Matters Resulting in Diversion and Private Admonition

• Publication year: 2004
• Pages: 131

33 Colo.Law. 131 Colorado Lawyer 2004.

2004, April, Pg. 131. Matters Resulting In Diversion And Private Admonition

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131

Vol. 33, No. 4, Pg. 131

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 131]

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 November 21, 2003, through February 17, 2004, at the intake stage, Regulation Counsel entered into 18 Diversion Agreements involving 20 separate requests for investigation. ARC approved 8 Diversion Agreements involving 11 separate requests for investigation. The PDJ did not approve a Diversion Agreement during this time frame. ARC issued one private admonition 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 that 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 type of misconduct resulting in diversion for the time period described above, generally involves 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

- The respondent represented a defendant at a new trial following a prior conviction that was reversed and remanded on appeal. In the prior case, the defendant was charged with second-degree kidnapping with crime of violence and sexual assault, as well as an additional count of crime of violence. At the first trial, the defendant was acquitted of the crime of violence charge. At the second trial, the defendant was again charged with a crime of violence. The respondent did not object. The jury instructions included instruction on the crime of violence. The respondent did not object, and the defendant was convicted on all counts. After the verdict, but before sentencing, the respondent reported the error to the defendant and the court; the crime of violence conviction was deleted from the record by the court. The defendant's conviction at the second trial described herein has once again been reversed for reasons unrelated to the respondent's conduct. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rule implicated is Colo. RPC 1.1.

Diligence and/or Failure to Communicate

- The respondent represented a client in a criminal case and in a subsequent Rule 35 motion. The Rule 35 motion was heard by the court in May 2002 and denied by the court in July 2002. The respondent, on behalf of the client, filed an appeal in August 2002. In December 2002, the Court of Appeals issued a show-cause order as to why the case should not be dismissed for lack of a record. In January 2003, the respondent filed a response to the show-cause order, informing the court that he was at that time unable to locate necessary transcripts as part of the record. No other response to the show-cause order was filed by the respondent. The Court of Appeals dismissed the appeal on April 3, 2003, for failure to submit a record or other responses to the show-cause order. In efforts to locate the necessary transcripts, the respondent "checked with the court clerks" in March 2003, but took no further efforts to locate the existing transcripts or have new transcripts prepared. In April 2003, the respondent, via written correspondence, informed the client that the appeal had been dismissed and that he would be taking further steps to locate the necessary parts of the record and have the appellate case reopened. Since that date, up through November 5, 2003, the respondent took no meaningful efforts to locate the transcripts, have the appeals case reopened, or to communicate with the client. In addition to the appeals case, in the summer of 2002, the client and respondent had discussed the respondent assisting the client in applying and obtaining Social Security benefits. The respondent states that he informed the client that the client would have to make personal application for the SSI benefits before the respondent could take any further action or steps to assist with the Social Security benefits case. However, the respondent failed to respond to further written inquiries from the client concerning this matter. As part of the conditions of the Diversion Agreement, the respondent must attend Ethics School. The rules implicated are Colo. RPC 1.3 and Colo. RPC 1.4.

- The respondent represented an immigrant from Mexico who was eligible for permanent legal resident status based on his father's naturalization and application for permanent resident status. The client was notified of a continued hearing date. When the client did not appear, the hearing was rescheduled. Because of confusion regarding the client's location, the respondent did not attempt communication with the client regarding the new date. The client thereafter hired new counsel to re-open the...