Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
| Publication year | 2009 |
| Pages | 131 |
| Citation | Vol. 38 No. 10 Pg. 131 |
2009, October, Pg. 131. Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
October 2009
Vol. 38, No. 10 [Page 131]
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 May 13, 2009 through August 11, 2009, at the intake stage:
Regulation Counsel entered into eleven Diversion Agreements involving eleven requests for investigation
the ARC entered into six Diversion Agreements involving seven requests for investigation
the PDJ did not approve any Diversion Agreements
the ARC issued four private admonitions involving seven requests for investigation
the PDJ did not approve any private admonitions.
Determining Whether Diversion is Appropriate
Regulation Counsel reviews the following factors to determine whether 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.(fn2) Other factors 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. Classes are conducted by attorneys from the OARC. The 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
continuing legal education (CLE) courses
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 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 during May 13, 2009 through August 11, 2009 generally involved the following:
competent representation to a client, implicating Colo. RPC 1.1
trust account issues, implicating Colo. RPC 1.15
an attorney's neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 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
confidentiality of information, implicating Colo. RPC 1.6
conflict of interest-current clients, implicating Colo. RPC 1.7
failing to comply with a court order, implicating Colo. RPC 3.4(c)
communications with person represented by counsel, implicating Colo. RPC 4.2
respect for rights of third person, implicating Colo. RPC 4.4
committing a criminal act, implicating Colo. RPC 8.4(b)
engaging in conduct that is 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...
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