Saturday, February 20, 2010

Helping Lawyers v. Public Protection

The intersection between bar discipline and bar programs designed to assist attorneys who seek help for substance abuse issues is addressed in a recent report and recommendation of the Louisiana Attorney Disciplinary Board. The disciplinary matter involves charges of illegal cocaine use by an attorney employed by a law firm. Firm attorneys confronted the attorney. After consulting with the Bar's counseling program, firm lawyers and a bar counselor conducted an intervention where the lawyer was confronted about his drug use. He entered a 90 day inpatient treatment program. On his discharge, he agreed to a program of monitoring by the Bar's program with a provision that the program would report positive drug tests to the firm. There were such results and the firm was notified. Bar charges followed.

The board here rejected claims that the firm was acting as the agent of the bar program and was bound by rules of confidentiality that apply to the program. Further, the consent to disclose the positive results was found to not be coerced. Finally, the admissions that the attorney made at the intervention and thereafter were properly admitted in the bar proceeding.

The board also rejected as "unduly lenient" the recommendation of the Office of Disciplinary Counsel for a fully-deferred suspension. Rather, the board proposes a suspension for a year and a day.

One of the most frustrating matters I ever handled as a disciplinary prosecutor involved similar issues. I had to litigate the effectiveness of a waiver of confidentiality allowing access to information that the attorney had resumed drinking. The D.C. Bar opposed through its general counsel (the general counsel is a revolving door position held by bar insiders). The bar administration took the position that program confidentiality (even with a waiver) was a more significant interest than public protection from a clearly unfit attorney. The whole sad tale is told in a Board on Professional Responsibility report appended to a per curiam opinion of the Court of Appeals. In re Stone, 672 A.2d 1032 (D.C.1995).

Here, the board gets it right on that score. (Mike Frisch)

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