|The Colorado Lawyer|
Vol. 32, No. 1 [Page 111]
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From the Courts
Matters Resulting In Diversion and Private Admonition
Colorado Supreme Court Attorney Regulation Counsel
Editor’s Note: Articles describing diversion agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These articles are contributed by the Colorado Supreme Court Office of Regulation Counsel.
Diversion and Private
Background Information Regarding Diversion
Diversion is an alternative to discipline. See C.R.C.P. 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. Thereafter, ARC or some other entity must approve the agreement.
From August 20, 2002, through November 19, 2002, at the intake stage, Regulation Counsel entered into 31 Diversion Agreements involving 33 separate requests for investigation. ARC approved 11 Diversion Agreements involving 16 separate requests for investigation. The PDJ approved 2 Diversion Agreements during this time frame.
Regulation Counsel reviews the following factors to determine if diversion is appropriate: (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. See C.R.C.P. 251.13(b). Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion. See C.R.C.P. 251.13(b).
The purpose of a Diversion Agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. Furthermore, the Diversion Agreement will 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 the result of poor office management, then one of the conditions of diversion may be a law office management audit and/ or practice monitor. The time period for a Diversion Agreement is generally no less than one year or greater than two years.
Types of Misconduct
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 that is conducted by attorneys from the Office of Attorney Regulation Counsel. An attorney may be required also to fulfill any of the following conditions: law office audit; practice monitor; financial audit; restitution; payment of costs; mental health evaluation and treatment; attend CLE courses; and any other conditions that may be 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 C.R.C.P. 251.33(d). If Regulation Counsel has reason to believe that the attorney has breached the Diversion Agreement, then Regulation Counsel must follow the steps provided in C.R.C.P 251.13 before an agreement can be revoked.
The types of misconduct resulting in diversion for the time period described above generally involve the following: incompetent representation, in violation of Colo. RPC 1.1; an attorney’s neglect of a matter and/or failure to communicate, in violation of Colo. RPC 1.3 and Colo. RPC 1.4, where the client is not harmed or restitution is paid to redress the harm or malpractice insurance exits; violation of a criminal statute, in violation of Colo. RPC 8.4(b); commingling of funds, in violation of Colo. RPC 1.15(a); conflicts of interest, in violation of Colo. RPC 1.9; failure to withdraw from representation or protect the client’s interest upon termination, in violation of Colo. RPC 1.16; and threatening prosecution, in violation of Colo. RPC 4.5.
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.
Random Samples of Diversion
— The respondent represented a client in a divorce case. One of the issues in the case pertained to the value of certain items of personal property. During the course of the case, the respondent and his client engaged an expert to appraise the property. The expert appraised the property, and determined that it had a total value of approximately $70,000. The respondent informally made arrangements with the expert to be available to give testimony at the permanent orders hearing in the case as to the value of the property. The respondent did not subpoena the expert because of the fact that the expert was his witness, and because the respondent had used the expert in previous cases and found him to be reliable to appear without subpoena. The day before the permanent orders hearing, respondent’s assistant called the expert to remind him of the hearing the next day, and to make arrangements for the expert to testify. At that time, the respondent’s assistant learned that the expert was on vacation, and would not appear. Despite the unavailability of the expert witness, the permanent orders hearing went forward as scheduled. The court did not allow the respondent to submit the appraisal as an exhibit. Instead, the value of the property was the subject of testimony by the parties to the action. The court determined that the value of the property was approximately $10,000, using the testimony of the opposing party in the case. The respondent had malpractice insurance at the time of these events. The rule implicated is Colo. RPC 1.1.
— The respondent was retained by a client to handle a personal injury matter in 1996. The parties to the lawsuit reached a settlement of the matter during a mediation session in 1997. The respondent’s client moved out-of-state shortly after the settlement was reached in the case. The client expected that the respondent would take appropriate action to reduce the settlement to writing and obtain payment from the opposing party in the action. Following the mediated settlement in the case, the respondent filed an action in probate court seeking approval of the settlement and appointment of a conservator due to the fact that the proceeds of the settlement were to be paid for the benefit of a minor child. The respondent filed status reports with the court handling the personal injury matter, reporting the progress of the probate matter. In March 1999, the respondent filed a motion for enforcement of the settlement agreement and for entry of judgment in favor of his client. This motion was addressed by the court at a status conference in the personal injury matter, at which time the court requested that the parties provide the appropriate order reducing the settlement to judgment. In July 1999, the court clerk contacted the respondent and inquired about the status of the draft order. The clerk advised that the draft order needed to be submitted to the court no later than July 28, 1999. In August 1999, the court reviewed the file. The respondent had not provided a copy of a draft order in accordance with the court’s request. Consequently, the court dismissed the case. In early 2001, the client called the respondent and inquired into the status of the matter. The only explanation that she received from the respondent was that he made an error in the case, and that he would have his malpractice insurance carrier pay what she was owed. In June 2002, the respondent sent his client a letter explaining the status of the matter, the circumstances under which the case was dismissed, and explaining her options in proceeding with the matter. Further, the respondent explained that the client could seek to hold him responsible for the mistake, and offered to indemnify the client for the amount of the settlement if the court would not revive the settlement and sign a judgment in favor of the client. As a condition of the diversion agreement, the respondent will incur all fees and costs associated with taking steps to revive the settlement and obtain an order and judgment in favor of the client. If the court declines to sign an appropriate order reducing the settlement to judgment, the respondent will pay the full amount of the mediated settlement to the client. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.3, and Colo. RPC 1.4(b).
— The respondent was hired to initiate a Chapter 13 bankruptcy proceeding on behalf of his clients. In the bankruptcy proceedings, the respondent was ordered to file a final payment plan along with a motion to confirm the plan. The respondent failed to do so. The Chapter 13 bankruptcy was dismissed. As a result of the dismissal, a vehicle used in the client’s business and a vehicle used for personal purposes were repossessed by the creditors. Damages were difficult to determine. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.3.
— The respondent represented a father on issues of custody and child support resulting from a dependency and neglect case filed by the Department of Social Services. At a hearing on the matter, the judge instructed the respondent to prepare the written order for the court’s signature. The father claims he called from late September through early December 2001 and repeatedly requested that the respondent file the proposed order with the court; he instructed the respondent to go forward with filing the proposed order and let the other side object if necessary; he informed the respondent that he could not get his son’s counseling started without medical insurance and he could not add his son to his insurance without a court order because the time was outside the open enrollment period; he informed the respondent that he could not afford to continue making child support payments for his son but was concerned about stopping the payments without a written order; and that the respondent advised him to simply stop paying the support even though there was no written order signed by the court yet. The respondent maintains he promptly prepared the proposed orders but because he did not receive a response from opposing counsel, he did not file the orders in the case until December 2001 and does not recall the father informing him about the insurance problem with his son or any child support overpayments. As a result of not having the orders, the father had to travel to Ala-mosa to retrieve his son when his ex-wife refused to return the child after the Christmas holiday. The respondent failed to provide a copy of the signed orders to the father. On December 31, 2001, the father’s ex-wife filed a contempt action against him for failure to obtain medical insurance and counseling for their son. The respondent’s motion to withdraw was granted on January 11, 2002, so the father had to retain new counsel to represent him in the contempt matter. Having obtained a copy of the court orders from social services, the father obtained insurance coverage for his son and commenced the court-ordered counseling. By the time of the hearing, the father was no longer in contempt, and the court denied the motion filed by his ex-wife. The father incurred legal fees that were paid by the state of Colorado and were written off by subsequent counsel. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.3, Colo. RPC 1.4, and Colo. RPC 8.4(d).
— In one case, the respondent was appointed to represent a defendant-appellant in a Colorado Court of Appeals case. The respondent failed to file the opening brief but filed four motions for extension of time that were granted. In the last order, the court said no more extensions would be granted. However, the respondent filed additional motions for extension of time, which were granted, because the court noted that the appeal concerned a juvenile. The brief was eventually filed. In another case, the respondent was appointed to the defendant-appellant in a Colorado Court of Appeals case. The respondent failed to file the lower court record and instead filed a motion for extension of time that was granted. The respondent filed four additional motions for extension of time. Thereafter, the record was submitted. The respondent also filed motions for extensions of time to file the opening brief. The brief was submitted. During this time, the respondent was having significant personal difficulties, including medical problems, and had inadequate office equipment and support staff deficiencies. Conditions of the diversion agreement include in part: a law office audit and practice monitor. The rules implicated are Colo. RPC 1.1, Colo. RPC 1.3, Colo. RPC 3.4(c), and Colo. RPC 8.4(d).
Diligence and/or Failure to Communicate
— The respondent was hired to represent a client in a divorce. As part of a mediated settlement reached in the case, a qualified domestic relations order ("QDRO") was to be drafted transferring certain portions of the client’s retirement accounts to her spouse. These documents were conveyed to the respondent by opposing counsel in the case. After receiving these documents, the respondent reviewed them with the client, noting some concern regarding the division of assets contained in the documents. The respondent suggested that the client either consult with her accountant to determine the appropriate compensation to be provided to her ex-husband in order to satisfy the settlement that had been approved by the court, or authorize him to send the documents to a specialist for review. The client asked the respondent to ascertain whether there was someone who could review the documents on a low-cost basis. The respondent agreed to see if he could get a free consultation from a specialist that he knew. Thereafter, there was a breakdown in the attorney/client relationship, leading to confusion regarding further work that respondent was supposed to do. The respondent did not take any steps to clarify or alleviate this confusion. As a result of the confusion, the QDRO issue remained unresolved. The respondent acknowledges that he did not handle the QDRO issue in a diligent manner for this client. The respondent neglected to advise his client whether it was possible to obtain a free or low-cost review of the QDRO documents, and failed to clarify whether the client wanted him to continue working on the case. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.
— An attorney was retained to represent a defendant. That attorney later withdrew from the case, and the respondent took over the defendant’s representation. The defendant was ultimately convicted and sentenced to prison. The defendant retained another attorney to investigate and pursue post-conviction relief. At that time, the attorney contacted the respondent to obtain the defendant’s files. The respondent requested the attorney to provide a written release signed by the defendant for the files. The attorney obtained the release from the defendant and forwarded it to the respondent, but the respondent failed to forward the defendant’s files to the attorney. Thereafter, the attorney and his office telephoned and wrote to the respondent repeatedly requesting the defendant’s files. The respondent still did not release the defendant’s files. The attorney telephoned the Office of Attorney Regulation to request an investigation of the respondent’s failure to release the defendant’s files. As a result of being contacted by the Office of Attorney Regulation, the respondent released the defendant’s files to the attorney. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 1.16(d).
— The respondent spoke to a client about wanting to dissolve or modify a restraining order entered against the client in a prior divorce matter. The respondent had not previously represented the client. The respondent discussed his fees with the client on the telephone. The respondent agreed to obtain a copy of the restraining order and review it before meeting with the client. The client sent a $1,000 retainer check to the respondent. The respondent reviewed the divorce case file and the restraining order. However, before they ever met, the client called respondent and said he wanted to hold off any action at that time. The client said he would call respondent to schedule an appointment when he was ready to proceed. The respondent didn’t hear anything further until approximately four months later when the client’s wife called to say the client had been arrested and needed criminal defense representation. The respondent doesn’t handle criminal matters so he arranged for another attorney to contact the client. The respondent still expected to represent the client in the domestic restraining order matter once the criminal case was finished. The client subsequently resolved the restraining order issue on his own and did not request any further action from the respondent. The client called and wrote respondent asking for the return of the retainer. The respondent did not call or write back nor return the retainer. The Office of Attorney Regulation was contacted and the client again wrote to the respondent requesting the retainer refund. The respondent still did not respond to the request. The Office of Attorney Regulation contacted the respondent who claimed he had earned the retainer. However, in light of the client’s dissatisfaction and the failure to respond to the client’s requests, the respondent agreed to refund the entire retainer and provide an accounting to the client and the Office of Attorney Regulation. The respondent wrote to the client, apologized for the delay, and refunded the retainer, with copies to the Office of Attorney Regulation. The respondent also did not provide the client with any written fee disclosure or agreement because he had planned to have the client execute it when they met, but admits he never sent it to his client. The rules implicated are Colo. RPC 1.4, Colo. RPC 1.5(b), Colo. RPC 1.15(b), and Colo. RPC 1.16(d).
— The respondent was retained by a client to represent her in a motion for modification of child support filed by the client’s ex-husband. The respondent previously represented the client in the original dissolution matter but had not represented her since 1988. The respondent did not provide the client with any written fee disclosure other than sending her billing statements during his representation, which reflected how her $750 retainer was applied. The respondent filed a response to the modification motion and a request for mediation on the client’s behalf. The respondent also filed the client’s financial affidavit and disclosures. However, the respondent did not obtain similar information from the other side or take any action through the court to compel the opposing party to disclose his current financial information. The client scheduled and subsequently attended the mediation without the respondent. The parties reached a tentative agreement but the client was reluctant to finalize that agreement without current financial information from her ex-husband. The client informed the respondent that she would not sign any settlement agreement until her ex-husband produced verifiable information about his current income. The respondent maintains he contacted opposing counsel and requested an updated financial affidavit and disclosures from the client’s ex-husband. The other side provided no financial information. During January and the first half of February 2002, the client telephoned and left numerous messages for the respondent but received no calls back. The respondent maintains he didn’t return the client’s calls because he had no new information about the status of her case. Unable to reach respondent by phone, the client scheduled an appointment to meet with him and, according to the client, the respondent agreed to obtain the information. When another month passed with no contact from the respondent or his office, the client again began calling the respondent and when the respondent didn’t return her calls, the client fired him and retained new counsel. The respondent refunded the client’s retainer and forwarded her file to her new attorney. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, and Colo. RPC 1.5(b).
— The respondent was hired by a client to handle a dispute the client was having with a co-owner of a house. The client sought representation regarding a dispute as to how to partition property co-owned by the client and a friend. The client paid the respondent a retainer. There was no written fee agreement, or other written disclosure regarding the basis or rate of the respondent’s fee in the case. After not hearing from the respondent for some time, the client attempted to contact the respondent for a status report several times. The respondent was not available to the client, and did not return his calls. The client encountered difficulties communicating with the respondent over the course of the representation. The respondent acknowledges that there was a period of time while he represented the client that he had telephone service problems. In fact, the respondent moved offices and was without telephone service for a period of approximately one month. The respondent acknowledges that this problem could have created a communication problem with his client. The client faxed a brief letter to respondent inquiring about the status of his case, requesting a receipt for the money that he paid as a retainer in the case, and requested an accounting for the money that had been paid. The respondent did not respond to the client’s requests. The respondent drafted a verified complaint to partition real property. That was filed with the court. Eventually, the parties to the action settled the dispute, and entered into a stipulation of settlement regarding the partitioning of real property, and distribution of other personal property. The respondent did not provide an accounting or any billing statements to the client showing how any portion of the retainer was earned. The respondent, in response to an inquiry from the Colorado Supreme Court Office of Attorney Regulation Counsel, responded with information indicating a lack of familiarity with the appropriate way to handle client funds paid to him. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.5(b), and Colo. RPC 1.15(b).
— The respondent agreed to represent clients in submitting a notice of a claim against a public entity. The respondent also agreed to conduct further investigation to determine whether filing a civil action was advisable. The respondent conducted the investigation but failed to keep the clients advised of the status of the respondent’s investigation. After determining that she was not interested in pursuing the civil claim on behalf of the clients, the respondent ceased representation without clearly communicating to the clients the decision she had made. Thereafter, the respondent failed to return telephone calls or to respond to correspondence from the clients. The respondent’s conduct did not cause prejudice to the clients in being able to pursue their claim. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 1.16(d).
— The respondent was retained to represent a client in a child custody matter. The respondent’s engagement letter includes a sentence that states that the client’s initial retainer payment "shall be considered a minimum non-refundable fee, and no part of it shall be refunded to you." The respondent filed the client’s petition for custody in January 2002, but it was dismissed in early March 2002 for lack of action. The respondent reopened the case by mid-March 2002. The respondent admits he failed to provide billing statements to the client until August 2002, after a request for investigation was filed with the Office of Attorney Regulation. The respondent withdrew but did not timely release the client’s file after the court granted his motion. The client disputes the value and benefit of the respondent’s work. The respondent maintains he performed services equal to more than three times the amount the client paid. The rules implicated are Colo. RPC 1.3, Colo. RPC 1.4, Colo. RPC 1.5, Colo. RPC 1.15(b), Colo. RPC 1.16(d), and Colo. RPC 8.4(c).
— The respondent had an agreement with a financial services firm. The respondent allowed a representative of the firm to handle the execution of trust and estate documents. There was no evidence that the representative of the financial services firm engaged in the practice of law but issues arose during the execution of the documents. The respondent agreed not to delegate this function to a non-lawyer. The respondent also failed to communicate adequately with one client. The rules implicated are Colo. RPC 1.4(a) and Colo. RPC 5.5(b).
— During a period of time when the respondent was mourning the loss of his son and other close relatives and friends, the respondent’s license was administratively suspended for failure to pay his administrative fees. The respondent appeared in court while under administrative suspension. During the same time period, the respondent failed to communicate with a client for a two-month period. The client suffered no significant harm. The rules implicated are Colo. RPC 1.4(a) and C.R.C.P. 251.5.
— The respondent represented a client in a collection case. The respondent failed to file a timely motion to revive a judgment lien. Therefore, the lien was not honored when the subject property was sold. The respondent compensated the client for the remaining unpaid amount of the underlying judgment. The rule implicated is Colo. RPC 1.3.
— The respondent, in the course of representing a Chapter 13 bankruptcy debtor, failed to review the filings to ensure that only the correct party was included in the filing; failed to review the exemption schedules adequately, such that a homestead exemption was listed on commercial property; and failed to provide adequate information to the trustee’s office. The rule implicated is Colo. RPC 1.3.
— A Colorado State Patrol officer observed the respondent’s vehicle at an intersection. The driver of the car in front of the respondent’s vehicle was getting back into her car after checking for damage from the two vehicles having touched bumpers. When the traffic light turned green, the other car turned right into a gas station. To get around the other car, the respondent swerved her vehicle into another lane and almost struck the officer’s car. The officer pulled the respondent over and noted an odor of alcohol, bloodshot eyes, and slurred speech. The officer asked the respondent to perform roadside sobriety tests that the respondent failed. The officer arrested the respondent on suspicion of driving under the influence of alcohol. The respondent agreed to perform a breath test, which measured her blood alcohol level at .209. The respondent pled guilty to DWAI. The respondent subsequently requested the court review her sentence on the grounds of respondent’s being on medication at the time of the incident. The respondent admits she drank wine on the evening of the incident but maintains: (1) she was taking medication at the time of the offense; and (2) the medication caused dehydration that hampered the blood draw and exacerbated the alcohol’s effect. The court reviewed the respondent’s case and reduced the terms of her sentence and probation. This is the respondent’s first alcohol-related offense. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was arrested for DUI and a lane usage violation. The respondent pled guilty to DWAI and was sentenced to eighteen months’ probation, with conditions, including: an alcohol evaluation; forty-eight hours of public service; 180 days of jail time, with 135 days suspended and forty-five days of in home detention; and fines and costs. The alcohol evaluation obtained by the respondent recommended level II alcohol education, random UAS/breath testing, and twenty-six hours of therapy. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was charged with failure to drive in a single lane. The respondent’s BAC was 0.183, first sample, and 0.175, second sample. The respondent entered into a stipulated sentence to the charge of DUI that included, among other things, spending three days in jail. The stipulated sentence became an order of the court. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was arrested after allegedly failing to yield the right of way and hitting another car. That charge was ultimately dismissed. The driver of the other car sustained a shoulder injury as a result of the accident. The respondent’s blood alcohol level was .260. This was the respondent’s fourth conviction for an alcohol-related offense. The respondent entered a plea of guilty to DUI and was sentenced to supervised probation for a period of eighteen months; participation in an alcohol treatment program; Level 2 Education; eighty-six hours of therapy; 200 days of jail with 180 days suspended, electronic monitoring as an alternative to jail for twenty days; seventy-two hours of community service; attendance at a Victim Impact Panel; and payment of fines and costs. All other charges were dismissed. In addition to complying with the court’s order, the respondent must comply with the following: abstinence; outpatient treatment; therapy; any recommendations of medical doctors and therapists; attend AA; and random breathalyzers during duration of agreement. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent’s former girlfriend complained, among other things, that the respondent used marijuana on a regular basis. The respondent denied any other wrongdoing, but admitted to using marijuana on a recreational basis. The respondent denies ever being under the influence of marijuana while performing legal services for any of his clients, and denies any negative consequences resulting from his recreational marijuana use. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was taken into custody and charged with DUI of drugs and alcohol after a car accident on an icy road. A trial was held and the respondent was acquitted of all charges except careless driving and failure to notify the department of a change of address. During the trial, the respondent admitted to using cocaine on one occasion four years earlier. As a condition of the diversion agreement, the respondent will be tested randomly for cocaine use on a bi-monthly basis. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was giving an intoxicated friend a ride home on the back of his motor scooter. At an intersection, the respondent ran a red light and struck a vehicle. The scooter hit the driver’s side door of the vehicle with enough force to remove the mirror from the outside of the door. Both the respondent and his passenger were thrown from the scooter, and the passenger sustained broken ribs in the accident. The respondent was taken to the hospital, where three separate blood samples were taken between approximately two hours and forty-five minutes after the accident, and approximately four hours and ten minutes after the accident. Each separate test revealed a blood alcohol content of more than .20. The respondent was convicted, pursuant to a plea agreement, of driving under the influence of alcohol and third-degree assault. The respondent had a prior conviction for driving while ability impaired, also pursuant to a plea agreement. At the request of the Office of Attorney Regulation Counsel, the respondent underwent an independent medical evaluation. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— At approximately midnight, two Vail, Colorado, police officers on foot patrol observed the respondent and a female friend walking to a stairwell outside a restaurant and bar. The officers followed the respondent and his friend to the stairwell where the officers observed the respondent holding a piece of paper with a white powder substance up to his friend’s face. When the respondent’s friend sniffed the powder, the officers interrupted and questioned them about what they were doing. The respondent admitted the white powder was cocaine. The officers then arrested the respondent and his friend on suspicion of unlawful possession of a schedule II controlled substance (cocaine). The respondent maintains the cocaine belonged to his friend and that respondent did not ingest any of the drug himself. The respondent’s friend also maintains the cocaine was hers and that respondent did not use any of it himself. Subsequent testing following respondent’s arrest confirmed the respondent did not use any cocaine that night. The respondent was initially charged with one count of possession of a Schedule II controlled substance, a class 4 felony. The respondent pled guilty to possession of marijuana, a class 1 misdemeanor. This is the respondent’s first drug-related offense. Other than minor traffic infractions, the respondent has no other criminal record. The respondent, through his counsel, self-reported his conviction to the Office of Attorney Regulation. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).
— The respondent was approached by an individual about a loan/investment to buy shares in companies that the individual learned would soon be selling stock in initial public offerings. The respondent loaned the individual significant sums of money to invest, and the terms of repayment of the loan were reduced to writing. The individual did not pay back the money pursuant to the terms of the agreement. After the time that the money should have been paid back, with interest, the respondent made numerous demands to the individual for payment. In October 2001, the respondent sent a package to the individual that included a rough draft of a civil complaint and several draft letters to state and federal agencies. In December 2001, the respondent sent a letter to the individual and his attorney stating, in pertinent part, "Now it appears that [individual] is prepared to compound his problems by continuing to ignore the people who have tried to be helpful in resolving the sums due from him. The letters will go out in the mail today and within the next several weeks additional action will be taken, including a civil lawsuit and a criminal investigation, unless sufficient information is provided and assurance and collateral is provided to insure that [complainant] is going to meet his financial obligations." Respondent sent similar letters on December 10, 2001, December 13, 2001, and January 15, 2002, and filed complaints with law enforcement agencies, the Securities & Exchange Commission, and State Division of Securities. When asked for an explanation by the Colorado Supreme Court Office of Attorney Regulation Counsel of the statements respondent made in these letters, respondent stated, "The threats were not to obtain legal advantage in a civil matter, rather, they were an attempt to get [complainant] to honor his undisputed obligations both to myself and other investors," and "the purpose of the communications with [complainant] regarding the funds that he owed was to avoid a civil controversy, to incite him to both honor his obligations and to communicate with both myself and other investors." The rule implicated is Colo. RPC 4.5(a).
Communication with Person
Represented by Counsel
— The respondent represents a client in a post-decree dispute with the client’s ex-husband. The ex-husband is represented by an attorney. Opposing counsel wrote to the respondent about the parties’ disagreement concerning their children’s medical expenses. The letter concludes with a request that the respondent have her client transmit the medical bills directly to the ex-husband rather than to his attorney so both sides could keep their attorney fees down. The respondent wrote a letter directly to his client’s ex-husband regarding the medical bill issue. The respondent admits she directly communicated with her client’s ex-husband, knowing he was represented by counsel. However, the respondent maintains she did so as a result of having read opposing counsel’s letter too quickly and mistakenly thinking that opposing counsel was authorizing the direct communication. The rule implicated is Colo. RPC 4.2.
— The respondent filed an out-of-state civil action on behalf of the plaintiff subcontractor. The case involved fifty-one claims against a prime contractor. The defendant was represented by counsel. The opposing party requested a meeting with the plaintiff to discuss three of the pending claims, as well as allegations being made concerning some of the construction projects at issue in the case. The respondent’s client did not want to meet with the opposing party unless the respondent attended the meeting. The opposing party was notified that the respondent would be attending the meeting with his client and that the opposing party should notify and bring its attorney to the meeting. The respondent met with the opposing party as planned, but opposing counsel was not informed about the meeting. At the meeting, the respondent and his client discussed three of the pending fifty-one claims with the opposing party. The respondent did not obtain opposing counsel’s consent to communicate directly with the opposing party about the subject of the representation. The rule implicated is Colo. RPC 4.2.
Conflict of Interest
— The respondent, after leaving employment at a law firm, sent a letter to a third party that included information related to the representation of a former client. The respondent also included information about that former client in a pleading filed in a civil suit. There was no waiver by the client permitting such dissemination and the conduct did not fall within the exceptions of Colo. RPC 1.6. The respondent must attend ethics school and anger management therapy. The rule implicated is Colo. RPC 1.9(c).
— The respondent represented in an intermediary capacity both parties to a commercial real estate transaction. In doing so, the respondent failed to provide full disclosure in writing to each client concerning the implications of the common representation, including the advantages and risks involved, and the effect of the common representation on the attorney-client privileges. The respondent also failed to obtain each client’s consent, in writing, to the common representation. After one of the parties to the transaction decided to retain his own attorney, the respondent continued to represent one of the parties through the closing of the transaction. The respondent also had a second law office in which he practiced under an improper trade name. The rules implicated are Colo. RPC 1.9(a), Colo. RPC 2.2, and Colo. RPC 7.5(b).
Accounting Records Issues
— While practicing together, the respondent and another attorney undertook the representation of a client. The case settled in April 2000. At the time of the settlement, the law firm withheld an amount from the settlement proceeds for the specific purpose of paying an expert who had been utilized on the case. Because both attorneys believed the expert had been paid, the money was put in their operating account. Thereafter, the respondent and the other attorney parted ways. In May 2002, the client filed a grievance alleging that he was owed additional money, including the money that had been withheld from the settlement proceeds, because the expert had never been paid. The respondent had paid the expert before the grievance was filed. Investigation by the Office of Attorney Regulation Counsel revealed that no additional funds were due to the client, but that the expert had not timely received the $1,800. The rules implicated are Colo. RPC 1.15(a) and Colo. RPC 1.15(b).
— The respondent withdrew an amount from his trust account to cover earned fees. The withdrawal resulted in an overdraft in the trust account. At the time the overdraft occurred, the respondent was on vacation and did not return for several weeks. When the respondent returned, he deposited money to cover the overdraft as well as the money for the overdraft fee to the bank. The respondent has had a number of bookkeeping errors in his COLTAF account. The rule implicated is Colo. RPC 1.15.
Fairness to Opposing Party and Counsel
— The respondent represents the wife in a divorce proceeding. The husband was represented by another attorney. The respondent issued a subpoena duces tecum to the records custodian of the husband’s employer for his employment records. The respondent intended to effectuate the voluntary production of those records prior to the scheduled deposition over the objection of opposing counsel, and to cancel the deposition if the records were produced as requested and counsel had no questions of the custodian. Even though the respondent knew opposing counsel objected to the respondent’s document production procedure, the respondent went ahead and obtained the husband’s employment records outside of the deposition. The rule implicated is Colo. RPC 3.4(c).
— In the course of representing a client, respondent sent a letter to opposing counsel asking that the opposing party discontinue their cooperation with a criminal investigation/prosecution. The respondent sent a letter to opposing counsel proposing a settlement of two civil cases between the feuding clients that were pending. The letter included the following statement: "Additionally, [my client] requests that [your clients] drop their support for the charges of Cruelty to Animals and False Reporting, which the County Sheriff has filed against her." The rule implicated is Colo. RPC 3.4(f).
— This case arose out of the respondent’s divorce, which was relatively contentious. The respondent became ill, was unable to work for a period of time, and fell behind on his child support payments. The divorce court entered permanent orders, which provided inter alia that the respondent pay back child support to his ex-wife in an amount to be calculated according to a formula. The respondent assumed the amount of the back child support would be fixed at a later hearing, and so did not make arrangements to pay. The ex-wife’s counsel sought to garnish respondent’s personal bank accounts, and respondent moved to quash the writ. The divorce court held a hearing on the matter and entered a child support judgment in a fixed amount. The respondent then paid the amount due. Subsequent to this, the ex-wife moved for an award of attorney’s fees. The divorce court entered an order requiring the respondent to pay a sizeable award of fees (respondent appealed this award, and it was later reversed and remanded by the Colorado Court of Appeals). The respondent did not make arrangements to pay the award. After making attempts to garnish respondent’s personal bank accounts, the ex-wife garnished an account in the registry of the court containing funds due to the respondent and thereby collected the attorney’s fee award. The rule implicated is Colo. RPC 3.4(c).
Termination of Representation
— The respondent was retained to represent a client, the tenant, in a forcible entry and detainer ("FED") action. The respondent’s fee in the matter was paid by a service. The respondent appeared for court dates, and ultimately conceded the issue of possession on the client’s behalf. The damages portion of the matter was set for trial and scheduled for February 2002. The respondent contacted the client and advised him of what had transpired. Effective January 1, 2002, the respondent moved out of state and left the active practice of law. The respondent failed to notify the client, the opposing counsel, or the court of respondent’s move. The respondent failed to withdraw from the client’s case or forward the client his file. The client learned of respondent’s move when he contacted respondent’s former office in mid-January 2002 about additional claims being made by the client’s landlord. At that time, the respondent informed the client that he would need to retain new counsel for the FED damages trial. The client later obtained replacement counsel who filed a substitution of counsel, obtained the client’s file from respondent, and assisted the client in settling the FED case. Respondent did not receive any fee in the matter. In another matter, the respondent was hired by a client to represent her at a permanent orders hearing scheduled for December 6, 2001. The respondent was paid a retainer. Despite repeated efforts to contact the respondent, none of the client’s calls and
e-mails were returned. She then drove to his office and spoke with him for the first time since she had hired him. By letter dated January 17, 2002, the respondent notified the client that he had moved out of state, enclosed his bill, which showed a credit balance, and gave her a cell phone number to contact. When the client was unable to contact the respondent, she sought advice from another attorney and learned for the first time that the final order had been filed by opposing counsel. The respondent had never spoken with the client after the permanent orders hearing nor had he provided her with a copy of the proposed order. That was entered without any input from the respondent. The respondent claims he and opposing counsel represented to the court that there were no child support issues because they had agreed that child support would be paid pursuant to the guidelines. Because the respondent did not discuss the child support issues with the client and explain the ramifications of increased overnights and her husband’s changed circumstances, she did not know for some time that instead of receiving child support, she would be paying it. The client contacted the respondent’s prior firm for her file and unearned retainer. The rule implicated is Colo. RPC 1.16(d).
— The respondent represented the defendant in a criminal matter. Shortly before the case was to proceed to trial, the respondent appeared before the court and informed the court and opposing counsel for the first time that he wished to withdraw from representation because of mental health problems. The respondent was allowed to withdraw and the trial was rescheduled. However, the respondent failed to promptly turn over to his client the client’s file. After initially sending the wrong file to his client, the respondent finally sent the correct file approximately three months after it was requested. The rule implicated is Colo. RPC 1.16(d).
— The respondent was retained to represent a client in a personal injury case. Over time, the attorney-client relationship deteriorated. The client and the respondent do not agree on the reasons. The respondent’s repeated efforts to withdraw from the case were denied. The respondent filed another motion to withdraw, but the case was ultimately dismissed because the client never responded to the respondent’s request for settlement authority and because the client did not complete interrogatory responses. The respondent’s motion to withdraw was then granted. The client first asked for his file in or about January 2002. The respondent did not send the client his file until mid-July 2002. The rule implicated is Colo. RPC 1.16(d).
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