Matters Resulting in Diversion and Private Admonition

• Publication year: 2003
• Pages: 147

32 Colo.Law. 147 Colorado Lawyer 2003.

2003, October, Pg. 147. Matters Resulting In Diversion And Private Admonition

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147

Vol. 32, No. 10, Pg. 147

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 147]

From the Courts
Matters Resulting in Diversion
Matters Resulting In Diversion And Private Admonition

Editor's Note: Articles describing Diversion Agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These summaries 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 20, 2003, through August 19, 2003, at the intake stage, Regulation Counsel entered into 18 Diversion Agreements involving 18 separate requests for investigation. ARC approved 6 Diversion Agreements involving 9 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 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 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 and/or Trust Account School, which are conducted by attorneys from the Office of Attorney Regulation Counsel. An attorney may also 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: 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 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, implicating Colo. RPC 8.4(b); fee issues, implicating Colo. RPC 1.5; failure to withdraw from representation or protect the client's interest upon termination, implicating Colo. RPC 1.16; revealing confidential information, implicating Colo. RPC 1.6; communicating with someone represented by counsel, implicating Colo. RPC 4.2; and trust account issues, implicating Colo. RPC 1.15.

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

Competence

- An experienced lawyer handling a medical malpractice case failed to timely file a certificate of review, as required by CRS § 13-20-602. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.3.

Diligence and/or Failure to Communicate

- The respondent represented a party involved in a dispute pertaining to a business that was an asset of an estate. The respondent's client, an employee of the business prior to the owner's death, ran the business for a short time after the owner's death in October 1998. The respondent's client was in possession of personal checks with a total value of $1,223.86, made payable to the business. The personal checks were written by clients of the business after the owner's death, and were payments for services rendered after the owner's death. The dispute pertaining to the business included who was entitled to the proceeds of the checks written to the business after the owner's death. The personal checks were never cashed. In February 2000, the attorney for the opposing party wrote a letter to the respondent setting forth several issues to be addressed at a session in the case. One of the issues raised in that letter pertained to assets of the business that accrued after the time of the owner's death. The dispute pertaining to the business was resolved in December 2000. At that time, it was determined that the checks belonged to the estate, and not to the respondent's client. However, the checks were stale due to the fact that...