During the course of a disciplinary proceeding or investigation, the Appellate Division may defer disposition of the matter and divert the Respondent to a monitoring program if a Respondent claims disability due to alcohol or other substance dependency and the Appellate Division finds that:

(a) the alleged misconduct, if proven, would not result in the disbarment or suspension of the Respondent from the practice of law; and

(b) the alleged misconduct is sufficiently related to an alcohol or substance dependency problem on the part of the Respondent; and

(c) the diversion is in the best interests of the public, the legal profession and the Respondent.

The monitoring program selected for this diversion option must be sponsored by a lawyers’ assistance program approved by the Appellate Division.

When an attorney who is the subject of a disciplinary investigation or proceeding raises in defense of the charges or as a mitigating factor alcohol or substance abuse, or, upon the recommendation of chief counsel or a designated staff attorney pursuant to 22 NYCRR 1022.19 (d) (2) (iii), the Appellate Division may stay the matter under investigation or the determination of the charges and direct that the attorney complete a monitoring program sponsored by a lawyers’ assistance program approved by the Appellate Division upon a finding that:

(i) the alleged misconduct occurred during a time period when the attorney suffered from alcohol or other substance abuse or dependency;

(ii) the alleged misconduct is not such that disbarment from the practice of law would be an appropriate sanction; and

(iii) diverting the attorney to a monitoring program is in the public interest.

During the course of an investigation or disciplinary proceeding, when the attorney raises alcohol or other substance abuse or dependency as a mitigating factor, or upon recommendation of the committee, the Court may, upon application of the attorney or committee, stay the investigation or disciplinary proceeding and direct the attorney to complete a monitoring program sponsored by a lawyers’ assistance program approved by the Court. In determining whether to divert an attorney to a monitoring program, the Court shall consider:

(1) whether the alleged misconduct occurred during a time period when the attorney suffered from alcohol or other substance abuse or dependency;

(ii)whether the alleged misconduct is related to such alcohol or other substance abuse or dependency;

(iii)the seriousness of the alleged misconduct; and

(iv) whether diversion is in the best interests of the public, the legal profession, and the attorney.

If during the course of an investigation, the consideration of charges by a grievance committee, or the course of a formal disciplinary proceeding, it appears that the attorney whose conduct is the subject thereof is or may be suffering from alcoholism or other substance abuse or dependency, the court may upon application of the attorney or committee, or on its own motion, stay the investigation, charges, or proceeding and direct the attorney to complete a monitoring program sponsored by a lawyers' assistance program approved by the court.  In determining whether to divert an attorney to a monitoring program, the court shall consider:

(i) whether the alleged misconduct occurred during a time period when the attorney suffered from alcohol or other substance abuse or dependency;

(ii) whether the alleged misconduct is related to such alcohol or other substance abuse or dependency;

(iii) the seriousness of the alleged misconduct; and

(iv) whether diversion is in the best interests of the public, the legal profession and the attorney.

Upon confirmation by the lawyers’ assistance program that Respondent has successfully completed the monitoring program, the underlying disciplinary matters or investigation may be dismissed by the Appellate Division.

Upon submission of written proof of successful completion of the monitoring program, the Appellate Division may dismiss the disciplinary charges.

Upon submission of written proof of successful completion of the monitoring program, the Court may direct discontinuance or resumption of the investigation or disciplinary proceeding, or take other appropriate action.

Upon submission of written proof of successful completion of the monitoring program, the court may direct the discontinuance or resumption of the investigation, charges or proceeding, or take other appropriate action.

Upon reasonable notice and opportunity to be heard, the Appellate Division may terminate the monitoring program and resume the underlying disciplinary proceedings or investigation or take other appropriate action, if:

(a) the Respondent fails to satisfactorily complete the terms and conditions of the monitoring program; or

(b) the Appellate Division concludes that the Respondent has committed additional misconduct which warrants disciplinary action.

In the event of an attorney’s failure to successfully complete a Court ordered monitoring program, or, the commission of additional misconduct by the attorney during the pendency of the proceeding, the Appellate Division may, upon notice to the attorney and after affording the attorney an opportunity to be heard, rescind the order diverting the attorney to the monitoring program and reinstate the disciplinary charges or investigation.

In the event the attorney is not accepted into or fails to successfully complete the monitoring program as ordered by the Court, or the attorney commits additional misconduct after diversion is directed pursuant to this subdivision, the Court may, upon notice to the attorney affording him or her an opportunity to be heard, rescind the order diverting the attorney to the monitoring program and reinstate the investigation or disciplinary proceeding, or take other appropriate action.

In the event the attorney is not accepted into or fails to successfully complete the monitoring program as ordered by the court, or the attorney commits additional misconduct after diversion is directed pursuant to this subdivision, the court may, upon notice to the attorney affording him or her the opportunity to be heard, rescind the order diverting the attorney to the monitoring program and reinstate the investigation, charges or proceeding, or take other appropriate action.

The Respondent shall be responsible for any costs associated with his or her diversion to the monitoring program.

Any costs associated with the attorney’s participation in a monitoring program pursuant to this section shall be the responsibility of the attorney.

Any costs associated with the attorney’s participation in a monitoring program pursuant to this subdivision shall be the responsibility of the attorney.

Any costs associated with the attorney's participation in a monitoring program pursuant to this subdivision shall be paid by the attorney

The diversion to monitoring option is not available under circumstances governed by those sections of these rules relating to proceedings to determine incapacity or that may result in disbarment or suspension.