CBA Record Feb-March 2018

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/. ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit- tee can help. Submit hypothetical questions to Loretta Wells, CBA Government Affairs Direc- tor, by fax 312/554-2054 or e-mail lwells@ chicagobar.org. instead of or in addition to filing a bar complaint? In response to the first question, the Opinion stated: Other than a lawyer who is a part- ner or in a supervisory role in a law firm, lawyers do not have a duty to proactively address the impairment of other lawyers. See Rule 5.1 and LEO 1886. The Rules of Profes- sional Conduct only require action when the reporting lawyer has reli- able information that the impaired lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness to practice law. [Emphasis added] Rule 8.3(a). In response to the second question, the Opinion stated: [R]egardless of whether a bar com- plaint is warranted, a lawyer who is concerned about another lawyer's possible impairment could also encourage the impaired lawyer to contact [the Virginia equivalent of the Illinois Lawyers Assistance Pro- gram (‘LAP’)], or contact [the LAP] herself, for guidance on how best to address the situation. These Virginia opinions provide a useful guidance in navigating through a grow- ingly complex state of affairs.

BY JOHN LEVIN The Impaired Lawyer–Our Individual Responsibility T here is a growing concern regard- ing mental health problems and substance abuse among members

Further reflecting the problem, Illinois Supreme Court Rule 794(d), governing minimum continuing legal education for lawyers, was amended effective July 2017, to provide that beginning with the two-year reporting period ending June 30, 2019, the minimum six hours of profes- sionalismMCLE required every reporting period “shall include either completing the Rule 795(d)(11) yearlong Lawyer-to- Lawyer Mentoring Program or: (i) At least one hour in the area of diversity and inclusion and (ii) At least one hour in the area of mental health and substance abuse.” Without doubt, the problems are real and reflect issues in our society at large. But what is our duty as an individual member of the legal profession to police these prob- lems? This question was taken up by the Supreme Court of Virginia in Legal Ethics Opinion (“LEO”) 1886 (December 15, 2016) and LEO 1887 (August 30, 2017). LEO 1886 addressed the following question: “what 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?” The Opinion con- cluded that under Rules 5.1 and 8.3, the supervisory lawyer is responsible for pre- venting the impaired lawyer from violating the Professional Rules, and if there were a violation under Rule 8.3, report that viola- tion to the proper authorities. LEO 1887 addressed two further questions: 1. Is there a duty to report a lawyer who continues to represent clients while suffering from an impairment? [and] 2. What other options are available,

of the legal community. As reported by the Illinois Supreme Court Commission on Professionalism in an article dated August 15, 2017 by Jane Reardon entitled Shining a Light on Lawyers’ Substance Abuse and Mental Health: “[T]he American Bar Asso- ciation teamed up with the Hazelden Betty Ford Foundation to survey and publish a report on substance abuse and other mental health issues of attorneys. According to the report, 21% of licensed, employed attorneys qualify as problem drinkers, 28% struggle with some level of depression and 19% demonstrate symptoms of anxiety.” Illinois Supreme Court Rule 758(a) has long held: If the Inquiry Board has reason to believe that an attorney admitted to practice in this State is incapacitated from continuing to practice law by reason of mental infirmity, mental disorder, or addiction to drugs or intoxicants, the Administrator shall file a petition with the Hearing Board requesting a hearing to determine whether the attorney is incapacitated and should be transferred to disability inactive status pending the removal of the disability, or be permitted to continue to practice law subject to conditions imposed by the court. John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

46 FEBRUARY/MARCH 2018