Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
| Jurisdiction | Colorado,United States |
| Citation | Vol. 39 No. 7 Pg. 147 |
| Pages | 147 |
| Publication year | 2010 |
2010, July, Pg. 147. Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
July 2010
Vol. 39, No. 7 [Page 147]
Articles describing Diversion Agreements and private admonitions as part of the Attorney Regulation System are published on a quarterly basis. These summaries are contributed quarterly 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 January 28, 2010 through May 3, 2010, at the intake stage:
* Regulation Counsel entered into sixteen Diversion Agreements involving sixteen requests for investigation
* the ARC entered into seven Diversion Agreements involving eight requests for investigation
* no Diversion Agreements were submitted to the PDJ for approval
* the ARC issued one private admonition involving one request 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 he or she 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, 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 OARC attorneys. 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 from January 28, 2010 to May 3, 2010 generally involve the following:
. the scope of representation and allocation of authority between client and lawyer, implicating Colo. RPC 1.2
. an attorney's neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4
. fee issues, implicating Colo. RPC 1.5
. confidentiality issues, implicating Colo. RPC 1.6
. conflict of interest, implicating Colo. RPC 1.7
. trust account issues, implicating Colo. RPC 1.15
. truthfulness in statements to others and respect for rights of third persons, implicating Colo. RPC 4.1 and 4.4
. failure to supervise non-lawyer staff, implicating Colo. RPC 5.3
. assisting another in the unauthorized practice of law/multijurisdictional practice of law, implicating Colo. RPC 5.5
. committing a criminal act, implicating Colo. RPC 8.4(b)
. 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 depression, alcoholism, or other mental health issues that may be affecting the attorney's ability to practice law.
Footnotes
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 January 28, 2010 to May 3, 2010. 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.
Scope of Representation and Confidentiality
A client was referred to respondent for representation in a criminal case. After client hired respondent and paid the retainer, respondent continued to discuss client's case and issues relevant to that case with the person who referred client to respondent.
Respondent asserts that client authorized this communication about the case with the other person. Client denies that any authorization was given for respondent to talk to this person, but concedes that authorization for was given for respondent to talk about the case with his ex-wife. Respondent's file contains a written authorization for respondent to talk about the case with client's ex-wife. Respondent did not obtain a written authorization from client to talk to the other person.
Respondent investigated the case by talking to the alleged victim, as well as to others, to advise client and to try to negotiate the dismissal of any criminal charges or to negotiate a favorable plea agreement for client. Respondent also engaged in e-mail discussions with the prosecutors handling the case to negotiate the dismissal of the charges or to obtain a favorable plea agreement. In these e-mails, respondent made the following and other statements to the prosecutors: client made an "obvious confession" to the police; client was "very controlling"; the alleged victim in the case was "very sweet"; and client was "much less sympathetic than [was] initial[ly]...
To continue reading
Request your trial