No duty to report impaired colleague

Listen to this article

VIRGINIA BEACH – Lawyers have no duty under bar ethics rules to report or intervene with an impaired attorney unless the impairment leads to a vio­lation of those rules.

But a new Legal Ethics Opinion encourages lawyers to seek guid­ance or encourage the affected law­yer to get help. The document also acknowledges that many lawyers properly feel a professional obliga­tion to report or address another lawyer’s impairment, even though that obligation does not stem from the Rules of Professional Conduct.

The Virginia State Bar Coun­cil on June 15 approved proposed LEO 1887, which now goes to the Supreme Court of Virginia for con­sideration. It is designed to fill a gap in advice for lawyers concerned about fellow attorneys showing signs of professional difficulty.

The opinion follows LEO 1886, which addressed the duties of supervisory lawyers confronted with those in their charge who may be struggling with impairment issues. The new opinion is designed expressly for situations where there is no supervisory relationship.

Elder law perspective

The proposed guidance was suggest­ed by attorney and Bar Council member Barbara S. Anderson who practices elder law in Alexandria.

For someone dealing with the elderly, “impairment takes many forms,” she ex­plained at a bar meeting on June 14.

Certain prescription medications can temporarily affect someone’s thinking, she said. Older lawyers may show subtle signs of dementia that are only appreciat­ed when colleagues compare notes.

“At what point do we have an obliga­tion to report or to do something?” she asked.

The proposed LEO helps answer that question.

“At least it gives some guidance, and I’m grateful for that,” Anderson said.

“It’s a very proactive measure,” VSB Legal Ethics Committee chair Eric Page told council members.

Avvo service still under review

Page said the ethics committee has not washed its hands of the online at­torney-client matching service known as Avvo Legal Services that recently debuted in Virginia.

Although the committee pulled back a proposed LEO that noted several ethical problems with a hypothetical, Avvo-like business model, the commit­tee plans to consider the issues again, Page said.

“It’s not going away,” he said. “We’ve been studying this for a while and we want to make sure we get it right.”

The committee intends to “further study the rules and the topic,” Page said. “It’s an incredibly important top­ic,” he added.

Avvo provides a list of lawyers in various Virginia communities who of­fer specified services for fixed fees. Cli­ents pay up front by credit card.

The proposed LEO – now withdrawn – would have effectively prohibited lawyer participation for several rea­sons.

Under the bar’s hypothetical, the cli­ent’s advanced legal fees would be held by nonlawyers, preventing the lawyer from safeguarding the client funds and refunding unearned fees as necessary.

Another problem was the “advertis­ing fee” collected by the attorney-client matching service.

The committee concluded that fee would violate the lawyer’s ethical ob­ligations not to share legal fees with a nonlawyer and not to give anything of value to one who recommends the law­yer’s services.

Also, the bar’s hypothetical involved fixed fees which might not be reason­able for the actual legal work involved in a particular case, the LEO said.

After receiving comments pro and con, the VSB ethics committee with­drew the proposed LEO on Ma y 17.

Budget

The Bar Council approved a $14.9 million budget for the 2018-19 fiscal year, a plan that is just $10,087 dollars less than the budget for the current year. The spending plan now goes be­fore the Supreme Court.

While finances are stable and the VSB staff will enjoy a long-awaited three-percent raise in July, outgo­ing VSB President Michael Robinson shared some belt-tightening ideas that emerged from an informal committee.

One suggestion was to study wheth­er the Bar Council needs to meet three times a year. The bylaws call for only two annual meetings.

With 81 members, a meeting of the Bar Council reportedly costs about $35,000.

Robinson said some members of the Supreme Court have asked about the size of the Bar Council. Robinson said his view was that any discussion about changing the size of the council should be based on considerations other than budget.

The new budget already contem­plates an end to VSB Executive Com­mittee meetings at various Virginia locales in favor of meetings at the VSB offices in Richmond.

Gene Elliott Jr. of Roanoke, a mem­ber of both the Bar Council and the Ex­ecutive Committee, said the VSB’s Vir­ginia Lawyer Referral Service needs “a really hard look.”

The budget lists $281,945 in expens­es for the program with revenues of just $160,150.

“The argument for it is obvious, but the expense is real,” Elliott said.

Other lawyers questioned wheth­er cuts might be made in the printed “Virginia Lawyer” magazine, which is mailed to all bar members six times a year.

Robinson said any changes would have to be planned far in advance, since there are long-term advertising contracts to consider. He said the bar would look into whether digital distri­bution might be used to save costs.

Robinson said if a bar dues increase were needed, it would have to be ap­proved by the Supreme Court as well as the General Assembly.

“Fortunately, we’re nowhere near there. But members need to know we’re as careful with the last dollar as we are with the first dollars,” Robinson said.

Appellate mediation

Bar Council members heard from me­diation professionals calling for study of an appellate mediation program in Virginia’s appellate courts.

Almost all federal appeals courts have court-connected mediation pro­grams, as do 31 state courts of appeal, according to a proposal from the Joint Al­ternative Dispute Resolution Committee of the VSB and the Virginia Bar Associ­ation.

The Virginia Supreme Court and Court of Appeals do not now have any official mediation services.

The ADR Committee proposal recom­mends the Supreme Court of Virginia appoint a panel to study other appellate mediation projects and, if appropriate, make recommendations for appellate me­diation in Virginia.

Deborah W. Blevins, a Virginia Work­ers’ Compensation Commission deputy commissioner who chairs the ADR com­mittee, said the proposal has been turned over to Chief Justice Donald W. Lemons.

“What may come from it, we don’t know, but we have submitted it to him,” Blevins told bar leaders.