Bar Counsel’s Message by Edward L. Davis Attorney Impairment and the Duty to Assist On December 15, 2016 , the Supreme Court of Virginia approved Legal Ethics Opinion (LEO) 1886, which addresses the duties of su-pervising attorneys who reasonably believe that a lawyer in their fi rm may be suffering from an impairment. The Supreme Court’s approval of this opinion made it a decision of the Court. 1 The reasoning behind this is twofold: protection of clients and the public, and the prevention of disci-plinary actions resulting from attorney impairment. What is impairment? The Rules of Court defi ne it as any physical or men-tal condition that materially impairs the fi tness of an attorney to practice law. 2 LEO 1886 makes it clear that partners and other lawyers who have managerial authority over attorneys in a law fi rm may not ignore the impair-ment of another attorney in the fi rm. The opinion cites Rule of Professional Conduct (RPC) 5.1, which addresses the ethical responsibilities of partners and supervisory lawyers in a law fi rm. It provides that under RPC 5.1, part-ners and supervisory attorneys must take precautionary measures before a lawyer’s impairment results in serious misconduct or material risk to the client or public. When a supervising lawyer knows or reasonably believes that a lawyer under his or her supervi-sion is impaired, RPC 5.1 requires the supervising lawyer to take reasonable steps to prevent the impaired lawyer from committing ethical misconduct. The LEO also provides that a lawyer whose physical or mental health materially impairs his or her capac-ity to represent clients has the same ethical obligations as any other lawyer. In other words, a lawyer’s impairment does not excuse the lawyer from com-pliance with the Rules of Professional Conduct. The impairment may be the cause of ethical misconduct; however, it is neither a defense nor an excuse for a lawyer’s failure to meet the ethical obligations owed to his or her clients. 3 In disciplinary proceedings, however, impairment may be a mitigating factor in determining a sanction. These principles reinforce the need for a supervising attorney to take action when the supervisor reason-ably believes that a lawyer in the law offi ce suffers from an impairment. The supervisor may confront the attorney about the problem and encourage the attorney to seek help from a lawyers’ assistance program, such as Lawyers Helping Lawyers. The supervising lawyer may also limit the duties of the subordinate lawyer to matters that are not time sensitive, or matters that do not involve client interaction, such as research and writing. On the other hand, the impairment may be such that the lawyer suspected of impairment cannot represent clients or practice law competently. In such cases, the supervising attorney may need to restrict the subordinate from practicing law altogether while seeking rehabilitative measures. Proactive efforts such as these not only protect the public, but potentially protect the impaired attorney from disciplinary action, too. Impairment, and the neglect and inattention that follow, often lead to disciplinary complaints. The resulting disciplinary investigations may reveal evidence of impairment. If the Virginia State Bar receives evidence suggesting impair-ment during a disciplinary investiga-tion, it must investigate. 4 In further-ance of this process, the bar counsel may petition the Disciplinary Board to order the attorney to undergo a psy-chiatric or medical examination, and provide releases to health care provid-ers authorizing the release of medical records to the bar. If, following an evi-dentiary hearing, the board determines that an impairment exists, it shall enter an indefi nite suspension of the attor-ney’s license. The suspension shall be terminated only upon determination by the board that the attorney is no longer impaired. 5 Impairment pro-ceedings are confi dential and closed to the public; however, fi nal orders of impairment are published to inform the public of the suspension. To pro-tect the attorney’s medical privacy, the orders are devoid of any details of the impairment. During the fi scal year that ended on June 30, 2017, fi ve attorneys suf-fered the indefi nite suspension of their licenses to practice law after the board determined that they were impaired. Proactive intervention by other lawyers or lawyer assistance programs may have helped to prevent the misconduct that led to the impairment proceed-ings. At a recent disciplinary trial, an attorney introduced evidence of impairment as a defense to some of the misconduct charges. Counsel argued that the impairment negated the element of specifi c intent required Impairment continued on page 15 12 VIRGINIA LAWYER | August 2017 | Vol. 66 www.vsb.org