The Proposed Bar Assistance Program

The Vermont Supreme Court has proposed to create a Bar Assistance Program.  Housed within the Professional Responsibility Program and administered by bar counsel, the program aims to assist lawyers who are facing behavioral health issues.  The trade-off, which gives me pause, is that bar counsel would no longer screen disciplinary complaints.

The proposed revisions are here.

Over the next few weeks, I will share my thoughts on what a comprehensive system of attorney regulation should look like.  For now, the proposal is a good first step.

The State Court Administrator’s memo announcing the proposal includes the following note:

“The proposed amendments to A.O. 9 establish a Bar Assistance Program within the purview of the Professional Responsibility Board. The program will continue to provide guidance and educational programs on ‘traditional’ legal ethics and professional responsibility. In addition, the bar assistance program will assist by

  • developing programs to educate judges, lawyers, legal professionals, law students, and the public on issues related to professional competence, professional responsibility, legal ethics, law practice management, and behavioral health issues that impact the practice of law;
  • developing programs that promote lawyer wellness and educate judges, lawyers, legal professionals, and law students on issues related to the signs, symptoms, causes, and prevention of behavioral health issues that affect professional competence and impact the practice of law; and
  •  helping impaired lawyers and judges to begin and continue recovery.

The proposal assigns Bar Counsel with the responsibility for operating the Bar Assistance
Program. Although Bar Counsel will continue to respond to ethics inquires, Bar Counsel will not have any role in screening formal disciplinary complaints. The proposal assigns this task to newly created Screening Counsel. The proposed rules contain a confidentiality provision, specifying that information related to the operation of the Bar Assistance Program is confidential.”

A few quick points:

  1. A comprehensive system of attorney regulation should focus as much on assisting lawyers to achieve and maintain high standards of professional responsibility as it does on responding to misconduct.
  2. Vermont’s Professional Responsibility Program has long believed in using bar counsel to assist lawyers to acheive & maintain those standards.  Since 1999, and with respect to lawyers’ inquiries on ethical issues and practice questions, bar counsel’s role has been to “provide referrals, educational materials, and preventive advice and information to assist attorneys to achieve and maintain high standards of professional responsibility.”  Supreme Court Administrative Order 9, Rule 9.
  3. Data proves that focusing on proactive regulation works.
  4. A lawyer’s core standard of professional responsibility is to provide clients with competent representation. As the profession has come to acknowledge, well-being is an aspect of competence.
  5. The profession owes a duty to assist the lawyers whose behavioral health issues threaten to impact their ability to provide competent legal services.  The assistance must be decoupled and distinct from the disciplinary process.

So, that’s what we’ve proposed.

Bar counsel’s role has always included assisting lawyers to comply with their professional responsibilities. For instance, trust accounting, conflicts of interests, client confidences, etc., etc., etc.  The new program is but a natural extension of the assistance we already provide.

Again, over the next few weeks, I’ll continue to blog on the larger issue of what a comprehensive system of attorney regulation should look like in the 21st century.

For now, comments on the proposal are due April 13, 2020.  They should be sent to me.  To learn more, or to chat informally without making a comment, feel free to call: 802-859-3004.


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