RULE 6.6. DIVERSION FROM DISCIPLINE.
1 A. Lawyer Assistance Program Committee. A lawyer assistance program
2 committee is established
pursuant to by Administrative Rule 49.
3 B. Cases Appropriate for Diversion from Discipline. The purpose of diversion
4 from discipline is to protect the public by improving the professional competence of
5 and providing educational, remedial, and rehabilitative programs to members of the
6 association through:
7 1. The early identification of lawyers who have violated the North Dakota
8 Rules of Professional Conduct in ways which do not raise questions about the lawyer's
9 moral fitness or integrity, but about the lawyer's practice administration or
10 organization, health, or competence.
11 2. The prevention of similar ethical violations by identified lawyers by altering
12 the circumstances which caused the violation.
13 3. The improvement of the quality and speed of formal
14 against those lawyers whose conduct warrants formal proceedings by reducing
15 recidivism and reallocating disciplinary system time toward more serious disciplinary
17 C. Cases involving poor administration, poor practice skills, alcohol or drug
18 addiction or abuse, less serious misconduct, or other deficiencies in professional
19 capabilities are often best suited for diversion from discipline. For purposes of this
20 rule, conduct is not ordinarily considered less serious misconduct if any of the
21 following considerations apply:
22 1. The misconduct involves the misappropriation of funds;
23 2. The misconduct results in or is likely to result in substantial prejudice to a
24 client or other person, absent adequate provisions for restitution;
25 3. The lawyer has been sanctioned in the preceding three years;
26 4. The misconduct is of the same nature as misconduct for which the lawyer
27 has been sanctioned in the preceding five years;
28 5. The misconduct involves dishonesty, deceit, fraud, or misrepresentation;
29 6. The misconduct constitutes a crime that is classified as a felony; or
30 7. The misconduct is part of a pattern of similar misconduct.
31 D. In considering a case for diversion from discipline, the reviewing entity shall
32 determine whether, under all of the circumstances, diversion from discipline can
33 reasonably be expected to treat, educate, or alter the respondent's behavior or
34 otherwise address the underlying problem so as to minimize the risks that the
35 respondent will commit the same or similar acts of misconduct in the future. Such
36 circumstances include the nature of the violation; the duty involved; whether the
37 respondent was involved in self-dealing, dishonest conduct, or a breach of fiduciary
38 duty; whether harm resulted;
and the absence or presence of aggravating or
39 factors; and whether diversion was previously attempted.
40 E. Diversion under this rule may include:
41 1. Fee arbitration;
42 2. Arbitration;
43 3. Mediation;
44 4. Law office management assistance;
45 5. Psychological and behavioral counseling;
46 6. Completion of an addiction treatment program;
47 7. An agreement for random testing for drugs and alcohol;
48 8. Monitoring;
49 9. Restitution;
50 10. Continuing legal education; or
51 11. Any other program or corrective course of action considered appropriate
52 to address the lawyer's misconduct.
C. F. Intake and Screening. Referral to the lawyer assistance program can be
54 initiated by any person involved in discipline, including a lawyer against whom a
55 complaint has been filed. The lawyer assistance program will conduct appropriate
56 intake and screening to determine whether a lawyer who has been referred to the
57 program would benefit from the lawyer assistance program.
D. G. Individualized Assistance Plan. If, after After intake and screening, the
59 lawyer assistance program committee
determines that will determine whether a
60 would benefit from the program
, the committee will select. Counsel and
61 a person with expertise in the apparent problem area
who will work with the lawyer
62 to be assisted in developing an individualized assistance plan. The individualized
63 assistance plan
shall must be approved by the committee. An individualized
might may include , e.g., completion of an office management training program,
mentoring in office management skills, completion of an addiction treatment
an agreement for random testing for drugs and alcohol, or an agreement to obtain
appropriate professional counseling any of the forms of diversion identified in
E. H. Approval of Individualized Assistance Plan. If participation in the lawyer
70 assistance plan is to be a condition of diversion from the discipline system, the
71 assistance plan must be signed by the lawyer and must include a specific
72 acknowledgment that a material violation of a term of the plan renders the lawyer's
73 participation in diversion voidable. The assistance plan must be approved by the entity
74 currently considering the complaint against the lawyer, whether it is a district
75 inquiry committee, the disciplinary board, or the
Supreme Court court. The assistance
76 plan may be amended on agreement of the lawyer and the reviewing entity. The lawyer
77 assistance program committee
shall be is responsible for monitoring compliance with
78 the individualized assistance plan and reporting compliance or non-compliance to
entity that approved the plan counsel.
80 I. Compliance - Non-Compliance with Individualized Assistance Plan.
81 Disciplinary counsel shall report the lawyer's compliance or non-compliance with the
82 individualized assistance plan to the entity considering the complaint for further
83 disposition of the complaint. If the lawyer fails to comply with the plan, counsel shall
84 notify the lawyer that the plan is terminated and that disciplinary proceedings may be
85 instituted, resumed, or reinstated. Counsel shall submit a recommendation to the entity
86 considering the complaint.
F. J. Costs of Individualized Assistance Plan. A lawyer participating in the
88 lawyer assistance program is responsible for all costs associated with compliance with
89 the lawyer's individualized assistance plan.
G. K. Confidentiality and Immunity. Information regarding a lawyer's
91 participation in a lawyer assistance program is confidential under Administrative Rule
92 49, section 4.
93 Immunity of persons involved in the lawyer assistance program is governed by
94 Administrative Rule 49, section 5.
95 EXPLANATORY NOTE
96 Rule 6.6 was adopted effective August 1, 2004; amended effective March 1,
98 Section B was amended effective March 1, 2017. to create new lettered
99 Sections C and D comprised generally of language in Section B and new language.
100 Section C describes cases that may be appropriate for diversion, including those
101 involving less serious conduct, and to identify kinds of conduct that would not
102 ordinarily be considered less serious misconduct. Language was added to Section
103 D to include whether diversion was previously attempted among various
104 circumstances in considering whether a case is appropriate for diversion.
105 New Section E was created effective March 1, 2017. to describe the kinds
106 of diversion that may be available.
107 Section C was amended effective March 1, 2017. and relettered as Section
109 Section D was amended effective March 1, 2017. and relettered as Section
110 G. The section was further amended to describe the greater role of disciplinary
111 counsel in the diversion process.
112 Section E was amended effective March 1, 2017, and relettered as Section
113 H and further amended to require that the lawyer assistance plan must be signed by
114 the lawyer, the plan must contain a specific acknowledgment that a material
115 violation of a plan term renders participation in diversion voidable, the plan must
116 be approved by the entity considering the complaint, and to provide that the plan
117 may be amended on the agreement of the lawyer and the reviewing entity.
118 New Section I was created effective March 1, 2017, to provide disciplinary
119 counsel responsibilities regarding a lawyer's compliance or noncompliance with
120 the assistance plan.
121 Sections F and G were amended effective March 1, 2017, and relettered as
122 Sections J and K respectively.