(a) Eligibility. When an attorney has demonstrated that the attorney:
(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, then the attorney may be placed on probation. Probation shall be imposed for a specified period of time in conjunction with a suspension which may be stayed in whole or in part. Such an order shall be regarded as an order of discipline. The period of probation shall not exceed three 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 period originally specified.
(b) Conditions. The order placing an attorney on probation shall specify the conditions of probation. The conditions shall take into consideration the nature and circumstances of the attorney’s misconduct and the history, character, and health status of the attorney and shall include no further violations of the Colorado Rules of Professional Conduct. The conditions may include but are not limited to the following:
(1) Making periodic reports to the Regulation Counsel or to the attorneys’ peer assistance program as provided in subsection (d) of this Rule;
(2) Monitoring the attorney’s practice or accounting procedures;
(3) Establishing a relationship with an attorney-mentor, and regular reporting with respect to the development of that relationship;
(4) Satisfactory completion of a course of study;
(5) Successful completion of the multi-state professional responsibility examination;
(6) Refund or restitution;
(7) Medical evaluation or treatment;
(8) Mental health evaluation or treatment;
(9) Evaluation or treatment in a program that specializes in treating disorders related to sexual misconduct;
(10) Evaluation or treatment in a program that specializes in treating matters relating to perpetration of family violence, including but not limited to domestic partner, elder, and child abuse;
(11) Substance abuse evaluation or treatment;
(12) Abstinence from alcohol and drugs; and
(13) No further violations of the Colorado Rules of Professional Conduct.
(c) Costs. The attorney shall also be 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 Regulation Counsel shall monitor the attorney’s compliance with the conditions of probation imposed under these rules. When appropriate, the Regulation Counsel may delegate its monitoring role to the attorneys’ peer assistance program. In cases in which the attorneys’ peer assistance program is the designated monitor, regular reports regarding the progress of the attorney shall be submitted by the attorneys’ peer assistance program to the Regulation Counsel.
(e) Violations. If, during the period the attorney is on probation, the Regulation Counsel receives information that any condition may have been violated, the Regulation Counsel may file a motion with the Presiding Disciplinary Judge specifying the alleged violation and seeking an order requiring the attorney to show cause why the stay should not be lifted and the sanction activated for violation of the condition. The filing of such a motion shall toll any period of suspension until final action. A hearing shall be held upon motion of either party before the Presiding Disciplinary Judge. At the hearing, the Regulation Counsel has the burden of establishing by a preponderance of the evidence the violation of a condition of probation. When, in a revocation hearing, the alleged violation of a condition is the attorney’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 attorney is accorded a fair opportunity to rebut hearsay evidence. At the conclusion of a hearing, the Presiding Disciplinary Judge shall prepare a report setting forth findings of fact and decision.
(f) Termination. Unless otherwise provided in the order of suspension, within 28 days and no less than 14 days prior to the expiration of the period of probation, the attorney shall file an affidavit with the Regulation Counsel stating that the attorney has complied with all terms of probation and shall file with the Presiding Disciplinary Judge notice and a copy of such affidavit and application for an order showing successful completion of the period of probation. Upon receipt of this notice and absent objection from the Regulation Counsel, the Presiding Disciplinary Judge shall issue an order showing that the period of probation was successfully completed. The order shall become effective upon the expiration of the period of probation.
(g) Independent Charges. A motion for revocation of an attorney’s probation shall not preclude the Regulation Counsel from filing independent disciplinary charges based on the same conduct as alleged in the motion.
Source: Amended and adopted June 25, 1998, effective July 1, 1998; f amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1 b.
Annotation The expiration of a specific period of probation imposed on an attorney does not alone entitle that attorney to reinstatement to the unconditional practice of law. While the rule does not expressly state that the probationer remains on probation until an order of successful completion has issued, that is not only a probable, but in fact the necessary, implication of the requirement. In re Bass, 2013 CO 40, 307 P.3d 1052. Applied in In re Green, 982 P.2d 838 (Colo. 1999).
