(a) Overview. Diversion is not a form of discipline. Diversion is designed to address lesser misconduct when a lawyer may benefit from guidance to improve the lawyer's skills or ethical infrastructure or to manage a behavioral health issue, including a mental health or substance use issue.(b) Eligibility. A lawyer is eligible to participate in a diversion program only if it is unlikely that the lawyer will harm the public during the program, the Regulation Counsel can adequately supervise the terms of diversion, and the lawyer's participation in the program is likely to benefit the lawyer and serve the public interest. A matter generally will not be diverted under this section when: (1) The presumptive form of discipline is greater than public censure under the American Bar Association Standards for Imposing Lawyer Sanctions;(2) The conduct involves dishonesty, deceit, fraud, or misrepresentation, including misappropriation of funds or property of a client or another person;(3) The conduct involves a serious crime;(4) The conduct involves domestic violence, elder abuse, or child abuse;(5) The conduct resulted in or is likely to result in a client's or another person's loss of money, legal rights, or property rights, unless restitution is made a term of diversion;(6) The lawyer has been publicly disciplined in the last three years;(7) The conduct is of the same nature as misconduct for which the lawyer has been disciplined in the last five years; or(8) The conduct involves a pattern of similar misconduct.(c) Diversion Agreement. (1) Contents. If a lawyer agrees to an offer of diversion, the terms of the diversion must be set forth in a written agreement between the lawyer and the Regulation Counsel. The agreement must specify the general purpose of the diversion, the requirements of the diversion, how compliance will be monitored, the length of the diversion period, required payment of costs, and any required payment of restitution. Terms may include one or more of the following: mediation, fee arbitration, law office management assistance, continuing legal education courses, trust account school, ethics school, passing the multistate professional responsibility examination, referral to the Colorado Lawyer Assistance Program, assessment of and treatment for medical or behavioral health issues including mental health and substance use issues, and monitoring of the lawyer's practice or accounting procedures. The Regulation Counsel will monitor the lawyer's compliance with the diversion agreement.(2) Procedure.(A) When the Regulation Counsel decides under C.R.C.P. 242.13 not to formally investigate a matter, the Regulation Counsel has discretion to offer the lawyer the opportunity to participate in a diversion program.(B) After the Regulation Counsel has decided under C.R.C.P. 242.13 to formally investigate a matter but before the Regulation Counsel has filed a complaint, a diversion agreement must be submitted to the Regulation Committee for approval. If the Regulation Committee rejects the diversion agreement, the disciplinary proceeding will go forward as otherwise provided in this rule.(C) In reviewing a matter presented by the Regulation Counsel under C.R.C.P. 242.16(a), the Regulation Committee may direct the Regulation Counsel to offer the respondent the opportunity to participate in a diversion program.(D) After the Regulation Counsel has filed a complaint but before a hearing has been held, a diversion agreement must be submitted to the Presiding Disciplinary Judge for approval. If the Presiding Disciplinary Judge rejects a diversion agreement, the disciplinary proceeding will go forward as otherwise provided in this rule.(3) Effect of Diversion. When a diversion agreement is approved, the underlying disciplinary proceeding is placed in abeyance pending successful completion of the diversion program.(d) Costs and Administrative Fee. The respondent must pay the administrative fee and all costs incurred in connection with participating in a diversion program. If the Regulation Counsel prevails in a hearing before the Presiding Disciplinary Judge involving allegations that a respondent breached a diversion agreement, the respondent may be required to pay all or any part of the reasonable costs of the proceeding.(e) Effect of Successful Completion of Diversion.(1) Pre-complaint Matters. If the Regulation Counsel finds that the respondent successfully completed a diversion program in a matter in which a complaint was not filed, the Regulation Counsel must dismiss the matter and expunge the files and records thereof under C.R.C.P. 242.43.(2) Post-complaint Matters. If the Regulation Counsel finds that the respondent successfully completed a diversion program in a matter in which a complaint was filed, the Regulation Counsel must promptly notify the Presiding Disciplinary Judge of the successful completion. The Presiding Disciplinary Judge will dismiss the matter. The files and records of the matter will not be expunged. (f) Breach of Diversion Agreement. Whether a diversion agreement has been breached is determined as follows: (1) Diversion Agreement Entered After Preliminary Investigation. If the Regulation Counsel believes that a lawyer breached a diversion agreement that the Regulation Counsel offered at the conclusion of a preliminary investigation under C.R.C.P. 242.13, the Regulation Counsel must notify the lawyer and give the lawyer an opportunity to respond. The Regulation Counsel then may decide that the original agreement should remain in effect; offer to modify the diversion requirements; or terminate the diversion agreement, remove the proceeding from abeyance, and proceed with the disciplinary proceeding as otherwise provided in this rule.(2) Diversion Agreement Approved by Regulation Committee. If the Regulation Counsel believes that a respondent breached a diversion agreement that was approved by the Regulation Committee under C.R.C.P. 242.16(a)(3), the Regulation Counsel must notify the Regulation Committee of the alleged breach and request relief. The Regulation Counsel must also notify the respondent, who must be afforded an opportunity to respond. Either party may request a hearing before the Presiding Disciplinary Judge. (A) Hearings and Burden of Proof. At a hearing before the Presiding Disciplinary Judge, the Regulation Counsel has the burden by a preponderance of the evidence to establish a material breach of the diversion agreement and to justify the relief requested. The respondent has the same burden to establish that the breach was justified. The clerk of the Presiding Disciplinary Judge may issue subpoenas under C.R.C.P. 45.(B) Report. After a hearing, the Presiding Disciplinary Judge will prepare a report setting forth findings of fact and recommendations for the Regulation Committee.(C) Relief. The Regulation Committee may direct that the original agreement remain in effect; direct the Regulation Counsel to offer the respondent an opportunity to participate in a diversion program with modified requirements; terminate the diversion agreement, remove the disciplinary proceeding from abeyance, and impose a private admonition; or terminate the diversion agreement, remove the disciplinary proceeding from abeyance, and authorize the Regulation Counsel to file a complaint.(3) Diversion Agreement Approved by Presiding Disciplinary Judge. If the Regulation Counsel believes that a respondent breached a diversion agreement that was approved by the Presiding Disciplinary Judge under C.R.C.P. 242.17(c)(2)(D), the Regulation Counsel must notify the Presiding Disciplinary Judge of the alleged breach and request relief. The Regulation Counsel must also notify the respondent, who must be afforded an opportunity to respond. Either party may request a hearing before the Presiding Disciplinary Judge.(A) Hearings and Burden of Proof. At a hearing before the Presiding Disciplinary Judge, the Regulation Counsel has the burden by a preponderance of the evidence to establish a material breach and to justify the relief requested. The respondent has the same burden to establish that a breach was justified. The clerk of the Presiding Disciplinary Judge may issue subpoenas under C.R.C.P. 45.(B) Decision. After a hearing, the Presiding Disciplinary Judge will prepare findings of fact and render a decision. The Presiding Disciplinary Judge may terminate the diversion agreement and remove the disciplinary proceeding from abeyance or direct that the original agreement remain in effect.(g) Confidentiality. (1) Files and Records. (A) Pre-complaint Matters. Files and records relating to a matter in which diversion is entered before a complaint is filed are not available to the public.(B) Post-complaint Matters. Files and records relating to a matter in which diversion is entered after a complaint is filed, including an order dismissing the underlying case, are available to the public. But the diversion agreement itself and any order approving the diversion agreement are not available to the public.(C) Publishing. For educational purposes, the Regulation Counsel or the Presiding Disciplinary Judge may publish anonymous summaries of matters in which diversion has been entered in precomplaint or post-complaint matters so long as there is no reasonable likelihood that a reader will be able to ascertain the identity of the lawyer.(2) Admissions of Misconduct. A lawyer's admissions of misconduct to a treatment provider or a practice monitor while in a diversion program are confidential, but only if the misconduct occurred before the lawyer entered the diversion program.Adopted by the Court, En Banc, May 20, 2021, effective 7/1/2021.