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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?: Fail 2002 teT ni yn'i Vlo14 AnAnalysis of the First Ten Years in Arizona' Issue tumitI Diane Al. Ellis i c State tiar ofAri7ona, although the first regulatory entity to develop a cafeteria plan of diversion programs as alterna- tives to traditional lawyer discipline, is ceitainly not the first to struggle with the issue of lawyers whose lack of management acu- men tesults in dissatisfied clients and expensive prosecution of minor misconduct. Professional regulation of lawycts has been studied and report- ed for the past 30t years, beginning with the publi- catiore in 1971 ot Pvblec and Rccoincihndations in Disciplinary Eni/bnevncnt (known as the Clark Rcpotl)2, pitodaced by the Special Connnaittee on Evalhuation of Disciplinary tinthbicenetni, whose chair wavs frmner U.S. Supreme Coutt Justice Tot Clark (Aiicrican iHar Association Special Contiltcie on valuation of' Disciplinary En forceinent, 197(0). The Clark Report identities Prohlem 16 (of 26) as No informal admonitot, procedures to dispose at' matters involving minor misconduct (Clark Re pli, 1970). The ieport sumtnarizcs it this way: The disciplinary agency that has no alter- native but to dismiss a complaint or prose- cute a formal disciplinary proceeding will oflen decide to dismiss. Prosecut ion ofa for- meal disciplinary proceeding prcdicatcd on an instance of minor niiscondnct is unduly harsh, wastes the agency's limited manpuw- er and financial resources on relatively insignificant tiatters. arid, particularly in large urban areas, overburdens the courl having disciplinary jurisdiction... The disitissal of complaints involving rinoi misconduct, necessitated by the limit- ed alternatives available to the disciplinary agency.. subjects the profession to criticism by tire public. The complainant who knows Daero M, Ells is h~o Director of hei Laviit Aslstance Pragriam, Law OIf ce Managemcnt Asisla ce Program, and Member Astsiranco Prcgrom for the Stale Bar c¢ Nizona. hat the accuw.d altorney has been guilty ot' misconductl htll is unaware t' the linited altenalives available it the disciplinary agency tay concluet that the disnissal evi- dences the lrofession's disinlercst in clice- lively policing its mncmcis (Clark rlrepit. 1970). The Clark Report concluded that the accused attorney may misinterpret the dismissal of the cotnplait against him as asm indication that the disciplinary agency is either ineffective or disin- terested. The Committee also expressed concern that disiissal of nunerous minor matters may inumuitize the attotney guilty of repetitive acts of inini misconduct from substantial discipline. The fburth and finial concern was that disciplinary counsel may sulffer loss of enthusiasm from expe- riencing the liusttiation of finding themselves unable to dispose properly.., of minor miscon- dutct in tle thce ot' no alternatives. The Coitirittce additionally notedl that discipli- nary syslems also have inadequate provision tor dealing with alttloncys incapacitated by reason at mental illness, senilily (t aiddieion to drugs or intoxicanls, AlthirLih the Comnittee pionioted establishmncl of inl'urnial admonitions, the con- cept of'diversion was not raised in the ieputit's 193 pages. The report did, however, iccoininend additional ancillary services, including fee athitra- tion and client security fuids to protect clients harmed by the dishonesty of their lawyers. The State Bar of Arizona has itpleneited hIolh t those recommendalions in the inlervening years. 'Iwo decades after issuance of the Clark Report, another group brought together by the American Bar Association, the Commission on Evaluation of Disciplinary Lntorcement (known as the McKay ComnmissionPl adopted reconnienda- tions, including altenatives to traditional, puni- Cenitrted oi page 4

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