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Virginia Ethics Opinion examines duties of partners and supervisory lawyers when firm lawyer is significantly impaired

Hello everyone and welcome to this Ethics Alert which will discuss the recent Virginia Ethics Opinion which examines two hypothetical situations involving impaired lawyers, one where the lawyer may be abusing alcohol and the other where the lawyer may be suffering from age related dementia.  The first scenario is important since studies have shown that lawyers disproportionately suffer from alcohol and controlled substance addiction and abuse and the second scenario is certainly becoming much more important as many (i.e. baby boomer etc.) practicing lawyers become older.  The opinion is Virginia State Bar Legal Ethics Opinion 1886, which is here:

In the first scenario, a managing partner in a law firm learns from credible sources that a senior associate had a serious substance abuse problem and had been appearing in court drunk and smelling of alcohol.  The managing partner also observed that the associate exhibited what are considered to be traditional signs of an abuse problem.  When confronted, the associate denied that he has any problem.

The opinion addresses whether the managing partner is required to report the associate’s suspected abuse problem and concludes that the partner may not be required to report the associate if he or she has promptly taken reasonable steps to ensure that the associate does not engage in any future conduct that breaches any duties owed to the firm’s clients.

“The law firm may be able to work around or accommodate 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…(t)he impaired lawyer’s role might be restricted solely to giving advice to and drafting legal documents only for other lawyers in the firm who in turn can evaluate whether the impaired lawyer’s work product can be used in furtherance of a client’s interests.”

According to the opinion, “if reasonable measures or precautions have been taken by (the managing partner) and any other lawyers in the firm to ensure that the impaired lawyer complies with the Rules of Professional Conduct, neither the partners or supervisory lawyers in the firm are ethically responsible for the impaired lawyer’s professional misconduct, unless they knew of the conduct at a time when its consequences could have been avoided or mitigated and failed to take reasonable remedial action.”

In the second hypothetical, a lawyer suspected that her 60-year-old law firm partner (who is prominent in his area of practice) was suffering from age-related dementia. The lawyer had seen and heard about some erratic behavior by the partner; however, she does not want to report the partner and risk ruining his reputation, unless it is required by the Bar Rules.

The opinion states that, unless there is professional misconduct of which the lawyer is aware, she (or he) is not required to report the partner; however, she would be required to make reasonable efforts to prevent him from violating his ethical obligations to the clients or violating Bar Rules. This would include an initial conversation with the partner about his condition and attempting to persuade him to seek an evaluation and treatment, if necessary.

Bottom line: this opinion makes it clear that law firms should be aware of these issues and implement and enforce policies that require impaired lawyers to seek assistance and also require supervisory (and other) lawyers to take appropriate steps to protect the clients’ interests, such as removing an impaired lawyer from a case or supervising him or her and requiring professional assistance and address the problem. If those policies are in place (and the lawyer has not observed or become aware of Bar violations), the lawyer would not necessarily be required to report the impaired lawyer to the Bar.

Be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

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