Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition, 0122 COBJ, Vol. 51, No. 1 Pg. 64

PositionVol. 51, 1 [Page 64]

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

No. Vol. 51, No. 1 [Page 64]

Colorado Lawyer

January, 2022

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...

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