Tuesday, May 25, 2010

ABA Take Heed

A notable trend in the past 25 years has been the rise of Bar-sponsored programs dedicated to providing help and treatment to members who have struggled with addictions and/or mental health issues.

Sometimes, treatment does not work and the attorney relapses into active addiction. What obligation (if any) does the Bar program have to the public to report the lapse if there is also evidence that the condition impairs the ability of the attorney to practice in an ethical manner? What obligation (if any) does the Bar have to report evidence of past or ongoing serious ethical violations learned in the course of seeking treatment?

The Arkansas Supreme Court touched on the reporting issue in a recent per curiam order.

The court created the original lawyers assistance program in 2000. The program also treats judges. The program sought action on three matters relating to the operation of the assistance program that the court addressed in its order.

First, the court declined to extend the program to law students, deferring action on the request pending clarification and additional information. Second, the court clarified and consolidated the procedural rules governing the program.

The third issue that the court addressed raises policy issues regarding the balance to the struck between protecting the confidentiality of information received by the program that raises substantial questions about honesty, trustworthiness or fitness to practice and the duty to report such misconduct. ABA Model Rule 8.3 favors the program over the public, exempting from the disclosure obligation any information learned from the treated attorney through participation  in the program. ABA Model Rule 8.3(c) essentially treats such information as protected by the ethical duty of confidentiality, creating a faux attorney-client relationship between the program and the treated attorney.

This has always troubled me. My view is that a Rule that trumps the duty to report misconduct no matter what an attorney has done and no matter the danger of future misconduct ignores the public interest articulated by Rule 8.3. Lawyers are given the blessing of self-regulation and have an obligation to create regulations "conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar." ABA Model Rules, Preamble at [12]. In my view, granting categorical protection to all information learned in treatment is not in the public interest

The Arkansas court here amended its Rule 8.3. The confidentiality of information obtained by the treatment program is protected from disclosure. However, Rule 8.3(d) provides that the duty to report is reinstated if the program volunteer has reason to believe that the attorney is failing to cooperate with treatment, is engaged in  criminal behavior or has engaged in otherwise reportable misconduct "which is beyond or suceeds that behavior upon which the attorney's participation in [the program] was initially based."

For reasons that I will set out in a future post (or law review article), I would abolish ABA Model Rule 8.3(c). Short of that, this Arkansas rule is a definite improvement over the Model Rule. The Rule makes it clear that there are circumstances in which the public interest is greater than that of the treated attorney. (Mike Frisch)


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I would argue that (near) absolute confidentiality protects both the public and the lawyer by encouraging lawyers to enter into the program. That's a significant portion of the rationale for the attorney-client privilege, and for keeping information about LAP participation confidential. The more likely we make disclosure, the fewer lawyers we will see enter the program.

Posted by: Noah | May 25, 2010 1:21:10 PM

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