Prosecutors want tighter rules for discipline diversion program

By NANCY McCARTHY
Staff Writer

Attempting to tighten rules governing its discipline diversion program for attorneys with addiction or mental health problems, a State Bar committee has recommended a series of changes to restrict eligibility for the program. The proposals also would require that admissions of misconduct by diverted lawyers would be made public and decisions made by the State Bar Court concerning the program would be subject to review.

The board of governors Committee on Regulation, Admissions and Discipline (RAD) sent out for public comment a series of eight proposals.

Both the Supreme Court and the bar's prosecutors have expressed concern in the past year that the Alternative Discipline Program (ADP), in which attorneys admit to misconduct but have discipline postponed and reduced if they successfully complete a lawyers assistance program, needs some changes.

According to Chief Trial Counsel Scott Drexel, the bar's head prosecutor, the court feels the eligibility requirements are too broad, the proceedings are too time-consuming and slow-moving, stipulations to misconduct are not public and there is no opportunity for review. "There was considerable discussion about whether the program should be abandoned in its entirety," Drexel added.

He pointed out that 27 other jurisdictions have diversion programs for attorneys but none allows participation by lawyers who engage in acts of moral turpitude. In fact, most limit enrollment to lawyers who commit minor or less serious misconduct or who do not have a prior record of misbehavior.

The ADP was established five years ago, but now accounts for more than 50 percent of the cases open at any given time in the bar court's hearing department. Although about 15 percent of attorneys newly charged with misconduct seek placement in the program, the pendency of those cases is high because it can take up to three years for an attorney to successfully complete it.

Last year, Drexel's office and the State Bar Court submitted competing proposals to modify the program, but the RAD panel tabled the recommendations and asked the two offices to meet with defense counsel who objected to the changes. Drexel said the bar court, which had been worried about restrictions on judicial discretion, generally agrees with the proposed changes. Defense counsel prefers the program in its current form.

The proposed changes would tighten eligibility requirements significantly, making ineligible any lawyer whose misconduct warrants disbarment, whose actions have significantly harmed clients or who is trying to be diverted into the program in order to avoid disbarment or otherwise delay the imposition of discipline. In addition, the lawyer must demonstrate a reasonable possibility of successfully completing the program.

Drexel said some lawyers wait until the day of a scheduled trial to seek admission to the program, giving the appearance of gaming the system. Such tactics are both costly and unfair to bar prosecutors, he said. The new proposal would require attorneys to disclose the existence of addiction or mental health problems not less than 45 days before the first scheduled trial date.

Other changes include:

• Most ADP participants would be placed on inactive status.
• Stipulations to misconduct would be made public as soon as approved by the bar court judge and the attorney is accepted into the ADP.
• Any lawyer terminated from the ADP is prohibited from enrolling a second time. A lawyer who successfully completes the program but commits subsequent misconduct also would be denied a second chance at enrollment.
• An attorney whose problem cannot be overcome or controlled is precluded from participation.
• The bar court's appeals division would be able to review a hearing judge's decisions in ADP proceedings.

Drexel emphasized that any lawyer with addiction or mental health issues can seek treatment from the Lawyer Assistance Program, whether or not they face disciplinary charges.

The full recommendations can be found in the Public Comment link at calbar.ca.gov.