By Edward McIntyre
Lawyers commit misconduct — an obvious fact evidenced by the discipline cases the Office of Chief Trial Counsel reports annually and decisions of the State Bar Court and California Supreme Court. But misconduct does not always mean severe discipline: suspension or disbarment even.
Rather, the State Bar recognizes that lawyer wrongdoing doesn’t necessarily exhibit disregard of ethical obligations; it can also result from personal problems, including substance abuse — drugs or alcohol — or mental health issues. In such circumstances, the State Bar has an Alternative Discipline Program (ADP), a rigorous scheme ultimately designed both to protect the public but also to rehabilitate impaired lawyers and rescue careers that might otherwise be lost.
How does ADP work? After the State Bar notifies a lawyer that it will file discipline charges, the lawyer or the State Bar may request the State Bar Court to refer the lawyer to a Program Judge — another Hearing Department judge — to determine whether the lawyer is eligible for ADP participation. The court may also make the reference on its own motion.
The Program Judge then has discretion to accept the lawyer for ADP if: (1) the lawyer applies to and is accepted into the State Bar’s separate Lawyer Assistance Program; (2) the Program Judge approves a stipulation of facts and conclusions of law between the lawyer and the State Bar admitting the lawyer’s misconduct; and (3) the lawyer presents evidence that the lawyer’s substance abuse or mental health problems causally contributed to the lawyer’s misconduct.[1] In addition, the Program Judge may impose additional conditions, e.g., restitution of unearned client fees.
Both the lawyer and State Bar must then submit either a joint brief or separate briefs setting forth the highest level of discipline to which the lawyer would be subject if the lawyer does not complete ADP — as high as disbarment — and the lowest level of discipline — possible dismissal of pending charges — if the lawyer successfully completes the program. The Program Judge then makes her or his recommendations which take into account the extent and severity of the lawyer’s misconduct and the harm the lawyer’s clients suffered.
Anyone whom the lawyer’s stipulated conduct has harmed may submit a written statement setting forth the nature and extent of the damage the misconduct caused; the Program Judge must consider the victims’ written statements in determining the appropriate dispositions the judge will implement or recommend.
Once the Program Judge determines the appropriate levels of discipline — both “high” and “low” — the judge prepares an ADP participation contract for the lawyer to sign. By signing it, the lawyer agrees to the two levels of potential discipline the Program Judge determined. If the lawyer is accepted into ADP and, if, upon successful completion, the recommended disposition will include an actual suspension of at least 90 days, the Program Judge must immediately place the lawyer on inactive status — unless the Program Judge makes written findings that inactive enrollment is not necessary for protection of the public or the lawyer’s clients.
When the lawyer is accepted into ADP, the stipulation of facts and conclusions of law is filed and becomes public, but the Program Judge’s proposed disposition is not implemented or transmitted to the Supreme Court until the lawyer either successfully completes ADP or is terminated from the program. The minimum time the lawyer must participate in the program is three years from the date of acceptance, but, if the lawyer earns specified incentives in the written agreement, the Program Judge may shorten the program term to as little as 18 months. No lawyer may successfully complete ADP, however, unless LAP certifies the lawyer has been substance-free for at least a year, or, in the case of a lawyer with mental health issues, a mental health professional’s recommendation satisfies the Program Judge.
ADP is not available to all lawyers with substance abuse or mental health problems. For example, a lawyer is ineligible if the lawyer’s misconduct warrants disbarment, notwithstanding these mitigating circumstances; if the lawyer is subject to summary disbarment — e. g., after a final conviction for a felony involving moral turpitude — or the misconduct involves claims of moral turpitude or corruption that caused significant harm to a client or the administration of justice. A lawyer is also ineligible for ADP if an expert opines that ADP will not benefit the lawyer or the lawyer previously participated in ADP.
For eligible lawyers who persevere in ADP, however, the program provides an opportunity not only to salvage a career in which they have invested much, but also an avenue to overcome the personal problems that contributed to the misconduct triggering the discipline charges.
[1] The Lawyer Assistance Program (LAP) is, itself, rigorous and can be expensive, requiring weekly self-help meetings — AA or NA — weekly LAP group meetings; drug and alcohol abstinence; random drug testing; regular contact with a case manager. The program lasts three years and, if the lawyer is not committed to sobriety and fails LAP, the lawyer will be terminated from ADP.