Bar court proposes drug program

By NANCY McCARTHY
Staff Writer

As part of the State Bar's new program to treat attorneys with substance abuse or mental health problems, both the State Bar Court and the prosecutor's office have begun efforts to refer lawyers to the Lawyers Assistance Program, using either a lesser discipline or no discipline at all as incentives for participation.

Both endeavors complement the LAP, the bar's new treatment program, as well as meet the mandate of legislation enacted last year.

Bar officials estimate that as many as one-third of discipline matters have a drug or alcohol counseling component as part of their resolution.

Late last month, the board of governors was poised to approve a bar court program which will allow attorneys already charged with ethical misconduct to voluntarily enter the LAP and, if successful, receive a lesser discipline.

Before charges are even filed, however, the Office of Trial Counsel, the bar's prosecutorial division, is referring lawyers with addiction or mental health problems to treatment. About 100 lawyers have received referrals since the beginning of the year.

"We are trying to identify people who have drug and alcohol problems and mental health issues as quickly as possible and suggest to all of them that they refer themselves voluntarily to LAP," said Cydney Batchelor, one of the prosecutors who has been working with the new programs.

Prosecutors have the discretion to divert very minor disciplinary matters, for which there is no apparent need for formal disciplinary monitoring, directly to LAP. For some other lawyers facing more serious misconduct charges, they also have the option to voluntarily enroll with LAP, and successful participation and completion of the program will be weighed during the disciplinary proceedings, Batchelor said.

Those who elect to enroll in LAP must meet certain terms and conditions to be eligible for reduced or dismissed charges. They also must waive confidentiality to get a break on discipline.

If the misconduct is egregious, enrollment likely will not result in a lawyer being able to keep his or her license. "Some will have to undergo recovery outside of having a license," Batchelor said.

The bar court's program, if approved, will be the first comprehensive program in the country for addressing the problems of respondents in an attorney discipline process. It will offer treatment to attorneys whose disciplinary matter has progressed to the courtroom. The court plans to assign two judges, one in northern California and one in southern California, to the program, which is expected to enroll about 40 lawyers at any one time and take approximately four hours of court time per week.

The court will refer appropriate candidates to the LAP for determination of their eligibility for participation. If the respondent is not accepted by the LAP, the disciplinary proceedings will be returned to the original hearing judge for normal processing.

If an attorney is accepted, the charges will be suspended until there is an outcome to the treatment program. The attorney will be required to enter into a stipulation to the misconduct and sign a contract to agree to abide by all the rules of both the LAP and the bar court. And he or she must meet certain conditions to be eligible for reduced or dismissed charges.

Even if the respondent agrees to enroll in the LAP, the judge may place restrictions on his or her practice, including inactive enrollment, said court executive officer Scott Drexel.

And although the stipulation is confidential and is held in abeyance while the lawyer undergoes treatment, failure to complete the LAP successfully will result in the stipulation taking effect and discipline being imposed.

Successful completion, which will take anywhere from 18 to 36 months, will result in a lesser discipline or none at all, Drexel said.

If the respondent is not accepted by the LAP, the disciplinary proceeding will be returned to the original hearing judge for normal processing.

Both the bar court and Office of Trials programs complement the LAP without duplicating its efforts or usurping the treatment function. All three address the intent of SB 479, legislation signed by Gov. Davis in 2001 setting aside at least $10 of annual bar dues to create a treatment program for addicted attorneys or those with mental health problems.

Under the statute, need-based financial aid also is available to attorneys who wish to participate in the LAP. However, only current members of the bar will be eligible for financial aid.

"Our real concern is public protection, and if you can do this in a way to honor that goal, then thats a good thing," Batchelor said. "We see the LAP as a boon and really a gift."

The full text of the bar court's pilot program is online.