By Edward McIntyre
Some lawyers face State Bar discipline because of deliberate misconduct; others, because stupid misconduct put them there. But some find themselves in State Bar Court because personal problems — drug dependence, alcohol abuse, mental health issues — got the better of them. For them, the State Bar offers a program, rigorous and lengthy, that not only can save a license and a career, but perhaps a life.
The Program
The State Bar has a formal Alternative Discipline Program (ADP) specifically established for lawyers with substance abuse or mental health issues.
When?
As early as an Early Neutral Evaluation Conference — the off-the-record conference with a State Bar judge after the State Bar had determined to file charges but before it does and before any charges are public — the ENEC judge may discuss whether the lawyer is eligible for ADP.
Thereafter, any time after a case begins in State Bar Court, the lawyer or State Bar may request, or on the Court’s own motion, the Court may refer a lawyer to a State Bar Court judge whom the Presiding Judge has designated an ADP Program Judge. That judge will determine if the lawyer is eligible to participate in ADP. The only time constraint is that the Court must make the referral at least 45 days before the first scheduled trial date in the case.
What’s Required?
The Program Judge has discretion to accept the lawyer into ADP. Participation requires (1) the lawyer’s acceptance into the State Bar’s Lawyer Assistance Program (LAP), a wholly separate program with its own requirements that, if substance abuse is an issue, mandate periodic testing; (2) the Program Judge’s approval of a stipulation of facts and conclusions of law the lawyer and State Bar sign that details the facts of the misconduct in pending disciplinary proceedings, their legal ramifications, as well as the facts of the substance abuse or mental health issues; (3) nexus evidence, to a clear and convincing standard, that establishes the lawyer’s substance abuse or mental health issues causally contributed to the misconduct in the factual stipulation and that the State Bar charged; and (4) any additional conditions the Program Judge imposes.
If the lawyer and State Bar do not timely sign and submit the stipulation of facts and conclusions of law to the Program Judge, the Program Judge may send the case back to the Hearing Department to be dealt with as a standard discipline proceeding.
Rejection?
A lawyer will not get into ADP if (1) the stipulation of facts and conclusions of law shows disbarment is warranted in spite of mitigating circumstances; (2) the lawyer was convicted of a criminal offense subjecting him or her to summary disbarment under Business and Professions Code section 6102(c); (3) the lawyer’s current misconduct involves acts of moral turpitude, dishonesty or corruption that resulted in significant harm to one or more clients or the administration of justice; (4) a finding, based on expert testimony, that the lawyer will not substantially benefit from treatment for his or her substance abuse or mental health problem or the lawyer cannot overcome or control the substance abuse or mental health problem to the extent necessary to make it unlikely to cause further misconduct; or (5) the lawyer previously participated in ADP and successfully completed ADP or was terminated from it.
High, Low and Disposition Recommendations
If the lawyer has stipulated to the facts and conclusions of law in the pending disciplinary proceeding and agreed to fulfill all other conditions for participating in ADP, the lawyer and State Bar submit “high/low” briefs to the Program Judge for recommended disposition — the level of discipline the Program Judge will recommend to the Supreme Court if the lawyer does not successfully complete ADP (“high”); the level of discipline the judge will recommend if the lawyer successfully completes ADP (“low”). The high can be disbarment; the law, dismissal of all charges. The Program Judge then makes his or her own determination of high and low, which, if the lawyer accepts the recommendations, the Program Judge gives to the lawyer in a written statement, and which are incorporated into an ADP contract the lawyer enters into formally to begin the program.
How Long?
ADP is 36 months, but the Court can shorten it to 18 months if the lawyer earns the incentives specified in the written agreement the lawyer signed. But no lawyer may successfully complete ADP unless LAP certifies the lawyer has been substance-free for at least one year or, if the lawyer has mental health issues, a mental health professional gives a recommendation satisfactory to the Program Judge.
Confidentiality
The fact that a lawyer is currently in ADP and pleadings or orders filed in the proceeding, including the stipulation of facts and conclusions of law, will be public. But all information about the nature and extent of the lawyer’s treatment is absolutely confidential and documents submitted to the Court, including the statement of proposed disposition, nexus evidence, briefs on recommended disposition, LAP reports and such are not public.
APD Can Be a Lifeline
Colleagues, who represent lawyers in discipline proceedings before the State Bar, report substance abuse or mental health issues are a significant factor in their client’s charged ethical misconduct. For them ADP is a lifeline. A review of State Bar proceedings, however, shows that many lawyers choose to “go it alone,” representing themselves in a strange court, with its own rules, against seasoned prosecutors. Many fail. As a consequence, careers built over years of schooling and work disappear, or hang in jeopardy. ADP is not for everyone. Its demands are rigorous; it requires life-altering determination to succeed. Yet it offers, where appropriate, not only an opportunity to save a career but a chance to reorient a life.