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TCL > April 2014 Issue > Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

The Colorado Lawyer
April 2014
Vol. 43, No. 4 [Page  91]

© 2014 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Matters Resulting in Diversion

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

Articles describing Diversion Agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These summaries are contributed quarterly by the Colorado Supreme Court Office of Attorney Regulation.


Diversion and Private Admonition Summaries

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 some other entity must approve the agreement.

From November 1, 2013 to January 31, 2014, at the intake stage, Regulation Counsel entered into one Diversion Agreement involving one request for investigation. ARC approved five Diversion Agreements involving ten requests for investigation during this period. There were no Diversion Agreements submitted to the PDJ for approval. ARC issued no private admonitions. The PDJ did not approve any private admonitions.

Determining Whether 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 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 the 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, which are conducted by attorneys from OARC. An attorney also may be required to fulfill any of the following conditions:

  • law office audit
  • practice monitor
  • financial audit
  • restitution
  • payment of costs
  • mental health evaluation and treatment
  • 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 that the attorney has breached the Diversion Agreement, 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 from November 1, 2013 to January 31, 2014 generally involved the following:

  • an attorney’s lack of competence, implicating Colo. RPC 1.1
  • an attorney’s neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4
  • meritorious claims issues, implicating Colo. RPC 3.1
  • an attorney shall make reasonable efforts to expedite litigation consistent with the interests of the client, implicating Colo. RPC 3.2
  • committing a criminal act, implicating Colo. RPC 8.4
  • violation of the criminal laws of any state, implicating Colo. RPC 251.5.

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.

Diversion Agreements

Below are some Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct from November 31, 2013 to January 31, 2014. 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.

Competence

> In a personal injury action, respondent failed to disclose information relating to a previous accident; failed to disclose information, including medical records or wage loss records; and improperly invoked privileges over certain documents during a contentious discovery period, resulting in multiple motions to compel.

Rules Implicated: Colo. RPC 1.1, 3.2, and 8.4(d).

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School, attend seven hours of discovery-related CLE, submit to a practice audit, and pay all costs of the disciplinary proceedings.

Neglect/Communication

> Respondent was appointed counsel for a client serving a prison sentence for convictions of first-degree murder and attempted first-degree murder. Respondent filed a petition for post-conviction relief on behalf of the client. The petition was denied after an evidentiary hearing that included expert testimony. The client asked respondent to file an appeal, and respondent was appointed to do so. Respondent filed the appeal, which also was denied.

Respondent failed to notify the client that the appeal was denied until one year after the court of appeals issued its order. Therefore, the client missed the forty-two-day period following the court of appeals order during which the client could have filed a pro se petition for certiorari to the Colorado Supreme Court.

Rule Implicated: Colo. RPC 1.4.

Diversion Agreement: As part of the conditions of the one-year Diversion Agreement, respondent must attend Ethics School and pay all costs of the disciplinary proceedings.

____________________

> Complainants retained respondent in 2011 to represent them in various family law matters. During the representation, respondent failed to adequately prepare for a hearing on a motion to reduce spousal maintenance; filed an appeal on behalf of a client without a legal basis, and then failed to dismiss it after determining the appeal had no merit; failed to properly disclose a clients expert witness; failed to submit exhibits to the court in advance of a remedial contempt hearing; and failed to send a copy of an opening brief on appeal to a client before filing it.

Rules Implicated: Colo. RPC 1.4, 3.1, and 8.4(d).

Diversion Agreement: As part of the conditions of the two-year Diversion Agreement, respondent must attend Ethics School, submit to a practice audit monitoring, attend CLEs, and pay all costs of the disciplinary proceedings.

Criminal Conduct

> In April 2013, respondent was arrested and charged with driving under the influence (DUI), not using a turn signal, and weaving. Pursuant to the Colorado Express Consent Law, respondent submitted to a chemical test to determine the blood alcohol concentration (BAC) at the time of driving. The results of the chemical test indicated a BAC of .168.

In June 2013, respondent was convicted of DUI. Respondent was sentenced to one year of supervised probation; twenty-five days in jail, suspended; forty-eight hours of useful public service; participation in an alcohol evaluation, with compliance with any treatment terms or conditions made pursuant to that evaluation; attendance at a Victim Impact Panel; and various fines and costs.

Rules Implicated: Colo. RPC 8.4(b) and 251.5(b).

Diversion Agreement: As part of the conditions of a one-year Diversion Agreement, respondent must comply with the court sentence, attend Ethics School, and pay all costs of the disciplinary proceedings.

© 2014 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2014.


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