Washington Lawyer

Diversion Agreements Provide Alternative to Attorney Discipline

From Washington Lawyer, April 2010

By Dolores Dorsainvil

barcounselThe attorney disciplinary process can be a daunting and distressing process for any attorney responding to an ethical complaint. As many attorneys are aware, the disciplinary process can end with severe consequences such as suspension from the practice of law and/or the adverse publicity of having the details of their disciplinary matter, along with their name, published in the Atlantic Reporter, Second Series. Disciplinary sanctions for ethical misconduct are public, embarrassing, and potentially detrimental to an attorney’s practice and reputation. However, where the attorney’s misconduct is not serious, he or she may be eligible to enter into a diversion agreement whereby the attorney can avoid the consequences of formal discipline. Diversion agreements are confidential and do not become part of an attorney’s disciplinary record once the terms of the diversion agreement have been successfully completed.[1]

Diversionary dispositions are an alternative to traditional attorney discipline and are designed to rehabilitate and, in some instances, educate attorneys on their ethical obligations under the D.C. Rules of Professional Conduct. Some diversion agreements are implemented in conjunction with the D.C. Bar Practice Management Advisory Service (PMAS), a free service to help Bar members improve and enhance their management skills in the practice of law. The Office of Bar Counsel may request PMAS to evaluate an attorney’s practice and, with the attorney’s permission and waiver, provide Bar Counsel with the findings of that evaluation. Other diversion agreements may require the attorney to enroll in a continuing legal education seminar, volunteer time for pro bono representations, issue an apology, and/or consult with PMAS and implement new practice management policies. The goal of diversionary dispositions is to assist the errant attorney in understanding his or her ethical lapses and to prevent the reoccurrence of such misconduct.

D.C. Bar Rule XI, § 8.1, sets forth the attorney’s eligibility for a diversion program. Under this rule, Bar Counsel may offer diversion to an attorney under investigation in a case involving relatively minor misconduct, so long as the misconduct did not result in prejudice to the client or another party. Diversion agreements are generally available to attorneys who have not been previously disciplined or have not entered into a previous diversion agreement.[2] Diversion agreements are not available to attorneys who have engaged in conduct that involves fraud, deceit, misrepresentation, or misappropriation of client funds. Additionally, the misconduct cannot constitute a criminal offense under applicable law.[3]

At the conclusion of an investigation, if Bar Counsel has made the determination that the attorney’s conduct does not conform to the spirit of the rules and involves minor misconduct, Bar Counsel has the sole discretion as to whether a diversion will be offered to the attorney. Generally, an attorney may be offered diversion if he or she cooperates with Bar Counsel’s investigation and exhibits genuine contrition for the misconduct.

In the event that a diversion is offered to and accepted by the attorney, the terms are memorialized in a written agreement.[4] The agreement includes the factual findings of Bar Counsel’s investigation and the rules implicated by the misconduct. The agreement also will set forth the duration of the diversion period and require that the attorney not be the subject of another disciplinary matter that results in a finding of misconduct. Diversion agreements are fluid and are developed on a case–by–case basis so that the attorney’s misconduct is addressed and the attorney can benefit from the remedial program required by the agreement. At the end of the diversion period, the matter will be closed if the attorney completes all the terms of the diversion.

While some may view diversions as a pass for bad conduct, it is actually an opportunity to reform minor ethical lapses before they become habitual and lead to more serious ethical violations.

Dolores Dorsainvil is a senior staff attorney with the Intake Division of the D.C. Office of Bar Counsel.

Notes
[1] Separately, as of August 2008, Bar Counsel now has the authority to negotiate discipline for a much broader range of offenses. D.C. Bar Rule XI, § 12.1. The discipline imposed in these matters, however, remains public.
[2] This limitation may be waived if Bar Counsel finds the presence of exceptional circumstances justifying such waiver. Rule XI, § 8.1(b)(2).
[3] Except for the offenses of driving under the influence and operating a motor vehicle while impaired (or a similar conviction in another jurisdiction). Rule XI, § 8.1(b)(4).
[4] “The diversion agreement shall state that it is subject to review by a member of the Board, to whom it shall be submitted for review and approval after execution by Bar Counsel and the attorney.” Rule XI, § 8.1(c).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
IN RE KAREN P. CLEAVER-BASCOMBE. Bar No. 458922. January 14, 2010. The D.C. Court of Appeals disbarred Cleaver-Bascombe for violating rules pertaining to charging an unreasonable fee; making a false statement of material fact to a tribunal; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that seriously interferes with the administration of justice. Specifically, Cleaver-Bascombe submitted a false voucher to the court in support of her application for payment under the Criminal Justice Act, D.C. Code §11-2601 et seq. (2001), for her representation of an indigent criminal defendant. In addition, the court found that her false testimony before the hearing committee, in defending the accuracy of her fraudulent voucher, constituted an aggravating factor. Rules 1.5(a), 3.3(a)(1), 8.4(c), and 8.4(d).

Reciprocal Matters
IN RE SHELLEY A. STASSON. Bar No. 374174. January 28, 2010. In a reciprocal matter from Michigan, the D.C. Court of Appeals suspended Stasson for four years with fitness, and further conditioned reinstatement upon satisfaction of the conditions imposed in Michigan as identical reciprocal discipline. Michigan suspended Stasson for neglect of a legal matter, failure to keep her client reasonably informed, failure to provide an accounting of client funds upon request, and failure to comply with court orders.

IN RE DERWIN T. BRANNON. Bar No. 480442. January 28, 2010. In a reciprocal matter from South Carolina, the D.C. Court of Appeals suspended Brannon for one year with fitness as functionally equivalent reciprocal discipline. South Carolina suspended Brannon for violating ethical rules relating to competence, diligence, communication, expediting litigation, safeguarding client funds, failure to respond to lawful demand for information from disciplinary authorities, and conduct prejudicial to the administration of justice.

IN RE TOLLY A. KENNON III. Bar No. 466643. January 28, 2010. In a reciprocal matter from North Carolina, the D.C. Court of Appeals suspended Kennon for three years with fitness, and further conditioned reinstatement upon satisfaction of the requirements imposed by the North Carolina State Bar as functionally equivalent reciprocal discipline. North Carolina suspended Kennon for giving legal advice to unrepresented persons whose interests were in conflict, or had a reasonable possibility of being in conflict, with Kennon’s clients; unlawfully obstructing another party’s access to evidence; counseling a witness to leave the jurisdiction for the purpose of being unavailable as a witness at trial; and engaging in conduct prejudicial to the administration of justice.

Disciplinary Actions Taken by Other Jurisdictions

In accordance with D.C. Bar Rule XI, § 11(c), the D.C. Court of Appeals has ordered public notice of the following nonsuspensory and nonprobationary disciplinary sanctions imposed on D.C. attorneys by other jurisdictions. To obtain copies of these decisions, visit www.dcbar.org/discipline and search by individual names.

IN RE ANITA CHINATU OGBUJI (A.K.A. ANITA C. KANU). Bar No. 448528. September 23, 2009. The Probable Cause Panelist of the State Bar of Arizona informally reprimanded Ogbuji.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted on the D.C. Bar Web site at www.dcbar.org/discipline. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/
opinions_mojs.jsp
.