RULE 6.6 DIVERSION FROM DISCIPLINE
Effective Date: 8/1/2004
Obsolete Date: 3/1/2017
A. Lawyer Assistance Program Committee. A lawyer assistance program committee is established pursuant to 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.
Cases involving poor administration, poor practice skills, alcohol or drug addiction or abuse, or other deficiencies in professional capabilities are often best suited for diversion from discipline.
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.
C. 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. Individualized Assistance Plan. If, after intake and screening, the lawyer assistance program committee determines that a lawyer would benefit from the program, the committee will select 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 shall be approved by the committee. An individualized assistance plan might 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 counseling.
E. 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 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 lawyer assistance program committee shall be responsible for monitoring compliance with the individualized assistance plan and reporting compliance or non-compliance to the entity that approved the plan.
F. 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.
G. 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 Rule 49, section 5.
[Adopted effective August 1, 2004.]
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.