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self-study / Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Alternative Discipline Program can help attorney addicts

Heather E. Abelson

UC Hastings

Heather E. Abelson, formerly a trial counsel with the State Bar, is chair of the State Bar Defense/Legal Malpractice Group at Gluck Daniel LLP

If you've taken an MCLE course regarding substance abuse, or ever attended a firm holiday party, it should come as no surprise to you that many lawyers abuse drugs and alcohol. Indeed, the alarming rate of substance abuse among lawyers ultimately led the American Bar Association to recommend that state bars adopt substance abuse programs to help educate attorneys on substance abuse, and help identify and treat those attorneys who suffer from addiction. Today, most state bars have some form of lawyer assistance program.

The cold hard truth is that a substance abuse problem can ultimately cost an attorney his or her law license. Many studies have determined that there is a strong correlation between substance abuse and attorney discipline. Attorneys with substance abuse issues can find themselves in debt, in trouble with the law and unable to concentrate or remember deadlines. These attributes unfortunately make an attorney ripe for a disciplinary action. Clients may file a complaint against their attorney for failing to perform with competence, failing to adequately communicate, failing to return unearned fees or misappropriating client funds. Courts may report an inebriated attorney to the State Bar, and district attorney offices will report attorneys who have been convicted of a drug or alcohol-related crime.

Attorneys with substance abuse issues who find themselves the subject of a disciplinary matter are often at the height of their addiction, and at rock bottom in their lives. The bar offers some of these attorneys a chance to get help and to save their law license through the Alternative Discipline Program (ADP). The ADP is designed to protect the public, courts and the legal profession, while also enabling attorneys to obtain treatment for their substance abuse and mental health issues.

How does the ADP work? Once charges have been filed against an attorney, the attorney may request the court consider him or her for the ADP. Once this request is made, the attorney's case is taken off the trial calendar and transferred to a program judge who will determine whether the attorney is a good candidate for the ADP.

The ADP is not available to all attorneys with substance abuse or mental health issues. An attorney is ineligible for the ADP if his or her misconduct warrants disbarment, notwithstanding mitigating circumstances, is subject to summary disbarment, or involves claims of moral turpitude or corruption which caused significant harm to a client or the administration of justice. An attorney is also ineligible for the ADP if an expert witness opines that the ADP will not benefit the attorney, or if the respondent attorney previously participated in the ADP.

Assuming that an attorney is eligible for the ADP, there are several conditions that the attorney must meet to be accepted into the program. First, the attorney must be accepted into the Lawyer Assistance Program (LAP). Participation in the LAP is rigorous and can be expensive. Attorneys are required to participate in weekly self-help group meetings, such as AA and Narcotics Anonymous, attend LAP group meetings each week, abstain from all drugs and alcohol, participate in random drug testing, meet with the LAP Evaluation Committee periodically and maintain regular contact with a case manager. In some cases, an attorney is required to undergo in-patient treatment to participate in LAP. To successfully complete the LAP, an attorney must participate in the program for three years. Attorneys who are not committed to achieving sobriety often find themselves failing out of LAP, which will result in the attorney being terminated from the ADP.

An attorney who wishes to participate in the ADP must also submit to the program judge a nexus statement which establishes, by clear and convincing evidence, that the attorney's substance abuse or mental health issue "causally contributed" to the attorney's misconduct. (Rules of Procedure of the State Bar of California, Rule 5.382)

Finally, an attorney who wishes to participate in the ADP must a sign a stipulation as to facts and conclusions of law with the Office of Chief Trial Counsel. In other words, the attorney must admit to alleged misconduct and to any aggravating circumstances proffered by the office. Unlike stipulations in standard disciplinary matters, the ADP stipulation does not include a stipulated level of discipline.

After the stipulation is signed, the parties submit briefs to the judge in which they request two alternate levels of discipline. The first recommended level of discipline is for if the attorney successfully completes the ADP, and the other level of discipline is for if the attorney is terminated from the ADP. The levels of available discipline range from dismissal to disbarment. This dual-discipline system is one of the largest benefits of the ADP, especially for attorneys who are facing disbarment, because it gives the attorney a chance to save their license.

Once the judge determines the appropriate levels of discipline, the judge prepares an ADP participation contract for the attorney to sign. By signing the contract, the attorney agrees to the two levels of potential discipline determined by the judge. If an attorney is accepted into the ADP, and either of the possible levels of discipline include an actual suspension of at least 90-days, the judge will also place the member on inactive status once the participation contract is signed. The judge will credit the time spent on inactive status towards the ultimate level of discipline imposed.

The ADP is not easy. It runs from 18-36 months from the date of acceptance into the program. No attorney may successfully complete the program without a certification from the LAP that the attorney has been substance-free for at least one-year, or in the case of mental health issues, a mental health professional's recommendation of completion.

Once an attorney is in the ADP, the program judge will require the attorney to appear for monthly or semi-monthly status hearings. Prior to these hearings, the office and the judge will receive status updates from the LAP. If an attorney is out of compliance with the LAP requirements, such as testing positive on a drug test, the attorney's lack of compliance will be addressed during these status conferences. Repeated failures to comply with the LAP rules will result in an attorney being terminated from the ADP.

If an attorney successfully completes the ADP, the judge will issue a decision recommending the low level of discipline. If the low level of discipline is anything above a public reproval, the Supreme Court will need to approve the court's recommendation. If the attorney fails out of the program, no trial will take place, and the judge will issue a decision recommending the high level of discipline.


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