Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
| Publication year | 2023 |
| Pages | 68 |
January, 2023
COLORADO SUPREME COURT OFFICE OF ATTORNEY REGULATION COUNSEL
Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition
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
■ 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 August 1, 2022, through October 31, 2022, at the intake stage, Regulation Counsel entered into 12 diversion agreements involving 19 separate requests for investigation. LRC approved 3 diversion agreements involving 4 separate requests for investigation during this time frame. Below are summaries of some of these diversion agreements. There were no diversion agreements submitted to the PDJ for approval.
Lack of Competence
Respondent was court-appointed to assist a client with his criminal post-conviction proceedings. Respondent sought and was granted an enlargement of time to file an amendment to the client's pro se Rule 35(c) petition. There was no communication between respondent and this client for more than eight months prior to the expiration of the court-imposed deadline to amend the client's original petition. Respondent failed to file an amended petition by the court-imposed deadline, and the client's original pro se petition was denied by the court. Respondent failed to timely communicate the petition's denial to the client. As a result, the client's subsequent appeal of the denial of his Rule 36(c) petition was deemed untimely and dismissed by the Colorado Court of Appeals. Respondent was cooperative with the client's subsequent counsel and provided an affidavit admitting respondent's error for the client to use in his efforts to seek post-conviction relief through new counsel..
Rules Implicated: Colo. RPC 1.1, 1.3, and 1.4(a).
Diversion Agreement: One-year diversion agreement with conditions, including ethics school, online self-assessment, and payment of costs.
In 2022, respondent represented a husband in his divorce proceeding. The client's ex-wife was also represented by counsel in the matter. Pursuant to the terms of the divorce, respondent's client was required to pay his ex-wife a substantial sum of money. After reaching out to opposing counsel by phone and email regarding disbursement of the funds, respondent began receiving emails purporting to be from opposing...
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