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Bar Council to consider impairment guidance

The Virginia State Bar’s Ethics Committee has approved proposed LEO 1886, which will be submitted to the VSB Council for consideration next month.

The proposed LEO concerns the duty of partners and supervisory lawyers in a law firm when another lawyer in the firm suffers from significant impairment.

The summary of proposed LEO 1886 and a PDF of the draft may be found here.

In the proposed opinion, the committee concluded that Rule of Professional Conduct 5.1(b) requires a partner or supervising lawyer to take reasonable steps to prevent an impaired lawyer from violating the Rules of Professional Conduct. The proposed opinion concludes that supervisory lawyers must protect the interests of the firm’s clients by establishing procedures that require the impaired lawyer to get treatment as a condition of continued employment and/or limit the impaired lawyer’s work to tasks he is capable of doing.

Supervisory lawyers have a duty to take action in this situation even if no misconduct has occurred that would trigger the duty to report the impaired lawyer under Rule 8.3(a), the LEO says. The duty of supervisory lawyers under Rule 5.1 is prospective and applies even before any misconduct has occurred.

The Bar Council meets Oct. 7 in Roanoke.