Report 2011-030 Summary - May 2011
State Bar of California:
Its Lawyer Assistance Program Lacks Adequate Controls for Reporting on Participating Attorneys
Our review of the State Bar of California (State Bar) highlighted the following about its Lawyer Assistance Program (assistance program):
- It has poor monitoring procedures for ensuring case managers appropriately send reports of participants' noncompliance to disciplinary bodies.
- Case managers failed to send immediate reports for six of 34 instances we reviewed for 25 participants that missed lab tests or tested positive for alcohol or drugs.
- When case managers did report noncompliance, some of the reports were not submitted within the required five days—one was submitted 52 days later.
- It does not adequately ensure that case managers treat all noncompliance issues consistently.
- It has limited guidance to help case managers determine when to notify the evaluation committee.
- There is no formal process for monitoring case managers' adherence to policies and procedures.
- One participant failed to comply with his participation plan 20 times during the first three years that he took part in the assistance program—yet the case manager did not bring it to the evaluation committee's attention.
- Although only 11 percent of its participants have successfully completed the assistance program, the State Bar believes that other factors are a better measure of the program's effectiveness. However, it has not measured the program's effectiveness using these other factors.
RESULTS IN BRIEF
The Lawyer Assistance Program (assistance program) of the State Bar of California (State Bar) lacks controls to ensure that the case managers for the program's participants submit reports of noncompliance promptly and consistently. In 2001 the Legislature enacted a law that established the assistance program for active and former members of the State Bar as well as for candidates seeking admission to the State Bar and the practice of law. The assistance program seeks to help attorneys through its career counseling services and short-term counseling, and to rehabilitate attorneys impaired by substance abuse or mental health disorders.
Although the assistance program offers short-term counseling services for issues or concerns affecting attorneys' work productivity, it focuses almost exclusively on a structured recovery program tailored to the needs of participating attorneys. This recovery program comprises two approaches: an open-ended version of the program that focuses on supporting attorneys who seek help (support assistance program) and a version in which attorneys' participation is monitored and verified (monitored assistance program). The support assistance program includes a six-month period of structured rehabilitation activities, oversight by assistance program staff, and participation in group meetings and lab tests when appropriate. However, this version of the program by design does not provide any verification of attorneys' participation and compliance to disciplinary bodies. Participants may enter the monitored assistance program if they want to satisfy a specific monitoring or verification requirement imposed by an employer, the State Bar Court of California (State Bar Court), the Office of the Chief Trial Counsel, or—for cases in which the State Bar has temporarily suspended admission because of the attorney's substance abuse or mental health issues—the Committee of Bar Examiners. Attorneys may also refer themselves into this version if they desire more structure than the support version offers.
With the participant's consent, the monitored assistance program provides to third parties, including disciplinary bodies, verification of an attorney's participation and compliance. Each attorney in the monitored assistance program follows a participation plan, and a case manager tracks his or her progress. The participation plan encompasses rehabilitation activities, such as laboratory testing for alcohol or drugs (lab tests), group therapy, and outpatient treatment. For an attorney participating in the assistance program because of a disciplinary proceeding and who has consented to reporting to third parties, the assigned case manager is required to submit reports to the State Bar Court upon request and to send a report within five days of learning that the participant has not complied with the plan by missing a lab test or group therapy session (the latter are referred to as immediate reports).
Our review of case files for 25 participants in the monitored assistance program showed that the assistance program does not have adequate procedures for monitoring case managers to ensure that they are appropriately sending reports of participants' noncompliance to such disciplinary bodies as the State Bar Court. For the 25 participants, we found 34 instances in which the participants missed lab tests or tested positive for alcohol or drugs. Of these 34 instances, case managers failed to send immediate reports for six instances of missed lab tests to disciplinary bodies. For example, over about two months, one case manager failed to report two lab tests missed by a participant. The participant was terminated from the assistance program shortly thereafter by the evaluation committee; however, we question the effectiveness of the assistance program when it fails to report a participant's noncompliance to the appropriate disciplinary body, as required.
Even when case managers did report noncompliance, they sometimes did not do so within five days as required. In 10 of the 106 instances of noncompliance that case managers did report to the State Bar Court, related to seven of the 25 cases we reviewed, the reports were not submitted within the required five days. For these 10 instances of noncompliance, the case managers sent the reports two to 52 days after the five-day window had elapsed. If the assistance program does not promptly report these instances of noncompliance to the State Bar Court or to the State Bar's Office of Probation, the disciplinary bodies cannot hand down timely discipline, leaving the public unnecessarily at risk of attorneys' practicing law while potentially relapsing in their abuse of drugs or alcohol.
Although the assistance program was unable to explain all of the missed or late reports we found, the director stated that the majority of instances of nonreporting and late reporting occurred when case managers were covering for other case managers who were on leave. Nevertheless, the assistance program will be unable to ensure that case managers are promptly submitting required reports until it implements additional measures to monitor case managers' reporting of participant noncompliance. To avoid the late reporting of noncompliance in the future, the director stated that the assistance program has developed controls that include an automated process for tracking and monitoring case managers' immediate reporting of noncompliance.
Further, the assistance program lacks adequate controls and procedures to ensure that case managers treat all noncompliance issues consistently. Some components of an attorney's participation plan, such as obtaining a well-being monitor and providing the case manager with written verification of attendance at self-help meetings, do not require immediate reports if the participant fails to complete them, or does not complete them promptly. However, a case manager reports these issues to the State Bar Court upon request. In addition, a case manager may report to the assistance program's evaluation committee a participant's noncompliance with any part of the participation plan, and the committee may then require additional actions by the participant or may terminate the individual from the assistance program. The assistance program relies on case managers to bring noncompliance to the attention of the evaluation committee when appropriate; however, the program has issued only limited guidance to help case managers determine when to notify the evaluation committee, and there is no formal process for monitoring case managers' adherence to policies and procedures. Nine of the 25 participants we reviewed each had 10 or more instances of noncompliance, but we did not always see evidence that the case managers brought these issues to the attention of the evaluation committee. Moreover, the assistance program does not have a control process in place to monitor whether case managers are appropriately and promptly bringing noncompliance issues to the attention of the evaluation committee for further action.
For example, one participant failed to comply with his participation plan 20 times during the first three years that he took part in the assistance program. Nevertheless, the case manager did not bring these issues to the attention of the evaluation committee until nine months into the participant's fourth year, when this attorney had failed to comply 16 additional times. The program director maintained that prior to April 2010, the majority of the participant's noncompliance involved late submission of required information. The director went on to state that beginning in April 2010, the participant's noncompliance demonstrated a pattern of missed lab tests and missed group meetings, and he was scheduled to meet with the evaluation committee in August 2010. However, we found five instances of missed labs that occurred earlier than April 2010, indicating that the pattern of noncompliance was apparent well before the assistance program took any action to rectify the situation. This situation illustrates the assistance program's need for a formal review process for case files to ensure that case managers are appropriately notifying the evaluation committee about noncompliance issues so that the committee can take further actions. The assistance program's director stated that the program is implementing a new process for reviewing case files.
Finally, although only 11 percent of participants have successfully completed the monitored assistance program, the assistance program director asserted that this is not an accurate reflection of the program's overall effectiveness. In order for the State Bar to close a case as a successful completion, the evaluation committee must determine that a participant in the assistance program has maintained continuous sobriety for 36 months, made lifestyle changes to support continuous sobriety, and satisfied the terms of his or her participation agreement. Prior to June 2010 the participant must also have participated in the assistance program for at least five years. Case dispositions maintained by the assistance program show that most participating attorneys did not successfully complete the monitored assistance program. However, the assistance program director indicated that the program does not consider the number of cases ending in successful completion to be the primary indicator of the program's effectiveness in meeting its goals. The director explained that the assistance program is also achieving its mission of enhancing public protection by terminating noncompliant participants from the program, often to face further disciplinary action by the State Bar Court. The director also indicated that the State Bar considers as a success those cases involving participants who were stable and had an established recovery plan, but who did not feel the need to continue participation. Notwithstanding these assertions, the State Bar has not established a mechanism to define and measure success.
Of the 25 cases we reviewed, 14 resulted in participants withdrawing from the assistance program before completion. These 14 cases appear to support the assertion made by the assistance program director. For instance, we found that the participants in six of the 14 cases each had two or fewer instances of noncompliance and that each took part in the program for an average of 30 months. However, until it adopts a mechanism to better gauge its effectiveness, the State Bar will be unable to determine how well the assistance program is performing in meeting its goals.
The assistance program should ensure that case managers are submitting to the appropriate entity the required reports in a timely manner, as required by its policies. Specifically, the assistance program should make certain that the new automated process for tracking and monitoring case managers' reporting of noncompliance is implemented properly and is being used as intended.
To make certain that case managers treat consistently the noncompliance issues that do not require immediate reports to disciplinary bodies, the assistance program should finish implementing its case review process. Further, the assistance program should develop guidelines to help case managers determine when to submit noncompliance issues to the evaluation committee.
Finally, the assistance program should take steps to better gauge its effectiveness. For example, it could measure how long its participants remain in the program and assess the program's impact on any further actions that disciplinary bodies impose on these attorneys. Further, if the assistance program believes that the effectiveness of the program is better measured through other means, it should develop these alternative measures and assess the program's effectiveness in meeting its stated goals.
The State Bar agrees with our recommendations and indicated that it is already in the process of implementing them.