Ariz. R. Sup. Ct. 56

As amended through August 22, 2024

Rule 56 - Diversion

(a)Alternative to Discipline. Diversion is an alternative to formal discipline and may be imposed for a specified period not in excess of two (2) years, but may be renewed for an additional two (2) year period. The terms of the diversion agreement will be stated in writing, and may include restitution and assessment of costs and expenses.

(b)Referral to Diversion. Bar counsel, the committee, the presiding disciplinary judge, a hearing panel, or the court may offer diversion to an attorney, alternative business structure, or legal paraprofessional based upon the Diversion Guidelines recommended by the board and approved by the court. The Diversion Guidelines shall be posted on the state bar and supreme court websites. Where the conduct so warrants, diversion may be offered if:

1. the lawyer, alternative business structure, or legal paraprofessional committed professional misconduct, the lawyer is incapacitated, or the lawyer, alternative business structure, or legal paraprofessional does not wish to contest the evidence of misconduct and the bar counsel and the respondent agree that diversion will be appropriate;

2. the conduct could not be the basis of a motion for transfer to disability inactive status pursuant to Rule 63 of these rules;

3. the cause or basis of the professional misconduct by an individual lawyer, alternative business structure, or legal paraprofessional, or incapacity of an individual lawyer or legal paraprofessional is subject to remediation or resolution through alternative programs or mechanisms, including:

A. medical, psychological, or other professional treatment, counseling or assistance,

B. appropriate educational courses or programs,

C. mentoring or practice monitoring services,

D. dispute resolution programs, or

E. any other program or corrective course of action agreed upon by bar counsel and respondent to address respondent's misconduct;

4. the public interest and the welfare of the respondent's clients and prospective clients will not be harmed if, instead of the matter proceeding immediately to a disciplinary or disability proceeding, the lawyer or legal paraprofessional agrees to and complies with specific measures that, if pursued, will remedy the immediate problem and likely prevent any recurrence of it; and

5. the terms and conditions of the diversion plan can be adequately supervised.

(c)Diversion agreement or order. If diversion is offered and accepted prior to submission of the matter to the committee, the agreement shall be between the attorney, alternative business structure or legal paraprofessional and bar counsel. If bar counsel offers diversion after an investigation pursuant to Rule 55(b) and the attorney, alternative business structure or legal paraprofessional does not accept the offer of diversion, the recommendation for an order of diversion shall be submitted to the committee for consideration. If the committee rejects the recommendation, the matter shall proceed as otherwise provided in these rules. If diversion is offered and accepted after authorization to file a complaint, the matter shall proceed pursuant to Rule 57. If the presiding disciplinary judge rejects the diversion agreement, the matter shall proceed as provided in these rules.

(d)Reinstatement of Discipline Proceeding. A discipline matter shall be held in abeyance during diversion. If a respondent violates a term of diversion, bar counsel may reinstate the discipline proceeding and go forward with the proceeding as provided in these rules.

(e)Dismissal. After successful completion of diversion under these rules, the matter shall be dismissed by bar counsel or by order of the committee, the presiding disciplinary judge, a hearing panel, or the court. Dismissal under this rule shall not preclude bar counsel from using the fact of an agreement or an order of diversion and the facts of the underlying matter in other discipline proceedings, except that the agreement or the order shall not be considered as a prior disciplinary offense in aggravation.

Ariz. R. Sup. Ct. 56

Added June 9, 2003, effective 12/1/2003. Amended Sept. 16, 2008, effective 1/1/2009. Renumbered from Rule 55 and amended June 30, 2010, effective 1/1/2011. Amended Aug. 30, 2012, effective 1/1/2013;9/2/2014, effective 1/1/2015; amended effective 1/1/2019; amended effective 1/1/2020; amended Aug. 27, 2020, effective 1/1/2021; amended Aug. 29, 2022, effective 8/29/2022.

HISTORICAL NOTES

Source:

Pen.Code 1901, §§ 158, 159.

Pen.Code 1913, §§ 152, 153.

Laws 1925, Ch. 32, §§ 3, 11.

Rev.Code 1928, §§ 202, 206, 4569.

Laws 1933, Ch. 66, § 32.

Code 1939, §§ 32-202, 32-206, 32-332, 43-3304.

A.R.S. former §§ 32-264, 32-266, 32-272, 32-273.

Laws 1978, Ch. 201, § 532.

ABA Model Rules 10(A), 22.

ABA 1977 Rule 4(C).

Revisers' addition.

Former Rule 52.

Former Rule 55, amended Dec. 12, 1991, effective Jan. 1, 1992; May 20, 1993, effective June 1, 1993; adopted in final form Sept. 30, 1993; amended Oct. 30, 1996, effective Dec. 1, 1996, amended and effective April 14, 1999; Sept. 24, 1999, effective Dec. 1, 1999; May 31, 2000, effective Dec. 1, 2000, was abrogated by order dated June 9, 2003, effective Dec. 1, 2003.