Welcome! We would like you to join our community as we promote study of, and debate regarding, the professional responsibility of lawyers. Although our blog will serve as a resource for users of Professional Responsibility: A Contemporary Approach (2nd. ed 2013), the current developments, innovative teaching materials, and commentary should be thought-provoking and fun for all those interested in the legal profession. Please feel free to share your ideas and we will post as much as we can.
Submissions and nominations of articles are now being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017. The prize will be awarded at the 2018 AALS Annual Meeting in San Diego. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: email@example.com<mailto:firstname.lastname@example.org%3cmailto:email@example.com>. The deadline for submissions and nominations is September 1, 2017.
Two recent developments have focused attention on lawyers and disability. The ABA House of Delegates has approved a rule change that ” includes a requirement for lawyers to receive at least one hour of mental health or substance use disorder programming every three years. It also calls for one hour of diversity and inclusion programming every three years.” It was proposed by the American Bar Association Standing Committee on Continuing Legal Education, working with its Commission on Lawyer Assistance Programs.
The problem is not limited to lawyers. As the Journal of Legal Education has reported law students are reluctant to seek help for substance abuse and mental health concerns.
The second is a new Formal Opinion by the Virginia State Bar discussing the duties of supervisory lawyers. – gwc
DUTY OF PARTNERS AND SUPERVISORY LAWYERS IN A LAW FIRM WHEN ANOTHER LAWYER IN THE FIRM SUFFERS FROM SIGNIFICANT IMPAIRMENT
IntroductionIn this advisory opinion, the Committee analyzes 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.1 The applicable Rule of Conduct is Rule 5.12 which requires partners or other lawyers in the firm with managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to the Virginia Rules of Professional Conduct.3 Lawyers in a firm may have an obligation under Rule 8.3 to report an impaired lawyer to the Virginia State Bar if the impaired lawyer has engaged in misconduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law. However, this opinion addresses the obligations of partners and supervisory attorneys to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public. This opinion relies upon ABA Committee on Ethics and Professional Responsibility, Formal Opinion 03-429 (2003) [hereinafter ABA Formal Op. 03-429] for its approach to the issues raised by the mental impairment of a lawyer in a firm.
Scope of the Lawyer Impairment ProblemStudies report that lawyers experience depression, alcohol and other substance abuse at a rate much higher than other populations and 2 to 3 times the general population.4 The incidence of alcohol abuse is higher among lawyers aged 30 or less.5 Besides the potential lawyer impairment caused by substance abuse, the aging of the legal profession presents an increased incidence of cognitive impairment among lawyers. As of 2016, Virginia State Bar membership records revealed that of the 23,849 active members located in the Commonwealth, 8,366 or 35% are ages 55 or older. Fifteen percent of these attorneys or 3,584 members are 65 or over. These numbers reflect that Virginia’s lawyers, like lawyers nationally, are moving into an older demographic profile, and they continue to practice as they age. Moreover, in the years ahead, the number of lawyers that will continue to practice law beyond the traditional retirement age will increase dramatically.6 The substantial percentage of aging lawyers presents both opportunities and challenges for the state bars, and the scope and nature of the challenges and the best way to manage the challenges have been examined by bars around the country.
Question PresentedWhat are the ethical obligations of a partner or supervisory lawyer who reasonably believes another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public?
A powerful dissent by one member of an Illinois disciplinary board argues the decision imposes a heavy burden on lawyers to investigate their clients’ purposes when drafting wills, powers of attorney, etc. The lawyer, at the request of a client, drafted papers transferring an ailing friend’s house to the non-client in suspicious circumstances. There was overreaching, the house transferred under duress. The lawyer was found to have breached his duty to protect the third party. The decision could drive clients to Legal Zoom wrote the dissenter!
Legal Profession Blog // Michael Frisch
by Professor Alberto Bernabe
Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue. A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.
Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian. In part, the court concluded:
We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . . Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.
This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted. I have not done a state by state survey recently, so I don’t know for sure. However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence. If someone has information about the actual count of how many states follow each approach, please let me know.
Slides for teaching “whether Sally Yates is subject to discipline” available below.