing it in a trust account during the representation, but ultimately refunded the remainder of the retainer paid for the second matter to the client.

Rules Implicated: Colo. RPC 1.3, 1.4(a)(3) and (4), and 1.15A(a).

Diversion Agreement: Two-year diversion agreement with ethics school, trust account school, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs.

Conflict of Interest

Respondent represented clients and served as a guardian ad litem in juvenile matters. At the same time, respondent engaged in a personal relationship with another attorney for several months while they represented opposing parties or parties with potentially opposing interests in the same matters. Respondent failed to request or seek withdrawal from any of the cases or take any other steps to eliminate the conflict of interest.

Rules Implicated: Colo. RPC 1.7(a)(2).

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

While serving as a government attorney dealing with juvenile matters, respondent engaged in a romantic relationship with another attorney for several months while they represented opposing parties or parties with potentially opposing interests in the same matters. Respondent failed to request or seek withdrawal from any of the cases or otherwise take steps to eliminate the conflict of interest.

Rules Implicated: Colo. RPC 1.7(a)(2).

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

Trust Account Issues

Respondent issued a retainer refund to a client from the respondent’s trust account. At the time, respondent was closing the law practice and relocating out of state due to a family emergency. The check was twice presented for payment by the client and returned for insufficient funds. Respondent had mistakenly withdrawn funds necessary to cover the check, believing all checks written from the account had cleared and that the remaining funds in the account were earned fees. The mistake was caused, in part, by respondent’s failure to maintain accurate client trust ledgers. Respondent ultimately paid the full refund to the client.

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

Diversion Agreement: One-year diversion agreement with trust account school, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs.

The clients retained respondent in 2019 and paid respondent a $2,500 retainer. Respondent did not deposit the clients’ retainer funds into a trust account, as required by Colo. RPC 1.15A(a). During the course of the investigation, respondent disclosed that respondent had not been depositing other unearned client funds and cost retainers into his trust account. According to respondent, all fee deposits have since been moved to the firm’s COLTAF account.

Rules Implicated: Colo. RPC 1.15A(a).

Diversion Agreement: One-year diversion agreement with trust account school, a financial review, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs.

Respondent hired and later partnered with another attorney at respondent’s firm. The attorney subsequently left the firm, taking some clients and client file materials with her. She moved out of state and eventually vanished altogether. Respondent did not adequately supervise the firm or the attorney, and staff took other actions—some related to handling of client funds—that were inconsistent with the firm’s obligations under the Rules of Professional Conduct. Respondent was unable to locate file materials and was unable to provide complete financial information upon request.

Rules Implicated: Colo. RPC 1.15D, 1.16A, 5.1, and 5.3.

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

Respondent settled a personal injury case on behalf of a client. Three medical providers asserted liens on the recovery. Respondent paid respondent’s attorney fees and negotiated and paid the first two liens, at which time the settlement funds were exhausted. Respondent did not pay the third lienholder or respond to the third lienholder’s requests for payment. Respondent relied on the civil law regarding priority of lienholders rather than Rule 1.15A(c)’s direction to keep separate funds in which two or more persons claim an interest until there is a resolution of the claims and a severance of the interests.

Rules Implicated: Colo. RPC 1.15A(c).

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

Respondent failed to communicate with two clients for about a year. Respondent’s conduct was mitigated by serious health problems that resulted in hospitalization for a substantial time. In one matter, respondent completed work for the client upon respondent’s recovery. In the other matter, respondent eventually refunded the client’s retainer. Respondent did not deposit either client’s retainer in trust until earned or refunded.

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

Diversion Agreement: Two-year diversion agreement with ethics school, trust account school, compliance with treatment recommendations, practice audit and monitor, and payment of costs.

Failure to Comply with a Court Order

Respondent employed a paralegal in connection with respondent’s law practice and failed to timely pay wages owed to the paralegal. The paralegal brought an enforcement action through the Colorado Division of Labor Standards and Statistics. An administrative law judge ordered respondent to make three payments related to that proceeding: a payment to the paralegal for wages due and owing, a payment to the paralegal for penalties, and a payment to the Colorado Division of Labor Standards and Statistics for fines. All three payments were to have been made no later than a date in April 2019. Respondent failed to make those payments until September 2019, only after being made aware that a request for investigation had been filed. During the proceedings before the administrative law judge, respondent testified that respondent was “very hands off” regarding tracking the paralegal’s time and that respondent provided only minimal supervision to the paralegal regarding work that was being performed on behalf of one of respondent’s clients.

Rules Implicated: Colo. RPC 3.4(c) and 5.3.

Diversion Agreement: One-year diversion agreement with ethics school, four hours of CLE related to employment law, completion and certified peer-review of the online Colorado lawyer’s self-assessment tool, and payment of costs.

Respondent, who is licensed outside of Colorado, advised a pro se defendant that he needed to respond to a motion against him and then drafted a response for the individual that did not identify respondent as an attorney assisting, as required by CRCP 11(b).

Rules Implicated: Colo. RPC 3.4(c) and 5.5(a)(1).

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

Criminal Act

In 2019, respondent was charged with public indecency after a citizen reported to police that they observed respondent masturbating in the office with the blinds not fully closed. In 2020, respondent pleaded guilty to public indecency, a petty offense. Respondent was sentenced to a one-year deferred judgment, with conditions of undergoing a mental health evaluation and completing 50 hours of useful public service.

Rules Implicated: Colo. RPC 8.4(b).

Diversion Agreement: One-year diversion with conditions, including compliance with the term of respondent’s criminal sentence, no further violations, and payment of costs.

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