The Risk Manager, Fall 2017

Do Partners, Managers, and Supervisory Attorneys Have an Affirmative Duty to Take Precautionary Measures Before a Lawyer’s Impairment Results in Serious Misconduct or a Material Risk to Clients or the Public?

While there is considerable guidance available on a law firm’s duty to deal with an impaired lawyer after the impairment is discovered, there currently is little on whether firms have a proactive duty as well to anticipate impaired lawyer problems. Recently the Virginia State Bar Ethics Committee issued a opinion addressing this question (LEO 1886 - Duty of Partners and Supervisory Lawyers in a Law Firm When Another Lawyer in the Firm Suffers From Significant Impairment (12/15/2016)).

The opinion begins with a chilling review of the scope of the impairment problem in Virginia. Studies show “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. The incidence of alcohol abuse is higher among lawyers aged 30 or less.” The Ethics Committee then stressed the increasing problem of aging in the legal profession leading to cognitive impairment.

Relying on Virginia’s Professional Responsibility Rule 5.1, Responsibilities of Partners and Supervisory Lawyers, the Committee concluded that a firm is required to have in place preventative measures or procedures to ensure that all lawyers, not just impaired ones, comply with the Rules of Professional Conduct. “[To] protect its clients, the firm should have an enforceable policy that would require … the impaired lawyer [to] seek appropriate assistance, counseling, therapy, or treatment as a condition of continued employment with the firm. For example, the firm could recommend, encourage or direct that the impaired lawyer contact Lawyers Helping Lawyers for an evaluation and assessment of his or her condition and referral to appropriate medical or mental health care professionals for treatment and therapy.”

We offer this information for Kentucky lawyers to consider in reviewing their compliance with Kentucky’s Professional Responsibility Rule 5.1 that is identical to Virginia’s. Should you have proactive policies that anticipate future impairment problems by some members of the firm? To assist you in reviewing firm policy on impaired lawyers, we recommend you read the following three articles available on Lawyers Mutual’s website. Go to, click on Resources, click on Risk Manager By Subject, go to Impaired Lawyers, and select an article:

  • The Ethical and Malpractice Risks of Impaired Lawyers and Their Unimpaired Associates
  • Age Related Cognitive Impairment (includes this article and The Ethical and Malpractice Risks of Impaired Lawyers and Their Unimpaired Associates)
  • Risk Managing the Aging of the Legal Profession

Additionally, the ABA/BNA Lawyers’ Manual on Professional Conduct offers an up-to-date review of “Impairment” at pages 101:3301-3312 that is quite good.