Supervisory Obligations And Impaired Attorneys

A draft opinion of the Virginia State Bar Standing Committee on Legal Ethics deals with an important question of professional responsibility - supervisory duties of attorneys dealing with an impaired colleague.

This proposed opinion addresses the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public. The proposed opinion specifically focuses on the obligations of partners and supervisory lawyers to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public.

In this proposed opinion, the Committee concludes that Rule of Professional Conduct 5.1(b) requires a partner or supervising lawyer to take reasonable steps to prevent an impaired lawyer under his direction and control from violating the Rules of Professional Conduct. Drawing on the analysis of ABA Formal Opinion 03-429, the proposed opinion concludes that supervisory lawyers must protect the interests of the firm’s clients by establishing procedures that require the impaired lawyer to get treatment as a condition of continued employment and/or limit the impaired lawyer’s work to tasks he is capable of doing. The supervisory lawyers have a duty to take action in this situation even if no misconduct has occurred that would trigger the duty to report the impaired lawyer under Rule 8.3(a) because the duty of supervisory lawyers under Rule 5.1 is prospective and applies even before any misconduct has occurred. The proposed opinion applies this analysis to two different hypotheticals to demonstrate the various actions that may need to be taken depending on the nature and circumstances of the affected lawyer’s impairment.

(Mike Frisch)