(a) When Appropriate. Upon completing an investigation, Bar Counsel may agree to a Conditional Diversion Agreement if Bar Counsel concludes that:
(1) the attorney committed professional misconduct or is incapacitated;
(2) the professional misconduct or incapacity was not the result of any wilful or dishonest conduct and did not involve conduct that could be the basis for an immediate Petition for Disciplinary or Remedial Action pursuant to Rules 19-737, 19-738, or 19-739;
(3) the cause or basis of the professional misconduct or incapacity 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 monitoring services, or (D) dispute resolution programs; and
(4) the public interest and the welfare of the attorney's clients and prospective clients will not be harmed if, instead of the matter proceeding immediately with a disciplinary or remedial proceeding, the attorney agrees to and complies with specific measures that, if pursued, will remedy the immediate problem and likely prevent any recurrence of it.
Committee note: Examples of conduct that may be susceptible to conditional diversion include conduct arising from (A) unfamiliarity with proper methods of law office management, record-keeping, or accounting, (B) unfamiliarity with particular areas of law or legal procedure, (C) negligent management of attorney trust accounts or other financial matters, (D) negligent failure to maintain proper communication with clients, (E) negligent failure to provide proper supervision of employees, or (F) emotional stress or crisis or abuse of alcohol or other drugs.
(b) Voluntary Nature of Agreement; Effect of Rejection or Disapproval.
(1) Voluntary Nature. Neither Bar Counsel nor the attorney is under any obligation to propose or enter into a Conditional Diversion Agreement.
(2) Effect of Rejection or Disapproval. If a Conditional Diversion Agreement is proposed and rejected or if a signed Agreement is not approved by the Commission, Bar Counsel may take any other action permitted under this Chapter. Neither the fact that an Agreement was proposed, rejected, or not approved nor the contents of the Agreement may be admitted into evidence.
(c) Terms of Agreement.
(1) In Writing and Signed. A Conditional Diversion Agreement shall be in writing and signed by Bar Counsel, the attorney, and any monitor designated in the Agreement.
(2) Required Provisions. The agreement shall:
(A) recite the basis for it, as set forth in section (a) of this Rule;
(B) state that the attorney voluntarily consents to its terms and promises to pay all expenses reasonably incurred in connection with its performance and enforcement;
(C) contain an acknowledgment by the attorney that the attorney (i) has engaged in conduct that constitutes professional misconduct, or (ii) is currently incapacitated, and a warranty that the attorney has not concealed from or misrepresented to Bar Counsel any material fact pertaining to the attorney's conduct or status as incapacitated or to the Agreement;
(D) state the particular course of remedial action that the attorney agrees to follow and a time for performance or completion of that action;
(E) provide for a stay of any disciplinary or remedial proceeding pending satisfactory performance by the attorney; and
(F) state that it is expressly conditioned on (i) the attorney's not engaging in any further conduct that would constitute professional misconduct, or, (ii) non-recurrence of the nature or severity of the incapacity.
(3) Permissive Provisions. The agreement may:
(A) provide for any program or corrective action appropriate under the circumstances, including:
(i) mediation or binding arbitration of a fee dispute;
(ii) restitution of unearned or excessive fees in a stipulated amount;
(iii) a public apology to designated persons;
(iv) assistance in law office management, including temporary or continuing monitoring, mentoring, accounting, bookkeeping, financial, or other professional assistance, and completion of specific educational programs dealing with law office management;
(v) completion of specific legal education courses or curricula, including courses in legal ethics and professional responsibility;
(vi) an agreement not to practice in specific areas of the law (a) unless the attorney associates himself or herself with one or more other attorneys who are proficient in those areas, or (b) until the attorney has successfully completed a designated course of study to improve the attorney's proficiency in those areas;
(vii) one or more specific courses of treatment for emotional distress, mental disorder or disability, dependence on alcohol, drugs, or other intoxicants;
(viii) a stipulated number of hours of pro bono legal services; or
(ix) a reprimand to be issued upon the successful termination of a Conditional Diversion Agreement. The text of the reprimand shall be agreed upon and attached to the Agreement as a separate document; and
Committee note: The text of the Conditional Diversion Agreement must be separate from the text of the reprimand because the contents of the Agreement are confidential, whereas the contents of the reprimand are public. See Rules 19-716 (j) and 19-717.
(B) designate either a private monitor engaged at the attorney's expense or Bar Counsel to supervise performance and compliance with the terms and conditions of the agreement.
(4) If Monitor Designated.
(A) If the agreement designates Bar Counsel or a private monitor pursuant to subsection (c)(3)(B) of this Rule, the agreement shall authorize Bar Counsel or the monitor to request and receive all information and inspect any records necessary to verify compliance.
(B) If a private monitor is designated, the agreement shall specify the fees of the monitor and the method and frequency of payment of the fees and shall direct the monitor promptly to report any violation or noncompliance to Bar Counsel.
(d) Submission to Commission. A Conditional Diversion Agreement is not effective until approved by the Commission. Upon signing the Agreement, Bar Counsel and the attorney shall submit to the Commission the Agreement, any explanatory material they believe relevant, and any further information that the Commission requests.
(e) Action by Commission.
(1) Generally. After consideration, the Commission may:
(A) approve the Agreement if satisfied that it is reasonable and in the public interest;
(B) disapprove the Agreement if not convinced that it is reasonable and in the public interest; or
(C) recommend amendments to the Agreement as a condition of approval.
(2) Upon Commission Recommendations. The parties may accept or reject the Commission's proposed amendments. If Bar Counsel and the attorney accept the proposed amendments, they shall notify the Commission of the acceptance, and the Commission shall approve the Agreement as amended. If either party rejects a proposed amendment, the Agreement shall be deemed disapproved by the Commission.
(f) Effect of Agreement. Approval by the Commission of a Conditional Diversion Agreement does not constitute discipline.
(g) Amendment of Agreement. A Conditional Diversion Agreement may be amended from time to time. An amendment shall be in a writing signed by Bar Counsel and the attorney and approved by the Commission.
(h) Revocation of Agreement.
(1) Declaration of Proposed Default. Bar Counsel may declare a proposed default on a Conditional Diversion Agreement if Bar Counsel determines that the attorney (A) engaged in further professional misconduct while subject to the agreement, (B) wilfully misrepresented or concealed material facts during the negotiation of the Agreement that induced Bar Counsel to recommend approval of the Agreement, or (C) has failed in a material way to comply with the Agreement. Bar Counsel shall give written notice to the attorney of the proposed default and afford the attorney a reasonable opportunity to refute the determination.
(2) Petition. If the attorney fails to refute the charge or to offer an explanation or proposed remedy satisfactory to Bar Counsel, Bar Counsel shall file a petition with the Commission to revoke the Agreement and serve a copy of the petition on the attorney. The attorney may file a written response with the Commission within 15 days after service of the petition. The Commission may act upon the petition and response or may request the parties to supply additional information, in writing or in person.
(3) Action by Commission. If the Commission concludes that the attorney is in material default of the Agreement, it shall revoke the Agreement, revoke the stay of the disciplinary or remedial proceeding and any reprimand, and direct Bar Counsel to proceed in accordance with Rule 19-721, or as otherwise authorized by the Rules in this Chapter.
(i) Satisfaction of Agreement. If Bar Counsel determines that the attorney has complied in full with the requirements of the Agreement and that the disciplinary or remedial proceeding should be terminated, Bar Counsel shall inform the Commission and request that the disciplinary or remedial proceeding be terminated. If satisfied with Bar Counsel's recommendation, the Commission shall terminate the disciplinary or remedial proceeding.
(1) Fact that Approved Agreement was Signed; Notice to Complainant.
(A) The fact that an attorney has signed a Conditional Diversion Agreement approved by the Commission is public.
(B) Upon approval of an Agreement by the Commission, Bar Counsel shall inform the complainant (i) that such an Agreement has been entered into and approved, (ii) that the disciplinary or remedial proceeding has been stayed in favor of the Agreement, (iii) that, if the attorney complies with the Agreement, the proceeding will be terminated, and (iv) of the potential for and consequences to the attorney of noncompliance.
(2) Contents of Agreement.
(A) Except as provided in subsections (j)(2)(B), (C), and (D) of this Rule, the contents of a Conditional Diversion Agreement are confidential and may not be disclosed.
(B) If the Agreement requires payment or the transfer of property to the complainant by the attorney or requires other communication with the complainant by the attorney, Bar Counsel shall inform the complainant of those requirements, but not of any other terms of the Agreement.
(C) Upon revocation of an Agreement pursuant to section (h) of this Rule, the contents of the Agreement may be disclosed in any ensuing disciplinary or remedial proceeding.
(D) The contents of a Conditional Diversion Agreement may be disclosed in a subsequent proceeding against the attorney if relevant to a subsequent complaint based on similar misconduct or incapacity.