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14 Prof. Law. 1 (2002-2003)

handle is hein.journals/proflw14 and id is 1 raw text is: Is Diversion a Viable Alternative to Traditional Discipline?: Fall 2002thTein yn'i V:1 An Analysis of tie First Ten Years in Arizona' Issue NumbetI Diane Al. Ellis ti ic State tBar of Ari7ona, although the first regulatory entity to develop a cafeteria plan of diversion programs as alterna- tives to traditional lawyer discipline. is cettainly not the first to struggle with the issue of lnwyers whose lack of managenent acu- men tesults in dissatisfied clients and expensive prosecution of minor misconduct. Professional regulation of lawycis has been studied and report- ed for the past 30 years, beginning with the publi- catioan in 1970 oftPiblemcs and Recounclndations in Disciplinary Ena/irci'emtnt (known as the Clark Repott)2, produced by the Special Comtmittee onl Evaluation of Disciplinary lintaicementt, whose chair vas frner (.S. Supretne Coutt Justice Totn Clark (Aimcrican Iar Association Special Comittlee on Evaluation of' Disciplinary Enforcenent, 1970). The Clark Report identifies Problem 16 (of 26) as No inlarnial admonitoty procedures to dispose ofi atters involviing ninor mnisconduct (Clark Repoit, 1970). The aeport sunmmarives it this way: The disciplinary agency that has no alter- native but to dismiss a conmplaint or prose- cute a formal disciplinary proceeding will oflen decide to dismiss. Prosecution ofa for- mal disciplhnary proceeding predicated oat an instance of minor nmisconduct is unduly harsh, wastes the agency's limited manpow- er and financial resources on relatively insignificant tiatters. and, particularly int large urban areas, overburdens tle court having disciplinary jurisdiction... The dismtissal of comaplaints involving minoi misconduct, necessitated by the linit- ed alternatives available to the disciplinary agency.. subjects the profession to criticism by the public. The complainant who knows Dire M. EIts is the Director of the Laviea Assistance Program, Law Otcee Management Assistance Program, and Member Assistance Prcgrom for the Stale Bar ci Aizona. tbat the accued altorney has been guilty of' iisconduct hitl is unaware of tle limited altenutaives available to the disciplinary agency mnay conclude that thre dismrissal cvi- dences the profession's disinlerest in cilec- tively policing its mnembetrs (Clark Repot 1970). The Clark Rcport concluded that the accused attorney may mtisinterpret the dismissal of the complaint against him as asa indication that the disciplinary agency is either ineffective or disin- lerested. The Committee also expressed concern that disnussal of numerous minaor matters may inmtunize the attoiney guilty of'repetitive acts of minmi misconduct from substantial discipline. The fourth and finial concern was that disciplinary counsel may suffer loss of enthusiasm from expe- riencing tle thistantion of finding theinselves unable to dispose properly... of minor miscon- duct in tle thee ot' no alternatives. The Contrittee additionally noted that discipli- nary systens also have inadequate provision for dealing with attonieys ineapacitated by reason at necatal illness, senilily .I addiction to drugs or intoxicants, Altlhouih thle Comrnittee piotmoted establishntat of inlormial admaonitions, tire coin- cept of diversion was not raised in the aeport's 193 pages. The report did. however, etcommnend additional ancillary services, including fee athitra- tion and client security fands to protect clients hanued by the dishonesty of their lawyers. The State Bar of Arizona has imaplemented otlh ot' those recommendations in tle intervening years. 'Two decades after issuance of the Clark Report, another group brought together by the American Bar Association, the Commission on Evaluation of Disciplhnary Lnforceanent (known as the McKay ComnissionP adopted reconmnmenda- tions, including alternatives to traditional, puni- Contionued ont page 4