A. Lawyer Assistance Program Committee. A lawyer assistance program committee is establishedpursuant toby 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; and
the absence or presence of aggravating or mitigating factors; and whether diversion was previously
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
C.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.
D.G. Individualized Assistance Plan. If, afterAfter intake and screening, the lawyer assistance
program committee determines thatwill determine whether a lawyer would benefit from the
program, the committee will select. Disciplinary counsel and a person with expertise in the apparent
problem area who will work with the lawyer to be assisted in developing an individualized assistance
plan. The individualized assistance plan shallmust be approved by the committee. An individualized
assistance plan mightmay include, e.g., completion of an office management training program,
mentoring in office management skills, completion of an addiction treatment program, an agreement
for random testing for drugs and alcohol, or an agreement to obtain appropriate professional
counselingany of the forms of diversion identified in Section E.
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 Supreme Court. The assistance plan may be amended on
agreement of the lawyer and the reviewing entity. The lawyer assistance program committee shallbeis responsible for monitoring compliance with the individualized assistance plan and reporting
compliance or non-compliance to the entity that approved the plandisciplinary 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.
F.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
G.K. Confidentiality and Immunity. Information regarding a lawyer’s participation in a lawyer
assistance program is confidential under Administrative Rule 49, section 4.
Immunity of persons involved in the lawyer assistance program is governed by Administrative
Rule49, section 5.
[Adopted effective August 1, 2004. Amended effective .]