Rule 14-533. Diversion.
(a)Referral to diversion. In a matter involving less serious misconduct asoutlined in subsection (c), upon receipt of an informal complaint and beforefiling a formal complaint, the respondent may have the option of electing to havethe matter referred to diversion, the appropriateness of which will bedetermined by the chair of the Diversion Committee after consultation with OPC.The option for diversion also may be initiated by OPC or the Ethics andDiscipline Committee screening panel. Diversion may require the participationof the respondent in one or more of the following:
(a)(3)law office management assistance;
(a)(4)lawyer assistance programs;
(a)(5)psychological and behavioral counseling;
(a)(8)continuing legal education programs including, but notlimited to, ethics school; or
(a)(9)any other program or corrective course of action toaddress the respondent?s conduct.
(b)(1)Composition. Members of the Diversion Committee shall be appointed by theSupreme Court. The committee shall consist of five members, four of whom shallbe members of the Bar who have demonstrated a high standard of professionalconduct, preferably with at least one Bar memberhaving past experience on the Supreme Court Ethics and Discipline Committee,and one public member with professional training in the area of substance abuseand/or stress management. All appointments shall be for four-year terms withone of the lawyers? terms expiring each year. Committee members shall not servemore than two consecutive terms. The Supreme Court shall designate one of theBar members as committee chair.
(b)(2)Authority and responsibility. The Diversion Committee may negotiate and executediversion contracts, assign monitoring to a lawyers assistance program,determine compliance with the terms of diversion contracts, and determinefulfillment or any material breach of diversion contracts, subject to review undersubsection (j)(3) of this rule, and adopt suchpolicies and procedures as may be appropriate to accomplish its duties underthis rule. The Diversion Committee shall have authority to establishsubcommittees of volunteer attorneys and other professionals for the specificpurpose of monitoring the compliance of any attorney under diversion andreporting compliance to OPC and the Diversion Committee on a regular basis.
(c)Less serious misconduct. Conduct which would result in a suspension ordisbarment is not considered to be less serious misconduct. Conduct is notordinarily considered less serious misconduct if any of the followingconsiderations apply:
(c)(1)the misconduct involves the misappropriation of clientfunds;
(c)(2)the misconduct results in or is likely to result insubstantial prejudice to a client or other person, absent adequate provisionsfor restitution;
(c)(3)the respondent has been sanctioned in the last threeyears;
(c)(4)the misconduct is of the same nature as misconduct forwhich the respondent has been sanctioned in the last three years;
(c)(5)the misconduct involves dishonesty, deceit, fraud, ormisrepresentation;
(c)(6)the misconduct constitutes a substantial threat ofirreparable harm to the public; a felony; or a misdemeanor which reflectsadversely on the respondent?s honesty, trustworthiness or fitness as a lawyer;or
(c)(7)the misconduct is part of a pattern of similarmisconduct.
(d)Factors for consideration. The Diversion Committee considers the followingfactors in negotiating and executing the diversion contract:
(d)(1)whether the presumptive sanction that would beimposed, in the opinion of OPC or the Diversion Committee is likely to be nomore severe than a public reprimand or private admonition;
(d)(2)whether participation in diversion is likely toimprove the respondent?s future professional conduct and accomplish the goalsof lawyer discipline;
(d)(3)whether aggravating or mitigating factors exist; and
(d)(4)whether diversion was already tried.
(e)Notice to complainant. The OPC will notify the complainant, if any, of theproposed decision to refer the respondent to diversion, and the complainant maysubmit written comments. The complainant will be notified when the complaint isdiverted and when the complaint is dismissed. All notices will be sent to thecomplainant?s address of record on file with the OPC. Such decision to divertor dismiss is not appealable.
(f)(1)If the respondent agrees or elects to participate in diversion as provided bythis rule, the terms of the diversion shall be set forth in a written contract.If the contract is entered prior to a hearing of a screening panel of theEthics and Discipline Committee pursuant to Rule 14-510(b), the contract shallbe between the respondent and OPC. If diversion is agreed to and entered aftera screening panel of the Ethics and Discipline Committee has convened pursuantto Rule 14-510(b), the contract shall be made as part of the decision of thatscreening panel. OPC will memorialize the contract and decision. If diversionis agreed to and entered after a complaint has been filed pursuant to Rule14-512, the diversion contract shall be made as part of the ruling and order ofthe Court. Except as otherwise part of an order of a court, the DiversionCommittee shall monitor and supervise the conditions of diversion and the termsof the diversion contract. The contract shall specify the program(s) to whichthe attorney shall be diverted, the general purpose of the diversion, themanner in which compliance is to be monitored, and any requirement for paymentof restitution or cost. The respondent attorney shallbear the burden of drafting and submitting the proposed diversion contract.Respondent may utilize counsel to assist in the negotiation phase of diversion.Respondent may also utilize Bar benefits programsprovided by the Bar, such as a lawyer assistance program to assist indeveloping terms and conditions for the diversion contract appropriate to thatrespondent?s particular situation. Use of a lawyersassistance program to assess appropriate conditions for diversion shall notconflict that entity from providing services under the contract. The terms ofeach contract shall be specifically tailored to the respondent?s individualcircumstances. The contract is confidential and its terms shall not bedisclosed to other than the parties to the contract.
(f)(2)All diversion contracts must contain at least all the following:
(f)(2)(A)the signatures of respondent, his counsel if any, andthe chair of the Diversion Committee;
(f)(2)(B)the terms and conditions of the plan for respondent and, the identity, ifappropriate, of any service provider, mentor, monitor and/or supervisor andthat individual?s specific responsibilities. If a professional or service isutilized, and it is necessary to disclose confidential information, respondentmust sign a limited conditional waiver of confidentiality permitting theprofessional or service to make the necessary disclosures in order for therespondent to fulfill his duties under the contract;
(f)(2)(C)the necessary terms providing for oversight of fulfillment of the contractterms, including provisions for those involved to report any alleged breach ofthe contract to OPC;
(f)(2)(D)the necessary terms providing that respondent will pay all costs incurred inconnection with the contract and those costs further specified pursuant tosubsection (k) and any costs associated with the complaints to be deferred; and
(f)(2)(E)a specific acknowledgement that a material violationof a contract term renders the respondent?s participation in diversion voidableby the chair of the Diversion Committee or his designee;
(f)(3)The contract may be amended on subsequent agreement of respondent and OPC.
(f)(4)The chair of the Ethics and Discipline Committee and OPC shall be given copiesof every diversion contract entered and signed by the respondent and the DiversionCommittee chair.
(g)Affidavit supporting diversion. A diversion contract must be supported by therespondent?s or the respondent?s lawyer?s affidavit or declaration as approvedby the Diversion Committee setting forth the purpose for diversion and how thespecific terms of the diversion contract will address the allegations raised bythe complaint. The respondent is not required to admit to the allegations inthe complaint upon entering diversion. However, an admission and/oracknowledgement may be relevant and necessary as part of treatment indiversion. Such an admission shall be confidential for treatment purposes,shall not be released to any third party, and shall not be treated as an admission against interest nor used for futureprosecution should diversion fail.
(h)Status of complaint. After a diversion contract is executed by the respondent,the disciplinary complaint is deferred pending successful completion of thecontract.
(i)Effect of non-participation in diversion. The respondent has the right todecline to participate in diversion. If the respondent chooses not toparticipate in diversion, the matter proceeds pursuant to the Rules of LawyerDiscipline and Disability.
(j)Termination of diversion.
(j)(1)Fulfillment of the contract. The contract terminates when the respondent hasfulfilled the terms of the contract and gives the Diversion Committee and OPCan affidavit or declaration demonstrating fulfillment. Upon receipt of thisaffidavit or declaration, the Diversion Committee and OPC must acknowledgereceipt and request that the chair of the Ethics and Discipline Committee orhis designee dismiss any complaint(s) deferred pending successful completion ofthe contract or notify the respondent that fulfillment of the contract is disputedbased on an OPC claim of material breach. The complainant cannot appeal thedismissal. Successful completion of the contract is a bar to any furtherdisciplinary proceedings based on the same allegations and successfulcompletion of diversion shall not constitute a form of discipline.
(j)(2)Material breach. A material breach of the contract is cause for termination ofthe contract. After a material breach, OPC must notify the respondent of thealleged breach and intent to terminate the diversion. Thereafter, disciplinaryproceedings may be instituted, resumed or reinstated.
(j)(3)Review by the chair. The Diversion Committee may review disputes regarding thealleged material breach of any term of the contract on the request of therespondent or OPC. The request must be filed with the Diversion Committee chairwithin 15 days of notice to the respondent of the determination for whichreview is sought. The respondent is entitled to a hearing before the DiversionCommittee on any alleged breach to the diversion contract. Determinations underthis section are not subject to further review and are not reviewable in anyproceeding.
(k)Costs. Upon entering diversion, respondent shall pay an initial fee of $250.During diversion, respondent shall pay a fee of $50 per month. All such feesare payable to the Bar?s general fund. These fees may be waived upon a hardshiprequest, the validity or appropriateness of which shall be determined by thechair of the Diversion Committee or his designee.