Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
| Jurisdiction | Colorado,United States |
| Citation | Vol. 51 No. 9 Pg. 60 |
| Pages | 60 |
| Publication year | 2022 |
FROM THE COURTS
COLORADO SUPREME COURT OFFICE OF ATTORNEY REGULATION COUNSEL
Diversion is an alternative to discipline. Pursuant to CRCP 251.13 and depending on the stage of the proceeding, Attorney Regulation Counsel (Regulation Counsel), the Legal Regulation Committee (LRC), 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, LRC or the PDJ must approve the agreement.
Determining if Diversion is Appropriate
Diversion is appropriate where (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. Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion. Diversion agreements strive to educate and rehabilitate attorneys so that they don't engage in such misconduct in the future. They may also 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.
Diversion Agreement Conditions
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 conducted by OARC attorneys. An attorney may also be required to fulfill any of the following conditions:
■ law office audit
■ practice monitor
■ practice mentor
■ financial audit
■ Colorado Lawyer Self-Assessment Program (online self-assessment)
■ restitution
■ payment of costs
■ mental health evaluation and treatment
■ continuing legal education (CLE) courses
■ any other conditions that would be determined appropriate for the type of misconduct.
Diversion agreements generally span from one to three years. 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 CRCP 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 CRCP 251.13 before an agreement can be revoked.
Diversion Summaries
From May 1,2022, through July 31, 2022, at the intake stage, Regulation Counsel entered into 15 diversion agreements involving 15 separate requests for investigation. LRC approved 8 diversion agreements involving 10 separate requests for investigation during this time frame. One diversion agreement was submitted to the PDJ for approval. Below are summaries of some of these diversion agreements.
Lack of Competence
►Respondent was retained to represent the client in an immigration matter. Respondent charged the client $5,495 (a $3,500 flat fee plus $1,995 for filing fees and costs). Respondent filed the petition on behalf of the client, but it was rejected because respondent used an incorrect form. The client promptly provided the updated form, but respondent did not file the updated form until the client reached out to respondent a month later. Respondent again filed the incorrect form, which was rejected. Respondent offered a partial refund to include filing fees and a portion of the legal fees. Respondent indicated that respondent earned the remainder of the fees, which the client disputed.
Rules Implicated: Colo. RPC 1.1, 1.3, and 1.5(a), (f), and (h).
Diversion Agreement: One-year diversion agreement with conditions, including ethics school, fee arbitration, certified completion of the online self-assessment program, and payment of costs.
► A client hired a law firm to represent him in a civil claim against his daughter and her husband for various instances of financial exploitation. Respondent was assigned to the case and filed a complaint raising numerous specific claims for relief. Before trial, the defendants in the civil case filed a motion for summary judgment on all issues. Respondent filed a responsive brief objecting to the relief requested and asserting that respondent's client disputed certain facts upon which the motion relied. However, no supporting affidavit of the plaintiff was submitted by respondent, and no extension of time to make such a submission w as requested. The defendants then filed a reply pointing out the lack of supporting sworn testimony from the plaintiff. After receiving this pleading, respondent filed a delinquent affidavit of the plaintiff disputing certain facts alleged by the defendants in their original motion for summary judgment, but did not seek leave of the court to file this affidavit out of time. The defendants motioned to strike the plaintiff's affidavit. In response, respondent filed a brief explaining why the affidavit was being delinquency filed. The court granted the motion to strike and then granted the defendant's motion for summary judgment on all claims.
Rules Implicated: Colo.RPC 1.1,1.3, and 1.4.
Diversion Agreement: One-year diversion agreement with conditions, including ethics school, certified completion of the online self-assessment program, and payment of costs.
Neglect of a Legal Matter
► A client hired respondent to assist with the probate of her family member's will. The client signed an hourly fee agreement containing a provision for the submission of fee disputes to arbitration conducted by the CBA Fee Arbitration Committee. The client paid an...
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