Washington Lawyer - January/February 2020 - 49

SPEAKING OF E THICS
3. Refer the lawyer to the D.C. Bar's confidential
Lawyer Assistance Program.12

rights of the impaired lawyer, the committee
offers the following guidance to lawyers:

Assessing the impaired lawyer's ability to
continue to practice and under what circumstances is also a critical aspect of ensuring the
ability of the impaired lawyer to comply with
the Rules. As Opinion 377 explains:

1. Take a direct approach, such as urging the
departing lawyer not to solicit the firm's
clients or to otherwise indicate that he or she
will handle their cases in any substantive way;

To protect more directly the interests of the
client, the firm or agency should consider
whether the impaired lawyer has a duty to
refrain from practicing or if the lawyer must
withdraw from representation under Rule
1.16(a)(2) . . . Depending on the nature of the
lawyer's practice, and the effect the impairment has on the lawyer's abilities, it may be
appropriate to change the lawyer's work
environment or duties, such as removing
the lawyer from trials or negotiations,
and assigning tasks such as legal research
or drafting. However, if the lawyer is performing any legal tasks, the firm or agency
is responsible for supervising the work performed by the lawyer and the work product
produced by the lawyer.

RULE 8.3 OBLIGATIONS
TO REPORT VIOLATIONS
Because a lawyer's impairment may increase
the likelihood of ethical misconduct, Opinion
377 analyzes the mandatory duty under Rule
8.3(a) to, under some circumstances, report
another lawyer's violations of the Rules that
have already occurred. Specifically, Rule 8.3
provides:
A lawyer who knows that another lawyer
has committed a violation of the Rules of
Professional Conduct that raises a substantial question as to that lawyer's honesty,
trustworthiness, or fitness as a lawyer in
other respects, shall inform the appropriate
professional authority.
The Legal Ethics Committee's discussion in
Opinion 377 may assist firms and agencies in
developing policies consistent with the obligations of lawyer-employees under this Rule.

WHEN AN IMPAIRED LAWYER
LEAVES A FIRM
Opinion 377 concludes by tackling the difficult
issue arising under Rule 1.4 of a lawyer's duty to
communicate with firm clients who are represented by an impaired lawyer leaving the firm.
After stressing that any communication by the
firm must accord with the substantive legal

2. Communicate only information that is legally
permissible, necessary, and material to a
client's decision-making ability in choosing
whether to stay with the firm, go with the
departing lawyer, or select another option;
and
3. Avoid any action that might be interpreted
as the firm's endorsement of the impaired
lawyer or that lawyer's competence, such as,
for example, sending a joint letter regarding
the lawyer's departure from the firm or other
law firm communication that could be considered an endorsement of the services of
the departing attorney.
In summary, Opinion 377 encourages law firms
and agencies to develop policies for identifying
and assisting impaired lawyers and for protecting
clients and the profession consistent with the
Rules of Professional Conduct and the law.
The data reveals that a professional culture that
condones silence or looks the other way, as
long as lawyers do not let personal issues affect
their work, is a prescription for harm.13 The profession must do better for lawyers and for the
public we all serve.
D.C. Bar legal ethics counsel Saul Jay Singer, Hope
C. Todd, and Erika Stillabower are available for
inquiries on the Legal Ethics Helpline at 202-7374700, ext. 1010, or at ethics@dcbar.org.
NOTES
1 Eilene Zimmerman, "The Lawyer, the Addict," The
New York Times (July 15, 2017).
2 P. R. Krill, R. Johnson, & L. Albert, "The Prevalence of
Substance Use and Other Mental Health Concerns
Among American Attorneys," 10 J. Addiction Med.
46 (2016).
3 "'Only 3,419 lawyers answered questions about
drug use, and that itself is telling,' said lawyer Patrick
Krill, the study's lead author. 'It's left to speculation
what motivated 75 percent of attorneys to skip over
the section on drug use as if it wasn't there.'" Eilene
Zimmerman, "The Lawyer, the Addict," supra.
4 J. M. Organ, D. Jaffe, & K. Bender, "Suffering in
Silence: The Survey of Law Student Well-Being and
the Reluctance of Law Students to Seek Help for
Substance Use and Mental Health Concerns," 66 J.
Legal Educ. 116 (2016).

5 "As to alcohol use, 43% of law student respondents
reported binge drinking at least once in the prior
two weeks and nearly one-quarter reported binge
drinking two or more times during that period.
One-quarter fell into the category of being at risk
for alcoholism for which further screening was
recommended." Id.
6 americanbar.org/content/dam/aba/images/abanews/
ThePathToLawyerWellBeingReportFINAL.pdf.
7 The opinion defines mental impairment broadly
as "a chronic or temporary condition arising out
of or related to age, substance abuse, a physical
or mental health condition or other circumstance
affecting the lawyer."
8 In October 2018, Virginia became the first
jurisdiction to explicitly include lawyer wellness as
an important aspect of maintaining competence
to practice law under Rule 1.1. See Comment [7],
Virginia Rule of Prof. Conduct 1.1.
9 Although little empirical research is available
regarding the relationship between discipline and
impairment, one rigorous source of data comes
from the state of Illinois covering the period
1998-2007; 2013-2017. Illinois data shows that 28
percent of discipline cases over 15 years involve
some type of impairment. See Annual Reports of
the Illinois ARDC, iardc.org/AnnualReports.html.
10 P. R. Krill, R. Johnson, & L. Albert, "The Prevalence of
Substance Use and Other Mental Health Concerns
Among American Attorneys," supra. Accordingly,
the Task Force recommends that legal employers
establish organizational policies and practices to
promote and support lawyer well-being, including
creating a work culture that encourages lawyers to
seek help by providing information about available
resources and creating procedures that permit
lawyers to seek confidential help for themselves
without fear of being penalized or stigmatized.
See The Path To Lawyer Well-Being: Practice
Recommendations for Positive Change, supra.
11 Such procedures could permit anonymous
reporting or designate a "neutral" non-supervising
firm or agency lawyer to receive reports from
lawyers and nonlawyer employees.
12 The Lawyer Assistance Program is a free, strictly
confidential program for District lawyers, judges,
and law students who are experiencing challenges,
such as addiction, mental health symptoms,
or stress that interfere with their personal or
professional lives. Visit dcbar.org/bar-resources/
lawyer-assistance-program.
13 "Of all the heartbreaking details of his story, the one
that continues to haunt me is this: The history on his
cellphone shows the last call he ever made was for
work. Peter, vomiting, unable to sit up, slipping in
and out of consciousness, had managed, somehow,
to dial into a conference call." "The Lawyer, the
Addict," supra.

JANUARY/FEBRUARY 2020

WASHINGTON LAWYER 49

https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingReportFINAL.pdf http://www.iardc.org/AnnualReports.html https://www.dcbar.org/bar-resources/lawyer-assistance-program/ https://www.dcbar.org/bar-resources/lawyer-assistance-program/

Washington Lawyer - January/February 2020

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