October 25, 2017
The mission of the Attorney Registration and Disciplinary Commission (ARDC) is to promote and protect the integrity of the legal profession, at the direction of the Supreme Court, through attorney registration, education, investigation, prosecution and remedial action. The focus of this article is on the goal of remedial action contained in the ARDC mission.
Remedial action has been defined by the Cambridge English Dictionary as, “an activity intended to correct or improve something, especially skills.” In furtherance of that goal, the ARDC has implemented several new rules and procedures.
In September of 2016, with the approval of the Supreme Court, the ARDC adopted Commission Rule 56 which provides for a Diversion Program. Under the new diversion rule, the administrator and an attorney may enter into a diversion agreement at any stage of an investigation, under defined, but flexible circumstances. The objective of the diversion program is to encourage early identification and resolution of issues that negatively affect an attorney's ability to properly represent clients and that contribute to grievances and, in addition, to provide assistance to the attorney to rectify those issues and engage with appropriate services.
The diversion program is in keeping with the vision that the Court articulated for the ARDC in In re Thomas, 2012 IL 113035. In Thomas, the Court stated:
The volume of complaints received by the Commission requires the Administrator to set priorities and allocate resources. An investigation into allegations of less serious misconduct may be closed so that other, more serious allegations may be pursued. In such cases, the mere fact that a complaint was filed with the Commission may be sufficient to put the respondent on notice not to repeat the conduct at issue. Or, as in the present case, the Administrator may close an investigation after concluding that the alleged misconduct was an isolated incident, not likely to be repeated, and that respondent has ceased the offending conduct.
An attorney’s undertaking to address issues that have resulted in the filing of one or more grievances, coupled with a carefully tailored diversion plan, affords the attorney an early opportunity to address systemic practice issues or other issues that bear on his or her practice. This program of early intervention has the prospect of identifying and helping lawyers to address issues that may be causing grievances, thereby assisting lawyers in representing their clients more effectively. Also, early intervention may reduce the cost of such investigations to the ARDC and to the attorney. Diversion offers incentives to an attorney to enter into an agreement, including the immediate closure of the investigation and the offering of resources for the attorney to improve their practices.
Another procedure the ARDC has implemented, in furtherance of its mission to promote and protect the integrity of the legal profession through remedial action, is through its collaboration with and increased referrals to the Illinois Lawyers’ Assistance Program (LAP). A 2016 study conducted by the Hazelden Betty Ford Foundation and the American Bar Association examined substance abuse and mental health problems in the legal profession. “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” was published in the Journal of Addiction Medicine, February 2016 - Volume 10 - Issue 1 - p 46–52. The study surveyed lawyers across the country and found that 20.6% of the lawyers surveyed qualified as problem drinkers, 28% struggled with depression, 19% suffered from anxiety and 23% experienced symptoms of stress. All of these rates of substance abuse and mental health issues found among the surveyed lawyers are greater than what is found in the general population.
In light of the findings of the above study and an additional study conducted on law student well-being, the American Bar Association commissioned a national task force to address lawyer well-being. In its report, released on August 14, 2017, “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, the task force proposes a slate of recommendations for law firms, law schools, regulators, the judiciary, bar associations and professional liability carriers.
The task force recommendations focus on five central themes: (1) identifying stakeholders and the role each can play in reducing the level of toxicity in the profession, (2) eliminating the stigma associated with help-seeking behaviors, (3) emphasizing that well-being is an indispensable part of a lawyer’s duty of competence, (4) educating lawyers, judges, and law students on lawyer well-being issues, and (5) taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.
The report recommends that regulators adopt regulatory objectives that prioritize lawyer well-being; modify the rules of professional conduct to endorse well-being as part of a lawyer’s duty of competence; expand continuing education requirements to include well-being topics; implement Proactive Management-Based Programs that include lawyer well-being components; adopt a centralized grievance system; modify confidentiality rules to allow sharing of lawyer well-being information from regulators to lawyer assistance programs; and adopt diversion programs.
The Illinois Supreme Court and the ARDC have implemented, or are in the process of implementing, many of the recommendations for legal regulators that are outlined in the task force report. In January of this year, the Illinois Supreme Court amended Supreme Court Rule 756(e)(2) to provide for Proactive Management-Based Regulation (PMBR). One of the modules being developed for the PMBR self-assessment is on the topic of attorney wellness. Then in April, the Court amended Supreme Court Rule 794(d) to require lawyers to complete one hour of mental health and substance abuse education as part of their required continuing legal education. Also, as discussed above, in September of 2016, the Commission adopted Rule 56 which provides for a diversion program.
With reference to the sharing of information from the regulators to the lawyers assistance programs, as recommended by the task force report, the ARDC and Illinois LAP have historically worked together to identify and assist lawyers who suffer from substance abuse and mental health issues or otherwise appear to be in distress. In fact, approximately one-third of lawyers facing formal disciplinary charges have been identified as suffering from a substance abuse or mental health issue. In order to get lawyers the help they need, Supreme Court Rule 766 allows the Administrator to make referrals to the LAP during an otherwise confidential stage of a matter, when investigation has revealed reasonable cause to believe that a lawyer may be addicted to or abusing drugs or alcohol, experiencing a mental health condition or other problem that is impairing the lawyer’s ability to practice law. Lawyers can be comfortable taking advantage of LAP’s services because LAP and LAP intervenors are exempt from reporting to discipline. This means communications are confidential akin to the lawyer-client relationship. (IRPC 1.6(d)). The Court has provided this confidentiality in order to encourage law students, lawyers and judges to seek assistance through these programs. (IRPC 1.6, Comment [21]).
Historically, the ARDC did not track referrals to LAP; rather, referrals were relatively informal. For the past few years, however, the ARDC has been tracking all referrals to the LAP. In addition, this year the ARDC implemented new LAP referral guidelines. Those guidelines include the referral to LAP of all respondents subject to a DUI or criminal case involving substance abuse or mental illness issues. In addition to continuing to refer all other cases in which there is an indication of a substance or mental health issue, attorneys who default in their disciplinary proceedings are also being referred to LAP. Since implementing the above LAP referral guidelines, the documented ARDC referrals to LAP have greatly increased.
The Supreme Court and the ARDC want Illinois lawyers to be successful in their practice of law. The new diversion program and the ARDC’s continued partnership with the Illinois LAP helps lawyers thrive by providing them with the programs and resources needed for them to be successful.