Circumstances warranting diversion

(a) Prohibited misconduct . Conduct may only be considered less serious misconduct warranting diversion if it does not result in a suspension or delicensure. Conduct is not ordinarily considered less serious misconduct if any of the following considerations apply: (1) the misconduct involves the misappropriation of client funds; (2) the misconduct results in or is likely to result in substantial prejudice to a client or other person, absent adequate provisions for restitution; (3) the Respondent has been sanctioned in the last three years; (4) the misconduct is of the same nature as misconduct for which the Respondent has been sanctioned in the last three years; (5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation; (6) the misconduct constitutes a substantial threat of irreparable harm to the public; a felony; or a misdemeanor which reflects adversely on the Respondent’s honesty, trustworthiness or fitness as a Lawyer; or (7) the misconduct is part of a pattern of similar misconduct. (b) Factors for consideration . The OPC considers these factors in negotiating and executing the diversion contract: (1) whether in the OPC’s opinion, the presumptive sanction that would be imposed is likely to be no more severe than a public reprimand or private admonition; (2) whether participating in diversion is likely to improve the Respondent’s future professional conduct and accomplish the goals of Lawyer discipline; (3) whether aggravating or mitigating factors exist; and (4) whether diversion was already tried.