Tcl - Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition - April 2007 - Colorado Disciplinary Cases

• Publication year: 2007
• Pages: 105
• Citation: Vol. 36 No. 4 Pg. 105

36 Colo.Law. 105 Colorado Lawyer 2007.

2007, April, Pg. 105. TCL - Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition - April 2007 - Colorado Disciplinary Cases

The Colorado Lawyer
April 2007
Vol. 36, No. 4 [Page 105]

From the Courts
Colorado Disciplinary Cases

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

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 Attorney Regulation Counsel. Visit
http://www.coloradosupremecourt.com/Regulation/Regulation.asp.

Diversion and Private Admonition Summaries

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 (OARC). Thereafter, ARC or some other entity must approve the agreement

From November 19, 2006 through February 19, 2007, at the intake stage, Regulation Counsel entered into five Diversion Agreements involving seven requests for investigation. ARC entered into six Diversion Agreements involving seven requests for investigation during this time frame. The PDJ did not approve any Diversion Agreements during this time frame. ARC did not approve any private admonitions during this time frame. The PDJ approved one private admonition during this time frame

Determining if Diversion is Appropriate

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).

Purpose of the Diversion Agreement

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 such as 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 generally is no shorter than one year and no longer than two years.

Conditions of the Diversion Agreement

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

CLE course attendance

any other conditions that would be determined 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.

Types of Misconduct

The types of misconduct resulting in diversion generally involve the following:

an attorney's 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

trust account issues, implicating Colo. RPC 1.15

failing to properly withdraw, implicating Colo. RPC 1.16

communication with persons represented by counsel, implicating Colo. RPC 4.2

conduct prejudicial to the administration of justice, implicating Colo. RPC 8.4(d)

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...