A Virginia State Bar committee is recommending allowing bar prosecutors to share concerns about a lawyer’s mental health or substance abuse issues with a lawyer assistance program.
The rule change would mark an exception to otherwise strict confidentiality about any bar investigation of a lawyer accused of ethics violations.
Another proposal would allow a lawyer with dementia or other irreversible disability to move permanently to the disabled and retired list to end an impairment proceeding.
The suggested changes are part of a series of possible reforms in Virginia following a groundbreaking report on lawyer well-being that emerged from a national task force last year.
“This year we kind of made it our mission to implement those recommendations as they relate to COLD,” said David J. Gogal, chair of the bar’s Committee on Lawyer Discipline.
The VSB is seeking comment on the proposed changes by the end of April.
VSB investigators and ethics prosecutors sometimes suspect a mental impairment or substance abuse issue as they investigate a lawyer’s alleged misdeeds, Bar Counsel Edward L. Davis said. Virginia’s Lawyers Helping Lawyers or similar assistance programs might be able to help, but bar prosecutors currently are forbidden to even acknowledge an investigation unless charges are docketed.
“We’re hamstrung because of the rules of confidentiality,” Davis said.
Davis said he has long considered a way to communicate with LHL or similar programs to suggest a struggling lawyer might need some help. The right help at the right time might even prevent later misconduct, he said.
“It’s not punitive in nature. It’s just a tool to give us a chance to help a lawyer who may need it,” Davis said.
He said COLD was aware of his concern, but the panel waited to see what the national task force had to say. One of its recommendations was “on point,” Davis said.
Under the proposal, if the bar counsel office believes that an attorney may benefit from the services of a lawyer assistance program, prosecutors may make an informal referral to the program and share information otherwise deemed confidential.
“Bar Counsel shall not share information that is protected from disclosure by other state or federal privacy laws,” the rule would read. Bar prosecutors may notify the subject attorney of the referral, but would not be required to do so.
Unless the lawyer then signs a release, the lawyer assistance program would not be permitted to share information with prosecutors and the prosecutors could not receive such information.
“This is one-sided reporting, not sharing information back and forth,” Gogal said.
Retire with dignity
Another proposal linked to lawyer well-being came, not from the national task force, but from Deputy Bar Counsel Kathryn R. Montgomery. The COLD panel is advancing her plan to provide a dignified escape route for a senior attorney with progressive limitations facing an impairment action.
The best example, Montgomery explained, would be a reputable lawyer with a 50-year, successful career who now is suffering from dementia and has come to the attention of bar regulators.
The plan would allow that attorney to “retire with dignity,” Montgomery said.
Under the proposal, the Bar Counsel office could terminate an impairment proceeding if the attorney transfers to the Disabled and Retired class of membership and declares that he or she will not seek to transfer off of the Disabled and Retired list.
The lawyer’s transfer to the D&R list “may be utilized by Bar Counsel” to dismiss any pending complaints or allegations of misconduct, “militating against further proceedings.”
Under current rules, lawyers could transfer to the D&R class in the face of a proceeding, but prosecutors get no guarantee that the lawyer would not seek to practice again, Montgomery said. There is no way for prosecutors to close the case.
“The rule really facilitates an off-ramp where the bar has assurance the lawyer will not come back,” Montgomery said.
The rule applies only for lawyers who have permanent impairment, such as dementia. It would not apply for someone with substance abuse or with a mental health disorder that might resolve.
The concern is protection of the public, Gogal said.
To comment on the proposed rule revisions, contact VSB Executive Director Karen A. Gould at [email protected] or mail comment to 1111 E. Main Street, Suite 700, Richmond, VA 23219-0026 by the end of the business day on April 30.
Gogal said the COLD rules subcommittee is working on a potential proposal for a diversion program called “Suspended Suspension with Monitoring” designed for lawyers suffering from substance abuse and mental health issues.
There would be a new sanction available to the Disciplinary Board that would allow the Board to put a license suspension on hold provided a lawyer has entered a treatment program and demonstrated a “meaningful and sustained period of successful rehabilitation, that would be monitored,” Gogal said.
The committee hopes to discuss the idea in May and possibly present a rule change proposal for approval by the VSB Council at its October meeting, he said.