RULE 6.6 DIVERSION FROM DISCIPLINE
A. Lawyer Assistance Program Committee. A lawyer assistance program committee is established by Administrative Rule 49.
B. Cases Appropriate for Diversion from Discipline. The purpose of diversion from discipline is to protect the public by improving the professional competence of and providing educational, remedial, and rehabilitative programs to members of the association through:
1. The early identification of lawyers who have violated the North Dakota Rules of Professional Conduct in ways which do not raise questions about the lawyer's moral fitness or integrity, but about the lawyer's practice administration or organization, health, or competence.
2. The prevention of similar ethical violations by identified lawyers by altering the circumstances which caused the violation.
3. The improvement of the quality and speed of formal disciplinary proceedings against those lawyers whose conduct warrants formal proceedings by reducing recidivism and reallocating disciplinary system time toward more serious disciplinary matters.
C. Cases involving poor administration, poor practice skills, alcohol or drug addiction or abuse, less serious misconduct, or other deficiencies in professional capabilities are often best suited for diversion from discipline. For purposes of this rule, conduct is not ordinarily considered less serious misconduct if any of the following considerations apply:
1. The misconduct involves the misappropriation of funds;
2. The misconduct results in or is likely to result in substantial prejudice to a client or other person, absent adequate provisions for restitution;
3. The lawyer has been sanctioned in the preceding three years;
4. The misconduct is of the same nature as misconduct for which the lawyer has been sanctioned in the preceding five years;
5. The misconduct involves dishonesty, deceit, fraud, or misrepresentation;
6. The misconduct constitutes a crime that is classified as a felony; or
7. The misconduct is part of a pattern of similar misconduct.
D. In considering a case for diversion from discipline, the reviewing entity shall determine whether, under all of the circumstances, diversion from discipline can reasonably be expected to treat, educate, or alter the respondent's behavior or otherwise address the underlying problem so as to minimize the risks that the respondent will commit the same or similar acts of misconduct in the future. Such circumstances include the nature of the violation; the duty involved; whether the respondent was involved in self-dealing, dishonest conduct, or a breach of fiduciary duty; whether harm resulted; the absence or presence of aggravating or mitigating factors; and whether diversion was previously attempted.E. Diversion under this rule may include:
1. Fee arbitration;
4. Law office management assistance;
5. Psychological and behavioral counseling;
6. Completion of an addiction treatment program;
7. An agreement for random testing for drugs and alcohol;
10. Continuing legal education; or
11. Any other program or corrective course of action considered appropriate to address the lawyer's misconduct.
F. Intake and Screening. Referral to the lawyer assistance program can be initiated by any person involved in discipline, including a lawyer against whom a complaint has been filed. The lawyer assistance program will conduct appropriate intake and screening to determine whether a lawyer who has been referred to the program would benefit from the lawyer assistance program.
G. Individualized Assistance Plan. After intake and screening, the lawyer assistance program committee will determine whether a lawyer would benefit from the program. Counsel and a person with expertise in the apparent problem area will work with the lawyer to be assisted in developing an individualized assistance plan. The individualized assistance plan must be approved by the committee. An individualized assistance plan may include any of the forms of diversion identified in Section E.
H. Approval of Individualized Assistance Plan. If participation in the lawyer assistance plan is to be a condition of diversion from the discipline system, the assistance plan must be signed by the lawyer and must include a specific acknowledgment that a material violation of a term of the plan renders the lawyer's participation in diversion voidable. The assistance plan must be approved by the entity currently considering the complaint against the lawyer, whether it is a district inquiry committee, the disciplinary board, or the court. The assistance plan may be amended on agreement of the lawyer and the reviewing entity. The lawyer assistance program committee is responsible for monitoring compliance with the individualized assistance plan and reporting compliance or non-compliance to counsel.
I. Compliance - Non-Compliance with Individualized Assistance Plan. Disciplinary counsel shall report the lawyer's compliance or non-compliance with the individualized assistance plan to the entity considering the complaint for further disposition of the complaint. If the lawyer fails to comply with the plan, counsel shall notify the lawyer that the plan is terminated and that disciplinary proceedings may be instituted, resumed, or reinstated. Counsel shall submit a recommendation to the entity considering the complaint.
J. Costs of Individualized Assistance Plan. A lawyer participating in the lawyer assistance program is responsible for all costs associated with compliance with the lawyer’s individualized assistance plan.
K. Confidentiality and Immunity. Information regarding a lawyer’s participation in a lawyer assistance program is confidential under Administrative Rule 49, section 4.
Rule 6.6 was adopted effective August 1, 2004; amended effective March 1, 2017.
Section B was amended effective March 1, 2017, to create new lettered Sections C and D comprised generally of language in Section B and new language. Section C describes cases that may be appropriate for diversion, including those involving less serious conduct, and to identify kinds of conduct that would not ordinarily be considered less serious misconduct. Language was added to Section D to include whether diversion was previously attempted among various circumstances in considering whether a case is appropriate for diversion.
New Section E was created effective March 1, 2017, to describe the kinds of diversion that may be available.
Section C was amended effective March 1, 2017, and relettered as Section F.
Section D was amended effective March 1, 2017, and relettered as Section G. The section was further amended to describe the greater role of disciplinary counsel in the diversion process.
Section E was amended effective March 1, 2017, and relettered as Section H and further amended to require that the lawyer assistance plan must be signed by the lawyer, the plan must contain a specific acknowledgment that a material violation of a plan term renders participation in diversion voidable, the plan must be approved by the entity considering the complaint, and to provide that the plan may be amended on the agreement of the lawyer and the reviewing entity.
New Section I was created effective March 1, 2017, to provide disciplinary counsel responsibilities regarding a lawyer's compliance or noncompliance with the assistance plan.
Sections F and G were amended effective March 1, 2017, and relettered as Sections J and K respectively.