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.
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.
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.