The new year heralds a new start. Many lawyers who struggle with an addiction — alcohol, drugs, gambling, food, sex — use the occasion to resolve to quit their harmful behavior, and there is a nationwide network of confidential bar organizations that can help. But what are the obligations of a firm where an impaired lawyer works? A new Virginia ethics opinion has some answers.
Duty to supervise
Every jurisdiction in the U.S. has a version of Model Rule 5.1. Like Virginia’s rule, it requires partners or other lawyers in a firm who have managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to lawyer conduct rules. The Virginia Supreme Court, in Ethics Opinion 1886, easily concluded that this mandates that firm managers and lawyers who simply supervise another lawyer make reasonable efforts to ensure that an impaired lawyer doesn’t violate the ethics rules.
Further, the rule requires preventive action, said the court. “When a partner or supervising lawyer knows or reasonably believes that a lawyer under their direction and control is impaired,” they must “take reasonable steps to prevent” the impaired lawyer from violating ethics rules.
Steps to take
In dealing with an impaired lawyer, the firm’s first duty is protecting its clients’ interests, but the Virginia opinion (and common sense) suggests a range of responses that depend entirely on the circumstances:
- Confrontation: A first step may be confronting the impaired lawyer, and urging the lawyer to accept help.
- Accommodation: The firm may be able to work around some impairment situations. For example, the firm might be able to reduce the impaired lawyer’s workload, require supervision or monitoring, or remove the lawyer from time-sensitive projects.
- Supervision: Depending on several factors — nature, severity, likelihood of recurrence — the firm may have an obligation to supervise, monitor or review the work of the impaired lawyer, including a senior lawyer or partner.
- Limitation: Some circumstances will mandate that the firm entirely prevent the lawyer from servicing clients until the lawyer has recovered from the impairment. In other situations, the firm might be able to protect clients by limiting the lawyer solely to giving advice, or to drafting legal documents for other lawyers.
- Assistance as a condition of employment: The Virginia Supreme Court said that firms should have an enforceable policy that requires an impaired lawyer to seek help — counseling, therapy, or treatment — as a condition of continued employment with the firm.
- Reporting: It may also be appropriate for the firm itself to confidentially report the impaired lawyer to the lawyer assistance program in that jurisdiction, or to consult with medical professionals for advice.
Not just for firms…
The Virginia ethics opinion focusses on harm prevention, and intentionally does not address the requirement under Model Rule 8.3 to report misconduct that has already occurred. Also, legal obligations that a firm might have under HIPPA, the FMLA or the ADA, for example, are outside the scope of the opinion.
One important note: Implicit in Opinion 1886 is that it also applies to lawyers working in-house or in corporate law departments, in government agencies, and in legal aid and legal services organizations — all of them constitute “firms” under Model Rule 1.0(c)‘s definition.
Deeds of loving-kindness
Whether you are a senior associate who supervises a more-junior lawyer, or you are the managing partner of a large firm, you have duties under Rule 5.1 with respect to an impaired lawyer. We also have duties as human beings — duties that we can sometimes forget in the course of our practices. Those duties, too, should point us in the direction of compassionate action for the benefit of a colleague suffering from an impairment.