California Bar Journal
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Diversion bill backed by Burton
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to battle addiction and maintain their licenses,” said bar executive director Judy Johnson, who saw first-hand the effects of alcohol and drug problems when she headed the discipline system.

“We saw what the medical board was doing, particularly its tremendous success with self-referral.”

Burton has long been a critic of the State Bar’s discipline system, maintaining that it unfairly targets sole and small firm practitioners. Last year, he authored SB 143, which requires the bar to review its disciplinary practices to determine if there is any “institutional bias” toward that group. Johnson said a diversion program is responsive to the legislation as well as an acknowledgement that substance abuse and solo and small firm practitioners consume a large percentage of the bar’s discipline efforts.

John BurtonThe exact number of impaired attorneys in California is elusive. Bar officials say that about 300 or one-third of those on probation in the discipline system have an alcohol or drug-related component as a probation requirement. Another 50 are part of a first-time DUI arrest program each year, avoiding discipline if they agree to certain conditions.

The Other Bar, a support group for alcoholic lawyers, estimates that 18 to 20 percent of attorneys who drink are alcoholics. The extent of drug addiction is somewhat more difficult to pinpoint since many drugs are illegal; however, estimates place cross-addiction (both alcohol and drug abuse) at about 90 percent among alcoholics.

Under Burton’s legislation, the bar’s diversion program would be administered by a 12-member appointed board which would establish criteria for participation in the program.

How to be referred

Lawyers would enter through voluntary self-referral, or be referred by bar prosecutors or the State Bar Court. Any attorney currently under investigation may be eligible.

Those who sign up voluntarily are entitled to complete confidentiality. Those referred by the discipline system may still be subject to disciplinary action, including inactive enrollment or suspension. However, a lawyer who completes the program successfully will be eligible for an agreed upon reduction in the recommended discipline. Restrictions to practice also may be removed.

At the same time, Johnson said, the program is by no means a free pass for errant lawyers whose misconduct is serious and who may still face restrictions on their license to practice, even if accepted into the diversion program.

Criteria for acceptance and participation in the program are expected to be stringent and will require a five-year commitment to a lifestyle that will promote ongoing sobriety.

Participants must pay all expenses related to treatment and recovery, and the bill requires the bar to seek financial assistance for those unable to pay.

At its last meeting, the board of governors voted unanimously, with one abstention, to support Burton’s measure. Both bar President Palmer Madden and Judith Copeland, who represents San Diego, said uncertainty about its cost made them leery of supporting it.

“This is a helluva way to run a railroad,” Madden complained, saying no cost-benefit analysis of the proposal has been performed. “You wouldn’t run your own money or your law firm’s money that way, and we shouldn’t run our member’s money that way.”

Copeland, who abstained from voting, said she, too, “felt a little railroaded,” adding she was not comfortable supporting a measure which might cost $800,000 a year “without an awful lot more details.”

The program’s price tag has not been determined, but Starr Babcock, special assistant to Johnson, said he believes start-up costs will be around $500,000 and ultimately the program might cost between $1.2 million and $1.5 million a year. The initial cost can be absorbed within the authorized dues level, he said, and the bar is exploring additional sources of funding.

Medical board program

The medical board program, also statutorily required, costs about $855,000 a year. (There are nearly 83,000 doctors practicing in Calif-ornia, compared to 138,000-plus active attorneys.) Since its inception in 1980, 981 physicians have participated in diversion, and 663 — 74 percent — successfully completed the program.

According to Joan Gladen, a diversion program specialist since 1993, some doctors who participate are referred by the medical board as part of a disciplinary proceeding, but 58 percent are self-referred.

Candidates undergo clinical re-view by a panel of experts, including three doctors and two public members who are licensed therapists. That panel determines whether the impaired doctor will be accepted into the program and puts together a customized agreement which can include requirements such as inpatient treatment or psychological testing.

Group meetings

Every participant attends group meetings led by licensed therapists, undergoes random drug and alcohol testing and is regularly monitored by a case manager. The program requires a five-year commitment.

There is no standard of failure, such as a “three strikes” policy, but Gladen says relapses “are really very minimal. We don’t experience a significantly high number because our participants are so closely monitored.”

Details of the attorney diversion plan are not part of the legislation. Those will be established by the board, which will consist of lawyers, a physician, mental health professionals, a board member from The Other Bar, and four public members. They will be appointed by the State Bar, the governor, the Speaker of the Assembly and the Senate Rules Committee.

Riverside attorney Jim Heiting, a former president of The Other Bar, supports diversion and hopes his group can help with assessments and serve as monitors. As a recovering alcoholic, he says he would prefer to have alcoholic lawyers referred to a treatment agency other than the State Bar, and he’s somewhat concerned about the lack of confidentiality for those already in the discipline system. “But as a member of the State Bar, I think it’s probably appropriate,” he said.

Fran Bassios, the bar’s acting discipline chief, also favors diversion but is unwilling to make any long- term predictions about its effectiveness or whether it eventually might reduce the discipline system’s budget, which now accounts for 76 percent of the total bar budget.

He points out that the number of lawyers in California will continue to grow, and “we have more than enough bad lawyers to make up for the drug users and alcoholics. I don’t think you can say this will dramatically decrease the cost of the discipline system, but it might maintain it without having to add additional resources.”

Bassios said he hopes a diversion program will enable impaired lawyers to get help faster and earlier and that the number of client complaints will decline. “We hope there will be benefits to lawyers, to the system as a whole and that in the long term, the public will benefit.”

In addition to the diversion program, the bar is considering two other steps to meet the concerns raised by SB 143. For attorneys who cannot afford or do not want outside counsel to represent them before the bar court, the chief trial counsel has prepared a handbook, now in draft form, on how to negotiate the discipline system.

The bar also is examining the concept of discipline court facilitators to assist attorneys in the system, much like family law facilitators who now help unrepresented parties in courts throughout California.