Levin, L. C., & Fortney, S. S. (2023). ‘They Don’t Know What They Don’t Know’: A Study of Diversion in Lieu of Lawyer Discipline. Georgetown Journal of Legal Ethics, Forthcoming.
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 appropriately, 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-making, which may affect how effectively diversion assists respondent lawyers. The Article makes recommendations for increasing the consistency of decisions 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.