New Virginia Ethics Opinion on Duty to Report Impaired Lawyers

In December 2016, Virginia State Bar Ethics Committee Opinion No. 1886 addressed the duties of supervisory lawyers in a firm to take preemptive action when a lawyer in the firm is suffering from an impairment that might affect his or her ability to represent clients. There, supervisory lawyers were uniquely found to have an obligation to take precautionary measures before misconduct occurs because of their duties under Rule 5.1 to ensure that other lawyers in the firm are complying with their ethical duties.

Just recently, a new Opinion (No. 1887) looks at whether lawyers who are not in a supervisory role have a duty to report a lawyer who continues to represent clients while suffering from an impairment. The hypothetical scenarios presented were those involving a solo practitioner and the sole managing partner or owner of a firm that employs associates but no other partners.

The Committee generally found that “other than a lawyer who is a partner or in a supervisory role in a law firm, lawyers do not have a duty to proactively address the impairment of other lawyers.” Rule 8.3(a) requires reporting when a lawyer has “…reliable information that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law…” The Committee reasons that, “In a specific instance where other lawyers believe that a lawyer is impaired, there might not be specific misconduct that the lawyers know about and that is subject to Rule 8.3(a).”

However, it goes on to explain that a duty to report under 8.3(a) will often be triggered by a violation of Rule 1.16(a)(2), which requires a lawyer to withdraw or decline representation if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” The Committee provides that a “material impairment in a lawyer’s ability to represent the client almost by definition raises a substantial question as to the lawyer’s fitness to practice law.” The distinguishing factor is whether there is evidence that the lawyer’s ability to represent clients is currently compromised.

Regardless of whether a bar complaint is warranted, the Committee says that concerned lawyers should contact Lawyers Helping Lawyers or encourage the impaired lawyer to do so.

For a more detailed analysis, read the full Opinion here.

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