A recent draft Virginia ethics opinion wrestles with the issue of whether and when lawyers have a duty to alert ethics folks that a fellow lawyer has become disabled or is showing signs of impairment. This aspect of self-regulation, watching over each other, comprises some of the most difficult aspects of lawyering. And it’s important that we try to get it right.
The Virginia opinion uses two different hypotheticals, one involving a young associate with a substance abuse problem and the other a senior lawyer evincing signs of dementia. In the first instance, the drafters point out that firm managers have a duty under Rule 5.1 to make sure that all lawyers in the firm hew to the rules of conduct and suggest that they need to get the situation under control. However, if they do supervise his work, see that he is getting help, and assure themselves that his condition is not going to harm clients, they don’t have a duty under Rule 8.3 to report him to disciplinary authorities.
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