March 2008

WSBA's Diversion Program

by Jennifer L. Favell

"I've never gone through anything like this with the Bar in all my years of law practice!"

Thus begins an interview between me — the WSBA diversion program administrator — and a respondent lawyer.

"But wait a minute," you say. "What is the Diversion Program? Who is in it and why? What do participants have to do?"

The brief answer: Diversion is a relatively recent component of the disciplinary process. The Diversion Program may be an option when a lawyer is charged with grievances that cannot be dismissed but do not warrant a sanction restricting the lawyer's license to practice law. Such grievances constitute "less serious misconduct" that do not include misappropriation of funds or fraud, and the respondent lawyer must be free from a history of previous discipline. Since the program began five years ago, 200 lawyers are either currently under diversion contracts or have completed the customary two-year diversion period and had their grievances dismissed.

How Does It Work?

How does diversion work? Let's look at a hypothetical. This would be a typical example of a case, although with slightly more complicated circumstances than some cases in diversion.

"John" is a 50-year-old attorney who has practiced family law for more than 20 years. He runs a solo firm, prepares his own documents, and hires a part-time bookkeeper. John took a case he knew he shouldn't have. All the warning signs were there, but he thought he could help the client whose cause he championed: a young father, "Dan," whose ex, "Marie," had alleged child sexual abuse. After an initial meeting and a handshake, Dan thought he had a lawyer.

The case came in John's door at a bad time. Not only was he on the downward slope of the solo-practice "roller coaster" in terms of caseload (AKA income), but his adolescent daughter was engaging in highly risky behaviors. His wife needed surgery and they had only catastrophic medical insurance with premiums he couldn't afford to pay. To make matters worse, he didn't have time to learn to use his newly purchased computer and software package, his taxes were due, and he was behind on his son's college tuition payments. On top of all that, John's best friend had died suddenly in the past year. John's head spun as he realized he was overwhelmed, exhausted, burdened with an extra 50 pounds, churning with anxiety, struggling with marital problems, and dependent on a 15-year-old car that was about to self-destruct.

Mail piled up on John's desk. The red light on his phone blinked incessantly but he often wasn't there to see it — and ignored it when he was there. He missed a court hearing and stopped returning phone calls from Dan, as well as everybody else. When Dan showed up at John's office late one afternoon, John knew he had to act fast to show his client he was still on the ball. John was so desperate that instead of contacting the attorney for Dan's ex, Marie, John picked up the phone and called Marie directly, berating her and demanding that she withdraw her modification papers. He assured Dan that he was "on it," not to worry, he knew his way around the system.

That did not, however, turn out to be the case. Marie's male friend, Paul, showed up on John's doorstep threatening that, if John ever called Marie again, Paul would be the one answering the phone. When Marie's attorney heard about John's call, she decided to file a grievance. Her grievance was filed one day after Dan's. And that was two days before a superior court judge called the Lawyers Assistance Program (LAP) asking a psychologist to write a confidential third-party letter to John because John had come drunk to court, on the wrong day, had made inappropriate comments to court staff, and, in a rage, had to be escorted from the court by the bailiff.

Upon investigation of the grievances by the WSBA Office of Disciplinary Counsel (ODC), John was charged with violating four RPCs. ODC decided that although the grievances could not be dismissed, they did not warrant a sanction restricting John's license to practice law. After discussions with disciplinary counsel about the Diversion Program, John agreed to arrange the next step, which was to call the Diversion Program administrator, a mental health professional, to schedule an interview. He was assured that the information disclosed during the interview was confidential and would not be released to ODC. It would form the basis for the Diversion Program administrator's recommendations for diversion contract terms.

Help with Ethics, Office Management, ADR

Disciplinary counsel agreed that in addition to attending Ethics School — the one standard term required of all diversion respondents — John should get some law office management assistance and training. This would involve contacting the Law Office Management Assistance Program (LOMAP) and working with Peter Roberts, program advisor. He would attend at least one LOMAP computer clinic to update his skills and learn how to use the software and equipment he had purchased. He would talk with the Bar's professional responsibility counsel (PRC) to be sure he had an opportunity to discuss the ethical violations with a professional outside the formal discipline system. He would contact the Alternate Dispute Resolution (ADR) coordinator in an attempt to resolve the fee dispute with Dan.

Counseling for Personal Issues

John also agreed to contact a Lawyers Assistance Program counselor or other mental health professional licensed in Washington state and to follow treatment recommendations. This would include an initial drug/alcohol evaluation. Finally, he should earn 20 continuing legal education credits over a two-year period. The seminars should focus on solo/small firm management, specifically client communication, work/life balance, ethics, and attending the LOMAP and Ethics Traveling Seminar.

Low-Cost Help

"How do you expect me to pay for all of these services?" John asked disciplinary counsel. He was unaware that the PRC's consultation and the computer clinic are offered at no cost, that LOMAP and LAP charge on a sliding scale, that ADR's services are at nominal cost, and that he would receive ethics credits from a full day at Ethics School.

John's case illustrates some of the resources and options available to lawyers whose grievances can't be dismissed but don't warrant a hearing that could lead to suspension or disbarment. The Diversion Program's goals include education, rehabilitation, prevention of future ethical lapses, and protection of the profession and the public.

Since the program is only five years old, we don't know yet how successful it will be in permanently resolving troubled lawyers' problems. However, based on feedback from respondents who have successfully completed diversion, we know that they consider the program to have been very helpful.

Word of our program has gotten around. Other state bar associations have contacted us, and we have been able to assist them in developing programs unique to their own states' needs. We believe John would recommend his experience to others in the profession who may be struggling.   

Jennifer L. Favell, Ph.D., a graduate of Stanford University and the University of Washington, is a therapist who specializes in treating trauma, stress, complicated grief, eating disorders, depression, and life transition issues through the WSBA Lawyers Assistance Program. She is the WSBA diversion administrator, working collaboratively with the Office of Disciplinary Counsel. She also maintains a private psychotherapy practice in Seattle. Jennifer can be reached at 206-727-8267 or 800-945-9722, ext. 8267, or jenniferf@wsba.org.