Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition, 0419 COBJ, Vol. 48, No. 4 Pg. 72

• Position: Vol. 48, 4 [Page 72]

48 Colo.Law. 72

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

Vol. 48, No. 4 [Page 72]

Colorado Lawyer

April, 2019

COLORADO SUPREME COURT OFFICE OF ATTORNEY REGULATION

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 November 1, 2018 through January 31, 2019, at the intake stage, Regulation Counsel entered into 13 diversion agreements involving 13 separate requests for investigation. ARC approved 12 diversion agreements involving 21 separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval.

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 November 1, 2018 to January 31, 2019 generally involved the following:

■ lack of competence, implicating Colo. RPC 1.1;

■ scope of representation, implicating Colo. RPC 1.2;

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

■ fees issue, implicating Colo. RPC 1.5;

■ conflict of interest, implicating Colo. RPC 1.7;

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

■ communications with a person represented by counsel, implicating Colo. RPC 4.2;

■ restrictions on the practice of law, implicating Colo. RPC 5.4; and

■ committing a criminal act, implicating Colo. RPC 8.4(b) and CRCP 251.5.

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.

Diversion Agreements

Below are some diversion agreements that Regulation Counsel determined appropriate for specific types of misconduct from November 1, 2018 to January 31, 2019. 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.

Lack of Competence

► Respondent accepted a client in an employment case, but failed to notice that the statute of limitations had already run. After respondent learned that the statute of limitations had run, respondent failed to clearly communicate this information to the client. Respondent then failed to respond to reasonable requests for information from the client in a timely manner.

Rules...