C.R.C.P. 242.17

(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 pre-complaint 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.