Rule 105.5 - Diversion and Mentoring Programs1.Participation in probation, diversion, or mentoring program. As an alternative to or in conjunction with disciplinary sanctions, a respondent deemed eligible by the appropriate disciplinary board panel may participate in an approved probation, diversion, or mentoring program, designed to assist with or improve management or behavior problems that resulted in, or are expected to result in, minor misconduct. Participation in a probation, diversion, or mentoring program may be offered by bar counsel or ordered by a panel only in cases where there is little likelihood that the respondent will harm the public during the period of participation and where the conditions of the program can be reasonably supervised. (a) Conditions. Conditions of a probation, diversion, or mentoring program may include participation in programs through the Nevada Lawyers Assistance Program, monitoring by a mentor, random substance testing, continuing legal education, ethics education, limitations on practice, restitution, fee arbitration, trust account audits, or any other program authorized by the court. (b) Mentors. Mentors in probation, diversion, or mentoring programs shall be approved or selected by bar counsel and shall serve on a voluntary basis. Only respondents in good standing with no pending disciplinary matters may serve as mentors. Any mentor who has no personal interest in the respondent’s participation, and did not represent the respondent in underlying proceedings, may be eligible to receive educational credits for services provided under this rule, after (i) the respondent’s successful completion of such a program, and (ii) the mentor’s application to the board of continuing legal education. (c) Confidentiality. All services provided by a mentor under this rule and any related documents and/or communications shall remain confidential, as provided for in SCR 121. A mentor shall observe the duties of confidentiality in Nevada Rule of Professional Conduct (RPC) 1.6. Any related information provided to a mentor, and subsequently provided to bar counsel, will be used solely to assess a respondent’s compliance and progress, and may be provided to a hearing panel for that purpose, but will not be released to any other person(s). Further, such limited access to this information pursuant to a probation, diversion, or mentoring program shall not constitute a breach of confidentiality under RPC 1.6, based upon the supervisory nature of a mentor’s services and bar counsel’s duty to monitor such matters. (d) A panel or bar counsel may not offer a probation, diversion, or mentoring program if the respondent: (1) Misappropriated client funds; (2) Caused substantial injury; (3) Participated in a probation, diversion, or mentoring program for similar misconduct within the last 5 years; (4) Received an admonition or any public discipline within the last 3 years; (5) Engaged in dishonesty, deceit, fraud, or misrepresentation; or (6) Committed a “serious crime” as defined in SCR 111.2.Written agreement. The terms of probation, diversion, or mentoring shall be stated in a written agreement between bar counsel, the respondent, respondent’s counsel, if any, the mentor, if any, and any other person(s) a party thereto. The agreement will specify the person(s) responsible for supervising the respondent’s compliance with the terms and conditions of the agreement. The supervision period shall not exceed 2 years, provided, however, that the disciplinary panel may renew the supervision period for an additional 2 years with the respondent’s consent or after a breach hearing. The existence, but not the terms, of a diversion or mentoring agreement under this rule is subject to the provisions of SCR 121. 3.Order for a probation, diversion, or mentoring program by a screening panel. A screening panel may order a respondent to a probation, diversion, or mentoring program as an alternative to, or in conjunction with, disciplinary sanctions, subject to the respondent’s consent. The screening panel shall provide an alternative sanction if the respondent does not consent to participate in the proposed program. Bar counsel shall immediately notify the respondent of the screening panel’s order. (a) Acceptance. Within 14 days of the respondent’s receipt of a panel’s order under this rule, the respondent must provide bar counsel with a written notice of their agreement to participate. Upon receipt of that notice, bar counsel shall promptly notify any grievant(s) in writing that the respondent has agreed to participate in a probation, diversion, or mentoring program. When applicable, such notice shall further advise the grievant(s) of the confidentiality provisions of SCR 121.(b) Rejection, failure to respond, or failure to cooperate. If a respondent rejects or fails to respond within 14 days to a screening panel’s order directing participation in a probation, diversion, or mentoring program or fails to cooperate fully in the development or execution of a diversion contract or mentoring agreement, then bar counsel shall promptly proceed with the alternative sanction provided in the screening panel’s order. (c) Time for filing; extensions. Bar counsel and the respondent must execute a written agreement within 30 days of acceptance by the respondent. This requirement shall only be extended by written agreement between bar counsel and the respondent due to extraordinary circumstances. The party requesting the extension shall prepare the written agreement.4.Breach of a diversion contract or mentoring agreement. Bar counsel shall monitor compliance and may establish protocols for monitoring. If bar counsel determines that a respondent has breached a term of the agreement executed under this rule, and unless the agreement dictates otherwise, bar counsel shall notify the respondent of the alleged breach and, after receipt of such notice, provide the respondent with 14 days to submit a written response. Bar counsel may withdraw the notice of alleged breach based upon the written response and related communications. (a) Hearing. If the notice is not withdrawn, bar counsel shall request the hearing panel that imposed the probation, diversion, or mentoring program reconvene to determine if the respondent has breached the terms of the agreement. Bar counsel shall notify the respondent of such request by serving the notice of hearing on the respondent. The hearing panel shall convene within 30 days of the request. In proceedings brought under this rule, bar counsel shall have the burden by a preponderance of the evidence to establish any breach of the agreement, and a respondent shall have the burden by a preponderance of the evidence to establish justification for any such breach. Where there is an alleged breach of an agreement executed pursuant to an order of the supreme court, bar counsel may move the court directly for any relief deemed appropriate.(b) If a hearing panel finds a breach to be material and without justification, the panel shall terminate the agreement and reactivate any underlying grievance(s) to be processed through any course deemed appropriate under SCR105.If the respondent received a stayed sanction or an alternative sanction, then the panel shall terminate the agreement and impose the stayed sanction or alternative sanction.(c) If the hearing panel finds that no breach occurred, or that the breach was immaterial or with justification, the panel may modify the existing agreement or direct the parties to proceed in accordance with it.5. Costs. The respondent shall pay any costs associated with participation in a diversion or mentoring program, including but not limited to laboratory testing, professional accounting or evaluation, treatment, and the costs of any hearing under this rule. The respondent shall not be assessed any fees or costs for a mentor’s or bar counsel’s services.6.Completion and expungement. After the term of an agreement for diversion or mentoring under this rule has concluded, bar counsel shall notify the respondent of such completion and, when applicable, any underlying grievance(s) and related records shall be dismissed and processed in accordance with SCR121. After a grievance file has been dismissed under this rule, bar counsel shall respond to any related inquiries by stating that there is no record of such a matter, unless otherwise directed by the respondent. Likewise, the respondent may respond to such an inquiry by stating that any allegations or complaints that may have been filed with bar counsel’s office were dismissed. However, this rule does not supersede the provisions of SCR121 and does not apply to successful completion of a program ordered in conjunction with disciplinary sanctions or ordered in lieu of more severe disciplinary sanctions, unless otherwise noted in the agreement. Probation is a disciplinary sanction and not subject to expungement.Added; effective 2/25/1997; amended effective 3/1/2007; amended effective 7/8/2013; last amended effective 10/5/2015; amended effective 10/26/2023.