Court approves new lawyer impairment guidance

The second piece of official guid­ance for Virginia lawyers con­cerned about a colleague’s possi­ble impairment is now in place.

The Supreme Court of Virginia has ap­proved Legal Ethics Opinion 1887 address­ing questions about suspected impaired lawyers who are not under the direct super­vision of other attorneys.

The LEO was approved by the Virginia State Bar Council June 15 and adopted by the court Aug. 30 without any substantive changes.

No automatic duty

The opinion addresses a lawyer’s ethical duties to take remedial measures when the lawyer believes a sole owner of a law prac­tice or a solo lawyer is impaired. The VSB Standing Committee on Legal Ethics con­cluded that evidence of a lawyer’s possible impairment, standing alone, does not neces­sarily trigger the duty to report misconduct under Rule 8.3(a), although in many cases the impairment would lead to rule viola­tions that do trigger that duty.

The opinion describes a situation where a firm owner would have to be reported to avoid potential harm to clients. The opinion also encourages lawyers to contact a lawyer assistance program, or urge the suspected lawyer to do so, for guidance on how to ad­dress the underlying impairment regardless of whether a bar complaint is filed.

The court’s action was welcomed by Eth­ics Committee chair Eric M. Page of Rich­mond.

“[B]oth the Executive Committee and Bar Council unanimously proposed that the court approve LEO 1887, and the Legal Eth­ics Committee is very pleased that the court has so quickly and decisively supported the Committee’s proposals (here and with LEO 1886) to more clearly define Virginia lawyers’ duties to impaired colleagues in an effort to better protect the public,” Page said in an email.

LEO 1886 – the precursor to the new opin­ion – addressed the duties of law firm super­visory attorneys to act preemptively when a firm lawyer shows signs of impairment that might affect client service. LEO 1886 was approved by the court Dec. 15, 2016.

The pair of impairment opinions comes as the legal community confronts the is­sue of lawyers’ mental health. An Aug. 14 report from a national multi-disciplinary study panel called for a heightened focus on attorney well-being from diverse stakehold­ers, including judges and bar regulators. In response, Virginia Supreme Court Chief Justice Donald W. Lemons said he planned to name a study committee to address the issue.

Two scenarios

LEO 1887 – the just-approved guidance document – presents two hypotheticals. In one, a criminal defense solo practitioner is noticed to be “scattered and disorganized,” but still able to manage a court proceeding appropriately. In another scenario, firm em­ployees notice the sole owner and managing partner is increasingly moody and forget­ful, has several “near-misses” on important deadlines and overlooks important and ob­vious issues in client conversations.

Other than firm partners and supervis­ing lawyers, lawyers do not have a duty to proactively address the impairment of oth­er lawyers, the opinion says. A duty to act is triggered only when a lawyer has reliable information of a rule violation that raises a substantial question about the violator’s honesty, trustworthiness or fitness to prac­tice.

“Certainly, not every violation of the RPCs meets that standard, and a lawyer’s impair­ment, on its own, does not necessarily vio­late the RPC at all,” the opinion reads.

In the first hypothetical, therefore, with­out evidence that the lawyer’s ability to represent clients is currently compromised, other lawyers have no duty to act to address the solo’s apparent mild impairment.

In the second hypothetical, however, with reliable information that the lawyer is ma­terially impaired in the ability to represent clients and is continuing to represent those clients, a report to the bar is required, the opinion says.

In making such a report, associates must be mindful of client confidentiality. In many cases, “a report may be accomplished with­out disclosing information that would be embarrassing or detrimental to the firm’s clients,” the opinion reads.

Calling LHL

The associates may choose to seek guid­ance from a lawyer assistance program such as Lawyers Helping Lawyers to try to con­vince the subject to seek treatment.

The opinion emphasizes that reports to the Bar and calls to LHL serve different purposes.

“Neither report removes the need for the other; together they can address both the misconduct that has already occurred and the underlying situation that contributed to the misconduct,” the LEO says.

Regardless of any bar complaint, a con­cerned lawyer can encourage another law­yer to contact LHL, or call LHL directly, for guidance on how best to address the situa­tion, the opinion says.

Virginia Bar Counsel Edward L. Davis said he hopes to expand proactive remedies to provide for restoration without discipline in a proper case.

“Our office is going to explore with our controlling authorities additional diversion programs that address lawyer well-be­ing, and probationary terms that address lawyer impairments that condition the con­tinued practice of law on completion of those terms, as recommended by the report,” Da­vis said.