Section 13 - Diversion of Disciplinary Cases

As amended through November 4, 2024

13.1. Authority of Board. The Board is hereby authorized to establish practice and professionalism enhancement programs to which eligible disciplinary cases may be diverted as an alternative to disciplinary sanction. Subject to Section 36.1(d), the Board is also authorized to require a respondent attorney to enter into a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel as a condition of diversion under this Section. Such monitoring agreement may, in the Board's discretion, qualify as a practice and professionalism enhancement program or a part thereof.

13.2. Types of Disciplinary Cases Eligible for Diversion. Disciplinary cases that otherwise would be disposed of by a private informal admonition or a private reprimand are eligible for diversion to practice and professionalism enhancement programs.

13.3. Limitation on Diversion. A respondent attorney who has been the subject of a prior diversion within five years shall not be eligible for diversion.

13.4. Approval of Diversion. The Board shall not offer a respondent attorney the opportunity to divert a disciplinary case to a practice and professionalism enhancement program unless the Board or a combination of Disciplinary Counsel and a district committee member concur.

13.5. Contents of Diversion Recommendation. If a diversion recommendation is approved as provided in Section 13.4, the recommendation shall state the practice and professionalism enhancement program(s) to which the respondent attorney shall be diverted, shall state the general purpose for the diversion, and that the costs thereof shall be paid by the respondent attorney.

13.6. Service of Recommendation on and Review by Respondent. If a diversion recommendation is approved as provided in Section 13.4, the recommendation shall be served on the respondent attorney who may accept or reject a diversion recommendation in the same manner as provided for in Section 15. The respondent attorney shall not have the right to reject any specific requirement of a practice and professionalism enhancement program.

13.7. Effect of Rejection of Recommendation by Respondent Attorney. In the event that a respondent attorney rejects a diversion recommendation the matter shall be returned for further proceedings under this Rule.

13.8. Effect of Diversion.

(a) When the recommendation of diversion becomes final, the respondent attorney shall enter the practice and professionalism enhancement program(s) and complete the requirements thereof. Disciplinary Counsel shall provide the complainant notice that the complaint has been resolved by diversion and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by diversion under this Section.

(b) Upon the respondent attorney's successful completion of the practice and professionalism enhancement program(s), the Board shall terminate its investigation into the matter and its disciplinary files indicating the diversion shall be closed unless the diversion is ordered in addition to other discipline. Diversion into the practice and professionalism enhancement program shall not constitute a disciplinary sanction and shall remain confidential.

13.9. Effect of Failure to Complete the Practice and Professionalism Enhancement Program. If a respondent attorney fails to fully complete all requirements of the practice and professionalism enhancement program(s) to which the respondent attorney was diverted, including the payment of costs thereof, the Board may reopen its disciplinary file and conduct further proceedings under this Rule. Failure to complete the practice and professionalism enhancement program shall be considered as a matter of aggravation when imposing a disciplinary sanction.