They Don't Know What They Don't Know': A Study of Diversion in Lieu of Lawyer Discipline

• Author: Leslie C. Levin and Susan Saab Fortney
• Position: Hugh Macgill Professor of Law, University of Connecticut School of Law/University Professor, Professor of Law, and Director of the Program for the Advancement of Legal Ethics, Texas A&M University School of Law
• Pages: 309-351

“They Don’t Know What They Don’t Know”:

A Study of Diversion in Lieu of Lawyer Discipline

LESLIE C. LEVIN* AND SUSAN SAAB FORTNEY**

ABSTRACT

Lawyer misconduct can have devastating consequences for clients. But

what is the appropriate regulatory response when lawyers make less serious

mistakes? For almost thirty years, jurisdictions have offered some lawyers

diversion in lieu of discipline. Diversion is intended to help educate lawyers

or treat those with impairments so that they do not reoffend. Yet remarkably

little is known about how diversion operates, whether it is used appropri-

ately, and how well it seems to work. This Article addresses these questions.

It draws on the limited published data and on interviews with disciplinary

regulators in twenty-nine jurisdictions about their use of diversion. The

Article reveals wide variations in the extent to which diversion is utilized

and the circumstances under which it is used. It also describes significant

differences among the jurisdictions in resource allocation and decision-mak-

ing, which may affect how effectively diversion assists respondent lawyers.

The Article makes recommendations for increasing the consistency of deci-

sions to use diversion and improving the efficacy of diversion interventions.

In addition, it discusses how diversion could be handled better to provide

some satisfaction to complainants. Finally, and importantly, the Article

stresses the need for regulators to collect and analyze data to ensure that

diversion is adequately protecting the public.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310

I. SITUATING DIVERSION IN THE LAWYER DISCIPLINE

PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315

II. THE DATA ON LAWYER DIVERSION . . . . . . . . . . . . . . . . . . . . . 318

* Hugh Macgill Professor of Law, University of Connecticut School of Law.

** University Professor, Professor of Law, and Director of the Program for the Advancement of Legal

Ethics, Texas A&M University School of Law. © 2023, Leslie C. Levin & Susan Saab Fortney. We are both

deeply grateful to the disciplinary regulators who supplied us with information for this Article.

309

A. GENERAL JURISDICTIONAL INFORMATION . . . . . . . . . . . 318

B. THE WISCONSIN DATA . . . . . . . . . . . . . . . . . . . . . . . . . . . 320

III. REGULATOR INTERVIEWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

A. METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

B. THE STUDY DATA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

1. THE PURPOSE AND VALUE OF DIVERSION . . . . . . . . . . . . . . 324

2. DECISION-MAKING ABOUT DIVERSION . . . . . . . . . . . . . . . . 328

3. DIVERSION CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 329

4. CONDITIONS AND COMMUNICATIONS THAT BENEFIT

COMPLAINANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333

5. ACCESS TO AND USE OF DIVERSION INFORMATION. . . . . . . . . 337

6. INTERVIEWEES’ CONCERNS AND SUGGESTIONS RELATING TO

DIVERSION PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . . . . 338

IV. PROBLEMS AND RECOMMENDATIONS. . . . . . . . . . . . . . . . . . . . 340

A. ADDRESSING OVERUSE AND UNDERUSE . . . . . . . . . . . . . 340

B. IMPROVING THE REGULATION AND ADMINISTRATION

OF DIVERSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341

C. RESPONDING TO COMPLAINANTS’ CONCERNS . . . . . . . . 345

D. TRACKING DIVERSIONS AND THEIR EFFECTIVENESS . . . 348

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349

INTRODUCTION

Anna, a third-year real estate associate, lost her job during an economic downturn.

After two former clients ask Anna to handle their commercial real estate closings,

Anna decides to launch her own law practice. She asks her brother to help her with the

bookkeeping. Six months later, the state bar regulator notifies Anna of a grievance aris-

ing out of a bank notice relating to insufficient funds in her trust account. Neither she

nor her brother understood how to properly handle trust account funds. Now Anna

faces possible discipline. Professional discipline, even a reprimand, could tarnish

Anna’s reputation and increase her malpractice insurance premiums. Yet attorneys

must handle trust accounts with scrupulous care, and bar regulators’ primary goal is

to protect the public. What is the best regulatory response?

310 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:309

State disciplinary authorities receive close to 125,000 complaints against lawyers

annually.

1

This is a very rough estimate. According to the ABA’s Survey on Lawyer Discipline Systems, in 2019

there were over 69,500 complaints against lawyers reported by state disciplinary authorities and an additional

33,500 handled by consumer assistance programs. See AM. BAR ASS’N, 2019 SURVEY ON LAWYER DISCIPLINE

SYSTEMS 3 (2021), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/

sold-survey/2019-sold-final.pdf [https://perma.cc/9XV6-NVVT] [hereinafter SOLD 2019]. These figures did

not include California, which opened more than 16,200 cases, or New York’s First Department, which

processed over 2,800 complaints. See STATE BAR OF CAL., 2019 ANNUAL DISCIPLINE REPORT 2 (2020), https://

www.calbar.ca.gov/Portals/0/documents/reports/2020/2019-Annual-Discipline-Report.pdf [https://perma.

cc/86FH-G9M6]; N.Y. ATT’Y GRIEVANCE COMM., SUP. CT., APP. DIV., FIRST JUDICIAL DEPT., 2019 ANNUAL

REPORT 1 (2020), https://nycourts.gov/courts/AD1/Committees&Programs/DDC/2019%20ANNUAL%20

REPORT.pdf [https://perma.cc/HNW3-REA3]. It also did not include complaints in Massachusetts, New

Jersey, New York’s Third Department, South Carolina, South Dakota, Vermont, West Virginia, or

complaints filed with federal agencies. SOLD 2019, supra, at 1–3.

Some of these complaints allege serious misconduct, some involve minor

mistakes, and some are baseless or are not matters that the discipline system will

address.

2

State lawyer disciplinary authorities dismiss the vast majority of these complaints without an investiga-

tion or hearing. See, e.g., SOLD 2019, supra note 1, at 5–7; ATT’Y REGISTRATION & DISCIPLINARY COMM’N OF

THE SUP. CT. OF ILL., ANNUAL REPORT 22 (2020), http://iardc.org/Files/AnnualReports/AnnualReport2019.pdf

[https://perma.cc/J75T-KA63] [hereinafter ARDC ANNUAL REPORT]; ATT’Y GRIEVANCE COMM’N OF MD.,

44TH ANNUAL REPORT 22 (2019), https://www.courts.state.md.us/sites/default/files/import/attygrievance/docs/

annualreport19.pdf [https://perma.cc/EW9B-2V8A].

Where minor misconduct has occurred, some complaints may be referred

for “diversion” in lieu of discipline. Diversion referrals enable lawyers to comply with

certain conditions on a confidential basis and avoid discipline sanctions. Diversion

also provides an opportunity to educate and rehabilitate the lawyer, thereby helping

the lawyer and protecting the public.

3

Lawyers may find themselves in diversion

because they “don’t know what they don’t know.”

4

Although diversion has been used

for almost thirty years, little is known about how it works in practice. The extent of

recidivism among lawyers who receive diversion remains largely unknown.

Most lawyer discipline complaints are brought by individuals against solo and

very small firm lawyers.

5

These lawyers often represent individuals and small busi-

nesses, typically in personal plight matters (e.g., bankruptcy, criminal, family, perso-

nal injury). Unlike large corporate clients, which can demand that their large law

firms immediately remedy a problem or can credibly threaten to sue or take their

business elsewhere, individuals who are not repeat consumers of legal services may

not have the leverage or understanding of how to get their lawyers to address their

1.

2.

3. See, e.g., N.D. RULES FOR LAW. DISCIPLINE R. 6.6(B) (stating that the purpose of diversion “is to protect

the public by improving the professional competence of and providing educational, remedial, and rehabilitative

programs” to lawyers); see also infra notes 105–07, 113 and accompanying text.

4. See Telephone Interview with Regulator 17 (July 6, 2022) (all citations to telephone interviews are to

authors’ interview transcripts, on file with authors). The regulator made this observation during an interview

conducted for this Article. See infra notes 99–100 and accompanying text.

5. See Leslie C. Levin, The Ethical World of Solo and Small Law Firm Practitioners, 41 HOUS. L. REV. 309,

312–13 (2004).

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