Matters Resulting in Diversion and Private Admonition
| Publication year | 2005 |
| Pages | 145 |
2005, January, Pg. 145. Matters Resulting In Diversion And Private Admonition
Vol. 34, No. 1, Pg. 145
The Colorado Lawyer
January 2005
Vol. 34, No. 1 [Page 145]
January 2005
Vol. 34, No. 1 [Page 145]
From the Courts
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
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 August 18, 2004, through November 18, 2004, at the
intake stage, Regulation Counsel entered into 10 Diversion
Agreements involving 12 requests for investigation. ARC
approved 16 Diversion Agreements involving 29 requests for
investigation. The PDJ approved 2 Diversion Agreements during
this time frame. ARC issued 2 private admonitions involving 4
requests for investigation during this time frame. The PDJ
approved one private admonition involving 2 requests for
investigation 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 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 nor
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 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: 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; fee issues, implicating Colo.
RPC 1.5; conflicts of interest, implicating Colo. RPC 1.7(b);
dealing with unrepresented persons implicating Colo. RPC 4.3;
conduct that is prejudicial to the administration of justice,
implicating Colo. RPC 8.4(d); trust account issues,
implicating Colo. RPC 1.15; and knowingly disobeying an
obligation under the rules of a tribunal, implicating Colo.
RPC 3.4(c)..
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
Diversion Agreements
Competence
- Complainant hired respondent on or about October 1, 1999,
for representation arising out of injuries sustained in an
automobile collision. A contingency fee was executed on
October 4, 1999. Respondent subsequently filed a lawsuit
prior to the expiration of the statute of limitations in
October 2002. Respondent never effected service of a summons
and complaint upon defendant in the case and, as of the date
the attorney-client relationship ended, defendant's
whereabouts were unknown. Respondent failed to effect service
upon defendant in the two years after filing suit. Respondent
obtained a trial date for December 2004, but never engaged in
any discovery and failed to keep complainant informed of the
status of the case, and failed to return numerous telephone
calls or provide specific written documentation as requested
by complainant on numerous occasions. Complainant terminated
the attorney client-relationship in July 2004 and retained
new counsel to try and salvage the case. As part of the
conditions of the Diversion Agreement, respondent must attend
Ethics School. The rules implicated are Colo. RPC 1.1, Colo.
RPC 1.3, and Colo. RPC 1.4.
- Respondent filed a motion in a DUI that had no chance of
success. He failed to calendar the hearing on the motion and
was not prepared to handle it competently. He had no
witnesses scheduled to appear to support the motion, and
probably would not have done so even if he had the matter on
his calendar. He charged his client for this motion, even
though it was valueless. As part of the conditions of the
Diversion Agreement, respondent must attend Ethics School.
The rules implicated are Colo. RPC 1.1 and Colo. RPC 1.5(a).
Diligence and/or Failure to Communicate
- Respondent was retained and paid $300 by a client who was
seeking to break his lease and sue the landlord for mold
exposure. Respondent had no written fee agreement or written
fee disclosure. At respondent's...
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