Supreme Court of Missouri
en banc
November 26, 2002
Effective January 1, 2003
In re:
Adoption of a new subdivision 5.105, entitled "Diversion," and a new subdivision 5.225, entitled "Probation," of Rule 5, entitled “Complaints and Proceedings Thereon."
ORDER
1. It is ordered that effective January 1, 2003, a new subdivision 5.105 and a new subdivision 5.225 of Rule 5 be and the same are hereby adopted to read as follows:
- 5.105 DIVERSION
(a) Offer of Diversion. At any time prior to the conclusion of an investigation, the chief disciplinary counsel may offer the lawyer the opportunity to participate in a diversion program.
(b) Diversion Program. The diversion program may include programs assisting the lawyer in managing her or his practice, improving proficiency of the lawyer, or providing personal assistance.
(c) Participation in the Program. A lawyer may participate in a diversion program if:
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(1) The allegations are of a minor nature;
(2) There is little likelihood that the lawyer will harm the public during the period of participation;
(3) The chief disciplinary counsel can adequately supervise the conditions of the program; and
(4) Participation in the program is likely to benefit the lawyer and accomplish the goals of the program.
The diversion program is not appropriate, absent special circumstances, in the following situations:
- (1) The misconduct is likely to result in imposition of discipline by this Court;
(2) The misconduct involves misappropriation of funds or property of a client or third party;
(3) The misconduct involves criminal activity as set forth in Rule 5.21;
(4) The misconduct resulted in or is likely to result in actual injury, such as loss of money, legal rights or valuable property rights, to a client or other person, unless restitution is made a condition of diversion;
(5) The lawyer has previously received discipline;
(6) The misconduct involves dishonesty, deceit, fraud or misrepresentation; or
(7) The misconduct is part of a pattern of similar misconduct.
(d) Diversion Agreement. If a lawyer agrees to an offer of diversion, the terms of the diversion shall be set forth in a written agreement between the lawyer and the chief disciplinary counsel. The agreement shall specify the programs to which the lawyer shall be diverted, the general purpose of the diversion, the manner in which the lawyer's compliance with the program is to be monitored, and any requirement for payment of restitution or costs.
(e) Costs of the Diversion. The lawyer shall pay all the costs incurred in connection with participation in any diversion program.
(f) Effect of Diversion. Upon execution of a diversion agreement, the lawyer shall complete the requirements thereof.
Upon the lawyer's entry into the diversion program, the underlying disciplinary matter shall be placed in abeyance, indicating diversion.
Diversion is not discipline under this Rule 5.
(g) Effect of Successful Completion of the Diversion Agreement. If the chief disciplinary counsel determines that the lawyer has successfully completed all the requirements of the diversion agreement, the chief disciplinary counsel shall close the file.
(h) Breach of Diversion Agreement. If the chief disciplinary counsel has reason to believe that the lawyer has breached the diversion agreement, the lawyer shall be given an opportunity to respond, and the chief disciplinary counsel may modify the diversion agreement or terminate the diversion agreement and proceed with the matter as provided by Rule 5.
If the diversion agreement is breached, any information obtained while participating in a diversion program may be used in the same manner as any other evidence acquired in the course of a Rule 5 investigation.
(i) Effect of Rejection of Recommendation for Diversion. If a lawyer rejects a diversion offer, the matter shall proceed as otherwise provided in Rule 5.
(j) Confidentiality. All of the records resulting from the diversion of a matter shall be filed with the chief disciplinary counsel and shall be subject to the same restrictions concerning confidentiality as provided in Rule 5.31.
5.225 PROBATION
(a) Eligibility. A lawyer is eligible for probation if he or she:
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(1) Is unlikely to harm the public during the period of probation and can be adequately supervised;
(2) Is able to perform legal services and is able to practice law without causing the courts or profession to fall into disrepute; and,
(3) Has not committed acts warranting disbarment.
Probation shall be imposed for a specified period of time in conjunction with a suspension. The suspension may be stayed in whole or in part.
The period of probation shall not exceed five years unless an extension is granted upon motion by either party. A motion for an extension must be filed prior to the conclusion of the suspension period.
An order of probation is an order of discipline.
(b) Conditions. The order placing a lawyer on probation shall specify the conditions of probation. The conditions shall take into consideration the nature and circumstances of the lawyer's misconduct and the history, character, and health status of the lawyer. A standard condition in all probation cases shall be that the lawyer engage in no further violations of the Rules of Professional Conduct.
(c) Costs. The lawyer is responsible for all costs of evaluation, treatment and supervision. Failure to pay these costs prior to termination of probation shall constitute a violation of probation.
(d) Monitoring. The chief disciplinary counsel shall monitor the lawyer's compliance with the conditions of probation. The chief disciplinary counsel shall determine all reporting requirements unless the Court designates otherwise. When appropriate, the chief disciplinary counsel may designate a portion of the monitoring role to the intervention committee, a regional disciplinary committee, or may contract with people or entities to assist with monitoring the lawyer. In cases in which the chief disciplinary counsel has delegated some or all of the monitoring responsibility, additional reports regarding the progress of the lawyer shall be submitted by the monitor to the chief disciplinary counsel.
(e) Public Notice. Notice shall be given of a lawyer placed on probation in the same manner as notice is given other discipline.
(f) Violations. If the chief disciplinary counsel receives information during the period of probation that any condition may have been violated, the chief disciplinary counsel may file a motion in this court specifying the alleged violation and seeking an order requiring the lawyer to show cause why the stay should not be lifted and the sanction imposed.
The filing of the motion stays the expiration date of the period of probation until final action is taken on the motion.
Service of the motion shall be in any manner permitted by Rule 5.18.
The lawyer shall file a written response to the show cause order within fifteen days of service.
The Court may decide the issues on the basis of the pleadings. If the Court finds a hearing is necessary, it may order that the case proceed under Rule 5.22(b) or may refer the matter for appointment of one or more disciplinary hearing panel members to conduct a hearing and make recommendations as if the case were proceeding under Rules 5.15, 5.16 and 5.19.
The lawyer's failure to file a response or appear at the hearing shall be deemed a default.
At the hearing, the chief disciplinary counsel has the burden of establishing by a preponderance of the evidence the violation of a condition of probation. When the alleged violation of a condition is the lawyer's failure to pay restitution or costs, the evidence of the failure to pay shall constitute prima facie evidence of a violation. Any evidence having probative value shall be received regardless of its admissibility under the rules of evidence if the lawyer is accorded a fair opportunity to rebut the evidence.
(g) Termination. Not more than 30 days and not fewer than 15 days prior to the expiration of the period of probation, the lawyer may file with this Court an application for an order of successful completion of the probation. An affidavit stating that the lawyer has complied with all terms of probation shall be attached to the application.
The lawyer shall serve a copy of the application and affidavit on the chief disciplinary counsel.
If the chief disciplinary counsel fails to object to termination of probation within 15 days of receipt of the application, the order showing successful completion of the period of probation shall issue. The probation ends on the date of the order.
If an application is not filed timely, the probation shall continue. If the probation continues, an application may be filed at any time.
(h) Independent Charges. A motion for revocation of a lawyer's probation does not preclude the chief disciplinary counsel from filing independent disciplinary charges based on the same conduct as alleged in the motion.
(i) Reinstatement. Probation may be imposed by the Court as a condition of reinstatement after suspension or disbarment.
2. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
3. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
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STEPHEN N. LIMBAUGH, JR.
Chief Justice