April 2005

On Diverting Lawyers from Discipline

by Guest Columnists — Chief Disciplinary Counsel Joy McLean and Diversion Administrator Jennifer Favell, Ph.D.

We appreciate Executive Director Jan Michels’s giving us the opportunity to use her column to update you with our experiences operating an exciting new alternative to discipline in Washington — diversion. We believe that, by offering professional growth alternatives to traditional discipline, diversion has the potential to salvage lawyers who might otherwise become casualties of their own further misconduct.

How did we get diversion?

In 1993, a team from the ABA came to Washington to evaluate our discipline system. They came at the behest of our Supreme Court, which has exclusive responsibility for the lawyer discipline and disability system in this state. The ABA team recommended many improvements, including that we approach lawyer misconduct from two angles — a timely and dependable system for sanctioning lawyers who engage in more serious misconduct, and an effective system for rehabilitating lawyers who engage in less serious misconduct. In response to the ABA recommendations, the Supreme Court convened a Bar/Court task force to study the ABA’s recommendations and propose specific rule changes to the Court.

In late 1994, the task force issued its report, also embracing the notion of a rehabilitative alternative to discipline in certain circumstances. The task force envisioned diverting lawyers into one or more of a constellation of Bar-sponsored rehabilitation services. During the ensuing seven years, remaining pieces of this constellation came into being, including the Law Office Management Assistance Program (LOMAP) and the Mediation Program. These joined services already available, such as the Lawyers’ Assistance Program (LAP), the Fee Arbitration Program, and the client trust account audit program. These programs are mostly housed in the Lawyer Services Department of the Bar, separate from lawyer discipline. Finally, in September 2001, the last piece fell into place: the Court’s adoption of the diversion rule itself, now at Title 6 of the Rules for Enforcement of Lawyer Conduct (ELC).

Since then, we have diverted about 90 lawyers. It’s too early to predict whether diversion has a long-term beneficial effect on lawyer conduct or prevents recidivism, but, in time, correlational analyses may help answer those questions. In the meantime, what we do know is that lawyers in diversion report that it is having a positive effect on their lives.

How does diversion work?

All grievances leaving intake are investigated by disciplinary counsel. Following investigation, disciplinary counsel consider diversion if they conclude (or the lawyer admits) that the lawyer committed misconduct but not the sort that would cause a license suspension or disbarment, and if the lawyer otherwise appears eligible and appropriate for diversion (e.g., no history of recent or similar misconduct, no prior failed diversion, no pattern of misconduct, no dishonesty, amenability to rehabilitation), the Bar notifies the lawyer of the diversion option. It is entirely up to the lawyer whether to proceed with diversion.

Jennifer Favell, Ph.D., of the Lawyer Services Department, screens referred lawyers and determines what terms, if any, would serve the purpose of rehabilitating that particular lawyer in light of that lawyer’s misconduct and that lawyer’s individual circumstances. In the screening interview, Dr. Favell and the lawyer discuss personal and professional issues connected to the misconduct and ways to prevent misconduct in the future. If the lawyer decides not to continue into diversion, the interview remains confidential between Dr. Favell and the diversion candidate.

In considering terms of diversion, Dr. Favell considers which of the constellation of rehabilitative services listed above may best serve the purpose. Working in collaboration with disciplinary counsel, she may recommend training in office management, time management, accounting software, or boundary setting, to name a few possibilities. In every case, she recommends that the lawyer attend “ethics school,” a day-long program designed by disciplinary counsel to educate a lawyer about ethics issues and provide practical tips for practice. If the lawyer elects to participate in diversion, the Bar and lawyer sign a diversion contract containing those terms, the lawyer signs a confidential statement stipulating to the misconduct, and the lawyer pays various costs associated with the diversion. The Bar notifies the grievant that the lawyer has entered diversion. In all other respects, the diversion is kept confidential.

Dr. Favell then monitors the progress of the lawyer in diversion and reports any breaches of the diversion agreement to disciplinary counsel, who works with her to determine the best response to the breach. If the lawyer successfully completes the diversion, the matter is dismissed and closed and ordinarily deleted from the lawyer’s record later. If the lawyer breaches the diversion agreement, the lawyer faces public disciplinary proceedings at which the statement of admission is entered. So far, only four lawyers have breached out of diversion.

A majority of lawyers in diversion work with Pete Roberts, MBA, LOMAP manager. He uses self-assessment instruments to help the lawyer diagnose the source of the lawyer’s problems and then works with the lawyer to suggest ways to improve the lawyer’s approach to the business side of practice.

Who might be diverted and to what?

Take the example of a lawyer who failed to keep proper client trust account records and, as a result, bounced a check. Or the lawyer who failed to appear at the client’s summary judgment motion hearing, where the judge ruled against the client. Or still yet, the lawyer who altered an original court order to benefit her client. All of these have actually happened. Would these lawyers have been eligible for diversion? What would their diversion look like?

A lawyer’s failure to keep proper books could be occasion for diversion, depending on the depth of disarray of the books and whether client funds were lost or jeopardized as a result. Diversion would likely involve a requirement that books be maintained properly and that the lawyer cooperate with periodic trust account examinations by Bar auditors. It might also involve a referral to LOMAP for general law office management education, including basic accounting.

A lawyer’s failure to appear at a critical stage in a client’s case, such as at a summary judgment hearing, could be quite serious. The seriousness might depend on the reasons for the failure to appear, the amount of injury to the client, the “reversibility” of the judge’s ruling, steps taken to remedy the situation, etc. Assume the lawyer’s life and office are in shambles, he had a conflict in his schedule (matter in another courtroom) and failed to notify the court or parties of the scheduling problem but afterward got the summary judgment order set aside, paid terms associated with it, and did not charge the client for the set-aside. But the lawyer has since failed to return client phone calls and claims that his divorce has made it impossible for him to focus on work. Diversion might be appropriate. It would likely involve working with LOMAP to develop better office systems, staffing, or protocols to avoid this situation in future. It might also involve limited psychotherapy to develop better coping skills to deal with personal stresses.

Altering an original, signed court order is an intentional, inherently dishonest, and very serious act of misconduct (and crime) for which diversion would likely never be appropriate; indeed, disbarment would likely be the presumptive sanction. Further, the rule does not envision diversion for lawyers who commit certain types of misconduct, such as deceit and dishonesty.

National attention for Washington diversion

In the past five months, we have twice been invited to present information about our diversion procedure at national conferences — one sponsored by the ABA Commission on LAP in Philadelphia last October and one sponsored by the National Organization of Bar Counsel in Salt Lake City in February. At both conferences, we were surprised but delighted by the number of attendees and their overwhelming response of interest, and their praise for what we are doing in Washington. We have had several follow-up inquiries about our approach.

Diversion is still quite new in Washington, and its long-term effectiveness unknown, but we are optimistic and think it is a valuable addition for addressing ethical misconduct. Further, diverted lawyers have expressed gratitude for the opportunity to correct problems, and for the support and expertise of those working with them to help achieve that end.

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