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Rule 15-533. Diversion.

(a) Referral to diversion.In a matter involving less serious misconduct as outlined in subsection (c),upon receipt of an informal complaint and before filing a formal complaint, therespondent may have the option of electing to have the matter referred todiversion, the appropriateness of which will be determined by the chair of theDiversion Committee after consultation with OPC. The option for diversion alsomay be initiated by OPC or the Ethics and Discipline Committee screening panel.Diversion may require the participation of the respondent in one or more of thefollowing:

(a)(1) fee arbitration;

(a)(2) mediation;

(a)(3) law office management assistance;

(a)(4) lawyer or licensed paralegal practitioner assistanceprograms;

(a)(3) lawoffice management assistance;

(a)(4) licensed paralegalpractitioner assistance programs;

(a)(5) psychological and behavioral counseling;

(a)(6) monitoring;

(a)(7) restitution;

(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) Diversion Committee.

(b)(1) With regard to alicensed paralegal practitioner, the Diversion Committee in Lawyer Rule 15-533shall operate under the provisions of this Rule.

(b)(2) Authority andresponsibility. The Diversion Committee may negotiate and execute diversioncontracts, assign monitoring to a lawyer or limited paralegal practitionerassistance program, determine compliance with the terms of diversion contracts,and determine fulfillment or any material breach of diversion contracts,subject to review under subsection (j)(3) of thisrule, and adopt such policies and procedures as may be appropriate toaccomplish its duties under this rule. The Diversion Committee shall haveauthority to establish subcommittees of volunteer attorneys and otherprofessionals for the specific purpose of monitoring the compliance of anylimited paralegal practitioner under diversion and reporting compliance to OPCand the Diversion Committee on a regular basis.

(c) Less serious misconduct.Conduct which would result in a suspension or delicensureis not considered to be less serious misconduct. Conduct is not ordinarilyconsidered less serious misconduct if any of the following considerationsapply:

(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 misconductconstitutes a substantial threat of irreparable harm to the public; a felony;or a misdemeanor which reflects adversely on the respondent?s honesty,trustworthiness or fitness as a limited paralegal practitioner; or

(c)(7) the misconduct is part of a pattern of similarmisconduct.

(d) Factors forconsideration. The Diversion Committee considers the following factors innegotiating and executing the diversion contract:

(d)(1) whether the presumptive sanction that would be imposed,in the opinion of OPC or the Diversion Committee, is likely to be no moresevere than a public reprimand or private admonition;

(d)(2) whether participation in diversion is likely to improvethe respondent?s future professional conduct and accomplish the goals of legalparalegal practitioner 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 the proposed decision to referthe respondent to diversion, and the complainant may submit written comments.The complainant will be notified when the complaint is diverted and when thecomplaint is dismissed. All notices will be sent to the complainant?s addressof record on file with the OPC. Such decision to divert or dismiss is notappealable.

(f) Diversion contract.

(f)(1) If the respondentagrees or elects to participate in diversion as provided by this rule, theterms of the diversion shall be set forth in a written contract. If thecontract is entered prior to a hearing of a screening panel of the Ethics andDiscipline Committee pursuant to Rule 15-510(b), the contract shall be betweenthe respondent and OPC. If diversion is agreed to and entered after a screeningpanel of the Ethics and Discipline Committee has convened pursuant to Rule15-510(b), the contract shall be made as part of the decision of that screeningpanel. OPC will memorialize the contract and decision. If diversion is agreedto and entered after a complaint has been filed pursuant to Rule 15-512, thediversion contract shall be made as part of the ruling and order of the Court.Except as otherwise part of an order of a court, the Diversion Committee shallmonitor and supervise the conditions of diversion and the terms of thediversion contract. The contract shall specify the program(s) to which thelegal paralegal practitioner shall be diverted, the general purpose of thediversion, the manner in which compliance is to be monitored, and anyrequirement for payment of restitution or cost. The respondent licensedparalegal practitioner shall bear the burden of drafting and submittingthe proposed diversion contract. Respondent may utilize counsel to assist inthe negotiation phase of diversion. Respondent may also utilize Bar benefits programs provided by the Bar, such as alawyer or licensed paralegal practitioner assistance program to assist indeveloping terms and conditions for the diversion contract appropriate to thatrespondent?s particular situation. Use of a lawyer or licensed paralegalpractitioner assistance program to assess appropriate conditions fordiversion shall not conflict that entity from providing services under thecontract. The terms of each contract shall be specifically tailored to therespondent?s individual circumstances. The contract is confidential and itsterms shall not be disclosed to other than the parties to the contract.

(f)(2) All diversioncontracts must contain at least all the following:

(f)(2)(A) the signatures of respondent, his or her counsel ifany, and the chair of the Diversion Committee;

(f)(2)(B) the terms andconditions of the plan for respondent and, the identity, if appropriate, of anyservice provider, mentor, monitor and/or supervisor and that individual?sspecific responsibilities. If a professional or service is utilized, and it isnecessary to disclose confidential information, respondent must sign a limitedconditional waiver of confidentiality permitting the professional or service tomake the necessary disclosures in order for the respondent to fulfill his orher duties under the contract;

(f)(2)(C) the necessaryterms providing for oversight of fulfillment of the contract terms, includingprovisions for those involved to report any alleged breach of the contract toOPC;

(f)(2)(D) the necessaryterms providing that respondent will pay all costs incurred in connection withthe contract and those costs further specified pursuant to subsection (k) andany costs associated with the complaints to be deferred; and

(f)(2)(E) a specific acknowledgement that a material violation ofa contract term renders the respondent?s participation in diversion voidable bythe chair of the Diversion Committee or his or her designee;

(f)(3) The contract may beamended on subsequent agreement of respondent and OPC.

(f)(4) The chair of theEthics and Discipline Committee and OPC shall be given copies of everydiversion contract entered and signed by the respondent and the DiversionCommittee chair.

(g) Affidavit supportingdiversion. A diversion contract must be supported by the respondent?s or therespondent?s lawyer?s affidavit or declaration as approved by the DiversionCommittee setting forth the purpose for diversion and how the specific terms ofthe diversion contract will address the allegations raised by the complaint.The respondent is not required to admit to the allegations in the complaintupon entering diversion. However, an admission and/or acknowledgement may berelevant and necessary as part of treatment in diversion. Such an admissionshall be confidential for treatment purposes, shall not be released to anythird party, and shall not be treated as an admissionagainst interest nor used for future prosecution should diversion fail.

(h) Status of complaint.After a diversion contract is executed by the respondent, the disciplinarycomplaint is deferred pending successful completion of the contract.

(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 LimitedParalegal Practitioner Discipline and Disability.

(j) Termination ofdiversion.

(j)(1) Fulfillment of thecontract. The contract terminates when the respondent has fulfilled the termsof the contract and gives the Diversion Committee and OPC an affidavit ordeclaration demonstrating fulfillment. Upon receipt of this affidavit ordeclaration, the Diversion Committee and OPC must acknowledge receipt andrequest that the chair of the Ethics and Discipline Committee or his or herdesignee dismiss any complaint(s) deferred pending successful completion of thecontract 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. Amaterial breach of the contract is cause for termination of the contract. Aftera material breach, OPC must notify the respondent of the alleged breach andintent to terminate the diversion. Thereafter, disciplinary proceedings may beinstituted, resumed or reinstated.

(j)(3) Review by the chair.The Diversion Committee may review disputes regarding the alleged materialbreach of any term of the contract on the request of the respondent or OPC. Therequest must be filed with the Diversion Committee chair within 15 days ofnotice to the respondent of the determination for which review is sought. Therespondent is entitled to a hearing before the Diversion Committee on anyalleged breach to the diversion contract. Determinations under this section arenot subject to further review and are not reviewable in any proceeding.

(k) Costs. Upon enteringdiversion, respondent shall pay an initial fee of $250. During diversion,respondent shall pay a fee of $50 per month. All such fees are payable to theBar?s general fund. These fees may be waived upon a hardship request, thevalidity or appropriateness of which shall be determined by the chair of theDiversion Committee or his or her designee.

Effective November 1, 2018