(a) Establishment, Membership, Qualifications, and Terms of the Prediscipline Diversion Board.
The Board of Bar Commissioners of the Alabama State Bar shall appoint four lawyers and three laypersons to serve as members of a Prediscipline Diversion Board. Each of the lawyers appointed shall be a member in good standing of the Alabama State Bar for at least twelve (12) years and shall serve at the pleasure of the Board of Bar Commissioners of the Alabama State Bar. The layperson members appointed shall never have been lawyers; they shall be appointed in the same manner as layperson members are appointed to the Disciplinary Board pursuant to Rule 4(c) and shall serve at the pleasure of the Board of Bar Commissioners. No member of the Prediscipline Diversion Board may serve as a member, either regular or alternate, of the Disciplinary Board, the Disciplinary Commission, or the Board of Disciplinary Appeals of the Alabama State Bar or as a Disciplinary Hearing Officer.
(b) Powers and Duties.
The Prediscipline Diversion Board shall have the power to make any and all necessary rules of procedure to effectuate the purposes of this rule and program, subject to approval by the Board of Bar Commissioners of the Alabama State Bar.
(c) Eligibility for Program.
Disciplinary cases that would otherwise be disposed of by a public reprimand with general publication or a lesser sanction shall be eligible for diversion. A lawyer who has received prior discipline or who has previously participated in the diversion program shall not be eligible for diversion.
(d) Application for Prediscipline Diversion.
A respondent who chooses to avail himself or herself of the Prediscipline Diversion Program shall submit an application with the Prediscipline Diversion Board for acceptance into the Prediscipline Diversion Program. The application shall include:
(1) An unqualified guilty plea to the violation(s) of the Alabama Rules of Professional Conduct as charged:
(2) A narrative of the respondent’s conduct and the circumstances giving rise to the violation(s) of the Alabama Rules of Professional Conduct;
(3) The respondent’s biographical and professional history;
(4) An explanation by the respondent as to why acceptance in the Prediscipline Diversion Program is appropriate; and
(5) A recommendation from the Office of General Counsel, the Disciplinary Commission, and/or the Disciplinary Board of the Alabama State Bar that the respondent be accepted into the Prediscipline Diversion Program.
(e) Approval of Diversion.
Participation in the Prediscipline Diversion Program shall be in the discretion of the Prediscipline Diversion Board, but in no event shall a respondent be allowed to participate over the objection of the Office of General Counsel, the Disciplinary Board, or the Disciplinary Commission of the Alabama State Bar. Diversion shall not be granted without the respondent’s personal appearance and an interview before the Prediscipline Diversion Board.
(f) Effect of Rejection of Diversion.
If the Prediscipline Diversion Board rejects a respondent’s application to participate in the Prediscipline Diversion program, the respondent’s unqualified plea of guilty shall remain in effect, and the matter shall proceed for a hearing to determine appropriate discipline as provided in these Rules.
(g) Diversion Agreement.
Upon the respondent’s acceptance into the Prediscipline Diversion Program, the terms of the diversion shall be set forth in a written agreement. The agreement, which shall be between the respondent and the Prediscipline Diversion Board, shall incorporate the respondent’s application for diversion and shall contain conditions similar to those of probation as provided in Rule 21, and shall be monitored by the Prediscipline Diversion Board in a manner consistent with these Rules.
(h) Costs of Diversion.
The respondent shall pay all costs incurred in connection with participation in the Prediscipline Diversion Program. Payment of these costs shall be a condition of release from the Prediscipline Diversion Program.
(i) Effect of Diversion. When the respondent’s application for diversion is approved and the diversion agreement is executed, the underlying matter shall be place in abeyance, indicating that the respondent is participating in the diversion program. Diversion shall not constitute a form of discipline and shall be considered private and confidential.
(j) Term of Diversion.
A diversion program must be completed within two years of the date on which the diversion agreement is executed by all parties. Failure to complete the terms of the diversion agreement within the time allowed shall constitute a violation of the diversion agreement.
(k) Effect of Successful Completion of the Prediscipline Diversion Program.
Within 30 days of the completion of all the requirements fo the Prediscipline Diversion Program, the respondent shall file with the Prediscipline Diversion Board an affidavit stating that he or she has fulfilled all the conditions of the diversion agreement. The respondent shall appear before the Prediscipline Diversion Board before the diversion program is completed. If the Board is satisfied that the respondent has successfully completed the diversion program, it shall issue an order of successful completion, and the disciplinary matter shall be dismissed as diverted. This matter shall remain private and confidential and shall be treated for public information purposes as no prior discipline. In the event the respondent is found guilty of misconduct occurring after the date he or she is accepted into the Prediscipline Diversion Program, the dismissal as diverted may be considered as a prior disciplinary offense in imposing discipline for subsequent misconduct.
(l) Breach of Diversion Agreement.
If the Office of General Counsel, the Disciplinary Board, or the Disciplinary Commission has reason to believe that the respondent has breached the diversion agreement, a notice informing the respondent of the alleged breach shall be served upon the respondent and filed with the Prediscipline Diversion Board.
The Prediscipline Diversion Board shall enter an order requiring the respondent to appear and to show cause, if there is any, as to why the Prediscipline Diversion Board should not enter a finding that the respondent has breached the diversion agreement. Upon a finding that the respondent has breached the diversion agreement, the Prediscipline Diversion Board shall enter an order so stating, and the matter shall be referred to the Disciplinary Board for a hearing to determine based upon the respondent’s previously entered plea of guilty. The finding that the respondent has breached the diversion agreement shall not be subject to review and shall be considered by the Disciplinary Board as an aggravating factor in imposing discipline.”
“Note from the reporter of decisions: The order adopting Rule 8.1, effective August 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ____So.2d.”
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