†(a) Prohibited misconduct. Conduct may only be considered less serious misconduct warranting diversion if it does not result in a suspension or delicensure. Conduct is not ordinarily considered less serious misconduct if any of the following considerations apply:
(1) the misconduct involves the misappropriation of client funds;
(2) the misconduct results in or is likely to result in substantial prejudice to a client or other person, absent adequate provisions for restitution;
(3) the Respondent has been sanctioned in the last three years;
(4) the misconduct is of the same nature as misconduct for which the Respondent has been sanctioned in the last three years;
(5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation;
(6) the misconduct constitutes a substantial threat of irreparable harm to the public; a felony; or a misdemeanor which reflects adversely on the Respondentís honesty, trustworthiness or fitness as a Lawyer; or
(7) the misconduct is part of a pattern of similar misconduct.
(b) Factors for consideration. The OPC considers these factors in negotiating and executing the diversion contract:
(1) whether in the OPCís opinion, the presumptive sanction that would be imposed is likely to be no more severe than a public reprimand or private admonition;
(2) whether participating in diversion is likely to improve the Respondentís future professional conduct and accomplish the goals of Lawyer discipline;
(3) whether aggravating or mitigating factors exist; and
(4) whether diversion was already tried.
Effective December 15, 2020