The Virginia State Bar’s ethics committee has advised attorneys that they have an affirmative duty to act when they become aware that a solo practitioner’s impairment has resulted in a failure to provide competent representation.
However, attorneys do not have any ethical obligation to act when an impaired solo practitioner is still providing competent representation.
These findings supplement an opinion that addressed the duties of supervisory lawyers in a firm to take preemptive action when an attorney in the firm is suffering from an impairment that may affect his ability to represent clients. This new opinion provides guidance to attorneys who are not in a supervisory position above an attorney who is becoming impaired. The opinions come in the wake of a study by the ABA and the Hazeldon Betty Ford Foundation that found high levels of substance abuse and other mental health concerns among American attorneys.
Under Virginia Rule of Professional Conduct 8.3(a), the duty to report is triggered when an attorney has dependable information that the impaired attorney has violated a rule that calls into question the lawyer’s trustworthiness, honesty, or fitness to practice law. The advisory opinion makes clear that not every rule violation rises to that standard, and a lawyer’s impairment on its own does not necessarily violate professional conduct rules at all.
However, nonsupervisory attorneys do have a duty to report another attorney if they have learned that the attorney is currently materially impaired in their ability to provide adequate representation and is continuing to represent clients in violation of their duty to withdraw or decline representation. Under Rule 1.16(a)(2), attorneys are required to decline or withdraw from representation “if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” A violation of 1.16(a)(2) will usually trigger a reporting duty under Rule 8.3(a) because a material impairment that impedes an attorney’s ability to represent a client raises a substantial question about the attorney’s fitness to practice law.
The committee further advised attorneys who are concerned about another attorney’s possible impairment to contact Lawyers Helping Lawyers for guidance, or to encourage the impaired attorney to do so.
To read the Virginia State Bar’s opinion click here.
