(b) Types of Disciplinary Cases Eligible for Diversion. Disciplinary cases that otherwise would be disposed of by a finding of minor misconduct or by a finding of no probable cause with a letter of advice are eligible for diversion to practice and professionalism enhancement programs.
(c) Limitation on Diversion. A respondent who has been the subject of a prior diversion is not eligible for diversion for the same type of rule violation for a period of 5 years after the earlier diversion. A respondent who has been the subject of a prior diversion and then is alleged to have violated a completely different type of rule at least 1 year after the initial diversion will be eligible for a practice and professionalism enhancement program.
(d) Approval of Diversion of Cases at Staff or Grievance Committee Level Investigations. The bar will not offer a respondent the opportunity to divert a disciplinary case that is pending at staff or grievance committee level investigations to a practice and professionalism enhancement program unless staff counsel, the grievance committee chair, and the designated reviewer concur.
(e) Contents of Diversion Recommendation. If a diversion recommendation is approved as provided in subdivision (d), the recommendation must state the practice and professionalism enhancement program(s) to which the respondent will be diverted, the general purpose for the diversion, and the costs to be paid by the respondent.
(f) Service of Recommendation on and Review by Respondent. If a diversion recommendation is approved as provided in subdivision (d), the bar must serve the recommendation on the respondent who may accept or reject a diversion recommendation in the same manner as provided for review of recommendations of minor misconduct. The respondent does not have the right to reject any specific requirement of a practice and professionalism enhancement program.
(g) Effect of Rejection of Recommendation by Respondent. If a respondent rejects a diversion recommendation the matter will be returned for further proceedings under these rules.
(h) Diversion Before Formal Complaint is Filed. The procedures for approval of consent judgments provided elsewhere in these rules apply to diversion before the filing of a formal complaint.
(i) Diversion at Trial Level.
(2) After Submission of Evidence. A referee may recommend diversion of a disciplinary case to a practice and professionalism enhancement program if, after submission of evidence, but before a finding of guilt, the referee determines that, if proven, the conduct alleged to have been committed by the respondent is not more serious than minor misconduct.
(3) Costs of Practice and Professionalism Enhancement Program. A referee’s recommendation of diversion to a practice and professionalism enhancement program must state the costs to be paid by the respondent.
(4) Appeal of Diversion Recommendation. The respondent and the bar have the right to appeal a referee’s recommendation of diversion, except for a diversion agreed to under subdivision (i)(1).
(5) Authority of Referee to Refer a Matter to a Practice and Professionalism Enhancement Program. Nothing in this rule precludes a referee from referring a disciplinary matter to a practice and professionalism enhancement program as a part of a disciplinary sanction.
(k) Effect of Completion of the Practice and Professionalism Enhancement Program. The bar’s file will remain closed if a respondent successfully completes all requirements of the practice and professionalism enhancement program(s) to which the respondent is diverted.
(l) Effect of Failure to Complete the Practice and Professionalism Enhancement Program. The bar may reopen its disciplinary file and conduct further proceedings under these rules if a respondent fails to complete all requirements of the practice and professionalism enhancements program(s) to which the respondent is diverted, including payment of associated costs. Failure to complete the practice and professionalism enhancement program is an aggravating factor when imposing a disciplinary sanction.
(m) Costs of Practice and Professionalism Enhancement Programs. The Florida Bar will annually determine the costs of practice and professionalism enhancement programs and publish the amount of the costs to be assessed against and paid by a respondent.
