Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition, 1021 COBJ, Vol. 50, No. 9 Pg. 60
| Position | Vol. 50, 9 [Page 60] |
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
■ online Colorado Lawyer Self-Assessment Program
■ 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, 2021, through July 31, 2021, at the intake stage, Regulation Counsel entered into 14 diversion agreements involving 16 separate requests for investigation and LRC approved seven diversion agreements involving seven separate requests for investigation. Below are summaries of some of these diversion agreements.
Lack of Competence
► Respondent was engaged pursuant to a written fee agreement to assist the parents of a person who died after a violent workplace assault. The fee agreementindicates respondent was going to investigate a potential wrongful death claim against the deceased's employer. However, respondent undertook work in several additional areas, including assisting the clients in the pursuit of a workers' compensation claim against the deceased's former employer. Respondent was served with a Notice of Contest related to the deceased's workers' compensation claim. Respondent did not challenge the Notice of Contest of benefits, and the clients allege that respondent failed to timely advise them of the issuance of this notice or their associated rights and the deadline by which they needed to contest this decision.
Rules Implicated: Colo. RPC 1.1, 1.2, 1.3, and 1.4.
Diversion Agreement: One-year diversion agreement with conditions, including ethics school, certified completion of the Colorado Lawyer Self-Assessment Program, and payment of costs.
Scope of...
To continue reading
Request your trial