Utah Bar Journal

In 2005, the Utah Supreme Court asked the Utah State Bar Commission to investigate diversion and determine if a diversion rule was a direction the bar wanted to go in its discipline process. The Bar Commission appointed a sub-committee made up of Lowry Snow, current bar president, and commissioners Stephen Owens, Felshaw King, and Lori Nelson. The sub-committee, in consultation with Billy Walker of the Office of Professional Conduct (OPC), began researching diversion rules across the country as well as the effectiveness of diversion in other jurisdictions. The sub-committee also researched diversion in other disciplines and professions to analyze how diversion would impact legal professionals.

The intent behind diversion is to address misconduct that might not result in formal discipline but still has a negative impact on the lawyer, the legal profession, the administration of justice, and the public. Such misconduct could involve substance abuse issues, law practice management issues, or other types of misconduct.

In reviewing other professions, the sub-committee became aware of the Utah Recovery Assistance Program (URAP), administered through the Utah Division of Occupational and Professional Licensing (DOPL). This program assists other professionals when discipline becomes a necessary tool in dealing with issues impacting the delivery of that professional’s services. The URAP is designed to help the professional in a structured, supportive, and monitored environment to work through his or her rehabilitation. It allows the professional to continue working, assists the professional in resolving problems in a way that simultaneously benefits and protects the public and creates an environment for healing and rehabilitation. DOPL reinforces the concepts that URAP is not a treatment program, a place to hide illegal activity, or a program for repeat offenders or those in denial.

These same principles appear to be consistent, not only across professions, but across the nation in looking at other lawyer discipline rules. It was these guiding principles, with the overarching concept of rehabilitation, that the Bar Commission sub-committee followed in crafting the new diversion rule.

Several other jurisdictions have internalized the concept of rehabilitation in their own diversion rules. The Oklahoma Bar Association (OBA), in an article by Gina Hendryx, OBA Ethics Counsel, stated that “[p]revention, not punishment, was the guidepost espoused by the Discipline Task Force in its recommendation of a diversion program to assist attorneys who receive complaints that stem from disorganization, procrastination and poor office management with education and remedial programs.” Gina Hendryx, Ethics Counsel Articles, (2004).

Oklahoma’s diversion rule grants OBA general counsel the sole discretion to “divert” attorneys from the disciplinary system. It provides diversion into existing bar programs such as ethics school, trust account school, and law office management school. The rule provides for on-site office visits to review office management procedures and ongoing monitoring by the Office of Ethics Counsel. Failure to comply with the terms of the diversion agreement could result in the participant becoming subject to the standard discipline process in Oklahoma. All costs associated with diversion are assessed to the participating attorney. Once an attorney completes diversion, the case is closed and all information regarding the complaint and completion of the diversion contract remains strictly confidential.

In the early 1990s, Washington State, following similar guiding principles, created its diversion program. As stated in an article by Chief Disciplinary Counsel Joy McLean and Diversion Administrator Jennifer Favell, Ph.D., the Washington Bar Association was tasked with creating a two-pronged approach to dealing with attorney misconduct. The first prong was creating a timely and dependable system for sanctioning lawyers who engaged in serious misconduct. The second prong was creating an effective program for lawyer rehabilitation. As in Oklahoma, the diversion program was intended to divert lawyers accused of less serious misconduct into existing bar programs such as Law Office Management, Fee Arbitration, Lawyers’ Assistance Programs, and other programs. Unlike Oklahoma, Washington’s program gives lawyers eligible for diversion discretion to determine for themselves whether or not to proceed with the diversion program.

In Washington, once a lawyer opts into diversion, Dr. Favell then analyzes which of the constellation of services would best address the lawyer’s particular issues, and the lawyer then signs a diversion contract consistent with Dr. Favell’s recommendations. As in Oklahoma, once diversion is successfully completed, the case is closed and all information regarding the attorney is kept strictly confidential.

In developing Utah’s diversion rule, the sub-committee determined that the existing programs across the nation, and Utah’s own URAP, all had good provisions which could be included in the ultimate rule drafted for submission to the Utah Supreme Court. Specifically, the sub-committee wanted the rule to provide the accused lawyer with the ability to opt into or out of diversion. Also, the rule should provide for diversion into existing bar programs as well as an avenue for dealing with mental health issues, such as depression and substance or alcohol abuse. Lastly, the rule needed to ensure that the lawyer participated in the costs associated with diversion.

As such, Utah’s diversion rule provides that a responding attorney may be diverted into one or more of the following programs:

• Fee Arbitration;

• Mediation;

• Law Office Management Assistance;

• Psychological and Behavioral Counseling;

• Monitoring;

• Restitution;

• Continuing Legal Education programs, including Ethics School; and

• Any other program or corrective course of action agreed to by the responding attorney necessary to address Respondent’s conduct.

Utah’s diversion rule sets forth those instances in which diversion is appropriate. Diversion is not appropriate when the attorney is accused of misappropriating client funds; the attorney’s behavior will, or is likely to, result in substantial prejudice to a client or other person absent adequate provisions for restitution; the attorney has previously been sanctioned in the immediately preceding three years; the current misconduct is of the same type for which the attorney has previously been sanctioned; the misconduct involved dishonesty, deceit, fraud, or misrepresentation; the misconduct constitutes a substantial threat of irreparable harm to the public; the misconduct is a felony, or a misdemeanor that reflects adversely on the respondent’s honesty, trustworthiness, or fitness as a lawyer; or, the attorney has engaged in a pattern of similar misconduct.

To be eligible for diversion, the presumptive sanction must not be more severe than a public reprimand or private admonition. Further, all involved must make an assessment of whether or not participation in diversion is likely to improve the attorney’s future behavior, whether aggravating or mitigating factors exist, and whether diversion already has been attempted.

Utah’s diversion rule creates a new committee of the Utah Supreme Court, the Diversion Committee, which will be tasked with the following: (1) reviewing diversion referrals; (2) participating in ensuring diversion contracts are consistent with the issues presented by the attorney and Utah’s Rules of Lawyer Discipline and Disability; and, (3) assigning monitoring to the OPC, Lawyers Helping Lawyers, or a mental health professional. Committee participants will have a varied background, including mental health expertise, law practice management expertise, and prior disciplinary screening panel experience, to ensure that it is made up of those individuals best suited to assist lawyers opting to participate in diversion.

The rule provides that, upon receipt of a complaint, the OPC will notify the attorney of the complaint and the option for diversion, if applicable. The attorney then has the option to agree to diversion, and, if so, the attorney has the obligation to provide a first draft of a diversion contract. The terms of the diversion contract must be approved by the diversion committee and must be consistent with the issues presented by the complaint against the attorney. For instance, if the complainant alleges that the attorney has a substance abuse problem, the contract must provide a specific remedy for dealing with the issue, including treatment options and monitoring, as well as the necessary protections for the attorney’s existing client.

Because the burden is on the responding attorney, the rule provides that the attorney may seek the assistance of counsel in drafting and negotiating the terms of the diversion contract with the diversion committee. The contract must be signed by the responding attorney, his or her counsel, if any, and OPC, if OPC concurs with the contract terms. In addition, the contract must set forth the terms and conditions of diversion, including the identification of service providers, mentors, monitors, or supervisors, and each participant’s individual responsibilities. If a mental health professional is utilized, the attorney must sign a limited waiver of confidentiality to permit the professional to fulfill the disclosure requirements under the rule. Importantly, the contract must provide that the attorney will pay all costs incurred in diversion.

Upon entrance to the diversion contract, the complaint against the attorney is stayed pending completion of diversion. If diversion is successful, the complaint is dismissed, and all information regarding the attorney is kept confidential. Further, successful completion of diversion is a bar to disciplinary prosecution based on the same allegations. However, a material breach of the diversion contract is cause for terminating the agreement and subjecting the lawyer to appropriate discipline as if diversion had never been an option.

Confidentiality is one of the major principles underlying diversion. The sub-committee discussed at length whether or not diversion contracts should contain specific language requiring the attorney to admit the wrongdoing. At the conclusion of the discussions, the committee determined that a specific acknowledgement, in the contract itself, was not necessary. However, that does not eliminate the need for acknowledgement as a condition of treatment. For instance, many mental health and substance abuse conditions require an admission of the problem as a necessary provision of treatment. In those instances, the attorney must provide all specific requirements of treatment, and, if admission of a problem is a requirement, that provision must be contained in the diversion contract. Because of the possible requirement of an admission, the committee determined that confidentiality was essential to ensure that attorneys were frank and forthcoming in drafting the terms of their diversion contracts, thereby bolstering the possibility that the difficulties attorneys face resulting in possible discipline are dealt with openly and honestly.

The Bar Commission is pleased to announce that the Utah Supreme Court has approved the diversion rule and that it will soon be a formal process available to attorneys subject to discipline for less serious misconduct. The purpose and intent of the rule is to get attorneys the help they need very early in the process prior to their conduct escalating to the commission of serious misconduct. Hopefully the existence of the rule will promote rehabilitation of attorneys and provide them with the assistance they need to avoid formal prosecution for misconduct, whether that assistance is in the form of law office management assistance, drug and alcohol counseling, or something else.

With this rule in place, lawyers will be given the opportunity to resolve their problems before they become too big to handle. The underlying goal of the Bar Commission is to provide a service to its members to get the help they need before problems become insurmountable. Each member of the Bar Commission and the staff at OPC are all committed to working with the members of the Utah State Bar to ensure that avenues are available to address issues in a timely, efficient and productive manner, and to work toward a healthier and happier bar.

Questions on the rule can be referred to any member of the sub-committee of the Bar Commission, set forth above, or Billy Walker at the OPC.