Section 11 - Diversion Program (a) Diversion is a voluntary program diverting the emphasis in cases involving minor acts of misconduct away from disciplinary sanctions and towards rehabilitation. It is designed to address minor acts of ethical impropriety which typically can be linked to poor law office management, chemical dependency, or other behavioral health problems. As an alternative to discipline, diversion may be imposed for a definite period of time not to exceed five (5) years. (b) A diversion program may include, but is not limited to, mediation, fee dispute resolution, law office management assistance, evaluation and treatment through the Wyoming Lawyer Assistance Program, evaluation and treatment for substance abuse, psychological evaluation and treatment, medical evaluation and treatment, monitoring of the attorney's practice or accounting procedures, continuing legal education or any other rehabilitative measure authorized by the Court. (c) Bar Counsel, the ROC, or the BPR may offer diversion to a respondent. The diversion program may be available at any stage of a matter arising under these rules. (d) As an alternative to a form of discipline, a respondent may participate in an approved diversion program in cases where there is little likelihood that the respondent will harm the public during the period of participation, where the respondent can be adequately supervised in regard to the conditions of the diversion, and where diversion is likely to benefit the attorney and accomplish the goals of the program. A matter will not be diverted under this Rule when: (1) The presumptive form of discipline in the matter is likely to be greater than public censure; (2) The misconduct involves misappropriation of funds or property of a client or third party; (3) The misconduct involves a serious crime as defined by Rule 18(e); (4) The misconduct involves family violence; (5) The misconduct resulted in, or is likely to result in, actual injury (loss of money, legal rights, or property rights) to a client or third party, unless restitution is made a condition of diversion; (6) The respondent has been publicly disciplined in the last three years; (7) The matter is of the same or similar nature as misconduct for which the respondent has been disciplined within the past five (5) years; (8) The misconduct involves dishonesty, deceit, fraud, or misrepresentation; or (9) The misconduct is part of a pattern of similar misconduct. (e) Diversion agreement. If a respondent agrees to an offer of diversion as provided by this rule, the terms of the diversion shall be set forth in a written agreement. The agreement shall specify the program(s) to which the attorney shall be diverted, the general purpose of the diversion, the manner in which compliance is to be monitored, and any requirement for payment of restitution or cost. (1) If the agreement is entered prior to a determination to proceed is made pursuant to Rule 10(b), the agreement shall be between the respondent and Bar Counsel. (2) If diversion is offered and entered after a determination to proceed is made pursuant to Rule 10(c) but before authorization to file a formal charge, the diversion agreement between the respondent and Bar Counsel shall be submitted to the ROC for consideration. If the ROC rejects the diversion agreement, the matter shall proceed as otherwise provided by these rules. (3) If diversion is offered and entered after a formal charge has been filed pursuant to Rule 13, the diversion agreement shall be submitted to the BPR for consideration. If the diversion agreement is rejected, the matter shall proceed as provided by these rules. (f) The attorney shall pay all the costs incurred in connection with participation in any diversion program. (g) Upon finalization and, when necessary, approval of the diversion agreement, the respondent shall enter into the diversion program(s) and complete the requirements thereof. Upon the respondent's entry into the diversion programs(s), the underlying matter shall be placed in abeyance, indicating diversion. Diversion shall not constitute a form of discipline. (h) Effect of successful completion of the diversion program. If diversion is entered prior to a determination to proceed pursuant to Rule 10(b)(4), and if Bar Counsel determines that the respondent has successfully completed all requirements of the diversion program, Bar Counsel shall close the file. If diversion is successfully completed in a matter that was determined to warrant investigation or other proceedings pursuant to these rules, the matter shall be dismissed and expunged pursuant to Rule 24. After the file is expunged, the attorney may respond to any general inquiry as provided in Rule 24(d). (i) Breach of diversion agreement. The determination of a breach of a diversion agreement will be as follows: (1) If Bar Counsel has reason to believe that the respondent has breached the diversion agreement, and the diversion agreement was entered prior to a decision to proceed pursuant Rule 10(b), and after the respondent has had an opportunity to respond, Bar Counsel may elect to modify the diversion agreement or terminate the diversion agreement and proceed with the matter as provided by these rules. (2) If Bar Counsel has reason to believe that the respondent has breached the diversion agreement after a determination to proceed has been made, then the matter shall be referred to the BPR with an opportunity for the respondent to respond. Bar Counsel will have the burden by a preponderance of the evidence to establish the materiality of the breach, and the respondent will have the burden by a preponderance of the evidence to establish justification for the breach. If after consideration of the information presented by Bar Counsel and the respondent's response, if any, it is determined that the breach was material without justification, the agreement will be terminated and the matter will proceed as provided for by these rules. If a breach is established but determined to be not material or to be with justification, the diversion agreement may be modified in light of the breach. If no breach is found, the matter shall proceed pursuant to the terms of the original diversion agreement. (j) Confidentiality. None of the files and records resulting from the diversion of a matter shall be made public except by order of the Court. Nevertheless, Bar Counsel may publish summaries of matters resulting in diversion for educational purposes so long as the attorney's name and other identifying information have been removed. Information provided by the attorney to a treatment provider or a monitor while in a diversion program is confidential to the extent it relates to misconduct that occurred before the attorney's entry into the diversion program. Wyo. R. State Bar, Att'y Cond. & Prac. 11
Adopted April 6, 2015, effective July 1, 2015.