December 15, 2003
Honorable Gerald W. VandeWalle
North Dakota Supreme Court
600 E Boulevard Ave Dept 180
Bismarck, ND 58505-0530
Re: Proposed Rule and Rule Amendments Regarding Lawyer Assistance and Diversion
Dear Chief Justice VandeWalle:
After much consideration over a long period of time, the Joint Committee on Attorney Standards has concluded that the legal profession in North Dakota would be well served by the establishment of a lawyer assistance program, and a diversion program. A lawyer assistance program would provide a mechanism for the early identification, prevention, and alleviation of a variety of problems that may affect a lawyer's ability to effectively represent clients. The program would also assist in ensuring that the public's interest in competent, quality legal representation is protected. A diversion program would allow for diversion from discipline, conditioned on participation in a lawyer assistance program. To these ends, the Joint Committee recommends several rule amendments, briefly described below, to allow for the establishment of a lawyer assistance program and diversion program in North Dakota.
The Joint Committee reviewed a significant amount of information concerning lawyer assistance and diversion programs in other states. The Committee benefitted enormously from early discussions with Barbara Harper, who is the director of the Lawyers Services Department of the Washington State Bar Association, and Bill Leary, who is the director of the Lawyer Assistance Program for the Louisiana Bar Association. Both Ms. Harper and Mr. Leary are members of the American Bar Association's Commission on Lawyer Assistance Programs and have provided their expertise and knowledge to several states considering the establishment of assistance and/or diversion programs.
The recommendations include a proposed new administrative rule, amendments to Rule 8.3 of the Rules of Professional Conduct, various amendments to the Rules for Lawyer Discipline, related amendments to the Standards for Imposing Lawyer Sanctions, and an amendment to Rule 8 of the Admission to Practice Rules.
The proposed new administrative rule would allow for the establishment of a lawyer assistance program through the State Bar Association, to be managed by a lawyer assistance committee comprised of lawyer and non-lawyer members appointed by the Board of Governors and the Chief Justice. The proposed rule also addresses confidentiality of information obtained through the program and addresses immunity for participants in the program. The confidentiality and immunity provisions would be essential to a lawyer assistance program, with or without a diversion program.
The proposed amendments to Rule 8.3 of the Rules of Professional Conduct are patterned after new ABA Model Rule 8.3, and address a lawyer's obligation to report professional misconduct in the context of participation in a lawyer assistance program. The proposed amendments would provide an exception to the reporting requirement for information gained while participating in the lawyer assistance program.
The proposed amendments to the Rules for Lawyer Discipline establish the framework for participation in a lawyer assistance program as a condition of diversion from discipline. The amendments include definitions of lawyer diversion and lawyer assistance, and describe the authority of inquiry committees or hearing panels to refer a lawyer for screening for participation in the assistance program. Proposed Rule 6.6 is the central feature of the amendments and describes cases in which diversion from discipline would generally be appropriate, provides for screening and the development and approval of an individualized assistance plan for a lawyer, and establishes the lawyer's responsibility for the costs associated with the assistance plan.
The Joint Committee proposes an amendment to Rule 8 of the Admission to Practice Rules to include participation in the lawyer assistance program as a possible condition of admission. The Committee also proposes an amendment to the Standards for Imposing Lawyer Sanctions to add participation in the assistance program as an available sanction.
As previously noted, the Joint Committee has spent a significant amount of time reviewing information and developing the attached proposals. The committee sought input from chairs of the inquiry committees, and from disciplinary counsel. The Committee has submitted its proposals to the Board of Governors for review and comment and the Board has been very helpful during the process of developing these proposals. At its November2003 meeting, the Board voted to support the attached proposals.
I am pleased, on behalf of the Joint Committee on Attorney Standards, to submit the attached rule proposals to the Supreme Court for its consideration. If you have any questions concerning these submissions, please do not hesitate to contact me or the Joint Committee staff, Christine Hogan and Jim Ganje.
Alice R. Senechal, Chair
Joint Committee on Attorney Standards
c: Jim Ganje
Maureen Holman, President, SBAND