Colorado Supreme Court Office of Regulation Counsel

• Jurisdiction: Colorado,United States
• Citation: Vol. 31 No. 10 Pg. 153
• Pages: 153
• Publication year: 2002

31 Colo.Law. 153 Colorado Lawyer 2002.

2002, October, Pg. 153. Colorado Supreme Court Office of Regulation Counsel

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153

Vol. 31, No. 10, Pg. 153

The Colorado Lawyer
October 2002
Vol. 31, No. 10 [Page 153]

From the Courts
Matters Resulting In Diversion and Private Admonition
Colorado Supreme Court Office of 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
Admonition 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 18, 2002, through August 19, 2002, at the intake stage, Regulation Counsel entered into 18 Diversion Agreements involving 24 separate requests for investigation. ARC approved 9 Diversion Agreements involving 16 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 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 also will 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 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. 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: 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); conduct that was prejudicial to the administration of justice, in violation of Colo. RPC 8.4(d); conflicts of interest, in violation of Colo. RPC 1.7, Colo. RPC 1.8(a), and Colo. RPC 1.9; failure to respect the rights of third persons concerning the use of medical records, in violation of Colo. RPC 4.4 and Colo. RPC 8.4(b); 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
Agreements

Criminal Conduct

- The respondent physically attacked a car and left the scene. As a result, the respondent was charged with criminal mischief (offensive gesture) and disorderly conduct. During the arraignment, the respondent was given one month to consider whether to plead to a reduced charge of disorderly conduct. The respondent failed to appear for the next court date and a bench warrant for his arrest was issued. The respondent pled guilty to disorderly conduct and agreed to pay $500 restitution for reimbursement of the deductible required to repair damage to the car. The respondent did not report his conviction to the Office of Attorney Regulation Counsel. The rules implicated are Colo. RPC 8.4(b), Colo. RPC 8.4(g), and C.R.C.P. 251.20(b).

- The respondent was observed weaving and speeding while driving. The respondent was arrested and found to have a blood alcohol concentration ("BAC") of .158. This was the respondent's first alcohol-related offense and involved no injuries or property damage. The respondent pled guilty to DWAI and was sentenced to twelve months of probation and twenty-four hours of useful public service, in addition to fines and costs. The respondent had completed Level II alcohol education prior to her alcohol evaluation. The rules implicated are Colo. RPC 8.4(b) and C.R.C.P. 21.5(b).

- An individual parked her car in a reserved parking space, left her car unlocked in the space for approximately one hour, then returned and drove away, and later discovered that her purse and a compact disc case holding approximately fifty CDs were missing from her vehicle. The respondent sent the individual a letter stating, "As a result of your trespass parking in an unauthorized parking space and the inconvenience you caused in that regard, we are in possession of a packet of 48 CDs and a small purse which contains a few credit cards and a comb." The letter provided information regarding the steps the individual would have to take to retrieve her property. On an unrelated matter, while representing a client, the respondent asked for overdue fees and an advance on fees prior to completion of a client's case. The client requested that the respondent allow him to make monthly payments for the balance owed and future fees in the case. The respondent agreed but asked the client to sign a promissory note and deed of trust on client's house to secure the respondent's interest in being paid. The respondent presented them to the client shortly before the scheduled final hearing in the case, but they were not signed until after the case was actually settled. The respondent failed to advise the client that the use of independent counsel may be advisable, in light of the fact that the respondent was taking an adverse interest in client's property and thereby neglected to give his client a reasonable opportunity to seek the advice of independent counsel in the transaction. The rules implicated are Colo. RPC 8.4(b), Colo. RPC 8.4(g), and Colo. RPC 1.8(a).

- The respondent was at a bar in Breckenridge with some friends. After drinking alcohol late into the evening, he became separated from his friends. The respondent began walking through the town of Breckenridge. He broke the door of a pizza parlor, went inside, and immediately called the police to advise them of what he had done. While he was waiting for them to arrive, he ate pizza that was left over in the restaurant. The police arrested the respondent for burglary. The respondent was arrested by the sheriff's department for violations of CRS § 18-4-203(1) (burglary, second degree) and § 18-4-501 (criminal mischief). The respondent entered into a plea agreement. Pursuant to the plea agreement, the respondent was placed on a two-year deferred judgment for violation of CRS § 18-4-503(1), second-degree criminal trespass. The rules implicated are Colo. RPC 8.4(b) and Colo. RPC 8.4(g).

- The respondent was arrested for driving a vehicle while under the influence of alcohol. Her blood alcohol content was .454. The respondent was stopped again while driving her vehicle and, as a result of a detection of...