DC advisory opinion addresses duties when another lawyer is impaired.

In March 2016, I authored my first post on lawyer wellness.  In it, I mentioned that lawyers often inquire whether Rule 8.3, the mandatory reporting rule, requires them to report impaired lawyers.  I added:

  • “Maybe.  But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?”

I suggested contacting me or Josh Simonds at the Vermont Lawyers Assistance Program.

Somewhat ironically, a lawyer called me this morning, minutes before I began to draft this post.  The lawyer asked for help getting into a residential treatment program. It was my first call of that nature. I referred the lawyer to Josh and stand ready to assist if the lawyer enters treatment and steps need to be taken to protect the interests of the lawyer’s clients.

But I digress.  I write today because I suppose there are instances in which helping a colleague doesn’t work.  If so, when does the colleague’s level of impairment trigger the duty to report?

Earlier this week, the D.C. Bar issued Ethics Opinion 377: Duties When a Lawyer is Impaired.  I want to highlight the paragraph that I consider most important:

  • “Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment.  This purpose should not be forgotten as lawyers, firm, and agencies seek to comply with the ethical mandates discussed herein.”

In other words, let’s help people and let’s not disincentivize seeking help.  That’s why assistance must be decoupled from discipline.

As for the guts of the opinion, I don’t want to regurgitate it here.  It’s worth reading on your own.  In sum, it recommends that lawyers in supervisory & managerial roles:

  • “seek to create a culture of compliance” within their firms & agencies;
  • promote an office culture that encourages those in need to seek assistance;
  • develop internal policies & procedures to encourage early reporting to appropriate personnel within the office;
  • develop internal policies & procedures with which an impaired lawyer will be expected to comply**;
  • keep in mind that the duties to clients might include removing an impaired lawyer from involvement with client matters; and,
  • keep in mind that the substantive law will inform the firm or office on how to deal with an impaired lawyer’s privacy and employment rights.

** On this point, last week I blogged about the ABA Well-Being Template for Legal Employers.

I understand that many lawyers will continue to view lawyer wellness through the lens of a duty to report.  Even if that’s your perspective, don’t forget the key line from the D.C. opinion:

  • “Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment.”

Help because you can, not because you have to.

As always, if you or a legal profession you know needs help, contact me or Josh Simonds at the Vermont Lawyers Assistance Program.

wellness