The recent amendment to Supreme Court Rule 756 was the kickoff for the ARDC’s foray into proactive management-based regulation, which we know will require lawyers without malpractice insurance to undergo an online self-assessment. As the contours of that process continue to be determined, the profession can and should examine existing methods the ARDC can employ to help attorneys avoid formal prosecution and improve their practices. Two such methods – one old and one new – are authorized not by the Rules of Professional Conduct or Supreme Court Rules, but by the Rules of the Commission. The latter Rules set forth procedures for procedures before the Hearing and Review Boards, but also guide how investigations may proceed.
In this post, I will examine Commission Rule 108, entitled “Deferred Prosecution,” which sets forth the previously-authorized procedure for avoiding formal charges even where the Administrator believes that misconduct may have occurred. In a subsequent post, I will discuss brand-new Commission Rule 56, entitled “Diversion,” which may expand the concept of addressing misconduct without formal charges, and which appears to bring proactive regulation into the investigative phase of the disciplinary process.
All ARDC investigations – no matter how complex or lengthy – end in a binary decision: are formal charges necessary or not? As I have noted in previous posts, the number of times that that question is answered in the affirmative has been declining significantly in recent years, with only 73 complaints filed during the last year. That means that the Administrator referred cases involving 73 licensed lawyers to the Inquiry Board of the Commission – a body made up of two lawyers and one nonlawyer that oversees confidential, non-evidentiary proceedings. Much like a grand jury, the Inquiry Board (upon notice provided to the respondent-attorney) reviews materials submitted by both the Administrator and the respondent-attorney in an investigation, and it votes on whether formal charges should be brought against the attorney.
Either the Administrator or the Inquiry Board can determine that no formal charges should be brought. What happens then? Usually, the attorney for the Administrator handling the investigation closes the file, and the matter remains confidential for three years from the date of closure. After that, barring any reopening of the investigation, the file is expunged. See S.Ct.R. 766.
Prior to the recent enactment of Comm.R. 56, there was one alternative to the filing of a complaint or the closure of an investigation: deferred prosecution pursuant to Commission Rule 108. That Rule allows the Inquiry Board to consider whether an attorney’s conduct was affected by circumstances that could be remediated by the attorney’s compliance with certain conditions, and if so, to vote to defer further proceedings pending the attorney’s compliance with the conditions. Both the Administrator and the attorney-respondent must agree to both the deferral and the conditions, with the attorney-respondent signifying that agreement by executing an affidavit containing admissions to the conduct giving rise to the proceeding.
Rule 108 deferrals are often seen in cases involving lawyers who struggle with mental illness or addiction, and whose conduct was impaired by that condition. Such cases can result in formal charges as well, of course, and the Administrator typically agrees to Rule 108 deferrals only when the conduct affected by the illness or condition was minimally harmful or clearly isolated. The Rule specifically prohibits deferred prosecutions for cases involving lawyers who have been previously disciplined; who have misappropriated client or third-party funds; who have engaged in a criminal act that reflects adversely on the lawyer’s honesty; or who have actually prejudiced a client or third party, unless restitution is a condition of the deferral. Comm.R. 108(a).
Rule 108 deferrals can also be imposed when the attorney’s conduct was rooted not in an illness or addiction, but in deficiencies in law office management procedures. If, for example, one or several investigations revealed that a lawyer was inattentive to client matters due to inadequate communication and docketing systems, the Administrator, Inquiry Board, and the lawyer could all agree that the lawyer’s prosecution should be deferred while the lawyer implements better systems. The Administrator would monitor the lawyer’s progress for the deferral period (usually one year), and the Inquiry Board would vote to close the investigation at the conclusion of that period if the attorney’s compliance is deemed satisfactory.
A Rule 108 deferral can be beneficial to a lawyer under investigation in many ways, not least as a means of avoiding the terrible practical, financial, and emotional burdens of a formal prosecution. It can also assist the lawyer in implementing helpful procedures, sometimes with the advice and supervision of a volunteer mentor. But the lawyer involved in the proceedings can often feel as though those benefits come at a price. Being required to admit to violating the Rules of Professional Conduct is often a bitter pill to swallow, even though those admissions are contained in an affidavit that, under most circumstances, will remain confidential. But if the Administrator deems the lawyer’s compliance with conditions unsatisfactory, and then files a complaint against the lawyer (as the Rule entitles the Administrator to do), the lawyer’s admissions in the affidavit will be made public and used against her. Most 108 deferrals do not unravel that way, but the prospect is enough to make lawyers who are engaged in the process understandably wary.
Until recently, it has been difficult to imagine a better alternative when a 108 deferral is an available option. The risks and unpleasant aspects of the procedure are real, but they pale in comparison to what a lawyer faces when formal charges are brought, especially taking into account the publicity that formal charges can bring. Avoiding that is a real benefit. Now, though, new Commission Rule 56 may provide an even better way to address concerns about a lawyer’s practice informally and without some of the pitfalls of the 108 procedure. We’ll look at that new rule in the next post.