New ABA Rule, Virginia Ethics Opinion Focus on Substance Abuse by Lawyers and Students

Two recent developments have focused attention on lawyers and disability.  The ABA House of Delegates has approved a rule change that " includes a requirement for lawyers to receive at least one hour of mental health or substance use disorder programming every three years. It also calls for one hour of diversity and inclusion programming every three years."  It was proposed by the American Bar Association Standing Committee on Continuing Legal Education, working with its Commission on Lawyer Assistance Programs.

The problem is not limited to lawyers.  As the Journal of Legal Education has reported law students are reluctant to seek help for substance abuse and mental health concerns.

The second is a new Formal Opinion by the Virginia State Bar discussing the duties of supervisory lawyers. - gwc

Virginia State Bar Legal Ethics Opinion 1886 

DUTY OF PARTNERS AND SUPERVISORY LAWYERS IN A LAW FIRM WHEN ANOTHER LAWYER IN THE FIRM SUFFERS FROM SIGNIFICANT IMPAIRMENT

Introduction
In this advisory opinion, the Committee analyzes the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public.1  The applicable Rule of Conduct is Rule 5.12 which requires partners or other lawyers in the firm with managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to the Virginia Rules of Professional Conduct.3  Lawyers in a firm may have an obligation under Rule 8.3 to report an impaired lawyer to the Virginia State Bar if the impaired lawyer has engaged in misconduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness to practice law. However, this opinion addresses the obligations of partners and supervisory attorneys to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public. This opinion relies upon ABA Committee on Ethics and Professional Responsibility, Formal Opinion 03-429 (2003) [hereinafter ABA Formal Op. 03-429] for its approach to the issues raised by the mental impairment of a lawyer in a firm.

Scope of the Lawyer Impairment Problem
Studies report that lawyers experience depression, alcohol and other substance abuse at a rate much higher than other populations and 2 to 3 times the general population.4  The incidence of alcohol abuse is higher among lawyers aged 30 or less.5 Besides the potential lawyer impairment caused by substance abuse, the aging of the legal profession presents an increased incidence of cognitive impairment among lawyers.  As of 2016, Virginia State Bar membership records revealed that of the 23,849 active members located in the Commonwealth, 8,366 or 35% are ages 55 or older.  Fifteen percent of these attorneys or 3,584 members are 65 or over.  These numbers reflect that Virginia’s lawyers, like lawyers nationally, are moving into an older demographic profile, and they continue to practice as they age. Moreover, in the years ahead, the number of lawyers that will continue to practice law beyond the traditional retirement age will increase dramatically.6 The substantial percentage of aging lawyers presents both opportunities and challenges for the state bars, and the scope and nature of the challenges and the best way to manage the challenges have been examined by bars around the country.

Question Presented
What are the ethical obligations of a partner or supervisory lawyer who reasonably believes another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public?
****
READ MORE