OED Launches Diversion Program As Alternative To Traditional Attorney Discipline

Michael E. McCabe, Jr.Discipline Diversion, OED, Office of Enrollment and Discipline, USPTO Ethics Investigation, USPTO OEDLeave a Comment

In a welcome response to the growing epidemic of drug and alcohol abuse among members of the legal profession, the Office of Enrollment and Discipline (OED) of the USPTO announced today it has initiated a new disciplinary diversion program that focuses on treatment rather than punishment.  The OED’s Diversion Program, which will initially begin as a two-year “pilot program,” aligns the USPTO with more than 30 state attorney discipline systems that presently offer alternative tracks to formal attorney discipline for minor ethics offenses that arise from addiction or mental health-related issues.

The OED’s program, which has been in the works for some time, comes at a critical time period in the legal profession. Disciplinary counsel across the United States have increasingly come to recognize that the profession has a serious problem with drug and alcohol abuse.  As we previously reported in our posts here (Feb. 8, 2016), here (July 12, 2016), and here (Feb. 9, 2017), lawyers suffer from alcoholism and drug addiction at a rate that is grossly disproportionate to the rates of addiction in other professions and in the general population.

Several years ago, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation commissioned a study of 15,000 attorneys across 19 states.  Their research found that between 21% and 36% of lawyers drink at levels consistent with an alcohol use disorder. For comparison, those numbers are roughly 3-5 times higher than the government estimates for alcohol use disorders in the general population.  A report summarizing the research was published in the Journal of Addiction Medicine in February 2016 (here). The ABA-Hazelden report stated: “Compared with other populations, we find the significantly higher prevalence of problematic alcohol use among attorneys to be compelling and suggestive of the need for tailored, profession-informed services.”

And it is not just alcohol that is the problem.  Earlier this week, President Trump declared the opioid crisis to be a national public health emergency.  Some reports have referred to the opioid epidemic as “the most widespread and deadly drug crisis in the nation’s history.”

The Purpose of Diversion

Traditional attorney discipline rules and procedures generally focus on protecting the public by, in effect, punishing the lawyer. Traditional means of discipline typically involve a license suspension, reprimand, or other form of public discipline. However, drug or alcohol abuse, or other mental health issue, sometimes plays a significant role in cases involving violation of the rules of professional conduct.

The idea behind diversion is to treat the root cause by taking the practitioner out of the realm of the disciplinary system.  It is hoped that by focusing on getting practitioners the proper medical care and treatment, both the public and the bar will benefit.  USPTO Acting Director Joseph Matal echoed these interests in a press release issued today:

We’re hopeful that this pilot program will align our agency with best practices established in other states while allowing practitioners a fair chance to rectify previous misconduct and allow them to move forward in a productive manner.

The OED’s Diversion Program is modeled after relevant provisions of the American Bar Association’s Model Rules for Lawyer Disciplinary Enforcement (Model Rules), in particular, Model Rules 9 and 10.  The general parameters of the Diversion Program are published here.

The following provides some basic information about the OED’s Diversion Pilot Program.

Is diversion just limited to those who abuse drugs or alcohol?

No, although that is certainly one part of it.  The diversion program is available to practitioners whose physical, mental, or emotional health issues (e.g., issues tied to substance/alcohol abuse) or law practice management issues (e.g., inadequate client communication or docket management) resulted in minor misconduct and little, if any, harm to a client.

Who qualifies for OED diversion?

Not all practitioners will qualify.  Diversion only is available for practitioners who engaged in “lesser misconduct.”  While not a defined term, per ABA Model Rule 9, “lesser misconduct” generally means misconduct that would not warrant a sanction restricting the practitioner’s license to practice law—i.e. a suspension or exclusion.

In addition, to qualify for diversion, the practitioner’s misconduct at issue must not have:

(1) involved the misappropriation of funds;

(2) resulted in substantial prejudice to a client or other person;

(3) be of the same nature as misconduct for which the practitioner has been disciplined within the last five years;

(4) involved dishonesty, deceit, fraud or misrepresentation by the practitioner; or

(5) constituted a “serious crime” as that term is defined in 37 C.F.R. § 11.1 (essentially any felony or a lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).

Thus, for example, an attorney who stole client trust funds to fund a drug habit would not be eligible.  On the other hand, a practitioner who was convicted of misdemeanor possession could qualify assuming none of the other exceptions applied.

If I qualify, will I automatically be offered  diversion? 

The answer is definitely maybe.  It is anticipated or hoped by OED Director William Covey that qualifying individuals will be able to take the diversion path.  Nevertheless, the OED Director has discretion to consider the following criteria in determining whether a practitioner who engaged in minor misconduct and who otherwise qualifies will still be offered the opportunity for diversion:

(1) whether the sanction is likely to be no more severe than a reprimand;

(2) whether diversion was already attempted and failed;

(3) whether participation could benefit the practitioner and accomplish the goals of the program; and

(4) the existence or absence of aggravating factors (such as practitioner’s lack of remorse, failure to recognize wrongdoing, and failure to cooperate with the OED) or mitigating factors (such as lack of experience in the practice of law, offers to make restitution, and cooperative attitude with the OED).

The decision to offer diversion will be made on a case-by-case basis, and the burden will be on the practitioner seeking diversion to demonstrate to the OED Director’s satisfaction that the practitioner qualifies and that diversion is appropriate in light of the above-referenced criteria.

If I am accepted into diversion, how does that work?

Assuming the practitioner qualifies and the OED Director has agreed to offer diversion in lieu of discipline, the OED Director and the practitioner shall negotiate a contract, the terms of which shall be tailored to the individual circumstances of the practitioner and the misconduct alleged. In each case, the contract shall be signed by the practitioner and the OED Director.

Generally speaking, the contract will call for the lawyer to participate for a period of time in some type of formal program.  Such programs may include law office management assistance, state bar sponsored substance and mental health initiatives (such as the Virginia State Bar’s “Lawyers Helping Lawyers” program), psychological counseling, continuing legal education programs, and professional responsibility classes.  Depending upon the type of misconduct and the needs of the practitioner and public, an appropriate diversion program might also include a practice monitor.  It is anticipated that the diversion contract will also require some type of periodic reporting, either by the practitioner or a third party (or both).

What happens if I breach my diversion contract?

It depends.  The contract itself should define what happens if the terms are breached by the practitioner.  It is anticipated that in the event a breach occurs, the practitioner could be subject to the usual attorney ethics investigation and disciplinary process for the conduct that resulted in the breach of the contract.  However, as the present program is presently envisioned, the practitioner will not be subject to discipline for his or her original misconduct (that is, the conduct that led to the practitioner’s entry into the diversion program in the first place).

Am I required to enter into diversion? 

No.  Practitioners are not required to seek diversion.  Unless a qualifying practitioner requests consideration for entry into a diversion program, the matter will be handled just as though no offer of referral was extended.  This means that the normal investigatory procedures may be followed.  Furthermore, at the end of the usual investigation not involving diversion, the OED Director will continue to retain the discretion to dismiss the matter, issue a non-disciplinary warning, refer the practitioner for formal ethics charges, or enter into a settlement agreement with the practitioner.

Will the public learn about my diversion? 

No.  Many practitioners who face discipline are concerned about what information will be disclosed to the public (including clients and competitors) concerning their situation.  Investigations by the Office of Enrollment and Discipline are confidential, and even the existence or non-existence of an ethics investigation is protected by The Privacy Act.

For practitioners who enter into disciplinary diversion agreements, the OED will not publish the contract or provide notice to the public that the practitioner is party to a diversion contract.

Must I self-report my USPTO diversion to my state bar?

Every state has its own rules dictating when a member of that state’s bar must self-report their misconduct.  For example, state bars normally require practitioners to self-report when they have been the subject of “public” ethical discipline by another jurisdiction.  A practitioner’s acceptance into the OED’s Diversion Program is neither public nor discipline.

Entry into the OED Program does not necessarily mean that the practitioner is absolved of all self-reporting obligations.  For example, many states require their members to self-report if they are convicted of a crime.  A practitioner who receives a disciplinary diversion from the USPTO based upon, for example, a drunk driving conviction might be required to report their conviction to their state bar even if they are not required to report the non-disciplinary diversion by the USPTO.  Thus, practitioners must continue to be mindful of their own state bar’s self-reporting requirements to determine whether self-reporting of their misconduct is required.

Will I need to report entry into the USPTO diversion program to my malpractice carrier?

That would be highly unlikely. Most malpractice carriers require practitioners to report instances where they have been publicly disciplined.  Again, the OED Diversion Program is neither public nor discipline.  Nevertheless, the underlying conduct that led to the disciplinary diversion may need to be reported to the practitioner’s insurance carrier.  Practitioners should therefore be mindful of the terms of their malpractice insurance so that they may determine if reporting to their carrier is warranted.

Conclusion

Diversion programs provide disciplinary counsel with an alternative mechanism for protecting the public without unnecessarily punishing an attorney whose chief issue is alcohol, substance abuse, or other qualifying types of behavior.  The USPTO should be applauded for recognizing the need for this alternative to discipline.

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