(a) Offer of Diversion. At any time prior to the conclusion of an investigation, the Chief Disciplinary Counsel may offer the lawyer the opportunity to participate in a diversion program.(b) Diversion Program. The diversion program is designed to benefit the lawyer and protect the public. The diversion program may include monitoring and programs to improve law practice management skills, to support lawyer well-being, and to protect the public.(c) Participation in the Program Not Appropriate. The diversion program is not appropriate, absent special circumstances, in the following situations: (1) The misconduct involves misappropriation of funds or property of a client or third party;(2) It is likely that the lawyer will harm the public during the period of participation;(3) The lawyer is unable to perform legal services and is unable to practice law without causing the courts or profession to fall into disrepute;(4) The Chief Disciplinary Counsel cannot adequately supervise the conditions of the program;(5) The misconduct involves criminal activity as set forth in Rule 5.21;(6) The misconduct resulted in or is likely to result in actual injury, such as loss of money, legal rights, or valuable property rights, to a client or other person, unless restitution is made a condition of diversion;(7) This Court previously imposed discipline;(8) The misconduct involves dishonesty, deceit, fraud, or misrepresentation; or(9) The misconduct is part of a pattern of similar misconduct.(d) Diversion Agreement. If a lawyer agrees to an offer of diversion, the terms and conditions of the diversion shall be set forth in a written agreement between the lawyer and the Chief Disciplinary Counsel. The agreement shall specify the programs to which the lawyer shall be diverted, the general purpose of the diversion, the manner in which the lawyer's compliance with the program is to be monitored, and terms and conditions including any requirement for restitution or costs. A standard condition of diversion shall be that the lawyer may be required to submit to one or more examinations of practices and records related to compliance with Rules 4-1.145, 4-1.15, and 4-1.155 governing safekeeping property, IOLTA, and trust accounts. (e) Costs of the Diversion. The lawyer shall pay all the costs incurred in connection with participation in any diversion program.(f) Effect of Diversion. Upon execution of a diversion agreement, the lawyer shall complete the requirements thereof and the underlying disciplinary matter shall be placed in abeyance. Diversion is not discipline under this Rule 5.(g) Effect of Successful Completion of the Diversion Agreement. If the Chief Disciplinary Counsel determines that the lawyer has successfully completed the requirements of the diversion agreement, the Chief Disciplinary Counsel shall close the underlying disciplinary matter.(h) Breach of Diversion Agreement. If the Chief Disciplinary Counsel has reason to believe that the lawyer has breached the diversion agreement, the lawyer shall be notified and given an opportunity to respond. The Chief Disciplinary Counsel may modify the terms and conditions of the diversion agreement or terminate the diversion agreement and proceed with the matter as provided by this Rule 5. If the diversion agreement is terminated, any information obtained while the lawyer participated in a diversion agreement may be used in the same manner as any other evidence acquired in the course of a Rule 5 investigation.(i) Rejection of Diversion. If a lawyer rejects a diversion offer, the matter shall proceed as otherwise provided in this Rule 5.(j) Confidentiality. All of the records resulting from the diversion of a matter shall be filed with the Chief Disciplinary Counsel and shall be subject to the same restrictions concerning confidentiality as provided in Rule 5.31.Mo. R. Gov. Bar Jud. 5.105
Adopted November 26, 2002, eff. 1/1/2003; amended May 31, 2022, eff. 1/1/2023.