Another development on impaired lawyers, Virginia drafts an ethics opinion

Almost a year ago, I wrote a little bit about what was a first-of-its-kind rule adopted by South Carolina to address the obligations of lawyers in a law firm when a lawyer within their midst was becoming impaired as a result of aging.  South Carolina’s adoption of a new RPC 5.1(d) aimed at that specific situation was part of a package 3 court rules but the language of SC’s RPC 5.1(d) specifically provides:

(d) Partners and lawyers with comparable managerial authority who reasonably believe that a lawyer in the law firm may be suffering from a significant impairment of that lawyer’s cognitive function shall take action to address the concern with the lawyer and may seek assistance by reporting the circumstances of concern pursuant to Rule 428, SCACR.

I have admittedly not scoured the landscape since SC adopted that rule, but I am not aware of any jurisdiction that has acted similarly.

Earlier this month, Virginia put out for public comment a draft ethics opinion that, at least, touches on the issue of what lawyers are supposed to do in dealing with an aging lawyer on the decline.  The draft of Virginia’s LEO 1886, titled “Duty of Partners and Supervisory Lawyers in a Law Firm When Another Lawyer in the Firm Suffers from Significant Impairment,” can be viewed here.

The opinion offers two hypothetical situations – one involving an associate with a drug problem and the other involving a 60-year old lawyer suspected to be having declining mental faculties.  This hypothetical reads as follows:

George is a sixty-year old partner in a small, two lawyer firm.  He has been honored many times for his lifelong dedication to family law and his expertise in domestic violence protective order cases.  He has suffered a number of medical issues in the past several years and has been advised by his doctor to slow down, but George loves the pressure and excitement of being in the courtroom regularly.  Recently, Rachelle, his long-time law partner, has noticed some lapses of memory and confusion that are not at all typical for George.  He has started to forget her name, calling her Mary (his ex-wife’s name), and mixing up details of the many cases he is currently handling.  Rachelle is on very friendly terms with the [juvenile and domestic relations] court clerk, and has heard that George’s behavior in court is increasingly erratic and sometimes just plain odd.  Rachelle sees some other signs of what she thinks might be dementia in George, but hesitates to “diagnose” him and ruin his reputation as an extraordinarily dedicated attorney.  Maybe he will decide to retire before things get any worse, she hopes.

The overwhelming majority of the proposed VA opinion focuses however on impairment caused by drug or alcohol abuse – the other lengthy hypo set out in the proposed opinion.  This focus is likely because of the recent wave of publicity focusing upon the high rates of depression and substance abuse among members of our profession.  In fact, the proposed opinion right out of the gate references the 2016 report in the Journal of Addiction Medicine that reported that our rate was “2 to 3 times the general population.”  The opinion does a fine job in elaborating on that scenario, but it reads in the end as if it were treating the aging lawyer question as something of an afterthought.  In fact, the only specific guidance the opinion offers on the second hypothetical comes in its last 8 lines:

In the second hypothetical, it is not clear that George has committed any violation of the Rules of Professional Conduct.  Obviously, George’s impairment, unaccompanied by any professional misconduct, does not require any report to the bar under Rule 8.3(a).  Yet, his mental condition, as observed by his partner, Mary, would require that Mary make reasonable efforts to ensure that George does not violate his ethical obligations to his clients or violate any Rules of Professional Conduct.  This would include, as an initial step, Mary or someone else having a confidential and candid conversation with George about his condition and persuading him to seek evaluation and treatment.

Offering just this, and only this, as guidance is a bit of a shame given just how stark and troublesome the facts of the second hypothetical are and how heart-wrenching you could imagine the circumstances in the hypo being for Mary when we’re told they practice in just a two-lawyer firm.

Who exactly would be the “someone else” if not Mary in that situation who could have the confidential and candid conversation with George?  Admittedly, it isn’t quite ethics guidance but it would also be helpful for Virginia lawyers in the future role of Mary in the hypothetical to hear that how wrongheaded and counterproductive Mary’s thinking as to what might ruin George’s reputation is.  Mary’s act of confronting George privately about her concerns is not the thing that would “ruin his reputation as an extraordinarily dedicated attorney.”  Allowing the situation to go unaddressed is much more likely to lead to outcomes in cases — again when we are talking about a two lawyer firm where it simply isn’t possible to think that Mary can keep track of and cover for anything that goes wrong in George’s practice —  is the much more likely route to ruination of an otherwise stellar reputation.

It will be interesting to see whether the public comment period will result in Virginia trying to elaborate a bit more on the much more difficult of the two hypos.  Here’s hoping.

 

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