April 19, 2019

For its 2014 Annual Report, the ARDC analyzed a total of 324 cases from 1981 through the end of 2014 in which an attorney was placed on probation, meaning those cases in which an attorney’s suspension was stayed in part or in its entirety subject to certain conditions. The 2014 study sought to expand upon a previous probation study and to reassess the efficacy of probation. The 2014 study placed each of the 324 probation cases into one of the following six categories: 1) Mental Health (attorneys who suffered from a mental impairment); 2) Substance Abuse (attorneys who suffered from substance abuse/dependence); 3) Mental Health/Substance (attorneys who suffered both a mental impairment and substance abuse/dependence); 4) Non-impairment (attorneys who were identified as having an office management, trust account, bookkeeping, or other similar issue); 5) Hybrid (attorneys who suffered from a mental impairment or substance abuse/dependence as well as a non-impairment issue); and 6) Unspecified (attorneys who had no identified impairment or non-impairment). After analyzing the rates of attorneys who completed probation compared to those that had their probation revoked, the 2014 study determined that the probation model appeared successful.

Approximately four years have passed since the 2014 probation study. Since that time, 46 additional attorneys have been placed on probation in original discipline cases (those that are not reciprocal discipline matters). Consequently, while this article will not attempt to reassess the 2014 study or determine the effectiveness of probation, it will seek to describe certain characteristics of the probation cases as well as certain possible trends over the years.

From 1981 to the end of 2014, a total of 308 attorneys were placed on probation one time, while 8 attorneys were placed on probation twice. Comparatively, of the probation cases from the beginning of 2015 to April 2019, 32 attorneys were placed on probation one time, while 7 attorneys had previously been placed on probation sometime prior to January 1, 2015. So, while roughly 2.5% of probationers from 1981 to the end of 2014 were placed on probation a second time, 15.2% of probationers from January 1, 2015 to April 2019 were placed on probation a second time.

As of the 2017 annual report, the number of investigations docketed at the ARDC was at the lowest point since the mid-1980s. Likewise, 2017 and 2018 were the two years with the lowest number of probations ordered by the Court since the early 1990s. There were 6 probations ordered by the Court in 2017, and 5 ordered in 2018. Between January 1, 2015 and April 16, 2019, the Court has entered 2 other probation orders.
There has been a general trend of declining numbers for Court orders pertaining to original discipline, which include probation orders. There has also been a general decline in the number of matters filed with the Hearing Board. The number of probation orders entered by the Court, though, has stayed relatively consistent over time since 2003.

Likewise, based upon the available data in the ARDC Annual Reports, even though there has been a general decline in the number of sanctions ordered by the Court from 2003 to 2017, including a noteworthy decline in the number of suspensions, probation orders have stayed generally even.

There typically have been more probation cases by consent throughout the years compared to probation cases through a contested hearing. As the years have progressed, from 1981 through the end of 2018, consent cases have, on average, become more prevalent. In fact, since 2006, consent cases have comprised an average of around 70% of the probation orders.

The percentage of probation cases involving the requirement that the suspension be served until further order of the Court if the attorney violates the conditions of the probation (“UFO suspension”), though, has risen and fallen over the years.

The data shows that of the 370 total tracked probation cases between 1981 and April 2019, 148 cases involved a UFO suspension, while 222 cases did not. Substance Abuse (77) and Mental Health (48) cases accounted for the majority of probation cases involving a UFO suspension. Non-impairment cases comprised the most non-UFO suspension cases, with 107 cases. Interestingly, not one Unspecified case received a UFO suspension.

Over the years, Mental Health cases have generally fluctuated between UFO suspension and no UFO suspension, with the inclusion of a UFO suspension rising from 2004 until 2011. Comparatively, since around 2004, Substance Abuse cases have involved more UFO suspensions than not, with the inclusion of a UFO suspension peaking in 2006.

Finally, when looking at Mental Health, Substance Abuse, and Non-impairment cases, 179 total cases required the attorney to serve some length of suspension, whereas 132 total cases stayed the suspension in its entirety by some period of probation. Non-impairment cases accounted for the largest percentage of cases that required the attorney to serve an actual suspension, whereas Substance Abuse cases accounted for the largest percentage of cases that stayed the suspension in its entirety.

Of 114 total Non-impairment cases, 81 of those (71.1%) required the attorney to serve some length of suspension. Of 86 total Mental Health cases, 51 cases (59.3%) required the attorney to serve some length of suspension. With regard to Substance Abuse cases, 47 out of a total of 111 cases (42.3%) required the attorney to serve an actual suspension. Comparatively, over time, an attorney’s suspension has been stayed entirely by probation, on average, 49.18% of the time in Mental Health cases, 57.32% of the time in Substance Abuse cases, and 29.83% of the time in Non-impairment cases.

While this article does not reassess the 2014 probation study or arrive at a conclusion of whether probation remains effective, it does provide certain information on the characteristics and general trends of probation cases from 1981 to April 2019. Given the recent Proactive Management Based Regulation Initiative (launched in December 2017), and the November 2016 Diversion Rule that allows a lawyer to complete one or more activities, services or programs to address issues that may be resulting in grievances against the lawyer, a future study should continue tracking the trends and characteristics of probation cases, and, if available, compare those trends with the non-confidential data pertaining to PMBR and diversion.