Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition - January 2008 - Colorado Supreme Court Office of Attorney Regulation Counsel
| Publication year | 2008 |
| Pages | 105 |
2008, January, Pg. 105. Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition - January 2008 - Colorado Supreme Court Office of Attorney Regulation Counsel
January 2008
Vol. 37, No. 1 [Page 105]
Colorado Supreme Court Office of Attorney Regulation Counsel
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.
Diversion and Private Admonition Summaries
Diversion is an alternative to discipline.(fn1) 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 August 18, 2007 through November 19, 2007, at the intake stage:
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.(fn2) Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion.(fn3)
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 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 generally is no less than one year and no greater than three 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 OARC. An attorney also may be required to fulfill any of the following conditions:
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, 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 from August 18, 2007 to November 19, 2007 generally involve the following:
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.
Notes
1. See C.R.C.P. 251.13.
2. See C.R.C.P. 251.13(b).
3. See id.
Random Samples of Diversion Agreements
Below are random samples of Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct from August 18, 2007 to November 19, 2007. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct implicated, and the corresponding conditions of the Diversion Agreement.
Competence
* In January 2004, client sought representation for a post-decree dispute she was having with her ex-husband. Client retained an attorney (Attorney A) and signed a written fee agreement with him.Respondent shared office space with Attorney A and maintains he had an "of counsel" relationship with Attorney A. However, the fee agreement between Attorney A and client did not mention respondent or any "of counsel"...
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