View Diversion Model Rules
Diversion-to-Monitoring Rule
The Bellacosa Commission recommended the adoption of a uniform rule by all four departments of the Appellate Division, which would authorize a diversion procedure whereby lawyers who are involved in attorney discipline proceedings may be required to participate in a lawyer assistance program. “Diversion” to a monitoring program would not be available in cases involving serious acts of professional misconduct. The purpose of the rule would be to provide an incentive for a lawyer to seek and obtain early intervention, treatment and monitoring, and ultimately, to protect the public from more harmful conduct if the lawyer’s case goes untreated. The Commission proposed the following rule for consideration by the four departments of the Appellate Division:
(1) During the course of a disciplinary proceeding or investigation, the Appellate Division may defer disposition of the matter and divert the Respondent to a monitoring program if a Respondent claims disability due to alcohol or other substance dependency and the Appellate Division finds that:
(a) the alleged misconduct, if proven, would not result in the disbarment or suspension of the Respondent from the practice of law; and
(b) the alleged misconduct is sufficiently related to an alcohol or substance dependency problem on the part of the Respondent; and
(c) the diversion is in the best interests of the public, the legal profession and the Respondent.
The monitoring program selected for this diversion option must be sponsored by a lawyers’ assistance program approved by the Appellate Division.
(2) Upon confirmation by the lawyers’ assistance program that Respondent has successfully completed the monitoring program, the underlying disciplinary matters or investigation may be dismissed by the Appellate Division.
(3) Upon reasonable notice and opportunity to be heard, the Appellate Division may terminate the monitoring program and resume the underlying disciplinary proceedings or investigation or take other appropriate action, if:
(a) the Respondent fails to satisfactorily complete the terms and conditions of the monitoring program; or
(b) the Appellate Division concludes that the Respondent has committed additional misconduct which warrants disciplinary action.
(4) The Respondent shall be responsible for any costs associated with his or her diversion to the monitoring program.
(5) The diversion to monitoring option is not available under circumstances governed by those sections of these rules relating to proceedings to determine incapacity or that may result in disbarment or suspension.
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To address those cases that may result in disbarment or suspension (which are excluded from the above proposed rule), the Commission also recommended the adoption of a uniform rule in all four departments of the Appellate Division to permit the courts to impose conditions of treatment and monitoring as a condition of suspension or reinstatement. A majority of the four departments already perform such conditional monitoring as a way to deal with these most serious cases.