Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition, 0118 COBJ, Vol. 47, No. 1 Pg. 76

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47 Colo.Law. 76

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

Vol. 47, No. 1 [Page 76]

The Colorado Lawyer

January, 2018

OFFICE OF ATTORNEY REGULATION COUNSEL

Diversion is an alternative to discipline (see CRCP 251.13). 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 1, 2017 through October 31, 2017, at the intake stage, Regulation Counsel entered into seven diversion agreements involving seven separate requests for investigation. ARC approved seven diversion agreements involving seven separate requests for investigation during this time frame. There were two diversion agreements submitted to the PDJ for approval involving three separate requests for investigation.

Determining if Diversion is Appropriate

Regulation Counsel reviews the following factors to determine whether diversion is appropriate:

1. the likelihood that the attorney will harm the public during the period of participation;

2. whether Regulation Counsel can adequately supervise the conditions of diversion; and

3. the likelihood of the attorney benefiting 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 (see CRCP 251.13(b)). Other factors may preclude Regulation Counsel from agreeing to diversion (see CRCP 251.13(b)).

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 conducted by attorneys from OARC. An attorney 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 CRCP 251.33(d). If Regulation Counsel has reason to believe the attorney has breached the diversion agreement, then Regulation Counsel must follow the steps provided in CRCP 251.13 before an agreement can be revoked.

Types of Misconduct

The types of misconduct resulting in diversion from August 1, 2017 through October 31, 2017, generally involved the following:

■ lack of competence, implicating Colo. RPC 1.1;

■ neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4;

■ fees issue, implicating Colo. RPC 1.5;

■ trust account issues, implicating Colo. RPC 1.15A through 1.15E;

■ declining or terminating representation, implicating...

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