Rule 2.10 Diversion

(1) Diversion Offered by Disciplinary Counsel. As an alternative to seeking authority from the SPRB to offer a licensee an admonition or to file a formal complaint, Disciplinary Counsel may offer to the licensee to divert a grievance on the condition that the licensee enter into a diversion agreement in which the licensee agrees to participate in a remedial program as set forth in the agreement. A licensee does not have a right to have a grievance diverted under this rule.

(2) Diversion Eligibility. Disciplinary Counsel may consider diversion of a grievance if:

(a) The misconduct does not involve the misappropriation of funds or property; fraud, dishonesty, deceit or misrepresentation; or the commission of a misdemeanor involving moral turpitude or a felony under Oregon law;

(b) The misconduct appears to be the result of inadequate law office management, chemical dependency, a physical or mental health condition, negligence, or a lack of training, education or other similar circumstance; and

(c) There appears to be a reasonable likelihood that the successful completion of a remedial program will prevent the recurrence of conduct by the licensee similar to that under consideration for diversion.

(3) Offer of Diversion.

(a) If, after investigation, Disciplinary Counsel determines that a licensee may have committed misconduct and that the matter is appropriate for diversion under this rule, Disciplinary Counsel may offer a diversion agreement to the licensee. The licensee has 30 days from the date diversion is offered to accept and enter into the diversion agreement. Disciplinary Counsel may grant an extension of time to the licensee for good cause shown.

(b) A licensee may decline to enter into a diversion agreement, in which case Disciplinary Counsel shall refer the grievance to the SPRB for review pursuant to Rule 2.6.

(4) Diversion Agreement.

(a) A diversion agreement shall require the licensee to participate in a specified remedial program to address the apparent cause of the misconduct. Such a remedial program may include, but is not limited to: appointment of a diversion supervisor; assistance or training in law office management; chemical dependency treatment; counseling or peer support meetings; oversight by an experienced practicing attorney; voluntary limitation of areas of practice for the period of the diversion agreement; restitution; or a prescribed course of continuing legal education. The licensee shall pay the costs of a remedial program.

(b) A diversion agreement shall require the licensee to stipulate to a set of facts concerning the complaint or allegation of misconduct being diverted and to agree that, in the event the licensee fails to comply with the terms of the diversion agreement, the stipulated facts shall be deemed true in any subsequent disciplinary proceeding.

(c) A diversion agreement may be amended at any time by agreement between Disciplinary Counsel and the licensee. Disciplinary Counsel is not obligated to amend a diversion agreement to incorporate additional complaints or allegations of misconduct made against the licensee subsequent to the date of the original agreement.

(d) The term of a diversion agreement shall be no more than 24 months following the date of the last amendment to the agreement.

(e) In a diversion agreement, the licensee shall agree that a diversion supervisor, treatment provider or any other person to whom the licensee has been referred pursuant to the remedial program specified in the agreement shall report to Disciplinary Counsel any failure by the licensee to comply with the terms of the agreement.

(f) If a diversion agreement is entered into between Disciplinary Counsel and the licensee, Disciplinary Counsel shall so notify the complainant in writing.

(5) Compliance and Disposition.

(a) If it appears to Disciplinary Counsel that a licensee has failed to comply with the terms of a diversion agreement and Disciplinary Counsel determines that the allegation of noncompliance, if true, warrants the termination of the diversion agreement, Disciplinary Counsel shall provide the licensee an opportunity to be heard, through written submission, concerning the alleged noncompliance. Thereafter, Disciplinary Counsel shall determine whether to terminate the diversion agreement and, if so, shall refer the matter to the SPRB for review pursuant to BR 2.6.

(b) If a licensee fulfills the terms of a diversion agreement, Disciplinary Counsel thereafter shall dismiss the grievance with written notice to the complainant and the licensee. The dismissal of a grievance after diversion shall not be considered a prior disciplinary offense in any subsequent proceeding against the licensee.

(6) Public Records Status. The Bar shall treat records relating to a grievance diverted under this rule, a diversion agreement, or a remedial program as official records of the Bar, subject to the Oregon Public Records Law and also subject to any applicable exemption.