Colorado Supreme Court Office of Regulation Counsel

• Publication year: 2000
• Pages: 117
• Citation: Vol. 29 No. 10 Pg. 117

29 Colo.Law. 117 Colorado Lawyer 2000.

2000, October, Pg. 117. Colorado Supreme Court Office of Regulation Counsel

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117

Vol. 29, No. 10, Pg. 117

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 117]

From the Courts
Matters Resulting in Diversion
Colorado Supreme Court Office of Regulation Counsel

Editor?s Note: Articles describing diversion agreements 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 Summaries

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 May 16, 2000, through August 15, 2000, at the intake stage, Regulation Counsel entered into 11 Diversion Agreements. From May 16 through August 12, 2000, ARC approved 18 Diversion Agreements involving 27 separate requests for investigation. The PDJ approved one Diversion Agreement 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 that may preclude Regulation Counsel from agreeing to diversion are set forth in the C.R.C.P. 251.13(b). For example, if the misconduct involves dishonesty, misrepresentations, domestic violence, or is a pattern of misconduct, the presumption is against diversion.

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. It is also hoped that a diversion agreement will address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reasons for such conduct were 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 organized and taught by attorneys from the Office of Attorney Regulation Counsel. 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; attend CLE courses; and any other conditions that may be appropriate for the particular type of misconduct.

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: 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; conflicts of interest, in violation of Colo. RPC 1.7(b); violating a court order, in violation of Colo. RPC 3.4; and threatening criminal or administrative action to gain an advantage in a civil case against the opposing party or attorney, in violation of Colo. RPC 4.5.

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