New Program Creates Additional Options to Attorney Discipline
By Gina Hendryx, OBA Ethics Counsel
Twelve years ago, the American Bar Association's McKay Commission's study of lawyer regulation found there was a major need to look beyond prosecution alone to reach out to those lawyers who were having problems in their dealings with clients. More creative solutions were advocated to protect the public and to assist those lawyers.
ETHICS POSITION ADDED
In January 2002 a similar Oklahoma Bar Association task force chaired by Melissa DeLacerda (then OBA president-elect) was appointed to review our disciplinary system and to consider possible changes designed to make the disciplinary system more efficient. Task force recommendations resulted in the creation of an ethics counsel to respond to member inquiries on subjects of ethics and professionalism. The Office of Ethics Counsel has responded to more than 1,200 requests for assistance from OBA members since its inception approximately one year ago.
DIVERSION PROGRAM APPROVED
The second major recommendation submitted by the Disciplinary Task Force, adopted by the OBA Board of Governors, and approved by the Supreme Court of Oklahoma is the Discipline Diversion Program. This program is designed to provide awareness of ethical obligations and remedial education to those attorneys whose actions constitute certain types of misconduct. This conduct would probably not result in any public discipline by the court, but reflect adversely upon the legal profession and is harmful to the administration of justice and the provision of legal services to the public.1
Prevention, not punishment, was the guidepost espoused by the Discipline Task Force in its recommendation of a diversion program to assist attorneys who receive complaints that stem from disorganization, procrastination and poor office management with education and remedial programs.
How the Program Works
The OBA general counsel now has, in his or her sole discretion, the opportunity to "divert" attorneys from the disciplinary system to the diversion program given certain criteria as provided in Rule 5.1 (Rules Governing Disciplinary Proceedings). Participation in the program is voluntary and can be refused, at which time the alternative of opening a formal investigation of the grievance may be pursued.
The participating attorney and the general counsel will enter into a formal agreement establishing the terms and tenure of the diversion program. The program will be implemented and monitored by the OBA ethics counsel.
The agreement may include participation in one or all of the following diversion program components:
- Ethics School. Ethics School will be a full-day program with its purpose to share information and resources to assist the attorney in avoiding future complaints. The topics covered will include an overview of the discipline system, the attorney/client relationship, fee agreements, stress management and other subjects designed to assist the attorney in the management of his or her daily practice.
- Trust Account School. This half-day program will give the practicing attorney practical advice and assistance in managing the client fund trust account. Record keeping, accounting basics and rule requirements will be addressed.
- Law Office Management School. A full-day program, Law Office Management School will assist with technology issues from hardware to software, scheduling, docketing and time management.
- Management Assistance Program Office Review. This program will provide an in-office site visit to review the attorney's office procedures. After evaluation, recommendations will be made to better facilitate the day to day running of the attorney's practice.
- Diversion Program Monitor. All aspects of the diversion program will be monitored by the OBA ethics counsel. Throughout the term of the agreement participants will regularly meet with the ethics counsel to discuss compliance with the program requirements.
Costs associated with the programs will be the responsibility of the participants.
The Office of General Counsel estimates that as many as 40 lawyers per year could be served were the lawyer placed in a diversion program. Many of these lawyers would be "diverted" away from a private reprimand or formal charges. If the lawyer complies with the terms of the program, general counsel shall dismiss the disciplinary proceeding.
However, if the lawyer fails to comply with the terms of the program, disciplinary proceedings may be resumed by the general counsel. Other states with similar programs report a significant decline in subsequent complaints against attorneys who completed a diversion program.
The Discipline Diversion Program is not a convenient "way out" of serious ethical violations. Serious grievances will continue to be investigated and prosecuted by the Office of the General Counsel. The Discipline Diversion Program is designed to help lawyers provide more competent, ethical and professional services to their clients.
To contact Gina Hendryx, call (405) 416-7083, (800) 522-8065 or e-mail firstname.lastname@example.org
1. The specific parameters of the program are set forth in the rule change adopted by the Oklahoma Supreme Court on Dec. 9, 2003 to Rule 5.1, Rules Governing Disciplinary Proceedings, 2003 OK 108.